PRELIMINARY PROXY STATEMENT SUBJECT TO COMPLETION – DATED NOVEMBER 2, 2021
1847 GOEDEKER INC.
3817 MILLSTONE PARKWAY, ST. CHARLES, MO 63301
MESSAGE FROM THE BOARD OF DIRECTORS
Dear Fellow Stockholders of 1847 Goedeker Inc. –
You are cordially invited to attend the 2021 Annual Meeting of Stockholders (the “Annual Meeting”) of 1847 Goedeker Inc., a Delaware corporation (the “Company”), which is scheduled to be held on Tuesday, December 21, 2021 at Eastern Time. The Annual Meeting will be a virtual stockholder meeting, conducted via live webcast, through which you can submit questions and vote online. The Annual Meeting can be accessed by visiting: . Stockholders of record of the Company at the close of business on November 17, 2021 are entitled to notice of, and to vote at, the Annual Meeting. Details of the business to be conducted at the Annual Meeting are given in the accompanying Notice of Annual Meeting of Stockholders and the Proxy Statement. The Proxy Statement was first sent or given to our stockholders on or about , 2021. You should also have received a Proxy Card or Voting Instruction Form and postage-paid return envelope, which are being solicited on behalf of our Board of Directors (the “Board”).
After reading the Notice of Annual Meeting of Stockholders and the Proxy Statement, please mark your votes on the accompanying Proxy Card or Voting Instruction Form, sign it and promptly return it in the accompanying postage-paid envelope. You may also vote by Internet or telephone as instructed in the proxy statement or on the Proxy Card or Voting Instruction Form. Please vote by whichever method is most convenient for you to ensure that your shares are represented at the Annual Meeting.
It is very important that your shares be represented and voted at the Annual Meeting. Whether or not you plan to attend, we hope you will vote as soon as possible. You may vote over the Internet, as well as by telephone, or by mailing the Proxy Card or Voting Instruction Form. Returning the proxy or voting by Internet or telephone does not deprive you of your right to attend the Annual Meeting and to vote your shares.
We look forward to seeing you at the Annual Meeting. Your vote and participation, no matter how many or how few shares you own, are very important to us. Your cooperation is greatly appreciated.
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By Order of the Board of Directors,
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St. Charles, MO
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Robert D. Barry
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, 2021
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Chief Accounting Officer and Secretary
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The attached Notice of Annual Meeting of Stockholders and Proxy Statement are first being made available to stockholders of record beginning , 2021. If you have any questions or require assistance in authorizing a proxy or voting your shares of common stock, please contact the Company’s proxy solicitor at the contact listed below:
509 Madison Avenue Suite 1206
New York, NY 10022
Stockholders Call Toll Free: (800) 662-5200
Banks and Brokers Call Collect: (203) 658-9400
Email: GOED@investor.morrowsodali.com
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PRELIMINARY PROXY STATEMENT SUBJECT TO COMPLETION – DATED NOVEMBER 2, 2021
1847 GOEDEKER INC.
3817 MILLSTONE PARKWAY, ST. CHARLES, MO 63301
PROXY STATEMENT
FOR ANNUAL MEETING OF STOCKHOLDERS
DECEMBER 21, 2021
We have provided this Proxy Statement and accompanying Proxy Card in connection with the solicitation by the Board of Directors (the “Board”) of 1847 Goedeker Inc., a Delaware corporation, of proxies to be voted at the 2021 Annual Meeting of Stockholders (the “Annual Meeting”) to be held on December 21, 2021, at Eastern Time virtually, and any adjournment or postponement thereof. The Annual Meeting will be held virtually, conducted via live webcast, at .
As used in this Proxy Statement, the terms the “Company”, “we”, “us” and “our” refer to 1847 Goedeker Inc. and, unless the context clearly requires otherwise, its consolidated subsidiaries.
This Proxy Statement summarizes information about the Proposals to be considered at the Annual Meeting and other information you may find useful in determining how to vote.
The Proxy Card or Voting Instruction Form is the means by which you actually authorize another person to vote your shares in accordance with your instructions.
We are mailing the Notice of Annual Meeting of Stockholders (the “Notice”) to our stockholders of record as of November 17, 2021 (the “Record Date”) on or about , 2021. In addition, we have provided brokers, dealers, banks, voting trustees and their nominees, at our expense, with additional copies of our proxy materials and our Annual Report on Form 10-K for the fiscal year ended December 31, 2020 so that our record holders can supply these materials to the beneficial owners of shares of our common stock as of the Record Date. Our Annual Report on Form 10-K for the fiscal year ended December 31, 2020 is also available in the Investor Relations section of our website, located at https://investor.goedekers.com (our “IR site”), under the link for “Financials.” Website references throughout this Proxy Statement are provided for convenience only, and the content on the referenced websites is not incorporated by reference into this Proxy Statement.
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INFORMATION ABOUT THE PROXY PROCESS AND VOTING
Why am I receiving these materials?
We are providing the Proxy Statement and Proxy Card or Voting Instruction Form to you on the Internet or, upon your request, by mail, in connection with our Annual Meeting. As a stockholder, you are invited to attend the Annual Meeting, which is being held virtually on the Internet, conducted via live webcast, and are requested to vote on the items of business described in this Proxy Statement. However, you do not need to attend the Annual Meeting to vote your shares. Instead, you may simply follow the instructions below to submit your proxy over the Internet, by telephone or mobile device or by mail.
You are receiving this Proxy Statement as a stockholder of the Company as of the Record Date for purposes of determining the stockholders entitled to receive notice of and vote at the Annual Meeting. As further described below, we request that you promptly use the enclosed Proxy Card or Voting Instruction Form to vote, by Internet, by telephone or by mail, in the event you desire to express your support of or opposition to the Proposals.
THE BOARD UNANIMOUSLY RECOMMENDS VOTING “FOR” THE ELECTION OF EACH OF THE BOARD’S NOMINEES ON PROPOSAL No. 1, “FOR” PROPOSAL No. 2, “FOR” PROPOSAL No. 3 AND “FOR” PROPOSAL No. 4 USING THE ENCLOSED PROXY CARD OR VOTING INSTRUCTION FORM.
Can I attend the Annual Meeting in person?
We will be hosting the Annual Meeting via live webcast on the Internet. You will not be able to attend the meeting in person. Any stockholder can listen to the Annual Meeting live via the Internet at , where you can also submit questions and vote online. The webcast will start at Eastern Time on December 21, 2021. Stockholders may vote and submit questions while connected to the Annual Meeting on the Internet.
Your vote is very important. Please submit your Proxy Card or Voting Instruction Form even if you plan to attend the Annual Meeting.
Who can vote at the Annual Meeting?
Only holders of record of our common stock on the Record Date will be entitled to vote at the Annual Meeting. At the close of business on November 17, 2021, we had shares of common stock outstanding and entitled to vote. Holders of our common stock are entitled to one vote for each share held as of the above Record Date.
Who is soliciting my vote?
The Board, on behalf of the Company, is soliciting your proxy to vote your shares of our common stock on all matters scheduled to come before the Annual Meeting, whether or not you attend virtually. By completing, signing, dating and returning the Proxy Card or Voting Instruction Form, or by submitting your proxy and voting instructions over the Internet or by telephone, you are authorizing the persons named as proxies to vote your shares of common stock at the Annual Meeting as you have instructed. Proxies will be solicited on behalf of the Board by our directors, director nominees, and certain executive officers and other employees of the Company.
Additionally, we have retained Morrow Sodali LLC (“Morrow Sodali”), a proxy solicitation firm, which may solicit proxies on the Board’s behalf. You may also be solicited by press releases issued by us, postings on our corporate website or other websites or otherwise. Unless expressly indicated otherwise, information contained on our corporate website is not part of this Proxy Statement. In addition, none of the information on the other websites, if any, listed in this Proxy Statement is part of this Proxy Statement. Such website addresses are intended to be inactive textual references only.
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Will there be a proxy contest at the Annual Meeting?
On October 15, 2021, the Company entered into a Cooperation Agreement (the “Cooperation Agreement”) with David L. Kanen, Philotimo Fund, LP, Philotimo Focused Growth and Income Fund and Kanen Wealth Management (collectively, the “Kanen Group”), which is included as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on October 21, 2021. G. Alan Shaw was appointed to the Board on October 17, 2021 and is a nominee for election at the Annual Meeting, as consistent with the Cooperation Agreement. In return, the Kanen Group agreed to customary standstill provisions. Pursuant to the Cooperation Agreement, the Kanen Group withdrew its September 9, 2021 notice to the Company in which it notified the Company that the Kanen Group intended to nominate candidates for election to the Board at the Annual Meeting. The Kanen Group also agreed that it shall vote all shares of common stock it beneficially owns in accordance with the Board’s recommendations, except in connection with any Extraordinary Transaction (as defined in the Cooperation Agreement); provided, however, in the event that either Institutional Shareholder Services Inc. (“ISS”) or Glass Lewis & Co. (“Glass Lewis”) issues a recommendation with respect to any matter (other than with respect to director election or removal proposals) that differs from the Board’s recommendation, the Kanen Group may vote its shares of common stock in accordance with either the ISS or Glass Lewis recommendation. Further, pursuant to the Cooperation Agreement, the Company has agreed to reimburse the Kanen Group for its reasonable expenses up to $175,000. Except for the Cooperation Agreement, there are no other arrangements or understandings between any of our directors and any other person pursuant to which any person was selected as a director.
What am I being asked to vote on?
You are being asked to vote on four (4) Proposals:
• Proposal No. 1 — the election of eight (8) directors to hold office until our 2022 Annual Meeting of Stockholders;
• Proposal No. 2 — the ratification of the appointment of Friedman LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2021;
• Proposal No. 3 — the approval of an amendment of our amended and restated certificate of incorporation to increase the number of shares of common stock that we are authorized to issue from 200,000,000 shares to 250,000,000 shares (the “Charter Amendment”); and
• Proposal No. 4 — the approval of an amendment of our 2020 Equity Incentive Plan (the “2020 Plan”) to increase the number of shares of common stock available for issuance under the 2020 Plan from 1,000,000 shares to 11,000,000 shares and eliminate the fungible share counting provision contained in such plan (the “Plan Amendment”).
In addition, you are entitled to vote on any other matters that are properly brought before the Annual Meeting.
What are the Board’s recommendations?
Our Board unanimously recommends that you vote by proxy using the Proxy Card or Voting Instruction Form with respect to the Proposals as follows:
• “FOR” Proposal No. 1 — the election of eight (8) directors to hold office until our 2022 Annual Meeting of Stockholders;
• “FOR” Proposal No. 2 — the ratification of the appointment of Friedman LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2021;
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• “FOR” Proposal No. 3 — the approval of the Charter Amendment; and
• “FOR” Proposal No. 4 — the approval of the Plan Amendment.
