UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C.
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment
No. __)
Filed
by the Registrant [ ]
Filed
by a Party other than the Registrant [ ]
Check
the appropriate box:
[
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Preliminary
Proxy Statement
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[
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Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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[X]
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Definitive
Proxy Statement
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Definitive
Additional Materials
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[ ]
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Soliciting
Material Pursuant to Rule 14a-12
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Digital
Ally, Inc.
(Name
of Registrant as Specified in Its Charter)
(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment
of filing fee: (Check the appropriate box):
[X]
No fee required
[ ]
Fee computed on table below per Exchange Act Rule 14a-6(i)(1) and 0-11.
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(1)
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Title
of each class of securities to which transaction applies:
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(2)
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Aggregate
number of securities to which transaction applies:
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(3)
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Per
unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
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(4)
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Proposed
maximum aggregate value of transaction:
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(5)
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Total
fee paid:
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[ ]
Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of
its filing.
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(1)
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Amount
Previously Paid:
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(2)
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Form,
Schedule or Registration Statement No.:
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Filing
Party:
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Date
Filed:
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Digital
Ally, Inc.
9705
Loiret Boulevard
Lenexa,
Kansas 66219
April
5, 2019
To
our Stockholders:
I
am pleased to invite you to attend the annual meeting of stockholders of Digital Ally, Inc. (“Digital”) to be held
on Tuesday, May 21, 2019 at 10:00 a.m., CDT, at our Company facility at 9705 Loiret Boulevard, Lenexa, Kansas 66219. Details regarding
admission to the annual meeting and the business to be conducted are more fully described in the accompanying notice of annual
meeting and proxy statement.
We
have elected to take advantage of Securities and Exchange Commission rules that allow issuers to furnish proxy materials to their
stockholders on the Internet. We believe that the rules will allow us to provide our stockholders with the information they need,
while lowering the costs of delivery and reducing the environmental impact of our annual meeting.
Your
vote is important. I hope that you will vote as soon as possible whether or not you plan to attend the annual meeting. Please
review the instructions on each of your voting options described in the proxy statement and the notice of annual meeting you received
in the mail.
Thank
you for your ongoing support of, and continued interest in, Digital Ally.
Sincerely,
Stanton
E. Ross
President,
Chief Executive Officer and
Chairman
of the Board
Admission
to the annual meeting will be limited to stockholders. Please note that an admission ticket and picture identification will be
required to enter the annual meeting. For stockholders of record, an admission ticket is printed on the back cover of these proxy
materials and on the notice of annual meeting. An individual arriving without an admission ticket will not be admitted unless
it can be verified that the individual was a Digital stockholder as of the record date. Backpacks, cameras, cell phones with cameras,
recording equipment and other electronic recording devices will not be permitted at the annual meeting. Digital reserves the right
to inspect any persons or items prior to their admission to the annual meeting. Failure to follow the meeting rules or permit
inspection will be grounds for exclusion from the meeting.
Table
of Contents
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Page
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Notice
of Annual Meeting of Stockholders
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1
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Proxy
Statement for 2019 Annual Meeting of Stockholders
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2
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Information Concerning Solicitation And Voting
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2
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Stockholder
List
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6
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Our
Voting Recommendations
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6
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Voting
Results
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6
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Deadline
for Receipt of Stockholder Proposals for 2019 Annual Meeting of Stockholders
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6
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Other
Matters
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7
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Proposal
One: Election of Directors
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7
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Nominees
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7
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Vote
Required and Board Recommendation
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9
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Board
of Directors and Committee Meetings
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9
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Committees
of the Board of Directors
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9
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Compensation
Committee Interlocks and Insider Participation
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12
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Board
of Directors’ Role in the Oversight of Risk Management
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12
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Board
Leadership Structure
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12
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Stockholder
Communication with the Board of Directors
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13
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Policy
for Director Recommendations and Nominations
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13
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Code
of Ethics and Conduct
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14
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Director
Compensation
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14
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Proposal
Two: To Approve an Amendment to the 2018 Digital Ally, Inc. Stock Option and Restricted Stock Plan
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15
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Vote
Required and Recommendation
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16
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Summary
of the 2018 Stock Option and Restricted Stock Plan
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Outstanding
Equity Awards at Fiscal Year-End
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18
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Recent
Stock Option and Restricted Stock Award Grants to Employees, Consultants, and Directors
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Federal
Tax Aspects
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21
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Proposal
Three: To Approve an Amendment to Our Articles of Incorporation to Increase the Number of Authorized Shares of Our Capital
Stock that We May Issue by 10,000,000 and Classify such Shares Blank Check Preferred Stock
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22
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Authorization
of Blank Check Preferred Stock
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Effectiveness
of Articles Amendment
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Potential
Anti-Takeover effect of the Proposed Articles Amendment
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Vote
Required and Recommendation
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Proposal
Four: To Approve, on an Advisory, Non-binding Vote, the Compensation of the Named Executive Officers
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Vote Required and Board Recommendation
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Proposal
Five: To Ratify the Appointment of RSM US LLP as Our Independent Registered Public Accounting Firm
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Audit
and Related Fees
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Vote
Required and Board Recommendation
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27
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Report
of the Audit Committee
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27
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Executive
Compensation and Related Information
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Summary
Compensation Table
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28
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Grant
of Plan-Based Awards
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28
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Outstanding
Equity Awards at Fiscal Year-End
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31
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Option
Exercises and Stock Vested
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32
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Stock
Option Plans
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Equity
Compensation Plan Information
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Stock
Option and Restricted Stock Grants
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Employment
Contracts, Termination of Employment and Change-in-Control Arrangements
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34
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Retention
Agreements
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34
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Security
Ownership of Certain Beneficial Owners and Management
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36
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Section
16(a) Beneficial Ownership Reporting Compliance
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38
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Transactions
with Related Persons
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38
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Other
Matters
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38
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Advance
Notice Provisions for Stockholder Proposals and Nominations
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38
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Annual
Report
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39
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Appendix
A – Amendment to the Digital Ally, Inc. 2018 Stock Option and Restricted Stock Plan
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40
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Cautionary
Note Regarding Forward Looking Statements
Certain
statements in this Proxy Statement may be considered to be “forward-looking statements” as that term is defined in
the U.S. Private Securities Litigation Reform Act of 1995. In particular, these forward-looking statements include, among others,
statements about, opportunities for and growth of our business, our plans regarding product development and enhancements, and
our expectations regarding profitability. The words “believe,” “may,” “estimate,” “continue,”
“anticipate,” “intend,” “should,” “plan,” “could,” “target,”
“potential,” “is likely,” “expect,” and similar expressions, as they relate to us, are intended
to identify forward-looking statements. We have based these forward-looking statements largely on our current expectations and
projections about future events and financial trends that we believe may affect our financial condition, results of operations,
business strategy and financial needs. These forward-looking statements speak only as of the date of this Proxy Statement. We
assume no obligation to, and do not necessarily intend to, update these forward-looking statements.
Digital
Ally, Inc.
9705
Loiret Blvd
Lenexa,
Kansas 66219
(913)
814-7774
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
To
Be Held on Tuesday, May 21, 2019
The
2019 Annual Meeting of the Stockholders of Digital Ally, Inc., a Nevada corporation (“Digital,” the “Company,”
“we,” “ours” and “us”), will be held at the corporate facility located at 9705 Loiret Boulevard,
Lenexa, Kansas, 66219 on Tuesday, May 21, 2019 at 10:00 a.m., CDT, for the following purposes:
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1.
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To
elect four directors;
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2.
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To
approve the amendment to the 2018 Digital Ally, Inc. Stock Option and Restricted Stock Plan which increases the number of
shares reserved for issuance under such Plan by 750,000 ;
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3.
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To
approve an amendment to our Articles of Incorporation to increase the number of authorized shares of our capital stock that
we may issue by 10,000,000 and classify such shares as blank check preferred stock;
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4.
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To
approve, on an advisory, non-binding basis, the compensation of the Company’s named executive officers, as disclosed
pursuant to Item 402 of Regulation S-K, including the compensation tables and narrative discussion in the accompanying proxy
statement;
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5.
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To
ratify the appointment of RSM US LLP as our independent registered public accounting firm; and
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6.
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To
act upon such other business as may properly come before the annual meeting.
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The
foregoing items of business are more fully described in the proxy statement accompanying this notice. Only stockholders of record
at the close of business on March 27, 2019 will be entitled to vote at the annual meeting or any adjournment or postponement thereof.
You are cordially invited to attend the annual meeting. Whether or not you plan to attend the annual meeting, please sign, date
and return your proxy to us promptly. Your cooperation in signing and returning the proxy will help avoid further solicitation
expense.
Pursuant
to rules promulgated by the Securities and Exchange Commission, or the SEC, we have elected to provide access to our proxy materials
both by sending you this full set of proxy materials, including a notice of annual meeting, proxy statement, and 2018 Annual Report
to Stockholders, and by notifying you of the availability of our proxy materials on the Internet. Copies of our notice of annual
meeting, proxy statement and 2018 Annual Report to Stockholders are available at
www.digitalallyinc.com
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By
order of the Board of Directors
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Stanton
E. Ross
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Chairman
of the Board, President and Chief Executive Officer
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April
5, 2019
Lenexa,
Kansas
YOUR
VOTE IS IMPORTANT
WHETHER
YOU PLAN TO ATTEND THE ANNUAL MEETING, WE URGE YOU TO VOTE AND SUBMIT YOUR PROXY AS PROMPTLY AS POSSIBLE TO ENSURE THE PRESENCE
OF A QUORUM. TO ASSURE YOUR REPRESENTATION AT THE MEETING, PLEASE SIGN AND DATE THE ENCLOSED PROXY EXACTLY AS YOUR NAME APPEARS
ON IT AND RETURN IMMEDIATELY IN THE ENVELOPE PROVIDED, WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES, OR VOTE BY PROXY
ON THE INTERNET OR BY TELEPHONE.
DIGITAL
ALLY, INC.
PROXY
STATEMENT
FOR
THE 2019 ANNUAL MEETING OF STOCKHOLDERS
INFORMATION
CONCERNING SOLICITATION AND VOTING
General
The
enclosed proxy is solicited on behalf of the Board of Directors of Digital Ally, Inc., a Nevada corporation, (referred to in this
proxy statement as “Digital Ally,” “we,” “our,” “us,” or the “Company”)
in connection with the solicitation of proxies by our Board of Directors (the “Board”) for use at the Annual Meeting
of Stockholders to be held Tuesday, May 21, 2019 at 10:00 a.m., CDT, or at any adjournment or postponement thereof, for the purposes
set forth herein and in the accompanying notice of Annual Meeting of Stockholders. The Annual Meeting will be held at our corporate
facility, located at 9705 Loiret Boulevard, Lenexa, Kansas, 66219. The telephone number at that location is (913) 814-7774.
These
proxy solicitation materials are first being mailed on or about April 5, 2019 to all stockholders entitled to vote at the meeting.
Who
is Entitled to Vote?
Our
Board of Directors has fixed the close of business on March 27, 2019 as the record date for a determination of stockholders entitled
to notice of, and to vote at, the meeting. On the record date, 11,127,555 shares of our common stock were issued of which 63,518
are held in treasury all of which is voting stock, and is held of record by 107 stockholders.
Voting
You
are entitled to one vote for each share of common stock that you hold on the record date on each matter that may come before the
Annual Meeting.
What
is the Difference Between Holding Shares as a Record Holder and as a Beneficial Owner?
If
your shares are registered in your name with our transfer agent, Action Stock Transfer Corporation, you are the “record
holder” of those shares. If you are a record holder, we have provided these proxy materials directly to you.
If
your shares are held in a stock brokerage account, a bank or other holder of record, you are considered the “beneficial
owner” of those shares held in “street name.” If your shares are held in street name, these proxy materials
have been forwarded to you by that organization. As the beneficial owner, you have the right to instruct such organization on
how to vote your shares.
Who
May Attend the Meeting?
Record
holders and beneficial owners may attend the Annual Meeting. If your shares are held in street name, you will need to bring a
copy of a brokerage statement or other documentation reflecting your stock ownership as of the record date.
How
Do I Vote?
Record
Holder
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Vote
by Internet.
The website address for Internet voting is on your proxy card.
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2.
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Vote
by phone. Call 1 (800) 454-8683 and follow the instructions on your proxy card.
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3.
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Vote
by mail.
Mark, date, sign and mail promptly the enclosed proxy card (a postage-paid envelope is provided for mailing in
the United States).
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4.
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Vote
in person.
Attend and vote at the Annual Meeting.
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Beneficial
Owner (Holding Shares in Street Name)
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1.
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Vote
by Internet.
The website address for Internet voting is on your vote instruction form.
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2.
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Vote
by mail.
Mark, date, sign and mail promptly the enclosed vote instruction form (a postage-paid envelope is provided for
mailing in the United States).
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3.
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Vote
in person.
Obtain a valid legal proxy from the organization that holds your shares and attend and vote at the Annual Meeting.
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If
you vote by Internet or phone, please DO NOT mail your proxy card.
Is
My Vote Confidential?
Yes,
your vote is confidential. Only the following persons have access to your vote: election inspectors, individuals who help with
processing and counting your votes and persons who need access for legal reasons. If you write comments on your proxy card, your
comments will be provided to the Company, but how you vote will remain confidential.
What
Constitutes a Quorum?
We
must have a quorum to carry on the business of the Annual Meeting. Our Bylaws provide that the presence, in person, by remote
communication, if applicable, or by proxy duly authorized, of the holders of a majority of the outstanding shares of stock entitled
to vote shall constitute a quorum for the transaction of business at the Annual Meeting or any adjournment thereof. Broker non-votes
(see definition below) and abstentions are counted as present to determine the existence of a quorum. The broker non-votes are
counted because there are routine matters presented at the Annual Meeting.
The
stockholders present at a duly called or convened meeting at which a quorum is present, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. In the absence of a quorum at
the Annual Meeting or any adjournment thereof, a majority in voting interest of those present in person or by proxy and entitled
to vote, or any officer entitled to preside at, or to act as secretary of, the Annual Meeting may adjourn the Annual Meeting until
stockholders holding the amount of stock requisite for a quorum are present in person or by proxy.
What
is a Broker Non-Vote?
If
your shares are held in “street name,” you must instruct your bank, broker or other nominee as to how to vote your
shares by following the instructions that the broker or other nominee provides to you. Brokers usually offer the ability for stockholders
to submit voting instructions by mail by completing a vote instruction form, by telephone or over the Internet. If you do not
provide voting instructions to your bank, broker or other nominee, your shares will not be voted on any proposal on which your
broker or other nominee does not have discretionary authority to vote, namely, “non-routine” matters. This is called
a “broker non-vote.” On the other hand, if you do not provide voting instructions to your bank, broker or other nominee,
such party has the discretion to vote your shares on “routine” matters.
Which
Proposals are Considered “Routine” or “Non-Routine” for Brokers or Other Nominees?
The
following Proposals “non-routine” and thus a broker discretionary vote is not allowed:
Proposal
1, “Election of Directors;”
Proposal
2, “Approve the Amendment to the 2018 Digital Ally, Inc. Stock Option and Restricted Stock to increase the number of shares
reserved for issuance under such Plan by 750,000;”
Proposal
3, “Approve an amendment to our Articles of Incorporation to increase the number of authorized shares of our capital stock
that we may issue by 10,000,000 and classify such shares as blank check preferred stock;” and
Proposal
4, “Approve, on an advisory, non-binding basis, the compensation of the Company’s named executive officers, as disclosed
pursuant to Item 402 of Regulation S-K, including the compensation tables and narrative discussion in the accompanying proxy statement.”
The
following Proposals are “routine” and thus a broker discretionary vote is allowed:
Proposal
5, “Ratify the appointment of RSM US LLP as our independent registered public accounting firm.”
How
Many Votes are Needed for Each Proposal to Pass and is Broker Discretionary Voting Allowed?
For
matters at the Annual Meeting, if a quorum is present, the following votes will be required for the Proposal to pass:
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Proposal
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Vote
Required
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Broker
Discretionary Vote Allowed
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1.
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Election
of Directors
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The
votes cast for a nominee’s election must exceed the votes casts against such nominee’s election.
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No
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2.
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Amendment
to the 2018 Stock Option and Restricted Stock Plan
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The
affirmative vote of the holders of a majority of the votes cast.
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No
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3.
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Blank
Check Preferred Amendment
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The
affirmative vote of the holders of a majority of the outstanding shares.
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No
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4.
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Advisory
Vote on Executive Compensation
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The
affirmative vote of the holders of a majority of the votes cast.
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No
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5.
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Ratify
Appointment of RSM US LLP
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The
affirmative vote of the holders of a majority of the votes cast.
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Yes
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How
are Abstentions Treated?
An
abstention occurs when a stockholder attends a meeting, either in person or by proxy, but specifically indicates an abstention
from voting on one or more of the proposals. If you submit a proxy card or provide proxy instructions to your broker or other
nominee and affirmatively elect to abstain from voting, your proxy will be counted as present for the purpose of determining the
presence of a quorum for the meeting, but will not be voted at the Annual Meeting. Abstentions only have an effect on the outcome
of any matter being voted on that requires a certain level of approval based on our total voting stock outstanding. Thus, abstentions
will have an effect on Proposal 3, “The Blank Check Preferred Amendment,” but not on the other proposals.
What
Are the Voting Procedures?
In
voting by proxy on the proposals, you may vote for the proposal or against the proposal, or you may abstain from voting on the
proposal. You should specify your respective choices on the accompanying proxy card or your vote instruction form.
