UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Filed
by the Registrant ☒
Filed
by a Party other than the Registrant ☐
Check
the appropriate box:
☐ |
Preliminary Proxy Statement |
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Confidential, for Use of the
Commission Only (as permitted by Rule 14a-6(e)(2)) |
☒ |
Definitive Proxy Statement |
☐ |
Definitive Additional Materials |
☐ |
Soliciting Material under §
240.14a-12 |
VERB
TECHNOLOGY COMPANY, INC.
(Name
of Registrant as Specified In Its Charter)
(Name of Person(s) Filing
Proxy Statement if other than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
☒ |
No
fee required |
☐ |
Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
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Title
of each class of securities to which transaction applies: |
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Aggregate
number of securities to which transaction applies: |
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Per unit
price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing
fee is calculated and state how it was determined): |
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4. |
Proposed
maximum aggregate value of transaction: |
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5. |
Total
fee paid: |
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Fees
paid previously with preliminary materials. |
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Check
box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its
filing. |
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1. |
Amount Previously
Paid: |
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2. |
Form, Schedule or Registration
Statement No.: |
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Filing Party: |
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Date Filed: |
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NOTICE
OF THE 2022 VIRTUAL ANNUAL MEETING OF STOCKHOLDERS
TO
BE HELD ON OCTOBER 21, 2022
Dear Fellow Verb Stockholders:
It
is my pleasure to invite you to the 2022 Virtual Annual Meeting of Stockholders (the “Annual Meeting”) of Verb Technology
Company, Inc., a Nevada corporation (the “Company,” “Verb,” “us,” or “our”). The Annual
Meeting will be held on October 21, 2022 at 11:00 a.m. Pacific Time virtually by means of remote communication and can be accessed by
visiting www.virtualshareholdermeeting.com/VERB2022 where you will be able to listen to the meeting live, submit questions and
vote online. You will not be able to attend the meeting in person.
The
Annual Meeting is being held for the following purposes:
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1. |
To
elect six directors to serve on our board of directors until their respective successors are duly elected and qualified, or until
their respective earlier death, resignation or removal; |
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2. |
To ratify
the selection of Weinberg & Company, P.A. as our independent registered public accounting firm; |
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3. |
To approve,
on a non-binding, advisory basis, the compensation of our named executive officers; and |
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4. |
To transact
such other business as may properly come before the Annual Meeting, or any postponement or adjournment thereof. |
Our
board of directors recommends that you vote “FOR” the election of each of the six director nominees; “FOR”
the ratification of the selection of Weinberg & Company, P.A. as our independent registered public accounting firm; and “FOR”
the approval, on a non-binding, advisory basis, of the compensation of our named executive officers.
Only
stockholders of record as of the close of business on August 24, 2022 will be entitled to receive notice of and to vote at the Annual
Meeting, or any postponement or adjournment thereof. The accompanying Proxy Statement contains details concerning the foregoing items,
as well as information on how to vote your shares. Other detailed information about our business and operations, including our audited
financial statements, are included in our Annual Report on Form 10-K, as amended. We urge you to read and consider these documents carefully.
Your
vote is very important. Whether or not you plan to attend the Annual Meeting, we encourage you to submit your proxy or voting instructions
as soon as possible. For specific instructions on how to vote your shares, please refer to the Notice of Internet Availability of Proxy
Materials you received in the mail, and the additional information in the accompanying Proxy Statement. If you requested to receive printed
proxy materials, you may also refer to the instructions on the proxy card enclosed with those materials.
On
behalf of the board of directors, and the officers and employees of the Company, I would like to take this opportunity to thank you for
your continued support.
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Sincerely, |
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/s/
Rory J. Cutaia |
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Rory J. Cutaia |
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Chairperson
of the Board, Chief Executive Officer,
President
and Secretary |
Approximate
Date of Mailing of Notice of Internet Availability of Proxy Materials: September 6, 2022
NOTE
REGARDING FORWARD-LOOKING STATEMENTS
This
Proxy Statement contains forward-looking statements within the meaning of the federal securities laws. Forward-looking statements may
relate to our future financial performance, business operations, and executive compensation decisions, or other future events. You can
identify forward-looking statements by the use of words such as “anticipate,” “believe,” “could,”
“expect,” “intend,” “may,” “will,” or the negative of such terms, or other comparable
terminology. Forward-looking statements also include the assumptions underlying or relating to such statements. We have based these forward-looking
statements on our current expectations and projections about future events that we believe may affect our business, results of operations
and financial condition.
The
outcomes of the events described in these forward-looking statements are subject to risks, uncertainties and other factors described
in the section titled “Risk Factors,” and elsewhere, in the Annual Report on Form 10-K for the fiscal year ended December
31, 2021, as well as the other reports we file with the Securities and Exchange Commission. We cannot assure you that the events and
circumstances reflected in the forward-looking statements will be achieved or occur, and actual results could differ materially from
those expressed or implied in the forward-looking statements. The forward-looking statements made in this Proxy Statement relate only
to events as of the date of this Proxy Statement. We undertake no obligation to update any forward-looking statement to reflect events
or circumstances after the date on which the statement is made.
VERB
TECHNOLOGY COMPANY, INC.
PROXY
STATEMENT
FOR
THE 2022 VIRTUAL ANNUAL MEETING OF STOCKHOLDERS
TO
BE HELD ON OCTOBER 21, 2022
TABLE
OF CONTENTS
VERB
TECHNOLOGY COMPANY, INC.
PROXY
STATEMENT
FOR
THE 2022 VIRTUAL ANNUAL MEETING OF STOCKHOLDERS
TO
BE HELD ON OCTOBER 21, 2022
General
Information
This
Proxy Statement is solicited by the board of directors (our “Board”) of Verb Technology Company, Inc., a Nevada corporation
(the “Company,” “Verb,” “us,” or “our”), for use at our 2022 Virtual Annual Meeting of
Stockholders (the “Annual Meeting”) to be held on October 21, 2022 at 11:00 a.m. Pacific Time, or at any adjournment or postponement
thereof. The Annual Meeting will be held virtually by means of remote communication and can be accessed by visiting www.virtualshareholdermeeting.com/VERB2022
where you will be able to listen to the meeting live, submit questions and vote online. You will not be able to attend the meeting
in person. The Annual Meeting is being held for the purposes described herein and in the Notice of Internet Availability of Proxy Materials
you received in the mail.
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE 2022 VIRTUAL ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON OCTOBER 21, 2022
This
Proxy Statement, the enclosed proxy card, and the Annual Report on Form 10-K for the fiscal year ended December 31, 2021 (as amended,
the “Annual Report”) are available at www.proxyvote.com. The Annual Report, however, is not a part of the proxy solicitation
material.
Questions
and Answers About the Annual Meeting and Voting
Why
did I receive a Notice of Internet Availability of Proxy Materials in the mail?
Under
rules adopted by the Securities and Exchange Commission (the “SEC”), we are providing access to the proxy materials for the
Annual Meeting via the internet. Instead of mailing printed copies of our proxy materials to each of our stockholders, we have elected
to provide online access to the materials under the SEC’s “notice and access” rules. Accordingly, on or about September
6, 2022, we mailed a Notice of Internet Availability of Proxy Materials, or Notice, to each of our stockholders. The Notice contains
instructions on how to access our proxy materials, including this Proxy Statement and the Annual Report, and how to vote your shares.
We encourage you to read the proxy materials carefully prior to voting.
We
believe compliance with the SEC’s “notice and access” rules allows us to provide our stockholders with the materials
they need to make informed decisions, while lowering the costs of printing and delivering those materials and reducing the environmental
impact of the Annual Meeting. However, if you would prefer to receive printed proxy materials, please follow the instructions included
in the Notice.
The
Notice was sent on or about September 6, 2022 to each of our stockholders of record entitled to vote at the Annual Meeting.
Who
can vote at the Annual Meeting?
You
can vote if, as of the close of business on August 24, 2022 (the “Record Date”), you were a stockholder of record of our
common stock. On the Record Date, there were 102,430,979 shares of our common stock outstanding.
Stockholder
of Record: Shares Registered in Your Name
If,
on the Record Date, your shares were registered directly in your name with our transfer agent, VStock Transfer, LLC, then you are a stockholder
of record. As a stockholder of record, you may vote at the Annual Meeting or by proxy. Whether or not you plan to attend the Annual Meeting,
we urge you to provide your proxy to ensure your vote is counted. Even if you vote by proxy, you may still vote if you are able to attend
the Annual Meeting.
Beneficial
Owner: Shares Registered in the Name of a Broker or Other Nominee
If,
on the Record Date, your shares were held in an account at a brokerage firm, bank, dealer, or other nominee, 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 to be 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 nominee on how to vote the shares in your account. If you do not direct your
broker or other nominee how to vote your shares, the broker or other nominee will be entitled to vote the shares with respect to “routine”
items, but will not be permitted to vote the shares with respect to “non-routine” items. Where you do not direct your broker
or other nominee how to vote on “non-routine” items it is referred to as a “broker non-vote.”
Proposal
1, the election of directors, is considered to be a “non-routine” matter under applicable rules. Accordingly, any shares
held in “street name” through a broker or other nominee will not be voted on Proposal 1 unless you affirmatively provide
the nominee with instructions for how to vote. Accordingly, broker non-votes may result for this proposal.
Proposal
2, the ratification of the selection of our independent registered public accounting firm, is considered to be a “routine”
matter under applicable rules. Accordingly, any shares held in “street name” through a broker or other nominee may be voted
by the nominee on Proposal 2 even if you do not provide the nominee with instructions for how to vote. Accordingly, we do not expect
any broker non-votes will result for this proposal.
Proposal
3, the approval of the compensation of our named executive officers, is considered a “non-routine” matter under applicable
rules. Accordingly, any shares held in “street name” through a broker or other nominee will not be voted on Proposal 3 unless
you affirmatively provide the nominee with instructions for how to vote. Accordingly, broker non-votes may result for this proposal.
As
a beneficial owner of shares, you are also invited to attend the Annual Meeting. However, since you are not the stockholder of record,
you may not vote your shares at the Annual Meeting unless you request and obtain a valid proxy from your broker or other nominee. Please
contact your broker or other nominee for additional information.
How
many votes do I have?
On
each matter to be voted upon, you have one vote for each share of common stock that you owned as of the Record Date.
What
is the quorum requirement?
One-third
of the outstanding shares of common stock entitled to vote at the Annual Meeting must be present at the Annual Meeting, either virtually
or represented by proxy, in order for us to hold the Annual Meeting. This is referred to as a quorum. On the Record Date, there were
102,430,979 outstanding shares of our common stock entitled to vote. Thus, 34,143,660 shares of our common stock must be present at the
Annual Meeting, either virtually or represented by proxy, to have a quorum.
Your
shares will be counted towards the quorum only if you submit a valid proxy or vote at the Annual Meeting. Abstentions and broker non-votes
will also be counted towards the quorum requirement.
What
proposals am I being asked to vote upon?
The
Annual Meeting is being held for the following purposes:
| 1. | to
elect six directors to serve on our Board until their respective successors are duly elected
and qualified, or until their respective earlier death, resignation or removal; |
| 2. | to
ratify the selection of Weinberg & Company, P.A. (“Weinberg”) as our independent
registered public accounting firm; and |
| 3. | to
approve, on a non-binding, advisory basis, the compensation of our named executive officers. |
A
vote may also be held on any other business as may properly come before the Annual Meeting, or any postponement or adjournment thereof.
However, as of the date of this Proxy Statement, we are not aware of any other business to be considered or acted upon at the Annual
Meeting.
What
are my voting choices for each of the items to be voted on at the Annual Meeting?