We describe each Proposal and the Board’s reason for its recommendation with respect to each Proposal on pages 8, 12, 14 and 16 and elsewhere in this Proxy Statement.
How do I vote?
Stockholder of Record
If, on the Record Date, your shares were registered directly in your name with the transfer agent for our common stock, American Stock Transfer & Trust Company, LLC, then you are a stockholder of record. As a stockholder of record, you may vote at the Annual Meeting or vote by proxy. Whether or not you plan to attend the Annual Meeting, we urge you to vote and submit your proxy in advance of the Annual Meeting by mail, telephone or internet. The Proxy Card accompanying this Proxy Statement will provide information regarding internet and telephone voting.
If you have any questions or require assistance in submitting a proxy for your shares, please call Morrow Sodali at (800) 662-5200 (toll free for stockholders) or (203) 658-9400 (call collect for banks and brokers).
Beneficial Owner
If, on the Record Date, your shares were held in an account at a brokerage firm, bank, dealer or other similar organization, then you are the beneficial owner of shares held in “street name” and these proxy materials are being forwarded to you by that organization. The organization holding your account is considered the stockholder of record for purposes of voting at the Annual Meeting. As a beneficial owner, you have the right to direct your broker or other agent on how to vote the shares in your account. You are also invited to attend the Annual Meeting via the Internet. However, because you are not the stockholder of record, you may not vote your shares at the Annual Meeting unless you request and obtain a valid “Legal Proxy” from your broker or other agent. Please follow the instructions from your broker, bank or other agent included with these proxy materials, or contact your broker, bank or other agent to request a Legal Proxy. If you hold your shares in “street name,” please instruct your bank, broker, trust or other nominee how to vote your shares using the Voting Instruction Form provided by your bank, broker, trust or other nominee so that your vote can be counted. The Voting Instruction Form provided by your bank, broker or other nominee may also include information about how to submit your voting instructions over the Internet or by telephone, if such options are available. The Voting Instruction Form accompanying this Proxy Statement will provide information regarding internet and telephone voting.
What are “broker non-votes”?
Broker non-votes occur when a beneficial owner of shares held in “street name” does not give instructions to the broker or nominee holding the shares as to how to vote on matters deemed “non-routine.” Generally, if shares are held in street name, the beneficial owner of the shares is entitled to give voting instructions to the broker or nominee holding the shares. If the beneficial owner does not provide voting instructions, the broker or nominee can only vote the shares with respect to matters that are considered to be “routine,” but not with respect to “non-routine” matters. In the event that a broker, bank, custodian, nominee or other record holder of common stock indicates on a proxy that it does not have discretionary authority to vote certain shares on a particular proposal, then those shares will be treated as broker non-votes with respect to that proposal. Accordingly, if you own shares through a nominee, such as a broker or bank, please be sure to instruct your nominee how to vote to ensure that your vote is counted on each of the proposals.
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Which ballot measures are considered “routine” or “non-routine?”
The New York Stock Exchange (“NYSE”) rules determine whether proposals are routine or non-routine. If a proposal is routine, a broker holding shares for an owner in street name may vote on the proposal without voting instructions. The ratification of the appointment of Friedman LLP as our independent registered public accounting firm for the year ending December 31, 2021 (Proposal No. 2) is considered routine under applicable rules. A broker or other nominee may generally vote on routine matters, and therefore no broker non-votes are expected to exist in connection with Proposal No. 2. The election of directors (Proposal No. 1), the approval of the Charter Amendment (Proposal No. 3) and the approval of the Plan Amendment (Proposal No. 4) are considered non-routine under applicable rules. A broker or other nominee cannot vote without instructions on non-routine matters, and therefore there may be broker non-votes on Proposals 1, 3 and 4.
How many votes do I have?
On each matter to be voted upon, you have one (1) vote for each share of common stock you own as of the Record Date.
How will my shares be voted?
Stockholders of record as of the close of business on the Record Date are entitled to one (1) vote for each share of common stock held on each matter to be voted upon at the Annual Meeting. All shares entitled to vote and represented by properly submitted proxies received before the polls are closed at the Annual Meeting, and not revoked or superseded, will be voted at the Annual Meeting in accordance with the instructions indicated on those proxies. Where a choice has been specified on the Proxy Card or Voting Instruction Form with respect to the Proposals, the shares represented by the Proxy Card or Voting Instruction Form will be voted as you specify. If you return a validly executed Proxy Card or Voting Instruction Form without indicating how your shares should be voted on a matter and you do not revoke your proxy, your proxy will be voted: “FOR” the election of the Board nominees set forth on the Proxy Card (Proposal No. 1); “FOR” Proposal No. 2; “FOR” Proposal No. 3 and “FOR” Proposal No. 4.
How many votes are needed to approve the Proposals?
With respect to Proposal No. 1, directors will be elected by a plurality of the votes of the shares of our common stock present or represented by proxy at the Annual Meeting and entitled to vote on the election of directors, which means that the eight (8) nominees receiving the highest number of affirmative votes will be elected. A broker non-vote or a properly executed proxy marked “Abstain” with respect to the election of a director will not be voted with respect to such director. A properly executed proxy marked “Abstain” with respect to the election of a director will be counted for purposes of determining whether there is a quorum. A broker non-vote will not be counted for purposes of determining whether there is a quorum.
With respect to Proposal No. 2, the affirmative vote of a majority of the shares present or represented by proxy and entitled to vote at the Annual Meeting is required for approval. Abstentions will have the same effect as a vote “Against” this Proposal, and shares underlying broker non-votes will not be counted as entitled to vote, and, therefore broker non-votes will have no effect on the result of the vote.
With respect to Proposal No. 3, the affirmative vote of a majority of the outstanding shares of our common stock is required for approval. Abstentions and broker non-votes have the same effect as a vote “Against” this Proposal.
With respect to Proposal No. 4, the affirmative vote of a majority of the shares present or represented by proxy and entitled to vote at the Annual Meeting is required for approval. Abstentions will have the same effect as a vote “Against” this Proposal, and shares underlying broker non-votes will not be counted as entitled to vote, and, therefore broker non-votes will have no effect on the result of the vote.
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What happens if I do not specify how I want my shares voted? What is discretionary voting?
As a stockholder of record, if you properly complete, sign, date and return a Proxy Card or Voting Instruction Form or Voting Instruction Form, your shares of common stock will be voted as you specify. However, if you submit a signed Proxy Card or Voting Instruction Form or submit your proxy by telephone or Internet and do not specify how you want your shares voted, the persons named as proxies will vote your shares: “FOR” the election of the Board nominees set forth on the Proxy Card or Voting Instruction Form (Proposal No. 1); “FOR” Proposal No. 2; “FOR” Proposal No. 3 and “FOR” Proposal No. 4.
What is the quorum requirement?
A quorum of stockholders is necessary to hold a valid Annual Meeting. On the Record Date, there were shares of common stock outstanding and entitled to vote. A quorum will be present if stockholders holding a majority of the shares of common stock entitled to vote are present at the Annual Meeting or represented by proxy.
Your shares will be counted towards the quorum only if you submit a valid proxy or vote at the Annual Meeting via the Internet. Abstentions will be counted towards the quorum requirement. However, broker non-votes will not be counted towards the quorum requirement. If there is no quorum, either the chairperson of the Annual Meeting or a majority of the shares present or represented by proxy at the Annual Meeting, may adjourn the Annual Meeting to another time or place.
What does it mean if I receive more than one set of proxy materials?
If you receive more than one set of proxy materials from the Company, your shares are registered in more than one name or are registered in different accounts. In order to vote all the shares you own, you must vote pursuant to the instructions on each Proxy Card or Voting Instruction Form from the Company.
Can I change my vote after submitting my proxy?
Yes. You can revoke your proxy at any time before the final vote at the Annual Meeting. If you are the record holder of your shares, you may revoke your proxy in any one of three ways:
• You may submit another properly completed proxy with a later date over the Internet, by telephone or mobile device or by mail.
• You may send a written notice that you are revoking your proxy to us at 1847 Goedeker Inc., 3817 Millstone Parkway, St. Charles, MO 63301, Attention: Secretary.
• You may attend the Annual Meeting via the Internet and vote online. Simply attending the Annual Meeting will not, by itself, revoke your proxy.
If your shares are held by your broker, bank or other agent, you should follow the instructions provided by them.
How can I find out the results of the voting at the Annual Meeting?
Voting results will be announced by the filing of a Current Report on Form 8-K with the Securities and Exchange Commission (the “SEC”) within four business days after the Annual Meeting. If final voting results are unavailable at that time, we will file an amended Current Report on Form 8-K within four business days of the day the final results are available.
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When are stockholder proposals due for the 2022 Annual Meeting of Stockholders?
If you are interested in submitting a proposal for potential inclusion in the proxy statement for our 2022 Annual Meeting of Stockholders, you must follow the procedures outlined in Rule 14a-8 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). To be eligible for inclusion in the proxy statement, we must receive your stockholder proposal or information about your proposed director candidate at the address noted below no later than September 22, 2022.
If you wish to present a proposal at the 2022 Annual Meeting of Stockholders, but do not wish to have the proposal considered for inclusion in our proxy statement and proxy card, you must also give written notice at the address noted below. We must receive this required notice by September 22, 2022, but no sooner than August 23, 2022.
Any proposals should be sent to us at 1847 Goedeker Inc., 3817 Millstone Parkway, St. Charles, MO 63301, Attention: Secretary.
Who will pay for the solicitation of proxies?
We will bear the entire cost of solicitation of proxies, including preparation, assembly and mailing of this Proxy Statement, the Proxy Card, the Notice and any additional information furnished to stockholders. Copies of solicitation materials will be furnished to banks, brokerage houses, fiduciaries and custodians holding shares of our common stock in their names that are beneficially owned by others to forward to those beneficial owners. We may reimburse persons representing beneficial owners for their costs of forwarding the solicitation materials to the beneficial owners. Original solicitation of proxies may be supplemented by telephone, facsimile, electronic mail or personal solicitation by our directors, officers or staff members. Other than the persons described in this Proxy Statement, no general class of employee of the Company will be employed to solicit stockholders in connection with this proxy solicitation. However, in the course of their regular duties, employees may be asked to perform clerical or ministerial tasks in furtherance of this solicitation. No additional compensation will be paid to our directors, officers or staff members for such services. We have retained Morrow Sodali to act as a proxy solicitor in conjunction with the Annual Meeting. We have agreed to pay Morrow Sodali up to $150,000 plus reasonable out-of-pocket expenses for proxy solicitation services. Morrow Sodali expects that approximately 30 of its employees will assist in the solicitation. The parties’ engagement letter contains confidentiality, indemnification and other provisions that we believe are customary for this type of engagement.