Is
My Proxy Revocable?
You
may revoke your proxy and reclaim your right to vote up to and including the day of the Annual Meeting by giving written notice
to the Corporate Secretary of Digital Ally by delivering a proxy card dated after the date of the proxy or by voting in person
at the Annual Meeting. All written notices of revocation and other communications with respect to revocations of proxies should
be addressed to: Digital Ally, Inc., 9705 Loiret Boulevard, Lenexa, Kansas 66219, telephone (913) 814-7774, Attention: Corporate
Secretary.
Who
is Paying for the Expenses Involved in Preparing and Mailing this Proxy Statement?
We
will pay all the expenses involved in preparing, assembling and mailing these proxy materials and all costs of soliciting proxies.
In addition to the solicitation by mail, proxies may be solicited by our officers and other employees by telephone or in person.
Such persons will receive no compensation for their services other than their regular salaries. Arrangements will also be made
with brokerage houses and other custodians, nominees and fiduciaries to forward solicitation materials to the beneficial owners
of the shares held of record by such persons, and we may reimburse such persons for reasonable out of pocket expenses incurred
by them in so doing.
What
Happens if Additional Matters are Presented at the Annual Meeting?
Other
than the items of business described in this Proxy Statement, we are not aware of any other business to be acted upon at the Annual
Meeting. If you grant a proxy, the persons named as proxy holders will have the discretion to vote your shares on any additional
matters properly presented for a vote at the Annual Meeting.
What
is “Householding” and How Does It Affect Me?
Record
holders who have the same address and last name will receive only one copy of their proxy materials, unless we are notified that
one or more of these record holders wishes to continue receiving individual copies. This procedure will reduce our printing costs
and postage fees. Stockholders who participate in householding will continue to receive separate proxy cards.
If
you are eligible for householding, but you and other record holders with whom you share an address, receive multiple copies of
these proxy materials, or if you hold Digital Ally stock in more than one account, and in either case you wish to receive only
a single copy of each of these documents for your household, please contact our transfer agent, Action Stock Transfer Corporation
(in writing: Ms. Justeene Blankenship, Action Stock Transfer Corp., 7069 S. Highland Dr., Suite 300, Salt Lake City, UT 84121;
or by telephone: (801) 274-1088; or by facsimile: (801) 274-1099.
If
you participate in householding and wish to receive a separate copy of these proxy materials, or if you do not wish to continue
to participate in householding and prefer to receive separate copies of these documents in the future, please contact Action Stock
Transfer as indicated above. Beneficial owners can request information about householding from their brokers, banks or other holders
of record.
Do
I Have Dissenters’ (Appraisal) Rights?
Appraisal
rights are not available to Digital Ally stockholders with any of the proposals described above to be brought before the Annual
Meeting.
Stockholder
List
The
stockholder list as of the record date will be available for examination by any stockholder at our corporate office, 9705 Loiret
Boulevard, Lenexa, Kansas 66219, beginning May 6, 2019, which is at least ten business days prior to the date of the Annual Meeting
and the stockholder list will be available at the Annual Meeting.
Our
Voting Recommendations
Our
Board of Directors recommends that you vote:
●
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FOR
the four nominees to the Board of Directors;
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FOR
the approval of the amendment to the 2018 Digital Ally, Inc. Stock Option and Restricted Stock Plan to increase the number
of shares reserved for issuance under such Plan by 750,000;
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FOR
an amendment to our Articles of Incorporation to increase the number of authorized shares of our capital stock that we
may issue by 10,000,000 and classify such shares as blank check preferred stock;
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FOR
approval, on an advisory (non-binding) basis, the compensation of the Company’s
named executive officers, as disclosed pursuant to Item 402 of Regulation S-K, including
the compensation tables and narrative discussion in the accompanying proxy statement;
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●
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FOR
ratification of the appointment of RSM US LLP as our independent registered public accounting firm; and
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On
such other matters that may properly come before the annual meeting in accordance with the best judgment of the individual
proxies named in the proxy.
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Voting
Results
The
preliminary voting results will be announced at the Annual Meeting. The final voting results will be calculated by our Inspector
of Elections and published in our report on Form 8-K within four business days of the meeting.
Deadline
for Receipt of Stockholder Proposals for 2020 Annual Meeting of Stockholders
As
a stockholder, you may be entitled to present proposals for action at an upcoming meeting if you comply with the requirements
of the proxy rules established by the Securities and Exchange Commission and our bylaws. Stockholders wishing to present a proposal
to be eligible for inclusion in the proxy statement and form of proxy relating for our 2020 annual meeting of stockholders must
submit such proposal to us by December 24, 2019, which is the 120
th
calendar day prior to the anniversary date
this Proxy Statement was mailed to stockholders in connection with the 2019 Annual Meeting. Any such proposals should be in compliance
with our bylaws and should be submitted to Digital Ally, Inc., 9705 Loiret Boulevard, Lenexa, Kansas 66219, Attention: Thomas
J. Heckman, Secretary.
Other
Matters
Other
than the proposals listed above, our Board of Directors does not intend to present any other matters to be voted on at the meeting.
Our Board of Directors is not currently aware of any other matters that will be presented by others for action at the meeting.
However, if other matters are properly presented at the meeting and you have signed and returned your proxy card, the proxy holders
will have discretion to vote your shares on these matters to the extent authorized under the Securities Exchange Act of 1934,
as amended.
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON MAY 21, 2019:
Copies
of our notice of Annual Meeting, proxy statement and 2018 Annual Report are available online at
www.digitalallyinc.com.
PROPOSAL
ONE
ELECTION
OF DIRECTORS
Nominees
A
Board of four directors is to be elected at the 2019 Annual Meeting of Stockholders. Unless otherwise instructed, the proxy holders
will vote the proxies received by them for the four nominees named below, all of which are presently directors of Digital.
If
any nominee is unable or declines to serve as a director at the time of the annual meeting, the proxies will be voted for any
nominee who shall be designated by the present Board of Directors to fill the vacancy. We are not aware of any nominee who will
be unable or will decline to serve as a director. The term of office for each person elected as a director will continue until
the next annual meeting of stockholders or until a successor has been elected and qualified. The names of the nominees and certain
information about them as of the date of this proxy statement are set forth below:
Name
of Nominee
|
|
Principal
Occupation
|
|
Age
|
|
Director
Since
|
Stanton
E. Ross
|
|
Chairman,
President and Chief Executive Officer
|
|
57
|
|
2005
|
Leroy
C. Richie (1)(2)(3)
|
|
Lead
Outside Director, Chairman of the Nominating and Governance Committee and Compensation Committee and attorney
|
|
77
|
|
2005
|
Daniel
F. Hutchins (1)
|
|
Certified
Public Accountant; Chairman of Audit Committee
|
|
63
|
|
2007
|
Michael
J. Caulfield (1)(2)(3)
|
|
Investment
banking-retired
|
|
63
|
|
2016
|
|
(1)
|
Member
of Audit Committee
|
|
|
|
|
(2)
|
Member
of Compensation Committee
|
|
|
|
|
(3)
|
Member
of Nominating and Governance Committee and Compensation Committee
|
Stanton
E. Ross
has served as Chairman, President and Chief Executive Officer since September 2005. From March 1992 to June 2005,
Mr. Ross was the Chairman and President of Infinity Energy Resources, Inc., a publicly held oil and gas exploration and development
company (“Infinity”), and served as an officer and director of each of Infinity’s subsidiaries. He resigned
all his positions with Infinity in June 2005, except Chairman, but was reappointed President in October 2006. From 1991 until
March 1992, he founded and served as President of Midwest Financial, a financial services corporation involved in mergers, acquisitions
and financing for corporations in the Midwest. From 1990 to 1991, Mr. Ross was employed by Duggan Securities, Inc., an investment
banking firm in Lenexa, Kansas, where he primarily worked in corporate finance. From 1989 to 1990, he was employed by Stifel,
Nicolaus & Co., a member of the New York Stock Exchange, where he was an investment executive. From 1987 to 1989, Mr. Ross
was self-employed as a business consultant. From 1985 to 1987, Mr. Ross was President and founder of Kansas Microwave, Inc., which
developed a radar detector product. From 1981 to 1985, he was employed by Birdview Satellite Communications, Inc., which manufactured
and marketed home satellite television systems, initially as a salesman and later as National Sales Manager. Mr. Ross estimates
he devoted most of his time to Digital Ally and the balance to Infinity in 2016. In late 2007, Infinity sold a substantial portion
of its operating assets and has not required a substantial amount of his time since such point. Mr. Ross holds no public company
directorships other than with the Company and Infinity and has not held any others during the previous five years. The Company
believes that Mr. Ross’s broad entrepreneurial, financial and business expertise and his experience with micro-cap public
companies and his role as President and Chief Executive Officer give him the qualifications and skills to serve as a Director.
Leroy
C. Richie
has been the Lead Outside Director of Digital Ally since September 2005. He is also the Chairman of the Compensation
Committee and Nominating and Governance Committee and a member of the Audit Committee. Since June 1, 1999 Mr. Richie has been
a director of Infinity Energy Resources, Inc., a publicly held oil and gas exploration and development company. Additionally,
until 2017, Mr. Richie served as a member of the boards of directors of Columbia Mutual Funds, (or mutual fund companies acquired
by or merged with Columbia Mutual Funds), a family of investment companies managed by Ameriprise Financial, Inc. From 2004 to
2015, he was of counsel to the Detroit law firm of Lewis & Munday, P.C. He holds no other public directorships and has not
held any others during the previous five years, except for OGE Energy Corp. (2007-2014). Mr. Richie serves as the Vice-Chairman
of the Board of Trustees and Chairman of the Compensation Committee for the Henry Ford Health System, in Detroit and serves. Mr.
Richie was formerly Vice President of Chrysler Corporation and General Counsel for automotive legal affairs, where he directed
all legal affairs for its automotive operations from 1986 until his retirement in 1997. Before joining Chrysler, he was an associate
with the New York law firm of White & Case (1973-1978), and served as director of the New York office of the Federal Trade
Commission (1978-1983). Mr. Richie received a B.A. from City College of New York, where he was valedictorian, and a J.D. from
the New York University School of Law, where he was awarded an Arthur Garfield Hays Civil Liberties Fellowship. The Company believes
that Mr. Richie’s extensive experience as a lawyer and as an officer or director of public companies gives him the qualifications
and skills to serve as a Director.
Daniel
F. Hutchins
was elected a Director in December 2007. He serves as Chairman of the Audit Committee and is the Board’s
financial expert. Mr. Hutchins, a Certified Public Accountant, is a Principal with the accounting firm of Hutchins & Haake,
LLC and currently serves as a director and the Chief Financial Officer of Infinity Energy Resources, Inc., a publicly held oil
and gas exploration and development company, of which Stanton E. Ross is the Chairman and President. Mr. Hutchins has served as
an instructor for the Becker CPA exam with the Keller Graduate School of Management and has over 17 years of teaching experience
preparing CPA candidates for the CPA exam. He has 39 years of public accounting experience, including five years with Deloitte
& Touche, LLP. He has served on the boards of various non-profit groups and is a member of the American Institute of Certified
Public Accountants. Mr. Hutchins earned his Bachelor of Business Administration degree in Accounting at Washburn University in
Topeka, Kansas. Mr. Hutchins holds no other public company directorships and has not held any others during the previous five
years. The Company believes that Mr. Hutchins’ significant experience in finance and accounting gives him the qualifications
and skills to serve as a Director.
Michael
J. Caulfield
was elected a Director in May 2016. He is a member of the Audit Committee, Compensation Committee and Nominating
and Governance Committee. He served as Vice President – Strategic Development of the Company from June 1 2009 to January
11, 2012. Mr. Caulfield was most recently (2012-2016) a Vice-Chairman at Teneo Holdings, LLC, a global advisory firm where he
was responsible for the firm’s investment banking relationships with a broad range of industrial companies. From 2006 to
2009, Mr. Caulfield served as a Managing Director at Banc of America Securities (“BAS”), where he was responsible
for the merger, acquisition, divestiture and restructuring advisory services for a number of large public and private companies.
He was also in charge of BAS’s global investment banking activities involving the Safety, Security, Engineering and Construction
Industries. Prior to joining BAS, Mr. Caulfield spent six years (2000-2006) as a Managing Director with Morgan Stanley in New
York City, leading that global investment banking firm’s efforts in the Aerospace and Defense Industries. He was also responsible
for the investment banking relationships with a number of Morgan Stanley’s largest clients. From 1989 to 2000, he worked
at General Electric Capital Corp., where he served as a Managing Director and head of the Corporate Finance Group. In this capacity,
he advised GE Capital and the industrial divisions of General Electric on such issues as capital structuring, mergers and acquisitions,
and private equity transactions. Mr. Caulfield received an MBA from the Wharton School of the University of Pennsylvania and a
B.S. Degree from the University of Minnesota.
Our
Directors are elected annually and hold office until the next annual meeting of our stockholders or until their successors are
elected and qualified. Officers are elected annually and serve at the discretion of the Board of Directors. There is no family
relationship between any of our directors, director nominees and executive officers. Board vacancies are filled by a majority
vote of the Board.
Vote
Required and Board Recommendation
If
a quorum is present and voting, the four nominees receiving the greatest number of votes will be elected to the Board of Directors.
Votes withheld from any nominee will be counted for purposes of determining the presence or absence of a quorum for transaction
of business at the meeting, but will have no other legal effect upon the election of directors under Nevada law.
OUR
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR STOCKHOLDERS
VOTE FOR EACH OF THE FOUR NOMINEES NAMED ABOVE.
Board
of Directors and Committee Meetings
Our
Board of Directors held six meetings and acted a number of times by unanimous consent resolutions during the fiscal year ended
December 31, 2018. Each of our directors attended at least 75% of the meetings of the Board of Directors and the committees on
which he served in the fiscal year ended December 31, 2018. Our directors are expected, absent exceptional circumstances, to attend
all Board meetings and meetings of committees on which they serve, and are also expected to attend our annual meeting of stockholders.
All directors then in office attended the 2018 Annual Meeting of stockholders.
Committees
of the Board of Directors
Our
Board of Directors currently has three committees: an Audit Committee, a Compensation Committee and a Nominating and Governance
Committee. Each committee has a written charter approved by the Board of Directors outlining the principal responsibilities of
the committee. These charters are also available on the Investor Relations page of our website. All our directors, other than
our Chairman and Chief Executive Officer, have met in executive sessions without management present on a regular basis in 2018
and year-to-date 2019.
Audit
Committee
Our
Audit Committee appoints the Company’s independent auditors, reviews audit reports and plans, accounting policies, financial
statements, internal controls, audit fees, and certain other expenses and oversees our accounting and financial reporting process.
Specific responsibilities include selecting, hiring and terminating our independent auditors; evaluating the qualifications, independence
and performance of our independent auditors; approving the audit and non-audit services to be performed by our auditors; reviewing
the design, implementation, adequacy and effectiveness of our internal controls and critical accounting policies; overseeing and
monitoring the integrity of our financial statements and our compliance with legal and regulatory requirements as they relate
to financial statements or accounting matters; reviewing any earnings announcements and other public announcements regarding our
results of operations in conjunction with management and our public auditors; conferring with management and the independent auditors
regarding the effectiveness of internal controls, financial reporting processes and disclosure controls; consulting with management
and the independent auditors regarding Company policies governing financial risk management; reviewing and discussing reports
from the independent auditors on critical accounting policies used by the Company; establishing procedures, as required under
applicable law, for the receipt, retention and treatment of complaints received by the Company regarding accounting, internal
accounting controls or auditing matters and the confidential and anonymous submission by employees of concerns regarding questionable
accounting or auditing matters; reviewing and approving related-person transactions in accordance with the Company’s policies
and procedures with respect to related-person transactions and applicable rules; reviewing the financial statements to be included
in our annual report on Form 10-K; discussing with management and the independent auditors the results of the annual audit and
the results of quarterly reviews and any significant changes in our accounting principles; and preparing the report that the Securities
and Exchange Commission requires in our annual proxy statement. The report of the Audit Committee for the year-ended December
31, 2018 is included in this proxy statement.
The
Audit Committee is comprised of three Directors, each of whom is independent, as defined by the rules and regulations of the Securities
and Exchange Commission. The Audit Committee held five meetings during the year-ended December 31, 2018. On September 22, 2005,
the Company created the Audit Committee and adopted a written charter for it. The members of our Audit Committee are Daniel F.
Hutchins, Leroy C. Richie and Michael J. Caulfield. The Board of Directors determined that Mr. Hutchins qualifies as an “audit
committee financial expert,” as defined under the rules and regulations of the Securities and Exchange Commission, and is
independent as noted above.
Under
the Sarbanes-Oxley Act of 2002, all audit and non-audit services performed by the Company’s independent registered public
accounting firm must be approved in advance by the Audit Committee to assure that such services do not impair the auditor’s
independence from the Company. Accordingly, the Audit Committee has adopted an Audit and Non-Audit Services Pre-Approval Policy
(the “Policy”) that sets forth the procedures and the conditions pursuant to which services to be performed by the
independent auditors are to be pre-approved. Pursuant to the Policy, certain services described in detail in the Policy may be
pre-approved on an annual basis together with pre-approved maximum fee levels for such services. The services eligible for annual
pre-approval consist of services that would be included under the categories of Audit Fees, Audit-Related Fees and Tax Fees in
the table, as well as services for limited review of actuarial reports and calculations. If not pre-approved on an annual basis,
proposed services must otherwise be separately approved prior to being performed by the independent registered public accounting
firm. In addition, any services that receive annual pre-approval but exceed the pre-approved maximum fee level also will require
separate approval by the Audit Committee prior to being performed. The Audit Committee may delegate authority to pre-approve audit
and non-audit services to any member of the Audit Committee, but may not delegate such authority to management.