Proposal
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Board
Recommendation |
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Voting
Choices |
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Vote
Required for
Adoption |
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Effect
of Abstentions |
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Effect
of Broker Non-Votes |
1 – Election of six
directors |
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“FOR”
each nominee |
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●
Vote “For All” of the nominees listed
●
Vote “Withhold All” to withhold for all of the nominees listed
●
Vote “For All Except” to vote for all nominees except the nominee(s) written |
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Plurality of the votes cast
by the holders of shares present virtually or represented by proxy and entitled to vote at the Annual Meeting |
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No effect |
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No effect |
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2 – Ratification of
the selection of Weinberg as our independent registered public accounting firm |
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“FOR” |
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●
Vote “For” this proposal
●
Vote “Against” this proposal
●
Abstain from voting on this proposal |
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Approved if a majority of the
votes cast “For” this proposal at the Annual Meeting exceeds the number of votes cast “Against” this proposal |
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No effect |
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No broker non-votes; brokers
have discretion to vote |
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3 – Approval, on a
non-binding, advisory basis, of the compensation of our named executive officers |
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“FOR” |
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●Vote
“For” this proposal
●
Vote “Against” this proposal
●
Abstain from voting on this proposal |
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Approved, on a non-binding
advisory basis, if a majority of the votes cast “For” this proposal at the Annual Meeting exceeds the number of votes
cast “Against” this proposal |
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No effect |
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No effect |
How
do I vote?
Stockholder
of Record: Shares Registered in Your Name
If
you are a stockholder of record, you may vote using the following methods:
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● |
At
the Annual Meeting. To vote at the Annual Meeting, attend the Annual Meeting via the Internet and follow the instructions. |
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By
Internet. To vote by proxy via the Internet, follow the instructions described on the Notice (or proxy card if you requested
printed proxy materials). |
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By
Telephone. To vote by proxy via telephone within the United States and Canada, use the toll-free number on the Notice (or proxy
card if you requested printed proxy materials). |
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By
Mail. If you requested printed proxy materials, to vote by mail, complete, sign, and date the proxy card and return it in the
envelope provided. |
Whether
or not you plan to attend the Annual Meeting, we urge you to vote by proxy using one of the methods described above to ensure your vote
is counted. You may still attend the Annual Meeting and vote even if you have already voted by proxy.
Beneficial
Owner: Shares Registered in the Name of Broker or Other Nominee
If
you are a beneficial owner of shares registered in the name of your broker or other nominee, you may vote using the following methods:
|
● |
At
the Annual Meeting. To vote at the Annual Meeting, you must obtain a valid proxy from your broker or other nominee. Follow the
instructions from your broker or other nominee, or contact them to request a proxy form. |
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By
Internet. You may vote through the Internet if your broker or other nominee makes this method available, in which case the instructions
will be included in the proxy materials provided to you. |
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By
Telephone. You may vote by telephone if your broker or other nominee makes this method available, in which case the instructions
will be included in the proxy materials provided to you. |
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● |
By
Mail. If you received a proxy card and voting instructions from the broker or other nominee holding your shares rather than from
us, follow the instructions on the proxy card. |
What
if I am a stockholder of record and return a proxy card but do not make specific choices?
You
should specify your choice for each matter on the proxy card. If you return a signed and dated proxy card without marking voting selections
for the specific proposals, your shares will be voted:
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● |
“FOR”
the six director nominees; |
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● |
“FOR”
the ratification of the selection of Weinberg as our independent registered public accounting firm; and |
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● |
“FOR”
the approval, on a non-binding, advisory basis, for the compensation of our named executive officers. |
In
the event any other matters are properly presented at the Annual Meeting, or any postponement or adjournment thereof, the person named
as proxy will vote in accordance with his discretion with respect to those matters.
What
if I am a beneficial owner and do not give voting instructions to my broker or other nominee?
If
you fail to provide your broker with voting instructions before the Annual Meeting, your broker will be unable to vote on the non-routine
matters. Your broker may use his or her discretion to cast a vote on any routine matter for which you did not provide voting instructions.
Who
is paying for this proxy solicitation?
We
will pay for the entire cost of soliciting proxies. In addition to these mailed proxy materials, our directors, officers, and employees
may also solicit proxies by mail, in person, by telephone, or by other means of communication. Directors, officers, and employees will
not be paid any additional compensation for soliciting proxies. We will also reimburse brokerage firms, banks, and other agents for the
cost of forwarding proxy materials to beneficial owners.
What
is “householding”?
The
SEC has adopted rules that permit companies and intermediaries, such as brokers, to satisfy the delivery requirements for proxy statements
with respect to two or more security holders sharing the same address by delivering a single copy of a notice and, if applicable, a proxy
statement, to those security holders.
A
single copy of the Notice and, if applicable, this Proxy Statement will be delivered to multiple stockholders sharing an address unless
contrary instructions have been received from these stockholders. Once you have received notice from your broker, or from us, that they
will be “householding” communications to your address, “householding” will continue until you are notified otherwise
or until you revoke your consent. If, at any time, you no longer wish to participate in “householding” and would prefer to
receive a separate Notice and Proxy Statement, please notify your broker and also notify us by sending your written request to: Verb
Technology Company, Inc., 3401 North Thanksgiving Way, Suite 240, Lehi, Utah 84043, Attention: Investor Relations or by calling Investor
Relations at (855) 250-2300.
A
stockholder who currently receives multiple copies of the Notice or Proxy Statement at its address and would like to request “householding”
should also contact its broker and notify us using the contact information above.
Can
I revoke or change my vote after submitting my proxy?
Yes.
You can revoke your proxy at any time before the final vote at the Annual Meeting as discussed below.
If
you are a stockholder of record, you may revoke your proxy by:
|
● |
sending
written notice of revocation to Verb Technology Company, Inc., 3401 North Thanksgiving Way, Suite 240, Lehi, Utah 84043, Attention:
Corporate Secretary, in time for it to be received before the Annual Meeting; |
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● |
submitting
a new proxy with a later date using any of the voting methods described above (subject to the deadlines for voting with respect to
each method); or |
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● |
voting
at the Annual Meeting (provided that attending the meeting will not, by itself, revoke your proxy). |
If
you are a beneficial owner of shares and have instructed your broker or other nominee to vote your shares, you may change your vote by
following the directions received from your nominee to change those voting instructions or by attending the Annual Meeting and voting.
However, you may not vote your shares at the Annual Meeting unless you request and obtain a valid proxy from your broker or other nominee.
Who
will count votes at the Annual Meeting?
Votes
will be counted by the inspector of election appointed for the Annual Meeting. The inspector of election will also determine the number
of shares outstanding, the number of shares represented at the Annual Meeting, the existence of a quorum, and whether or not the proxies
and ballots are valid and effective.
How
can I find out the results of the voting at the Annual Meeting?
We
will announce preliminary voting results at the Annual Meeting. We will report the final voting results in a Current Report on Form 8-K
that we expect to file with the SEC within four business days following the date on which such results become final.
When
are stockholder proposals for the 2023 annual meeting due?
Stockholders
interested in presenting a proposal to be considered for inclusion in the proxy statement relating to the 2023 annual meeting of stockholders
may do so by following the procedures prescribed in Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and our Amended and Restated Bylaws (the “Bylaws”). To be considered for inclusion, stockholder proposals must
be submitted in writing to Verb Technology Company, Inc., 3401 North Thanksgiving Way, Suite 240, Lehi, Utah 84043, Attention: Corporate
Secretary, before May 9, 2023, which is 120 calendar days prior to the anniversary of the mailing date of this Proxy Statement. Any such
proposal must meet the requirements of the Bylaws and all applicable laws and regulations.
Any
stockholder who wishes to have a proposal considered at the 2023 annual meeting of stockholders, or to nominate a director for election
at that meeting, but not submitted for inclusion in the proxy statement relating to that meeting, must give advance notice to us prior
to the deadline for such meeting. Under the Bylaws, in order for a proposal or nomination to be timely, it must be received by us no
earlier than 120 days prior to the anniversary date of the Annual Meeting, or June 23, 2023, and no later than 90 days prior to the anniversary
of the Annual Meeting, or July 23, 2023. In the event the 2023 annual meeting if stockholders is being held more than 30 days before
or more than 70 days after the anniversary of the Annual Meeting, or if directors are to be elected at a special meeting, you should
refer to the Bylaws for the specific requirements. We will not consider any proposal or nomination that is not timely or that otherwise
does not meet each of the requirements of the Bylaws.
PROPOSAL
1 – ELECTION OF DIRECTORS
General
Stockholders
are being asked to elect six directors, Rory J. Cutaia, Phillip J. Bond, Kenneth S. Cragun, James P. Geiskopf, Judith Hammerschmidt and
Edmund C. Moy, each to serve for a term ending at the next annual meeting of stockholders following the Annual Meeting, or until their
respective successors have been duly elected and qualified, or until their respective earlier death, resignation or removal.
Nancy
Heinen will not be standing for re-election at the Annual Meeting and her service on our Board and committees will conclude at the Annual
Meeting. Our Board would like to thank Ms. Heinen for her years of dedicated service to the Company.
If
any of the director nominees becomes unable or unwilling to serve as a director before the Annual Meeting, an event which is not presently
anticipated, the person named as proxy will vote in accordance with his discretion for any substitute nominee proposed by our Board or,
if no substitute is selected by our Board at the Annual Meeting, for a motion to reduce the authorized number of directors to the number
of director nominees remaining available to serve.
Voting
Recommendation
OUR
BOARD RECOMMENDS THAT YOU VOTE “FOR” THE ELECTION OF EACH OF THE SIX DIRECTOR NOMINEES.
INFORMATION
ABOUT OUR BOARD, BOARD COMMITTEES AND GOVERNANCE
Board
and Committee Composition
Currently,
we have six directors with each director serving until his or her successor is duly elected and qualified, or until his or her earlier
death, resignation or removal. Five of the director nominees are existing directors. Mr. Moy was recommended for election by the Governance
and Nominating Committee.
The
table below lists each director nominee’s committee memberships and the chairperson of each Board committee.
Name |
|
Audit
Committee |
|
Compensation
Committee |
|
Governance
and
Nominating
Committee |
|
Risk
and Disclosure Committee |
Rory J. Cutaia |
|
|
|
|
|
|
|
|
James P. Geiskopf |
|
X |
|
Chairperson |
|
X |
|
X |
Phillip J. Bond |
|
X |
|
X |
|
Chairperson |
|
X |
Kenneth S. Cragun |
|
Chairperson |
|
X |
|
X |
|
Chairperson |
Judith Hammerschmidt |
|
|
|
X |
|
X |
|
|
Edmund C. Moy(1) |
|
|
|
X |
|
X |
|
X |
| (1) | This
table reflects the committees to which Mr. Moy is expected to be appointed assuming he is
elected at the Annual Meeting. |
Biographical
Information – Directors and Executive Officers
The
table below provides certain biographical information about our director nominees and executive officers.
Name |
|
Position
Held |
|
Age |
|
Since |
|
|
|
|
|
|
|
Rory J. Cutaia |
|
Chairperson of our Board, President,
Chief Executive Officer and Secretary |
|
66 |
|
October
16, 2014 |
Salman H. Khan |
|
Chief Financial Officer and
Treasurer |
|
44 |
|
January
20, 2022 |
James P. Geiskopf |
|
Lead Independent Director |
|
63 |
|
October
16, 2014 |
Philip J. Bond |
|
Director |
|
65 |
|
September
10, 2018 |
Kenneth S. Cragun |
|
Director |
|
61 |
|
September
10, 2018 |
Judith Hammerschmidt |
|
Director |
|
68 |
|
December
20, 2019 |
Nancy Heinen(1) |
|
Director |
|
65 |
|
December
20, 2019 |
Edmund C. Moy |
|
Director Nominee |
|
64 |
|
N/A |
| (1) | Ms.
