UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
Proxy
Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934
Filed
by the Registrant /x/
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Filed
by a Party other than the Registrant / /
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Check
the appropriate box:
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Preliminary
Proxy Statement
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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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Soliciting
Material Pursuant to §Section 240.14a-11(c) or Section §240.14a-12
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SOCKET
MOBILE, INC.
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(Name
of Registrant as Specified in its Charter)
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of Filing Fee (Check the appropriate box):
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/x/
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fee required.
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
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number of securities to which transaction applies:
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and state how it was determined):
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Identify the previous filing by registration statement number, or the Form
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Date Filed:
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SOCKET
MOBILE, INC.
NOTICE
OF 2019 ANNUAL MEETING OF STOCKHOLDERS
To
Be Held May 22, 2019
Dear
Stockholders:
You
are cordially invited to attend the Annual Meeting of Stockholders of Socket Mobile, Inc., a Delaware corporation (the "Company"),
to be held Wednesday, May 22, 2019 at 10:30 a.m., local time, at the Company's headquarters at 39700 Eureka Drive, Newark, California
94560 for the following purposes:
(1) To
elect seven directors to serve until their respective successors are elected;
(2) Advisory
vote on executive compensation policies and practices as described in the annual meeting proxy (“Say on Pay”).
(3) Advisory
vote on frequency of future votes on executive compensation policies and practices (“Say When on Pay”).
(4)
To approve an amendment to the 2004 Equity Incentive Plan to provide for a one-time stock option exchange program.
(5)
To ratify the appointment of Sadler, Gibb & Associates, LLC as independent registered public accountants of the Company for
the fiscal year ending December 31, 2019.
(6) To
transact such other business as may properly come before the meeting or any adjournment thereof.
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 25, 2019 are entitled to notice of and to vote at the meeting. All stockholders are cordially
invited to attend the meeting in person. However, to ensure your representation at the meeting, you are urged to mark, sign, date,
and return the enclosed Proxy as promptly as possible following the instructions on your proxy ballot. Any stockholder attending
the meeting may vote in person even if he or she has returned a Proxy.
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Sincerely,
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Newark,
California
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Kevin
J. Mills
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March 28, 2019
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President
and Chief Executive Officer
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YOUR
VOTE IS IMPORTANT.
IN
ORDER TO ENSURE YOUR REPRESENTATION AT THE ANNUAL MEETING,
YOU ARE REQUESTED TO COMPLETE, SIGN AND DATE THE ENCLOSED PROXY
AS PROMPTLY AS POSSIBLE AND RETURN IT IN THE ENCLOSED ENVELOPE, OR VOTE BY PHONE OR BY INTERNET
WHERE AVAILABLE.
SOCKET
MOBILE, INC.
PROXY
STATEMENT FOR
2019
ANNUAL MEETING OF STOCKHOLDERS
INFORMATION
CONCERNING SOLICITATION AND VOTING
GENERAL
The
enclosed proxy is solicited on behalf of the Board of Directors of Socket Mobile, Inc. (the "Company"), for use at the
2019 Annual Meeting of Stockholders to be held Wednesday May 22, 2019 at 10:30 a.m., local time, or at any adjournment thereof,
for the purposes set forth herein and in the accompanying Notice of 2019 Annual Meeting of Stockholders. The 2019 Annual Meeting
will be held at the Company's headquarters at 39700 Eureka Drive, Newark, California 94560. The Company's telephone number at
that location is (510) 933-3000.
Notice
of the availability of these proxy solicitation materials and our Annual Report on Form 10-K for the year ended December 31, 2018,
including financial statements, will be first mailed on or about April 5, 2019 to all stockholders entitled to vote at the 2019
Annual Meeting.
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS
The
proxy materials are available at http://www.socketmobile.com/about-us/investor-relations/stockholder-meeting-information
.
Stockholders may access the Notice of Annual Meeting and Proxy Statement, Annual Report on Form 10-K and Proxy Card at this site
to read, download the documents, and/or request a printed copy. Printed copies may also be requested by telephone at
800-856-9390
.
Printed copies will be mailed within 3 business days of receipt of the request.
RECORD
DATE AND PRINCIPAL SHARE OWNERSHIP
Holders
of record of our Common Stock at the close of business on March 25, 2019 (the "Record Date") are entitled to notice
of and to vote at the 2019 Annual Meeting. At the Record Date, 5,999,159 shares of Common Stock were issued and outstanding. Each
share of Common Stock is entitled to one vote. The Company has no other class of voting securities outstanding and entitled to
be voted at the meeting.
The
only persons known by the Company to beneficially own more than five percent of the Company's Common Stock as of the Record Date
were Charlie Bass, the Chairman of the Company’s Board of Directors and Manatuck Hill Partners, LLC. Please see "Security
Ownership of Certain Beneficial Owners and Management" for more information on these holdings.
REVOCABILITY
OF PROXIES
Any
proxy given pursuant to this solicitation may be revoked by the person giving it at any time before its use by delivering to the
Secretary of the Company a written notice of revocation or a duly executed proxy bearing a later date or by attending the 2019
Annual Meeting and voting in person. If voting in person, confirmation of revocation or non-submission of your proxy should be
obtained prior to the meeting from the organization where the proxy was originally filed.
VOTING
AND SOLICITATION
Generally
each stockholder is entitled to one vote for each share of Common Stock held on all matters to be voted on by the stockholders.
If, however, any stockholder at the 2019 Annual Meeting gives notice of his or her intention to cumulate votes with respect to
the election of directors (Proposal One), then each stockholder may cumulate such stockholder's votes for the election of directors
and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of shares of
Common Stock that such stockholder is entitled to vote, or may distribute such stockholder's votes on the same principle among
as many candidates as the stockholder may select, provided that votes cannot be cast for more than seven candidates. However,
no stockholder shall be entitled to cumulate votes for a candidate unless the candidate's name has been placed in nomination prior
to the voting and the stockholder, or any other stockholder, has given notice at the meeting, prior to the voting, of the intention
to cumulate votes. On all other matters, stockholders may not cumulate votes.
This
solicitation of proxies is made by the Company, and all related costs will be borne by the Company. In addition, the Company may
reimburse brokerage firms and other persons representing beneficial owners of stock for their expenses in forwarding solicitation
material to such beneficial owners. Proxies may also be solicited by the Company's directors, officers and regular employees,
without additional compensation, personally or by telephone, email or facsimile.
QUORUM;
VOTE REQUIRED; ABSTENTIONS; BROKER NON-VOTES
The
presence at the 2019 Annual Meeting, either in person or by proxy, of the holders of a majority of votes entitled to be cast with
respect to the outstanding shares of Common Stock shall constitute a quorum for the transaction of business. Shares that are voted
"FOR," "AGAINST," "WITHHOLD or “ABSTAIN” on a subject matter are treated as being present
at the meeting for purpose of establishing a quorum entitled to vote on the matter. Broker non-votes will also be counted for
the purpose of determining the presence or absence of a quorum for the transaction of business.
Proposal One.
Election
of Directors.
Directors are elected by a plurality of the votes of the shares present in person or represented by proxy at
the meeting and entitled to vote on the election of directors. You may vote “FOR” or “WITHHOLD” on each
of the nominees for election as a director. If a quorum is present at the meeting, the seven nominees receiving the highest number
of votes will be elected to the Board of Directors. As a result, any shares not voted “for” a particular nominee (whether
as a result of “withhold” votes or broker non-votes) will not be counted in such nominee’s favor and will have
no effect on the outcome of the election. Votes withheld from any nominee and broker non-votes are, however, counted for purposes
of determining the presence or absence of a quorum.
Proposal
Two
.
Executive Compensation Policies and Practices (“Say on Pay”)
. Approval of the executive compensation
policies and practices of the Company as described in this Proxy Statement requires the affirmative vote of a majority of the
shares present in person or by proxy at the meeting and entitled to vote thereon. The vote is a non-binding advisory vote to be
considered by management and the Board of Directors. You may vote “for,” “against” or “abstain”
on this proposal. Abstentions represent shares present and entitled to vote and thus, will have the same effect as votes “against”
this proposal.
Proposal
Three. Advisory vote to determine the frequency of future votes on executive compensation policies and practices (“Say When
on Pay”).
Approval of the frequency of future votes on executive compensation policies and practices of the Company
as described in this Proxy Statement requires the affirmative vote of a majority of the shares present in person or by proxy at
the meeting and entitled to vote thereon. The vote is a non-binding advisory vote to be considered by management and the Board
of Directors. You may vote “for,” “against” or “abstain” on this proposal. Abstentions represent
shares present and entitled to vote and thus, will have the same effect as votes “against” this proposal.
Proposal
Four. 2004 Equity Incentive Plan Amendment.
Approval of an amendment to the 2004 Equity Incentive Plan to provide for a one-time
stock option exchange program requires the affirmative vote of a majority of the Votes Cast on the matter at the 2019 Annual Meeting.
You may vote “for,” “against” or “abstain” on this proposal. Abstentions represent shares
present and entitled to vote and thus, will have the same effect as votes “against” this proposal.
Proposal
Five. Auditor Ratification
. Approval of the ratification of the appointment of Sadler, Gibb & Associates, LLC, as the
Company's independent registered public accountants for the fiscal year ending December 31, 2019, requires the affirmative vote
of a majority of the shares present in person or by proxy at the meeting and entitled to vote thereon. You may vote “for,”
“against” or “abstain” on this proposal. Abstentions represent shares present and entitled to vote and
thus, will have the same effect as votes “against” this proposal.
DEADLINE
FOR RECEIPT OF STOCKHOLDER PROPOSALS TO BE INCLUDED IN THE COMPANY'S PROXY MATERIALS
The
Company currently intends to hold its 2020 Annual Meeting of Stockholders in May 2020 and to mail proxy statements relating to
such meeting in April 2020. Proposals of stockholders of the Company that are intended to be presented by such stockholders at
the 2020 Annual Meeting must be received by the Company no later than November 15, 2019, and must otherwise be in compliance with
applicable laws and regulations, in order to be considered for inclusion in the Company's proxy statement and proxy card relating
to that meeting. In addition, stockholders must comply with the procedural requirements in the Company's bylaws. Under the Company's
bylaws, notice of any stockholder nomination to the board or proposal of business must be delivered to or mailed and received
by the Secretary of the Company not less than ninety (90) days prior to the meeting; provided, however, that in the event that
less than one-hundred (100) days notice or prior public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the close of business on the tenth day following the
day on which such notice of the date of the meeting is mailed or such public disclosure is made. To be in proper form, a stockholder's
notice to the Secretary shall set forth: (i) the name and address of the stockholder who intends to make the nominations or propose
the business and, as the case may be, of the person or persons to be nominated or of the business to be proposed; (ii) representations
that the stockholder is a holder of record of stock of the Company entitled to vote at such meeting and, as applicable, that such
stockholder intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice or
propose such business; (iii) if applicable, a description of all arrangements or understandings between the stockholder and each
nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder; (iv) such other information regarding each nominee or each matter of business to be proposed by such
stockholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had the nominee been nominated, or intended to be nominated, or the matter been proposed, or intended to be proposed
by the Board of Directors; and (v) if applicable, the consent of each nominee to serve as director of the Company if so elected.
The chairman of the meeting shall refuse to acknowledge the nomination of any person or the proposal of any business not made
in compliance with the foregoing procedure. Stockholders can obtain a copy of the Company's bylaws from the Company upon request.
The Company's bylaws are also on file with the Securities and Exchange Commission.
If
a stockholder intends to submit a proposal at the 2020 Annual Meeting but does not wish to have it included in the proxy statement
and proxy for that meeting, the stockholder must do so no later than January 24, 2020, or else the proxy holders will be allowed
to use their discretionary authority to vote against the proposal when it is raised at the 2020 Annual Meeting.
The
attached proxy card grants the persons named as proxies discretionary authority to vote on any matter raised at the 2019 Annual
Meeting that is not included in this Proxy Statement. The Company has not been notified by any stockholder of his or her intent
to present a stockholder proposal at the 2019 Annual Meeting.
PROPOSAL
ONE
ELECTION
OF DIRECTORS
The
proxy holders will vote to elect as directors the seven nominees named below, unless a proxy card is marked otherwise. The nominees
consist of six current directors and one new director. If a person other than a management nominee is nominated at the 2019 Annual
Meeting, the holders of the proxies may choose to cumulate their votes and allocate them among such nominees of management as
the proxy holders shall determine in their discretion to elect as many nominees of management as possible. The seven candidates
receiving the highest number of votes will be elected. In the event any nominee is unavailable for election, which is not currently
anticipated, the proxy holders may vote in accordance with their judgment for the election of substitute nominees designated by
the Board of Directors.
All
seven directors will be elected for one-year terms expiring at the 2020 Annual Meeting of Stockholders, subject to the election
and qualification of their successors or their earlier death, resignation or removal. The following table sets forth information
concerning the nominees for director. Information on committee assignments reflects current assignments to be reviewed at the
first meeting of the Board following election. Information on age is as of the record date of March 25, 2019.
Name
of Nominee (4)
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Age
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Position(s)
Currently Held With the Company
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Director
Since
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Charlie
Bass (1)(2)(3)
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77
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Chairman
of the Board
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1992
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Kevin
J. Mills
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58
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President,
Chief Executive Officer and Director
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2000
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David
W. Dunlap
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76
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VP
Finance & Administration, CFO, Secretary and Director
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2014
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Nelson
C. Chan (2)(3)
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57
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Director
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2016
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Brenton
Earl MacDonald (1)(2)
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52
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Director
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2016
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Bill
Parnell (1)(2)
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63
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Director
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2017
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Lynn
Zhao
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50
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VP
and Controller
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New
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____________________________
(1)
Member of the Audit Committee.
(2)
Member of the Nominating Committee.
(3)
Member of the Compensation Committee.
(4)
Committee assignments will be made at the first meeting of the Board following election.
Charlie
Bass
co-founded the Company in March 1992 and has been the Chairman of the Board of Directors from such time to the present.
Dr. Bass served as the Company's Chief Executive Officer from April 1997 to March 2000. Dr. Bass has served as the Trustee
of The Bass Trust since April 1988. Dr. Bass holds a Ph.D. in electrical engineering from the University of Hawaii.
Kevin
J. Mills
was appointed the Company's President and Chief Executive Officer and a director of the Company in March 2000. He
served as the Company's Chief Operating Officer from September 1998 to March 2000. Mr. Mills joined the Company in September
1993 as Vice President of Operations and has also served as our Vice President of Engineering. Prior to joining the Company, Mr. Mills
worked from September 1987 to August 1993 at Logitech, Inc., a computer peripherals company, serving most recently as its Director
of Operations. He holds a B.E. in Electronic Engineering with honors from the University of Limerick, Ireland.
David
W. Dunlap
has served as the Company's Vice President of Finance and Administration, Secretary and Chief Financial Officer
since February 1995 and as a director of the Company since May 2014. Mr. Dunlap previously served as Vice President of Finance
and Administration and Chief Financial Officer at several public and private companies. He is a certified public accountant (inactive)
and holds an M.B.A. and a B.A. in Business Administration from the University of California at Berkeley.
Nelson
C. Chan
has served as a director of the Company since October 2016. He served as the Chief Executive Officer of Magellan Corporation
from 2006 to 2008, a leader in the consumer, survey, GPS and OEM GPS navigation and positioning markets. From 1992 through 2006
he served in various senior management positions with SanDisk Corporation, a global leader in flash memory cards, the most recent
as Executive Vice President and General Manager, Consumer Business. From 1983 to 1992 Mr. Chan held marketing and engineering
positions at Chips and Technologies, Signetics, and Delco Electronics. Mr. Chan serves as an independent director on several public
companies, including Synaptics, a worldwide developer and supplier of custom-designed human interface solutions; Adesto Technologies,
a developer of innovative, low-power memory solutions; and Decker Brands, a global leader in designing, marketing and distributing
footwear, apparel and accessories. Mr. Chan also serves on the board of directors of several private companies. Within the past
five years, Mr. Chan previously served on the boards of Outerwall Inc. – a provider of automated retail solutions, and Affymetrix
– which developed, manufactured and sold products and services for genetic analysis to the life science research and clinical
healthcare markets. Mr. Chan holds a Bachelor of Science degree in Electrical and Computer Engineering from the University of
California, Santa Barbara and a Master’s degree in Business Administration from Santa Clara University, Santa Clara California.
Brent
MacDonald
has been a director of the Company since June 2016. In February 2018, he joined Rising Tide, a private equity fund,
as a partner. Mr. MacDonald served for over eleven years, through February 2018, with Hewlett Packard Enterprise and HP Inc. in
an array of strategic planning and business management positions that focused on business growth. His most recent assignment was
to lead the Internet of Things (IoT) marketing efforts for Hewlett Packard Enterprise (HPE) CMS division. Prior to Hewlett Packard,
Mr. MacDonald spent six years in private equity financing at Newbury Ventures where his focus was on early stage global communication
and IT companies throughout the world, and from 1997 to 2000 he worked for Alcatel-Lucent as a senior business analyst. Mr. MacDonald
is a graduate of the London School of Economics (MSc) and Carleton University (MA).
Bill
Parnell
has been a director of the Company since June 2017. Mr. Parnell was President and CEO of Datalogic ADC from January
2012 thru July 2015 and President and CEO of its predecessors: 1) Datalogic Scanning from March 2006 through December 2011 (initially
known as PSC, Inc. and later including the related operations of Datalogic) and 2) Datalogic Mobile from January 2011 thru December
2011. Datalogic is a supplier of Automatic Data Capture and Industrial Automation products for the retail, manufacturing, transportation
and logistics and healthcare industries. Mr. Parnell holds an MBA from the University of Washington and a Bachelor of Science
Degree in Physics from Utah State University.
Lynn
Zhao
is nominated to serve as a management director. She has served as the Company’s Controller since January 2015 and
was appointed Vice President and Controller in September 2017. Ms. Zhao previously served as general accounting manager from December
2000 through January 2015. Ms. Zhao holds an MBA degree from San Jose State University and a Bachelor of Science degree in chemistry
from Xiamen University in China.
BOARD
MEETINGS AND COMMITTEES
The
Board of Directors has determined that all of the nominees, except Mr. Mills, Mr. Dunlap and Ms. Zhao, satisfy the definition
of "independent director," as established by Nasdaq listing standards. The Board of Directors has an Audit Committee,
a Nominating Committee and a Compensation Committee. Each committee has adopted a written charter, all of which are available
on the Company's web site at http://www.socketmobile.com/about-us/investor-relations/corporate-governance. The Board of Directors
has also determined that each member of the Audit Committee, the Nominating Committee and the Compensation Committee satisfies
the definition of "independent director," as established by Nasdaq listing standards.
The
Board of Directors held a total of four regular meetings during fiscal 2018 and approved one action by unanimous written consent.
The independent directors met separately without management or the management directors after each of the four regular Board meetings
held during 2017. The Company strongly encourages members of the Board of Directors to attend all meetings, including meetings
of committees on which they serve. No director attended fewer than 75 percent of the meetings of the Board of Directors and the
Board committees on which he served.
The
Audit Committee consists of Messrs. Bass (Chairman), Parnell and MacDonald. The members of the Audit Committee each qualify as
"independent" under the standards established by the United States Securities and Exchange Commission for members of
audit committees. The Audit Committee also includes one member, Dr. Bass, who has been determined by the Board of Directors to
meet the qualifications of an "audit committee financial expert" in accordance with Securities and Exchange Commission
rules. Stockholders should understand that this designation is a disclosure required by the Securities and Exchange Commission
relating to Dr. Bass' experience and understanding with respect to certain accounting and auditing matters. This designation does
not impose upon Dr. Bass any duties, obligations or liabilities that are greater than are generally imposed on him as a member
of the Audit Committee, and his designation as an audit committee financial expert pursuant to this SEC requirement does not affect
the duties, obligations or liabilities of any other member of the Audit Committee or Board of Directors.
The
Audit Committee met with management and the independent accountants four times by telephone during the year ended December 31,
2018 to review quarterly and annual financial information and to discuss the results of quarterly review and annual audit procedures
performed by the independent accountants before quarterly and annual financial reports were issued. The Audit Committee is responsible
for appointing, compensating and overseeing actions taken by the Company's independent accountants, and reviews the Company's
internal financial controls and financial statements. The Audit Committee also oversees management’s assessment and management
of risks. Management and the independent accountants participated in all meetings of the Audit Committee. Portions of each Audit
Committee meeting were held between the Audit Committee members and the independent accountants without the presence of management.
The Committee reviewed the financial statements and the annual audit results, including the independent accountants’ assessment
of the Company’s internal controls and procedures, and discussed with the independent accountants the matters denoted as
required communications by Auditing Standard AS1301, Communications with Audit Committees. The meetings also included a discussion
and review of auditor independence, the pre-approval of the independent accountants’ fees for 2018, and a recommendation
to the Board of Directors to approve the issuance of the financial statements for the year ended December 31, 2018. The report
of the Audit Committee for the year ended December 31, 2018 is included in this Proxy Statement. The Audit Committee Charter
is available at http://www.socketmobile.com/about-us/investor-relations/corporate-governance on the Company’s website.
The
Nominating Committee Chairman is Dr. Bass who works with the other independent directors as a committee of the whole to consider
and recommend nominations for the Board of Directors and facilitate the self-assessment of Board performance by the independent
directors. The independent directors discussed nominations at the first regular board meeting of the year and Dr. Bass followed
up with each candidate. The role of the Nominating Committee is to determine that all nominated directors are willing and able
to serve as a director for the ensuing year and recommend their nomination. In addition, the independent directors met four times
during 2018 and once in January 2019 to date following their regular board meetings to consider matters relating to board governance,
oversight and effectiveness. For 2018, the Nominating Committee will consider nominees recommended by security holders. Such nominations
should be made in writing to the Company, attention Corporate Secretary, no later than November 15, 2019 in order to be considered
for inclusion in next year’s proxy statement. The Nominating Committee Charter is available on the Corporate Governance
section of the Company’s website at http://www.socketmobile.com/about-us/investor-relations/corporate-governance.
The
Compensation Committee chairman is Mr. Chan assisted by Dr. Bass. The Committee held three meetings during fiscal year 2018. The
Compensation Committee is responsible for determining salaries, incentives and other forms of compensation for directors and officers
of the Company, approving stock option and other incentive award grants, approving the Company's incentive compensation and benefit
plans, and providing oversight of all matters affecting compensation including overseeing management’s assessment and management
of compensation-related risks. The report of the Compensation Committee for fiscal year 2018 is included in this Proxy Statement.