Compensation
Committee
Our
Compensation Committee assists our Board of Directors in determining the development plans and compensation of our officers, directors
and employees. Specific responsibilities include approving the compensation and benefits of our executive officers; reviewing
the performance objectives and actual performance of our officers; administering our stock option and other equity compensation
plans; and reviewing and discussing with management the compensation discussion and analysis that the Securities and Exchange
Commission requires in our future Form 10-Ks and proxy statements.
Our
Compensation Committee is comprised of two Directors, whom the Board considers to be independent under the rules of the Securities
and Exchange Commission. The members of our Compensation Committee are Leroy C. Richie, Chairman, and Michael J. Caulfield. The
Compensation Committee held two meetings and acted several times by unanimous written consent resolutions during the year-ended
December 31, 2018. Mr. Ross, our Chief Executive Officer, does not participate in the determination of his own compensation or
the compensation of directors. However, he makes recommendations to the Compensation Committee regarding the amount and form of
the compensation of the other executive officers and key employees, and he often participates in the Compensation Committee’s
deliberations about such persons’ compensation. Thomas J. Heckman, our Chief Financial Officer, also assists the Compensation
Committee in its deliberations regarding executive officer, director and employee compensation. No other executive officers participate
in the determination of the amount or the form of the compensation of executive officers or directors. The Compensation Committee
does not utilize the services of an independent compensation consultant to assist in its oversight of executive and director compensation.
On September 22, 2007, the Board of Directors adopted a written charter for the Compensation Committee
Nominating
and Governance Committee
Our
Nominating and Governance Committee assists our Board of Directors by identifying and recommending individuals qualified to become
members of our Board of Directors, reviewing correspondence from our stockholders, and establishing, evaluating and overseeing
our corporate governance guidelines. Specific responsibilities include the following: evaluating the composition, size and governance
of our Board of Directors and its committees and making recommendations regarding future planning and appointing directors to
our committees; establishing a policy for considering stockholder nominees for election to our Board of Directors; and evaluating
and recommending candidates for election to our Board of Directors.
Our
Nominating and Governance Committee strives for a Board composed of individuals who bring a variety of complementary skills, expertise
or background and who, as a group, will possess the appropriate skills and experience to oversee our business. The diversity of
the members of the Board relates to the selection of its nominees. While the Committee considers diversity and variety of experiences
and viewpoints to be important factors, it does not believe that a director nominee should be chosen or excluded solely or largely
because of race, color, gender, national origin or sexual orientation or identity. In selecting a director nominee for recommendation
to our Board, our Nominating and Governance Committee focuses on skills, expertise or background that would complement the existing
members on the Board. Accordingly, although diversity may be a consideration in the Committee’s process, the Committee and
the Board of Directors do not have a formal policy regarding the consideration of diversity in identifying director nominees.
When
the Nominating and Governance Committee has either identified a prospective nominee or determined that an additional or replacement
director is required, the Nominating and Governance Committee may take such measures as it considers appropriate in connection
with its evaluation of a director candidate, including candidate interviews, inquiry of the person or persons making the recommendation
or nomination, engagement of an outside search firm to gather additional information, or reliance on the knowledge of the members
of the Board of Directors or management. In its evaluation of director candidates, including the members of the Board eligible
for re-election, the Nominating and Governance Committee considers a number of factors, including: the current size and composition
of the Board of Directors, the needs of the Board of Directors and the respective committees of the Board, and such factors as
judgment, independence, character and integrity, age, area of expertise, diversity of experience, length of service and potential
conflicts of interest.
The
Nominating and Governance Committee of the Board selects director nominees and recommends them to the full Board of Directors.
In relation to such nomination process, the Committee:
●
|
determines
the criteria for the selection of prospective directors and committee members;
|
|
|
●
|
reviews
the composition and size of the Board and its committees to ensure proper expertise and diversity among its members;
|
|
|
●
|
evaluates
the performance and contributions of directors eligible for re-election;
|
|
|
●
|
determines
the desired qualifications for individual directors and desired skills and characteristics for the Board;
|
|
|
●
|
identifies
persons who can provide needed skills and characteristics;
|
|
|
●
|
screens
possible candidates for Board membership;
|
|
|
●
|
reviews
any potential conflicts of interests between such candidates and the Company’s interests; and
|
|
|
●
|
shares
information concerning the candidates with the Board, and solicit input from other directors.
|
The
Nominating and Governance Committee has specified the following minimum qualifications that it believes must be met by a nominee
for a position on the Board: the highest personal and professional ethics and integrity; proven achievement and competence in
the nominee’s field and the ability to exercise sound business judgment; skills that are complementary to those of the existing
Board; the ability to assist and support management and make significant contributions to our success; the ability to work well
with the other directors; the extent of the person’s familiarity with the issues affecting our business; an understanding
of the fiduciary responsibilities that are required of a member of the Board of Directors; and the commitment of time and energy
necessary to diligently carry out those responsibilities. A candidate for director must agree to abide by our Code of Ethics and
Conduct.
After
completing its evaluation, the Nominating and Governance Committee makes a recommendation to the full Board of Directors as to
the persons who should be nominated to the Board, and the Board of Directors determines the nominees after considering the recommendation
and report of the Committee.
Our
Nominating and Governance Committee is comprised of three Directors, whom the Board considers to be independent under the rules
of the Securities and Exchange Commission. The Nominating and Governance Committee held one meeting during the year ended December
31, 2018. The members of our Nominating and Governance Committee are Leroy C. Richie, who serves as Chairman, and Michael J. Caulfield.
The Committee was created by our Board of Directors on December 27, 2007, when the Board of Directors adopted a written charter,
which was amended in February 2010.
Compensation
Committee Interlocks and Insider Participation
The
Compensation Committee is made up of two independent, non-employee directors, Messrs. Richie and Caulfield. No interlocking relationship
exists between the members of our Compensation Committee and the board of directors or compensation committee of any other company.
Board
of Directors’ Role in the Oversight of Risk Management
We
face a variety of risks, including credit, liquidity, and operational risks. In fulfilling its risk oversight role, our Board
of Directors focuses on the adequacy of our risk management process and overall risk management system. Our Board of Directors
believes that an effective risk management system will (i) adequately identify the material risks that we face in a timely manner;
(ii) implement appropriate risk management strategies that are responsive to our risk profile and specific material risk exposures;
(iii) integrate consideration of risk and risk management into our business decision-making; and (iv) include policies and procedures
that adequately transmit necessary information regarding material risks to senior executives and, as appropriate, to the Board
or relevant committee.
The
Board of Directors has designated the Audit Committee to take the lead in overseeing risk management at the Board of Directors
level. Accordingly, the Audit Committee schedules time for periodic review of risk management, in addition to its other duties.
In this role, the Audit Committee receives reports from management, independent registered public accounting firm, outside legal
counsel, and other advisors, and strives to generate serious and thoughtful attention to our risk management process and system,
the nature of the material risks we face, and the adequacy of our policies and procedures designed to respond to and mitigate
these risks.
Although
the Board of Directors has assigned the primary risk oversight to the Audit Committee, it also periodically receives information
about our risk management system and the most significant risks that we face. This is principally accomplished through Audit Committee
reports to the Board of Directors and summary versions of the briefings provided by management and advisors to the Audit Committee.
In
addition to the formal compliance program, our Board of Directors and the Audit Committee encourage management to promote a corporate
culture that understands risk management and incorporates it into our overall corporate strategy and day-to-day business operations.
Our risk management structure also includes an ongoing effort to assess and analyze the most likely areas of future risk for us.
As a result, the Board of Directors and the Audit Committee periodically ask our executives to discuss the most likely sources
of material future risks and how we are addressing any significant potential vulnerability.
Board
Leadership Structure
Our
Board of Directors does not have a policy on whether the roles of Chief Executive Officer and Chairman of the Board of Directors
should be separate and, if they are to be separate, whether the Chairman of the Board should be selected from the non-employee
directors or be an employee. Our Board of Directors believes that it should be free to make a choice from time to time in any
manner that is in the best interest of us and our stockholders. The Board of Directors believes that Mr. Ross’s service
as both Chief Executive Officer and Chairman of the Board is in the best interest of us and our stockholders. Mr. Ross possesses
detailed and in-depth knowledge of the issues, opportunities and challenges we face and is thus best positioned to develop agendas,
with the input of Mr. Richie, the lead director, to ensure that the Board’s time and attention are focused on the most critical
matters. His combined role enables decisive leadership, ensures clear accountability, and enhances our ability to communicate
our message and strategy clearly and consistently to our stockholders, employees, customers and suppliers, particularly during
times of turbulent economic and industry conditions.
Our
Board of Directors also believes that a lead director is part of an effective Board leadership structure. To this end, the Board
has appointed Mr. Richie as the lead director. The independent directors meet regularly in executive sessions at which only they
are present, and the lead director chairs those sessions. As the lead director, Mr. Richie calls meetings of the independent directors
as needed; sets the agenda for meetings of the independent directors; presides at meetings of the independent directors; is the
principal liaison on Board issues between the independent directors and the Chairman and between the independent directors and
management; provides feedback to the Chairman and management on the quality, quantity and timeliness of information sent to the
Board; is a member of the Compensation Committee that evaluates the CEO’s performance; and oversees the directors’
evaluation of the Board’s overall performance. The Nominating and Governance Committee and the Board believe that its leadership
structure, which includes the appointment of an independent lead director, is appropriate because it, among other things, provides
for an independent director who gives board member leadership and each of the directors, other than Mr. Ross, is independent.
Our Board of Directors believes that the independent directors provide effective oversight of management.
Stockholder
Communications with the Board of Directors
Stockholders
may communicate with the Board of Directors by writing to us as follows: Digital Ally, Inc., attention: Corporate Secretary, 9705
Loiret Boulevard, Lenexa, Kansas 66219. Stockholders who would like their submission directed to a member of the Board of Directors
may so specify and the communication will be forwarded as appropriate.
Policy
for Director Recommendations and Nominations
Our
Nominating and Governance Committee will consider candidates for Board membership suggested by Board members, management and our
stockholders. The policy of our Nominating and Governance Committee is to consider recommendations for candidates to the Board
of Directors from any stockholder of record in accordance with our bylaws. A director candidate recommended by our stockholders
will be considered in the same manner as a nominee recommended by a Board member, management or other sources. In addition, a
stockholder may nominate a person directly for election to the Board of Directors at an annual meeting of stockholders, provided
the stockholder meets the requirements set forth in our bylaws. We do not pay a fee to any third party to identify or evaluate
or assist in identifying or evaluation potential nominees.
Stockholder
Recommendations for Director Nominations
.
Stockholder recommendations for director nominations may be submitted
to the Company at the following address: Digital Ally, Inc., Attention: Corporate Secretary, 9705 Loiret Boulevard, Lenexa, Kansas
66219. Such recommendations will be forwarded to the Nominating Committee for consideration, provided that they are accompanied
by sufficient information to permit the Board to evaluate the qualifications and experience of the nominees, and they are in time
for the Nominating and Governance Committee to do an adequate evaluation of the candidate before the annual meeting of stockholders.
The submission must be accompanied by a written consent of the individual to stand for election if nominated by the Board of Directors
and to serve if elected and to cooperate with a background check.
Stockholder
Nominations of Directors.
Our bylaws provide that in order for a stockholder to nominate a director at an annual meeting,
the stockholder must give timely written notice to our Secretary and such notice must be received at our principal executive offices
not less than 120 days before the date of our release of the proxy statement to stockholders in connection with our previous year’s
annual meeting of stockholders. Such stockholder’s notice shall include, with respect to each person whom the stockholder
proposes to nominate for election as a director, all information relating to such nominee, including such person’s written
consent to being named in the proxy statement as a nominee, serving as a director, that is required under the Securities Exchange
Act of 1934, as amended, and cooperating with a background investigation. In addition, the stockholder must include in such notice
his name and address, as they appear on our records, of the stockholder proposing the nomination of such person, and the name
and address of the beneficial owner, if any, on whose behalf the nomination is made, the class and number of shares of our capital
stock that are owned beneficially and of record by such stockholder of record and by the beneficial owner, if any, on whose behalf
the nomination is made, and any material interest or relationship that such stockholder of record and/or the beneficial owner,
if any, on whose behalf the nomination is made may respectively have in such business or with such nominee. At the request of
the Board of Directors, any person nominated for election as a director shall furnish to our Secretary the information required
to be set forth in a stockholder’s notice of nomination that pertains to the nominee.
To
be timely in the case of a special meeting or if the date of the annual meeting is changed by more than thirty (30) days from
such anniversary date, a stockholder’s notice must be received at our principal executive offices no later than the close
of business on the tenth (10
th
) day following the earlier of the day on which notice of the meeting date was mailed
or public disclosure of the meeting date was made.
Code
of Ethics and Conduct
Our
Board of Directors has adopted a
Code of Ethics and Conduct
that is applicable to all our employees, officers and directors.
Our
Code of Ethics and Conduct
is intended to ensure that our employees act in accordance with the highest ethical standards.
The
Code of Ethics and Conduct
is available on the Investor Relations page of our website at
http://www.digitalally.com.
and the
Code of Ethics and Conduct
was filed as an exhibit to our annual report on Form 10-K filed March 4, 2008.
Director
Compensation
Our
non-employee directors received the stock option grants noted in the section below entitled “Director Compensation”
for their service on the Board of Directors in 2018, including on the Audit, Nominating and Governance and Compensation Committees.
In
July 2018, we granted to Messrs. Richie, Caulfield and Hutchins each options exercisable to acquire 50,000 shares of common stock
at an exercise price of $2.20 per share for their service on the Board until the next annual meeting of stockholders with vesting
to occur on a periodic basis through May 5, 2019 provided each person has remained a director at such dates.
In
August 2017, we granted to Messrs. Richie, Caulfield and Hutchins each options exercisable to acquire 30,000 shares of common
stock at an exercise price of $3.00 per share for their service on the Board until the next annual meeting of stockholders with
vesting to occur on August 14, 2018 provided each person has remained a director at such dates.
Director
compensation for the year ended December 31, 2018 was as follows:
Director
Compensation
Name
|
|
Fees
earned or paid in
cash ($)
|
|
|
Stock
awards
($) (2)
|
|
|
Option
awards
($) (2)
|
|
|
Total
($)
|
|
Stanton
E. Ross, Chairman of the Board (1)
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Leroy
C. Richie
|
|
$
|
60,000
|
|
|
$
|
—
|
|
|
$
|
88,870
|
|
|
$
|
148,870
|
|
Daniel
F. Hutchins
|
|
$
|
55,000
|
|
|
$
|
—
|
|
|
$
|
88,870
|
|
|
$
|
143,870
|
|
Michael
J. Caulfield
|
|
$
|
70,000
|
|
|
$
|
—
|
|
|
$
|
88,870
|
|
|
$
|
138,870
|
|
(1)
|
Mr.
Ross’s compensation and option awards are provided in the Executive Compensation table because he did not receive compensation
or stock options for his services as a director.
|
|
|
(2)
|
Represents
aggregate grant date fair value pursuant to ASC Topic 718 for stock options and restricted stock granted. Please refer to
Note 12 to the consolidated financial statements for further description of the awards and the underlying assumptions utilized
to determine the amount of grant date fair value related to such grants.
|
Stock
Option and Restricted Stock Grants to Directors
Name
of Individual
|
|
Number
of Restricted Shares of Common Stock Granted
|
|
|
Number
of
Options Granted
|
|
|
Average
per Share
Exercise
Price
|
|
Stanton
E. Ross (1)
|
|
|
—
|
|
|
|
—
|
|
|
$
|
—
|
|
Leroy
C. Richie (2)
|
|
|
—
|
|
|
|
50,000
|
|
|
$
|
2.20
|
|
Daniel
F. Hutchins (2)
|
|
|
—
|
|
|
|
50,000
|
|
|
$
|
2.20
|
|
Michael
J. Caulfield (2)
|
|
|
—
|
|
|
|
50,000
|
|
|
$
|
2.20
|
|
(1)
|
Mr.
Ross’s compensation and option awards are noted in the Executive Compensation table because he did not receive compensation
or stock options for his services as a director.
|
|
|
(2)
|
The
stock option grants were issued on July 5, 2018 with vesting to occur ratably through May 5, 2019.
|
PROPOSAL
TWO
TO
AMEND THE 2018 DIGITAL ALLY, INC. STOCK OPTION AND RESTRICTED STOCK PLAN TO INCREASE THE NUMBER OF SHARES RESERVED FOR ISSUANCE
UNDER THE PLAN BY 750,000.
We
are seeking stockholder approval to amend the 2018 Stock Option and Restricted Stock Plan (the “2018 Plan”) to increase
the number of shares reserved for issuance under the 2018 Plan from 1,000,000 to 1,750,000. At March 27, 2019, there were 944,500
shares subject to restricted stock awards or stock options issued under the 2018 Plan since its adoption in 2018. We made such
grants generally in lieu of cash bonuses and compensation, which helped to conserve cash in the 2018 and to-date in 2019 and plan
to do the same during the remainder of 2019 and beyond. As a result of our past grants, we have 55,500 shares remaining available
for awards as of March 27, 2019 under the 2018 Plan.