Heinen will not be standing for re-election at the Annual Meeting and her service on our
Board and committees will conclude at the Annual Meeting. |
Board
Diversity Matrix
In
accordance with the rules of the Nasdaq Stock Market (“Nasdaq”), the following table reflects our Board diversity matrix
as of September 6, 2022:
Total Number of Directors |
|
6 |
|
|
|
|
|
Female |
|
Male |
|
Non-Binary |
|
Did Not Disclose Gender |
|
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Part I: Gender Identity |
|
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|
Directors |
|
2 |
|
4 |
|
- |
|
- |
Part II: Demographic Background |
|
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African American or Black |
|
- |
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- |
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- |
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- |
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Business
Experience
Below
is a brief account of the business experience of each of the director nominees and executive officers.
Rory
J. Cutaia, Chairperson of our Board, President, Chief Executive Officer and Secretary
Rory
J. Cutaia has served as our Chairperson of our Board, Chief Executive Officer, President and Secretary, since the formation of Cutaia
Media Group (“CMG”) in 2012, in which roles he has continued to serve through our October 2014 acquisition of bBooth (USA),
Inc. (“bBooth”) to the present. In these roles, Mr. Cutaia also serves as our Principal Executive Officer. Mr. Cutaia founded
CMG in 2012 and bBooth in 2014. In May 2014, CMG and bBooth merged and became known as bBoothUSA, which was acquired in October 2014
by Global Systems Designs, Inc. (“GSD”), our predecessor. Prior to that, from October 2006 to August 2011, Mr. Cutaia was
a partner and Entrepreneur-in-Residence at Corinthian Capital Group, Inc. (“Corinthian”), a private equity fund based
in New York City that invested in middle-market, U.S. based companies. During his tenure at Corinthian, from June 2008 to October 2011,
Mr. Cutaia was the co-founder and Executive Chairman of Allied Fiber, Inc., a company engaged in the construction of a nation-wide fiber-optic
network, and from June 2007 to August 2011, Mr. Cutaia was the Chief Executive Officer of GreenFields Coal Company, a company engaged
in the deployment of technology to recycle coal waste and clean-up coal waste sites. Before joining Corinthian, from January 2000 to
October 2006, he founded and was the Chairman and Chief Executive Officer of The Telx Group, Inc. (“Telx”), a company engaged
in the telecom carrier inter-connection, co-location, and data center business, which he sold in 2006. Before founding Telx, Mr. Cutaia
was a practicing lawyer with Shea & Gould, a prominent New York City law firm. Mr. Cutaia earned his Juris Doctorate from the Fordham
University School of Law in 1985 and his Bachelor of Science, magna cum laude, in business management from the New York Institute
of Technology in 1982.
We
believe Mr. Cutaia is qualified to serve on our Board because of his extensive knowledge of our business and current operations, as well
as his education and the additional business experiences described above.
Salman
H. Khan, Chief Financial Officer and Treasurer
Salman
H. Khan was permanently appointed as our Chief Financial Officer and Treasurer on March 30, 2022 after having been appointed Interim
Chief Financial Officer and Treasurer on January 20, 2022. In these roles, Mr. Khan also serves as our Principal Financial Officer
and Principal Accounting Officer. Mr. Khan initially joined the Company in May 2021 as Executive Vice President of Corporate
Development and Strategic Planning where he worked closely with our Chief Executive Officer in connection with mergers and acquisitions
and capital market activities. Prior to joining the Company, Mr. Khan served as business division chief financial officer, among other
senior executive level positions with Occidental Petroleum Corporation and its spinoff, California Resources Corporation, a NYSE listed
company with a market capitalization of approximately $3.5 billion. Mr. Khan has more than 20 years of finance and accounting experience
with eight years at Arthur Andersen, PricewaterhouseCoopers and Ernst & Young, where he served domestic and international clients
in technology, media, telecommunications, entertainment, and biotechnology industries. Mr. Khan holds a Masters in Business Administration
from the University of Michigan, Ross School of Business and is a licensed chartered certified accountant (UK).
James
P. Geiskopf, Lead Independent Director
James
P. Geiskopf has served as one of our directors since the formation of bBooth in May of 2014, in which role he has continued to serve
through our October 2014 acquisition of bBooth by GSD to the present. He also serves as our Lead Independent Director, as the Chairperson
of the Compensation Committee, and as a member of the Audit Committee, Governance and Nominating Committee and Risk Committee. Mr. Geiskopf
has 32 years of experience leading companies in the services industry. From 1975 to 1986, Mr. Geiskopf served as the Chief Financial
Officer of Budget Rent a Car of Fairfield California and from 1986 to 2007, he served as its President and Chief Executive Officer. In
2007, he sold the franchise. Mr. Geiskopf served on the board of directors of Suisun Valley Bank from 1986 to 1993 and also served on
the board of directors of Napa Valley Bancorp from 1991 to 1993, which was sold to a larger institution in 1993. Since 2014, Mr. Geiskopf
has served on the board of directors of MetaWorks Platforms, Inc. (formerly Currency Works, Inc.), a public company that trades on the
OTCQB. From June 2013 to March 2017, Mr. Geiskopf served as a director of Electronic Cigarettes International Group, Ltd.(“ECIG”),
a Nevada corporation, an OTC listed company. ECIG filed a voluntary petition for relief under the provisions of Chapter 7 of Title 11
of the United States Code on March 16, 2017.
We
believe Mr. Geiskopf is qualified to serve on our Board because of his significant business experience including building, operating,
and selling companies, serving on the boards of directors for several banks, and serving as a director and officer of several public
companies. In these roles he acquired substantial business management, strategic, operational, human resource, financial, disclosure,
compliance, and corporate governance skills.
Phillip
J. Bond, Director
Phillip
J. Bond was appointed as one of our directors in September 2018 and currently serves as the Chairperson of the Audit Committee, and as
a member of the Compensation Committee, Governance and Nominating Committee and Risk Committee. In 2018, Mr. Bond co-founded Potomac
International Partners, Inc., a multidisciplinary consulting firm and currently serves as its President of Government Affairs. In 2009,
TechAmerica, a U.S.-based technology trade association, was formed from the merger of AeA, the Cyber Security Industry Alliance, the
Government Electronics & Information Technology Association, and the Information Technology Association of America. Mr. Bond was
appointed as the President of TechAmerica at the date of the merger, and was appointed as its Chief Executive Officer in 2010. Prior
to the merger, Mr. Bond served as the President and Chief Executive Officer of Information Technology Association of America from 2006
to 2008. From 2001 to 2005, Mr. Bond served as Undersecretary of Technology in the U.S. Department of Commerce for Technology. From 2002
to 2003, Mr. Bond served concurrently as Chief of Staff to Commerce Secretary Donald Evans. In his dual role, he worked closely with
Secretary Evans to increase market access for U.S. goods and services and further advance America’s technological leadership at
home and abroad. Mr. Bond oversaw the operations of the National Institute of Standards and Technology, the Office of Technology Policy,
and the National Technical Information Service. Mr. Bond also served as Director of Federal Public Policy for the Hewlett-Packard Company;
Senior Vice President for Government Affairs and Treasurer of the Information Technology Industry Council; as Chief of Staff to the late
Congresswoman Jennifer Dunn (R-WA); Principal Deputy Assistant Secretary of Defense for Legislative Affairs; Chief of Staff and Rules
Committee Associate for Congressman Bob McEwen (R-OH); and as Special Assistant to the Secretary of Defense for Legislative Affairs.
Mr. Bond is a graduate of Linfield College in Oregon, where he earned his bachelor’s degree in communications, and now serves on
the board of trustees.
We
believe Mr. Bond is qualified to serve on our Board because he has extensive and unique leadership experience in Washington D.C., where
he is recognized for his leadership roles in the Executive branch of the government of the United States, at major high technology companies,
and most recently as the Chief Executive Officer of TechAmerica, the largest technology advocacy association in the United States.
Kenneth
S. Cragun, Director
Kenneth
S. Cragun was appointed as one of our director in September 2018, and also serves as the Chairperson of the Audit Committee, and as
a member of the Compensation Committee, Governance and Nominating Committee and Risk Committee. Mr. Cragun was appointed
as Chief Financial Officer of BitNile Holdings, Inc. (NYSE American: NILE) on August 19, 2020. Prior to his appointment as Chief
Financial Officer, Mr. Cragun served as Chief Accounting Officer of BitNile Holdings, Inc. since October 1, 2018. Mr. Cragun has
served as the Chief Financial Officer of Ault Disruptive Technologies Corporation, an NYSE listed special-purpose acquisition
company, since its incorporation in February 2021. Mr. Cragun has been the Senior Vice President of Finance or Chief Financial
Officer of Alzamend Neuro, Inc. (NASDAQ: ALZN), an early clinical-stage entity seeking to prevent, treat and cure Alzheimer’s
Disease, since October of 2018. He served as a Chief Financial Officer Partner at Hardesty, LLC, a national executive services firm
since October 2016. His assignments at Hardesty, LLC included serving as Chief Financial Officer of CorVel Corporation, a $1.1
billion market cap publicly traded company (NASDAQ: CRVL). Mr. Cragun is a three-time finalist for the Orange County Business
Journal’s “CFO of the Year - Public Companies” and has more than 30 years of experience, primarily in the
technology industry. He served as Chief Financial Officer of two Nasdaq-listed companies: Local Corporation, from April 2009 to
September 2016, which operated a U.S. top 100 website “Local.com” and, in June 2015, filed a voluntary petition seeking
relief under the provisions of Chapter 11 of Title 11 of the United States Code, and Modtech Holdings, Inc., from June 2006 to March
2009. Mr. Cragun serves on the board of directors of The Singing Machine Company, Inc. (NASDAQ: MICS). Mr. Cragun earned his
Bachelor of Science in Accounting from Colorado State University-Pueblo. Mr. Cragun began his professional career at
Deloitte.
We
believe Mr. Cragun is qualified to serve on our Board due to his extensive experience with fast-growth businesses and building teams
in more than 20 countries. Mr. Cragun has also led multiple financing transactions, including IPOs, PIPEs, convertible debt offerings,
term loans and lines of credit. We believe his experiences provide additional breadth and depth to our Board.
Nancy
Heinen, Former Director
Nancy
Heinen was appointed as one of our directors in December 2019 and serves on the Compensation Committee, Governance and Nominating Committee
and Risk Committee. Ms. Heinen is currently a board member, investor, strategy consultant, and startup advisor with more than 25 years
of experience in senior executive roles in Silicon Valley. In 1997, she was recruited by Steve Jobs to join the executive team of Apple
Inc. (“Apple”), and assisted in its turnaround. During Ms. Heinen’s tenure at Apple, her responsibilities included
all legal matters, including intellectual property litigation, acquisitions, corporate governance, and securities compliance, as well
as global government affairs and corporate security. Previously, she served as General Counsel of NeXT Software, Inc., and Associate
General Counsel at Tandem Computers, Inc. Ms. Heinen currently acts as Board Chair of First Place for Youth, is a board member and past
board chair of SV2 – Silicon Valley Social Venture Fund, and serves on the advisory boards of Illuminate Ventures, University of
California, Berkeley Center for Law and Business, and the Northern California Innocence Project. Ms. Heinen earned her Bachelor of Arts
and Juris Doctor from the University of California at Berkeley.