The Compensation Committee Charter is available on the Corporate Governance section of the Company's website at
http://www.socketmobile.com/about-us/investor-relations/corporate-governance.
COMPENSATION
OF DIRECTORS
Regular
meetings of the Board of Directors are scheduled once per quarter. Directors who are not employees of the Company receive $6,000
per regular meeting of the Board of Directors that they attend. Outside directors are also entitled to participate in the Company's
2004 Equity Incentive Plan. Grants of options to directors are made annually as compensation for Board service, committee service
and committee and Board leadership positions, generally at the time of annual election of the Board of Directors. Additional grants
may be awarded in recognition of services beyond normal board duties. See “Director Compensation” for information
regarding stock option grants awarded in 2018.
VOTE
REQUIRED AND RECOMMENDATION OF THE BOARD
If
a quorum is present at the Annual Meeting, the seven nominees receiving the highest number of votes will be elected to the Board
of Directors.
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" ALL OF THE COMPANY'S NOMINEES FOR DIRECTORS.
PROPOSAL
TWO
APPROVAL
OF EXECUTIVE COMPENSATION POLICIES AND PRACTICES
(“SAY-ON-PAY”)
Each
year our stockholders have the opportunity to vote to approve, on a nonbinding advisory basis, the compensation of our named executive
officers as disclosed in this proxy statement. As described in “Compensation Discussion and Analysis” and elsewhere
in this proxy statement, we seek to closely align the interests of our executive officers with the interests of our stockholders
and to attract, motivate and retain our named executive officers who are critical to our success. Our Compensation Committee regularly
reviews named executive officer compensation to ensure such compensation is consistent with our goals.
The
base salaries paid to our named executive officers are compared to other similar smaller technology public companies set forth
in a regional compensation survey. Base salaries for executives are generally targeted between the median and 75
th
percentile of compensation levels for equivalent positions in smaller public technology companies operating in the Company’s
geographic region but may be set to higher or lower levels to recognize a particular executive’s role, responsibilities,
skills, experience and performance.
Variable
performance-based incentive awards for our named executive officers are intended to motivate and reward executives to meet or
exceed financial performance goals of revenue attainment and operating profitability measured both quarterly and annually based
on actual financial results for revenue and Earnings Before Interest, Taxes, Depreciation and Amortization (EBITDA), a common
measure of operating performance, compared to financial targets set at the beginning of each year.
Long
term incentive awards for our named executive officers consist of stock option grants that are granted at the fair market value
on the date of grant and vest over a period of time, typically 4 years, through the stockholder-approved 2004 Equity Incentive
Plan. The goal is to align the financial interests of the named executive officers with those of stockholders by providing significant
incentives to manage the Company from the perspective of an owner with an equity stake in the business. The Compensation Committee
determines the size of each award based on the individual’s level of responsibility, recent performance, his or her potential
for future responsibility and promotion, the number of unvested options held by the individual at the time of the new grant, and
the size of the available stock award pool.
The
advisory vote on executive compensation solicited by this proposal is not intended to address any specific item of compensation,
but rather the overall compensation of our Chief Executive Officer, our Chief Financial Officer and our three other most highly-compensated
executive officers, who are collectively referred to as our “named executive officers,” which is disclosed elsewhere
in this proxy statement. The vote is advisory, which means that it is not binding on the Board of Directors, the Compensation
Committee or the Company in any way. However, the Compensation Committee will review the outcome of the vote and take it into
consideration when considering future executive compensation policies and decisions.
We
ask our stockholders to vote “FOR” the following resolution at the 2019 Annual Meeting:
RESOLVED, that the stockholders
of Socket Mobile, Inc. approve, on an advisory basis, the compensation of the Company’s named executive officers for the
fiscal year ended December 31, 2018, as disclosed pursuant to Item 402 of Regulation S-K in the Company’s definitive proxy
statement for the 2019 Annual Meeting of Stockholders.
VOTE
REQUIRED AND RECOMMENDATION OF THE BOARD
Approval
of the executive compensation policies and practices of the Company as described in this Proxy Statement requires the affirmative
vote of a majority of the shares present in person or by proxy at the meeting and entitled to vote thereon.
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" APPROVAL OF THE FOREGOING RESOLUTION.
PROPOSAL
THREE
ADVISORY
VOTE ON THE FREQUENCY OF FUTURE SAY-ON-PAY VOTES
(“SAY-WHEN-ON-PAY”)
Stockholders
may indicate whether they would prefer that we conduct future say-on-pay votes once every one, two, or three years. Stockholders
may also abstain from casting a vote on this proposal.
The
Board of Directors has determined that an annual advisory vote on executive compensation will permit our stockholders to provide
direct input on the Company’s executive compensation philosophy, policies and practices as disclosed in the Company’s
proxy statement, which is consistent with our efforts to engage in an ongoing dialogue with our stockholders on executive compensation
and corporate governance matters.
VOTE
REQUIRED AND RECOMMENDATION OF THE BOARD
The
proxy card provides stockholders with the opportunity to choose among four options: holding the vote every one; two; or three
years; or abstain from voting. Therefore, the shareholders will not be voting to approve or disapprove the recommendation of the
Board of Directors.
The
vote is advisory, which means that the vote on executive compensation is not binding on the Company, our Board of Directors, or
the Compensation Committee of the Board of Directors. The Board of Directors and the Compensation Committee will take into account
the outcome of the vote; however, when considering the frequency of future say-on-pay votes, the Board of Directors may decide
that it is in the best interests of our stockholders and the Company to hold future say-on-pay vote more or less frequently than
the frequency receiving the most votes cast by our stockholders.
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THE OPTION OF AN ANNUAL VOTE AS THE PREFERRED
FREQUENCY FOR FUTURE SAY-ON-PAY VOTES.
PROPOSAL
FOUR
APPROVAL
OF AN AMENDMENT TO THE 2004 EQUITY INCENTIVE PLAN TO ALLOW STOCK OPTION EXCHANGE PROGRAM
Introduction
On
March 20, 2019 our Board of Directors determined that it is in the best interests of the Company and its stockholders to obtain
authority from our stockholders to undertake a one-time stock option exchange program so that we can continue to achieve the Company’s
equity compensation goals. Options eligible for the exchange program consist of outstanding options granted under our 2004 Equity
Incentive Plan (the “2004 Incentive Plan”) on (x) April 29, 2010, (y) June 1, 2010 or (z) July 1, 2010 (collectively,
the “eligible options”). Such an exchange program will necessitate an amendment to the 2004 Incentive Plan.
EXCHANGE
PROGRAM
If
this proposal is approved by the stockholders, we intend to offer the exchange program to all employees, executive officers, directors
and consultants of the Company based in U.S. locations who are employed by, or providing services to, us throughout the duration
of the exchange program (the employees, executive officers, directors and consultants eligible for the exchange are referred to
herein as “eligible participants” or “service providers”) and who hold eligible options.
Our
Board of Directors may commence the exchange program within 120 days of the date this proposal is approved by the stockholders.
Within this timeframe, the actual start date will be determined at the discretion of the Board. Even if stockholders approve the
proposal, however, the Board may later determine not to implement the exchange program. If the exchange program does not commence
within 120 days of stockholder approval, the Company will consider any exchange program commenced thereafter to be a new one,
requiring new stockholder approval under the 2004 Incentive Plan.
CHANGES
BEING MADE TO THE 2004 INCENTIVE PLAN
The
amendment to the 2004 Incentive Plan permits the Company to commence a one-time stock option exchange to allow our eligible employees,
executive officers, directors and consultants to surrender certain outstanding stock options that are approaching the expiration
of their maximum 10-year term and which also currently are “underwater” (meaning the exercise prices of such options
are greater than our current stock price) in exchange for new options to purchase the same number of shares of our Common Stock
granted under the 2004 Incentive Plan, but with a new 10-year term, a new, 4-year vesting schedule, a per share exercise price
equal to the fair market value of our Common Stock on the new date of grant and which, once vested, would remain exercisable for
the full term of the option unless terminated earlier under the dissolution, liquidation or change in control provisions of the
2004 Incentive Plan. Our Board of Directors believes that this program will be beneficial to stockholders by minimizing the risk
of unnatural fluctuations in our stock price from the high volume trading that could result if these eligible option holders rush
to exercise before the option expiration dates and then sell some or all of the purchased shares in the market in a short window.
In addition, our Board of Directors believes that this program will enhance long term stockholder value by restoring meaningful
retention and incentive benefits associated with these awards.
Reasons
for implementing an exchange program
Equity
awards have been, and continue to be, a key part of our incentive compensation and retention programs and are designed to motivate
and reward our service providers’ efforts. We believe that to develop and market competitive products, we need to maintain
competitive compensation and incentive programs.
The
eligible options, which are held by long-term, valued employees, are nearing the end of their term As of March 25, 2019, these
options currently are “underwater.” The closing price of a share of our common stock on March 25, 2019 was $1.96.
The per share exercise prices of the eligible options range from $2.74 to $3.16.
Importantly,
if optionees otherwise want to exercise before the options expire, whether because options do have value before they expire (that
is, they come back “in-the-money”) or otherwise, it raises a significant concern that the exercise of these options
and subsequent sale of even a relatively small portion of the purchased shares could cause unnatural fluctuations in our stock
price, due to the high volume of shares that likely would be sold into the market as a result.
Offering
to exchange the eligible options for new options with a new 10-year term, a new, 4-year vesting schedule and the ability to exercise
vested options through the expiration of the new term will relieve the pressure to exercise the eligible options before they expire.
In fact, due to the new, 4-year vesting schedule, the exercise of new options granted in exchange would necessarily be spread
out over at least 4 years. This would remove the pressure that a flood of exercises before a 2020 expiration could cause on our
stock price and float.
In
addition, whether the eligible options are exercised or expire by their terms, they will no longer provide the strong retention
and incentive benefits we need from our equity compensation program. Additionally, the eligible options are currently “underwater,”
which adds to our concerns regarding their impact on retention and incentives. As a result, to the extent that the eligible options
expire before benefits can be realized, or that unusually high trading activity depresses returns on the exercise of these options
and/or the sale of the shares purchased under the options, we believe there is high risk that the objectives of equity program
to retain and motivate service providers and aligning their interests with those of our stockholders will not be achieved. The
Company needs to retain and motivate its employees, and reinvigorating the retention and incentive value of these options through
this exchange program is a key step toward that.
We
believe that the proposed exchange program is in the best interests of our stockholders and our employees. We believe the exchange
program is an important component in our strategy to align the interests of our service providers and stockholders because it
will permit us to:
•
Minimizes Risk of Destabilization of Our Stock Price As a Result of High Volume Option-Related Sales.
If the eligible options
become “in-the-money” (meaning our stock price is greater than the exercise price of the options) before they expire
in 2020, then the eligible option holders likely would be put in the position of having to exercise their eligible options in
order to avoid allowing those options to expire without any benefit to them. The Company’s trading volume has historically
tended to be fairly low. The average daily trading volume in our stock over the last thirty trading days ending on March 25, 2019
was 11,731 shares. There are a total of 384,064 shares subject to outstanding and unexercised eligible options as of that same
date. As a result, if even a small portion of these options were exercised and the shares sold, it could introduce unusually high
trading volume in our stock, causing destabilization and unnatural fluctuations in our stock price. Providing new options that
are subject to a 4-year vesting schedule, a new 10-year term and the ability to exercise vested options through the expiration
of the new term effectively spreads out the exercise period for the options, ameliorating these risks. In fact, due to the new,
4-year vesting schedule, the exercise of new options granted in exchange would necessarily be spread out over at least 4 years.
Spreading out the exercise period for these options, along with reinvigorating the retention and incentive value of the options
to our employees, is the primary purpose of the exchange program.
•
Provide effective incentives for the service providers who participate in the exchange program.
By issuing eligible participants
new stock options which may have lower exercise prices and that are subject to a new vesting period, it encourages them to remain
with us and to work to increase stockholder value. Providing effective incentives to our service providers is a key purpose of
the exchange program, and we believe the exchange program will enable us to enhance long-term stockholder value by aligning the
interests of our service providers more fully with the interests of our stockholders.
•
Reduce the pressure to grant additional or alternative equity awards to achieve the goals that our equity incentive program
is intended to accomplish.
If we are unable to conduct a program in which the expiring eligible options with low incentive
values may be exchanged for new higher incentive value options, we may be compelled to grant alternative equity awards such as
additional options or restricted stock awards to our service providers at current market prices in order to provide them with
renewed incentive value. Any such additional grants would increase our overhang as well as our compensation expense. The exchange
program as proposed, on the other hand, is a one-for-one exchange that accomplishes the retention and alignment goals of our equity
incentive program without increasing the number of stock option grants outstanding.
AlternativeS
considered
In
considering how best to continue to motivate, retain and reward our service providers who have options that are underwater, we
evaluated several alternatives, including the following:
•
Allowing the Options to Expire if Not Exercised and Granting New Equity Awards at That Time
. We considered doing nothing
at this time, which would allow the eligible options to simply continue under their current terms. After the expiration of those
options, we would consider granting new stock options or other equity awards. However, this approach would leave the Company more
vulnerable to the risks enumerated above. That is, if the eligible options came back “in-the-money” before expiration,
some or all likely would be exercised, causing the potential impact on our trading volume and stock price noted above.
•
Granting Additional Equity Awards
. We also considered granting service providers additional or alternative equity awards
at current market prices. We determined, however, that granting additional stock options was not feasible. Most of the shares
that had been available for issuance under our 2004 Incentive Plan have been used for equity award grants to our employees, and
the remainder needs to be better reserved and ultimately used for retention and incentive purposes unrelated to expiring awards.
In order to comfortably obtain sufficient shares under the 2004 Incentive Plan to grant new awards while leaving the eligible
options outstanding, we would have to seek stockholder approval of a significant increase to the 2004 Incentive Plan share reserve
or implement a new equity plan. We determined that doing so at this time and for this purpose was not in the best interests of
our stockholders, as this would substantially increase our total equity award overhang, and the potential dilution to our stockholders.
Instead, under the proposed exchange offer, the eligible options are cancelled and return to the 2004 Incentive Plan to be used
for the new options granted in replacement, thus keeping our total equity award overhang and potential dilution neutral.
After
considering the relative merits of these and other alternatives, we determined that a program under which service providers could
exchange eligible options for new options to purchase the same number of shares of Common Stock was most attractive for the reasons
described above under the section titled “Reasons for Implementing an Exchange Program.”
Implementation
and mechanics of the exchange program
On
March 20, 2019, our Board of Directors determined that it is in the best interests of the Company and its stockholders to obtain
authority from our stockholders to permit the one-time stock option exchange program for outstanding options granted under the
2004 Incentive Plan on (x) April 29, 2010, (y) June 1, 2010 or (z) July 1, 2010 (collectively, the “eligible options”).
The Company has not implemented the exchange program and will not do so unless our stockholders approve this proposal. If approved
by stockholders, the exchange program must begin within 120 days of the date of stockholder approval. Within this timeframe, the
actual start date will be determined at the discretion of our Board of Directors. However, even if stockholders approve the proposal,
the Company may later determine not to implement the exchange program. If the exchange program does not commence within 120 days
of stockholder approval, the Company will consider any exchange program implemented thereafter to be a new one, requiring new
stockholder approval, with respect to options granted under the 2004 Incentive Plan.
If
our stockholders do not approve the exchange program, eligible options will remain outstanding and in effect in accordance with
their existing terms.
Upon
the commencement of the exchange program, eligible participants holding eligible options will receive a written offer that will
set forth the precise terms and timing of the exchange program. Eligible participants will be given at least 20 business days
to elect to surrender their eligible options in exchange for new option awards. Promptly following the completion of this election
period, the surrendered eligible options will be cancelled and new options will be granted in exchange (with the date of grant
of the new options referred to as the “Exchange Date”).
At
the start of the exchange program, we will file the documents setting forth the exchange offer with the SEC as part of a tender
offer statement on Schedule TO. Eligible participants, as well as stockholders and members of the public, will be able to obtain
a copy of the exchange offer and other documents filed by us with the SEC free of charge from the SEC’s website at
www.sec.gov
.
Eligible
options
Eligible
options will include all of our outstanding options granted under the 2004 Incentive Plan on (x) April 29, 2010, (y) June 1, 2010
or (z) July 1, 2010. As of March 25, 2019, options to purchase 384,064 shares of our Common Stock would be eligible
for exchange under the exchange program.
Eligible
participants
The
exchange program will be open to all employees, executive officers, directors and consultants of the Company in our U.S. locations
who are employed by, or providing services, to us at the commencement of the exchange program and who remain service providers
with us through the date the new options are granted under the exchange program, if they hold eligible options. Any service provider
holding eligible options who elects to participate in the exchange program but whose service with us terminates for any reason
prior to the grant of the new options will retain his or her eligible options subject to their existing terms but will be excluded
from participation in the exchange program.
Interests
of officers and directors in the exchange program
The
Company’s Chief Executive Officer, Chief Financial Officer, three other most highly compensated executive officers and directors,
to the extent they elect to participate in the exchange program, will receive new options to purchase the same number of shares
that would have been issued upon the full exercise of their exchanged eligible options. As of March 28, 2019, each such
executive officer and director was entitled to exchange options for the following number of shares of Common Stock:
Executive Officers/Directors
|
|
Shares Subject to Options
|
Kevin J. Mills, President, CEO & Director
|
|
|
98,700
|
|
David W. Dunlap, CFO
|
|
|
62,000
|
|
Leonard L. Ott, EVP Engineering and Chief Technical Officer
|
|
|
43,450
|
|
Lee A. Baillif, VP of Operations
|
|
|
41,200
|
|
Lynn Zhao, VP & Controller
|
|
|
14,660
|
|
Charlie Bass, Director and Chairman
|
|
|
50,250
|
|
Exchange
ratios
The
exchange program is a one-for-one exchange. Eligible participants who participate in the exchange program will receive new options
to purchase the same number of shares that would have been issued upon the full exercise of their exchanged eligible options.
The
following table summarizes information regarding the eligible options (as of March 25, 2019) that may be surrendered and the new
options that would be granted in exchange:
Date
of Grant
|
|
Exercise Price Per
Share of Eligible Options
|
|
Number of Shares Underlying
Eligible Options
|
|
Expiration Date of Eligible Options
|
|
Maximum
Number
of Shares Under New Options That May Be Granted
|
April
29, 2010
|
|
|
$
|
3.16
|
|
|
|
10,000
|
|
|
April 29, 2020
|
|
|
10,000
|
|
June
1, 2010
|
|
|
$
|
2.74
|
|
|
|
40,500
|
|
|
June 1, 2020
|
|
|
40,500
|
|
July
1, 2010
|
|
|
$
|
3.04
|
|
|
|
333,564
|
|
|
July 1, 2020
|
|
|
333,564
|
|
|
|
|
|
Total
|
|
|
|
384,064
|
|
|
|
|
|
384,064
|
|
The
exchange program is a one-for-one exchange. Under the proposed exchange offer, eligible options cancelled in the exchange program
return to the 2004 Incentive Plan, and will match the number of shares to be granted as new options granted in replacement, thus
leaving the total number of shares available for future (non-exchange program-related) issuance under the 2004 Incentive Plan
the same. As of March 25, 2019, there are options to purchase 2,459,934 shares of Common Stock and 116,050 shares of restricted
stock outstanding under the 2004 Incentive Plan, and there are 150,167 shares remaining available for future grants under the
2004 Incentive Plan. Options exchanged would have a new term of 10 years, a new 4-year vesting period from the Exchange Date(1/48
th
of the shares subject to each new option would be scheduled to vest monthly, subject to continued service with us), an exercise
price equal to the closing market price of the Company’s Common Stock on the Exchange Date and which, once vested, would
remain exercisable for the full term of the option unless terminated earlier under the dissolution, liquidation or change in control
provisions of the 2004 Incentive Plan.
Participation
in the exchange program
Eligible
participants will not be required to participate in the exchange program. Participation in the exchange program is voluntary.
Eligible participants will have an election period of at least 20 business days from the start of the exchange program during
which to determine whether they wish to participate.
Eligible
participants may decide whether to participate in the exchange program on a grant-by-grant basis. This means that participants
may elect to tender any or all of their eligible option grants. Eligible participants will not, however, be permitted to tender
only a portion of an option.
Since
the decision whether to participate in the exchange program is voluntary, we are not able to predict which or how many service
providers will elect to participate, how many eligible options will be surrendered for exchange, and therefore how many new options
may be issued. As of March 25, 2019, 20 employees, executive officers, directors and consultants were eligible to participate
in the exchange program.
Vesting
of new options
The
new options granted in the exchange program will be unvested as of their grant date and will have a new vesting schedule. Unless
our Board of Directors adopts another vesting schedule prior to the date eligible options are exchanged for new options, the each
new option grant would be scheduled to vest as to 1/48
th
of the total number of shares subject to the option each month
following the date of grant, so that the option is fully vested 4 years from the date of grant, subject to the eligible participant’s
continued service with us through each relevant vesting date. This is the vesting schedule the Company typically applies to its
annual refresh stock option grants.
Terms
and conditions of the new options
New
options issued in the exchange program will be granted under our 2004 Incentive Plan and will be subject to an option agreement
between the Company and the option recipient. The per share exercise price of the new options will be equal to the closing sales
price of our Common Stock as quoted on the Nasdaq Capital Market on the date of grant; this price may be higher, lower or the
same as the per share exercise price of the eligible options they replace. Each option represents the right to purchase shares
of our Common Stock during a prescribed period of time and as the option vests. Stock options granted pursuant to the exchange
program for employees will be granted as incentive stock options for tax purposes to the maximum extent permitted by law. Stock
options granted pursuant to the exchange program for directors and consultants will be granted as nonstatutory stock options for
tax purposes. All new options issued in exchange will have a term of 10 years from the date of grant. Once vested, the new options
will remain exercisable for the full 10-year term of the option unless terminated earlier under the dissolution, liquidation or
change in control provisions of the 2004 Incentive Plan, which is consistent with the typical provisions of Company stock options
held by employees who have remained with the Company for at least 10 years. Other than the exercise price, vesting schedule and
ability to exercise vested options for the full option term, the other terms and conditions of the new options issued in the exchange
program will be substantially the same as those that applied previously to the eligible options that are exchanged in the program
(the “exchanged options”).
Surrendered
stock options
The
shares subject to exchanged options granted under the 2004 Incentive Plan will return to the 2004 Incentive Plan pool, where they
would be eligible for future awards under the 2004 Incentive Plan.