Whom should I call if I have questions about the Annual Meeting?
Morrow Sodali is assisting us with our effort to solicit proxies. If you have any questions concerning the business to be conducted at the Annual Meeting, would like additional copies of this Proxy Statement or need help submitting a proxy for your shares, please contact Morrow Sodali:
509 Madison Avenue Suite 1206
New York, NY 10022
Stockholders Call Toll Free: (800) 662-5200
Banks and Brokers Call Collect: (203) 658-9400
Email: GOED@investor.morrowsodali.com
THE BOARD UNANIMOUSLY RECOMMENDS VOTING “FOR” THE ELECTION OF EACH OF THE BOARD’S NOMINEES ON PROPOSAL No. 1, “FOR” PROPOSAL No. 2, “FOR” PROPOSAL No. 3 AND “FOR” PROPOSAL No. 4, USING THE ENCLOSED PROXY CARD OR VOTING INSTRUCTION FORM.
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PROPOSAL NO. 4 - PLAN AMENDMENT
Overview
We are asking our stockholders to approve an amendment of the 2020 Plan. The purpose of the 2020 Plan is to grant restricted stock, stock options and other forms of incentive compensation to our officers, employees, directors and consultants.
The 2020 Plan was first adopted by the Board and approved by our stockholders on April 21, 2020 and became effective on July 30, 2020. On April 9, 2021, the Board and our stockholders approved an amendment of the 2020 Plan, which became effective on May 13, 2021. On November 2, 2021, the Board approved a second amendment of the 2020 Plan, subject to the requisite approval of our stockholders at the Annual Meeting and effective upon such approval. We are seeking stockholder approval of this amendment in order to:
• increase the number of shares of our common stock authorized for issuance under the 2020 Plan from 1,000,000 shares to 11,000,000 shares; and
• eliminate the fungible share counting provision for new awards, so that each share underlying new awards, regardless of type, will reduce the available number of shares of common stock under the 2020 Plan by one share and all shares underlying forfeited, expired or terminated awards granted on or after the effective date of the amendment will be returned to the share reserve in the same manner.
A copy of the proposed amendment is attached hereto as Annex B.
Background for Proposed Increase in Share Reserve and Removal of Fungible Share Counting Provision
We are seeking stockholder approval of the amendment of the 2020 Plan to increase the number of shares of common stock reserved under the 2020 Plan from 1,000,000 shares to 11,000,000 shares and remove the fungible share counting provision contained in the 2020 Plan, under which shares of our common stock subject to “full value” awards (i.e., awards other than stock options and stock appreciation rights) are counted against the 2020 Plan’s share reserve as two shares for every one share of common stock underlying the award.
As November 1, 2021, we have issued 216,800 restricted shares and have options for the purchase of 573,421 shares outstanding under the 2020 Plan. Therefore, as a result of the fungible share counting provision, we have no shares available for future awards under the 2020 Plan. We view the use of equity compensation as essential to attract, retain, motivate and reward key employees, directors and consultants as well as to align their interests with those of our stockholders. With the removal of the fungible share counting provision, and the proposed addition of 10,000,000 shares, the total number of shares of common stock that would remain available for new awards under the amended 2020 Plan, subject to stockholder approval, would be approximately 9,992,979 shares (plus any shares returned to the share reserve due to forfeited or canceled awards, etc.).
Various factors have contributed to the depletion of the share reserve under the 2020 Plan sooner than expected. These factors include our stock price and volatility, new hire equity grants, and the use of the fungible share counting provision that reduces the share reserve by two shares for each share subject to a full value award. In addition, following our initial public offering in August 2020, our compensation philosophy has evolved to include a broader group of high performing employees receiving bonus compensation in the form of equity-based awards, thereby linking the interests of a greater number of employees with those of our stockholders.
We believe that the 2020 Plan helps to strengthen the incentive for participants to achieve the objectives of the Company and its stockholders and contribute to our growth and success. The Company has a standing practice of linking employee compensation to corporate performance because we believe this increases employee motivation to improve profitability and stockholder value. We believe these additional shares are necessary to further our goals and to sustain equity compensation as an integral component of our compensation philosophy. In addition, the grant of equity awards as a form of compensation helps to allow us to manage cash resources.
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As amended, the 2020 Plan would remove the two-for-one fungible share counting provision for new awards. This means that all awards granted under the amended 2020 Plan would be counted against the 2020 Plan’s share limit as one share for every share underlying the award. Given that the Company’s current practice generally is to grant full value awards, we do not believe that continuing to include the fungible share counting provision is necessary. Because the two-for-one formula was in place with respect to previously granted awards, any forfeitures, cancellations or other terminations of a full value award granted prior to approval of the amendment at the Annual Meeting would be returned back to the 2020 Plan’s share reserve as two shares for every one share underlying the award to reflect the fungible share counting formula in place at the time the award was granted.
If our stockholders approve the amendment, we anticipate that the shares of common stock that will be available for new awards under the 2016 Plan will provide the Company with flexibility to continue to grant equity awards for approximately two to three years. However, this is only an estimate based on current circumstances and a number of variables could result in a shorter or longer period, such as our stock price, the number of employees receiving awards, future hiring activity, the extent to which vesting conditions for awards are satisfied, changes in how we approached the balance between cash and equity-based compensation, and other changes in our compensation strategy and equity grant practices.
We believe that the use of equity compensation continues to be a critical and powerful tool to compete for and attract, retain and motivate talented employees. If the amendment of the 2020 Plan is not approved by our stockholders, there will be no shares under the 2020 Plan for equity awards in the coming years which we anticipate would materially affect our ability to attract and retain highly qualified individuals and place us at a considerable disadvantage.
Significant Features of the Plan
The following is a summary of the 2020 Plan with the amendment submitted for stockholder approval. The summary describes the principal features of the 2020 Plan, but it is qualified in its entirety by reference to the full text of the 2020 Plan.
Awards that may be granted include: (a) incentive stock options, (b) non-qualified stock options, (c) stock appreciation rights, (d) restricted awards, (e) performance share awards, and (f) performance compensation awards. These awards offer our officers, employees, consultants and directors the possibility of future value, depending on the long-term price appreciation of our common stock and the award holder’s continuing service with the Company.
Stock options give the option holder the right to acquire from us a designated number of shares of common stock at a purchase price that is fixed upon the grant of the option. The exercise price will not be less than the market price of the common stock on the date of grant. Stock options granted may be either tax-qualified stock options (so-called “incentive stock options”) or non-qualified stock options.
Stock appreciation rights (“SARs”) which may be granted alone or in tandem with options, have an economic value similar to that of options. When a SAR for a particular number of shares is exercised, the holder receives a payment equal to the difference between the market price of the shares on the date of exercise and the exercise price of the shares under the SAR. Again, the exercise price for SARs normally is the market price of the shares on the date the SAR is granted. Under the 2020 Plan, holders of SARs may receive this payment – the appreciation value – either in cash or shares of common stock valued at the fair market value on the date of exercise. The form of payment will be determined by us.
Restricted shares are shares of common stock awarded to participants at no cost. Restricted shares can take the form of awards of restricted stock, which represent issued and outstanding shares of our common stock subject to vesting criteria, or restricted stock units, which represent the right to receive shares of our common stock subject to satisfaction of the vesting criteria. Restricted shares are forfeitable and non-transferable until the shares vest. The vesting date or dates and other conditions for vesting are established when the shares are awarded.
The 2020 Plan also provides for performance compensation awards, representing the right to receive a payment, which may be in the form of cash, shares of common stock, or a combination, based on the attainment of pre-established goals.
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All of the permissible types of awards under the 2020 Plan are described in more detail as follows:
Purposes of 2020 Plan: The purposes of the 2020 Plan are to attract and retain officers, employees and directors for the Company and its subsidiaries; motivate them by means of appropriate incentives to achieve long-range goals; provide incentive compensation opportunities; and further align their interests with those of our stockholders through compensation that is based on our common stock.
Administration of the 2020 Plan: The 2020 Plan is administered by our compensation committee (the “Administrator”). Among other things, the Administrator has the authority to select persons who will receive awards, determine the types of awards and the number of shares to be covered by awards, and to establish the terms, conditions, performance criteria, restrictions and other provisions of awards. The Administrator has authority to establish, amend and rescind rules and regulations relating to the 2020 Plan.
Eligible Recipients: Persons eligible to receive awards under the 2020 Plan will be those officers, employees, consultants, and directors of the Company and its subsidiaries who are selected by the Administrator.
Shares Available Under the 2020 Plan: If stockholders approve this Proposal 4 at the Annual Meeting, the maximum number of shares of our common stock that may be delivered to participants under the 2020 Plan will be increased from 1,000,000 to 11,000,000 shares, subject to adjustment for certain corporate changes affecting the shares, such as stock splits.
The 2020 Plan currently includes a fungible share counting provision under which the share reserve is reduced by one share for each share subject to options or SARs, and by two shares for each share subject to all other stock awards. If stockholders approve this Proposal 4 at the Annual Meeting, the amended 2020 Plan will remove the fungible share counting provision for purposes of new awards so that the share reserve will be reduced by one share for each share subject to a stock award, regardless of the type of award.
Shares of common stock covered by awards that expire, lapse or are forfeited, repurchased, canceled, or otherwise terminated without the delivery of the full number of covered shares generally will be available for further awards under the 2020 Plan to the extent of such expiration, forfeiture, cancellation, etc. If stockholders approve this Proposal 4 at the Annual Meeting, the number of shares that again become available for awards under the 2020 Plan will be added back to the share reserve on a one-for-one basis, except that shares of common stock subject to awards granted under the 2020 Plan prior to approval at the Annual Meeting (other than stock options or stock appreciation rights) will be added back as two shares for each share subject to such stock award. Shares subject to an award that is settled in cash will not again be made available for grants under the 2020 Plan.
Stock Options:
General. Subject to the provisions of the 2020 Plan, the Administrator has the authority to determine all grants of stock options. That determination will include: (i) the number of shares subject to any option; (ii) the exercise price per share; (iii) the expiration date of the option; (iv) the manner, time and date of permitted exercise; (v) other restrictions, if any, on the option or the shares underlying the option; and (vi) any other terms and conditions as the Administrator may determine.
Option Price. The exercise price for stock options will be determined at the time of grant. Normally, the exercise price will not be less than the fair market value on the date of grant. As a matter of tax law, the exercise price for any incentive stock option awarded may not be less than the fair market value of the shares on the date of grant. However, incentive stock option grants to any person owning more than 10% of our voting stock must have an exercise price of not less than 110% of the fair market value on the grant date.
Exercise of Options. An option may be exercised only in accordance with the terms and conditions for the option agreement as established by the Administrator at the time of the grant. The option must be exercised by notice to us, accompanied by payment of the exercise price. Payments may be made in cash or, at the option of the Administrator, by actual or constructive delivery of shares of common stock to the holder of the option based upon the fair market value of the shares on the date of exercise.