Judith
Hammerschmidt, Director
Judith
Hammerschmidt was appointed as one of our directors in December 2019 and serves on the Compensation Committee and Governance and Nominating
Committee. Ms. Hammerschmidt has spent the last 40 years as an international attorney. She began her career as a Special Assistant
to two Attorneys General of the United States, focusing on international matters of interest to the U.S. government, including negotiating
treaties and agreements with foreign governments. She then joined Dickstein, Shapiro & Morin, LLP, a Washington, D.C. firm, where
she represented companies around the world as they expanded internationally in highly regulated environments. Her clients included Guess?
Inc., Pfizer Inc., Merck & Co., Inc., the Receiver for Bank of Credit and Commerce International of the United Arab Emirates, Recycled
Paper Products, Inc., and Herbalife Nutrition Ltd. (“Herbalife”). She provided structuring, growth, and regulatory advice
for these and other companies. She joined Herbalife as Vice President and General Counsel of Europe in 1994, becoming Executive Vice
President and International Chief Counsel in 1996. In 2002, she was part of the management group that sold Herbalife. Since that time,
she has served as outside counsel to a series of entrepreneurial companies looking to expand internationally, primarily in the food and
drug/nutritional supplements space. In addition, Ms. Hammerschmidt was previously a Principal in JBT, LLC, a privately held company that
owned “mindful dining” restaurants in the Washington, D.C. area. Ms. Hammerschmidt earned her Bachelor of Arts from Duke
University and her Juris Doctor from the University of Pittsburgh. Since December 2021, Ms. Hammerschmidt has served as a member
of the board of directors of NewAge, Inc. On August 30, 2022, NewAge filed a voluntary petition for relief under the provisions of Chapter
11 of Title 11 of the United States Code.
We
believe that Ms. Hammerschmidt is qualified to serve on our Board because of her significant legal and regulatory experience counseling
clients of different sizes and stages of growth on complex matters. We believe these experiences will provide additional breadth and
depth to our Board.
Edmund
C. Moy, Director Nominee
Edmund
C. Moy is a director nominee and, if elected, is expected to serve on the Compensation Committee, Governance and Nominating Committee
and Risk and Disclosure Committee. From 2001 through 2006, Mr. Moy served as special assistant to the President of the United
States at The White House, after which he was appointed as director of the United States Mint at the U.S. Department of the Treasury,
a position he held until 2011. Mr. Moy began his career as a sales and marketing executive with Blue Cross Blue Shield United of Wisconsin,
was appointed head of the regulatory agency Office of Prepaid Health Care, and was then selected to head the Office of Managed Care at
the Centers for Medicare and Medicaid Services. Thereafter, he became an exclusive advisor to private equity firm Welsh, Carson, Anderson
& Stowe. Mr. Moy currently serves as a director and member of the audit committee of MetaWorks Platforms, Inc. (formerly Currency
Works, Inc.), as director and chair of the audit committee of Parsec Capital Acquisitions Corp. (PCXCU:NASDAQ), and as an advisory
board member of Draganfly Inc. (DPRO:NASDAQ). He also advises and consults with several privately held companies, is an exclusive provider
of autographs to Numismatic Guaranty Corp., and serves on the Board of Regents for Trinity International University. His prior board
service includes privately held Emerald Health Network and L&L Energy, Inc. (LLEN:NASDAQ). He earned his Bachelor of Arts in Economics,
International Relations, and Political Science in 1979 from the University of Wisconsin - Madison.
We
believe that Mr. Moy is qualified to serve on our Board because he has extensive and unique leadership experience in Washington D.C.,
where he is recognized for his leadership roles in the Executive Branch of the government of the United States, as well as the experience
gained from serving on the boards of several public companies.
Family
Relationships
There
are no family relationships among any of our directors, director nominees or executive officers.
Legal
Proceedings
Except
as disclosed under “Business Experience” above, there are no legal proceedings related to any of our directors, director
nominees or executive officers which are required to be disclosed pursuant to applicable SEC rules.
Agreements
with Directors
None
of our directors or director nominees were selected pursuant to any arrangement or understanding, other than with our directors acting
within their capacity as such.
Meetings
of our Board and its Committees
Our
Board has a standing Audit Committee, Compensation Committee, Governance and Nominating Committee, and Risk and Disclosure Committee.
Our Board met 11 times, including telephonic meetings, during the fiscal year ended December 31, 2021. All six directors attended 100%
of our Board meetings held during that period. Messrs. Geiskopf, Bond, and Cragun and Mses. Hammerschmidt and Heinen attended 100% of
the meetings held by committees of our Board on which they served during that period.
It
is our policy that all of our directors are required to make a concerted and conscientious effort to attend our annual meeting of stockholders
in each year during which that director serves as a member of our Board. All of our directors attended our 2021 annual meeting of stockholders.
Audit
Committee
In
June 2021, our Board amended and restated the Audit Committee charter. The Audit Committee charter can be found online at https://www.verb.tech/investor-relations/governance/audit.
The
Audit Committee charter requires that each member of the committee meet the independence requirements of Nasdaq and the SEC, and requires
the committee to have at least one member that qualifies as an “audit committee financial expert.” Currently, Messrs. Geiskopf,
Bond, and Cragun (Chairperson) serve on the Audit Committee and each meets the independence requirements of Nasdaq and the SEC. In addition,
Mr. Cragun qualifies as an “audit committee financial expert” under applicable SEC regulations.
In
addition to the enumerated responsibilities of the Audit Committee in the charter, the primary function of the committee is to assist
our Board in its general oversight of our accounting and financial reporting processes, audits of our financial statements, and internal
control and audit functions.
Compensation
Committee
In
June 2021, our Board amended and restated the Compensation Committee charter. The Compensation Committee charter may be found online
at https://www.verb.tech/investor-relations/governance/compensation-committee.
The
Compensation Committee charter requires that each member of the committee meet the independence requirements of Nasdaq and the SEC. Currently,
Messrs. Geiskopf (Chairperson), Bond and Cragun, and Mses. Hammerschmidt and Heinen, serve as members of the Compensation Committee.
If elected, Mr. Moy is expected to serve on the Compensation Committee following the date of the Annual Meeting and Ms. Heinen’s
service on the committee will conclude at the Annual Meeting. Following the Annual Meeting, each of the members will meet the independence
requirements, qualify as a “non-employee director” within the meaning of Rule 16b-3 under the Exchange Act, and qualify as
an outside director within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended.
In
addition to the enumerated responsibilities of the Compensation Committee in the charter, the primary function of the committee is to
oversee the compensation of our executives, produce an annual report on executive compensation for inclusion in our proxy statement,
if and when required by applicable laws or regulations, and advise our Board on the adoption of policies that govern our compensation
programs.
Governance
and Nominating Committee
In
June 2021, our Board amended and restated the Governance and Nominating Committee charter. The charter of the Governance and Nominating
Committee may be found online https://www.verb.tech/investor-relations/governance/governance-and-nominating-committee.
The
Governance and Nominating Committee charter requires that each member of the committee meet the independence requirements of Nasdaq.
Currently, Messrs. Geiskopf, Bond (Chairperson) and Cragun, and Mses. Hammerschmidt and Heinen, serve as members of the Governance and
Nominating Committee. If elected, Mr. Moy is expected to serve on the Governance and Nominating Committee following the date of the Annual
Meeting and Ms. Heinen’s service on the committee will conclude at the Annual Meeting. Following the Annual Meeting, each of the
members will meet the independence requirements of Nasdaq.
In
addition to the enumerated responsibilities of the Governance and Nominating Committee in the charter, the primary function of the committee
is to determine the slate of director nominees for election to our Board, to identify and recommend candidates to fill vacancies occurring
between annual stockholder meetings, and to review our policies and programs that relate to matters of corporate responsibility.
Risk
and Disclosure Committee
In
June 2021, our Board approved and adopted the Risk and Disclosure Committee charter. The charter of the Risk and Disclosure Committee
may be found online at https://www.verb.tech/investor-relations/governance/risk-and-disclosure.
The
Risk and Disclosure Committee charter requires that each member of the committee meet the independence requirements of Nasdaq. Currently,
Messrs. Geiskopf, Bond and Cragun (Chairman), and Ms. Heinen serve as members of the Risk and Disclosure Committee. If elected, Mr. Moy
is expected to serve on the Risk and Disclosure Committee following the date of the Annual Meeting and Ms. Heinen’s service on
the committee will conclude at the Annual Meeting. Following the Annual Meeting, each of the members will meet the independence requirements
of Nasdaq.
In
addition to the enumerated responsibilities of the Risk and Disclosure Committee in the charter, the primary function of the committee
is to assist our Chief Executive Officer and Chief Financial Officer in fulfilling their responsibility for oversight of the accuracy
and timeliness of the disclosures made by us.
Other
Board Committees
Other
than the Audit Committee, Compensation Committee, Governance and Nominating Committee, and Risk and Disclosure Committee, we have no
standing committees of our Board.
Nominations
Process and Criteria
As
of September 6, 2022, we had not effected any material changes to the procedures by which our stockholders may recommend nominees to
our Board. Our Board does not have a formal policy with regard to the consideration of any director candidates recommended by our stockholders.
Our Board has determined it is in the best position to evaluate our requirements, as well as the qualifications of each candidate when
it considers the recommendation of a director nominee. Accordingly, we do not currently have any minimum criteria for the election of
director nominees, and we do not have any specific procedures for evaluating such nominees. Our Board assesses all candidates, whether
submitted by management or stockholders, and makes recommendations for election or appointment.
In
recommending director nominees for appointment to our Board, the Governance and Nominating Committee also actively considers diversity
characteristics, including diversity of professional experience, race, ethnicity, gender, age, education, cultural background and personal
background. However, we have not adopted a formal policy regarding the consideration of specific diversity characteristic, and instead
prefer to rely on the judgment of our committee members in recommending candidates with the most appropriate mix of experiences, skills
and expertise.
Any
stockholder wishing to propose that a person be nominated for or appointed to our Board may submit such a proposal to:
Verb
Technology Company, Inc.
3401
North Thanksgiving Way, Suite 240
Lehi,
Utah 84043
(855)
250-2300
Attention:
Corporate Secretary
The
Corporate Secretary will forward any such correspondence to the Chairperson of the Governance and Nominating Committee for review and
consideration in accordance with the criteria described above and the requirements set forth in the Bylaws.
There
were no fees paid or due to third parties in the fiscal year ended December 31, 2021 to identify or evaluate, or to assist in evaluating
or identifying, potential director nominees.
Director
Independence
Our
Board is currently composed of six members. We have determined that the following five directors qualify as independent: James P. Geiskopf,
Phillip J. Bond, Kenneth S. Cragun, Judith Hammerschmidt and Nancy Heinen. If elected, we expect that Edmund C. Moy will also qualify
as independent. We determined that Rory J. Cutaia, our Chairperson, President, Chief Executive Officer and Secretary, is not independent
due to his employment relationship with the Company. We evaluated independence in accordance with the rules of Nasdaq and the SEC.
Stockholder
Communications with our Board
Stockholders
and other parties interested in communicating directly with our Board, a committee thereof, or any individual director, may do so by
sending a written communication to the attention of the intended recipient(s) to: Verb Technology Company, Inc., 3401 North Thanksgiving
Way, Suite 240, Lehi, Utah 84043, Attention: Corporate Secretary. The Corporate Secretary will forward all appropriate communications
to the Chairperson of the Audit Committee.
Orientation
and Continuing Education
We
have an informal process to orient and educate new directors regarding their role on our Board and committees, as well as the nature
and operations of our business. This process provides for an orientation with key members of the management staff, and further provides
access to materials necessary to inform them of the information required to carry out their responsibilities as Board members. This information
includes the most recent Board-approved budget, the most recent annual report, copies of the audited financial statements, and copies
of the interim quarterly financial statements.