Eligible
options that are not surrendered will not be affected and will remain outstanding according to their original terms.
Potential
modifications to the terms of the exchange program
While
the terms of the exchange program are expected to be materially similar to the terms described in this proposal, we may find it
necessary or appropriate to change its terms to take into account, among other things, our administrative needs, legal requirements,
accounting rules, and Company policy decisions that make it appropriate to change the exchange program. It is also possible that
certain terms of the exchange program may need to be modified for tax, accounting or administrative reasons.
Additionally,
we may decide not to implement the exchange program even if stockholder approval is obtained or we may amend or terminate the
exchange program once it is in progress. Although we do not anticipate that the staff of the SEC will require us to materially
modify the terms of the exchange program, it is also possible that we may need to alter the terms of the exchange program to comply
with comments from the staff. The final terms of the exchange program will be described in an exchange offer document that will
be filed with the SEC.
U.S.
Federal income tax consequences
The
following is a summary of the anticipated material U.S. federal income tax consequences of participating in the exchange program.
A more detailed summary of the applicable tax considerations to participants will be provided in the exchange program documents.
The law and regulations themselves are subject to change, and the Internal Revenue Service is not precluded from adopting a contrary
position. The exchange of eligible options for new options should be treated as a non-taxable exchange, and neither we nor any
of our service providers should recognize any income for U.S. federal income tax purposes upon the surrender of eligible options
and the grant of new options. The foregoing is only a summary of the tax effect of U.S. federal income taxation upon participants
of the exchange program and the Company with respect to the surrender of eligible options and grant of new options under the exchange
program. It does not purport to be complete, and does not discuss the tax consequences of a service provider’s death or
the provisions of the income tax laws of any municipality or state in which the service provider may reside.
Accounting
treatment of new equity awards
On
January 1, 2006, we adopted the provisions of Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC)
Topic 718, Stock Compensation (formerly FASB Statement 123R), on accounting for share-based payments. Under ASC Topic 718, we
expect to recognize incremental compensation expense resulting from the new options granted in the exchange program. The incremental
compensation expenses will be measured as the excess, if any, of the fair value of the new options granted to participants in
exchange for surrendered eligible options, measured as of the date the new options are granted, over the fair value of the options
surrendered in exchange for the new awards, measured immediately prior to the exchange.
In
the event that any of the new options are forfeited prior to their vesting due to termination of employment or service, the compensation
expense for the forfeited options will not be recognized. With respect to participants who terminate after satisfying the new
vesting schedule of their new options, the compensation expense that the Company will recognize for their forfeited options is
limited to the incremental expense (if any) associated with the new option and not the expense of the option surrendered in the
exchange program.
Effect
on the Company’s stockholders
We
are unable to predict the precise impact of the exchange program on our stockholders because we are unable to predict how many
or which eligible participants will exchange their eligible options. Nonetheless, the exchange program is generally intended to
ameliorate the potential effect on our the trading volume and share price of our stock that could result from the high volume
of shares that could be sold into the market in connection with the exercise of eligible options before their expiration in 2020.
The exchange program also is intended to restore competitive and appropriate equity incentives for our service providers and recapture
value for compensation expense already being incurred.
Summary
of the 2004 Equity Incentive Plan
The
following is a summary of the principal features of the 2004 Incentive Plan and its operation. The summary is qualified in its
entirety by reference to the 2004 Incentive Plan, a copy of which is set forth in Appendix A. The 2004 Incentive Plan also is
available in its entirety in the proxy materials located at the Stockholder Meeting Info page on the Company’s website at
htt
p://www.socketmobile.com/2019-proxy-materials
.
The
2004 Incentive Plan provides for the grant of the following types of incentive awards: (i) stock options, (ii) restricted
stock, (iii) stock appreciation rights and (iv) performance units and performance shares. Each of these is referred to individually
as an “Award.” As of March 15, 2019, approximately 58 of our employees, executive officers, directors and consultants
are eligible to participate in the 2004 Incentive Plan, plus 11 former service providers with outstanding awards that may be exercised
in accordance with their terms, but who are not eligible for future awards under the 2004 Incentive Plan at this time.
Number
of Shares of Common Stock Available Under the 2004 Incentive Plan
. The maximum aggregate number of shares that may be awarded
and sold under the 2004 Incentive Plan is equal to the sum of (i) the 599,774 that became available under the 2004 Incentive Plan
from (x) shares which were reserved but not issued under the Company’s 1995 Stock Plan, as amended and restated (the “1995
Plan”) as of the date of stockholder approval of the 2004 Incentive Plan, and (y) shares that returned to the 1995 Plan
as a result of termination of options or repurchase of shares issued under the 1995 Plan after the approval of the 2004 Incentive
Plan, and (ii) an annual increase to be added on the first day of the Company’s fiscal year beginning in 2005, equal to
the
least
of (A) 400,000 shares, (B) 4% of the outstanding shares on such date or (C) a lesser amount determined
by the Board of Directors. As of March 25, 2019, 2,575,984 shares have been granted as options plus 116,050 shares granted as
restricted stock grants for a total of 2,692,034 shares outstanding under the 2004 Incentive Plan and 150,167 shares that remain
available for future Award grants under the 2004 Incentive Plan.
If
an Award expires or becomes unexercisable without having been exercised in full (including, for the avoidance of doubt, any shares
that are surrendered pursuant to the contemplated exchange program or any other exchange program), the unpurchased shares which
were subject thereto will become available for future grant or sale under the 2004 Incentive Plan (unless the 2004 Incentive Plan
itself has terminated); provided, however, that shares that have actually been issued under the 2004 Incentive Plan, whether or
not upon exercise of an Award, will not be returned to the 2004 Incentive Plan and will not become available for future distribution
under the 2004 Incentive Plan, except that if unvested shares are forfeited or repurchased by the Company, such shares will become
available for future grant under the 2004 Incentive Plan.
In
the event of any dividend or other distribution (whether in the form of cash, shares, other securities, or other property), recapitalization,
stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange
of shares or other securities of the Company, or other change in the corporate structure affecting the Company’s Common
Stock occurs, the Administrator (as defined below), in order to prevent diminution or enlargement of the benefits or potential
benefits intended to be made available under the 2004 Incentive Plan, will adjust the number and class of shares that may be delivered
under the Plan, and/or the number, class and price of shares of stock subject to outstanding awards, and the specified per-person
limits on Awards described below.
Option
Exchanges.
The 2004 Incentive Plan prohibits the implementation of a stock option exchange program without stockholder approval.
If this proposal is approved by stockholders, the 2004 Incentive Plan will be amended to permit a one-time stock option exchange
program that will allow eligible participants to surrender certain outstanding underwater stock options in exchange for new options
for the same number of shares granted under the 2004 Incentive Plan, as described above. The exchange program must begin within
120 days of the date this amendment to the 2004 Incentive Plan is approved by stockholders. Within this timeframe, the actual
start date will be determined at the discretion of our Board of Directors. If the exchange program does not commence within 120
days of stockholder approval, the Company will consider any exchange program implemented thereafter to be a new one, requiring
new stockholder approval.
Administration
of the 2004 Incen
tive Plan
. The Compensation Committee of our Board of Directors, or the Board of Directors itself (referred
to as the “Administrator”), administers the 2004 Incentive Plan. In the case of transactions, including grants to
certain officers and key employees of the Company, intended to qualify, as exempt under Rule 16b-3 of the Securities Exchange
Act of 1934, the members of the committee must qualify as “non-employee directors” under Rule 16b-3 of the Securities
Exchange Act of 1934. .
Subject
to the terms of the 2004 Incentive Plan, the Administrator has the sole discretion to select the employees, consultants, and directors
who receive Awards, to determine the terms and conditions of Awards, to modify or amend each Award (subject to the restrictions
of the 2004 Incentive Plan), and to interpret the provisions of the 2004 Incentive Plan and outstanding Awards.
Options
.
The Administrator is able to grant nonstatutory stock options and incentive stock options under the 2004 Incentive Plan. Only
employees may receive incentive stock options. The Administrator determines the number of shares subject to each option, although
the 2004 Incentive Plan provides that a participant may not receive options and/or stock appreciation rights for more than 750,000
shares in any fiscal year, except in connection with his or her initial employment with the Company, in which case he or she may
be granted an option and/or stock appreciation right covering up to an additional 1,250,000 shares.
The
Administrator determines the exercise price of options granted under the 2004 Incentive Plan, provided the exercise price must
be at least equal to the fair market value of our Common Stock on the date of grant. In addition, the exercise price of an incentive
stock option granted to any participant who owns more than 10% of the total voting power of all classes of our outstanding stock
must be at least 110% of the fair market value of the common stock on the grant date.
The
term of each option will be stated in the Award agreement. The term of an incentive stock option may not exceed ten years, except
that, with respect to any participant who owns 10% of the voting power of all classes of the Company’s outstanding capital
stock, the term of an incentive stock option may not exceed five years.
After
a termination of service with the Company, a participant will be able to exercise the vested portion of his or her option for
the period of time stated in the Award agreement. If no such period of time is stated in the participant’s Award agreement,
the participant will generally be able to exercise his or her option for (i) three months following his or her termination for
reasons other than death or disability, and (ii) twelve months following his or her termination due to death or disability.
Restricted
Stock
. Awards of restricted stock are rights to acquire or purchase shares of our Common Stock, which vest in accordance with
the terms and conditions established by the Administrator in its sole discretion. For example, the Administrator may set restrictions
based on the achievement of specific performance goals. The Administrator, in its discretion, may accelerate the time at which
any restrictions will lapse or be removed. The Award agreement generally will grant the Company a right to repurchase or reacquire
the shares upon the termination of the participant’s service with the Company for any reason (including death or disability).
The Administrator will determine the number of shares granted pursuant to an Award of restricted stock, but no participant will
be granted a right to purchase or acquire more than 250,000 shares of restricted stock during any fiscal year, except that a participant
may be granted up to an additional 500,000 shares of restricted stock in connection with his or her initial employment with the
Company. No restricted stock awards have been made.
Stock
Appreciation Rights
. The Administrator is able to grant stock appreciation rights, which are rights to receive the appreciation
in fair market value of Common Stock between the exercise date and the date of grant. The Company can pay the appreciation in
either cash, shares of Common Stock, or a combination thereof. The Administrator, subject to the terms of the 2004 Incentive Plan,
has complete discretion to determine the terms and conditions of stock appreciation rights granted under the 2004 Incentive Plan,
provided, however, that the exercise price may not be less than 100% of the fair market value of a share on the date of grant,
except that the exercise price of a tandem or affiliated stock appreciation right will equal the exercise price of the related
option. No participant will be granted stock appreciation rights and/or options covering more than 750,000 shares during any fiscal
year, except that a participant may be granted stock appreciation rights and/or options covering up to an additional 1,250,000
shares in connection with his or her initial employment with the Company.
After
termination of service with the Company, a participant will be able to exercise the vested portion of his or her stock appreciation
right for the period of time stated in the Award agreement. If no such period of time is stated in a participant’s Award
agreement, a participant will generally be able to exercise his or her vested stock appreciation rights for the same period of
time as applies to stock options. No stock appreciation rights awards have been made.
Performance
Units and Performance Shares
. The Administrator is able to grant performance units and performance shares, which are Awards
that will result in a payment to a participant only if the performance goals or other vesting criteria the Administrator may establish
are achieved or the Awards otherwise vest. Earned performance units and performance shares will be paid, in the sole discretion
of the Administrator, in the form of cash, shares, or in a combination thereof. The Administrator will establish performance or
other vesting criteria in its discretion, which, depending on the extent to which they are met, will determine the number and/or
the value of performance units and performance shares to be paid out to participants. The performance units and performance shares
will vest at a rate determined by the Administrator; provided, however, that after the grant of a performance unit or performance
share, the Administrator, in its sole discretion, may reduce or waive any performance objectives or other vesting provisions for
such performance unit or performance share. During any fiscal year, no participant will receive more than 250,000 performance
shares and no participant will receive performance units having an initial value greater than $1,000,000, except that a participant
may be granted performance shares covering up to an additional 500,000 shares in connection with his or her initial employment
with the Company. Performance units will have an initial value established by the Administrator on or before the date of grant.
Performance shares will have an initial value equal to the fair market value of a share of our Common Stock on the grant date.
No awards of performance units or performance shares have been made.
Performance
Objectives
. Awards and other incentives granted under the 2004 Incentive Plan may be made subject to the attainment of performance
objectives or other vesting provisions (including, without limitation, continued status as a Service Provider) in its discretion.
This includes but is not limited to performance goals relating to one or more business criteria that provide for a targeted level
or levels of achievement with respect to such criteria, including: cash position, earnings per share, net income, operating cash
flow, operating income, return on assets, return on equity, return on sales, revenue, and total shareholder return. The performance
goals may differ from participant to participant and from Award to Award. No performance goal Awards have been made.
Transferability
of Awards
. Awards granted under the 2004 Incentive Plan are generally not transferable, and all rights with respect to an
Award granted to a participant generally will be available during a participant’s lifetime only to the participant.
Change
in Control
. In the event of a change in control of the Company, each outstanding Award will be assumed or an equivalent option
or right substituted by the successor corporation or a parent or subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the Award, the participant will fully vest in and have the right to
exercise all of his or her outstanding options or stock appreciation rights, including shares as to which such Awards would not
otherwise be vested or exercisable, all restrictions on restricted stock will lapse, and, with respect to performance shares and
performance units, all performance goals or other vesting criteria will be deemed achieved at target levels and all other terms
and conditions met. In addition, if an option or stock appreciation right becomes fully vested and exercisable in lieu of assumption
or substitution in the event of a change in control, the Administrator will notify the participant in writing or electronically
that the option or stock appreciation right will be fully vested and exercisable for a period of time determined by the Administrator
in its sole discretion, and the option or stock appreciation right will terminate upon the expiration of such period.
With
respect to Awards granted to non-employee directors that are assumed or substituted for, if on the date of or following such assumption
or substitution the participant’s status as a director of the Company or a director of the successor corporation, as applicable,
is terminated other than upon a voluntary resignation by the participant, then the participant will fully vest in and have the
right to exercise options and/or stock appreciation rights as to all of the shares subject thereto, including shares as to which
such Awards would not otherwise be vested or exercisable, all restrictions on restricted stock will lapse, and, with respect to
performance shares and performance units, all performance goals or other vesting criteria will be deemed achieved at target levels
and all other terms and conditions met.
Amendment
and Termination of the 2004 Incentive Plan
. The Administrator has the authority to amend, alter, suspend or terminate the
2004 Incentive Plan, except that stockholder approval is required for any amendment to the 2004 Incentive Plan to the extent required
by any applicable laws. No amendment, alteration, suspension or termination of the 2004 Incentive Plan will impair the rights
of any participant, unless mutually agreed otherwise between the participant and the Administrator, which agreement must be in
writing and signed by the participant and the Company. The 2004 Incentive Plan will terminate on April 23, 2024, unless the Board
of Directors terminates it earlier.
Federal
Tax Aspects
The
following paragraphs are a summary of the general federal income tax consequences to U.S. taxpayers and the Company of Awards
granted under the 2004 Incentive Plan. Tax consequences for any particular individual may be different.
Incentive
Stock Options
. An optionee recognizes no taxable income for regular income tax purposes as a result of the grant or exercise
of an incentive stock option qualifying under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
Optionees who dispose of their shares more than 2 years following the date the option was granted and more than 1 year following
the exercise of the option will normally recognize a capital gain or loss equal to the difference, if any, between the sale price
and the purchase price of the shares. If an optionee satisfies such holding periods upon a sale of the shares, the Company will
not be entitled to any deduction for federal income tax purposes. If an optionee disposes of shares within 2 years after the date
of grant or within 1 year after the date of exercise (a “disqualifying disposition”), the optionee will recognize
ordinary income at time of the disposition generally equal to (x) the fair market value of the shares on the determination date
(see discussion under “Nonstatutory Stock Options” below) (or the sale price, if less) minus (y) the option exercise
price. Any gain in excess of that amount will be a capital gain. If a loss is recognized on the disposition, there will be no
ordinary income, and such loss will be a capital loss. Any ordinary income recognized by the optionee upon the disqualifying disposition
of the shares generally should be deductible by the Company for federal income tax purposes, except to the extent such deduction
is limited by applicable provisions of the Code.
The
difference between the option exercise price and the fair market value of the shares on the determination date of an incentive
stock option (see discussion under “Nonstatutory Stock Options” below) is treated as an adjustment in computing the
optionee’s alternative minimum taxable income and may be subject to an alternative minimum tax that is payable if such tax
exceeds the regular tax for the year. Special rules may apply with respect to certain subsequent sales of the shares in a disqualifying
disposition, certain basis adjustments for purposes of computing the alternative minimum taxable income on a subsequent sale of
the shares and certain tax credits which may arise with respect to optionees subject to the alternative minimum tax.
Nonstatutory
Stock Options
. Options not designated or qualifying as incentive stock options will be nonstatutory stock options having no
special tax status. An optionee generally recognizes no taxable income as the result of the grant of such an option. Upon exercise
of a nonstatutory stock option, the optionee normally recognizes ordinary income in the amount of the difference between the option
exercise price and the fair market value of the shares on the determination date (as defined below). If the optionee is an employee,
such ordinary income generally is subject to withholding of income and employment taxes. The “determination date”
is the date on which the option is exercised unless the shares are subject to a substantial risk of forfeiture (as in the case
where an optionee is permitted to exercise an unvested option and receive unvested shares which, until they vest, are subject
to forfeiture or repurchase upon the optionee’s termination of service) and are not transferable, in which case the determination
date is the earlier of (1) the date on which the shares become transferable or (2) the date on which the shares are no longer
subject to a substantial risk of forfeiture. If the determination date is after the exercise date, the optionee may elect, pursuant
to Section 83(b) of the Code, to have the exercise date be the determination date by filing an election with the Internal Revenue
Service no later than 30 days after the date the option is exercised. Upon the sale of stock acquired by the exercise of a nonstatutory
stock option, any gain or loss, based on the difference between the sale price and the fair market value on the determination
date, will be taxed as capital gain or loss. No tax deduction is available to the Company with respect to the grant of a nonstatutory
stock option or the sale of the stock acquired pursuant to such grant. The Company generally should be entitled to a deduction
equal to the amount of ordinary income recognized by the optionee as a result of the exercise of a nonstatutory stock option,
except to the extent such deduction is limited by applicable provisions of the Code.
Stock
Appreciation Rights
. In general, no taxable income is reportable when a stock appreciation right is granted to a participant.
Upon exercise, the participant will recognize ordinary income in an amount equal to the fair market value of any shares received.
Any additional gain or loss recognized upon any later disposition of the shares would be capital gain or loss.
Restricted
Stock
. A participant acquiring restricted stock generally will recognize ordinary income equal to the fair market value of
the shares on the “determination date” (as defined above under “Nonstatutory Stock Options”). If the participant
is an employee, such ordinary income generally is subject to withholding of income and employment taxes. If the determination
date is after the date on which the participant acquires the shares, the participant may elect, pursuant to Section 83(b) of the
Code, to have the date of acquisition be the determination date by filing an election with the Internal Revenue Service no later
than 30 days after the date the shares are acquired. Upon the sale of shares acquired pursuant to a restricted stock award, any
gain or loss, based on the difference between the sale price and the fair market value on the determination date, will be taxed
as capital gain or loss. The Company generally should be entitled to a deduction equal to the amount of ordinary income recognized
by the participant on the determination date, except to the extent such deduction is limited by applicable provisions of the Code.
Performance
Units and Performance Shares
. A participant generally will recognize no income upon the grant of a performance share or a
performance unit award. Upon the settlement of such awards, participants normally will recognize ordinary income in the year of
receipt in an amount equal to the cash received and the fair market value of any nonrestricted shares received. If the participant
is an employee, such ordinary income generally is subject to withholding of income and employment taxes. If the participant receives
shares of stock upon settlement of the Award, the participant generally will be taxed in the same manner as described above under
“Restricted Stock Awards,” although no elections under Section 83(b) of the Code may be made with respect to performance
units or performance shares. Upon the sale of any shares received, any gain or loss, based on the difference between the sale
price and the fair market value on the “determination date” (as defined above under “Nonstatutory Stock Options”),
will be taxed as capital gain or loss. The Company generally should be entitled to a deduction equal to the amount of ordinary
income recognized by the participant on the determination date, except to the extent such deduction is limited by applicable provisions
of the Code.
Section
409A
. Section 409A of the Code provides certain requirements for non-qualified deferred compensation arrangements with respect
to an individual’s deferral and distribution elections and permissible distribution events. Awards granted under the 2004
Incentive Plan with a deferral feature are subject to the requirements of Section 409A. If an award is subject to and fails to
satisfy the requirements of Section 409A, the recipient of that award may recognize ordinary income on the amounts deferred
under the award, to the extent vested, which may be prior to when the compensation is actually or constructively received. Also,
if an award that is subject to Section 409A fails to comply with Section 409A’s provisions, Section 409A imposes an additional
20% federal income tax on compensation recognized as ordinary income, as well as interest on such deferred compensation.
Tax
Effect for the Company
. The Company generally will be entitled to a tax deduction in connection with an Award under the 2004
Incentive Plan in an amount equal to the ordinary income realized by a participant at the time the participant recognizes such
income (for example, the exercise of a nonstatutory stock option). Special rules limit the deductibility of compensation paid
to our chief executive officer and other “covered employees” as determined under Section 162(m) of the Code and applicable
guidance.
Medicare
Surtax.
Beginning in 2013, a participant’s annual “net investment income”, as defined in Section 1411 of
the Code, may be subject to a 3.8% federal surtax (generally referred to as the “Medicare Surtax”). Net investment
income may include capital gain and/or loss arising from the disposition of shares subject to a participant’s awards under
the Plan. Whether a participant’s net investment income will be subject to the Medicare Surtax will depend on the participant’s
level of annual income and other factors.
THE
FOREGOING IS ONLY A SUMMARY OF THE TAX EFFECT OF FEDERAL INCOME TAXATION UPON PARTICIPANTS AND THE COMPANY WITH RESPECT TO THE
GRANT AND EXERCISE OF AWARDS UNDER THE 2004 INCENTIVE PLAN. IT DOES NOT PURPORT TO BE COMPLETE AND DOES NOT DISCUSS THE TAX CONSEQUENCES
OF A SERVICE PROVIDER’S DEATH OR THE PROVISIONS OF THE INCOME TAX LAWS OF ANY MUNICIPALITY, STATE OR FOREIGN COUNTRY IN
WHICH THE SERVICE PROVIDER MAY RESIDE.