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Expiration or Termination. Options, if not previously exercised, will expire on the expiration date established by the Administrator at the time of grant. In the case of incentive stock options, such term cannot exceed ten years provided that in the case of holders of more than 10% of our voting stock, such term cannot exceed five years. Options will terminate before their expiration date if the holder’s service with the Company or a subsidiary terminates before the expiration date. The option may remain exercisable for specified periods after certain terminations of employment, including terminations as a result of death, disability or retirement, with the precise period during which the option may be exercised to be established by the Administrator and reflected in the grant evidencing the award.
Incentive and Non-Qualified Options. As described elsewhere in this summary, an incentive stock option is an option that is intended to qualify under certain provisions of the Internal Revenue Code of 1986, as amended (the “Code”), for more favorable tax treatment than applies to non-qualified stock options. Any option that does not qualify as an incentive stock option will be a non-qualified stock option. Under the Code, certain restrictions apply to incentive stock options. For example, the exercise price for incentive stock options may not be less than the fair market value of the shares on the grant date and the term of the option may not exceed ten years. In addition, an incentive stock option may not be transferred, other than by will or the laws of descent and distribution, and is exercisable during the holder’s lifetime only by the holder. In addition, no incentive stock options may be granted to a holder that is first exercisable in a single year if that option, together with all incentive stock options previously granted to the holder that also first become exercisable in that year, relate to shares having an aggregate fair market value in excess of $100,000, measured at the grant date.
Stock Appreciation Rights: Awards of SARs may be granted alone or in tandem with stock options. SARs provide the holder with the right, upon exercise, to receive a payment, in cash or shares of stock, having a value equal to the excess of the fair market value on the exercise date of the shares covered by the award over the exercise price of those shares. Essentially, a holder of a SAR benefits when the market price of the common stock increases, to the same extent that the holder of an option does, but, unlike an option holder, the SAR holder need not pay an exercise price upon exercise of the award.
Stock Awards: Stock awards can also be granted under the 2020 Plan. A stock award is a grant of shares of common stock or of a right to receive shares in the future. These awards will be subject to such conditions, restrictions and contingencies as the Administrator shall determine at the date of grant. Those may include requirements for continuous service and/or the achievement of specified performance goals.
Cash Awards: A cash award is an award that may be in the form of cash or shares of common stock or a combination, based on the attainment of pre-established performance goals and other conditions, restrictions and contingencies identified by the Administrator.
Section 162(m) of the Code: Section 162(m) of the Code limits publicly-held companies to an annual deduction for United States federal income tax purposes of $1.0 million for compensation paid to each of their chief executive officer and their three highest compensated executive officers (other than the chief executive officer) determined at the end of each year, referred to as covered employees.
Performance Criteria: Under the 2020 Plan, one or more performance criteria will be used by the Administrator in establishing performance goals. Any one or more of the performance criteria may be used on an absolute or relative basis to measure the performance of the Company, as the Administrator may deem appropriate, or as compared to the performance of a group of comparable companies, or published or special index that the Administrator deems appropriate. In determining the actual size of an individual performance compensation award, the Administrator may reduce or eliminate the amount of the award through the use of negative discretion if, in its sole judgment, such reduction or elimination is appropriate. The Administrator shall not have the discretion to (i) grant or provide payment in respect of performance compensation awards if the performance goals have not been attained or (ii) increase a performance compensation award above the maximum amount payable under the 2020 Plan.
Other Material Provisions: Awards will be evidenced by a written agreement, in such form as may be approved by the Administrator. In the event of various changes to the capitalization of the Company, such as stock splits, stock dividends and similar re-capitalizations, an appropriate adjustment will be made by the Administrator
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to the number of shares covered by outstanding awards or to the exercise price of such awards. The Administrator is also permitted to include in the written agreement provisions that provide for certain changes in the award in the event of a change of control of the Company, including acceleration of vesting. Except as otherwise determined by the Administrator at the date of grant, awards will not be transferable, other than by will or the laws of descent and distribution. Prior to any award distribution, we are permitted to deduct or withhold amounts sufficient to satisfy any employee withholding tax requirements. Our board also has the authority, at any time, to discontinue the granting of awards. The Board also has the authority to alter or amend the 2020 Plan or any outstanding award or may terminate the 2020 Plan as to further grants, provided that no amendment will, without the approval of our stockholders, to the extent that such approval is required by law or the rules of an applicable exchange, increase the number of shares available under the 2020 Plan, change the persons eligible for awards under the 2020 Plan, extend the time within which awards may be made, or amend the provisions of the 2020 Plan related to amendments. No amendment that would adversely affect any outstanding award made under the 2020 Plan can be made without the consent of the holder of such award.
New Plan Benefits
Future awards, if any, that will be made to eligible persons under the 2020 Plan are subject to the discretion of the Administrator and, therefore, we cannot currently determine the benefits or number of shares subject to awards that may be granted in the future to our employees, consultants and non-employee directors under the 2020 Plan.
No Dissenters’ Rights
Under Delaware law, holders of our common stock are not entitled to dissenter’s rights of appraisal with respect to the approval of this Proposal No. 4.
Vote Required
In order for Proposal No. 4 to be approved, holders of a majority of the shares present or represented by proxy at the Annual Meeting and entitled to vote must vote “FOR” Proposal No. 4. You may vote “FOR”, “AGAINST” or “ABSTAIN” on Proposal No. 4. Shares represented by a properly submitted Proxy Card will be voted “FOR” Proposal No. 4 unless otherwise marked. Abstentions have the same effect as a vote “AGAINST” this Proposal. Shares underlying broker non-votes will not be entitled to vote at the Annual Meeting, and therefore broker non-votes will have no effect on the result of the vote, and they will not be considered present for the purpose of determining the presence of a quorum.
THE BOARD RECOMMENDS A VOTE “FOR” THIS PROPOSAL NO. 4
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CORPORATE GOVERNANCE
Corporate Governance Guidelines
Our Board adopted Corporate Governance Guidelines to ensure that the Board will have the necessary authority and practices in place to review and evaluate our business operations as needed and to make decisions that are independent of our management. The guidelines are also intended to align the interests of directors and management with those of the company’s stockholders. The Corporate Governance Guidelines set forth the practices the Board intends to follow with respect to Board composition and selection, Board meetings and involvement of senior management, succession planning, and Board committees and compensation. A copy of the Corporate Governance Guidelines may be found on our IR site under the link for “Governance.”
Independence of the Board
Our Board has determined that all of our directors, other than Messrs. Fouerti, Roberts and Tobin, qualify as “independent” directors in accordance with the rules and regulations of NYSE American. Mr. Fouerti is not considered independent because he is an employee of the Company or its subsidiaries and Messrs. Roberts and Tobin are not considered independent because of their affiliation with our manager, 1847 Partners LLC. In making its independence determinations, the Board considered, among other things, relevant transactions between the Company and entities associated with the independent directors, as described under the heading “Certain Relationships and Related Party Transactions,” and determined that none have any relationship with the company or other relationships that would impair the directors’ independence.
Further, the Board has determined that each member of each of the committees of the Board is currently independent in accordance with the rules and regulations of NYSE American and Rule 10a-3(b)(1) under the Exchange Act. There are no family relationships among any of our directors or executive officers.
Leadership Structure
We chose to appoint a separate Chairman of the Board who is not our Chief Executive Officer. Our Board has made this decision based on their belief that a separate Chairman of the Board can act as a balance to the Chief Executive Officer, who also serves as a non-independent director.
Role of Board in Risk Oversight
The Board oversees that the assets of the Company are properly safeguarded, that the appropriate financial and other controls are maintained, and that our business is conducted wisely and in compliance with applicable laws and regulations and proper governance. Included in these responsibilities is the Board’s oversight of the various risks facing the Company. In this regard, our Board seeks to understand and oversee critical business risks. Our Board does not view risk in isolation. Risks are considered in virtually every business decision and as part of our business strategy. Our Board recognizes that it is neither possible nor prudent to eliminate all risk. Indeed, purposeful and appropriate risk-taking is essential for the Company to be competitive on a global basis and to achieve its objectives.
While the Board oversees risk management, company management is charged with managing risk. Management communicates routinely with the Board and individual directors on the significant risks identified and how they are being managed. Directors are free to, and indeed often do, communicate directly with senior management.
Our Board administers its risk oversight function as a whole by making risk oversight a matter of collective consideration. Much of this work has been delegated to committees, which will meet regularly and report back to the full Board. The audit committee oversees risks related to our consolidated financial statements, the financial reporting process, accounting and legal matters, the compensation committee evaluates the risks and rewards associated with our compensation philosophy and programs, and the nominating and corporate governance committee evaluates risk associated with management decisions and strategic direction.
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Board Meetings and Committees
Our Board meets on a regular basis during the year. Our Board met three times in 2020 following our initial public offering in August 2020. Each of the incumbent directors attended 75% or more of the aggregate number of meetings of the Board and all committees of the Board on which he or she served held during the period for which he or she was a director in 2020. We have encouraged all of our directors and nominees for director to attend our Annual Meeting; however, attendance is not mandatory.
Our Board has established four standing committees—audit, compensation, nominating and corporate governance and strategic planning—each of which operates under a charter that has been approved by our Board and that satisfies the applicable standards of the SEC and NYSE American. The table below provides current committee composition.
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Directors
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Audit
Committee
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Compensation
Committee
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Nominating and
Corporate
Governance
Committee
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Strategic
Planning
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Ellery W. Roberts
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Albert Fouerti
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Ellette A. Anderson*
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Clark R. Crosnoe*
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Glyn C. Milburn*
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G. Alan Shaw*
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Alan P. Shor*
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Edward J. Tobin
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Member
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Committee Chair
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*
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Independent Director
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The functions performed by these committees are set forth in more detail in their charters, which may be found on our IR site under the link for “Governance”, and are summarized below.
Audit Committee
The audit committee oversees our accounting and financial reporting processes and the audits of the consolidated financial statements of the Company. A copy of its charter may be found on our IR site at https://investor.goedekers.com/governance/governance-documents/.
The audit committee is responsible for, among other things: (i) retaining and overseeing our independent accountants; (ii) assisting the Board in its oversight of the integrity of our consolidated financial statements, the qualifications, independence and performance of our independent auditors and our compliance with legal and regulatory requirements; (iii) reviewing and approving the plan and scope of the internal and external audit; (iv) pre-approving any audit and non-audit services provided by our independent auditors; (v) approving the fees to be paid to our independent auditors; (vi) reviewing with our chief executive officer and chief financial officer and independent auditors the adequacy and effectiveness of our internal controls; (vii) reviewing hedging transactions; and (viii) reviewing and assessing annually the audit committee’s performance and the adequacy of its charter.