As
a company with limited resources, we do not typically provide continuing education for our directors. Each director is responsible to
maintain the skills and knowledge necessary to meet his or her obligations as a director.
Director
Assessments
In
December 2021, the Board implemented individual director assessments. The director assessments involve each director performing a self-assessment,
as well as each director individually assessing other members of the Board,
taking into account each director’s contributions at Board meetings, service on committees, experience level, and their general
ability to contribute to one or more of our major growth areas.
Investment
in Human Capital
We
believe our people are at the heart of our success and our customers’ success. We endeavor to not only attract and retain talented
employees, but also to provide a challenging and rewarding environment to motivate and develop our valuable human capital. We look to
our talented employees to lead and foster various initiatives that support our company culture including those related to diversity,
equity and inclusion. In addition, we rely heavily on our talented team to execute our growth plans and achieve our long-term strategic
objectives.
Compensation
Committee Interlocks and Insider Participation
As
of September 6, 2022, no member of the Compensation Committee is serving, and during the past year no member of the Compensation Committee
has served, as an officer or employee of the Company or any of its subsidiaries. None of our executive officers currently serves, or
during the past year has served, as a member of the board of directors or compensation committee (or other committee serving a similar
purpose) of any entity that has an executive officer serving on our Board or Compensation Committee. In addition, none of the Compensation
Committee members had any relationship, or participated in any transaction, with our Company during the fiscal year ended December 31,
2021 that requires disclosure under SEC rules. We have entered into indemnification agreements with each of our directors, including
each member of the Compensation Committee.
Code
of Ethics
In
2014, our Board approved and adopted a code of ethics and business conduct for directors, senior officers, and employees, or code of
ethics, that applies to all of our directors, officers, and employees, including our principal executive officer and principal financial
officer. The code of ethics is available on our website at https://www.verb.tech/investor-relations/governance/code-of-ethics.
The
code of ethics addresses conduct with respect to, among other things, conflicts of interests; compliance with applicable laws, rules
and regulations; full, fair, accurate, timely and understandable disclosure by us; competition and fair dealing; corporate opportunities;
confidentiality; protection and proper use of our assets; and reporting suspected illegal or unethical behavior.
To
the extent required by law, any amendments to or waivers of any provision of the code of ethics will be promptly disclosed publicly on
our website.
Board
Leadership Structure and Role in Risk Oversight
Board
Leadership Structure
We
currently combine the positions of Chairperson and Chief Executive Officer into one position. We believe that this structure is appropriate
at this time and that this combined model has certain advantages over other leadership structures. This combined role allows Mr. Cutaia
to drive execution of our strategic plans and facilitates effective communication between management and our Board to bring key issues
to its attention, and to see that our Board’s guidance and decisions are implemented effectively by management.
Further,
our Board has designated Mr. Geiskopf as its Lead Independent Director. Mr. Geiskopf qualifies as an independent director under Nasdaq
and SEC rules. Our Board believes that his strong leadership and qualifications, including his prior experience as a chief executive
officer and chief financial officer and his tenure on our Board, among other factors, contribute to his ability to fulfill the role of
Lead Independent Director effectively.
Role
of our Board in Risk Oversight
Our
Board is responsible for the oversight of our operational risk management process. Our Board has delegated authority for addressing certain
risks, and assessing the steps management has taken to monitor, control, and report such risks to the Audit Committee. Such risks include
risks relating to execution of our growth strategy, the effects of the economy and general financial condition and outlook, our ability
to expand our client base, communication with investors, certain actions of our competitors, the protection of our intellectual property,
sufficiency of our capital, security of information systems and data, integration of new information systems, credit risk, product liability,
and costs of reliance on external advisors. The Audit Committee then reports such risks as appropriate to our Board, which then initiates
discussions with appropriate members of our senior management if, after discussion of such risks, our Board determines that such risks
raise questions or concerns about the status of operational risks then facing us.
Our
Board relies on the Compensation Committee to address significant risk exposures that we may face with respect to compensation, including
risks relating to retention of key employees, protection of partner relationships, management succession, and benefit costs, and, when
appropriate, reports these risks to the full Board.
Change
of Control Arrangements
We
do not know of any arrangements, which may, at a subsequent date, result in a change of control of the Company.
Delinquent
Section 16(a) Reports
Section
16(a) of the Exchange Act requires our officers and directors, and persons who beneficially own more than 10% of the outstanding shares
of our common stock, to file reports of ownership and changes in ownership concerning their shares of our common stock with the SEC and
to furnish us with copies of all Section 16(a) forms they file. We are required to disclose delinquent filings of reports by such persons.
Based
solely on the copies of such reports and amendments thereto received by us, or written representations that no filings were required,
we believe that all Section 16(a) filing requirements applicable to our executive officers and directors and 10% stockholders were met
for the year ended December 31, 2021.
Director
Compensation Table
The
table below summarizes the compensation paid to our non-employee directors for the fiscal year ended December 31, 2021:
Name(1) | |
Fees
Earned or Paid in Cash
($) | | |
Stock Awards ($)(2) | | |
Total ($) | |
James P. Geiskopf | |
| 175,000 | | |
| 172,000 | (3) | |
| 347,000 | |
| |
| | | |
| | | |
| | |
Philip J. Bond | |
| 75,000 | | |
| 86,000 | (4) | |
| 161,000 | |
| |
| | | |
| | | |
| | |
Kenneth S. Cragun | |
| 75,000 | | |
| 86,000 | (4) | |
| 161,000 | |
| |
| | | |
| | | |
| | |
Judith Hammerschmidt | |
| 75,000 | | |
| 86,000 | (4) | |
| 161,000 | |
| |
| | | |
| | | |
| | |
Nancy Heinen(5) | |
| 75,000 | | |
| 86,000 | (4) | |
| 161,000 | |
(1) |
Mr. Cutaia
is not included in this table as he is an employee of the Company and does not receive any additional compensation for his service
as a director. The compensation received by Mr. Cutaia as an employee is disclosed in the section titled “Executive Compensation
- Summary Compensation Table.” |
|
|
(2) |
The
amounts in this column represent the aggregate grant date fair value of the awards computed in accordance with FASB ASC Topic 718. |
|
|
(3) |
Represents
101,658 restricted stock units valued at $1.69 per share, which was the closing price of our common stock on Nasdaq on the grant
date. The restricted stock units vested on the first anniversary of the grant date. |
|
|
(4) |
Represents
50,829 restricted stock units valued at $1.69 per share, which was the closing price of our common stock on Nasdaq on the grant date.
The restricted stock units vested on the first anniversary of the grant date. |
|
|
(5) |
Nancy
Heinen will not be standing for re-election at the Annual Meeting and her service on our Board and committees will conclude at the
Annual Meeting. |
Narrative
Discussion of Director Compensation
The
annual board retainer payable in cash for our Lead Independent Director is $175,000 and for each of our other non-employee directors
is $75,000. No additional cash fees are paid for attendance at Board or committee meetings. However, our directors are entitled to reimbursement
for reasonable travel and other out-of-pocket expenses incurred in connection with attendance at Board and committee meetings.
Each
of our non-employee directors is entitled to receive an annual grant of restricted stock units for service on the Board. The value of
the annual grant is determined each year by the Board with feedback from our compensation consultant. The number of shares underlying
each grant is determined based on the closing price of our common stock on Nasdaq on the grant date. The grants are typically subject
to vesting on the first anniversary of the grant date. Additional information about the grants made during the fiscal year ended December
31, 2022 for each non-employee director is provided below.
Further,
our Board may also award special remuneration to directors who provide special services on behalf of the Company, which may be in the
form of cash or equity awards, subject to compliance with applicable Nasdaq and SEC rules regarding independence.
James
P. Geiskopf
Mr.
Geiskopf earned total cash compensation for his services to us in the amount of $175,000 and $152,000 for the fiscal years ended December
31, 2021 and 2020, respectively.
On
January 4, 2021, we granted Mr. Geiskopf restricted stock units valued at $172,000 payable in 101,658 shares of our common stock. The
restricted stock award vested on the first anniversary of the grant date. The price per share as reported by Nasdaq on the day of issuance
was $1.69 and was used to calculate fair market value.
On
April 10, 2020, we granted Mr. Geiskopf restricted stock units valued at $12,000 payable in 9,782 shares of our common stock as part
of the Company’s COVID-19 Full Employment and Cash Preservation Plan (the “COVID Plan”). The restricted stock units
vested on July 15, 2020 upon completion of the plan. The price per share was $1.198, which was the 21-day volume weighted average price
as reported by Nasdaq. The price per share as reported by Nasdaq on the day of issuance was $1.47 and was used to calculate fair market
value.
On
July 29, 2020, we granted Mr. Geiskopf restricted stock units valued at $160,000 payable in 150,943 shares of our common stock. The restricted
stock units vested on the first anniversary of the grant date. The price per share as reported by Nasdaq on the day of issuance was $1.06
and was used to calculate fair market value.
On
July 29, 2020, we granted Mr. Geiskopf restricted stock units valued at $35,000 payable in 33,078 shares of our common stock. The restricted
stock units vested on grant date. The price per share as reported by Nasdaq on the day of issuance was $1.06 and was used to calculate
fair market value.
Philip
J. Bond
Mr.
Bond earned total cash compensation for his services to us in the amount of $75,000 and $70,000 for the fiscal years ended December 31,
2021 and 2020, respectively.
On
January 4, 2021, we granted Mr. Bond restricted stock units valued at $86,000 payable in 50,829 shares of our common stock. The restricted
stock units vested on the first anniversary of the grant date. The price per share as reported by Nasdaq on the day of issuance was $1.69
and was used to calculate fair market value.
On
April 10, 2020, we granted Mr. Bond restricted stock units valued at $6,000 payable in 4,891 shares of our common stock as part of the
COVID Plan. The restricted stock units vested on July 15, 2020 upon completion of the plan. The price per share was $1.198, which was
the 21-day volume weighted average price as reported by Nasdaq. The price per share as reported by Nasdaq on the day of issuance was
$1.47 and was used to calculate fair market value.
On
July 29, 2020, we granted Mr. Bond restricted stock units valued at $80,000 payable in 75,472 shares of our common stock. The restricted
stock units vested on the first anniversary of the grant date. The price per share as reported by Nasdaq on the day of issuance was $1.06
and was used to calculate fair market value.
Kenneth
S. Cragun
Mr.
Cragun earned total cash compensation for his services to us in the amount of $75,000 and $70,000 for the fiscal years ended December
31, 2021 and 2020, respectively.
On
January 4, 2021, we granted Mr. Cragun restricted stock units valued at $86,000 payable in 50,829 shares of our common stock. The restricted
stock units vested on the first anniversary of the grant date. The price per share as reported by Nasdaq on the day of issuance was $1.69
and was used to calculate fair market value.
On
April 10, 2020, we granted Mr. Cragun restricted stock units valued at $6,000 payable in 4,891 shares of our common stock as part of
the COVID Plan. The restricted stock units vested on July 15, 2020 upon completion of the plan. The price per share was $1.198, which
was the 21-day volume weighted average price as reported by Nasdaq. The price per share as reported by Nasdaq on the day of issuance
was $1.47 and was used to calculate fair market value.
On
July 29, 2020, we granted Mr. Cragun restricted stock units valued at $80,000 payable in 75,472 shares of our common stock. The restricted
stock units vested on the first anniversary of the grant date. The price per share as reported by Nasdaq on the day of issuance was $1.06
and was used to calculate fair market value.
Judith
Hammerschmidt
Ms.
Hammerschmidt earned total cash compensation for her services to us in the amount of $75,000 and $64,000 for the fiscal years ended December
31, 2021 and 2020, respectively.