The
number of awards that an employee, director or consultant may receive under the 2004 Incentive Plan is in the discretion of the
Administrator and therefore cannot be determined in advance. The Board of Directors has designated the Compensation Committee
to serve as Administrator except for the award of director grants which are made by the Board as a whole.
The
following table sets forth (i) the aggregate number of shares subject to options granted under the 2004 Incentive Plan during
the fiscal year ended December 31, 2018, and (ii) the average per share exercise price of such options.
Name of Individual or Group
|
|
Number of Options Granted
|
|
Weighted Average Per Share Exercise Price of Options
|
Kevin J. Mills, President and CEO and Director
|
|
|
17,500
|
|
|
$2.93
|
David W. Dunlap, Chief Financial Officer
|
|
|
4,000
|
|
|
$2.93
|
Leonard L. Ott, EVP Engineering and Chief
|
|
|
13,500
|
|
|
$2.93
|
Lee A. Baillif, VP of Operations
|
|
|
12,000
|
|
|
$2.93
|
Lynn Zhao, VP & Controller
|
|
|
10,000
|
|
|
$2.93
|
All executive officers, as a group
|
|
|
71,500
|
|
|
$2.93
|
All directors who are not executive officers, as a group
|
|
|
32,000
|
|
|
$2.52
|
All employees who are not executive officers, as a group
|
|
|
177,800
|
|
|
$2.88
|
VOTE
REQUIRED AND RECOMMENDATION OF THE BOARD
If
a quorum is present, the affirmative vote of a majority of the Votes Cast will be required to approve the one-time stock option
exchange program, including the necessary amendment to the 2004 Incentive Plan.
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” APPROVAL OF THE AMENDMENT TO THE 2004 EQUITY
INCENTIVE PLAN TO PROVIDE FOR A ONE-TIME STOCK OPTION EXCHANGE PROGRAM.
PROPOSAL
FIVE
RATIFICATION
OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS
The
Audit Committee has selected Sadler, Gibb & Associates, LLC, independent registered public accountants, to audit the financial
statements of the Company for the fiscal year ending December 31, 2019 and recommends that stockholders vote for ratification
of such appointment.
Sadler,
Gibb & Associates, LLC performed the audit of the financial statements of the Company for the fiscal years ended December
31, 2018 and for the six previous years. Representatives of Sadler, Gibb & Associates, LLC are expected to be available at
the 2019 Annual Meeting. The representatives will have the opportunity to make a statement if they desire to do so, and are expected
to be available to respond to appropriate questions.
FEES
BILLED BY INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS DURING FISCAL YEARS 2018 AND 2017
Audit
Fees:
Audit
fees billed to the Company by Sadler, Gibb & Associates, LLC for their audit of the Company’s 2018 and 2017 fiscal year
financial statements totaled $80,000 in both years. Quarterly reviews of the Company's quarterly financial statements were $15,000
for fiscal 2018 and $12,000 for fiscal 2017. The Company was not deemed an accelerated filer for fiscal years 2018 and 2017, and
an audit of the Company's internal controls at December 31, 2018 and 2017 was not required.
Audit-Related
Fees:
Audit-related
fees billed to the Company by Sadler Gibb & Associates, LLC during the Company's 2018 and 2017 fiscal year totaled $zero and
$3,000, respectively. Audit-related services in 2017 were to provide a consent for the Company to incorporate the auditor’s
opinion on the prior year financial statements in a Form S-3 and a Form S-8 registration statement in 2017.
Tax
Fees:
Fees
billed to the Company by Sadler, Gibb & Associates, LLC for tax services during the Company’s 2018 and 2017 fiscal years
were $5,850 and $5,750, respectively. Tax fees are for preparation of the annual Federal and State tax returns for the previous
year.
All
Other Fees:
There
were no other fees billed to the Company during the Company's 2018 and 2017 fiscal years.
Approval
Procedures:
The
Audit Committee's policy is to pre-approve all audit and other permissible services provided by the independent accountants. These
services may include audit services, audit-related services, tax services and other services. Pre-approval is generally detailed
as to the particular service or category of services and is generally subject to a specific budget. The independent accountants
and management are required to report periodically to the Audit Committee regarding the extent of services provided by the independent
accountants in accordance with this pre-approval process and the fees for the services performed through such date. The Audit
Committee may also pre-approve particular services on a case-by-case basis. All services performed by the independent accountants
in fiscal 2018 and 2017 were preapproved by the Audit Committee. The Audit Committee has considered whether the provision of the
services described in this section is compatible with maintaining the independence of the Audit Firm and determined that it is.
VOTE
REQUIRED AND RECOMMENDATION OF THE BOARD
Ratification
of the appointment of Sadler, Gibb & Associates, LLC as the Company's independent registered public accountants for the fiscal
year ending December 31, 2019 requires the affirmative vote of a majority of the shares present in person or by proxy at the meeting
and entitled to vote thereon to be approved.
Stockholder
ratification of the appointment of Sadler, Gibb & Associates, LLC as the Company's independent registered public accountants
is not required by the Company's bylaws or other applicable legal requirement. However, the Audit Committee is submitting the
appointment of Sadler, Gibb & Associates, LLC to the stockholders for ratification as a matter of common corporate practice.
If the stockholders fail to ratify the appointment, the Audit Committee will reconsider its selection. Even if the appointment
is ratified, the Audit Committee at its discretion may direct the appointment of a different independent accounting firm at any
time during the year, if it determines that such a change would be in the best interests of the Company and its stockholders.
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THE RATIFICATION OF THE APPOINTMENT OF SADLER,
GIBB & ASSOCIATES, LLC AS THE COMPANY'S INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS FOR THE FISCAL YEAR ENDING DECEMBER 31,
2019.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth, as of the Record Date, certain information with respect to the beneficial ownership of the Company's
Common Stock, including on an as-exercised basis, options and warrants exercisable within 60 days of the Record Date, and on an
as-converted basis convertible notes convertible within 60 days of the Record Date, as to (i) each person known by the Company
to own beneficially more than 5 percent of the outstanding shares of Common Stock; (ii) each director of the Company; (iii) each
executive officer of the Company named in the Summary Compensation table; and (iv) all directors and executive officers of the
Company as a group. Except as set forth below, the address of record for each of the individuals listed in this table is: c/o
Socket Mobile, Inc., 39700 Eureka Drive, Newark, California 94560.
Name
of Beneficial Owner (1)
|
Number
of Shares of Common Stock
Beneficially
Owned
|
Percentage
of Shares of Common Stock Beneficially Owned (2)
|
5%
Stockholders
|
|
|
Manatuck
Hill Partners, LLC (3)
|
306,430
|
5.1%
|
Directors
and Executive Officers
|
|
|
Charlie
Bass (4)
|
1,328,484
|
21.3%
|
Kevin
J. Mills (5)
|
361,832
|
5.8%
|
Lee
A. Baillif (6)
|
175,754
|
2.9%
|
David
W. Dunlap (7)
|
139,213
|
2.3%
|
Leonard
L. Ott (8)
|
131,564
|
2.1%
|
Lynn
Zhao (9)
|
63,151
|
1.0%
|
Nelson
C. Chan (9)
|
18,667
|
*
|
Brenton
Earl MacDonald (9)
|
17,208
|
*
|
Bill
Parnell (9)
|
10,208
|
*
|
All
Directors and Executive Officers as a group (9 persons) (10)
|
2,246,081
|
32.1%
|
|
|
|
*Less
than 1%
_____________________
|
(1)
|
To
the Company’s knowledge, the persons named in the table have sole voting and investment
power with respect to all shares of Common Stock shown as beneficially owned by them,
subject to community property laws where applicable and the information contained in
the footnotes to this table.
|
|
(2)
|
Percentage
ownership is based on 5,999,159 shares of Common Stock outstanding, each of which is
entitled to one vote, on the Record Date of March 25, 2019 and any shares issuable pursuant
to securities exercisable for shares of Common Stock by the person or group in question
as of the Record Date and within 60 days thereafter.
|
|
(3)
|
Shares
held by Manatuck Hill Partners, LLC, 1465 Post Rd E Ste 2, Westport, CT 06880.
|
|
(4)
|
Includes
240,333 shares of Common Stock subject to options exercisable within 60 days of March
25, 2019.
|
|
(5)
|
Includes
242,941 shares of Common Stock subject to options exercisable within 60 days of March
25, 2019.
|
|
(6)
|
Includes
145,987 shares of Common Stock subject to options exercisable within 60 days of March
25, 2019.
|
|
(7)
|
Includes
130,697 shares of Common Stock subject to options exercisable within 60 days of March
25, 2019.
|
|
(8)
|
Includes
130,124 shares of Common Stock subject to options exercisable within 60 days of March
25, 2019.
|
|
(9)Consists
of shares of Common Stock subject to options exercisable within 60 days of March 25, 2019.
|
|
(10)
|
Includes
999,316 shares of Common Stock subject to options exercisable within 60 days of March
25, 2019.
|
SECTION
16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section
16(a) of the Securities and Exchange Act of 1934, as amended, requires the Company's executive officers, directors and persons
who own more than ten percent of the Company's Common Stock to file reports of ownership and changes in ownership with the SEC
and the National Association of Securities Dealers, Inc. Executive officers, directors
and
greater than 10 percent stockholders are required by SEC regulation to furnish the Company with copies of all Section 16(a) forms
they file. We prepare Section 16(a) forms on behalf of our executive officers and directors based on the
information
provided by them. Based solely on review of this information, the Company believes that during fiscal 2018 all of its executive
officers and directors complied with their Section 16(a) filing requirements.
MANAGEMENT
The
named executive officers of the Company are as follows:
Name
of Officer
|
Age
|
Position
with the Company
|
Kevin
J. Mills
|
58
|
President and Chief Executive Officer and Director
|
David
W. Dunlap
|
76
|
Vice
President of Finance and Administration, Chief Financial Officer, Secretary and Director
|
Leonard
L. Ott
|
59
|
Executive
Vice President of Engineering and CTO
|
Lee
A. Baillif
|
58
|
Vice
President of Operations, Quality Systems and Customer Experience
|
Lynn
Zhao
|
50
|
Vice
President & Controller, Director nominee
|
For
information regarding Kevin J. Mills, David W. Dunlap and Lynn Zhao, please see "Proposal One - Election of Directors"
above.
Leonard
L. Ott
was promoted in January 2019 to Executive Vice President and Chief Technical Officer including technical marketing.
He served as the Company's Vice President and Chief Technical Officer since October 2000 and Vice President of Engineering and
Chief Technical Officer from October 2013 to January 2019. Mr. Ott worked as an engineering consultant to the Company from
November 1993 to March 1994 and joined the Company in March 1994, serving in increasingly responsible engineering positions. Mr. Ott
holds a B.A. degree in Computer Science from the University of California at Berkeley.
Lee
A. Baillif
served as the Company’s Vice President of Operations from January 2015 to January 2019. In January 2019 his
duties and role changed to Vice President Customer Experience and Quality Systems. He previously served as Controller commencing
January 1, 1999 and was promoted to Vice President and Controller on January 24, 2007. Prior to his appointment as Controller,
Mr. Baillif was a member of the accounting staff from September 1994. Mr. Baillif holds a B.S. degree in Business and Finance
from San Francisco State University.
DIRECTOR
COMPENSATION
Compensation
of Non-Employee Directors
The
following tables set forth the annual compensation paid to or accrued by the Company on behalf of the outside directors of the
Company for the fiscal year ended December 31, 2018.
Name
|
Fees
Earned or Paid in Cash ($) (1)
|
Option
Awards ($)(2)(7)
|
Total
($)
|
Charlie
Bass (3)
|
$24,000
|
$14,500(3)
|
$38,500
|
Bill
Parnell (4)
|
$24,000
|
$10,150(4)
|
$34,150
|
Brenton
MacDonald (5)
|
$24,000
|
$10,150(5)
|
$34,150
|
Nelson
C. Chan (6)
|
$24,000
|
$11,600(6)
|
$35,600
|
___________________________
|
(1)
|
Directors
are paid a fee for preparation and attendance at four regularly scheduled board meetings
at the rate of $6,000 per meeting attended for the 4 regularly scheduled board meetings
in January, April, July and October 2018, totaling $24,000 for the year. All directors
attended all regular board meetings.
|
|
(2)
|
Amounts
shown are not intended to reflect value actually received by the directors. Instead,
the amounts shown are the total fair value of option awards granted in fiscal 2018 for
financial statement reporting purposes of $1.62 per share, as determined pursuant to
Financial Accounting Standards Board Accounting Standards Codification Topic 718, or
ASC Topic 718 (formerly Statement of Financial Accounting Standards No. 123(R). These
values are amortized as equity compensation expense over the 2-year vesting period of
the grants.
|
|
(3)
|
Mr.
Bass was granted an option to purchase 10,000 shares on June 1, 2018 with a grant date
fair value of $14,500.
|
|
(4)
|
Mr.
Parnell was granted an option to purchase 7,000 shares on June 1, 2018 with a grant date
fair value of $10,150.
|
|
(5)
|
Mr.
MacDonald was granted an option to purchase 7,000 shares on June 1, 2018 with a grant
fair value of $10,150.
|
|
(6)
|
Mr.
Chan was granted an option to purchase 8,000 shares on June 1, 2018 with a grant fair
value of $11,600.
|
|
(7)
|
Aggregate
number of option awards outstanding at December 31, 2018 were as follows: Charlie Bass,
255,750; Bill Parnell, 14,000; Brenton MacDonald, 21,000; Nelson C. Chan, 23,000.
|
The
outside directors are entitled to participate in the Company's 2004 Equity Incentive Plan. Grants of options to directors for
Board and Committee service are made annually, commencing at the start of the Board term. The grants made during 2018 were determined
as follows: each Director was awarded an option to purchase 5,000 shares for participation in Board meetings. The director serving
as the Board chairperson received an option to purchase an additional 2,000 shares. Directors serving as chairpersons of the Audit
and Compensation Committees each received an option to purchase an additional 1,000 shares. Members serving on the Audit Committee
and on the Compensation Committee each received an option to purchase an additional 2,000 shares. As a result, during 2018, the
four outside directors as a group were granted options to purchase an aggregate of 32,000 shares. The options vest monthly over
a two year period of board service. Options granted on June 1, 2018 had an exercise price of $2.52 per share which was the closing
market price of the Common Stock on the date of grant. See also Proposal One – Compensation of Directors.
COMPENSATION
DISCUSSION AND ANALYSIS
OVERVIEW
The
Compensation Committee of the Board of Directors establishes the general compensation policies of the Company as well as the compensation
plans and specific compensation levels for executive officers. Short term executive compensation consist of base salary and variable
incentive salary awards that are performance based. Long term executive compensation consists of stock option grants that vest
over time and gain in value as common stock values increase. The Committee strives to ensure that the Company's executive compensation
programs enable the Company to attract, retain, motivate and reward key people based on a pay-for-performance approach, targeted
between median and 75
th
percentile for equivalent positions in similar sized companies in similar fields of business
when target performance objectives are achieved, and potentially resulting in superior pay when superior performance objectives
are achieved. Within this framework, actual compensation can vary depending on each executive officer’s position, responsibilities
and overall experience. Overall, the Company strives to provide a total compensation package that is fair, reasonable and competitive
with prevailing practices in the Company's industry.
COMPENSATION
PHILOSOPHY AND OBJECTIVES
The
Company's compensation policies, plans and programs are intended to achieve the following objectives:
|
•
|
attract,
retain, motivate and reward talented executive officers and employees;
|
|
•
|
provide
executive officers with performance-based cash bonus opportunities linked to achievement
of financial objectives of revenue attainment and operating profitability; and
|
|
•
|
align
the financial interests of executive officers, directors and employees with those of
stockholders by providing each through the stock option program with an equity stake
in the Company.
|
The
Company's approach to executive compensation is to set base compensation levels between median and the 75
th
percentile
for similar positions in similar sized companies, reflecting the experience and performance of each individual compared to similar
positions in smaller technology based companies. Compensation may be set to higher or lower levels to recognize a particular employee
'
s
role, responsibilities, skills, experience and performance. Variable compensation targets are tied to financial performance so
as to motivate and reward positive performance of executive officers in driving the Company to achieve key financial objectives
including revenue attainment and profitability leading to increases in stockholder value. Long term equity incentives are offered
through its stock option program with annual grants to all executives commensurate with each executive’s level of responsibility,
experience and performance, while maintaining acceptable levels of dilution.
ELEMENTS
OF EXECUTIVE COMPENSATION
The
three major components of compensation for the Company's executive officers are:
|
(ii)
|
variable
performance-based cash incentive awards; and
|
|
(iii)
|
long-term,
equity-based incentive awards.
|
The
base salaries and variable performance-based incentive award components of the Company's compensation program are compared to
other similar technology public companies as set forth in a regional compensation survey. The compensation survey is used to benchmark
the Company's executive and employee salaries, as it is a broad-based compensation survey with an emphasis on smaller companies
in the electronics industry and provides information on base salary and variable incentive awards based on size of companies operating
within the Company’s geographic region. Offering competitive salary packages to employees is an essential element of attracting
and retaining key employees in the San Francisco Bay Area including Silicon Valley, which has many electronics firms that compete
for talent and offer a variety of employment alternatives.
Base
Salaries
. The Compensation Committee establishes a competitive base salary for each executive officer designed to recognize
the skills and experience the individual brings to the Company and the performance contributions he or she makes. Base salaries
for executives are generally targeted between median compensation levels and the 75
th
percentile for similar public
technology companies, but may be set to higher or lower levels to recognize a particular executive’s role, responsibilities,
skills, experience and performance.
The
Compensation Committee determines both the amount and timing of base salary increases for executive officers. Factors affecting
the level of base salary increases each year include the overall financial performance of the Company, changes in the base salary
compensation levels reported in a national survey for executive positions in similarly sized companies, and the individual performance
of each executive.
Variable
Performance Based Incentive Awards
.
Variable
salaries
for the named executive officers are entirely performance based. Variable incentive compensation targets are set
each year for each named executive officer. Target awards are allocated 15% to each quarter and 40% to an annual measurement,
split equally between revenue attainment and attainment of EBITDA profits compared to an annual financial plan approved by the
Board of Directors at the beginning of the year. Awards may only be paid from a portion of EBITDA profits earned in the measurement
period. Actual variable compensation payments as a percentage of variable compensation targets for the past three years are shown
in the following table for the Named Executive Officers.
Variable
Performance Based Incentive Awards as a percentage of Incentive targets:
Named Executive Officer
|
|
Position(s)
|
|
2018
|
|
2017
|
|
2016
|
Kevin
J. Mills (1)
|
President and Chief Executive Officer and Director
|
|
|
zero
|
%
|
|
|
75.0%
|
|
|
|
87.5
|
%
|
David
W. Dunlap (2)
|
|
Vice
President of Finance and Administration, Chief Financial Officer, Secretary, and Director
|
|
|
zero
|
%
|
|
|
81.3%
|
|
|
|
96.9
|
%
|
Leonard L. Ott
(3)
|
|
Vice President of Engineering and Chief Technical Officer
|
|
|
zero
|
%
|
|
|
81.3%
|
|
|
|
96.9
|
%
|
Lee A. Baillif
(4)
|
|
Vice President of Operations (since January 23, 2015); Vice President and Controller (through January 23,
2015).
|
|
|
zero
|
%
|
|
|
81.3%
|
|
|
|
96.9
|
%
|
Lynn
Zhao (5)
|
|
Vice President
and Controller
|
|
|
zero
|
%
|
|
|
N/A
|
|
|
|
N/A
|
|
___________________________
|
(1)
|
Variable
financial incentive compensation target for Mr. Mills was set at $100,000 for each of
the years 2016 through 2018. In 2016 and 2017, $80,000 was based on revenue and EBITDA
attainment, and $20,000 was allocated to attainment of market capitalization objectives
set by the Board of Directors.
|
|
(2)
|
Variable
financial incentive compensation target for Mr. Dunlap was set at $50,000 for each of
the years 2016 through 2018.
|
|
(3)
|
Variable
financial incentive compensation target for Mr. Ott was set at $35,000 for each of the
years 2016 through 2018.
|
|
(4)
|
Variable
financial incentive compensation target for Mr. Baillif was set at $35,000 for 2017 and
2018 and at $30,000 for 2016.
|
|
(5)
|
Variable
financial incentive compensation target for Ms. Zhao was set at $35,000 for 2018 and
was not part of the incentive awards program in 2016 and 2017.
|
Long-Term
Equity-Based Incentive Awards.
Long-Term
Equity-Based Incentive Awards are provided through the stockholder-approved 2004 Equity Incentive Plan as amended. Although the
Equity Incentive Plan provides for a variety of equity incentive awards, to date through 2018 the Compensation Committee has only
awarded stock option grants from the Equity Incentive Plan. The goal of the Company's long-term, equity-based incentive awards
is to align the financial interests of the executive officers and employees of the Company with those of stockholders and to provide
each executive officer and employee with a significant incentive to manage the Company from the perspective of an owner with an
equity stake in the business. All equity incentives are subject to vesting provisions to encourage executive officers and employees
to remain employed with the Company. The Compensation Committee determines the size of each award based on the individual’s
level of responsibility, recent performance, his or her potential for future responsibility and promotion, the number of unvested
options held by the individual at the time of the new grant, and the size of the available stock award pool to arrive at a level
that the Committee considers appropriate to create a meaningful opportunity for equity participation by the individual.
As
of December 31, 2018, there were 116,703 shares available for grant under the 2004 Equity Incentive Plan. In addition, the 2004
Equity Incentive Plan provides for an automatic increase each January 1
st
equal to the lesser of (a) 400,000 shares,
(b) 4% of the outstanding shares on that date, or (c) a lesser amount as determined by the Board of Directors. The increase in
shares available for grant on January 1, 2019 was 235,324 shares. Options are granted to executive officers, employees and consultants
at the discretion of the Compensation Committee. The Board of Directors itself, in consultation with management, grants options
annually to directors for service on the Board of Directors.