The
purpose of the 2018 Plan is to offer all our employees, directors, and key consultants an opportunity to acquire a proprietary
interest in our success, and remain in service to the Company and to attract new employees, directors and consultants. The 2018
Plan provides both for the direct award of shares, for the grant of options to purchase shares, as well as for the grant of Stock
Appreciation Rights (SARs). Options granted under the 2018 Plan may include non-statutory options as well as incentive stock options
intended to qualify under Section 422 of the Internal Revenue Code.
The
Company has a policy of issuing new shares upon the exercise of stock options, awarding significant amounts of stock options or
restricted stock grants to new employees and regularly awarding such to employees on an annual basis. Stock options are generally
granted at the market price on the date of grant. Stock options and restricted stock grants have generally vested over one or
more years for officers and employees and one year for directors. Stock options generally can be exercised within seven to ten
years.
The
aggregate number of shares of common stock that may be issued under the 2018 Plan was originally set at 1,000,000 shares. In order
to continue, as well as enhance, the effectiveness of the Plan, on March 15, 2019 the Board of Directors approved an amendment
to increase the number of shares of Common Stock reserved for issuance under the Plan by 750,000, for a total of 1,750,000 shares,
which amendment is subject to approval at the Annual Meeting of Shareholders.
The
Board believes the approval of the amendment is necessary in order to make shares available
for future awards, in part, due to the following.
(i)
We anticipate that in order to meet the objectives and requirements of the 2018 Plan, we will likely utilize all the shares presently
available for awards under the 2018 Plan in 2019; and
(ii)
There are relatively few shares available for grant under our existing stock option plans. Due to a number of factors, including
the decline in the price of our common stock, the exercise prices of a large number of the options granted in prior years remain
well above the current market price. Further, previous long-term restricted stock awards have, in large part, become fully vested.
We face increasing competition from industry to retain our talented and experienced staff and add staff as appropriate. We believe
that new equity awards that vest over longer periods are effective for retention and incentive compensation.
In
view of the limited number of shares remaining for grants under the 2018 Plan and earlier stock option plans, the continued need
to attract and maintain individuals of the highest caliber to positions on the Board, management and employment, the Board of
Directors has concluded that the maximum number of shares of common stock that may be issued under the 2018 Plan should be increased
by 750,000.
The
Board of Directors approved the increase in shares reserved under and the required amendment to the 2018 Plan on March 15, 2019,
subject to stockholder approval at the Annual Meeting. If our stockholders approve the amendment to the 2018 Plan, 750,000 additional
shares will be available for future grants.
The
Board of Directors believes that it is in the best interests of us and our stockholders to approve the increase in shares reserved
under the 2018 Plan. The Board believes that equity awards assist in retaining, motivating and rewarding employees, executives
and consultants by giving them an opportunity to obtain long-term equity participation in us. In addition, equity awards are an
important contributor to aligning the incentives of our employees with the interests of our stockholders.
The
Board also believes equity awards are essential to attracting new employees and retaining current employees. Further, the granting
of options to new and existing employees frequently permits us to pay lower salaries than otherwise might be the case. The Board
of Directors believes that to remain competitive with other technology companies in our long-term incentive plans, we must continue
to provide employees with the opportunity to obtain equity in us and that an inability to offer equity incentives to new and current
employees would put us at a competitive disadvantage in attracting and retaining qualified personnel. Our named executive officers
and directors have an interest in this proposal because they are expected to receive awards under the 2018 Plan if the amendment
is approved at the Annual Meeting.
The
full text of the proposed amendment to increase the number of shares under the 2018 Plan is attached to this proxy statement as
Appendix B
.
Vote
Required and Recommendation
The
affirmative vote of a majority of the votes cast will be required to approve the amendment to the 2018 Plan.
OUR
BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE TO AMEND THE 2018 STOCK OPTION AND RESTRICTED STOCK PLAN TO INCREASE THE
NUMBER OF SHARES RESERVED FOR ISSUANCE UNDER THE PLAN BY 750,000 SHARES.
Summary
of the 2018 Stock Option and Restricted Stock Plan
Our
Board of Directors adopted the 2018 Plan on April 12, 2018 and such Plan was approved by the shareholders at the 2018 Annual Meeting
of Shareholders held on June 27, 2018. At the 2019 Annual Meeting, we are asking stockholders to approve an amendment to the 2018
Plan to increase the number of shares issuable under the 2018 Plan by 750,000. Prior to this amendment, the 2018 Plan authorized
us to issue 1,000,000 shares of common stock upon exercise of options and grant of restricted stock awards, which will be increased
to a total of 1,750,000 shares reserved if the shareholders approve the amendment. Stock options and restricted stock representing
a total of 944,500 shares have been granted under the 2018 Plan to date. The 2018 Plan authorizes us to grant (i) to the key employees
incentive stock options to purchase shares of common stock and non-qualified stock options to purchase shares of common stock
and restricted stock awards and (ii) to non-employee directors and consultants non-qualified stock options and restricted stock.
As of March 27, 2019, approximately 90 employees, two executive officers, and three non-employee directors were eligible to participate
in the 2018 Plan.
The
following paragraphs provide a summary of the principal features of the 2018 Plan and its operation. The following summary is
qualified in its entirety by reference to the 2018 Plan as previously filed as an exhibit with the Securities and Exchange Commission
and the proposed Amendment as set forth in
Appendix A
.
Objectives
.
The objective of the 2018 Plan is to provide incentives to our key employees, directors and consultants to achieve financial
results aimed at increasing shareholder value and attracting talented individuals to us. Persons eligible to be granted stock
options or restricted stock under the 2018 Plan will be those persons whose performance, in the judgment of the Compensation Committee
of our Board of Directors, can have significant impact on our success.
Oversight
.
Our Board will administer the 2018 Plan by making determinations regarding the persons to whom options or restricted stock should
be granted and the amount, terms, conditions and restrictions of the awards. The Board also has the authority to interpret the
provisions of the 2018 Plan and to establish and amend rules for its administration subject to the 2018 Plan’s limitations.
Number
of Shares of Common Stock Available Under the 2018 Plan
.
If our stockholders approve the amendment to the 2018
Plan, a total of 1,750,000 shares of our common stock will be reserved for issuance under the 2018 Plan.
Types
of Grants
.
The 2018 Plan allows for the grant of incentive stock options, non-qualified stock options and restricted
stock awards. The 2018 Plan does not specify what portion of the awards may be in the form of incentive stock options, non-statutory
options or restricted stock. Incentive stock options awarded to our employees are qualified stock options under the Internal Revenue
Code.
Statutory
Conditions on Stock Option—Exercise Price
.
Incentive stock options granted under the 2018 Plan must have
an exercise price at least equal to 100% of the fair market value of the common stock as of the date of grant. Incentive stock
options granted to any person who owns, immediately after the grant, stock possessing more than 10% of the combined voting power
of all classes of our stock, or of any parent or subsidiary corporation, must have an exercise price at least equal to 110% of
the fair market value of the common stock on the date of grant. Non-statutory stock options may have an exercise price at least
equal to 100% of the fair market value of the common stock as of the date of the grant.
-
Dollar limit
.
The aggregate fair market value, determined as of the time an incentive stock option is granted,
of the common stock with respect to which incentive stock options are exercisable by an employee for the first time during any
calendar year cannot exceed $100,000. However, there is no aggregate dollar limitation on the amount of non-statutory stock options
that may be exercisable for the first time during any calendar year.
-
Expiration date
. Any option granted under the 2018 Plan will expire at the time fixed by our Board of Directors, which
cannot be more than ten years after the date it is granted or, in the case of any person who owns more than 10% of the combined
voting power of all classes of our stock or of any subsidiary corporation, not more than five years after the date of grant.
-
Exercisability
.
Our Board may also specify when all or part of an option becomes exercisable, but in the absence
of such specification, the option will ordinarily be exercisable in whole or in part at any time during its term. However, the
board of directors may accelerate the exercisability of any option at its discretion.
-
Assignability
.
Options granted under the 2018 Plan are not assignable. Incentive stock options may be exercised
only while we employ the optionee or within twelve months after termination by reason of death or disabilities or within three
months after termination for any other reason.
Payment
upon Exercise of Options
.
Payment of the exercise price for any option may be in cash, or with our consent, by
withheld shares which, upon exercise, have a fair market value at the time the option is exercised equal to the option price (plus
applicable withholding tax) or in the form of shares of common stock, subject to restrictions.
Restricted
Stock
.
Our Board is authorized to grant restricted stock awards. A restricted stock grant is a grant of shares
of our common stock, which is subject to restrictions on transferability, risk of forfeiture and other restrictions and which
may be forfeited in the event of certain terminations of employment or service prior to the end of a restricted period specified
by the Board of Directors. A participant granted restricted stock generally has all the rights of a stockholder, unless otherwise
determined by the Compensation Committee.
Merger
or Sale of Assets
. If we merge with or into another corporation, or sell all or substantially all our assets, any unvested
Awards will vest immediately prior to closing of the event resulting in the change of control, and the Board shall have the power
and discretion to provide for each award holder’s election alternatives regarding the terms and conditions for the exercise
of such awards. The alternative may provide that each outstanding stock option and restricted stock award will be assumed or substituted
for by the successor corporation (or a parent or subsidiary or such successor corporation). If there is no assumption or substitution
of outstanding awards, the administrator will provide notice to the recipient of their alternatives regarding their right to exercise
the stock option as to all the shares subject to the stock option.
Amendment
and Termination of the 2018 Plan
.
The administrator has the authority to amend, alter, suspend, or terminate the
2018 Plan, except that stockholder approval will be required for any amendment to the 2018 Plan to the extent required by any
applicable law, regulation, or Nasdaq or stock exchange rule. Any amendment, alteration, suspension, or termination will not,
without the consent of the participant, materially adversely affect any rights or obligations under any stock option or restricted
stock award previously granted. The 2018 Plan has a term of ten (10) years beginning June 27, 2018, unless terminated earlier
by the administrator.
Outstanding
Stock Options Held by Directors and Officers.
The
following table presents information concerning the outstanding equity awards for the Directors and Officers as of December 31,
2018:
Outstanding
Equity Awards at Fiscal Year-End
Name
|
|
Number
of securities underlying unexercised options (#) exercisable
|
|
|
Number
of securities underlying unexercised
options (#) unexercisable
|
|
|
Equity
incentive plan awards:
Number of securities underlying unexercised unearned
Options (#)
|
|
|
Option
exercise price
($)
|
|
|
Option
expiration date
|
Stanton
E. Ross Chairman, CEO and President
|
|
|
15,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
4.80
|
|
|
1/12/2022
|
|
|
|
18,750
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
13.20
|
|
|
1/10/2021
|
|
|
|
3,750
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
14.24
|
|
|
5/5/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leroy
C. Richie Lead Outside Director
|
|
|
50,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
2.20
|
|
|
7/5/2028
|
|
|
|
30,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
3.00
|
|
|
8/14/2027
|
|
|
|
10,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
3.92
|
|
|
5/11/2026
|
|
|
|
1,250
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
13.20
|
|
|
1/10/2021
|
|
|
|
625
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
14.24
|
|
|
5/5/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel
F. Hutchins Director
|
|
|
50,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
2.20
|
|
|
7/5/2028
|
|
|
|
30,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
3.00
|
|
|
8/14/2027
|
|
|
|
10,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
3.92
|
|
|
5/11/2026
|
|
|
|
8,750
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
3.52
|
|
|
5/25/2022
|
|
|
|
1,250
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
9.52
|
|
|
6/3/2021
|
|
|
|
1,250
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
13.20
|
|
|
1/10/2021
|
|
|
|
625
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
14.24
|
|
|
5/5/2019
|
|
|
|
3,125
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
12.72
|
|
|
5/5/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael
J. Caulfield Director
|
|
|
50,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
2.20
|
|
|
7/5/2028
|
|
|
|
30,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
3.00
|
|
|
8/14/2027
|
|
|
|
10,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
3.92
|
|
|
5/11/2026
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas
J. Heckman CFO, Treasurer and Secretary
|
|
|
12,500
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
13.20
|
|
|
1/10/2021
|
|
|
|
3,750
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
24.80
|
|
|
7/30/2019
|
|
|
|
3,750
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
14.24
|
|
|
5/5/2019
|
|
|
|
2,500
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
12.72
|
|
|
3/30/2019
|
Recent
Stock Option and Restricted Stock Award Grants to Employees, Consultants, and Directors
Our
board of directors adopted the 2005 Stock Option and Restricted Stock Plan (the “2005 Plan”) on September 1, 2005.
The 2005 Plan authorized us to reserve 312,500 shares of our common stock for issuance upon exercise of options and grant of restricted
stock awards. The 2005 Plan terminated in 2015 with 4616 shares reserved for awards that are now unavailable for issuance. Stock
options granted under the 2005 Plan that remain unexercised and outstanding as of December 31, 2018 total 23,125.
On
January 17, 2006, our board of directors adopted the 2006 Stock Option and Restricted Stock Plan (the “2006 Plan”).
The 2006 Plan authorizes us to reserve 187,500 shares for future grants under it. The 2006 Plan terminated in 2016 with 21,087
shares reserved for awards that are now unavailable for issuance. Stock options granted under the 2006 Plan that remain unexercised
and outstanding as of December 31, 2018 total 46,387.
On
January 24, 2007, our board of directors adopted the 2007 Stock Option and Restricted Stock Plan (the “2007 Plan”).
The 2007 Plan authorizes us to reserve 187,500 shares for future grants under it. The 2007 Plan terminated in 2017 with 82,151
shares reserved for awards that are now unavailable for issuance. Stock options granted under the 2007 Plan that remain unexercised
and outstanding as of December 31, 2018 total 12,500.
On
January 2, 2008, our board of directors adopted the 2008 Stock Option and Restricted Stock Plan (the “2008 Plan”).
The 2008 Plan authorizes us to reserve 125,000 shares for future grants under it. The 2008 Plan terminated in 2018 with 6,249
shares reserved for awards that are now unavailable for issuance. Stock options granted under the 2008 Plan that remain unexercised
and outstanding as of December 31, 2018 total 32,250.
On
March 18, 2011, our board of directors adopted the 2011 Stock Option and Restricted Stock Plan (the “2011 Plan”).
The 2011 Plan authorizes us to reserve 62,500 shares for future grants under it. At December 31, 2018, there were 726 shares reserved
for awards available for issuance under the 2011 Plan. Stock options granted under the 2011 Plan that remain unexercised and outstanding
as of December 31, 2018 total 9,750.
On
March 22, 2013, our board of directors adopted the 2013 Stock Option and Restricted Stock Plan (the “2013 Plan”).
The 2013 Plan was amended on March 28, 2014 and November 14, 2014 to increase the number of shares authorized and reserved for
issuance under the 2013 Plan to a total of 300,000. At December 31, 2018, there were 100 shares reserved for awards available
for issuance under the 2013 Plan. Stock options granted under the 2013 Plan that remain unexercised and outstanding as of December
31, 2018 total 20,000.
On
March 27, 2015, our board of directors adopted the 2015 Stock Option and Restricted Stock Plan (the “2015 Plan”).
The 2015 Plan was amended on February 25, 2016 and May 31, 2017 to increase the number of shares authorized and reserved for issuance
under the 2015 Plan to a total of 1,250,000. At December 31, 2018, there were 37,100 shares reserved for awards available for
issuance under the 2015 Plan, as amended. Stock options granted under the 2015 Plan that remain unexercised and outstanding as
of December 31, 2018 total 130,000.
On
April 12, 2018, our board of directors adopted the 2018 Stock Option and Restricted Stock Plan (the “2018 Plan”).
The 2018 Plan authorizes us to reserve 1,000,000 shares for future grants under it. At December 31, 2018, there were 540,000 shares
reserved for awards available for issuance under the 2018 Plan. Stock options granted under the 2018 Plan that remain unexercised
and outstanding as of December 31, 2018 total 160,000.
The
2005 Plan, 2006 Plan, 2007 Plan, 2008 Plan, 2011 Plan, 2013 Plan, 2015 Plan and 2018 Plan are referred to as the “Plans.”
We
believe that such awards better align the interests of our employees with those of our stockholders. Option awards have been granted
with an exercise price equal to the market price of our stock at the date of grant with such option awards generally vesting based
on the completion of continuous service and having ten-year contractual terms. Restricted stock awards have also been made under
the Plans. A restricted stock award is a grant of shares of the common stock that is subject to restrictions on transferability,
risk of forfeiture and other restrictions and that may be forfeited in the event of certain terminations of employment or service
prior to the end of a restricted period specified by the Compensation Committee. These option and restricted stock awards typically
provide for accelerated vesting if there is a change in control (as defined in the Plans). We have registered all shares of common
stock that are issuable under our Plans with the SEC. A total of 577,926 shares remained available for awards under the various
Plans as of December 31, 2018.
The
number of stock options and restricted stock awards that an employee, director, or consultant may receive under our Plans is in
the discretion of the administrator and therefore cannot be determined in advance, although the Board of Directors’ policy
for 2018 was to grant directors stock options that vest over a one-year period and to grant officers restricted shares that vest
over a one to two-year period.
The
following table sets forth (a) the aggregate number of shares subject to options and restricted stock granted under the Plans
during the year-ended December 31, 2018 and (b) the average per share exercise price of such options.