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Our Board has determined that each member of the audit committee is an independent director under NYSE American rules and under Rule 10A-3 under the Exchange Act. All members of our audit committee meet the requirements for financial literacy under the applicable rules and regulations of the SEC and NYSE American. Our Board has determined that Mr. Crosnoe is an “audit committee financial expert” as defined by applicable SEC rules and has the requisite financial sophistication as defined under the applicable NYSE American rules and regulations. The audit committee met three times in 2020 following our initial public offering in August 2020.
Compensation Committee
The compensation committee assists the Board in reviewing and approving the compensation structure, including all forms of compensation, relating to our directors and executive officers. A copy of its charter may be found on our IR site at https://investor.goedekers.com/governance/governance-documents/.
The compensation committee is responsible for, among other things: (i) reviewing and approving the remuneration of our executive officers; (ii) making recommendations to the Board regarding the compensation of our independent directors; (iii) making recommendations to the Board regarding equity-based and incentive compensation plans, policies and programs; and (iv) reviewing and assessing annually the compensation committee’s performance and the adequacy of its charter.
Our Board has determined that each member of the compensation committee is independent under the applicable rules and regulations of NYSE American, is an outside director within the meaning of Section 162(m) of the Code, and is a “non-employee director” as defined under Rule 16b-3 of the Exchange Act. The compensation committee met once in 2020 following our initial public offering in August 2020.
Nominating and Corporate Governance Committee
The nominating and corporate governance committee assists the Board in selecting individuals qualified to become directors and in determining the composition of the Board and its committees. A copy of its charter may be found on our IR site at https://investor.goedekers.com/governance/governance-documents/.
The nominating and corporate governance committee is responsible for, among other things: (i) identifying and evaluating individuals qualified to become members of the Board by reviewing nominees for election to the board submitted by stockholders and recommending to the Board director nominees for each annual meeting of stockholders and for election to fill any vacancies on the Board; (ii) advising the Board with respect to Board organization, desired qualifications of Board members, the membership, function, operation, structure and composition of committees (including any committee authority to delegate to subcommittees), and self-evaluation and policies; (iii) advising on matters relating to corporate governance and monitoring developments in the law and practice of corporate governance; (iv) overseeing compliance with the our code of ethics; and (v) approving any related party transactions.
Our Board has determined that each member of the nominating and corporate governance committee is an independent director under the applicable rules and regulations of NYSE American. The nominating and corporate governance committee did not meet in 2020.
Strategic Planning Committee
The Strategic Planning Committee focuses on initiatives that enable the Company to continue advancing the integration of the Company following the business combination with Appliances Connection and advising on the best ways to grow market share. The Strategic Planning Committee was formed in August 2021.
Director Nomination Process
The nominating and corporate governance committee’s methods for identifying candidates for election to our Board (other than those proposed by our stockholders, as discussed below) will include the solicitation of ideas for possible candidates from a number of sources—members of our Board, our executives, individuals personally known to the members of our Board, and other research. The nominating and corporate governance committee may also, from time-to-time, retain one or more third-party search firms to identify suitable candidates.
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In making director recommendations, the nominating and corporate governance committee may consider some or all of the following factors: (i) the candidate’s judgment, skill, experience with other organizations of comparable purpose, complexity and size, and subject to similar legal restrictions and oversight; (ii) the interplay of the candidate’s experience with the experience of other Board members; (iii) the extent to which the candidate would be a desirable addition to the Board and any committee thereof; (iv) whether or not the person has any relationships that might impair his or her independence; and (v) the candidate’s ability to contribute to the effective management of the Company, taking into account the needs of the Company and such factors as the individual’s experience, perspective, skills and knowledge of the industry in which we operate.
A stockholder may nominate one or more persons for election as a director at any annual meeting of stockholders if the stockholder complies with the notice and information provisions contained in our Bylaws. Such notice must be in writing to the Company not less than 90 days and not more than 120 days prior to the anniversary date of the preceding year’s annual meeting of stockholders or as otherwise required by requirements of the Exchange Act. As provided in our Bylaws, in the event an annual meeting has not been previously held, such notice must be received not later than the close of business on the 10th day following the date on which public announcement of the date of the annual meeting is first made. In addition, stockholders furnishing such notice must be a holder of record on both (i) the date of delivering such notice and (ii) the record date for the determination of stockholders entitled to vote at such meeting.
Stockholder Communications with the Board
Stockholders and other interested parties may communicate with the Board, or any individual member of the Board, at the following address:
1847 Goedeker Inc.
3817 Millstone Parkway
St. Charles, MO 63301
Attention: Secretary
Communications must state the number of shares owned by the person making the communication, if any. Our Secretary will review and forward such communication to all of the members of the Board or to the individual director(s) to whom the communication is addressed unless the communication is unduly frivolous, hostile, threatening or similarly inappropriate, in which case, our Secretary may disregard the communication in his or her discretion.
Code of Ethics
We have adopted a code of ethics that applies to all of our directors, officers and employees, including our principal executive officer, principal financial officer and principal accounting officer. Such code of ethics addresses, among other things, honesty and ethical conduct, conflicts of interest, compliance with laws, regulations and policies, including disclosure requirements under the federal securities laws, and reporting of violations of the code.
A copy of the code may be found on our IR site at https://investor.goedekers.com/governance/governance-documents/. We intend to make all required disclosures regarding any amendments to, or waivers from, any provisions of the code at the same location of our website.
Audit Committee Report
The material in this report is not “soliciting material,” is not deemed “filed” with the SEC, and is not to be incorporated by reference into any filing of 1847 Goedeker Inc. under the Securities Act of 1933, as amended, or the Exchange Act.
The primary purpose of the audit committee is to oversee our financial reporting processes on behalf of our Board. The audit committee’s functions are more fully described in its charter, which is available on our IR site under the link for “Governance.” Management has the primary responsibility for our financial statements and reporting processes, including our systems of internal controls. Friedman LLP, our independent registered public
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accounting firm for fiscal year 2020, is responsible for expressing an opinion on the conformity of our audited financial statements with accounting principles generally accepted in the United States and the effectiveness of our internal control over financial reporting.
The audit committee is also responsible for appointment, compensation, retention and oversight of the work of the independent auditor, including pre-approving any audit and non-audit service provided to the company by the independent auditor, periodically reviewing and evaluating the performance of the lead audit partner, as well as reviewing and considering the selection of the lead audit partner. The audit committee also periodically considers whether there should be a rotation of our independent registered public accounting firm. In addition to Friedman LLP’s independence from the Company and management, the audit committee also considers several other factors in deciding whether to re-engage Friedman LLP, including: the quality of its staff, work and quality control; its policies related to independence; its global reach; and its capability and expertise to perform an audit of our financial statements and internal control over financial reporting, given the breadth and complexity of its business and global footprint.
In fulfilling its oversight responsibilities, the audit committee reviewed with management and Friedman LLP the audited financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2020.
The audit committee also discussed with Friedman LLP the matters that are required to be discussed by the PCAOB, as adopted in Auditing Standard No. 1301, Communications with Audit Committees. Friedman LLP has also provided the audit committee the written disclosures and the letter required by applicable requirements of the PCAOB regarding the independent registered public accounting firm’s communications with the audit committee concerning independence, and the audit committee has discussed with Friedman LLP that firm’s independence. The audit committee has concluded that Friedman LLP’s provision of audit and non-audit services to the Company and its affiliates is compatible with Friedman LLP’s independence. Finally, the audit committee discussed with Friedman LLP, with and without management present, the scope and results of Friedman LLP’s audit of such financial statements.
Based on these reviews and discussions, the audit committee has recommended to our Board that such audited financial statements be included in our Annual Report on Form 10-K for the year ended December 31, 2020 for filing with the SEC. The audit committee also has engaged Friedman LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2021 and is seeking ratification of such selection by the stockholders.
Members of the audit & risk oversight committee at the time of the filing of the Annual Report who approved this report:
Clark R. Crosnoe
Glyn C. Milburn
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EXECUTIVE OFFICERS
The following table sets forth our executive officers and their respective ages and positions with us as of the Record Date.
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Name
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Age
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Position(s)
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Ellery W. Roberts
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41
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Executive Chairman
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Albert Fouerti
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41
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Chief Executive Officer and Director
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Maria Johnson
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48
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Chief Financial Officer
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Robert D. Barry
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77
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Chief Accounting Officer
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Thomas S. Harcum
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39
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Chief Marketing Officer and Chief Technology Officer
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Elie Fouerti
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43
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Vice President of Appliances Connection
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Each of Messrs. Roberts and Albert Fouerti also serve on our Board and their biographical information can be found above under the heading “Proposal No. 1 - Election of Directors”. The biographical information for our other executive officers is set forth below.
Maria Johnson. Ms. Johnson has served as our Chief Financial Officer since July 2021. She is an accomplished finance executive with over 20 years of professional experience spanning across various industries and areas of expertise, including business strategy, finance transformation, financial planning and analysis, accounting and controls, GAAP, IFRS, tax, treasury, audit and compliance, risk management, and international business. Throughout her career, Ms. Johnson held leadership roles within some of the best-in-class finance organizations, including Hewlett Packard, PepsiCo and ExxonMobil, and partnered with several private equity firms in driving value creation through process optimization and finance and organizational transformation of mid-market companies in technology, media and fashion space. Most recently, she served as the Chief Financial Officer of E3 Investment Group, a private equity firm, since December 2019. Prior to that, she served as the Chief Financial Officer of John Hardy, a global omni channel luxury jewelry brand, from January 2018 to December 2019, as the Vice President of Finance of Cheetah Digital, a leading digital marketing solution provider, from April 2017 to January 2018 and as the Director of Financial Planning & Analysis of PepsiCo from March 2015 to April 2017. Ms. Johnson holds an MBA in Finance from the University of Texas at Austin Red McCombs School of Business, an MA in Speech Communications from the Texas State University, and a BA in International Business from the State Academy of Management. She is a Certified Public Accountant and a Certified Internal Auditor.
Robert D. Barry. Mr. Barry has served as our Chief Accounting Officer since July 2021 and previously served as our Chief Financial Officer from our inception in January 2019 until his appointment as of Chief Accounting Officer. He has served on the board of directors of our former parent company, 1847 Holdings LLC, since January 2014. From April 2013 until August 2016, Mr. Barry was Chief Executive Officer and Chief Financial Officer of Pawn Plus Inc., a chain of five retail pawn stores in suburban Philadelphia and one pawn store in northeastern Ohio. Prior to that, Mr. Barry served as Executive Vice President and Chief Financial Officer of Regional Management Corp., a consumer loan company based in Greenville, South Carolina, from March 2007 to January 2013. Prior to joining Regional Management Corp., Mr. Barry was the Managing Member of AccessOne Mortgage Company, LLC in Raleigh, North Carolina, from 1997 to 2007. During this time, he also served as part-time Chief Financial Officer for Patriot State Bank, in Fuquay-Varina, North Carolina, from March 2006 to March 2007 and Nuestro Banco, Raleigh, North Carolina, from July 2006 to March 2007. Prior to his time at AccessOne, Mr. Barry was Executive Vice President and Chief Financial Officer for Regional Acceptance Corporation, a consumer finance company based in Greenville, North Carolina and prior to that he was a financial institutions partner in the Raleigh, North Carolina office of KPMG LLP. Mr. Barry is a Certified Public Accountant licensed in North Carolina and Georgia.