The
Compensation Committee, in consultation with management, prepares an annual allocation plan dividing the available stock in the
grant pool among refresher grants, new employee grants, director grants and reserves. The timing, award criteria and award procedures
are discussed more fully under Equity Incentive Grant Policies in the next section. New employee grants are typically made on
the first trading day of the month on or following the date of hire. Refresher grants are made annually, typically during the
first quarter of the year. Refresher grants typically vest monthly over 48 months, contingent upon continued employment with the
Company. All grants expire ten years after the date of grant. Fully vested grants, or grants vesting over a shorter or longer
term than four years, may be awarded at the discretion of the Compensation Committee. Stock options provide a return only if the
individual remains with the Company and only if the market price of the Company’s Common Stock appreciates during the option
term.
The
Compensation Committee believes that stock option grants are effective in attracting and retaining key employees, and the Company
provides initial grants to all new employees and annual refresher grants to all continuing employees with a weighting reflecting
the level of responsibility and performance of the employee. Many of the senior executives and employees have been employed by
the Company more than ten years and have amassed a number of annual stock option grants (grants expire 10 years after the date
of grant) with potential for substantial cumulative compensation if stock prices increase, thus aligning their interests with
those of stockholders. The Company believes stock options are effective long-term incentives because of the expectations of the
management team and employees that the Company’s products and the markets they address provide opportunities for growth
that may result in share price appreciation.
Other
Compensation.
Executive
officers are entitled to participate in the same health and benefit programs and 401(k) program as are available to all employees
of the Company and do not receive any perquisites from the Company.
EQUITY
INCENTIVE GRANT POLICIES
General
option grant practices
. All stock options grants are awarded by the Compensation Committee, or by the full Board in the case
of director stock option grants. All stock options are priced at the closing market price of the Company’s Common Stock
on the date of grant, and the actions of the Compensation Committee are documented in minutes that are retained in the minute
book of the Company. During 2018, the Compensation Committee met three times, and stock option grants were awarded at those meetings.
Initial
stock option grants.
The Compensation Committee awards initial stock option grants to each new employee of the Company typically
on the first trading day of the month following the individual’s commencement of employment. The size of the grant is based
on the responsibilities of the employee and as agreed to in the employee’s employment offer. Grants for executive officers
are approved by the Compensation Committee in advance of offers being made. Grants to rank-and-file employees are made within
general guidelines reviewed and approved by the Compensation Committee, and the actual grant requires the approval of the Compensation
Committee at the time of grant. Initial grants generally vest 25% on the one year anniversary of employment and 1/48
th
per month thereafter for a total vesting period of 48 months. The delay in initial vesting for the first twelve months of employment
provides an incentive for employee retention and ensures that the employee is familiar with the Company and its goals and objectives
prior to options vesting. During 2018 options to purchase an aggregate of 26,400 shares were awarded to 3 new employees representing
9.4 percent of options granted during the year.
Refresher
employee stock option grants
. The Compensation Committee awards refresher stock option grants annually and supplemental grants
based on the recommendations of management reflecting the responsibilities and performance of each employee and the employee’s
contributions in meeting the Company’s goals and objectives. During 2018, the Compensation Committee awarded annual refresher
options to purchase an aggregate of 222,900 shares to 52 employees, representing 79.2 percent of options granted during the year.
Director
stock option grants
. A portion of the compensation of the Company’s outside directors is in the form of an annual stock
option grant. Director grants are granted by the full Board of Directors following the annual election of directors and vest monthly
over the ensuing 2 years of service. Options are awarded equally to all directors for Board service. Additional options are awarded
for Board and committee leadership positions and Committee service, as discussed under “
Director Compensation”.
During 2018, the Company granted options to purchase an aggregate of 32,000 shares to the 4 independent directors of the Company,
representing 11.4 percent of options granted during the year.
ACCOUNTING
AND TAX IMPLICATIONS
Accounting
for Stock Based Compensation.
On January 1, 2006, we adopted the provisions of Financial Accounting Standards Board Accounting
Standards Codification (ASC) Topic 718, Stock Compensation (formerly FASB Statement 123(R)) for the fiscal years ended December
31, 2006 and beyond. Under ASC Topic 718, the Company uses a binomial lattice valuation model to estimate fair value of stock
option grants made on or after January 1, 2006. The binomial lattice model incorporates estimates for expected volatility, risk-free
interest rates, employee exercise patterns and post-vesting employment termination behavior. These estimates affect the calculation
of the fair value of the Company’s stock option grants. The fair value of stock option grants outstanding prior to January
1, 2006 was estimated using a Black-Scholes option pricing model. The Company adopted the modified prospective recognition method
and implemented the provisions of ASC Topic 718 (formerly under FASB Statement 123(R)) beginning with the first quarter of 2006.
Income
taxes.
The Company has not provided any executive officer or director with a gross-up or other reimbursement for tax amounts
the executive might pay pursuant to Section 280G or Section 409A of the Internal Revenue Code. Although the 2004 Equity Incentive
Plan also allows for the issuance of grants qualifying as “performance-based compensation” under Section 162(m) of
the Internal Revenue Code as it was in effect during fiscal 2018, the Company has not adopted a policy that all compensation must
be deductible.
COMPENSATION
OF THE CHIEF EXECUTIVE OFFICER
The
Company’s Chief Executive Officer Kevin Mills is compensated under the same compensation structure applied to all of the
Executive Officers of the Company as described under
Elements of Executive Compensation,
specifically base salary, variable
performance based compensation, and long term equity incentive awards in the form of stock option grants.
Base
Salary:
Mr. Mills’ annual base salary in 2018 was $247,500. Base salary was set at median levels for CEO’s of
similar sized companies based on national compensation salary survey data.
Variable
Compensation
. Mr. Mills’ variable salary target of $100,000 is set above the median levels for CEO’s of similar
sized companies based on national compensation salary survey data. All variable compensation awards are performance based. During
2016 and 2017, 80 percent of the variable compensation for Mr. Mills was calculated in the same manner as for the other Named
Executive Officers, with 40 percent of his variable salary target based on revenue attainment and 40 percent of his variable salary
target based on attainment of Earnings Before Interest, Taxes, Depreciation and Amortization (EBITDA), a traditional non-GAAP
measure of operating profitability, both measured in comparison to the annual financial plan of the Company approved at the beginning
of each year by the Board of Directors. In 2018, target compensation was allocated the same as the other Executive Officers, with
15 percent based on each of four quarterly results (total of 60%) and 40% based on annual results. Payments under the Management
Incentive Variable Compensation Plan are further limited by minimum performance thresholds, and payments to all executives under
this plan may not exceed 50 percent of EBITDA profits for the measurement period. During 2016 and 2017, 20 percent of the variable
compensation target for Mr. Mills was based on attainment of market capitalization targets approved by the Board of Directors
at the beginning of the year See
Performance Based Variable Incentive Awards
under Elements of Executive Compensation for
attainment percentages earned by Mr. Mills over the past three years compared to the other Named Executive Officers of the Company.
Long
term equity incentive awards.
Mr. Mills received an annual employee refresher grant in 2018 of 17,500 shares vesting monthly
over a 48-month period representing 6.2 percent of total shares granted in 2018. All stock options were granted at the closing
market price on the date of grant.
Benefits
.
Mr. Mills participates in the same benefit programs as all of the employees of the Company. The CEO’s employment is subject
to an employment contract which provides for six months of continuation of base salary and medical benefits in the event of involuntary
termination of services other than for cause, and payment of his variable salary entitlements had he remained employed during
this period in the event of a change in control or involuntary termination. The CEO receives no perquisites.
Summary
Compensation Table
For
Fiscal Year Ended December 31, 2018
The
following table provides fiscal 2018 compensation information and comparable information for the two preceding fiscal years for
the Chief Executive Officer, Chief Financial Officer, and the three other executive officers of the Company who were the most
highly compensated in fiscal year 2018 (the “
Named Executive Officers
”).
Name
and Principal Position
|
Year
|
Salary
($)(1)
|
Option
Awards ($)(2)
|
Non-Equity
Incentive
Plan Compensation ($)(3)
|
Total
($)
|
Kevin J. Mills (4)
President and Chief Executive Officer and Director
|
2018
2017
2016
|
$247,500
241,875
225,000
|
$29,225
43,360
46,750
|
$zero
75,018
87,483
|
$276,725
360,253
359,233
|
David
W. Dunlap (5)
Vice
President of Finance and Administration, Chief Financial Officer, Secretary and Director
|
2018
2017
2016
|
$197,000
195,250
190,000
|
$6,680
32,520
40,015
|
$zero
40,636
48,427
|
$203,680
268,406
278,442
|
Leonard
L. Ott (6)
Vice
President of Engineering and Chief Technical Officer
|
2018
2017
2016
|
$186,000
183,250
175,000
|
$22,545
32,520
32,725
|
$zero
28,445
33,899
|
$208,545
244,215
241,624
|
Lee
A. Baillif (7)
Vice
President of Operations
|
2018
2017
2016
|
$177,000
174,000
165,000
|
$20,040
32,520
37,400
|
$zero
28,445
29,056
|
$197,040
234,965
231,456
|
Lynn
Zhao (8)
Vice
President and Controller, Director nominee
|
2018
2017
2016
|
$140,000
138,000
130,542
|
$16,700
15,176
18,700
|
$zero
N/A
N/A
|
$156,700
153,176
149,242
|
___________________________
|
(1)
|
Represents
base salary as described under
Compensation Summary and Analysis — Elements
of Executive Compensation
.
|
|
(2)
|
Represents
Long-Term, Equity-Based Incentive Awards as described under
Compensation Summary and
Analysis — Elements of Executive Compensation
. Amounts shown do not reflect
compensation actually received by the executive officer. Instead, the amounts shown are
the total grant date valuations of stock option grants awarded during the year as determined
pursuant to ASC Topic 718. The valuations are expensed for financial reporting purposes
over the vesting period of the grant.
|
|
(3)
|
Represents
Variable Incentive Awards as described under
Compensation Summary and Analysis —
Elements of Executive Compensation
.
|
|
(4)
|
Mr.
Mills’ base salary was increased on April 1, 2017. His previous increase was in
April 2014.
|
|
(5)
|
Mr.
Dunlap’s base salary was increased on April 1, 2017. His previous increase was
in April 2014.
|
|
(6)
|
Mr.
Ott’s base salary was increased on April 1, 2017. His previous increase was in
April 2014.
|
|
(7)
|
Mr.
Baillif’s base salary was increased on April 1, 2017. His previous increase was
on March 1, 2015.
|
|
(8)
|
Ms.
Zhao’s base salary was increased on April 1, 2017. Her previous increases were
on March 16, 2016 and March 1, 2015
|
GRANTS
OF PLAN-BASED AWARDS
For
Fiscal Year Ended December 31, 2018
The
following table shows for the fiscal year ended December 31, 2018 certain information regarding options granted to the Named Executive
Officers. Options were granted as described under
Compensation Summary and Analysis — Elements of Executive Compensation
— Long-Term, Equity-Based Incentive Awards
and
— Equity Incentive Grant Policies.
Name
|
|
Grant Dates
|
|
All Other Option Awards: Number of Securities Underlying Options (#)
|
|
Exercise or Base Price of Option Awards ($/share)
|
|
Grant Date Fair Value of Stock and Option Awards ($)(1)
|
Kevin
J. Mills
|
|
5/1/2018
|
|
|
17,500
|
|
|
$
|
2.93
|
|
|
$
|
29,225
|
|
David W. Dunlap
|
|
5/1/2018
|
|
|
4,000
|
|
|
$
|
2.93
|
|
|
$
|
6,680
|
|
Leonard
L. Ott
|
|
5/1/2018
|
|
|
13,500
|
|
|
$
|
2.93
|
|
|
$
|
22,545
|
|
Lee
A. Baillif
|
|
5/1/2018
|
|
|
12,000
|
|
|
$
|
2.93
|
|
|
$
|
20,040
|
|
Lynn Zhao
|
|
5/1/2018
|
|
|
10,000
|
|
|
$
|
2.93
|
|
|
$
|
16,700
|
|
___________________________
(1)
|
The
value of option awards is based on the fair value as of the grant date of such award,
determined pursuant to ASC Topic 718 (formerly Statement of Financial Accounting Standards
No. 123R). The Fair Value of options issued on May 1, 2018 was $1.67 per share. Under
ASC Topic 718, the Company uses a binomial lattice valuation model to estimate fair value
of stock option grants made on or after January 1, 2006. The binomial lattice model incorporates
estimates for expected volatility, risk-free interest rates, employee exercise patterns
and post-vesting employment termination behavior. These estimates affect the calculation
of the fair value of the Company’s stock option grants. The exercise price for
all options granted to the Named Executive Officers is equal to the closing market price
for the Company’s Common Stock on the grant date as reported on the Nasdaq Capital
Market. Regardless of whatever value is placed on a stock option on the grant date, the
actual value of the option to the recipient will depend on the market value of the Company’s
Common Stock at such date in the future when the option is exercised.
|
OPTION
EXERCISES AND STOCK VESTED
For
Fiscal Year Ended December 31, 2018
Name
|
Option
Awards
|
Number
of Shares Acquired on Exercise
(#)
|
Value
Realized on Exercise
($)(1)
|
David
W. Dunlap
|
4,129
|
$6,580
|
___________________________
|
(1)
|
The
value realized equals the difference between the option exercise price and the fair market
value of the Company’s Common Stock on the date of exercise, multiplied by the
number of shares for which the option was exercised.
|
OUTSTANDING
EQUITY AWARDS
At
Fiscal 2018 Year-End
The
following table set forth certain information concerning outstanding equity awards held by
the
Named Executive Officers
at the end of the fiscal year ended December 31, 2018.
Name
|
|
Option Awards
|
|
|
Number of Securities Underlying
Unexercised Options - Exercisable (#)(1)
|
|
Number of Securities Underlying Unexercised Options - Unexercisable (#)(1)(2)
|
|
|
Option Exercise Price ($)(3)
|
|
Option Expiration Date(4)
|
Kevin J. Mills
|
|
|
8,625
|
|
|
|
|
—
|
|
|
|
|
3.45
|
|
|
|
6/1/2019
|
|
|
|
10,000
|
|
|
|
|
—
|
|
|
|
|
2.74
|
|
|
|
6/1/2020
|
|
|
|
88,700
|
|
|
|
|
—
|
|
|
|
|
3.04
|
|
|
|
7/1/2020
|
|
|
|
19,920
|
|
|
|
|
—
|
|
|
|
|
1.82
|
|
|
|
2/22/2021
|
|
|
|
10,000
|
|
|
|
|
—
|
|
|
|
|
2.36
|
|
|
|
2/27/2022
|
|
|
|
2,000
|
|
|
|
|
—
|
|
|
|
|
1.20
|
|
|
|
8/1/2022
|
|
|
|
8,900
|
|
|
|
|
—
|
|
|
|
|
1.08
|
|
|
|
11/9/2022
|
|
|
|
15,629
|
|
|
|
|
—
|
|
|
|
|
1.04
|
|
|
|
4/1/2023
|
|
|
|
20,000
|
|
|
|
|
—
|
|
|
|
|
0.95
|
|
|
|
3/3/2024
|
|
|
|
5,000
|
|
|
|
|
—
|
|
|
|
|
1.89
|
|
|
|
6/2/2024
|
|
|
|
20,000
|
|
|
|
|
—
|
|
|
|
|
2.27
|
|
|
|
2/23/2025
|
|
|
|
18,750
|
|
|
|
|
6,250
|
|
|
|
|
2.75
|
|
|
|
2/22/2026
|
|
|
|
7,667
|
|
|
|
|
8,333
|
|
|
|
|
4.22
|
|
|
|
4/3/2027
|
|
|
|
3,646
|
|
|
|
|
13,854
|
|
|
|
|
2.93
|
|
|
|
5/1/2028
|
David W. Dunlap
|
|
|
6,900
|
|
|
|
|
—
|
|
|
|
|
1.96
|
|
|
|
2/23/2019
|
|
|
|
5,250
|
|
|
|
|
—
|
|
|
|
|
3.45
|
|
|
|
6/1/2019
|
|
|
|
7,500
|
|
|
|
|
—
|
|
|
|
|
2.74
|
|
|
|
6/1/2020
|
|
|
|
48,500
|
|
|
|
|
—
|
|
|
|
|
3.04
|
|
|
|
7/1/2020
|
|
|
|
14,060
|
|
|
|
|
—
|
|
|
|
|
1.82
|
|
|
|
2/22/2021
|
|
|
|
8,500
|
|
|
|
|
—
|
|
|
|
|
2.36
|
|
|
|
2/27/2022
|
|
|
|
14,000
|
|
|
|
|
—
|
|
|
|
|
2.27
|
|
|
|
2/23/2025
|
|
|
|
13,125
|
|
|
|
|
4,375
|
|
|
|
|
2.75
|
|
|
|
2/22/2026
|
|
|
|
3,000
|
|
|
|
|
—
|
|
|
|
|
3.84
|
|
|
|
6/20/2026
|
|
|
|
5,750
|
|
|
|
|
6,250
|
|
|
|
|
4.22
|
|
|
|
4/3/2027
|
|
|
|
2,857
|
|
|
|
|
1,143
|
|
|
|
|
2.93
|
|
|
|
5/1/2028
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leonard L. Ott
|
|
|
43,450
|
|
|
|
|
—
|
|
|
|
|
3.04
|
|
|
|
7/1/2020
|
|
|
|
11,040
|
|
|
|
|
—
|
|
|
|
|
1.82
|
|
|
|
2/22/2021
|
|
|
|
8,500
|
|
|
|
|
—
|
|
|
|
|
2.36
|
|
|
|
2/27/2022
|
|
|
|
14,822
|
|
|
|
|
—
|
|
|
|
|
1.04
|
|
|
|
4/1/2023
|
|
|
|
14,000
|
|
|
|
|
—
|
|
|
|
|
0.95
|
|
|
|
3/3/2024
|
|
|
|
14,000
|
|
|
|
|
—
|
|
|
|
|
2.27
|
|
|
|
2/23/2025
|
|
|
|
13,125
|
|
|
|
|
4,375
|
|
|
|
|
2.75
|
|
|
|
2/22/2026
|
|
|
|
5,750
|
|
|
|
|
6,250
|
|
|
|
|
4.22
|
|
|
|
4/3/2027
|
|
|
|
2,813
|
|
|
|
|
10,687
|
|
|
|
|
2.93
|
|
|
|
5/1/2028
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lee A. Baillif
|
|
|
8,950
|
|
|
|
|
—
|
|
|
|
|
1.96
|
|
|
|
2/23/2019
|
|
|
|
2,250
|
|
|
|
|
—
|
|
|
|
|
3.45
|
|
|
|
6/1/2019
|
|
|
|
12,500
|
|
|
|
|
—
|
|
|
|
|
2.74
|
|
|
|
6/1/2020
|
|
|
|
28,700
|
|
|
|
|
—
|
|
|
|
|
3.04
|
|
|
|
7/1/2020
|
|
|
|
17,240
|
|
|
|
|
—
|
|
|
|
|
1.82
|
|
|
|
2/22/2021
|
|
|
|
8,500
|
|
|
|
|
—
|
|
|
|
|
2.36
|
|
|
|
2/27/2022
|
|
|
|
2,000
|
|
|
|
|
—
|
|
|
|
|
1.20
|
|
|
|
8/1/2022
|
|
|
|
2,800
|
|
|
|
|
—
|
|
|
|
|
1.08
|
|
|
|
11/9/2022
|
|
|
|
14,914
|
|
|
|
|
—
|
|
|
|
|
1.04
|
|
|
|
4/1/2023
|
|
|
|
14,000
|
|
|
|
|
—
|
|
|
|
|
0.95
|
|
|
|
3/3/2024
|
|
|
|
17,500
|
|
|
|
|
—
|
|
|
|
|
2.27
|
|
|
|
2/23/2025
|
|
|
|
15,000
|
|
|
|
|
5,000
|
|
|
|
|
2.75
|
|
|
|
2/22/2026
|
|
|
|
5,750
|
|
|
|
|
6,250
|
|
|
|
|
4.22
|
|
|
|
4/3/2027
|
|
|
|
2,500
|
|
|
|
|
9,500
|
|
|
|
|
2.93
|
|
|
|
5/1/2028
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Option Awards
|
|
|
Number of Securities Underlying
Unexercised Options - Exercisable (#)(1)
|
|
Number of Securities Underlying Unexercised Options - Unexercisable (#)(1)(2)
|
|
|
Option Exercise Price ($)(3)
|
|
Option Expiration Date(4)
|
Lynn Zhao
|
|
|
4,370
|
|
|
|
|
—
|
|
|
|
|
1.96
|
|
|
|
2/23/2019
|
|
|
|
1,250
|
|
|
|
|
—
|
|
|
|
|
3.45
|
|
|
|
6/1/2019
|
|
|
|
14,660
|
|
|
|
|
—
|
|
|
|
|
3.04
|
|
|
|
7/1/2020
|
|
|
|
4,120
|
|
|
|
|
—
|
|
|
|
|
1.82
|
|
|
|
2/22/2021
|
|
|
|
3,600
|
|
|
|
|
—
|
|
|
|
|
2.36
|
|
|
|
2/27/2022
|
|
|
|
2,300
|
|
|
|
|
—
|
|
|
|
|
1.08
|
|
|
|
11/9/2022
|
|
|
|
6,152
|
|
|
|
|
—
|
|
|
|
|
1.04
|
|
|
|
4/1/2023
|
|
|
|
8,000
|
|
|
|
|
—
|
|
|
|
|
0.95
|
|
|
|
3/3/2024
|
|
|
|
9,000
|
|
|
|
|
—
|
|
|
|
|
2.27
|
|
|
|
2/23/2025
|
|
|
|
7,500
|
|
|
|
|
2,500
|
|
|
|
|
2.75
|
|
|
|
2/22/2026
|
|
|
|
2,683
|
|
|
|
|
2,917
|
|
|
|
|
4.22
|
|
|
|
4/3/2027
|
|
|
|
2,083
|
|
|
|
|
7,917
|
|
|
|
|
2.93
|
|
|
|
5/1/2028
|
___________________________
|
(1)
|
Options
were granted as described under Compensation Summary and Analysis — Elements of
Executive Compensation — Long-Term, Equity-Based Incentive Awards and — Equity
Incentive Grant Policies. The vesting period and vesting start date were established
by the Compensation Committee. Shares unexercisable were not vested at December 31, 2018.
|
|
(2)
|
Grant
dates and vesting period information for all grants not fully vested as of December 31,
2018 are as follows:
|
Grant
Date
|
|
Expiration
Date
|
|
Vesting
Start Date
|
|
Months
to fully vest
|
2/22/2016
|
|
2/22/2026
|
|
3/1/2016
|
|
|
48
|
|
4/3/2017
|
|
4/3/2027
|
|
4/1/2017
|
|
|
48
|
|
5/1/2018
|
|
5/1/2028
|
|
5/1/2028
|
|
|
48
|
|
|
|
|
|
|
|
|
|
|
|
(3)
|
Exercise
prices are set at the closing price of the Company’s Common Stock on the date of
grant (fair market value).
|
|
(4)
|
Options
expire ten years from the date of grant.
|
EQUITY
COMPENSATION PLAN INFORMATION
The
following table provides information as of December 31, 2018 about the Common Stock that may be issued under all equity compensation
plans of the Company.
|
Number
of securities to be issued upon exercise of outstanding options
|
Weighted-average
exercise price of outstanding options
|
Number
of securities remaining available for future issuance under equity compensation plans
|
Equity
compensation plans approved by security holders (1)
|
2,374,124
|
$
2.54
|
116,703
|
___________________________
|
(1)
|
Consists
of the 2004 Equity Incentive Plan. The Plan was extended by the stockholders at their
annual meeting on June 5, 2013 and will expire on April 23, 2024. Pursuant to an affirmative
vote by stockholders in June 2004 as amended on June 4, 2015, an annual increase in the
number of shares authorized under the 2004 Equity Incentive Plan is added on the first
day of each fiscal year equal to the least of (a) 400,000 shares, (b) four percent of
the total outstanding shares of the Company’s Common Stock on that date, or (c)
a lesser amount as determined by the Board of Directors. As a result, a total of 235,324
shares became available for grant under the 2004 Equity Incentive Plan on January 1,
2019, in addition to those set forth in the table above.
|
COMPENSATION
COMMITTEE REPORT
The
Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis with management. Based on the Compensation
Committee’s review and discussion noted above, the Compensation Committee recommended to the Board of Directors that the
Compensation Discussion and Analysis be included in this Proxy Statement on Schedule 14A.
|
|
COMPENSATION
COMMITTEE
|
|
|
|
|
|
Nelson
Chan, Chairperson
|
Dated:
March 28, 2019
|
|
|
COMPENSATION
COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
None
of the members of the Compensation Committee have ever been an officer or employee of the Company. No executive officer of the
Company serves as a member of the board or compensation committee of any entity that has one or more executive officers serving
as a member of the Company's Board of Directors or Compensation Committee.