Stock
Option and Restricted Stock Grants
Name
of Individual or Group
|
|
Number
of Restricted
Shares of
Common
Stock Granted
|
|
|
Number
of Options
Granted
|
|
|
Average
per
Share Exercise
Price
|
|
Stanton
E. Ross, Chairman of the Board,
CEO & President
|
|
|
250,000
|
|
|
|
—
|
|
|
$
|
—
|
|
Leroy
C. Richie, Director
|
|
|
—
|
|
|
|
50,000
|
|
|
$
|
2.20
|
|
Daniel
F. Hutchins, Director
|
|
|
—
|
|
|
|
50,000
|
|
|
$
|
2.20
|
|
Michael
J. Caulfield, Director
|
|
|
—
|
|
|
|
50,000
|
|
|
$
|
2.20
|
|
Thomas
J. Heckman, Vice President, CFO,
Treasurer & Secretary
|
|
|
150,000
|
|
|
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All
executive officers, as a group
|
|
|
400,000
|
|
|
|
—
|
|
|
$
|
—
|
|
All
directors who are not executive officers, as a group
|
|
|
—
|
|
|
|
150,000
|
|
|
$
|
2.20
|
|
All
employees who are not executive officers, as a group
|
|
|
84,500
|
|
|
|
—
|
|
|
$
|
—
|
|
Federal
Tax Aspects
The
following summary is a brief discussion of certain federal income tax consequences to U.S. taxpayers and to the Company of stock
option and restricted stock awards granted under the 2018 Plan. This summary is not intended to be a complete discussion of all
the federal income tax consequences of the 2018 Plan or of all the requirements that must be met in order to qualify for the tax
treatment described below. The following summary is based upon the provisions of U.S. federal tax law in effect on the date hereof,
which is subject to change (perhaps with retroactive effect), and does not constitute tax advice. In addition, because tax consequences
may vary, and certain exceptions to the general rules discussed in this summary may be applicable, depending upon the personal
circumstances of individual recipients and each recipient should consider his or her personal situation and consult with his or
her own tax advisor with respect to the specific tax consequences applicable to him or her. The following assumes stock options
have been granted at an exercise price per share at least equal to 100% of the fair market value of the Company’s common
stock on the date of grant.
Tax
consequences of nonqualified stock options
. In general, an employee, director or consultant will not recognize income
at the time of the grant of nonqualified options under the 2018 Plan. When an optionee exercises a nonqualified stock option,
he or she generally will recognize ordinary income equal to the excess, if any, of the fair market value (determined on the day
of exercise) of the shares of the common stock received over the option exercise price. The tax basis of such shares to the optionee
will be equal to the exercise price paid plus the amount of ordinary income includible in his or her gross income at the time
of the exercise. Upon a subsequent sale or exchange of shares acquired pursuant to the exercise of a nonqualified stock option,
the optionee will have taxable capital gain or loss, measured by the difference between the amount realized on the sale or exchange
and the tax basis of the shares. The capital gain or loss will be short-term or long-term depending on holding period of the shares
sold.
Tax
consequences of incentive stock options
. In general, an employee will not recognize income on the grant of incentive stock
options under the 2018 Plan. Except with respect to the alternative minimum tax, an optionee will not recognize income on the
exercise of an incentive stock option unless the option exercise price is paid with stock acquired on the exercise of an incentive
stock option and the following holding period for such stock has not been satisfied. For purposes of the alternative minimum tax,
however, an optionee will be required to treat an amount equal to the difference between the fair market value (determined on
the day of exercise) of our shares of the common stock received and the exercise price as an item of adjustment in computing the
optionee’s alternative minimum taxable income.
An
optionee will recognize long-term capital gain or loss on a sale of the shares acquired on exercise, provided the shares acquired
are not sold or otherwise disposed of before the earlier of: (i) two years from the date of grant of the option, or (ii) one year
from the date of exercise of the option. In general, the amount of gain or loss will equal the difference, if any, between the
sale price of such shares and the exercise price. If the stock is not held for the required period of time, the optionee will
recognize ordinary income to the extent the fair market value (determined on the day of exercise) of the stock exceeds the option
price, but limited to the gain recognized on sale. The balance of any such gain will be a short-term or long-term capital gain
(depending on the applicable holding period).
For
the exercise of a stock option to qualify for the foregoing incentive stock option tax treatment, an optionee generally must be
our employee continuously from the date of the grant until any termination of employment, and in the event of a termination of
employment, the stock option must be exercised within three months after the termination.
Tax
consequences of restricted stock awards
. In general, the recipient of a stock award that is not subject to restrictions
will recognize ordinary income at the time the shares are received equal to the excess, if any, of the fair market value of the
shares received over the amount, if any, the recipient paid in exchange for the shares. If, however, the shares are subject to
vesting or other restrictions (that is, they are nontransferable and subject to a substantial risk of forfeiture) when the shares
are granted (for example, if the employee is required to work for a period of time in order to have the right to sell the stock),
the recipient generally will not recognize income until the shares becomes vested or the restrictions otherwise lapse, at which
time the recipient will recognize ordinary income equal to the excess, if any, of the fair market value of the shares on the date
of vesting (or the date of the lapse of a restriction) less the amount, if any, the recipient paid in exchange for the shares.
If the shares are forfeited under the terms of the restricted stock award, the recipient will not recognize income and will not
be allowed an income tax deduction with respect to the forfeiture.
A
recipient may file an election under Section 83(b) of the Internal Revenue Code with the Internal Revenue Service within thirty
(30) days of his or her receipt of a restricted stock award to recognize ordinary income, as of the award date, equal to the excess,
if any, of the fair market value of the shares on the award date less the amount, if any, the recipient paid in exchange for the
shares. If a recipient makes a Section 83(b) election, then the recipient will not otherwise be taxed in the year the vesting
or restriction lapses, and, if the stock award is forfeited, he or she will not be allowed an income tax deduction. If the recipient
does not make a Section 83(b) election, dividends paid to the recipient on the shares prior to the date the vesting or restrictions
lapse will be treated as compensation income.
The
recipient’s tax basis for the determination of gain or loss upon the subsequent disposition of shares acquired as stock
awards will be the amount paid for such shares plus the amount includible in his or her gross income as compensation in respect
of such shares.
Withholding
and other consequences
. Any compensation includible in the gross income of a recipient will be subject to appropriate
federal and state income tax withholding.
Tax
effect for the Company
. We are generally entitled to an income tax deduction in connection with a stock option or restricted
stock award granted under the 2018 Plan in an amount equal to the ordinary income realized by a recipient at the time the recipient
recognizes such income (for example, the exercise of a nonqualified stock option). Special rules may limit the deductibility of
compensation paid to our Chief Executive Officer and to each of our four most highly compensated executive officers under Section
162(m) of the Internal Revenue Code to the extent that annual compensation paid to any of the foregoing individuals exceeds $1,000,000.
THE
FOREGOING IS ONLY A SUMMARY OF THE EFFECT OF FEDERAL INCOME TAXATION UPON PARTICIPANTS AND THE COMPANY WITH RESPECT TO THE GRANT
AND EXERCISE OF STOCK OPTIONS, STOCK APPRECIATION RIGHTS, AND RESTRICTED STOCK AWARDS UNDER THE 2018 PLAN. IT DOES NOT PURPORT
TO BE COMPLETE, AND DOES NOT DISCUSS THE TAX CONSEQUENCES OF A RECIPIENT’S DEATH OR THE PROVISIONS OF THE INCOME TAX LAWS
OF ANY MUNICIPALITY STATE OR FOREIGN COUNTRY IN WHICH THE RECIPIENT MAY RESIDE. THE FOREGOING SUMMARY IS NOT INTENDED OR WRITTEN
TO BE USED, AND IT CANNOT BE USED BY ANY TAXPAYER, TO AVOID PENALTIES THAT MAY BE IMPOSED ON THE TAXPAYER.
PROPOSAL
THREE
APPROVAL
OF AMENDMENT TO OUR ARTICLES OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF OUR CAPITAL STOCK THAT WE MAY ISSUE
BY 10,000,000 AND CLASSIFY SUCH SHARES AS BLANK CHECK PREFERRED STOCK.
Proposal
3 seeks your approval of an amendment to our Articles of Incorporation, which we refer to as the “Articles Amendment,”
to increase the number of authorized shares of capital stock by 10,000,000 and classify such shares as blank check preferred stock.
The Articles Amendment has the effect of creating a new class of stock: blank check preferred. The proposed Articles Amendment
is set forth below:
“Article
IX of the Articles of Incorporation of the Company is amended to include the following:
(a)
Authorized Shares
. The aggregate number of shares of capital stock that the Corporation will have the authority
to issue includes, in addition to the Common Stock, ten million (10,000,000) shares of blank check preferred stock, with a par
value of $0.001 per share (the “Preferred Stock”).
(b)
Blank Check Preferred Stock
. The Board of Directors is authorized, subject to the limitations prescribed in this
Article IX, to provide for the issuance of the shares of blank check preferred stock in series, and by filing a certificate pursuant
to the applicable law of the State of Nevada, to establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations
and restrictions thereof. The authority of the Board of Directors with respect to each series of Preferred Stock will include,
but not be limited to, the rights to determine the following:
|
(i)
|
The
number of shares constituting that series of Preferred Stock and the distinctive designation of that series, which may be
a distinguishing number, letter or title;
|
|
|
|
|
(ii)
|
The
dividend rate on the shares of that series of Preferred Stock, whether dividends will be cumulative, and if so, from which
date(s), and the relative rights of priority, if any, of payment of dividends on shares of that series;
|
|
|
|
|
(iii)
|
Whether
that series of Preferred Stock will have voting rights, in addition to the voting rights provided by law, and, if so, the
terms of such voting rights;
|
|
|
|
|
(iv)
|
Whether
that series of Preferred Stock will have conversion privileges and, if so, the terms and conditions of such conversion, including
provision for adjustment of the conversion rate in such events as the Board of Directors determines;
|
|
|
|
|
(v)
|
Whether
or not the shares of that series of Preferred Stock will be redeemable and, if so, the terms and conditions of such redemption,
including the date or date upon or after which they are redeemable, and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different redemption dates;
|
|
|
|
|
(vi)
|
Whether
that series of Preferred Stock will have a sinking fund for the redemption or purchase of shares of that series and, if so,
the terms and amount of such sinking fund;
|
|
|
|
|
(vii)
|
The
rights of the shares of that series of Preferred Stock in the event of voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of that series; and
|
|
(viii)
|
Any
other relative rights, preferences and limitations of that series of Preferred Stock.
|
Each
series of serial Preferred Stock, in preference to the Common Stock, will be entitled to dividends from funds or other assets
legally available therefore, at such rates, payable at such times and cumulative to the extent as may be fixed by the Board of
Directors of the Corporation pursuant to the authority herein conferred upon it. In the event of dissolution or liquidation of
the Corporation, voluntary or involuntary, the holders of serial Preferred Stock, in preference to the Common Stock, will be entitled
to receive such amount or amounts as may be fixed by the Board of Directors of the Corporation pursuant to the authority herein
conferred upon it. Preferred Stock of any series redeemed, converted, exchanged, purchased or otherwise acquired by the Corporation
shall be canceled by the Corporation and returned to the status of authorized but unissued Preferred Stock. All shares of any
series of serial Preferred Stock, as between themselves, shall rank equally and be identical; and all series of serial Preferred
Stock, as between themselves, shall rank equally and be identical, except as set forth in resolutions of the Board of Directors
authorizing the issuance of the series.”
Authorization
of Blank Check Preferred Stock
The
Articles Amendment will increase the number of shares of our capital stock by an additional 10,000,000 shares of blank check preferred
stock and authorizes the issuance of blank check preferred stock with such designations, rights and preferences as may be determined
from time to time by our Board of Directors. Accordingly, upon effectiveness of the Articles Amendment, our Board of Directors
will be authorized to issue the preferred stock without stockholder approval, except as may be required by applicable laws or
rules. For example, under the rules of the NASDAQ Stock Market, shareholder approval is required for any potential issuance of
20% or more of our outstanding shares of common stock, including upon conversion of convertible preferred stock, in connection
with acquisitions or discounted private placements. In connection with the issuance of the preferred stock, the Board would have
the authority to designate and issue series of our preferred stock with dividend, liquidation, conversion, voting or other rights
that could adversely affect the voting power or other rights of the holders of our common stock, substantially dilute the common
stockholders’ interests in us and depress the price of our common stock. In addition, although we do not presently intend
to use the blank check preferred stock provision for such purpose, preferred stock authorized under such provision could be utilized,
under certain circumstances, as a method of discouraging, delaying or preventing a change of control of us.
Our
Board of Directors believes that authorization of blank check preferred stock is in the best interests of us and our stockholders
because it is advisable to have the ability to authorize such shares of preferred stock and have them available for, among other
things, possible issuances in connection with such activities as public or private offerings of shares for cash, acquisitions
of other companies, pursuit of financing opportunities and other corporate purposes. However, we do not have any plans, proposals
or arrangements concerning the issuance of shares of our blank check preferred stock.
There
will be an increase in the number of shares of our capital stock authorized by 10,000,000 in the form of preferred stock if this
proposal is approved. Immediately following the adoption of the Articles Amendment, we will have approximately 38,872,445 shares
of common stock authorized but unissued and available for issuance and 10,000,000 shares of preferred stock authorized but unissued
and available for issuance. At March 27, 2019, we had 11,127,555 shares of common stock issued of which 63,518 shares are held
in treasury, 354,012 shares issuable upon exercise of options granted under the Plans, 4,496,145 shares issuable upon exercise
of outstanding warrants to purchase common stock and no preferred stock authorized or issued.
Effectiveness
of the Articles Amendment
The
amendment to our Articles of Incorporation described above, if approved by our stockholders, will become effective upon the filing
of the Articles Amendment with the Secretary of State of Nevada.
Potential
Anti-Takeover effect of the Proposed Articles Amendment
The
Articles Amendment relating to the increase in the number of authorized shares of our capital stock and adoption of a blank check
preferred stock is not intended to have any anti-takeover effect and is not part of any series of anti-takeover measures contained
in our Articles of Incorporation or Bylaws in effect on the date of this proxy statement. However, our stockholders should note
that the availability of additional authorized and unissued shares of preferred stock could make any attempt to gain control of
us or the Board more difficult or time-consuming and that the availability of additional authorized and unissued shares might
make it more difficult to remove management. Although the Board currently has no intention of doing so, shares of stock could
be issued by the Board to dilute the percentage of stock owned by any stockholder and increase the cost of, or the number of,
voting shares necessary to acquire control of the Board or to meet the voting requirements imposed by Nevada law with respect
to a merger or other business combination involving us. The issuance of preferred stock with voting and conversion rights by our
Board may adversely affect the voting power of the holders of common stock, including the loss of voting control to others.
Our
Board of Directors did not propose this Articles Amendment for the purpose of discouraging mergers, tender offers, proxy contests,
solicitation in opposition to management or other changes in control. We are not aware of any specific effort to accumulate our
common stock or obtain control of us by means of a merger, tender offer, solicitation or otherwise. We have no present intention
to use the creation of the blank check preferred stock for anti-takeover purposes.
Vote
Required and Recommendation
The
affirmative vote of a majority of the issued and outstanding common stock will be required to approve the Articles Amendment.
OUR
BOARD OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS VOTE FOR THE APPROVAL OF THE AMENDMENT TO OUR ARTICLES OF INCORPORATION TO
INCREASE THE NUMBER OF AUTHORIZED SHARES OF OUR CAPITAL STOCK THAT WE MAY ISSUE BY 10,000,000 AND CLASSIFY SUCH SHARES AS BLANK
CHECK PREFERRED STOCK.
PROPOSAL
FOUR
ADVISORY
(NON-BINDING) VOTE ON EXECUTIVE COMPENSATION
Our
compensation policies and procedures are centered on a pay-for-performance philosophy, and we believe that they are strongly aligned
with the long-term interests of our stockholders. Our compensation program is designed to attract, motivate, and retain the key
executives who drive our success. Compensation that rewards excellence and reflects performance, and alignment of that compensation
with the interests of long-term stockholders, are key principles of our compensation program design. Although we have made and
will continue to make improvements to our compensation program from time to time, these key principles have been unchanged for
many years.
We
support the principle that our corporate governance policies, including our executive compensation program, should be responsive
to stockholder concerns. This principle is embodied in a non-binding, advisory vote that gives you as a stockholder the opportunity
to approve the compensation of our named executive officers as disclosed in this proxy statement, including, among other things,
our executive compensation objectives, policies and procedures. This vote is intended to provide an overall assessment of our
executive compensation program rather than to focus on any specific item of compensation. The Compensation Committee, and the
Board as a whole, value the opinions of our stockholders and intend to take the outcome of this vote into account when considering
future executive compensation arrangements. However, because the vote is advisory, it will not directly affect any existing compensation
awards of any of our executive officers, including our named executive officers.
As
discussed above, our executive compensation program is designed:
|
●
|
to
demand and reward excellence from each of our executive officers and from the management team as a whole;
|
|
|
|
|
●
|
to
align our interests with the interests of executives and other employees through compensation programs that recognize individual
contributions toward the achievement of corporate goals and objectives without encouraging unnecessary or unreasonable risks;
|
|
|
|
|
●
|
to
further link executive and stockholder interests through equity-based compensation and long-term stock ownership arrangements;
|
|
|
|
|
●
|
to
recognize and reward excellence in an executive’s performance in the furtherance of our goals and objectives without
undertaking unnecessary or excessive risk; and
|
|
|
|
|
●
|
to
attract and retain high caliber executive and employee talent.
|
The
application of these principles and our executive compensation philosophy, policies and procedures have resulted in a corporate
culture that demands excellence and recognizes individual and team performance without encouraging unnecessary or excessive risks.