On
January 4, 2021, we granted Ms. Hammerschmidt restricted stock units valued at $86,000 payable in 50,829 shares of our common stock.
The restricted stock units vested on the first anniversary of the grant date. The price per share as reported by Nasdaq on the day of
issuance was $1.69 and was used to calculate fair market value.
On
April 10, 2020, we granted Ms. Hammerschmidt restricted stock units valued at $6,000 payable in 4,891 shares of our common stock as part
of the COVID Plan. The restricted stock units vested on July 15, 2020 upon completion of the plan. The price per share was $1.198, which
was the 21-day volume weighted average price as reported by Nasdaq. The price per share as reported by Nasdaq on the day of issuance
was $1.47 and was used to calculate fair market value.
On
July 29, 2020, we granted Ms. Hammerschmidt restricted stock units valued at $80,000 payable in 75,472 shares of our common stock. The
restricted stock units vested on the first anniversary of the grant date. The price per share as reported by Nasdaq on the day of issuance
was $1.06 and was used to calculate fair market value.
Nancy
Heinen
Ms.
Heinen earned total cash compensation for her services to us in the amount of $75,000 and $64,000 for the fiscal years ended December
31, 2021 and 2020 respectively.
On
January 4, 2021, we granted Ms. Heinen restricted stock units valued at $86,000 payable in 50,829 shares of our common stock. The restricted
stock units vested on the first anniversary of the grant date. The price per share as reported by Nasdaq on the day of issuance was $1.69
and was used to calculate fair market value.
On
April 10, 2020, we granted Ms. Heinen restricted stock units valued at $6,000 payable in 4,891 shares of our common stock as part of
the COVID Plan. The restricted stock units vested on July 15, 2020 upon completion of the plan. The price per share was $1.198, which
was the 21-day volume weighted average price as reported by Nasdaq. The price per share as reported by Nasdaq on the day of issuance
was $1.47 and was used to calculate fair market value.
On
July 29, 2020, we granted Ms. Heinen restricted stock units valued at $80,000 payable in 75,472 shares of our common stock. The restricted
stock units vested on the first anniversary of the grant date. The price per share as reported by Nasdaq on the day of issuance was $1.06
and was used to calculate fair market value.
Nancy
Heinen will not be standing for re-election at the Annual Meeting and any unvested restricted stock units will terminate in accordance
with the terms of the relevant award agreements.
Equity
Awards Outstanding
The
following table sets forth, for each non-employee director, the number of equity awards outstanding as of December 31, 2021:
Name | |
Number of Restricted
Stock Units (#) | | |
Number of Stock
Options (#) | |
James P. Geiskopf | |
| 101,658 | | |
| 133,333 | |
| |
| | | |
| | |
Philip J. Bond | |
| 50,829 | | |
| 66,667 | |
| |
| | | |
| | |
Kenneth S. Cragun | |
| 50,829 | | |
| 66,667 | |
| |
| | | |
| | |
Judith Hammerschmidt | |
| 80,232 | | |
| - | |
| |
| | | |
| | |
Nancy Heinen | |
| 80,232 | | |
| - | |
Indemnification
of Directors and Officers
We
are a Nevada corporation governed by the Nevada Revised Statutes (the “NRS”).
Section
78.138 of the NRS provides that, unless the corporation’s articles of incorporation provide otherwise, a director or officer will
not be individually liable unless it is proven that (i) the director’s or officer’s acts or omissions constituted a breach
of his or her fiduciary duties, and (ii) such breach involved intentional misconduct, fraud, or a knowing violation of the law.
Section
78.7502 of the NRS permits a company to indemnify its directors and officers against expenses, judgments, fines, and amounts paid in
settlement actually and reasonably incurred in connection with a threatened, pending, or completed action, suit, or proceeding, if the
officer or director (i) is not liable pursuant to Section 78.138 of the NRS, or (ii) acted in good faith and in a manner the officer
or director reasonably believed to be in or not opposed to the best interests of the corporation and, if a criminal action or proceeding,
had no reasonable cause to believe the conduct of the officer or director was unlawful. Section 78.7502 of the NRS also precludes indemnification
by the corporation if the officer or director has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals,
to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court determines
that in view of all the circumstances, the person is fairly and reasonably entitled to indemnity for such expenses and requires a corporation
to indemnify its officers and directors if they have been successful on the merits or otherwise in defense of any claim, issue, or matter
resulting from their service as a director or officer.
Section
78.751 of the NRS permits a Nevada corporation to indemnify its officers and directors against expenses incurred by them in defending
a civil or criminal action, suit, or proceeding as they are incurred and in advance of a final disposition thereof, upon determination
by the stockholders, the disinterested board members, or by independent legal counsel. Section 78.751 of the NRS provides that the articles
of incorporation, the bylaws, or an agreement may require a corporation to advance expenses as incurred upon receipt of an undertaking
by or on behalf of the officer or director to repay the amount if it is ultimately determined by a court of competent jurisdiction that
such officer or director is not entitled to be indemnified by the corporation if so provided in the corporation’s articles of incorporation,
bylaws, or other agreement. Section 78.751 of the NRS further permits the corporation to grant its directors and officers additional
rights of indemnification under its articles of incorporation, bylaws, or other agreement.
Section
78.752 of the NRS provides that a Nevada corporation may purchase and maintain insurance or make other financial arrangements on behalf
of any person who is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another company, partnership, joint venture, trust, or other enterprise, for any liability
asserted against him and liability and expenses incurred by him in his capacity as a director, officer, employee, or agent, or arising
out of his status as such, whether or not the corporation has the authority to indemnify him against such liability and expenses. We
have obtained insurance policies insuring our directors and officers against certain liabilities they may incur in their capacity as
directors and officers. Under such policies, the insurer, on our behalf, may also pay amounts for which we have granted indemnification
to the directors or officers.
The
foregoing discussion of indemnification merely summarizes certain aspects of indemnification provisions and is limited by reference to
the above discussed sections of the NRS.
Our
articles of incorporation provide that, except in some specified instances, our directors and officers shall not be personally liable
to us or our stockholders for monetary damages for breach of their fiduciary duty as directors and officers, except liability for the
following:
|
● |
acts
or omissions which involve intentional misconduct, fraud or knowing violation of law; or |
|
● |
the
payment of distributions in violation of NRS 78.300, as amended. |
In
addition, our articles of incorporation and Bylaws provide that we must indemnify our directors and officers and may indemnify our employees
and other agents to the fullest extent permitted by the NRS. The Bylaws also authorize us to purchase and maintain insurance on behalf
of any of our directors or officers against any liability asserted against that person in that capacity, whether or not we would have
the power to indemnify that person against such liability and expenses. We have entered and expect to continue to enter into agreements
to indemnify our directors and executive officers as determined by our Board. In general, the indemnification agreements provide that
we will, to the fullest extent permitted by Nevada law and subject to certain limitations, indemnify the indemnitee against certain expenses
(including attorneys’ fees), judgments, fines, penalties, and settlement amounts that may be incurred in connection with the defense
or settlement of any claim, criminal, civil, or administrative action or proceeding to which the indemnitee becomes subject in connection
with his or her services as an executive officer, director, or both. We believe that these Bylaw provisions and indemnification agreements
are necessary to attract and retain qualified persons as directors and executive officers.
The
limitation of liability and indemnification provisions in our articles of incorporation and Bylaws may discourage stockholders from bringing
a lawsuit against our directors for breach of their fiduciary duty. They may also reduce the likelihood of derivative litigation against
our directors and officers, even though an action, if successful, might benefit us and other stockholders. Furthermore, a stockholder’s
investment may be adversely affected to the extent that we pay the costs of settlement and damage awards against directors and officers
as required by these indemnification provisions.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as amended (the “Securities Act”), may be permitted
to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the
opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
PROPOSAL
2 – RATIFICATION OF THE SELECTION OF OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
General
It
is the responsibility of the Audit Committee to select and retain our independent registered public accounting firm. The Audit Committee
has appointed Weinberg as our independent registered public accounting firm for our fiscal year ending December 31, 2022. Although stockholder
ratification of the selection of our independent registered public accounting firm is not required by the Bylaws or applicable law, we
are submitting the selection for ratification so our stockholders may participate in this important corporate decision. If not ratified,
the Audit Committee will reconsider the selection, although the Audit Committee will not be required to select a different independent
registered public accounting firm.
Representatives
of Weinberg are expected to be present at the Annual Meeting and will have an opportunity to make a statement and respond to questions
from stockholders present at the meeting.
Audit
Fees and Services
The
following table sets forth the fees billed to us for the year ended December 31, 2021 and 2020 for professional services rendered by
our independent registered public accounting firm.
Fees | |
Year Ended December 31, 2021 | | |
Year Ended December 31, 2020 | |
Audit Fees | |
$ | 224,000 | | |
$ | 217,000 | |
Audit-Related Fees | |
| 2,000 | | |
| 4,000 | |
Tax Fees | |
| 44,000 | | |
| 46,000 | |
All Other Fees | |
| 50,000 | | |
| 93,000 | |
Total Fees | |
$ | 320,000 | | |
$ | 360,000 | |
For
purposes of the table, the professional fees are classified as follows:
|
● |
Audit
Fees - Fees performed for the audit of our annual financial statements and the required review of our quarterly financial statements
and other procedures performed by the independent auditors to form an opinion on our financial statements. |
|
● |
Audit-Related
Fees - Fees for expenses by the independent auditors that are associated with the audit, but don’t fall within the above-described
category. |
|
● |
Tax
Fees - Fees for all professional services performed by professional staff in our independent auditor’s tax group, except those
services related to the audit of our financial statements. |
|
● |
All
Other Fees - Fees for other permissible work, such as due diligence related to acquisitions and dispositions, audits related to acquisitions,
attestation services that are not required by statute or regulation, and for other permissible work performed that does not meet
the above-described categories. |
Pre-Approval
Policies and Procedures
The
Audit Committee has adopted policies and procedures to oversee the external audit process and pre-approves all services provided by our
independent registered public accounting firm. All of the above services and fees were reviewed and approved by the Audit Committee,
as applicable, before the respective services were rendered.
Voting
Recommendation
OUR
BOARD RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” THE RATIFICATION OF THE SELECTION OF WEINBERG AS OUR INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING DECEMBER 31, 2022.
AUDIT
COMMITTEE REPORT
The
Audit Committee is responsible for, among other things, reviewing and discussing our audited financial statements with management, discussing
with our independent registered public accounting firm information relating to its judgments about the quality of our accounting principles,
recommending to our Board that we include the audited financial statements in the Annual Report on Form 10-K, and overseeing compliance
with the SEC requirements for disclosure of our independent registered public accounting firm’s services.
Review
of Audited Financial Statements
The
Audit Committee reviewed our financial statements for the fiscal year ended December 31, 2021, as audited by Weinberg & Company,
P.A. (“Weinberg”), our independent registered public accounting firm, and discussed these financial statements with management.
In addition, the Audit Committee has discussed with Weinberg the matters required to be discussed by Auditing Standards No. 1301, Communications
with Audit Committees, as adopted by the Public Company Accounting Oversight Board, as may be modified or supplemented. Furthermore,
the Audit Committee has received the written disclosures and the letter from Weinberg required by the Independence Standards Board Standard
No. 1, as may be modified or supplemented, and has discussed with Weinberg its independence.