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Thomas S. Harcum. Mr. Harcum has served as our Chief Marketing Officer and Chief Technology Officer since January 2020. He has almost 20 years of experience in marketing and technology in several fields, including pharmaceuticals and publishing. Particularly, Mr. Harcum’s expertise includes direct to consumer e-commerce, lead generation and cost center management and P&L responsibilities for marketing funnel management, customer acquisition, telephony, product development, technology management, project management, development lifecycle and brand management. Previously, he was the Senior Director of Marketing for firstSTREET from October 2012 to December 2019. Mr. Harcum has a B.A. from Virginia Commonwealth University.
Elie Fouerti. Mr. Fouerti has served as the Vice President of our subsidiary ACI since June 2021. He has served as the Vice President of ACI’s various subsidiaries (collectively, Appliances Connection) since 1999. Along with his brother, Albert Fouerti, they have created a successful independent online retailer of appliances. Mr. Fouerti helped his brother in developing a process for delivering bulky items across the United States, paving the way for a new era of ordering appliances online. We believe Mr. Fouerti is qualified to serve as a member of ACI’s management team because of his extensive experience building and leading the Appliances Connection business from its founding and his insight into our industry and business as Appliances Connection’s co-founder and Chief Financial Officer.
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COMPENSATION
Summary Compensation Table
The following table sets forth information concerning all cash and non-cash compensation awarded to, earned by or paid to the named persons for services rendered in all capacities during the noted periods. No other executive officers received total annual salary and bonus compensation in excess of $100,000.
|
Name and Principal Position
|
Year
|
Salary
($)
|
Bonus
($)
|
Option
Awards
($)(1)
|
All Other
Compensation
($)(2)
|
Total
($)
|
|
|
Douglas T. Moore,
Former Chief Executive Officer(2)
|
2020
|
341,923
|
130,000
|
910,264
|
16,965
|
1,399,152
|
|
|
2019
|
133,727
|
35,000
|
-
|
9,465
|
178,192
|
|
|
Robert D. Barry,
Former Chief Financial Officer(3)
|
2020
|
149,077
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-
|
376,800
|
-
|
525,877
|
|
|
2019
|
61,762
|
-
|
-
|
-
|
61,762
|
|
|
Thomas S. Harcum,
Chief Marketing and Technology Officer(4)
|
2020
|
131,923
|
-
|
157,000
|
17,470
|
306,393
|
|
|
2019
|
-
|
-
|
|
-
|
-
|
|
Employment and Separation Agreements
On August 15, 2019, we entered into an employment letter agreement with Mr. Moore setting forth the terms of the compensation for his services as Chief Executive Officer of the Company. On April 21, 2020, we amended the employment letter agreement, which became effective upon closing of our initial public offering on August 4, 2020. Pursuant to the employment letter agreement, as amended, Mr. Moore was entitled to an annual base salary of $400,000. On June 3, 2021, we amended the employment letter agreement to increase Mr. Moore’s base salary to $650,000. On August 19, 2020, we also granted Mr. Moore a special bonus of up to $125,000. We also granted to Mr. Moore an option to purchase 263,158 shares of our common stock immediately following the closing of the initial public offering with an exercise price of $9.00, equal to the public offering price per share paid in the initial public offering. Mr. Moore also received relocation compensation, including a signing bonus of $35,000, reimbursement of living and accommodations in the St. Louis area for up to six months, car rental expenses for up to two months, and reimbursement of once monthly round trip airline tickets to St. Louis for either Mr. Moore or his spouse until April 2020. Mr. Moore was also eligible to participate in all employee benefit plans, including health insurance, commensurate with his position. The employment letter agreement contains restrictive covenants prohibiting Mr. Moore from (i) owning or operating a business that competes with the Company during the term of his employment and for a period of one year following the termination of his employment or (ii) soliciting our employees for a period of two years following the termination of his employment.
On August 30, 2021, Mr. Moore resigned from his position as Chief Executive Officer and from our Board. On the same date, we entered into a separation and release agreement with Mr. Moore providing for the separation
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of his employment effective as of August 30, 2021. Under the separation and release agreement, we agreed, subject to Mr. Moore’s compliance with each and every provision of the separation and release agreement, to pay Mr. Moore a severance payment equal to one year of his base salary at his current level ($650,000 per year), less applicable statutory deductions and authorized withholdings, payable in equal installments on our regular payroll dates during the period commencing on September 1, 2021 and ending on August 31, 2021. We also agreed to continue to pay our share of Mr. Moore’s health care costs under our medical, dental or vision plan in which Mr. Moore participates for a period beginning as of September 1, 2021 and ending as of August 31, 2022; provided, however, that Mr. Moore will be responsible for the full amount of the applicable employee contribution as determined and periodically modified by us. The separation and release agreement includes a customary release of claims by Mr. Moore in favor of the Company and its affiliates, as well as customary confidentiality and non-disparagement provisions.
On April 21, 2020, we entered into an employment letter agreement with Robert D. Barry setting forth the terms of the compensation for his services as Chief Financial Officer (and now Chief Accounting Officer) of the Company. This employment letter agreement became effective upon closing of our initial public offering on August 4, 2020. Pursuant to the employment letter agreement, Mr. Barry is entitled to an annual base salary of $250,000 and an annual incentive bonus of up to 50% of base to the extent that we achieve certain annual EBITDA objectives to be established by our compensation committee. Mr. Barry is also entitled to a 15% discount on all purchases from the Company. He is also eligible to participate in all employee benefit plans, including health insurance, commensurate with his position. Mr. Barry’s employment is at-will and may be terminated by us at any time. Mr. Barry may terminate his employment upon 90 days’ notice. If we terminate Mr. Barry’s employment without cause, he is entitled to six months of base compensation, which will be paid in a lump sum upon termination. The employment letter agreement contains restrictive covenants prohibiting Mr. Barry from (i) owning or operating a business that competes with the Company during the term of his employment and for a period of one year following the termination of his employment or (ii) soliciting our employees for a period of two years following the termination of his employment.
On December 13, 2019, we entered into an employment offer letter with Thomas S. Harcum setting forth the terms of the compensation for his services as Chief Marketing Officer and Chief Technology Officer of the Company, effective as of January 6, 2020. Pursuant to the employment offer letter, Mr. Harcum is entitled to an annual base salary of $140,000 and an annual incentive bonus of up to 20% of base to the extent that we achieve certain annual EBITDA objectives to be established by our compensation committee. He is also eligible to participate in all employee benefit plans, including health insurance, commensurate with his position. Mr. Harcum’s employment is at-will and may be terminated by us at any time.
Retirement Benefits
We have not maintained, and do not currently maintain, a defined benefit pension plan or nonqualified deferred compensation plan. We currently make available a retirement plan intended to provide benefits under Section 401(k) of the Code, pursuant to which employees, including the executive officers named above, can make voluntary pre-tax contributions. We currently match 100% of elective deferrals up to 3% of compensation and 50% of elective deferrals for next 2% of compensation. These matching contributions vest 100% following 60 days of the participant’s employment. All contributions under the plan are subject to certain annual dollar limitations, which are periodically adjusted for changes in the cost of living. See the Summary Compensation Table for matches made for the executive officers named above.
Potential Payments Upon Termination or Change in Control
As described under “—Employment and Separation Agreements” above, Mr. Moore is entitled to severance as described in the separation and release agreement and Mr. Barry is entitled severance as described in his employment agreement if his employment is terminated without cause.
In the event of a change in control (as defined in the 2020 Plan), which includes in the event that incumbent directors cease for any reason to constitute at least a majority of the Board (unless the nomination of new directors
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is approved by at least two-thirds of the incumbent directors), all options issued to the executive officers named above shall become immediately vested and exercisable with respect to 100% of the shares subject to the options. As a result, if the Kanen Nominees are elected to the Board at the Annual Meeting, all options issued to the executive officers will become fully vested unless the nomination of the Kanen Directors is approved by at least two-thirds of the incumbent directors.
Outstanding Equity Awards at Fiscal Year End
The following table includes certain information with respect to the value of all unexercised options and unvested shares of restricted stock previously awarded to the executive officers named above at the fiscal year ended December 31, 2020.
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Name
|
Option Awards
|
|
|
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
|
Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
|
Equity Incentive
Plan Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options (#)
|
Option
Exercise
Price ($)
|
Option
Expiration
Date
|
|
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Douglas T. Moore
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65,790
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197,368
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-
|
$9.00
|
08/04/2030
|
|
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Robert D. Barry
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-
|
120,000
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-
|
$9.00
|
09/10/2030
|
|
|
Thomas S. Harcum
|
-
|
50,000
|
-
|
$9.00
|
09/10/2030
|
|
Director Compensation
The table below sets forth the compensation paid to our non-executive directors during the fiscal year ended December 31, 2020.
|
Name
|
Fees Earned or
Paid in Cash
($)
|
Total
($)
|
|
|
Ellette A. Anderson
|
14,583
|
14,583
|
|
|
Clark R. Crosnoe
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14,583
|
14,583
|
|
|
Paul A. Froning
|
14,583
|
14,583
|
|
|
Glyn C. Milburn
|
14,583
|
14,583
|
|
During 2020, our independent directors received an annual fee of $35,000, payable monthly commencing in the first month following the closing of our initial public offering in August 2020.
2020 Equity Incentive Plan
Please see “Proposal No. 4 – Plan Amendment” for a description of the 2020 Plan.
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
The following includes a summary of transactions since the beginning of our 2019 fiscal year, or any currently proposed transaction, in which we were or are to be a participant and the amount involved exceeded or exceeds the lesser of $120,000 or one percent of the average of our total assets at year-end for the last two completed fiscal years, and in which any related person had or will have a direct or indirect material interest (other than compensation described under “Compensation”). We believe the terms obtained or consideration that we paid or received, as applicable, in connection with the transactions described below were comparable to terms available or the amounts that would be paid or received, as applicable, in arm’s-length transactions.