We align the interests of stockholders and executives by linking a substantial portion of compensation to our performance. For
example, approximately 55.9% of the total 2018 compensation disclosed in the Summary Compensation Table for our named executive
officers (excluding the increase in the value of retirement benefits and earnings on deferred compensation) consisted of either
incentives that were subject to pre-established performance criteria or equity awards whose ultimate value upon resale depends
upon the value of our stock to stockholders. We have made and will continue to make improvements to our compensation program from
time to time. In most cases, compensation decisions made during 2018 resulted in only a relatively small increase in base pay
over the prior year.
We
encourage you to consider the detailed information provided in the Summary Compensation Table and the tables and other information
that follow it. The Board and the Compensation Committee will review the advisory voting results and will take them into account
in making future executive compensation decisions.
After
reviewing the information provided above and in the other parts of this proxy statement, the Board of Directors asks you to approve
the following advisory resolution:
Resolved
,
that the stockholders of Digital Ally, Inc. hereby approve, on an advisory, nonbinding basis, the compensation paid to its named
executive officers, as disclosed pursuant to Item 402 of Regulation S-K, including the compensation tables and narrative discussion
in this proxy statement.
This
advisory vote will be approved if it receives the affirmative vote of a plurality of the shares of common stock present in person
or represented by proxy at the annual meeting and entitled to vote with respect to this proposal.
OUR
BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE TO APPROVE THE COMPENSATION PAID TO THE CORPORATION’S NAMED EXECUTIVE OFFICERS
AS DISCLOSED HEREIN.
PROPOSAL
FIVE
RATIFICATION
OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The
Audit Committee of the Board of Directors has appointed RSM US LLP as the independent registered public accounting firm to audit
our financial statements for the year ending December 31, 2019 and recommends that stockholders vote for ratification of such
appointment. Although we are not required to seek stockholder approval of this appointment, the Board believes it to be sound
corporate governance to do so. Notwithstanding the selection by the Audit Committee of RSM US LLP, the Audit Committee may direct
the appointment of a new independent registered public accounting firm at any time during the year if the Board of Directors determines
that such a change would be in our best interest and in that of our stockholders. If the appointment is not ratified, the Audit
Committee will investigate the reasons for stockholder rejection and will reconsider the appointment.
The
Audit Committee believes that RSM US LLP is well suited to provide the services that we require in 2019 and beyond. Representatives
of RSM US LLP are expected to attend the annual meeting, where they will be available to respond to questions and, if they desire,
to make a statement.
Audit
and Related Fees
The
following table is a summary of the fees billed to us by RSM US LLP for the fiscal years ended December 31, 2018 and 2017:
Fee
Category
|
|
Fiscal
2018 fees
|
|
|
Fiscal
2017 fees
|
|
Audit
fees
|
|
$
|
222,730
|
|
|
$
|
163,600
|
|
Audit-related
fees
|
|
|
44,625
|
|
|
|
33,000
|
|
Tax
fees
|
|
|
—
|
|
|
|
—
|
|
All
other fees
|
|
|
11,343
|
|
|
|
9,674
|
|
Total
fees
|
|
$
|
278,698
|
|
|
$
|
206,274
|
|
Audit
Fees
.
Such amount consists of fees billed for professional services rendered in connection with the audit of our
annual financial statements and review of the interim financial statements included in our quarterly reports. It also includes
services that are normally provided by our independent registered public accounting firms in connection with statutory and regulatory
filings or engagements.
Audit-Related
Fees
.
Consists of fees billed for assurance and related services that are reasonably related to the performance
of the audit or review of our financial statements and are not reported under “Audit Fees.” These services include
consents issued for certain filings with the SEC, accounting consultations in connection with financings and consultations concerning
financial accounting and reporting standards.
Tax
Fees
.
Tax fees consist of fees billed for professional services related to tax compliance, tax advice and tax planning.
These services include assistance regarding federal, state and international tax compliance, tax audit defense, customs and duties,
mergers and acquisitions, and international tax planning.
All
Other Fees
.
Consists of fees for products and services other than the services reported above. . In fiscal 2018,
such fees were also related primarily to telecommunications and server network support and maintenance. In fiscal 2017, such fees
were related primarily to server hardware and telephone system maintenance and upgrades.
The
Audit Committee’s practice is to consider and approve in advance all proposed audit and non-audit services to be provided
by our independent registered public accounting firm. All the fees shown above were pre-approved by the Audit Committee.
The
audit report of RSM US LLP on our consolidated financial statements for the year ended December 31, 2018 did not contain an adverse
opinion or disclaimer of opinion, and was not qualified or modified as to uncertainty, audit scope or accounting principles.
During
our fiscal year ended December 31, 2018, there were no disagreements with RSM US LLP on any matter of accounting principles or
practices, financial statement disclosure, or auditing scope or procedures, which disagreements if not resolved to RSM US LLP’s
satisfaction would have caused it to make reference to the subject matter of such disagreements in connection with its reports
on the financial statements for such periods.
During
our fiscal years ended December 31, 2018, there were no reportable events (as described in Item 304(a)(1)(v) of Regulation S-K).
Vote
Required and Board Recommendation
If
a quorum is present, the affirmative vote of a majority of the shares present and entitled to vote at the annual meeting will
be required to ratify the appointment of RSM US LLP as our independent registered public accounting firm.
OUR
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE FOR THE RATIFICATION OF THE APPOINTMENT OF RSM US LLP AS THE
INDEPENDENT REGISTERED ACCOUNTING FIRM OF DIGITAL ALLY, INC. FOR THE YEAR ENDING DECEMBER 31, 2019.
Notwithstanding
anything to the contrary set forth in any of our previous filings under the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended, that might incorporate future filings, including this proxy statement, in whole or in part,
the Audit Committee Report shall not be incorporated by reference into any such filings.
REPORT
OF THE AUDIT COMMITTEE
Below
is the report of the Audit Committee with respect to our audited consolidated financial statements for the fiscal year ended December
31, 2018, which includes our consolidated balance sheets as of December 31, 2018 and 2016, and the related consolidated statements
of operations, stockholders’ equity and cash flows for each of the fiscal years ended December 31, 2018 and December 31,
2017 and the notes thereto.
In
accordance with the written charter adopted by the Board of Directors, the Audit Committee of the Board of Directors has the primary
responsibility for overseeing our financial reporting, accounting principles and system of internal accounting controls, and reporting
its observations and activities to the Board of Directors. It also approves the appointment of our independent registered public
accounting firm and approves in advance the services performed by such firm.
Review
and Discussion with Management
The
Audit Committee has reviewed and discussed with management our audited consolidated financial statements for the fiscal year ended
December 31, 2018, the process designed to achieve compliance with Section 404 of the Sarbanes-Oxley Act of 2002, our assessment
of internal control over financial reporting and the report by our independent registered public accounting firm thereon.
Review
and Discussions with Independent Registered Public Accounting Firm
In
the performance of its oversight function and in accordance with its responsibilities under its charter, the Audit Committee has
reviewed and discussed with management and the independent registered public accounting firm the Company’s audited financial
statements as of and for the fiscal year ended December 31, 2018. The Audit Committee also discussed with our independent registered
public accounting firm the matters required to be discussed by Public Company Accounting Oversight Board Auditing Standard No.
16 “Communications with Audit Committee.” Finally, the Audit Committee received the written disclosures and the letter
from our independent registered public accounting firm required by applicable requirements of the Public Company Accounting Oversight
Board regarding the independent registered public accounting firm’s communications with the Audit Committee concerning independence,
and discussed with our independent registered public accounting firm its independence.
Conclusion
Based
on the review and discussions referred to above, the Audit Committee recommended to the Board of Directors that our audited consolidated
financial statements for the fiscal year ended December 31, 2018 be included in our Annual Report on Form 10-K for the fiscal
year ended December 31, 2018 for filing with the Securities and Exchange Commission.
|
Respectfully
submitted by:
|
|
|
|
|
THE
AUDIT COMMITTEE OF THE BOARD OF
DIRECTORS
OF DIGITAL ALLY, INC.
|
|
|
|
|
|
Daniel
F. Hutchins, Chairman
|
|
|
Leroy
C. Richie
|
|
|
Michael
J. Caulfield
|
EXECUTIVE
COMPENSATION
The
following table presents information concerning the total compensation of the Company’s Chief Executive Officer and Chief
Financial Officer (the “Named Executive Officers”) for services rendered to the Company in all capacities for the
years ended December 31, 2018 and 2017:
Summary
Compensation Table
Name
and principal position
|
|
Year
|
|
|
Salary
($)
|
|
|
Bonus
($)
|
|
|
Stock
awards ($) (1)(3)(4)(5)
|
|
|
Option
awards ($) (1)
|
|
|
All
other compensation ($) (2)
|
|
|
Total
($)
|
|
Stanton
E. Ross
|
|
|
2018
|
|
|
$
|
250,000
|
|
|
$
|
250,000
|
|
|
$
|
560,000
|
|
|
$
|
—
|
|
|
$
|
26,390
|
|
|
$
|
1,086,390
|
|
Chairman,
CEO and President
|
|
|
2017
|
|
|
$
|
220,000
|
|
|
$
|
25,000
|
|
|
$
|
1,087,500
|
|
|
$
|
—
|
|
|
$
|
22,516
|
|
|
$
|
1,355,016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas
J. Heckman
Vice President, Chief Financial Officer,
|
|
|
2018
|
|
|
$
|
230,000
|
|
|
$
|
23,000
|
|
|
$
|
347,500
|
|
|
$
|
—
|
|
|
$
|
20,460
|
|
|
$
|
620,960
|
|
Treasurer
and Secretary
|
|
|
2017
|
|
|
$
|
220,000
|
|
|
$
|
—
|
|
|
$
|
682,500
|
|
|
$
|
—
|
|
|
$
|
23,672
|
|
|
$
|
926,172
|
|
(1)
|
Represents
aggregate grant date fair value pursuant to ASC Topic 718 for the respective year for stock options granted. Please refer
to Note 12 to the consolidated financial statements for further description of the awards and the underlying assumptions utilized
to determine the amount of grant date fair value related to such grants.
|
|
|
(2)
|
Amounts
included in all other compensation include the following items: the employer contribution to the Company’s 401(k) Retirement
Savings Plan (the “401(k) Plan”) on behalf of the named executive. We are required to provide a 100% matching
contribution for all who elect to contribute up to 3% of their compensation to the plan and a 50% matching contribution for
all employees’ elective deferral between 4% and 5%. The employee is (i) 100% vested at all times in the employee contributions
and employer matching contributions; (ii) Company paid healthcare insurance; (iii) Company paid contributions to health savings
accounts; and (iv) Company paid life, accident and disability insurance. See “All Other Compensation Table” below.
|
|
|
(3)
|
Stock
awards include the following restricted stock granted during 2018 to Mr. Ross: (i) 50,000 shares at $2.70 per share that vest
ratably over the one-year period ending April 15, 2019; and (ii) 200,000 shares at $2.125 per share that vest ratably over
the one-year period ending July 5, 2019.
|
|
|
(4)
|
Stock
awards include the following restricted stock granted during 2017 to Mr. Heckman: (i) 50,000 shares at $2.70 per share that
vest ratably over the one-year period ending April 15, 2019; and (ii) 100,000 shares at $2.125 per share that vest ratably
over the one-year period ending July 5, 2019.
|
|
|
(5)
|
Stock
awards include the following restricted stock granted during 2017 to Mr. Ross: (i) 125,000 shares at $5.10 per share that
vest ratably over the two-year period ending January 22, 2019; and (ii) 150,000 shares at $3.00 per share that vest ratably
over the one-year period ending August 14, 2018.
|
|
|
(6)
|
Stock
awards include the following restricted stock granted during 2017 to Mr. Heckman: (i) 75,000 shares at $5.10 per share that
vest ratably over the two-year period ending January 22, 2019; and (ii) 100,000 shares at $3.00 per share that vest ratably
over the one-year period ending August 14, 2018.
|
All
Other Compensation Table
Name
|
|
Year
|
|
|
401(k)
Plan contribution by Company
|
|
|
Company
paid healthcare insurance
|
|
|
Flexible
& health savings account contributions by Company
|
|
|
Company
paid life, accident & disability insurance
|
|
|
Other
Contractual payments
|
|
|
Total
|
|
Stanton
E. Ross
|
|
|
2018
|
|
|
$
|
8,694
|
|
|
$
|
16,075
|
|
|
$
|
1,100
|
|
|
$
|
521
|
|
|
$
|
—
|
|
|
$
|
26,390
|
|
Chairman,
CEO
and President
|
|
|
2017
|
|
|
$
|
5,517
|
|
|
$
|
15,373
|
|
|
$
|
1,100
|
|
|
$
|
526
|
|
|
$
|
—
|
|
|
$
|
22,516
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas
J. Heckman
|
|
|
2018
|
|
|
$
|
9,000
|
|
|
$
|
10,220
|
|
|
$
|
719
|
|
|
$
|
521
|
|
|
$
|
—
|
|
|
$
|
20,460
|
|
Vice
President, Chief
Financial Officer, Treasurer
and Secretary
|
|
|
2017
|
|
|
$
|
8,800
|
|
|
$
|
13,546
|
|
|
$
|
800
|
|
|
$
|
526
|
|
|
$
|
—
|
|
|
$
|
23,672
|
|
Compensation
Policy
. Our executive compensation plan is based on attracting and retaining qualified professionals who possess the skills
and leadership necessary to enable us to achieve earnings and profitability growth to satisfy its stockholders. We must, therefore,
create incentives for these executives to achieve both our and individual performance objectives using performance-based compensation
programs. No one component is considered by itself, but all forms of the compensation package are considered in total. Wherever
possible, objective measurements will be utilized to quantify performance, but many subjective factors still come into play when
determining performance.
Compensation
Components
. The main elements of its compensation package consist of base salary, stock options or restricted stock awards
and bonus.
Base
Salary
. The base salary for each executive officer is reviewed and compared to the prior year, with considerations given
for increase or decrease. The review is generally on an annual basis, but may take place more often in the discretion of the Compensation
Committee.
For
fiscal year 2019, the Compensation Committee of the Board of Directors (the “Committee”) set the annual base salaries
of Stanton E. Ross, President and Chief Executive Officer, and Thomas J. Heckman, Chief Financial Officer, Treasurer and Secretary,
at $250,000 and $230,000, respectively. This represents no increase or decrease from the previous year.
For
fiscal year 2018, the Compensation Committee of the Board of Directors (the “Committee”) set the annual base salaries
of Stanton E. Ross, President and Chief Executive Officer, and Thomas J. Heckman, Chief Financial Officer, Treasurer and Secretary,
at $250,000 and $230,000, respectively. This represents an increase from the previous year.
For
fiscal year 2017, the Compensation Committee of the Board of Directors (the “Committee”) set the annual base salaries
of Stanton E. Ross, President and Chief Executive Officer, and Thomas J. Heckman, Chief Financial Officer, Treasurer and Secretary,
at $220,000 each.
The
Committee plans to review the base salaries for possible adjustments on an annual basis. Base salary adjustments will be based
on both individual and our performance and will include both objective and subjective criteria specific to each executive’s
role and responsibility with us.
Stock
Options and Restricted Stock Awards.
The Compensation Committee determined stock option and restricted stock awards based
on numerous factors, some of which include responsibilities incumbent with the role of each executive with us, tenure with us,
as well as our performance. The vesting period of options and restricted stock is also tied, in some instances, to our performance
directly related to certain executive’s responsibilities with us. The Committee determined that Messrs. Ross and Heckman
were eligible for awards of stock options or restricted stock in 2018 based on their performance. Refer to grant of Plan-Based
Awards table below for restricted stock awards made in 2018. The Committee also determined that Messrs. Ross and Heckman would
be eligible in 2019 for awards of restricted stock or stock options provided each person is employed with us at such point.
Bonuses
.
The Compensation Committee determined to award bonuses to each of the executive officers in 2018 and 2017, as set forth in the
foregoing table. Refer to the section entitled “Executive Compensation” for the bonuses paid to Messrs. Ross and Heckman
in 2018 and 2017. In fiscal 2019, Messrs. Ross and Heckman will be eligible for bonuses of up to $250,000 and $230,000, respectively.
The Compensation Committee reviews each executive officer’s performance on a quarterly basis and determines what, if any,
portion of the bonus he has earned and will be paid as of such point.
Other
.
In July 2008, we amended and restated our 401(k) retirement savings plan (the “401(k) Plan”). The amended plan requires
us to provide a 100% matching contribution for employees who elect to contribute up to 3% of their compensation to the plan and
a 50% matching contribution for employee’s elective deferrals between 4% and 5%. We have made matching contributions for
executives who elected to contribute to the 401(k) Plan during 2010. Each participant is 100% vested at all times in employee
and employer matching contributions. As of December 31, 2018, a total of 76,040 shares of our common stock were held in the 401(k)
Plan. Mr. Heckman, as trustee of the 401(k) Plan, holds the voting power as to the shares of our common stock held in the 401(k)
Plan. We have no profit sharing plan in place for our employees. However, we may consider adding such a plan to provide yet another
level of compensation to our compensation plan.