The
members of the Audit Committee are not professionally engaged in the practice of auditing or accounting and are not experts in the fields
of accounting or auditing, or in determining auditor independence. However, our Board has determined that each member of the Audit Committee
meets the independence criteria set forth in the applicable rules of Nasdaq and the SEC, and that one member of the Audit Committee,
Mr. Cragun, qualifies as an “audit committee financial expert,” as defined by SEC regulations. Members of the Audit Committee
rely, without independent verification, on the information provided to them and on the representations made by management. Accordingly,
the Audit Committee’s oversight does not currently provide an independent basis to determine that management has maintained procedures
designed to assure compliance with accounting standards and applicable laws and regulations.
Recommendation
Based
upon the foregoing review and discussion, the Audit Committee recommended to our Board that the audited financial statements for the
fiscal year ended December 31, 2021 be included in the Annual Report on Form 10-K for such fiscal year.
|
Audit
Committee |
|
Kenneth
S. Cragun (Chairperson) |
|
James
P. Geiskopf |
|
Phillip
J. Bond |
The
Audit Committee Report shall not be deemed incorporated by reference by any general statement incorporating by reference this Proxy Statement
into any filing under the Securities Act or the Exchange Act except to the extent that we specifically incorporate this information by
reference, and shall not otherwise be deemed filed under the Securities Act or the Exchange Act.
PROPOSAL
3 – APPROVAL, ON A NON-BINDING, ADVISORY BASIS, COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS
General
In
accordance with applicable SEC rules, we are providing our stockholders with the opportunity to cast a non-binding, advisory vote on
the compensation of our named executive officers as described in this Proxy Statement. We consider seeking the views of our stockholders
on our executive compensation program to be an important part of our decision-making process.
For
additional information about our executive compensation program, refer to the section titled “Executive Compensation” and
the related compensation tables and footnotes.
Proposal
In
accordance with Section 14A of the Exchange Act, we are asking our stockholders to approve the following resolution at the Annual Meeting:
“RESOLVED,
that our stockholders approve, on a non-binding advisory basis, the compensation of our Named Executive Officers, as described in the
Executive Compensation section, and the related compensation tables and footnotes, in the Proxy Statement for our 2022 Annual Meeting
of Stockholders.”
Because
this vote is advisory only, it will not be binding upon our Board or the Compensation Committee. However, the Compensation Committee
will take the outcome of the vote into account when considering future executive compensation arrangements.
Voting
Recommendation
OUR
BOARD RECOMMENDS THAT YOU VOTE “FOR” THE PROPOSAL TO APPROVE, ON A NON-BINDING ADVISORY BASIS, THE COMPENSATION OF
OUR NAMED EXECUTIVE OFFICERS.
EXECUTIVE
COMPENSATION
Summary
Compensation Table
The
table and discussion below present compensation information for the following executive officers, which we refer to as our “named
executive officers”:
|
● |
Rory
J. Cutaia, our Chairperson, President, Chief Executive Officer, and Secretary; and |
|
● |
Jeffrey
R. Clayborne, our former Chief Financial Officer and Treasurer. |
Name and Principal Position | |
Year | | |
Salary ($) | | |
Bonus ($) | | |
Stock
Awards ($)(1) | | |
Option
Awards ($)(1) | | |
All Other
Compensation ($) | | |
Total ($) | |
Rory J. Cutaia | |
| 2021 | | |
| 490,000 | | |
| 350,000 | (2) | |
| 537,000 | (3) | |
| - | | |
| - | | |
| 1,377,000 | (4) |
| |
| 2020 | | |
| 452,000 | | |
| 590,000 | | |
| 722,000 | | |
| - | | |
| - | | |
| 1,764,000 | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Jeffrey R. Clayborne(5) | |
| 2021 | | |
| 250,000 | | |
| - | | |
| 322,000 | (6) | |
| - | | |
| - | | |
| 572,000 | (7) |
| |
| 2020 | | |
| 234,000 | | |
| 150,000 | | |
| 391,000 | | |
| - | | |
| - | | |
| 775,000 | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Salman H. Khan(8) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
(1) |
The
amounts in this column represent the aggregate grant date fair value of the respective awards computed in accordance with FASB ASC
Topic 718. For information about the assumptions underlying these calculations, refer to Note 2 to our consolidated financial statements
included in the Annual Report. |
|
|
(2) |
Represents
an annual incentive bonus of $350,000. |
|
|
(3) |
Represents
the grant of an aggregate of 317,682 restricted stock units. |
|
|
(4) |
As
of December 31, 2021 and 2020, Mr. Cutaia had accrued but unpaid compensation equal to $1,031,000 and $697,000, respectively. |
|
|
(5) |
Mr.
Clayborne resigned as Chief Financial Officer and Treasurer effective January 20, 2022. |
|
|
(6) |
Represents
the grant of an aggregate of 190,609 restricted stock units. |
|
|
(7) |
As
of December 31, 2021 and 2020, Mr. Clayborne had accrued but unpaid compensation equal to $77,000 and $125,000, respectively. On
February 14, 2022, Mr. Clayborne executed a separation agreement which settled all accrued and unpaid compensation as of January
20, 2022. |
|
|
(8) |
On
January 20, 2022, our Board appointed Salman H. Khan as Interim Chief Financial Officer and Treasurer. On March 30, 2022, our Board
approved Mr. Khan’s permanent appointment as Chief Financial Officer and Treasurer. |
Narrative
Disclosure to Summary Compensation Table
The
following is a discussion of the material information that we believe is necessary to understand the information disclosed in the Summary
Compensation Table.
Rory
J. Cutaia
On
December 20, 2019, we entered into an executive employment agreement with Mr. Cutaia. The employment agreement has a four-year term that
can be extended for additional one-year periods. In addition to certain payments due to Mr. Cutaia upon termination of employment, the
employment agreement contains customary non-competition, non-solicitation and confidentiality provisions. Mr. Cutaia is entitled to an
annual base salary of $430,000, which shall not be subject to reduction during the initial term, but will be subject to annual reviews
and increases, if and as approved in the sole discretion of our Board. In addition, Mr. Cutaia is eligible to receive performance-based
cash and/or stock bonuses upon attainment of performance targets established by our Board in its sole discretion. We must make annual
equity grants to Mr. Cutaia as determined by our Board in its sole discretion. Finally, Mr. Cutaia is eligible for certain other benefits,
such as health, vision, and dental insurance, life insurance, and 401(k) matching.
Mr.
Cutaia earned a base salary of $490,000 and $452,000 for the fiscal years ended December 31, 2021 and 2020, respectively.
For
performance during the fiscal year ended December 31, 2021, Mr. Cutaia earned an annual incentive bonus totaling $350,000.
On
January 4, 2021, we granted Mr. Cutaia restricted stock units totaling $537,000 payable in 317,682 shares of our common stock. The restricted
stock units are subject to a four-year vesting period, with 25% of the award vesting on the first, second, third, and fourth anniversaries
of the grant date. The price per share as reported by Nasdaq on the day of issuance was $1.69 and was used to calculate fair market value.
For
performance during the fiscal year ended December 31, 2020, Mr. Cutaia earned an annual incentive bonus totaling $490,000.
On
April 10, 2020, we granted Mr. Cutaia restricted stock units valued at $37,000 payable in 31,030 shares of our common stock as part of
the COVID Plan. The restricted stock units vested on July 15, 2020 upon completion of the plan. The price per share was $1.198, which
was the 21-day volume weighted average price as reported by Nasdaq. The price per share as reported by Nasdaq on the day of issuance
was $1.47 and was used to calculate fair market value.
On
July 29, 2020, Mr. Cutaia earned an incentive bonus totaling $100,000 for the successful closing of our March 31, 2020 private placement
and the July 24, 2020 underwritten public offering of our common stock.
On
July 29, 2020, we granted Mr. Cutaia restricted stock units valued at $500,000 payable in 471,698 shares of our common stock. The restricted
stock units are subject to a four-year vesting period, with 25% of the award vesting on the first, second, third, and fourth anniversaries
of the grant date. The price per share as reported by Nasdaq on the day of issuance was $1.06 and was used to calculate fair market value.
On
July 29, 2020, we granted Mr. Cutaia restricted stock units valued at $176,000 payable in 166,365 shares of our common stock. The restricted
stock units vested on grant date. The price per share as reported by Nasdaq on the day of issuance was $1.06 and was used to calculate
fair market value.
As
of December 31, 2021 and 2020, Mr. Cutaia had accrued but unpaid compensation equal to $1,031,000 and $697,000, respectively.
Jeffrey
R. Clayborne
Mr.
Clayborne earned a base salary of $250,000 and $234,000 for the fiscal years ended December 31, 2021 and 2020, respectively.
On
January 4, 2021, we granted Mr. Clayborne restricted stock units valued at $322,000 payable in 190,609 shares of our common stock. The
restricted stock units were subject to a four-year vesting period, with 25% of the award vesting on the first, second, third, and fourth
anniversaries of the grant date. The price per share as reported by Nasdaq on the day of issuance was $1.69 and was used to calculate
fair market value.
For
performance during the fiscal year ended December 31, 2020, Mr. Clayborne earned an annual incentive bonus totaling $125,000.
On
April 10, 2020, we granted Mr. Clayborne restricted stock units valued at $20,000 payable in 16,303 shares of our common stock as part
of the COVID Plan. The restricted stock units vested on July 15, 2020 upon completion of the plan. The price per share was $1.198, which
was the 21-day volume weighted average price as reported by Nasdaq. The price per share as reported by Nasdaq on the day of issuance
was $1.47 and was used to calculate fair market value.
On
July 29, 2020, Mr. Clayborne earned an incentive bonus totaling $25,000 for the successful closing of our March 31, 2020 private placement
and the July 24, 2020 underwritten public offering of our common stock, respectively.
On
July 29, 2020, we granted Mr. Clayborne restricted stock units valued at $300,000 payable in 283,019 shares of our common stock. The
restricted stock units were subject to a four-year vesting period, with 25% of the award vesting on the first, second, third, and fourth
anniversaries of the grant date. The price per share as reported by Nasdaq on the day of issuance was $1.06 and was used to calculate
fair market value.
On
July 29, 2020, we granted Mr. Clayborne restricted stock units valued at $67,000 payable in 63,288 shares of our common stock. The restricted
stock units vested on grant date. The price per share as reported by Nasdaq on the day of issuance was $1.06 and was used to calculate
fair market value.
As
of December 31, 2021 and 2020, Mr. Clayborne had accrued but unpaid compensation equal to $77,000 and $125,000, respectively.
Mr.
Clayborne resigned as our Chief Financial Officer and Treasurer effective January 20, 2022. As a result, all unvested restricted stock
units were terminated, provided that 25,000 previously unvested restricted stock units were permitted to vest pursuant to a separation
agreement executed by Mr. Clayborne. In addition, all options that were unexercised prior to resignation were terminated.
Compensation
Consultant
The
Compensation Committee receives advice regarding our compensation programs applicable to executive officers and non-employee directors
from its independent compensation consultant, Compensation Advisory Partners LLC (“CAP”). The Compensation Committee selected
CAP based on its experience providing strategic executive compensation advice to help companies balance human capital risks while focusing
on driving business performance. In making the selection, the Compensation Committee assessed whether work performed or advice rendered
by CAP would raise any conflicts of interest and determined that there are no conflicts of interest with respect to this independent
compensation consultant.
For
the fiscal year ended December 31, 2021, CAP provided information on competitive pay practices and trends in our industry, and made recommendations
regarding our peer group, as well as the structure of our compensation programs. The Compensation Committee carefully considered the
recommendations in approving the compensation for the named executive officers and non-employee directors during the year.
While
we are not obligated to retain an independent compensation consultant, the Compensation Committee believes that the use of an independent
consultant provides assurance that our compensation programs are competitive and aligned with our business objectives. The decision to
engage CAP was made by the Compensation Committee, and CAP reports directly to the committee.