POST
EMPLOYMENT AND CHANGE-IN-CONTROL COMPENSATION FOR EXECUTIVES
On
July 1, 2015 the Company updated and renewed Employment Agreements (“Agreements”) with the following officers of the
Company: Kevin J. Mills, President and Chief Executive Officer; David W. Dunlap, Vice President of Finance and Administration,
Chief Financial Officer and Secretary; Leonard L. Ott, Vice President of Engineering and Chief Technical Officer; and Lee A. Baillif,
Vice President of Operations (collectively the “Named Executives”). The Agreements replaced agreements that expired
on June 30, 2015. On May 4, 2017, the expiration date of the Agreements was extended as reported in a Form 8-K as follows: Kevin
J. Mills, October 1, 2020; David W. Dunlap, June 30, 2019; Len Ott, December 31, 2021; and Lee Baillif, September 30, 2021.
Under
the terms of the Agreements, the Executive’s employment is at will and termination of employment of the Executive may occur
at any time. The Agreement defines termination arrangements that apply if the Executive is terminated for Cause as defined in
the Agreement, is terminated due to death or disability, voluntarily terminates employment, or is otherwise terminated involuntarily.
Should the Executive’s employment be terminated other than for Cause, death, disability or voluntary termination, the Executive
is entitled under the Agreement to (i) receive an involuntary termination payment consisting of his regular base salary for a
period of two (2) months plus one month for each completed two years of service up to a maximum of five (5) months following termination,
(ii) receive one additional month of compensation upon signing a mutual termination agreement; (iii) receive reimbursement for
payment of his COBRA health premiums for the lesser of the amount of time of the involuntary termination payment or until he is
eligible for the health insurance benefits provided by another employer; (iv) receive the variable compensation amounts to which
he would otherwise be entitled as prescribed in the Company’s variable incentive compensation plan, and (v) purchase from
the Company at book value certain items that were purchased by the Company for his use. Stock options granted to the Executive
shall cease vesting immediately upon the date of termination of employment, and vested stock options will be exercisable after
termination for the lesser of one year or the expiration date of the grant. In the event of voluntary termination with at least
a 60 day notice by an Executive with more than ten years of consecutive service to the Company, the Executive’s vested stock
options will be exercisable after termination for the remaining life of the grants. The Agreements also provide for compensation
in the event of a Change of Control as defined in the Agreement consisting of an involuntary termination payment as described
above and a payment equal to 1% of the consideration payable in connection with a Change of Control provided that the price offered
for the Company’s common stock is equal to or greater than $5.00 per share. The foregoing description of the Employment
Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the Form of Employment
Agreement, a copy of which was filed in a Form 8-K dated July 1, 2015 as extended in a Form 8-K dated May 4, 2017.
Payments
to be made to each of the Named Executive Officers following severance are estimated as follows:
Compensation
and
Benefits
|
Voluntary
Resignation
|
For
Cause (1)
|
For
Good
Reason(2)
|
Involuntary
Without
Cause(2)
|
Involuntary
or For Good
Reason After
Change-in-
Control(2)
|
Due
to
Death or
Disability(2)
|
Kevin
J. Mills
|
|
|
|
|
|
|
Base
Salary (3)
|
—
|
—
|
$123,750
|
$123,750
|
$123,750
|
$123,750
|
Variable
Incentive (4)
|
—
|
—
|
12,000
|
12,000
|
12,000
|
12,000
|
Stock
Options (5)
|
—
|
—
|
—
|
—
|
—
|
—
|
HealthCare
Benefits (6)
|
—
|
—
|
7,335
|
7,335
|
7,335
|
7,335
|
Other
Perquisites (7)
|
—
|
—
|
—
|
—
|
—
|
—
|
David
W. Dunlap
|
|
|
|
|
|
|
Base
Salary (3)
|
—
|
—
|
98,500
|
98,500
|
98,500
|
98,500
|
Variable
Incentive (4)
|
—
|
—
|
7,500
|
7,500
|
7,500
|
7,500
|
Stock
Options (5)
|
—
|
—
|
—
|
—-
|
—
|
—
|
HealthCare
Benefits (6)
|
—
|
—
|
6,042
|
6,042
|
6,042
|
6,042
|
Other
Perquisites (7)
|
—
|
—
|
—
|
—
|
—
|
—
|
Leonard L. Ott
|
|
|
|
|
|
|
Base
Salary (3)
|
—
|
—
|
93,000
|
93,000
|
93,000
|
93,000
|
Variable
Incentive (4)
|
—
|
—
|
5,250
|
5,250
|
5,250
|
5,250
|
Stock
Options (5)
|
—
|
—
|
—
|
—
|
—
|
—
|
HealthCare
Benefits (6)
|
—
|
—
|
5,587
|
5,587
|
5,587
|
5,587
|
Other
Perquisites (7)
|
—
|
—
|
—
|
—
|
—
|
—
|
Lee
A. Baillif
|
|
|
|
|
|
|
Base
Salary (3)
|
—
|
—
|
88,500
|
88,500
|
88,500
|
88,500
|
Variable
Incentive (4)
|
—
|
—
|
5,250
|
5,250
|
5,250
|
5,250
|
Stock
Options (5)
|
—
|
—
|
—
|
—
|
—
|
—
|
HealthCare
Benefits (6)
|
—
|
—
|
10,674
|
10,674
|
10,674
|
10,674
|
Other
Perquisites (7)
|
—
|
—
|
—
|
—
|
—
|
—
|
Lynn Zhao
|
|
|
|
|
|
|
Base
Salary (3)
|
—
|
—
|
70,000
|
70,000
|
70,000
|
70,000
|
Variable
Incentive (4)
|
—
|
—
|
5,250
|
5,250
|
5,250
|
5,250
|
Stock
Options (5)
|
—
|
—
|
—
|
—
|
—
|
—
|
HealthCare
Benefits (6)
|
—
|
—
|
3,213
|
3,213
|
3,213
|
3,213
|
Other
Perquisites (7)
|
—
|
—
|
—
|
—
|
—
|
—
|
___________________________
|
(1)
|
Cause
is defined in each executive’s employment agreement to include: willful and continuing
breach of duties; performing paid services for others without authorization; participation
in a business that is competitive; acts of dishonesty, misappropriation, embezzlement,
fraud, or insider trading; conviction for a felony; inappropriate conduct including harassment,
violation of ethics or laws, or use of controlled substances.
|
|
(2)
|
All
reasons for termination except voluntary resignation or termination by the Company for
Cause are covered under the terms of the employment agreement as either resignation by
the executive for good reason or involuntary termination by the Company without cause.
The payment amount is based on a six month payment period which presumes the Executive
has signed a mutual release agreement.
|
|
(3)
|
Except
in the case of voluntary resignation or termination for Cause, base salary is continued
from the date of termination for two months plus one month for each year of completed
service up to a maximum of six months.
|
|
(4)
|
Except
in the cases of voluntary resignation or termination for cause, scheduled variable incentive
payments are paid which equal a pro rata share of the bonus to which the executive would
have otherwise been entitled for the quarter of termination. Amounts included in this
table assume entitlements equal to 15% of the target variable compensation in effect
for 2018.
|
|
(5)
|
Except
in the cases of voluntary resignation or termination for cause, stock options vested
as of the date of termination may be exercised for a period of up to one year based on
formulas in the executive’s employment agreement. In the event of a change in control,
all options granted and outstanding become vested and fully exercisable. In the event
of termination for cause or voluntary resignation, stock options vested as of the date
of termination may be exercised for a period of 90 days following the termination date.
Executives who voluntarily terminate employment with ten years or more of continuous
service may exercise vested shares through the expiration date of each grant.
|
|
(6)
|
Except
in the cases of voluntary resignation or termination for cause, healthcare benefits are
continued up to the earlier of the expiration of the base salary continuation period
(see note 3) or securing other employment that includes such benefits.
|
|
(7)
|
There
are no perquisites in the compensation packages of any of the executive officers.
|
LIMITATION
OF LIABILITY AND INDEMNIFICATION MATTERS
Pursuant
to the Delaware General Corporation Law, the Company has adopted provisions in its Certificate of Incorporation that eliminate
the personal liability of directors to the Company or its stockholders for monetary damages for breach of the directors' fiduciary
duties in certain circumstances. In addition, the Company's bylaws require the Company to indemnify the Company's directors and
officers and authorize the Company to indemnify its employees and other agents to the fullest extent permitted by law.
The
Company has entered into indemnification agreements with each of its current directors and officers that provide for indemnification
and advancement of expenses to the fullest extent permitted by Delaware law, including circumstances in which indemnification
or the advancement of expenses is discretionary under Delaware law.
The
Company believes that the limitation of liability and indemnification provisions in its Certificate of Incorporation and bylaws
and the indemnification agreements with its directors and officers enhance its ability to continue to attract and retain qualified
individuals to serve as directors and officers. There is no pending litigation or proceeding involving a director, officer or
employee to which these provisions or agreements would apply.
CORPORATE
GOVERNANCE
The
Company and its Board of Directors are committed to high standards of corporate governance as an important component in building
and maintaining stockholder value. To this end, the Company regularly reviews its corporate governance policies and practices
to ensure that its policies are consistent with such standards. The Company closely monitors guidance issued or proposed by the
Securities Exchange Commission or the Public Company Accounting Oversight Board, the listing standards of the NASDAQ Market, the
provisions of the Sarbanes-Oxley Act, the Dodd-Frank Act and pending legislation. As a result of review of these matters, as well
as the emerging best practices of other companies, the Company has implemented the following:
Executive
Compensation Authority; Compensation Committee
|
•
|
The
Compensation Committee of the Board of Directors approves all compensation plans and
amounts for the executive officers of the Company, following consultation with management.
|
|
•
|
The
Compensation Committee reviews and approves compensation programs for all other employees
of the Company, upon the recommendation of management. These reviews consider an assessment
of whether such programs may promote excessive risk taking.
|
|
•
|
The
Compensation Committee approves all stock option grants, upon the recommendation of management,
except director grants, which are approved by the full Board of Directors.
|
|
•
|
The
charter of the Compensation Committee makes explicit:
|
-
the Committee’s
ability to retain independent consultants and experts as it sees fit, at Company expense;
-
the Compensation
Committee’s responsibilities to assess the risk associated with compensation programs
Director
Independence
|
•
|
The
Board of Directors has confirmed that a majority of the Company's directors are independent,
as defined by current SEC regulations and Nasdaq rules.
|
|
•
|
The
Company's independent directors hold formal meetings without the presence of management
and chaired by an independent director.
|
|
•
|
The
Audit, Compensation and Nominating Committees consist solely of independent directors.
Each Committee is tasked to establish goals, evaluate performance, review the adequacy
of its Charter, and recommend changes to the Board of Directors.
|
Audit
Committee
|
•
|
All
Audit Committee members possess the required level of financial literacy, as required
by SEC regulations.
|
|
•
|
Dr.
Bass, a member of the Audit Committee, possesses the qualifications of an “audit
committee financial expert,” as required by SEC regulations.
|
|
•
|
The
Audit Committee’s charter formalizes and makes explicit the following:
|
|
o
|
The
Audit Committee's ability to retain independent consultants and experts as it sees fit,
at Company expense;
|
|
o
|
The
Audit Committee's authority to appoint, review and assess the performance of the Company's
independent auditors;
|
|
o
|
The
Audit Committee's ability to hold regular executive sessions with the Company's independent
auditors and with the Company’s Chief Financial Officer, Controller and other Company
officers directly, as it considers appropriate;
|
|
o
|
The
requirement that the Audit Committee review and approve in advance non-audit services
by the Company's independent auditors, as well as related party transactions;
|
|
o
|
The
Audit Committee's duty to maintain a formal complaint monitoring procedure (a “whistleblower”
policy) to enable confidential and anonymous reporting to the Audit Committee;
|
|
o
|
The
Audit Committee's authority over the independent auditors' rotation policy; and
|
|
o
|
The
Audit Committee’s responsibilities to oversee the Company’s risk management
policies and practices.
|
Other
Governance Matters
|
•
|
The
Company has a formal Code of Business Conduct and Ethics that applies to all officers,
directors and employees.
|
|
•
|
The
Company has a requirement that any waiver or amendment to the Code of Business Conduct
and Ethics involving a director or officer be reviewed by the Nominating Committee and
disclosed to the Company's stockholders.
|
|
•
|
Each
of the Compensation Committee, Audit and Nominating Committees has a written charter.
|
|
•
|
The
Company has an Insider Trading Policy, including control procedures to comply with current
SEC regulations and Nasdaq rules.
|
|
•
|
The
Company has a policy that the Board of Directors reviews its own performance on an at
least annual basis.
|
|
•
|
The
Company prohibits loans to its officers and directors.
|
Board
Leadership
The
Company is focused on its corporate governance practices and values independent board oversight as an essential component of strong
corporate performance to enhance stockholder value. Our commitment to independent oversight is demonstrated by the fact that all
of our directors, except for Mr. Mills, Mr. Dunlap and director nominee Ms. Zhao, are independent. In addition, all of the members
of our Board’s committees are independent. Our Board of Directors acts independently of management and regularly holds independent
director sessions without members of management present. In addition, the Company has a separate position of Chairman of the Board
which is held by Dr. Bass, an independent director, who provides additional oversight to the management of the Company. Our Board
believes that the current board leadership structure is best for the Company and its stockholders at this time as it allows the
recommendations and decisions of the President and Chief Executive Officer, who views such recommendations and decisions from
a management perspective, to be reviewed and discussed with the Chairman of the Board, who views such recommendations and decisions
from the perspective of an independent director.
Risk
Management
|
•
|
The
Company
has designated its Chief Financial and Administrative Officer as its Risk Management Officer with responsibility for identifying,
assessing, monitoring and reporting risks that could potentially impact the business.
|
|
•
|
The
Company
summarizes the primary risks associated with the business in its quarterly and annual reports on Forms 10-Q and 10-K, respectively.
|
|
•
|
The
Audit
Committee has primary responsibility for Board oversight of risk management. The Audit Committee meets as necessary, at least
quarterly, and matters involving risk are included in the Audit Committee’s agenda. The Chairman of the Audit Committee
who is also Chairman of the Board and the President and Chief Executive Officer conduct a call at least weekly to review Company
operations and such discussions include a review of risk matters as appropriate.
|
Compensation
Risk Considerations
The
Compensation Committee has responsibility for oversight of risk management associated with compensation matters and risks relating
to compensation policies and practices are considered at each meeting of the Committee. The Committee does not believe that the
Company’s compensation policies and practices promote risky behavior on the part of its employees as discussed below.
The
Compensation Committee considers, in establishing and reviewing the employee compensation programs, whether the programs encourage
unnecessary or excessive risk taking. The Company, after reviewing and discussing the compensation programs with the Compensation
and Audit Committees of the Board, believes that the programs are balanced and do not motivate or encourage unnecessary or excessive
risk taking. Base salaries are fixed in amount and thus do not encourage risk taking. While the performance-based awards focus
on achievement of short-term or annual goals, and short-term goals may encourage the taking of short-term risks at the expense
of long-term results, the Company’s performance-based award programs represent a small percentage of total compensation
opportunities and results are closely monitored at both management and board levels. The Company believes that the programs appropriately
balance risk and the desire to focus employees on specific short-term goals important to the Company’s success, and that
they do not encourage unnecessary or excessive risk taking.
Compensation
provided to employees in the form of long-term equity awards through stock option grants and stock grants are important to help
further align employees’ interests with those of the Company’s stockholders. The Company believes that these awards
do not encourage unnecessary or excessive risk taking since the ultimate value of the awards is tied to the Company’s stock
price, and since awards are subject to long-term vesting schedules to help ensure that executives have significant value tied
to long-term stock price performance.
More
details on the Company's corporate governance initiatives, including copies of its Code of Business Conduct and Ethics and each
of the Committee charters can be found in the "Corporate Governance" section of the Company's web site at http://www.socketmobile.com/about-us/investor-relations/corporate-governance.
Policy
for Director Recommendations and Nominations
The
Nominating Committee considers candidates for Board membership suggested by Board members, management and the Company's stockholders.
It is the policy of the Nominating Committee to consider recommendations for candidates to the Board of Directors from stockholders
holding no less than five percent of the total outstanding shares of the Company’s Common Stock who have held such shares
continuously for at least 12 months prior to the date of the submission of the recommendation. The Nominating Committee will consider
persons recommended by the Company's stockholders in the same manner as nominees recommended by members of the Board of Directors
or management.
A
stockholder who desires to recommend a candidate for election to the Board of Directors should direct the recommendation in written
correspondence by letter to the Company, addressed to:
Chairman
of the Nominating Committee
c/o
Corporate Secretary
Socket
Mobile, Inc.
39700
Eureka Drive
Newark,
CA 94560
The
notice must include:
|
•
|
the
candidate's name and home and business contact information;
|
|
•
|
detailed
biographical data and relevant qualifications;
|
|
•
|
a
signed letter from the candidate confirming his or her willingness to serve;
|
|
•
|
information
regarding any relationships between the candidate and the Company within the last three
years; and
|
|
•
|
evidence
of the required ownership of Common Stock by the recommending stockholder(s).
|
In
addition, a stockholder may nominate a person directly for election to the Board of Directors at the annual meeting of the Company's
stockholders, provided the stockholder complies with the requirements set forth in the Company's bylaws and the rules and regulations
of the Securities and Exchange Commission related to stockholder proposals. The process for properly submitting a stockholder
proposal, including a proposal to nominate a person for election to the Board of Directors at an annual meeting, is described
on Page 2 in the section entitled "
Deadline for Receipt of Stockholder Proposals to be Included in the Company's Proxy
Materials
."
Where
the Nominating Committee has either identified a prospective nominee or determines that an additional or replacement director
is required, the Nominating Committee may take such measures that 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 committee,
the Board of Directors or management. In its evaluation of director candidates, including the members of the Board of Directors
eligible for re-election, the Nominating Committee considers a number of factors, including the following:
|
•
|
The
current size and composition of the Board of Directors and the needs of the Board of
Directors and its various committees.
|
|
•
|
Such
factors as judgment, independence, character and integrity, area of expertise, diversity
of experience, length of service and potential conflicts of interest. The Nominating
Committee recognizes that diversity in these areas brings value to the collective impact
of the Board on the Company. The Company does not consider or make its recommendations
based on race, gender, religion, age, sexual orientation or other matters the Committee
deems not relevant to effective board service.
|
|
•
|
Such
other factors as the Nominating Committee may consider appropriate.
|
The
Nominating Committee has also specified the following minimum qualifications that it believes must be met by a nominee for a position
on the Board of Directors:
|
•
|
The
highest personal and professional ethics and values.
|
|
•
|
Proven
achievement and competence in the nominee's field, and the ability to exercise sound
business judgment.
|
|
•
|
Skills
complementary to those of the existing members of the Board of Directors.
|
|
•
|
The
ability to assist and support management and make significant contributions to the Company's
success.
|
|
•
|
An
understanding of the fiduciary responsibilities required of a member of the Board of
Directors, and the commitment of time and energy necessary to carry out those responsibilities
diligently.
|
In
connection with its evaluation, the Nominating Committee determines whether it will interview potential nominees. After completing
the evaluation and interview, the Nominating Committee makes a recommendation to the full Board of Directors as to the persons
who should be nominated, and the Board of the Directors determines the nominees after considering the recommendation and report
of the Nominating Committee.
The
Nominating Committee believes that the current nominees for director all meet the general criteria for board membership as described
in this section. In addition, each nominee brings particular strengths to the Board. For example, all directors have a thorough
knowledge and understanding of the Company. Dr. Bass also has extensive experience as a former chief executive officer or senior
manager in ten companies over the past 38 years in the fields of networking, semiconductors and computing platforms. Dr. Bass
holds a doctorate degree in electrical engineering. Mr. MacDonald is an experienced senior executive both as a fund management
partner and with technology companies. Mr. Parnell has extensive senior management experience in the barcode scanning industry.