The
following table presents information concerning the grants of Plan-based awards to the Named Executive Officers during the year
ended December 31, 2018:
Grants
of Plan-Based Awards
Name
|
|
Grant
date
|
|
Date
approved
by
Compensation
Committee
|
|
All
Other stock awards: Number of shares of stock or units:
(#)
(1)
|
|
|
Exercise
or base price of option awards
($/Share)
|
|
|
Grant
date
fair
value of stock awards
($) (3)
|
|
Stanton
E. Ross
Chairman, CEO and President
|
|
4/16/2018
|
|
4/16/2018
|
|
|
50,000
|
(1)
|
|
$
|
—
|
|
|
$
|
135,000
|
|
|
|
7/5/2018
|
|
7/5/2018
|
|
|
200,000
|
(2)
|
|
$
|
—
|
|
|
$
|
425,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas
J. Heckman
Vice President CFO, Treasurer and Secretary
|
|
4/16/2018
|
|
4/16/2018
|
|
|
50,000
|
(1)
|
|
$
|
—
|
|
|
$
|
135,000
|
|
|
|
7/5/2018
|
|
7/5/2018
|
|
|
100,000
|
(2)
|
|
$
|
—
|
|
|
$
|
212,500
|
|
(1)
|
These
restricted stock awards were made under the Digital Ally, Inc. Stock Option and Restricted Stock Plans and vest over a one-year
period (100% on April 15, 2019) contingent upon whether the individual is still employed by us at that point.
|
|
|
(2)
|
These
restricted stock awards were made under the Digital Ally, Inc. Stock Option and Restricted Stock Plans and vest over a one-year
period (100% on July 5, 2019) contingent upon whether the individual is still employed by us at that point.
|
|
|
(3)
|
Stock
awards noted represent the aggregate amount of grant date fair value as determined under ASC Topic 718. Please refer to Note
12 to the consolidated financial statements for further description of the awards and the underlying assumptions utilized
to determine the amount of grant date fair value related to such grants.
|
The
following table presents information concerning the outstanding equity awards for the Named Executive Officers as of December
31, 2018:
Outstanding
Equity Awards at Fiscal Year-End
|
|
Option
Awards
|
|
|
Stock
Awards
|
|
Name
|
|
Number
of
securities
underlying
unexercised
options
(#)
exercisable (1)
|
|
|
Number
of securities
underlying
unexercised
options
(#)unexercisable
|
|
|
Equity
incentive plan awards: Number of securities underlying unexercised unearned options (#)
|
|
|
Option
exercise
price
($)
|
|
|
Option
expiration
date
|
|
Number
of shares
or units of stock
that have not
vested
(1)
|
|
|
Market
value of
shares or units
of stock that
have
not vested (2)
|
|
|
Equity
incentive
plan awards:
Number of unearned
shares, units or
other rights that
have
not vested
|
|
|
Equity
incentive
plan awards:
Market
or Payout
value
of unearned
shares, units or
other
rights that
have
not vested
|
|
Stanton
E. Ross Chairman, CEO and President
|
|
|
15,000
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
4.80
|
|
|
1/12/2022
|
|
|
395,000
|
|
|
$
|
1,058,600
|
|
|
|
—
|
|
|
$
|
—
|
|
|
|
|
18,750
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
13.20
|
|
|
1/10/2021
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,750
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
14.24
|
|
|
5/5/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas
J. Heckman CFO, Treasurer and Secretary
|
|
|
12,500
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
13.20
|
|
|
1/10/2021
|
|
|
245,000
|
|
|
$
|
656,600
|
|
|
|
—
|
|
|
$
|
—
|
|
|
|
|
3,750
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
24.80
|
|
|
7/30/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,750
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
14.24
|
|
|
5/5/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,500
|
|
|
|
—
|
|
|
|
—
|
|
|
$
|
12.72
|
|
|
3/30/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
These
stock option and restricted stock awards were made under the Digital Ally, Inc. Stock Option and Restricted Stock Plans and
vest over the prescribed period contingent upon whether the individual is still employed by the Company at that point.
|
|
|
(2)
|
Market
value based upon the closing market price of $2.68 on December 31, 2018.
|
The
following table presents information concerning the stock options exercised and the vesting of restricted stock awards during
2018 for the Named Executive Officers for the year ending December 31, 2018:
|
|
|
Option
Exercises and Restricted Stock Vested
|
|
|
|
|
Option
Awards
|
|
|
|
Stock
Awards
|
|
|
|
|
Number
of Shares acquired realized on exercise (#)
|
|
|
|
Value
realized
on exercise ($)
|
|
|
|
Number
of Shares acquired on vesting (#)
|
|
|
|
Value
on vesting ($)
|
|
Stanton
E. Ross
Chairman, CEO & President
|
|
|
—
|
|
|
$
|
—
|
|
|
|
2150,000
|
|
|
$
|
550,525
|
(1)
|
Thomas
J. Heckman
CFO, Treasurer and Secretary
|
|
|
—
|
|
|
$
|
—
|
|
|
|
165,000
|
|
|
$
|
425,525
|
(1)
|
(1)
|
Based
on the closing market price of our common stock of $2.65 on January 3, 2018, the date of vesting for 17,500 shares for both
Mr. Ross and Mr. Heckman, $2.60 on May 11, 2018, the date of vesting for 32,500 shares for both Mr. Ross and Mr. Heckman,
$2.50 on August 14, 2018, the date of vesting for 150,000 shares for Mr. Ross and 100,000 shares for Mr. Heckman, and $2.86
on October 30, 2018 the date of vesting for 15,000 shares for both Mr. Ross and Mr. Heckman.
|
Stock
Option Plans
Securities
Authorized for Issuance under Equity Compensation Plans
Our
board of directors adopted the 2005 Stock Option and Restricted Stock Plan (the “2005 Plan”) on September 1, 2005.
The 2005 Plan authorized us to reserve 312,500 shares of our common stock for issuance upon exercise of options and grant of restricted
stock awards. The 2005 Plan terminated in 2015 with 4616 shares reserved for awards that are now unavailable for issuance. Stock
options granted under the 2005 Plan that remain unexercised and outstanding as of December 31, 2018 total 23,125.
On
January 17, 2006, our board of directors adopted the 2006 Stock Option and Restricted Stock Plan (the “2006 Plan”).
The 2006 Plan authorizes us to reserve 187,500 shares for future grants under it. The 2006 Plan terminated in 2016 with 21,087
shares reserved for awards that are now unavailable for issuance. Stock options granted under the 2006 Plan that remain unexercised
and outstanding as of December 31, 2018 total 46,387.
On
January 24, 2007, our board of directors adopted the 2007 Stock Option and Restricted Stock Plan (the “2007 Plan”).
The 2007 Plan authorizes us to reserve 187,500 shares for future grants under it. The 2007 Plan terminated in 2017 with 82,151
shares reserved for awards that are now unavailable for issuance. Stock options granted under the 2007 Plan that remain unexercised
and outstanding as of December 31, 2018 total 12,500.
On
January 2, 2008, our board of directors adopted the 2008 Stock Option and Restricted Stock Plan (the “2008 Plan”).
The 2008 Plan authorizes us to reserve 125,000 shares for future grants under it. The 2008 Plan terminated in 2018 with 6,249
shares reserved for awards that are now unavailable for issuance. Stock options granted under the 2008 Plan that remain unexercised
and outstanding as of December 31, 2018 total 32,250.
On
March 18, 2011, our board of directors adopted the 2011 Stock Option and Restricted Stock Plan (the “2011 Plan”).
The 2011 Plan authorizes us to reserve 62,500 shares for future grants under it. At December 31, 2018, there were 726 shares reserved
for awards available for issuance under the 2011 Plan. Stock options granted under the 2011 Plan that remain unexercised and outstanding
as of December 31, 2018 total 9,750.
On
March 22, 2013, our board of directors adopted the 2013 Stock Option and Restricted Stock Plan (the “2013 Plan”).
The 2013 Plan was amended on March 28, 2014 and November 14, 2014 to increase the number of shares authorized and reserved for
issuance under the 2013 Plan to a total of 300,000. At December 31, 2018, there were 100 shares reserved for awards available
for issuance under the 2013 Plan. Stock options granted under the 2013 Plan that remain unexercised and outstanding as of December
31, 2018 total 20,000.
On
March 27, 2015, our board of directors adopted the 2015 Stock Option and Restricted Stock Plan (the “2015 Plan”).
The 2015 Plan was amended on February 25, 2016 and May 31, 2017 to increase the number of shares authorized and reserved for issuance
under the 2015 Plan to a total of 1,250,000. At December 31, 2018, there were 37,100 shares reserved for awards available for
issuance under the 2015 Plan, as amended. Stock options granted under the 2015 Plan that remain unexercised and outstanding as
of December 31, 2018 total 130,000.
On
April 12, 2018, our board of directors adopted the 2018 Stock Option and Restricted Stock Plan (the “2018 Plan”).
The 2018 Plan authorizes us to reserve 1,000,000 shares for future grants under it. At December 31, 2018, there were 540,000 shares
reserved for awards available for issuance under the 2018 Plan. Stock options granted under the 2018 Plan that remain unexercised
and outstanding as of December 31, 2018 total 160,000.
The
2005 Plan, 2006 Plan, 2007 Plan, 2008 Plan, 2011 Plan, 2013 Plan, 2015 Plan and 2018 Plan are referred to as the “Plans.”
The
Plans authorize us to grant (i) to the key employees incentive stock options (except for the 2007 Plan) to purchase shares of
common stock and non-qualified stock options to purchase shares of common stock and restricted stock awards, and (ii) to non-employee
directors and consultants’ non-qualified stock options and restricted stock. The Compensation Committee of our board of
directors administers the Plans by making recommendations to the board or determinations regarding the persons to whom options
or restricted stock should be granted and the amount, terms, conditions and restrictions of the awards.
The
Plans allow for the grant of incentive stock options (except for the 2007 Plan), non-qualified stock options and restricted stock
awards. Incentive stock options granted under the Plans must have an exercise price at least equal to 100% of the fair market
value of the common stock as of the date of grant. Incentive stock options granted to any person who owns, immediately after the
grant, stock possessing more than 10% of the combined voting power of all classes of our stock, or of any parent or subsidiary
corporation, must have an exercise price at least equal to 110% of the fair market value of the common stock on the date of grant.
Non-statutory stock options may have exercise prices as determined by our Compensation Committee.
The
Compensation Committee is also authorized to grant restricted stock awards under the Plans. A restricted stock award is a grant
of shares of the common stock that is subject to restrictions on transferability, risk of forfeiture and other restrictions and
that may be forfeited in the event of certain terminations of employment or service prior to the end of a restricted period specified
by the Compensation Committee.
We
have filed various registration statements on Form S-8 and amendments to previously filed Form S-8’s with the SEC which
registered a total of 3,425,000 shares issued or to be issued upon exercise of the stock options underlying the various stock
option plans.
The
following table sets forth certain information regarding the stock option plans adopted by the Company as of December 31, 2018:
Plan
category
|
|
Number
of securities to be issued upon exercise of outstanding options, warrants and rights (a)
|
|
|
Weighted-average
exercise price of outstanding options, warrants and rights (b)
|
|
|
Number
of securities remaining available for future issuance under equity compensation plans
(excluding securities reflected in column (a)) (c)
|
|
Equity
compensation plans approved by stockholders
|
|
|
421,512
|
|
|
$
|
4.34
|
|
|
|
577,926
|
|
Equity
compensation plans not approved by stockholders
|
|
|
12,500
|
|
|
$
|
14.12
|
|
|
|
—
|
|
Total
all plans
|
|
|
434,012
|
|
|
$
|
4.62
|
|
|
|
577,926
|
|
The
number of stock options and restricted stock awards that an employee, director, or consultant may receive under our Plans is in
the discretion of the administrator and therefore cannot be determined in advance. The Board of Directors’ policy in 2018
was to grant officers an award of 250,000 restricted shares to our CEO/President and 150,000 restricted shares to our CFO/Treasurer
and each non-employee director an award of options to purchase 50,000 shares, all subject to vesting requirements.
The
following table sets forth (a) the aggregate number of shares subject to options granted under the Plans during the year-ended
December 31, 2018 and (b) the average per share exercise price of such options.
Stock
Option and Restricted Stock Grants
Name
of Individual or Group
|
|
Number
of Restricted Shares of Common Stock Granted
|
|
|
Number
of Options Granted
|
|
|
Average
per Share Exercise Price
|
|
Stanton
E. Ross, Chairman of the Board,
CEO & President
|
|
|
250,000
|
|
|
|
—
|
|
|
$
|
—
|
|
Leroy
C. Richie, Director
|
|
|
—
|
|
|
|
50,000
|
|
|
$
|
2.20
|
|
Daniel
F. Hutchins, Director
|
|
|
—
|
|
|
|
50,000
|
|
|
$
|
2.20
|
|
Michael
J. Caulfield, Director
|
|
|
—
|
|
|
|
50,000
|
|
|
$
|
2.20
|
|
Thomas
J. Heckman, Vice President, CFO,
Treasurer & Secretary
|
|
|
150,000
|
|
|
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All
executive officers, as a group
|
|
|
400,000
|
|
|
|
—
|
|
|
$
|
—
|
|
All
directors who are not executive officers, as a group
|
|
|
—
|
|
|
|
150,000
|
|
|
$
|
2.20
|
|
All
employees who are not executive officers, as a group
|
|
|
84,500
|
|
|
|
10,000
|
|
|
$
|
2.20
|
|
Employment
Contracts; Termination of Employment and Change-in-Control Arrangements
We
do not have any employment agreements with any of our executive officers. However, on December 23, 2008, we entered into retention
agreements with the following executive officers: Stanton E. Ross and Thomas J. Heckman. In April 2018 we amended these agreements.
Retention
Agreements - Potential Payments upon Termination or Change of Control
The
following table sets forth for each named executive officer potential post-employment payments and payments on a change in control
and assumes that the triggering event took place on January 1, 2019 and that the amendments to the retention agreements of each
person were in effect.
Retention
Agreement Compensation
Name
|
|
Change
in control payment due based upon successful completion of transaction
|
|
|
Severance
payment due based on termination after Change of
Control
occurs
|
|
|
Total
|
|
Stanton
E. Ross
|
|
$
|
125,000
|
|
|
$
|
500,000
|
|
|
$
|
625,000
|
|
Thomas
J. Heckman
|
|
$
|
115,000
|
|
|
$
|
460,000
|
|
|
$
|
575,000
|
|
Total
|
|
$
|
240,000
|
|
|
$
|
960,000
|
|
|
$
|
1,200,000
|
|
The
retention agreements guarantee the executive officers specific payments and benefits upon a Change in Control of the Company.
The retention agreements also provide for specified severance benefits if, after a Change in Control of the Company occurs, the
executive officer voluntarily terminates employment for “Good Reason” or is involuntarily terminated without “Cause.”
Under
the retention agreements, a “Change in Control” means (i) one party alone, or acting with others, has acquired or
gained control over more than 50% of the voting shares of the Company; (ii) the Company merges or consolidates with or into another
entity or completes any other corporate reorganization, if more than 50% of the combined voting power of the surviving entity’s
securities outstanding immediately after such merger, consolidation or other reorganization is owned by persons who were not stockholders
of the Company immediately prior to such merger, consolidation or other reorganization; (iii) a majority of the Company’s
Board of Directors is replaced and/or dismissed by the stockholders of the Company without the recommendation of or nomination
by the Company’s current Board of Directors; (iv) the Company’s Chief Executive Officer (the “CEO”) is
replaced and/or dismissed by stockholders without the approval of the Company’s Board of Directors; or (v) the Company sells,
transfers or otherwise disposes of all or substantially all of the consolidated assets of the Company and the Company does not
own stock in the purchaser or purchasers having more than 50% of the voting power of the entity owning all or substantially all
of the consolidated assets of the Company after such purchase.
“Good
Reason” means either (i) a material adverse change in the executive’s status as an executive or other key employee
of the Company, including without limitation, a material adverse change in the executive’s position, authority, or aggregate
duties or responsibilities; (ii) any adverse change in the executive’s base salary, target bonus or benefits; or (iii) a
request by the Company to materially change the executive’s geographic work location.
“Cause”
means (i) the executive has acted in bad faith and to the detriment of the Company; (ii) the executive has refused or failed to
act in accordance with any specific lawful and material direction or order of his or her supervisor; (iii) the executive has exhibited,
in regard to employment, unfitness or unavailability for service, misconduct, dishonesty, habitual neglect, incompetence, or has
committed an act of embezzlement, fraud or theft with respect to the property of the Company; (iv) the executive has abused alcohol
or drugs on the job or in a manner that affects the executive’s job performance; and/or (v) the executive has been found
guilty of or has plead
nolo contendere
to the commission of a crime involving dishonesty, breach of trust, or physical
or emotional harm to any person. Prior to termination for Cause, the Company shall give the executive written notice of the reason
for such potential termination and provide the executive a 30-day period to cure such conduct or act or omission alleged to provide
grounds for such termination.
If
any Change in Control occurs and the executive continues to be employed as of the completion of such Change in Control, upon completion
of such Change in Control, as payment for the executive’s additional efforts during such Change in Control, the Company
shall pay the executive a Change in Control benefit payment equal to three months of the his base salary at the rate in effect
immediately prior to the Change in Control completion date, payable in a lump sum net of required tax withholdings. If any Change
in Control occurs, and if, during the one-year period following the Change in Control, the Company terminates the executive’s
employment without Cause or the executive submits a resignation for Good Reason (the effective date of such termination or resignation,
the “Termination Date”), then:
(a)
The Company shall pay the executive severance pay equal to 12 months of his base salary at the higher of the rate in effect immediately
prior to the Termination Date or the rate in effect immediately prior to the occurrence of the event or events constituting Good
Reason, payable on the Termination Date in a lump sum net of required tax withholdings, plus all other amounts then payable by
the Company to the executive less any amounts then due and owing from the executive to the Company;
(b)
The Company shall provide continuation of the executive’s health benefits at the Company’s expense for 18 months following
the Termination Date; and
(c)
The executive’s outstanding employee stock options shall fully vest and be exercisable for a 90-day period following the
Termination Date.