Management Services Agreement
On April 5, 2019, we entered into a management services agreement with 1847 Partners LLC, our manager, which is owned and controlled by Ellery W. Roberts, our Chairman, pursuant to which we appointed our manager to provide certain services to us for a quarterly management fee equal to $62,500. Under certain circumstances specified in the management services agreement, our quarterly fee may be reduced if similar fees payable to our manager by subsidiaries of our former parent company, 1847 Holdings LLC, exceed a threshold amount.
Pursuant to the management services agreement, we must also reimburse our manager for all costs and expenses which are specifically approved by our Board, including all out-of-pocket costs and expenses, that are actually incurred by our or our affiliates on our behalf in connection with performing services under the management services agreement.
The services provided by our manager include: conducting general and administrative supervision and oversight of our day-to-day business and operations, including, but not limited to, recruiting and hiring of personnel, administration of personnel and personnel benefits, development of administrative policies and procedures, establishment and management of banking services, managing and arranging for the maintaining of liability insurance, arranging for equipment rental, maintenance of all necessary permits and licenses, acquisition of any additional licenses and permits that become necessary, participation in risk management policies and procedures; and overseeing and consulting with respect to our business and operational strategies, the implementation of such strategies and the evaluation of such strategies, including, but not limited to, strategies with respect to capital expenditure and expansion programs, acquisitions or dispositions and product or service lines.
We expensed $125,000 in management fees for the six months ended June 30, 2021 and 2020 and $250,000 and $183,790 for the years ended December 31, 2020 and 2019, respectively.
Advances
As of December 31, 2019, our manager had funded $33,738 to us in related party advances. These advances were unsecured, bore no interest, and did not have formal repayment terms or arrangements. These advances were repaid from the proceeds of our initial public offering in August 2020.
Related Party Note
A portion of the purchase price for our acquisition of Goedeker Television Co. (“Goedeker Television”) was paid by our issuance to Steve Goedeker, as representative of Goedeker Television, of a 9% subordinated promissory note in the principal amount of $4,100,000. Michael Goedeker, our director, President and Chief Operating Officer until March 2020 and a significant stockholder, was also a director, officer and principal stockholder of Goedeker Television.
As of December 31, 2019, the balance of the note was $3,300,444. On June 2, 2020, the parties entered into an amendment and restatement of the note that became effective as of the closing of our initial public offering on August 4, 2020, pursuant to which (i) the principal amount of the existing note was increased by $250,000, (ii) upon the closing of the initial public offering, we agreed to make all payments of principal and interest due under the note through the date of the closing, and (iii) from and after the closing, the interest rate of the note was increased from 9% to 12%. In accordance with the terms of the amended and restated note, we used a portion of the proceeds from the initial public offering to pay $1,083,842 of the balance of the note representing a $696,204 reduction in the principal balance and interest accrued through August 4, 2020 of $387,638. We repaid this note in August 2020.
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Securities Purchase Agreement
On April 5, 2019, the Company, 1847 Goedeker Holdco Inc. (“Holdco”) (our direct parent company at such time) and 1847 Holdings LLC (Holdco’s parent company at such time) entered into a securities purchase agreement with Leonite Capital LLC (“Leonite”), pursuant to which the Company, Holdco and 1847 Holdings LLC issued to Leonite a secured convertible promissory note in the aggregate principal amount of $714,286. As additional consideration for the purchase of the note, (i) 1847 Holdings LLC issued to Leonite 50,000 common shares (valued at $137,500), (ii) 1847 Holdings LLC issued to Leonite a five-year warrant to purchase 200,000 common shares at an exercise price of $1.25 per share (subject to adjustment), which may be exercised on a cashless basis, and (iii) Holdco issued to Leonite shares of common stock equal to a 7.5% non-dilutable interest in Holdco. As of December 31, 2019, the balance of the note was $584,943. As a result of this transaction, Leonite became a related party.
On May 11, 2020, the Company, Holdco, 1847 Holdings LLC and Leonite entered into a first amendment to secured convertible promissory note, pursuant to which the parties agreed (i) to extend the maturity date of the note to October 5, 2020, (ii) that our failure to repay the note on the original maturity date of April 5, 2020 shall not constitute and event of default under the note and (iii) to increase the principal amount of the note by $207,145, as a forbearance fee.
On August 4, 2020, we used a portion of the proceeds from our initial public offering to repay the note in full.
Related Party Leases
On June 2, 2021, our subsidiary 1 Stop Electronics Center, Inc. entered into a lease agreement with 1870 Bath Ave. LLC, an entity that is owned by Albert Fouerti, a member of our Board and the President of ACI and Appliances Connection, and Elie Fouerti, the Vice President of ACI and Appliances Connection, for our premises located at 1870 Bath Avenue, Brooklyn, NY. The lease is for a term of ten (10) years and provides for a base rent of $74,263 per month during the first year with annual increases to $96,896.37 during the last year of the term. 1 Stop Electronics Center, Inc. is also responsible for all property taxes, insurance costs and the utilities used on the premises. The lease contains customary events of default.
On June 2, 2021, our subsidiary Joe’s Appliances LLC entered into a lease agreement with 812 5th Ave Realty LLC, an entity that is owned by Albert Fouerti and Elie Fouerti, for our premises located at 7812 5th Avenue, Brooklyn, NY. The lease is for a term of ten (10) years and provides for a base rent of $6,365.40 per month during the first year with annual increases to $8,305.40 during the last year of the term. Joe’s Appliances LLC is also responsible for all property taxes, insurance costs and the utilities used on the premises. The lease contains customary events of default.
DMI Cooperative
The Company is a member of Dynamic Marketing, Inc. (“DMI”), an appliance purchasing cooperative. DMI purchases consumer electronics and appliances at wholesale prices from various vendors, and then makes such products available to its members, including the Company, who sell such products to end consumers. DMI’s purchasing group arrangement provides its members, including the Company, with leverage and purchasing power with appliance vendors, and increases our ability to compete with competitors, including big box appliance and electronics retailers. We own an approximate 5% interest in the cooperative. Additionally, Albert Fouerti is on the board of DMI. As such, DMI is deemed to be a related party.
At June 30, 2021, vendor rebate deposits due from DMI were $10,009,836. During the three and six months ended June 30, 2021, total purchases from DMI, net of holdbacks, were $26,999,225 and $27,970,121, respectively.
At December 31, 2020 and 2019, vendor rebate deposits, net, due from DMI were $31,733,415 and $22,005,318, respectively, and vendor rebates receivable were $4,691,514 and $3,284,594, respectively. During the year ended December 31, 2020, the following transactions were carried out with DMI: total purchases $175,630,820, vendor rebates $8,222,373, interest income $968,080, consulting income $255,000, and rent expense $675,000. During the year ended December 31, 2019, the following transactions were carried out with DMI: total purchases $120,328,645, vendor rebates $3,284,594, interest income $1,428,546, consulting income $188,617, and rent expense $337,500.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT
Common Stock Ownership
The following table sets forth certain information with respect to the beneficial ownership of our common stock as of November 1, 2021 for (i) each of our executive officers and directors; (ii) all of our executive officers and directors as a group; and (iii) each other stockholder known by us to be the beneficial owner of more than 5% of our outstanding common stock. Unless otherwise indicated, the address of each beneficial owner listed in the table below is c/o the Company, 3817 Millstone Parkway, St. Charles, MO 63301.
|
Name and Address of Beneficial Owner
|
Title of Class
|
Amount and
Nature of
Beneficial
Ownership(1)
|
Percent of
Class(2)
|
|
|
Albert Fouerti, Chief Executive Officer and Director(3)
|
Common Stock
|
330,000
|
*
|
|
|
Maria Johnson, Chief Financial Officer
|
Common Stock
|
0
|
*
|
|
|
Robert D. Barry, Chief Accounting Officer(4)
|
Common Stock
|
65,199
|
*
|
|
|
Thomas S. Harcum, Chief Marketing and Technology Officer(5)
|
Common Stock
|
18,542
|
*
|
|
|
Ellery W. Roberts, Chairman of the Board(6)
|
Common Stock
|
1,421,235
|
1.34%
|
|
|
Ellette A. Anderson, Director
|
Common Stock
|
23,438
|
*
|
|
|
Clark R. Crosnoe, Director(7)
|
Common Stock
|
556,638
|
*
|
|
|
Glyn C. Milburn, Director
|
Common Stock
|
25,638
|
*
|
|
|
G. Alan Shaw, Director
|
Common Stock
|
0
|
*
|
|
|
Alan P. Shor, Director
|
Common Stock
|
23,438
|
*
|
|
|
Edward J. Tobin, Director
|
Common Stock
|
984,118
|
*
|
|
|
All directors and officers as a group (11 persons above)
|
Common Stock
|
3,448,246
|
3.24%
|
|
|
Sabby Volatility Warrant Master Fund, Ltd.(8)
|
Common Stock
|
8,888,800
|
8.36%
|
|
|
Altium Growth Fund, LP(9)
|
Common Stock
|
6,886,000
|
6.47%
|
|
|
Empery Asset Management, LP(10)
|
Common Stock
|
6,666,600
|
6.27%
|
|
|
David L. Kanen(11)
|
Common Stock
|
6,209,557
|
5.84%
|
|
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Delinquent Section 16(a) Reports
Section 16(a) of the Exchange Act requires our directors and executive officers, and persons who own more than 10% of a registered class of our equity securities, to file with the SEC initial reports of ownership and reports of changes in ownership of common stock and other equity securities of the company. Officers, directors and greater than 10% stockholders are required by SEC regulations to furnish us with copies of all Section 16(a) forms they file.
To our knowledge, based solely on a review of the copies of such reports furnished to us and written representations that no other reports were required, during the year ended December 31, 2020, all Section 16(a) filing requirements applicable to our officers, directors and greater than 10% stockholders were complied with, except that the Form 3s were filed late by Thomas S. Harcum and Michael K. Hargrave due to administrative oversight.
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ADDITIONAL INFORMATION
Deadlines for Receipt of Nominations and Stockholder Proposals
A stockholder who is entitled to vote for the election of directors and who desires to nominate a candidate for election to be voted on at an Annual Meeting of Stockholders may do so only in accordance with Section 2.2 of Article II of the Bylaws, which provides that a stockholder may nominate a director candidate by written notice to the Secretary of the Company not less than 90 days nor more than 120 days prior to the first anniversary of the preceding year’s annual meeting. To be considered timely for the 2022 Annual Meeting, a stockholder nomination, and all supporting information, must be submitted no earlier than August 23, 2022 and no later than September 22, 2022.
A stockholder who desires to present a proposal pursuant to Rule 14a-8 under the Exchange Act to be included in the proxy statement for, and voted on by the shareholders at, the 2022 Annual Meeting must submit such proposal in writing, including all supporting materials, to the Company at its principal office no later than , 2022, 120 days before the date of mailing based on this year’s Proxy Statement date, and meet all other requirements for inclusion in the proxy statement. Additionally, pursuant to Rule 14a-4(c)(1) under the Exchange Act, if a stockholder intends to present a proposal for business to be considered at the 2022 Annual Meeting but does not seek inclusion of the proposal in our proxy statement for such meeting, then we must receive the proposal by , 2022, 45 days before the date of mailing based on this year’s Proxy Statement date, for it to be considered timely received. If notice of a stockholder proposal is not timely received, then the proxies will be authorized to exercise discretionary authority with respect to the proposal.