Mr. Chan is an experienced executive in selling and marketing technology products. Mr. Mills has a strong engineering background
and a history of innovative leadership and understanding of the business mobility market. Mr. Mills has more than 25 years of
experience with the Company, the last 18 years as President and Chief Executive Officer. Mr. Dunlap is a certified public accountant
(inactive), holds an MBA in business administration and has more than 33 years of industry experience and 24 years with the Company,
all as Chief Financial Officer. Ms. Zhao has served as the Company’s Controller since January 2013 and was appointed Vice
President and Controller in September 2017. Ms. Zhao previously served as general accounting manager from December 2000 through
January 2013.
Stockholder
Communications to Directors
Stockholders
may communicate directly with the members of the Board of Directors by sending an email to
socketboard@socketmobile.com
.
The Company's Secretary monitors these communications and ensures that summaries of all received messages are provided to the
Board of Directors at its regularly scheduled meetings or directly to the Chairman of the Board if the matter is deemed to be
urgent and to require the immediate attention of the Board. Where the nature of a communication warrants, Mr. Bass, Chairman of
the Board, may decide to obtain the more immediate attention of the appropriate committee of the Board of Directors or a non-management
director, or the Company's management or independent advisors, as appropriate. Mr. Bass also determines whether any response to
a stockholder communication is necessary or warranted and whether further action is required.
Director
Independence
In
January 2018, the Board of Directors undertook a review of the independence of its directors and considered whether any director
had a material relationship with the Company or its management that could compromise his ability to exercise independent judgment
in carrying out his responsibilities. Questions relating to director independence were included on the annual Directors and Officers
Questionnaire completed by each director and executive in March 2018. As a result of this review, the Board of Directors affirmatively
determined that all of the directors of the Company, with the exception of Mr. Mills, the Company's President and Chief Executive
Officer, and Mr. Dunlap, the Company’s Vice President of Finance and Chief Financial Officer, are independent of the Company
and its management under the corporate governance standards of the Nasdaq Market.
Code
of Business Conduct and Ethics
The
Board of Directors has a Code of Business Conduct and Ethics that is applicable to all employees, executive officers and directors
of the Company, including the Company's senior financial and other executive officers. The Code of Business Conduct and Ethics
is intended to deter wrongdoing and promote ethical conduct among the Company's directors, executive officers and employees. The
Code of Business Conduct and Ethics is available on the Company's website at
http://www.socketmobile.com/about-us/investor-relations/corporate-governance.
The Company will also post any amendments to or waivers from the Code of Business Conduct and Ethics on its website. There were
no changes to the Code of Business Conduct and Ethics during 2018.
REPORT
OF THE AUDIT COMMITTEE
The
Board of Directors maintains an Audit Committee comprised of three of the Company's outside directors. The Audit Committee oversees
the Company's financial processes on behalf of the Board of Directors, although management has the primary responsibility for
preparing the financial statements and maintaining the Company's financial reporting process including the system of internal
controls. In fulfilling its oversight responsibilities, the Audit Committee reviewed with management the audited financial statements
in the Annual Report to the Securities and Exchange Commission on Form 10-K for the year ended December 31, 2018, including discussing
the quality of the accounting principles, the reasonableness of significant judgments, including the identification and assessment
of risks, and the clarity of disclosures in the financial statements. The Audit Committee has a written charter, a copy of which
is posted on the Company’s website at http://www.socketmobile.com/about-us/investor-relations/corporate-governance.
The
Audit Committee reviewed the 2018 financial statements with the Company's independent auditors, who are responsible for expressing
an opinion on the conformity of the financial statements with generally accepted accounting principles, as well as their judgment
as to the quality, not just the acceptability, of the Company's accounting principles. The Audit Committee also discussed such
other matters as the auditors are required to discuss with the Committee under generally accepted auditing standards. In addition,
the Audit Committee discussed with the independent auditors the auditors' independence from management and the Company, including
the matters in the written disclosures and the letter from the independent auditors required by the applicable requirements of
the Public Company Accounting Oversight Board regarding the independent accountants’ communications with the audit committee
concerning independence.
The
Audit Committee also discussed with the Company's independent auditors the overall scope and results of their audit of the financial
statements, including their review of internal controls. The Audit Committee met periodically with the independent auditors, with
and without management present, to discuss the results of their examination, their evaluation of the Company's internal controls,
and the overall quality of the Company's financial reporting. The Audit Committee held one meeting with the auditors regarding
their audit of the Company’s annual financial statements for the year ended December 31, 2018. In addition, a meeting among
the members of the Audit Committee, the Company’s auditors and management was held each quarter during fiscal 2018 to review
the Company’s quarterly financial reports prior to their issuance.
In
reliance on the reviews and discussions referred to above, the Audit Committee recommended to the Board of Directors, and the
Board of Directors has concurred, that the Company’s audited financial statements be included in the Company's Annual Report
on Form 10-K for the year ended December 31, 2018. The Audit Committee also approved the appointment of Sadler, Gibb & Associates,
LLC as the Company's independent auditors for the years ended December 31, 2012 through 2018 and has recommended approval of the
stockholders for the year ending December 31, 2019.
The
foregoing report has been submitted by the undersigned in our capacity as members of the Audit Committee of the Board of Directors.
|
|
AUDIT
COMMITTEE
|
|
|
|
|
|
Charlie
Bass
|
|
|
Bill Parnell
|
Dated: March
28, 2019
|
|
Brenton
Earl MacDonald
|
OTHER
MATTERS
The
Company knows of no other matters to be submitted at the 2019 Annual Meeting of Stockholders. If any other matters properly come
before the 2019 Annual Meeting, it is the intention of the persons named in the enclosed form of proxy to vote the shares they
represent as the Board of Directors may recommend. It is important that your shares be represented at the meeting, regardless
of the number of shares that you hold. Please complete, date, execute and return, at your earliest convenience, the accompanying
proxy card in the envelope that has been enclosed or otherwise vote your shares via telephone or internet as available.
Dated: March
28, 2019
|
|
THE BOARD OF DIRECTORS
|
APPENDIX
A (See Proposal 4)
SOCKET
MOBILE, INC.
2004
EQUITY INCENTIVE PLAN
(As
Amended April 29, 2010, June 5, 2013, June 4, 2015 and March 20, 2019)
1.
Purposes of the Plan
. The purposes of this Plan are:
|
•
|
to
attract and retain the best available personnel for positions of substantial responsibility,
|
|
•
|
to
provide additional incentive to Employees, Directors and Consultants, and
|
|
•
|
to
promote the success of the Company’s business.
|
The
Plan permits the grant of Incentive Stock Options, Nonstatutory Stock Options, Restricted Stock, Stock Appreciation Rights, Performance
Units and Performance Shares.
2.
Definitions
. As used herein, the following definitions will apply:
(a)
“
Administrator
” means the Board or any of its Committees as will be administering the Plan, in accordance with
Section 4 of the Plan.
(b)
“
Applicable Laws
” means the requirements relating to the administration of equity-based awards under U.S. state
corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock
is listed or quoted and the applicable laws of any foreign country or jurisdiction where Awards are, or will be, granted under
the Plan.
(c)
“
Award
” means, individually or collectively, a grant under the Plan of Options, SARs, Restricted Stock, Performance
Units or Performance Shares.
(d)
“
Award Agreement
” means the written or electronic agreement setting forth the terms and provisions applicable
to each Award granted under the Plan. The Award Agreement is subject to the terms and conditions of the Plan.
(e)
“
Board
” means the Board of Directors of the Company.
(f)
“
Cash Position
” means as to any Performance Period, the Company’ s level of cash and cash equivalents,
including, without limitation, amounts classified for financial reporting purposes as short-term investments and restricted investments.
(g)
“
Change in Control
” means the occurrence of any of the following events:
(i)
Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial
owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total voting power represented by the Company’s then outstanding voting securities; or
A-1
(ii)
The consummation of the sale or disposition by the Company of all or substantially all of the Company’s assets; or
(iii)
The consummation of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation
which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent
(50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding
immediately after such merger or consolidation.
(h)
“
Code
” means the Internal Revenue Code of 1986, as amended. Any reference to a section of the Code herein will
be a reference to any successor or amended section of the Code.
(i)
“
Committee
” means a committee of Directors or of other individuals satisfying Applicable Laws appointed by
the Board in accordance with Section 4 hereof.
(j)
“
Common Stock
” means the common stock of the Company.
(k)
“
Company
” means Socket Mobile, Inc., a Delaware corporation, or any successor thereto.
(l)
“
Consultant
” means any person, including an advisor, engaged by the Company or a Parent or Subsidiary to render
services to such entity.
(m)
“
Determination Date
” means the latest possible date that will not jeopardize the qualification of an Award
granted under the Plan as “performance-based compensation” under Section 162(m) of the Code.
(n)
“
Director
” means a member of the Board.
(o)
“
Disability
” means total and permanent disability as defined in Section 22(e)(3) of the Code, provided
that in the case of Awards other than Incentive Stock Options, the Administrator in its discretion may determine whether a permanent
and total disability exists in accordance with uniform and non-discriminatory standards adopted by the Administrator from time
to time.
(p)
“
Earnings Per Share
” means as to any Performance Period, the Company’s or a business unit’s Net
Income, divided by a weighted average number of common shares outstanding and dilutive common equivalent shares deemed outstanding,
determined in accordance with U.S. GAAP; provided, however, that if Net Income as to any such Performance Period is a negative
amount, then Earnings Per Share means the Company’s or business unit’s Net Income, divided by a weighted average number
of common shares outstanding, determined in accordance with U.S. GAAP.
(q)
“
Employee
” means any person, including Officers and Directors, employed by the Company or any Parent or Subsidiary
of the Company. Neither service as a Director nor payment of a director’s fee by the Company will be sufficient to constitute
“employment” by the Company.
(r)
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
(s)
“
Excluded Items
” includes, without limitation, (i) incentive compensation, (ii) in-process research and
development expenses, (iii) acquisition costs, (iv) compensation expense from equity compensation, (v) operating expenses
from acquired businesses, (vi) amortization of acquired intangible assets, and (vii) such other unusual or one-time items as may
be identified by the Administrator.
A-2
(t)
“
Fair Market Value
” means, as of any date, the value of Common Stock determined as follows:
(i)
If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the
Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value will be the closing sales
price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the day of determination,
as reported in
The Wall Street Journal
or such other source as the Administrator deems reliable;
(ii)
If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market
Value of a Share will be the mean between the high bid and low asked prices for the Common Stock on the day of determination,
as reported in
The Wall Street Journal
or such other source as the Administrator deems reliable; or
(iii)
In the absence of an established market for the Common Stock, the Fair Market Value will be determined in good faith by the Administrator.
(u)
“
Fiscal Year
” means the fiscal year of the Company.
(v)
“
Incentive Stock Option
” means an Option that by its terms qualifies and is otherwise intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.
(w)
“
Inside Director
” means a Director who is an Employee.
(x)
“
Net Income
” means as to any Performance Period, the Company’s or a business unit’s income after
taxes determined in accordance with U.S. GAAP, adjusted for any Excluded Items approved for exclusion by the Administrator.
(y)
“
Nonstatutory Stock Option
” means an Option that by its terms does not qualify or is not intended to qualify
as an Incentive Stock Option.
(z)
“
Officer
” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange
Act and the rules and regulations promulgated thereunder.
(aa)
“
Operating Cash Flow
” means as to any Performance Period, the Company's or a business unit's cash flow generated
from operating activities, as reported in the Company’s cash flow statements and calculated in accordance with U.S. GAAP,
adjusted for any Excluded Items approved for exclusion by the Administrator.
(bb)
“
Operating Income
” means as to any Performance Period, the Company’s or a business unit’s income
from operations determined in accordance with U.S. GAAP, adjusted for any Excluded Items approved for exclusion by the Administrator.
(cc)
“
Option
” means a stock option granted pursuant to the Plan.
(dd)
“
Parent
” means a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e)
of the Code.
(ee)
“
Participant
” means the holder of an outstanding Award.
A-3
(ff)
“
Performance Goals
” means the goal(s) (or combined goal(s)) determined by the Administrator (in its discretion)
to be applicable to a Participant with respect to an Award granted under the Plan. As determined by the Administrator, the Performance
Goals applicable to an Award may provide for a targeted level or levels of achievement using one or more of the following measures:
(a) Cash Position, (b) Earnings Per Share, (c) Net Income, (d) Operating Cash Flow, (e) Operating Income,
(f) Return on Assets, (g) Return on Equity, (h) Return on Sales, (i) Revenue and (j) Total Shareholder Return.
The Performance Goals may differ from Participant to Participant and from Award to Award. Prior to the Determination Date, the
Administrator will determine whether any significant element(s) will be included in or excluded from the calculation of any Performance
Goal with respect to any Participant.
(gg)
“
Performance Period
” means any Fiscal Year of the Company or such other period as determined by the Administrator
in its sole discretion.
(hh)
“
Performance Share
” means an Award granted to a Participant pursuant to Section 9.
(ii)
“
Performance Unit
” means an Award granted to a Participant pursuant to Section 9.
(jj)
“
Period of Restriction
” means the period during which the transfer of Shares of Restricted Stock are subject
to restrictions and therefore, the Shares are subject to a substantial risk of forfeiture. Such restrictions may be based on the
passage of time, the achievement of target levels of performance, or the occurrence of other events as determined by the Administrator.
(kk)
“
Plan
” means this 2004 Equity Incentive Plan, as may be amended from time to time.
(ll)
“
Restricted Stock
” means Shares issued pursuant to a Restricted Stock award under Section 7 of the Plan,
or issued pursuant to the early exercise of an Option.
(mm)
“
Return on Assets
” means as to any Performance Period, the percentage equal to the Company’s or a business
unit’s Operating Income divided by average net Company or business unit, as applicable, assets, determined in accordance
with U.S. GAAP.
(nn)
“
Return on Equity
” means as to any Performance Period, the percentage equal to the Company’s Net Income
divided by average stockholder’s equity, determined in accordance with U.S. GAAP.
(oo)
“
Return on Sales
” means as to any Performance Period, the percentage equal to the Company’s or a business
unit’s Operating Income divided by the Company’s or the business unit’s, as applicable, Revenue.
(pp)
“
Revenue
” means as to any Performance Period, the Company’s or business unit’s net sales, determined
in accordance with U.S. GAAP.
(qq)
“
Rule 16b-3
” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion
is being exercised with respect to the Plan.
(rr)
“
Section 16(b)
” means Section 16(b) of the Exchange Act.
(ss)
“
Service Provider
” means an Employee, Director or Consultant.
(tt)
“
Share
” means a share of the Common Stock, as adjusted in accordance with Section 12 of the Plan.
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(uu)
“
Stock Appreciation Right
” or “
SAR
” means an Award, granted alone or in connection with
an Option, that pursuant to Section 8 is designated as a SAR.
(vv)
“
Subsidiary
” means a “subsidiary corporation”, whether now or hereafter existing, as defined in
Section 424(f) of the Code.
(ww)
“
Total Shareholder Return
” means as to any Performance Period, the total return (change in share price plus
reinvestment of any dividends) of a Share.
(xx)
“
U.S. GAAP
” means generally accepted accounting principles in the United States.
3.
Stock Subject to the Plan
.
(a)
Stock Subject to the Plan
. Subject to the provisions of Section 12 of the Plan, the maximum aggregate number of Shares
that may be awarded and sold under the Plan is (i) the number of Shares which have been reserved but not issued under the Company’s
1995 Stock Plan, as amended and restated (the “1995 Plan”) as of the date of stockholder approval of this Plan, (ii) any
Shares returned to the 1995 Plan as a result of termination of options or repurchase of Shares issued under such plan, with the
maximum available pursuant to clauses (i) and (ii) equal to 599,774 shares, and (iii) an annual increase to be added on the first
day of the Company’s fiscal year beginning in 2005, equal to the
least
of (A) 400,000 Shares, (B) 4% of
the outstanding Shares on such date or (C) an amount determined by the Board. The Shares may be authorized, but unissued,
or reacquired Common Stock. Shares will not be deemed to have been issued pursuant to the Plan with respect to any portion of
an Award that is settled in cash. Upon payment in Shares pursuant to the exercise of an SAR, the number of Shares available for
issuance under the Plan will be reduced only by the number of Shares actually issued in such payment. If the exercise price of
an Option is paid by tender to the Company, or attestation to the ownership, of Shares owned by the Participant, the number of
Shares available for issuance under the Plan will be reduced by the gross number of Shares for which the Option is exercised.
(b)
Lapsed Awards
. If an Award expires or becomes unexercisable without having been exercised in full (including, for the avoidance
of doubt, any shares that are surrendered pursuant to the 2019 Exchange Program or any other exchange program), the unpurchased
Shares which were subject thereto will become available for future grant or sale under the Plan (unless the Plan has terminated);
provided
, however, that Shares that have actually been issued under the Plan, whether upon exercise of an Award, will not
be returned to the Plan and will not become available for future distribution under the Plan, except that if unvested Shares are
forfeited or repurchased by the Company, such Shares will become available for future grant under the Plan.
(c)
Share Reserve
. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares
as will be sufficient to satisfy the requirements of the Plan.
4.
Administration of the Plan
.
(a)
Procedure
.
(i)
Multiple Administrative Bodies
. Different Committees with respect to different groups of Service Providers may administer
the Plan.
(ii)
Section 162(m)
. To the extent that the Administrator determines it to be desirable to qualify Awards granted hereunder
as “performance-based compensation” within the meaning of Section 162(m) of the Code, the Plan will be administered
by a Committee of two or more “outside directors” within the meaning of Section 162(m) of the Code.
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(iii)
Rule 16b-3
. To the extent desirable to qualify transactions hereunder as exempt under Rule 16b-3, the transactions contemplated
hereunder will be structured to satisfy the requirements for exemption under Rule 16b-3.
(iv)
Other Administration
. Other than as provided above, the Plan will be administered by (A) the Board or (B) a Committee,
which committee will be constituted to satisfy Applicable Laws.
(b)
Powers of the Administrator
. Subject to the provisions of the Plan, and in the case of a Committee, subject to the specific
duties delegated by the Board to such Committee, the Administrator will have the authority, in its discretion:
(i)
to determine the Fair Market Value;
(ii)
to select the Service Providers to whom Awards may be granted hereunder;
(iii)
to determine the number of Shares to be covered by each Award granted hereunder;
(iv)
to approve forms of agreement for use under the Plan;
(v)
to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Award granted hereunder. Such terms
and conditions include, but are not limited to, the exercise price, the time or times when Awards may be exercised (which may
be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation
regarding any Award or the Shares relating thereto, based in each case on such factors as the Administrator will determine;
(vi)
to construe and interpret the terms of the Plan and Awards granted pursuant to the Plan;
(vii)
to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans
established for the purpose of satisfying applicable foreign laws;
(viii)
to modify or amend each Award (subject to Section 17(c) of the Plan), including the discretionary authority to extend the
post-termination exercisability period of Awards longer than is otherwise provided for in the Plan. Notwithstanding the foregoing,
the Administrator may not modify or amend an Option or SAR to reduce the exercise price of such Option or SAR after it has been
granted (except for adjustments made pursuant to Section 12), unless approved by the Company’s stockholders and neither
may the Committee, without the approval of the Company’s stockholders, cancel any outstanding Option or SAR and immediately
replace it with a new Option or SAR with a lower exercise price;
(ix)
to allow Participants to satisfy withholding tax obligations in such manner as prescribed in Section 13;
(x)
to authorize any person to execute on behalf of the Company any instrument required to effect the grant of an Award previously
granted by the Administrator;
(xi)
to allow a Participant to defer the receipt of the payment of cash or the delivery of Shares that would otherwise be due to such
Participant under an Award
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(xii)
to make all other determinations deemed necessary or advisable for administering the Plan.
(c)
Effect of Administrator’s Decision
. The Administrator’s decisions, determinations and interpretations
will be final and binding on all Participants and any other holders of Awards.
5.
Eligibility
. Nonstatutory Stock Options, Restricted Stock, Stock Appreciation Rights, Performance Units and Performance
Shares may be granted to Service Providers. Incentive Stock Options may be granted only to Employees.
6.
Stock Options
.
(a)
Limitations
.
(i)
Each Option will be designated in the Award Agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive
Stock Options are exercisable for the first time by the Participant during any calendar year (under all plans of the Company and
any Parent or Subsidiary) exceeds $100,000, such Options will be treated as Nonstatutory Stock Options. For purposes of this Section 6(a),
Incentive Stock Options will be taken into account in the order in which they were granted. The Fair Market Value of the Shares
will be determined as of the time the Option with respect to such Shares is granted.
(ii)
The following limitations will apply to grants of Options:
(1)
No Service Provider will be granted, in any Fiscal Year, Options and/or Stock Appreciation Rights to purchase more than 750,000
Shares.
(2)
In connection with his or her initial service, a Service Provider may be granted Options and/or Stock Appreciation Rights to purchase
up to an additional 1,250,000 Shares, which will not count against the limit set forth in Section 6(a)(2)(ii)(1) above.
(3)
The foregoing limitations will be adjusted proportionately in connection with any change in the Company’s capitalization
as described in Section 12.
(4)
If an Option and/or Stock Appreciation Right is cancelled in the same Fiscal Year in which it was granted (other than in connection
with a transaction described in Section 12), the cancelled Option and/or Stock Appreciation Right, as applicable, will be
counted against the limits set forth in subsections (1) and (2) above. For this purpose, if the exercise price of an Option
and/or Stock Appreciation Right is reduced, the transaction will be treated as a cancellation of the Option and/or Stock Appreciation
Right and the grant of a new Option and/or Stock Appreciation Right, as applicable.
(b)
Term of Option
. The Administrator will determine the term of each Option in its sole discretion. In the case of an Incentive
Stock Option, the term will be ten (10) years from the date of grant or such shorter term as may be provided in the Award Agreement.
Moreover, in the case of an Incentive Stock Option granted to a Participant who, at the time the Incentive Stock Option is granted,
owns stock representing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company
or any Parent or Subsidiary, the term of the Incentive Stock Option will be five (5) years from the date of grant or such shorter
term as may be provided in the Award Agreement.
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(c)
Option Exercise Price and Consideration
.
(i)
Exercise Price
. The per share exercise price for the Shares to be issued pursuant to exercise of an Option will be determined
by the Administrator, subject to the following:
(1)
In the case of an Incentive Stock Option
a)
granted to an Employee who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%)
of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the per Share exercise price will be no
less than 110% of the Fair Market Value per Share on the date of grant.
b)
granted to any Employee other than an Employee described in paragraph (A) immediately above, the per Share exercise price will
be no less than 100% of the Fair Market Value per Share on the date of grant.