The
executive is not entitled to the above severance benefits for a termination based on death or disability, resignation without
Good Reason or termination for Cause. Following the Termination Date, the Company shall also pay the executive all reimbursements
for expenses in accordance with the Company’s policies, within ten days of submission of appropriate evidence thereof by
the executive.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth, as of March 27, 2019, the number and percentage of outstanding shares of common stock beneficially
owned by each person known by us to beneficially own more than five percent of such stock. We have no other class of capital stock
outstanding.
Security
Ownership of Certain Beneficial Owners
The
following table sets forth information regarding ownership of our common stock by:
|
●
|
each
person or group of affiliated persons known by us to be the beneficial owner of more than 5% of our outstanding common stock;
|
|
●
|
each
of our directors and nominees for director;
|
|
●
|
each
of our named executive officers; and
|
|
●
|
all
directors and executive officers as a group.
|
The
amounts our named executive officers and directors as a group and our significant stockholders are as of March 27, 2019, the Record
Date, unless otherwise indicated in a footnote below. Beneficial ownership in this table is determined in accordance with the
rules of the SEC, and does not necessarily indicate beneficial ownership for any other purpose. Under these rules, the number
of shares of common stock deemed outstanding includes all shares of restricted stock and those shares issuable upon exercise of
options held by the respective person or group that may be exercised within 60 days after March 27, 2019. For purposes of calculating
each person’s or group’s percentage ownership, unvested stock options exercisable within 60 days and all shares of
restricted stock are included for that person or group, but not for any other person or group. Percentage of beneficial ownership
is based on the shares of common stock outstanding as of March 27, 2019.
Name
and address of beneficial owner
|
|
Amount
and
nature of beneficial
|
|
|
Percent
of
class
|
|
5%
Stockholders (excluding executive officers and directors):
|
|
|
|
|
|
|
None (1)(2)(3)(4)
|
|
|
|
|
|
|
|
(1)
Based solely on a review of Schedule 13G/A filed on February 1, 2019 by Hudson Bay Master Fund, Ltd. and a Schedule 13G/A
filed on February 12, 2016 by CVI Investments, Inc. and a Schedule 13G/A filed on January 18, 2018 by Empery Asset Management,
LP.
|
|
|
|
(2)
Hudson Bay Master Fund, Ltd. owns warrants exercisable to purchase a total of 439,883 shares of common stock at a price of
$13.43 per share, warrants exercisable to purchase a total of 400,000 shares at a price of $5.00 per share, warrants exercisable
to purchase a total of 146,667 shares at a price of $3.36 per share and warrants exercisable to purchase a total of 110,000
shares at a price of $3.00 per share. The warrants contain provisions that limit the number of shares issuable upon their
exercise to 4.99% beneficial ownership of our common stock, or 9.99% beneficial ownership if the holder gives us written notice,
which it has not. An increase in the ownership limit to 9.9% would amount to beneficial ownership of 1,095,340 shares if the
holder exercised that portion of its warrants.
|
|
(3)
CVI Investments, Inc. owns warrants exercisable to purchase a total of 439,883 shares of common stock at a price of $13.43
per share and warrants exercisable to purchase a total of 400,000 shares at a price of $5.00 per share. The warrants contain
provisions that limit the number of shares issuable upon their exercise to 4.99% beneficial ownership of our common stock,
or 9.99% if the holder gives us written notice, which it has not. An increase of the ownership limit to 9.9% would amount
to beneficial ownership of 839,883 shares if the holder exercised all of its warrants.
|
|
|
|
(4)
Empery Asset Management, LP owns warrants exercisable to purchase a total of 660,000 shares of common stock at a price of
$3.36 per share. The warrants contain provisions that limit the number of shares issuable upon their exercise to 4.99% beneficial
ownership of our common stock, or 9.99% if the holder gives us written notice, which it has not. An increase of the ownership
limit to 9.9% would amount to beneficial ownership of 660,000 shares if the holder exercised all of its warrants.
|
The
following table sets forth, as of March 27, 2019, the number and percentage of outstanding shares of common stock beneficially
owned by each director of the Company, each named officer of the Company, and all our directors and executive officers as a group.
We have no other class of capital stock outstanding.
Security
Ownership of Executive Officers and Directors
Name
and address of beneficial owner
|
|
Amount
and nature of beneficial ownership
|
|
|
Percent
of
class
|
|
Executive
Officers & Directors: (1)
|
|
|
|
|
|
|
|
|
Stanton
E. Ross (2)
|
|
|
1,104,411
|
|
|
|
9.7
|
%
|
Leroy
C. Richie (3)
|
|
|
132,343
|
|
|
|
1.1
|
%
|
Daniel
F. Hutchins (4)
|
|
|
138,950
|
|
|
|
1.2
|
%
|
Michael
J. Caulfield (5)
|
|
|
92,855
|
|
|
|
0.8
|
%
|
Thomas
J. Heckman (6)
|
|
|
909,674
|
|
|
|
8.0
|
%
|
|
|
|
|
|
|
|
|
|
All
officers and directors as a group (five individuals)
|
|
|
2,378,233
|
|
|
|
20.8
|
%
|
(1)
|
The
address of these persons is c/o Digital Ally, Inc. 9705 Loiret Blvd, Lenexa, KS 66219.
|
(2)
|
Mr.
Ross’s total shares include: (i) 520,000 restricted shares that are subject to forfeiture to us and (ii) vested options
exercisable to purchase 37,500 shares of common stock. Mr. Ross has pledged 200,525 common shares and options exercisable
to purchase 37,500 shares of common stock at $8.00 per share to the lenders as collateral for personal loans.
|
(3)
|
Mr.
Richie’s total shares include: (i) 4,000 restricted shares of common stock that are subject to forfeiture to us, (ii)
vested options exercisable to purchase 68,125 shares of common stock, and (iii) unvested options which vest within 60 days
exercisable to purchase 25,000 shares of common stock.
|
(4)
|
Mr.
Hutchins’ total shares include: (i) 4,000 restricted shares of common stock that are subject to forfeiture to us, (ii)
vested options exercisable to purchase 80,000 shares of common stock, and (iii) unvested options which vest within 60 days
exercisable to purchase 25,000 shares of common stock.
|
(5)
|
Mr.
Caulfield’s total shares include vested options exercisable to purchase 10,000 shares of common stock.
|
(6)
|
Mr.
Heckman’s total shares include (i) 320,000 restricted shares that are subject to forfeiture to us; (ii) vested options
exercisable to purchase 22,500 shares of common stock; and (iii) 125,420 shares of common stock held in the Company’s
401(k) Plan (on December 31, 2018) as to which Mr. Heckman has voting power as trustee of the 401(k) Plan. Mr. Heckman has
pledged 143,059 common shares to financial institutions as collateral for personal loans.
|
SECTION
16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section
16(a) of the Securities Act of 1934, as amended, requires our executive officers and directors, and persons who own more than
ten percent of our common stock, to file with the Securities and Exchange Commission reports of ownership of, and transactions
in, our securities and to provide us with copies of those filings. To our knowledge, based solely on our review of the copies
of such forms received by us, or written representations from certain reporting persons, we believe that during the year ended
December 31, 2018, all filing requirements applicable to our officers, directors and greater than ten percent beneficial owners
were complied with.
TRANSACTIONS
WITH RELATED PERSONS
Certain
Relationships and Related Person Transactions
We
engaged in no reportable transactions with related persons during the years ended December 31, 2018 and 2017 other than the following:
We
entered into an agreement that required us to make monthly payments that will be applied to future commissions and/or consulting
fees to be earned by the provider. The agreement is with a limited liability company (“LLC”) that is minority owned
by a relative of our chief financial officer. Under the agreement, dated January 15, 2016 and as amended on February 13, 2017,
the LLC provides consulting services for developing a new distribution channel outside of law enforcement for our body-worn camera
and related cloud storage products to customers in the United States. We advanced amounts to the LLC as advance against commissions
ranging from $5,000 to $6,000 per month plus necessary and reasonable expenses for the period through June 30, 2017, which can
be automatically extended based on the LLC achieving minimum sales quotas. The agreement was renewed in January 2017 for a period
of three years, subject to yearly minimum sales thresholds that would allow us to terminate the contract if such minimums are
not met. As of December 31, 2018, we had advanced a total of $279,140 pursuant to this agreement and established an allowance
reserve of $104,140 for a net advance of $175,000. The minimum sales threshold has not been met and we have discontinued all advances,
although the contract has not been formally terminated. However, the exclusivity provisions of the agreement have been terminated.
OTHER
MATTERS
The
Board of Directors is not aware of any other matters to be presented for action at the annual meeting. However, if any other matter
is properly presented at the annual meeting, it is the intention of the persons named in the enclosed proxy to vote the shares
they represent as the Board of Directors may recommend.
ADVANCE
NOTICE PROVISIONS FOR STOCKHOLDER PROPOSALS AND NOMINATIONS
The
bylaws of the Company provide that in order for a stockholder to nominate directors at an annual meeting or to propose business
to be brought before an annual meeting, the stockholder must give timely, written notice to the Secretary of the Company and such
notice must be received at the principal executive offices of the Company not less than 120 days before the date of its release
of the proxy statement to stockholders in connection with its previous year’s annual meeting of stockholders.
Such
stockholder’s notice shall include, with respect to each matter that the stockholder proposes to bring before the meeting,
a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business
at the annual meeting, and with respect to each person whom the stockholder proposes to nominate for election as a director, all
information relating to such person, including such person’s written consent to being named in the proxy statement as a
nominee and to serving as a director, that is required under the Securities Exchange Act of 1934, as amended.
In
addition, the stockholder must include in such notice the name and address, as they appear on the Company’s records, of
the stockholder proposing such business or nominating such persons, and the name and address of the beneficial owner, if any,
on whose behalf the proposal or nomination is made, the class and number of shares of capital stock of the Company that are owned
beneficially and of record by such stockholder of record and by the beneficial owner, if any, on whose behalf the proposal or
nomination is made, and any material interest or relationship that such stockholder of record and/or the beneficial owner, if
any, on whose behalf the proposal or nomination is made may respectively have in such business or with such nominee. At the request
of the Board of Directors, any person nominated for election as a director shall furnish to the Secretary of the Company the information
required to be set forth in a stockholder’s notice of nomination which pertains to the nominee.
ANNUAL
REPORT
This
proxy statement is accompanied by a copy of our annual report for the fiscal year ended December 31, 2018.
BY
ORDER OF THE BOARD OF DIRECTORS
April
5, 2019
Lenexa,
Kansas
|
Chairman
of the Board, Chief Executive
Officer
and President
|
Appendix
A
AMENDMENT
TO DIGITAL ALLY, INC.
2018
STOCK OPTION AND RESTRICTED STOCK PLAN
Pursuant
to Section 12 of the Digital Ally, Inc. 2018 Stock Option and Restricted Stock Plan (the “Plan”), the Board of Directors
(the “Board”) of Digital Ally, Inc. (the “Corporation”) hereby amends the Plan, subject to the approval
of the Corporation’s stockholders. This Amendment to the Digital Ally, Inc. 2018 Stock Option and Restricted Stock Plan
(the “Amendment”) is effective as of the date of shareholder approval as provided in Section 12 hereof.
1.
PURPOSE OF THE AMENDMENT
The
Corporation wishes to amend the Plan to increase the aggregate number of Shares that may be granted under the Plan.
2.
AMENDMENT
Section
4 of the Plan is hereby amended and restated in its entirety to read as follows:
STOCK
SUBJECT TO THE PLAN.
(a)
Stock Reserve.
Subject to the provisions of Section 11 relating to adjustments upon changes in Common Stock, the shares of
Common Stock that may be issued pursuant to Awards shall not exceed in the aggregate one million seven hundred-fifty thousand
(1,750,000) shares of Common Stock.
This
Amendment amends only the provision of the Plan as noted above, and those provisions not expressly amended herein shall be considered
in full force and effect. Notwithstanding the foregoing, this Amendment shall supersede the provisions of the Plan to the extent
those provisions are inconsistent with the provisions and intent of this Amendment.
3.
APPROVAL OF STOCKHOLDERS
This
Amendment was adopted by the Board on March 15, 2019, and is subject to approval by the affirmative vote of a majority of the
shares represented and voting at a duly held meeting at which a quorum is present or by an action by written consent no later
than March 15, 2020.
4.
EXECUTION
To
record the adoption of this Amendment by the Board on March 15, 2019, the Corporation has caused an authorized officer to affix
the Corporate name hereto.
DIGITAL
ALLY, INC.
|
|
|
|
|
By:
|
/s/
STANTON E. ROSS
|
|
|
Stanton
E. Ross, Chairman, Chief Executive Officer and President
|
|
Admission
Ticket
Bring
this ticket with you for admission to the 2019 Annual Meeting
Digital
Ally, Inc.
2019
Annual Meeting of Stockholders
May
21, 2019 at 10:00 a.m. CDT
9705
Loiret Boulevard
Lenexa,
Kansas 66219
Your
vote is important
FOLD
AND DETACH HERE AND READ THE REVERSE SIDE
DIGITAL
ALLY, INC.
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
FOR
THE 2019 ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON TUESDAY, MAY 21, 2019
The
undersigned hereby appoints
Thomas J. Heckman
as the true and lawful attorney, agent and proxy of the undersigned, with
full power of substitution, to represent and to vote all shares of common stock of
Digital Ally, Inc.
held of record by
the undersigned on March 27, 2019, at the 2019 Annual Meeting of Stockholders to be held at the corporate facility located at
9705 Loiret Boulevard, Lenexa, Kansas 66219, on Tuesday, May 21, 2019 at 10:00 a.m., CDT, and at any adjournments thereof.
Any
and all proxies heretofore given are hereby revoked.
When
properly executed, this proxy will be voted as designated by the undersigned.
In
his discretion, the proxy is authorized to vote upon such other business that may properly come before the annual meeting.
(Continued
and to be dated and signed on reverse side)
2019
Annual Meeting of STOCKHOLDERS OF DIGITAL ALLY, INC.
Tuesday,
May 21, 2019
Please
date, sign and mail your proxy card in the envelope provided as soon as possible.
Please
mark your vote in blue or black ink as shown here Please detach along perforated line and mail in the envelope provided.
The
Board of Directors recommends that you vote as follows: “FOR” the election of the four nominees to the Board of
Directors; “FOR” Proposals 2, 3, 4 and 5.
|
Proposal
1
:
Election of Directors of the Company
|
|
|
|
|
|
NOMINEES:
|
|
|
[ ]
FOR ALL NOMINEES
|
|
|
|
|
|
[ ]
Stanton E. Ross
|
[ ]
Daniel F. Hutchins
|
|
[ ]
Leroy C. Richie
|
[ ]
Michael J. Caulfield
|
|
|
|
|
[ ]
WITHHOLD AUTHORITY FOR ALL NOMINEES
|
[ ]
FOR ALL EXCEPT ________________
|
|
(See
instructions below)
|
|
|
INSTRUCTIONS:
To withhold authority to vote for any individual nominee(s), mark
“FOR ALL EXCEPT”
and fill in the
circle next to each nominee you wish to withhold, as shown here: [ ]
|
To
change the address on your account, please check the box at right and indicate your new address in the address space above.
Please note that changes to the registered name(s) on the account may not be submitted via this method. [ ]
|
|
Proposal
2.
FOR the approval of the amendment to the 2018 Digital Ally, Inc. Stock Option and Restricted Stock Plan:
|
|
|
|
|
|
|
|
|
FOR
|
|
AGAINST
|
|
ABSTAIN
|
|
|
|
|
|
|
|
|
|
[ ]
|
|
[ ]
|
|
[ ]
|
Proposal
3.
FOR the approval of an amendment to our Articles of Incorporation to increase the number of authorized shares of our
capital stock by 10,000,000 and classify such shares as blank check preferred stock:
|
|
|
|
|
|
|
|
|
FOR
|
|
AGAINST
|
|
ABSTAIN
|
|
|
|
|
|
|
|
|
|
[ ]
|
|
[ ]
|
|
[ ]
|
Proposal
4.
FOR the approval, on an advisory, non-binding basis, of the compensation of the Company’s
named executive officers, as disclosed pursuant to Item 402 of Regulation S-K, including the compensation tables and narrative
discussion in the accompanying proxy statement.
|
|
|
|
|
|
|
|
|
FOR
|
|
AGAINST
|
|
ABSTAIN
|
|
|
|
|
|
|
|
|
|
[ ]
|
|
[ ]
|
|
[ ]
|
Proposal
5.
FOR ratification of the appointment of RSM US LLP as our independent registered public accounting firm:
|
|
|
|
|
|
|
|
|
FOR
|
|
AGAINST
|
|
ABSTAIN
|
|
|
|
|
|
|
|
|
|
[ ]
|
|
[ ]
|
|
[ ]
|
In
his discretion, the proxy is authorized to vote upon such other business that may properly come before the 2019 Annual Meeting.
|
|
|
|
|
|
|
Signature
of Stockholder
|
|
Date
|
|
Signature
of Stockholder
|
|
Date
|
NOTE:
|
Please
sign exactly as name appears below. When shares are held by joint tenants, both should sign. When signing as attorney, as
executor, administrator, trustee or guardian, please give full title as such. If a corporation, please sign in full corporate
name by President or other authorized officer. If a partnership, please sign in partnership name by authorized person.
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