Householding of Proxy Materials
The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for proxy statements and annual reports with respect to two or more stockholders sharing the same address by delivering a single Notice or Proxy Statement addressed to those stockholders. This process, which is commonly referred to as “householding,” potentially means extra convenience for stockholders and cost savings for companies.
Brokers with account holders who are stockholders may be “householding” our proxy materials. A single Notice or Proxy Statement may be delivered to multiple stockholders sharing an address unless contrary instructions have been received from the affected stockholders. Once you have received notice from your broker that it will be “householding” communications to your address, “householding” will continue until you are notified otherwise or until you notify your broker or the company that you no longer wish to participate in “householding.”
If, at any time, you no longer wish to participate in “householding” and would prefer to receive a separate proxy statement and annual report, you may (1) notify your broker, (2) direct your written request to: 1847 Goedeker Inc., 3817 Millstone Parkway, St. Charles, MO 63301, Attention: Secretary. Stockholders who currently receive multiple copies of the proxy statement at their address and would like to request “householding” of their communications should contact their broker. In addition, we will promptly deliver, upon written or oral request to the address or telephone number above, a separate copy of the annual report and proxy statement to a stockholder at a shared address to which a single copy of the documents was delivered.
No Dissenters’ Rights
Holders of our common stock are not entitled to dissenters’ rights of appraisal.
Other Matters
As of the date of this Proxy Statement, the Board does not intend to present any matters other than those described herein at the Annual Meeting and is unaware of any matters to be presented by other parties. If other matters are properly brought before the meeting for action by the stockholders, proxies will be voted in accordance with the recommendation of the Board or, in the absence of such a recommendation, in accordance with the judgment of the proxy holder, to the extent permitted by Rule 14a-4(c)(3).
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Annual Reports
We have filed our Annual Report on Form 10-K for the fiscal year ended December 31, 2020 with the SEC. It is available free of charge at the SEC’s web site at www.sec.gov. Upon written request by a stockholder, we will mail without charge a copy of our Annual Report on Form 10-K, including the financial statements and financial statement schedules, but excluding exhibits. Exhibits to the Annual Report on Form 10-K are available upon payment of a reasonable fee, which is limited to our expenses in furnishing the requested exhibit. All requests should be directed to 1847 Goedeker Inc., 3817 Millstone Parkway, St. Charles, MO 63301, Attention: Secretary. Our Annual Report on Form 10-K for the fiscal year ended December 31, 2020 is also available in the Investor Relations section of our website, located at https://investor.goedekers.com, under the link for “Financials.”
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By Order of the Board of Directors,
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St. Charles, MO
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Robert D. Barry
|
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, 2021
|
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Chief Accounting Officer and Secretary
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Annex A
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
1847 GOEDEKER INC.
(Pursuant to Section 242 of the
General Corporation Law of the State of Delaware)
1847 Goedeker Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify:
FIRST: That at a meeting of the Board of Directors of the Corporation resolutions were duly adopted setting forth a proposed amendment of the Amended and Restated Certificate of Incorporation of the Corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of the Corporation for consideration thereof. The resolutions setting forth the proposed amendment is as follows:
RESOLVED, that the Amended and Restated Certificate of Incorporation of the Corporation be amended by changing the first sentence of Article IV that, as amended, said sentence shall be and read as follows:
“The total number of shares of capital stock which the Corporation shall have authority to issue is two hundred fifty million (250,000,000) shares of common stock, $0.0001 par value per share (the “Common Stock”), and twenty million (20,000,000) shares of preferred stock, $0.0001 par value per share (the “Preferred Stock”).”
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a meeting of the stockholders of the Corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, 1847 Goedeker Inc. has caused this Certificate of Amendment to be signed this ____ day of __________, 2021.
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1847 GOEDEKER INC.
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By: _______________________________
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Name:
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Title:
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Annex B
AMENDMENT NO. 2
TO
1847 GOEDEKER INC.
2020 EQUITY INCENTIVE PLAN
The 1847 Goedeker Inc. 2020 Equity Incentive Plan, as amended (the “Plan”), is hereby amended as follows:
Section 4 of the Plan is hereby amended in its entirety to read as follows:
“4. Shares Subject to the Plan.
4.1 Subject to adjustment in accordance with Section 11, a total of 11,000,000 shares of Common Stock shall be available for the grant of Awards under the Plan. Shares of Common Stock granted in connection with all Awards under the Plan shall be counted against this limit as one (1) share of Common Stock for every one (1) share of Common Stock granted in connection with such Award. During the terms of the Awards, the Company shall keep available at all times the number of shares of Common Stock required to satisfy such Awards.
4.2 Shares of Common Stock available for distribution under the Plan may consist, in whole or in part, of authorized and unissued shares, treasury shares or shares reacquired by the Company in any manner.
4.3 Any shares of Common Stock subject to an Award that is canceled, forfeited or expires prior to exercise or realization, either in full or in part, shall again become available for issuance under the Plan. Any shares of Common Stock that again become available for future grants pursuant to this Section 4.3 shall be added back as one (1) share. Notwithstanding anything to the contrary contained herein: shares subject to an Award under the Plan shall not again be made available for issuance or delivery under the Plan if such shares are (a) shares tendered in payment of an Option, (b) shares delivered or withheld by the Company to satisfy any tax withholding obligation, or (c) shares covered by a stock-settled Stock Appreciation Right or other Awards that were not issued upon the settlement of the Award.”
Except as herein amended, the provisions of the Plan shall remain in full force and effect.
Effective as of _______________
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PRELIMINARY PROXY SUBJECT TO COMPLETION – DATED NOVEMBER 2, 2021 1847 GOEDEKER INC. 3817 MILLSTONE PARKWAY, ST. CHARLES, MO 63301 ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON DECEMBER 21, 2021 To the Stockholders of 1847 Goedeker Inc. PROXY CARD The undersigned hereby appoints Albert Fouerti and Maria Johnson (together, the “Proxies”), and each of them acting individually or in the absence of others, with full power of substitution and re-substitution, as proxies to vote all of the shares that the undersigned is entitled to vote at the Annual Meeting of Stockholders of 1847 Goedeker Inc. (the “Company”) to be held on December 21, 2021 at [•] [a./p.]m. Eastern Time (including any adjournments or postponements thereof, the “Annual Meeting”). Such shares shall be voted as indicated with respect to the proposals listed on the reverse side hereof and in the Proxies’ discretion on such other matters as may properly come before the Annual Meeting to the extent authorized by Rule 14a- 4(c) under the Securities Exchange Act of 1934, as amended. THE BOARD UNANIMOUSLY RECOMMENDS VOTING “FOR” THE ELECTION OF EACH OF THE BOARD’S NOMINEES ON PROPOSAL No. 1, “FOR” PROPOSAL No. 2, “FOR” PROPOSAL No. 3 AND “FOR” PROPOSAL No. 4 USING THE ENCLOSED PROXY CARD. THE BOARD URGES YOU NOT TO SIGN, RETURN OR VOTE ANY PROXY CARD SENT TO YOU, OTHER THAN THE PROXY CARD. IMPORTANT – PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY. THANK YOU FOR VOTING. (Continued and to be dated and signed on reverse side) SEE REVERSE SIDE 5TO VOTE BY MAIL, PLEASE DETACH HERE, SIGN AND DATE PROXY CARD, AND RETURN IN THE POSTAGE-PAID ENVELOPE PROVIDED5
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THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR ALL” OF THE NOMINEES LISTED IN ITEM 1; AND A VOTE “FOR” ITEM 2, ITEM 3, ITEM 4. Please mark vote as indicated in this example X 1. To elect the nine (9) nominees identified in the accompanying Proxy Statement to serve as directors on the Board of Directors for the ensuing year. 1. Ellery W. Roberts 4. Selim Antoine Bassoul 7. G. Alan Shaw 2. Albert Fouerti 5. Clark R. Crosnoe 8. Alan P. Shor 3. Ellette A. Anderson 6. Glyn C. Milburn 9. Edward J. Tobin FOR ALL WITHHOLD ALL FOR ALL EXCEPT To withhold authority to vote for any individual nominee(s), mark “For All Except” and write the number(s) of the nominee(s) on the line below. 2. To ratify the appointment of Friedman LLP as independent registered public accounting firm for the fiscal year ending December 31, 2021. 3. To approve an amendment of our amended and restated certificate of incorporation to increase the number of shares of common stock that we are authorized to issue from 200,000,000 shares to 250,000,000 shares. 4. To approve an amendment of the 1847 Goedeker Inc. 2020 Equity Incentive Plan to increase the number of shares of common stock available for issuance under such plan from 1,000,000 shares to 11,000,000 shares and eliminate the fungible share counting provision contained in such plan. 5. To transact such other business as may properly come before the Annual Meeting or any adjournment or postponement thereof. FOR AGAINST ABSTAIN Date (Signature) (Signature if held jointly) Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name, by authorized officer. PLEASE SIGN, DATE AND RETURN THIS PROXY CARD PROMPTLY USING THE ENCLOSED POSTAGE PAID ENVELOPE TO VOTE BY MAIL, PLEASE DETACH HERE, SIGN AND DATE PROXY CARD, AND RETURN IN THE POSTAGE-PAID ENVELOPE PROVIDED TO AUTHORIZE YOUR PROXY BY TELEPHONE OR INTERNET QUICK EASY IMMEDIATE Your telephone or internet proxy authorizes the Proxies to vote your shares in the same manner as if you marked, signed and returned your proxy card. AUTHORIZE YOUR PROXY BY INTERNET: THE WEB ADDRESS IS www.proxyvoting.com/[•]. You will be asked to enter a CONTROL NUMBER which is located in the lower right hand corner of this form. AUTHORIZE YOUR PROXY BY PHONE: You will be asked to enter a CONTROL NUMBER which is located in the lower right hand corner of this form. OPTION A: You are encouraged to review each proposal and select a voting choice before you submit your proxy. Please press 0 in order to vote on each proposal separately. OPTION B: If you prefer not to select a voting choice with respect to each proposal you may press 1 to submit a proxy. If you select this option, your shares will be voted in accordance with the recommendations made by the Board of Directors. Call Toll Free 1-800-579-1639 There is NO CHARGE to you for this call Internet and Telephone voting is available through 11:59 P.M. Eastern Time on December 21, 2021. CONTROL NUMBER for Telephone/Internet Proxy Authorization