(2)
In the case of a Nonstatutory Stock Option, the per Share exercise price shall be determined by the Administrator, but shall be
no less than 100% of the Fair Market Value per Share on the date of grant.
(3)
Notwithstanding the foregoing, Options may be granted with a per Share exercise price of less than 100% of the Fair Market Value
per Share on the date of grant pursuant to a transaction described in, and in a manner consistent with, Section 424(a) of
the Code.
(ii)
Waiting Period and Exercise Dates
. At the time an Option is granted, the Administrator will fix the period within which
the Option may be exercised and will determine any conditions that must be satisfied before the Option may be exercised.
(iii)
Form of Consideration
. The Administrator will determine the acceptable form of consideration for exercising an Option,
including the method of payment. In the case of an Incentive Stock Option, the Administrator will determine the acceptable form
of consideration at the time of grant. Such consideration may consist entirely of: (1) cash; (2) check; (3) promissory note; (4)
other Shares, provided Shares acquired directly or indirectly from the Company, (A) have been owned by the Participant and
not subject to substantial risk of forfeiture for more than six months on the date of surrender, and (B) have a Fair Market
Value on the date of surrender equal to the aggregate exercise price of the Shares as to which said Option will be exercised;
(5) consideration received by the Company under a cashless exercise program implemented by the Company in connection with the
Plan; (6) a reduction in the amount of any Company liability to the Participant, including any liability attributable to the Participant’s
participation in any Company-sponsored deferred compensation program or arrangement; (7) any combination of the foregoing methods
of payment; or (8) such other consideration and method of payment for the issuance of Shares to the extent permitted by Applicable
Laws.
(d)
Exercise of Option
.
(i)
Procedure for Exercise; Rights as a Stockholder
. Any Option granted hereunder will be exercisable according to the terms
of the Plan and at such times and under such conditions as determined by the Administrator and set forth in the Award Agreement.
An Option may not be exercised for a fraction of a Share.
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An
Option will be deemed exercised when the Company receives: (i) notice of exercise (in such form as the Administrator specify
from time to time) from the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to
which the Option is exercised (together with an applicable withholding taxes). Full payment may consist of any consideration and
method of payment authorized by the Administrator and permitted by the Award Agreement and the Plan. Shares issued upon exercise
of an Option will be issued in the name of the Participant or, if requested by the Participant, in the name of the Participant
and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a
duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will
exist with respect to the Shares subject to an Award, notwithstanding the exercise of the Option. The Company will issue (or cause
to be issued) such Shares promptly after the Option is exercised. No adjustment will be made for a dividend or other right for
which the record date is prior to the date the Shares are issued, except as provided in Section 12 of the Plan.
Exercising
an Option in any manner will decrease the number of Shares thereafter available, both for purposes of the Plan and for sale under
the Option, by the number of Shares as to which the Option is exercised.
(ii)
Termination of Relationship as a Service Provider
. If a Participant ceases to be a Service Provider, other than upon the
Participant’s death or Disability, the Participant may exercise his or her Option within such period of time as is specified
in the Award Agreement to the extent that the Option is vested on the date of termination (but in no event later than the expiration
of the term of such Option as set forth in the Award Agreement). In the absence of a specified time in the Award Agreement, the
Option will remain exercisable for three (3) months following the Participant’s termination. Unless otherwise provided by
the Administrator, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered
by the unvested portion of the Option will revert to the Plan. If after termination the Participant does not exercise his or her
Option within the time specified by the Administrator, the Option will terminate, and the Shares covered by such Option will revert
to the Plan.
(iii)
Disability of Participant
. If a Participant ceases to be a Service Provider as a result of the Participant’s Disability,
the Participant may exercise his or her Option within such period of time as is specified in the Award Agreement to the extent
the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth
in the Award Agreement). In the absence of a specified time in the Award Agreement, the Option will remain exercisable for twelve
(12) months following the Participant’s termination. Unless otherwise provided by the Administrator, if on the date of termination
the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will revert
to the Plan. If after termination the Participant does not exercise his or her Option within the time specified herein, the Option
will terminate, and the Shares covered by such Option will revert to the Plan.
(iv)
Death of Participant
. If a Participant dies while a Service Provider, the Option may be exercised following the Participant’s
death within such period of time as is specified in the Award Agreement to the extent that the Option is vested on the date of
death (but in no event may the option be exercised later than the expiration of the term of such Option as set forth in the Award
Agreement), by the Participant’s designated beneficiary, provided such beneficiary has been designated prior to Participant’s
death in a form acceptable to the Administrator. If no such beneficiary has been designated by the Participant, then such Option
may be exercised by the personal representative of the Participant’s estate or by the person(s) to whom the Option is transferred
pursuant to the Participant’s will or in accordance with the laws of descent and distribution. In the absence of a specified
time in the Award Agreement, the Option will remain exercisable for twelve (12) months following Participant’s death. Unless
otherwise provided by the Administrator, if at the time of death Participant is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option will immediately revert to the Plan. If the Option is not so exercised within
the time specified herein, the Option will terminate, and the Shares covered by such Option will revert to the Plan.
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7.
Restricted Stock
.
(a)
Grant of Restricted Stock
. Subject to the terms and provisions of the Plan, the Administrator, at any time and from time
to time, may grant Shares of Restricted Stock to Service Providers in such amounts as the Administrator, in its sole discretion,
will determine.
(b)
Restricted Stock Agreement
. Each Award of Restricted Stock will be evidenced by an Award Agreement that will specify the
Period of Restriction, the number of Shares granted, and such other terms and conditions as the Administrator, in its sole discretion,
will determine. Notwithstanding the foregoing, during any Fiscal Year no Participant will receive more than an aggregate of 250,000
Shares of Restricted Stock; provided, however, that in connection with a Participant's initial service as an Employee, an Employee
may be granted an aggregate of up to an additional 500,000 Shares of Restricted Stock. Unless the Administrator determines otherwise,
Shares of Restricted Stock will be held by the Company as escrow agent until the restrictions on such Shares have lapsed.
(c)
Transferability
. Except as provided in this Section 7, Shares of Restricted Stock may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated until the end of the applicable Period of Restriction.
(d)
Other Restrictions
. The Administrator, in its sole discretion, may impose such other restrictions on Shares of Restricted
Stock as it may deem advisable or appropriate.
(e)
Removal of Restrictions
. Except as otherwise provided in this Section 7, Shares of Restricted Stock covered by each Restricted
Stock grant made under the Plan will be released from escrow as soon as practicable after the last day of the Period of Restriction.
The Administrator, in its discretion, may accelerate the time at which any restrictions will lapse or be removed.
(f)
Voting Rights
. During the Period of Restriction, Service Providers holding Shares of Restricted Stock granted hereunder
may exercise full voting rights with respect to those Shares, unless the Administrator determines otherwise.
(g)
Dividends and Other Distributions
. During the Period of Restriction, Service Providers holding Shares of Restricted Stock
will be entitled to receive all dividends and other distributions paid with respect to such Shares unless otherwise provided in
the Award Agreement. If any such dividends or distributions are paid in Shares, the Shares will be subject to the same restrictions
on transferability and forfeitability as the Shares of Restricted Stock with respect to which they were paid.
(h)
Return of Restricted Stock to Company
. On the date set forth in the Award Agreement, the Restricted Stock for which restrictions
have not lapsed will revert to the Company and again will become available for grant under the Plan.
(i)
Section 162(m) Performance Restrictions
. For purposes of qualifying a Restricted Stock as “performance-based compensation”
under Section 162(m) of the Code, the Administrator, in its discretion, may set restrictions based upon the achievement of Performance
Goals, which will be set by the Administrator on or before the Determination Date. In this connection, the Administrator will
follow any procedures determined by it from time to time to be necessary or appropriate to ensure qualification of the Restricted
Stock under Section 162(m) of the Code (e.g., in determining the Performance Goals).
8.
Stock Appreciation Rights
.
(a)
Grant of SARs
. Subject to the terms and conditions of the Plan, a SAR may be granted to Service Providers at any time and
from time to time as will be determined by the Administrator, in its sole discretion.
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(b)
Number of Shares
. The Administrator will have complete discretion to determine the number of SARs granted to any Participant,
provided that during any Fiscal Year, no Participant will be granted Options and/or SARs covering more than 750,000 Shares. Notwithstanding
the foregoing limitation, in connection with a Participant’s initial service as an Employee, an Employee may be granted
Options and/or SARs covering up to an additional 1,250,000 Shares.
(c)
Exercise Price and Other Terms
. The Administrator, subject to the provisions of the Plan, will have complete discretion
to determine the terms and conditions of SARs granted under the Plan. In the case of a freestanding SAR, the exercise price will
be not less than one hundred percent (100%) of the Fair Market Value of a Share on the date of grant. The exercise price of a
tandem or affiliated SARs will equal the exercise price of the related Option.
(d)
SAR Agreement
. Each SAR grant will be evidenced by an Award Agreement that will specify the exercise price, the term of
the SAR, the conditions of exercise, and such other terms and conditions as the Administrator, in its sole discretion, will determine.
(e)
Expiration of SARs
. An SAR granted under the Plan will expire upon the date determined by the Administrator, in its sole
discretion, and set forth in the Award Agreement. Notwithstanding the foregoing, the rules of Section 6(d) also will apply
to SARs.
(f)
Payment of SAR Amount
. Upon exercise of an SAR, a Participant will be entitled to receive payment from the Company in an
amount determined by multiplying:
(i)
The difference between the Fair Market Value of a Share on the date of exercise over the exercise price; times
(ii)
The number of Shares with respect to which the SAR is exercised.
At
the discretion of the Administrator, the payment upon SAR exercise may be in cash, in Shares of equivalent value, or in some combination
thereof.
9.
Performance Units and Performance Shares
.
(a)
Grant of Performance Units/Shares
. Performance Units and Performance Shares may be granted to Service Providers at any
time and from time to time, as will be determined by the Administrator, in its sole discretion. The Administrator will have complete
discretion in determining the number of Performance Units and Performance Shares granted to each Participant provided that during
any Fiscal Year, (a) no Participant will receive Performance Units having an initial value greater than $1,000,000, and (b) no
Participant will receive more than 250,000 Performance Shares. Notwithstanding the foregoing limitation, in connection with a
Participant's initial service as an Employee, an Employee may be granted up to an additional 500,000 Performance Shares.
(b)
Value of Performance Units/Shares
. Each Performance Unit will have an initial value that is established by the Administrator
on or before the date of grant. Each Performance Share will have an initial value equal to the Fair Market Value of a Share on
the date of grant.
(c)
Performance Objectives and Other Terms
. The Administrator will set performance objectives or other vesting provisions (including,
without limitation, continued status as a Service Provider) in its discretion which, depending on the extent to which they are
met, will determine the number or value of Performance Units/Shares that will be paid out to the Service Provider. The time period
during which the performance objectives or other vesting provisions must be met will be called the “Performance Period.”
Each Award of Performance Units/Shares will be evidenced by an Award Agreement that will specify the Performance Period, and such
other terms and conditions as the Administrator, in its sole discretion, will determine.
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(i)
General Performance Objectives
. The Administrator may set performance objectives based upon the achievement of Company-wide,
divisional, or individual goals, or any other basis determined by the Administrator in its discretion.
(ii)
Section 162(m) Performance Objectives
. For purposes of qualifying grants of Performance Units/Shares as “performance-based
compensation” under Section 162(m) of the Code, the Administrator, in its discretion, may determine that the performance
objectives applicable to Performance Units/Shares will be based on the achievement of Performance Goals. The Administrator will
set the Performance Goals on or before the Determination Date. In granting Performance Units/Shares which are intended to qualify
under Section 162(m) of the Code, the Administrator will follow any procedures determined by it from time to time to be necessary
or appropriate to ensure qualification of the Performance Units/Shares under Section 162(m) of the Code (e.g., in determining
the Performance Goals).
(d)
Earning of Performance Units/Shares
. After the applicable Performance Period has ended, the holder of Performance Units/Shares
will be entitled to receive a payout of the number of Performance Units/Shares earned by the Participant over the Performance
Period, to be determined as a function of the extent to which the corresponding performance objectives or other vesting provisions
have been achieved. After the grant of a Performance Unit/Share, the Administrator, in its sole discretion, may reduce or waive
any performance objectives or other vesting provisions for such Performance Unit/Share.
(e)
Form and Timing of Payment of Performance Units/Shares
. Payment of earned Performance Units/Shares will be made as soon
as practicable after the expiration of the applicable Performance Period. The Administrator, in its sole discretion, may pay earned
Performance Units/Shares in the form of cash, in Shares (which have an aggregate Fair Market Value equal to the value of the earned
Performance Units/Shares at the close of the applicable Performance Period) or in a combination thereof.
(f)
Cancellation of Performance Units/Shares
. On the date set forth in the Award Agreement, all unearned or unvested Performance
Units/Shares will be forfeited to the Company, and again will be available for grant under the Plan.
10.
Leaves of Absence
. Unless the Administrator provides otherwise, vesting of Awards granted hereunder will be suspended during
any unpaid leave of absence. A Service Provider will not cease to be an Employee in the case of (i) any leave of absence
approved by the Company or (ii) transfers between locations of the Company or between the Company, its Parent, or any Subsidiary.
For purposes of Incentive Stock Options, no such leave may exceed ninety (90) days, unless reemployment upon expiration of such
leave is guaranteed by statute or contract. If reemployment upon expiration of a leave of absence approved by the Company is not
so guaranteed, then three (3) months following the 91st day of such leave any Incentive Stock Option held by the Participant will
cease to be treated as an Incentive Stock Option and will be treated for tax purposes as a Nonstatutory Stock Option.
11.
Transferability of Awards
. Unless determined otherwise by the Administrator, an Award may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Participant, only by the Participant. If the Administrator makes an Award transferable,
such Award will contain such additional terms and conditions as the Administrator deems appropriate.
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12.
Adjustments; Dissolution or Liquidation; Merger or Change in Control
.
(a)
Adjustments
. In the event that any dividend or other distribution (whether in the form of cash, Shares, other securities,
or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase, or exchange of Shares or other securities of the Company, or other change in the corporate structure
of the Company affecting the Shares occurs, the Administrator, in order to prevent diminution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, may (in its sole discretion) adjust the number and class of Shares
that may be delivered under the Plan and/or the number, class, and price of Shares covered by each outstanding Award, and the
numerical Share limits set forth in Sections 3, 6, 7, 8 and 9.
(b)
Dissolution or Liquidation
. In the event of the proposed dissolution or liquidation of the Company, the Administrator will
notify each Participant as soon as practicable prior to the effective date of such proposed transaction. To the extent it has
not been previously exercised, an Award will terminate immediately prior to the consummation of such proposed action.
(c)
Change in Control
. In the event of a Change in Control, each outstanding Award will be assumed or an equivalent option
or right substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the Award, the Participant will fully vest in and have the right to
exercise all of his or her outstanding Options and Stock Appreciation Rights, including Shares as to which such Awards would not
otherwise be vested or exercisable, all restrictions on Restricted Stock will lapse, and, with respect to Performance Shares and
Performance Units, all performance goals or other vesting criteria will be deemed achieved at target levels and all other terms
and conditions met. In addition, if an Option or Stock Appreciation Right becomes fully vested and exercisable in lieu of assumption
or substitution in the event of a Change in Control, the Administrator will notify the Participant in writing or electronically
that the Option or Stock Appreciation Right will be fully vested and exercisable for a period of time determined by the Administrator
in its sole discretion, and the Option or Stock Appreciation Right will terminate upon the expiration of such period.
With
respect to Awards granted to a non-employee Directors that are assumed or substituted for, if on the date of or following such
assumption or substitution the Participant’s status as a Director or a director of the successor corporation, as applicable,
is terminated other than upon a voluntary resignation by the Participant, then the Participant will fully vest in and have the
right to exercise Options and/or Stock Appreciation Rights as to all of the Shares subject thereto, including Shares as to which
such Awards would not otherwise be vested or exercisable, all restrictions on Restricted Stock will lapse, and, with respect to
Performance Shares and Performance Units, all performance goals or other vesting criteria will be deemed achieved at target levels
and all other terms and conditions met.
For
the purposes of this subsection (c), an Award will be considered assumed if, following the Change in Control, the Award confers
the right to purchase or receive, for each Share subject to the Award immediately prior to the Change in Control, the consideration
(whether stock, cash, or other securities or property) or, in the case of a Stock Appreciation Right upon the exercise of which
the Administrator determines to pay cash or a Performance Share or Performance Unit which the Administrator can determine to pay
in cash, the fair market value of the consideration received in the merger or Change in Control by holders of Common Stock for
each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the
Change in Control is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent
of the successor corporation, provide for the consideration to be received upon the exercise of an Option or Stock Appreciation
Right or upon the payout of a Performance Share or Performance Unit, for each Share subject to such Award (or in the case of Performance
Units, the number of implied shares determined by dividing the value of the Performance Units by the per share consideration received
by holders of Common Stock in the Change in Control), to be solely common stock of the successor corporation or its Parent equal
in fair market value to the per share consideration received by holders of Common Stock in the Change in Control.
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Notwithstanding
anything in this Section 12(c) to the contrary, an Award that vests, is earned or paid-out upon the satisfaction of one or more
performance goals will not be considered assumed if the Company or its successor modifies any of such performance goals without
the Participant’s consent; provided, however, a modification to such performance goals only to reflect the successor corporation’s
post-Change in Control corporate structure will not be deemed to invalidate an otherwise valid Award assumption.
13.
Tax Withholding
(a)
Withholding Requirements
. Prior to the delivery of any Shares or cash pursuant to an Award (or exercise thereof), the Company
will have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient
to satisfy federal, state, local, foreign or other taxes (including the Participant’s FICA obligation) required to be withheld
with respect to such Award (or exercise thereof).
(b)
Withholding Arrangements
. The Administrator, in its sole discretion and pursuant to such procedures as it may specify from
time to time, may permit a Participant to satisfy such tax withholding obligation, in whole or in part by (a) paying cash, (b)
electing to have the Company withhold otherwise deliverable cash or Shares having a Fair Market Value equal to the amount required
to be withheld, or (c) delivering to the Company already-owned Shares having a Fair Market Value equal to the amount required
to be withheld. The amount of the withholding requirement will be deemed to include any amount which the Administrator agrees
may be withheld at the time the election is made, not to exceed the amount determined by using the maximum federal, state or local
marginal income tax rates applicable to the Participant with respect to the Award on the date that the amount of tax to be withheld
is to be determined. The Fair Market Value of the Shares to be withheld or delivered will be determined as of the date that the
taxes are required to be withheld.
14.
No Effect on Employment or Service
. Neither the Plan nor any Award will confer upon a Participant any right with respect
to continuing the Participant’s relationship as a Service Provider with the Company, nor will they interfere in any way
with the Participant’s right or the Company’s right to terminate such relationship at any time, with or without cause,
to the extent permitted by Applicable Laws.
15.
Date of Grant
. The date of grant of an Award will be, for all purposes, the date on which the Administrator makes the determination
granting such Award, or such other later date as is determined by the Administrator. Notice of the determination will be provided
to each Participant within a reasonable time after the date of such grant.
16.
Term of Plan
. Subject to Section 20 of the Plan, the Plan will become effective upon its adoption by the Board. It
will continue in effect for a term of ten (10) years unless terminated earlier under Section 17 of the Plan. The Plan was
approved by the Board on April 23, 2004 and by the stockholders on June 16, 2004. On June 5, 2013, the stockholders approved extension
of the term to April 23, 2024.
17.
Amendment and Termination of the Plan
.
(a)
Amendment and Termination
. The Board may at any time amend, alter, suspend or terminate the Plan.
(b)
Stockholder Approval
. The Company will obtain stockholder approval of any Plan amendment to the extent necessary and desirable
to comply with Applicable Laws.
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(c)
Effect of Amendment or Termination
. No amendment, alteration, suspension or termination of the Plan will impair the rights
of any Participant, unless mutually agreed otherwise between the Participant and the Administrator, which agreement must be in
writing and signed by the Participant and the Company. Termination of the Plan will not affect the Administrator’s ability
to exercise the powers granted to it hereunder with respect to Awards granted under the Plan prior to the date of such termination.
18.
Conditions Upon Issuance of Shares
.
(a)
Legal Compliance
. Shares will not be issued pursuant to the exercise of an Award unless the exercise of such Award and
the issuance and delivery of such Shares will comply with Applicable Laws and will be further subject to the approval of counsel
for the Company with respect to such compliance.
(b)
Investment Representations
. As a condition to the exercise of an Award, the Company may require the person exercising such
Award to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without
any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is
required.
19.
Inability to Obtain Authority
. The inability of the Company to obtain authority from any regulatory body having jurisdiction,
which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder,
will relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority
will not have been obtained.
20.
Stockholder Approval
. The Plan will be subject to approval by the stockholders of the Company within twelve (12) months
after the date the Plan is adopted. Such stockholder approval will be obtained in the manner and to the degree required under
Applicable Laws.
21.
Underwater Stock Option Exchange Program
. Notwithstanding any contrary provision of the Plan, the Company’s stockholders
on April 29, 2010 approved a one-time-only option exchange program described in the proxy statement with respect to the Company’s
2010 Annual Meeting of Stockholders under which certain outstanding Options may be surrendered or cancelled at the election of
the person holding such Option (and therefore made available for future grant under Section 3(c) to the extent such Option was
granted under the Plan or the 1995 Plan) in exchange for new Options with a lower exercise price (the “Exchange Program”).
The Administrator may provide for, and the Company may implement, the Exchange Program within one hundred and twenty (120) days
after the date of such Annual Meeting.
22.
2019 Stock Option Exchange Program
. Notwithstanding any contrary provision of the Plan, the Company may implement, subject
to the approval of the March 20, 2019 restatement of the Plan by the Company’s stockholders at the Company’s 2019
Annual Meeting of Stockholders, a one-time-only option exchange program on substantially the terms described in the proxy statement
with respect to the Company’s 2019 Annual Meeting of Stockholders (including with respect to the described potential modifications
to the terms of the exchange program) and pursuant to which certain outstanding Options may be surrendered or cancelled at the
election of the person holding such Option (and therefore made available for future grant under Section 3 of the Plan) in exchange
for new Options (the “2019 Exchange Program”). Provided the Company’s stockholders approve the 2019 Exchange
Program at the Company’s 2019 Annual Meeting of Stockholders, the Administrator may provide for, and the Company may implement,
the 2019 Exchange Program within one hundred and twenty (120) days after the date of such Annual Meeting.
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