Outstanding
Equity Awards at Fiscal Year-End
The
following table sets forth, for each named executive officer, certain information concerning outstanding restricted stock units as of
December 31, 2021:
Name | |
Number of Securities Underlying Unvested Restricted Stock Units (#) | | |
Market Value of Shares that have not Vested ($)(1) | | |
Vesting Date | |
Rory J. Cutaia | |
| 176,413 | | |
| 218,752 | | |
| December 23, 2023 | (2) |
| |
| 50,000 | | |
| 62,000 | | |
| December 23, 2022 | (3) |
| |
| 353,774 | | |
| 438,680 | | |
| July 29, 2024 | (4) |
| |
| 317,682 | | |
| 393,926 | | |
| January 4, 2025 | (5) |
| |
| | | |
| | | |
| | |
Jeffrey R. Clayborne(6) | |
| 132,310 | | |
| 164,064 | | |
| December 23, 2023 | (2) |
| |
| 25,000 | | |
| 31,000 | | |
| December 23, 2022 | (3) |
| |
| 212,265 | | |
| 263,209 | | |
| July 29, 2024 | (4) |
| |
| 190,609 | | |
| 236,355 | | |
| January 4, 2025 | (5) |
(1) |
In
accordance with applicable SEC regulations, the market value of the restricted stock awards has been determined based on the closing
price of our common stock on December 31, 2021. |
|
|
(2)
|
25%
vesting on each of the first, second, third, and fourth anniversaries of the grant date. |
|
|
(3)
|
25%
vesting on the grant date, and 25% vesting on each of the first, second and third anniversaries of the grant date. |
|
|
(4)
|
25%
vesting on each of the first, second, third and fourth anniversaries of the grant date. |
|
|
(5)
|
25%
vesting on each of the first, second, third and fourth anniversaries of the grant date. |
|
|
(6)
|
Mr.
Clayborne resigned as our Chief Financial Officer and Treasurer effective January 20, 2022. As a result, all unvested restricted
stock units were terminated, provided that 25,000 previously unvested restricted stock units were permitted to vest pursuant to a
separation agreement executed by Mr. Clayborne. |
The
following table sets forth, for each named executive officer, certain information concerning outstanding options as of December 31, 2021:
Name | |
Number
of Securities Underlying Unexercised Options (Exercisable) (#) | | |
Number of Securities Underlying Unexercised Options (Unexercisable)
(#) | | |
Option Exercise Price
($) | | |
Option
Expiration Date |
Rory J. Cutaia | |
| - | | |
| 189,645 | (1) | |
| 1.13 | | |
January 10, 2022 |
| |
| - | | |
| 143,085 | (1) | |
| 1.13 | | |
January 10, 2022 |
| |
| 16,667 | (2) | |
| - | | |
| 4.35 | | |
January 8, 2024 |
| |
| 16,667 | (2) | |
| - | | |
| 1.16 | | |
December 18, 2022 |
| |
| 133,333 | (2) | |
| - | | |
| 1.20 | | |
January 9, 2022 |
| |
| | | |
| | | |
| | | |
|
Jeffrey R. Clayborne(3) | |
| - | | |
| 55,129 | (1) | |
| 1.13 | | |
January 10, 2022 |
| |
| - | | |
| 71,542 | (1) | |
| 1.13 | | |
January 10, 2022 |
| |
| 33,333 | (2) | |
| - | | |
| 5.33 | | |
May 3, 2022 |
| |
| 133,333 | (2) | |
| - | | |
| 1.20 | | |
January 9, 2022 |
| |
| 12,876 | (2) | |
| - | | |
| 1.35 | | |
January 21, 2023 |
(1)
|
All
of these options vested on January 10, 2022. |
|
|
(2)
|
All
of these options have fully vested. |
|
|
(3)
|
Mr.
Clayborne resigned as our Chief Financial Officer and Treasurer effective January 20, 2022. As a result of Mr. Clayborne’s
resignation, all options that were unexercised prior to resignation were terminated. |
2019
Omnibus Incentive Plan
On
November 11, 2019, our Board approved our 2019 Omnibus Incentive Plan (the “Incentive Plan”) and on December 20, 2019, our
stockholders approved and adopted the Incentive Plan. The material terms of the Incentive Plan are summarized below.
On
September 2, 2020, our Board approved an additional 8,000,000 shares of our common stock to be authorized for awards granted under the
Incentive Plan, and on October 16, 2020, our stockholders approved the additional 8,000,000 shares.
General
The
purpose of the Incentive Plan is to enhance stockholder value by linking the compensation of our officers, directors, key employees,
and consultants to increases in the price of our common stock and the achievement of other performance objections and to encourage ownership
in our company by key personnel whose long-term employment is considered essential to our continued progress and success. The Incentive
Plan is also intended to assist us in recruiting new employees and to motivate, retain, and encourage such employees and directors to
act in our stockholders’ interest and share in our success.
Term
The
Incentive Plan became effective upon approval by our stockholders and will continue in effect from that date until it is terminated in
accordance with its terms.
Administration
The
Incentive Plan may be administered by our Board or a committee designated by our Board. Currently, the Compensation Committee administers
the Incentive Plan. The administrator has the power to determine the directors, employees, and consultants who may participate in the
Incentive Plan and the amounts and other terms and conditions of awards to be granted under the Incentive Plan. All questions of interpretation
and administration with respect to the Incentive Plan will be determined by the administrator. The administrator also will have the complete
authority to adopt, amend, rescind, and enforce rules and regulations pertaining to the administration of the Incentive Plan; to correct
administrative errors; to make all other determinations deemed necessary or advisable for administering the Incentive Plan and any award
granted under the Incentive Plan; and to authorize any person to execute, on behalf of us, all agreements and documents previously approved
by the administrator, among other items.
Eligibility
Any
of our directors, employees, or consultants, or any directors, employees, or consultants of any of our affiliates (except that with respect
to incentive stock options, only employees of us or any of our subsidiaries are eligible), are eligible to participate in the Incentive
Plan.
Available
Shares
Subject
to the adjustment provisions included in the Incentive Plan, a total of 16,000,000 shares of our common stock are authorized for awards
granted under the Incentive Plan. Shares subject to awards that have been canceled, expired, settled in cash, or not issued or forfeited
for any reason (in whole or in part), will not reduce the aggregate number of shares that may be subject to or delivered under awards
granted under the Incentive Plan and will be available for future awards granted under the Incentive Plan.
Types
of Awards
We
may grant the following types of awards under the Incentive Plan: stock awards; options; stock appreciation rights; stock units; or other
stock-based awards.
Stock
Awards. The Incentive Plan authorizes the grant of stock awards to eligible participants. The administrator determines (i) the number
of shares subject to the stock award or a formula for determining such number, (ii) the purchase price of the shares, if any, (iii) the
means of payment for the shares, (iv) the performance criteria, if any, and the level of achievement versus these criteria, (v) the grant,
issuance, vesting, and/or forfeiture of the shares, (vi) restrictions on transferability, and such other terms and conditions determined
by the administrator.
Options.
The Incentive Plan authorizes the grant of non-qualified and/or incentive options to eligible participants, which options give the participant
the right, after satisfaction of any vesting conditions and prior to the expiration or termination of the option, to purchase shares
of our common stock at a fixed price. The administrator determines the exercise price for each share subject to an option granted under
the Incentive Plan, which exercise price cannot be less than the fair market value (as defined in the Incentive Plan) of our common stock
on the grant date. The administrator also determines the number of shares subject to each option, the time or times when each option
becomes exercisable, and the term of each option (which cannot exceed ten years from the grant date).
Stock
Appreciation Rights. The Incentive Plan authorizes the grant of stock appreciation rights to eligible participants, which stock appreciation
rights give the participant the right, after satisfaction of any vesting conditions and prior to the expiration or termination of the
stock appreciation right, to receive in cash or shares of our common stock the excess of the fair market value (as defined in the Incentive
Plan) of our common stock on the date of exercise over the exercise price of the stock appreciation right. All stock appreciation rights
under the Incentive Plan shall be granted subject to the same terms and conditions applicable to options granted under the Incentive
Plan. Stock appreciation rights may be granted to awardees either alone or in addition to or in tandem with other awards granted under
the Incentive Plan and may, but need not, relate to a specific option granted under the Incentive Plan.
Stock
Unit Awards and Other Stock-Based Awards. In addition to the award types described above, the administrator may grant any other type
of award payable by delivery of our common stock in such amounts and subject to such terms and conditions as the administrator determines
in its sole discretion, subject to the terms of the Incentive Plan. Such awards may be made in addition to or in conjunction with other
awards under the Incentive Plan. Such awards may include unrestricted shares of our common stock, which may be awarded, without limitation
(except as provided in the Incentive Plan), as a bonus, in payment of director fees, in lieu of cash compensation, in exchange for cancellation
of a compensation right, or upon the attainment of performance goals or otherwise, or rights to acquire shares of our common stock from
us.
Award
Limits
Subject
to the terms of the Incentive Plan, the aggregate number of shares that may be subject to all incentive stock options granted under the
Incentive Plan cannot exceed the total aggregate number of shares that may be subject to or delivered under awards under the Incentive
Plan. Notwithstanding any other provisions of the Incentive Plan to the contrary, the aggregate number of shares granted to any non-employee
director during any single calendar year shall not exceed 200,000 shares.
New
Plan Benefits
The
amount of future grants under the Incentive Plan is not determinable, as awards under the Incentive Plan will be granted at the sole
discretion of the administrator. We cannot determine at this time either the persons who will receive awards under the Incentive
Plan or the amount or types of such any such awards.
Transferability
Unless
determined otherwise by the administrator, an award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in
any manner other than by beneficiary designation, will, or by the laws of descent or distribution, including but not limited to any attempted
assignment or transfer in connection with the settlement of marital property or other rights incident to a divorce or dissolution, and
any such attempted sale, assignment, or transfer shall be of no effect prior to the date an award is vested and settled.
Amendment
and Termination
The
administrator may amend, alter, or discontinue the Incentive Plan or any award agreement, but any such amendment is subject to the approval
of our stockholders in the manner and to the extent required by applicable law. In addition, without limiting the foregoing, unless approved
by our stockholders and subject to the terms of the Incentive Plan, no such amendment shall be made that would (i) increase the maximum
aggregate number of shares that may be subject to awards granted under the Incentive Plan, (ii) reduce the minimum exercise price for
options or stock appreciation rights granted under the Incentive Plan, or (iii) reduce the exercise price of outstanding options or stock
appreciation rights, as prohibited by the terms of the Incentive Plan without stockholder approval.
No
amendment, suspension, or termination of the Incentive Plan will impair the rights of any participant with respect to an outstanding
award, unless otherwise mutually agreed between the participant and the administrator, which agreement must be in writing and signed
by the participant and us, except that no such agreement will be required if the administrator determines in its sole discretion that
such amendment either (i) is required or advisable in order for us, the Incentive Plan, or the award to satisfy any applicable law or
to meet the requirements of any accounting standard or (ii) is not reasonably likely to diminish the benefits provided under such award
significantly, or that any such diminution has been adequately compensated, except that this exception shall not apply following a change
of control. Termination of the Incentive Plan will not affect the administrator’s ability to exercise the powers granted to it
hereunder with respect to awards granted under the Incentive Plan prior to the date of such termination.
Severance
or Change of Control Arrangements
Other
than as disclosed below, we have no agreements that provide for payments to our directors or executive officers at, following, or in
connection with the resignation, retirement, or other termination of our directors or executive officers, or a change of control of the
Company.
Rory
J. Cutaia
Pursuant
to Mr. Cutaia’s employment agreement dated December 20, 2019, Mr. Cutaia is entitled to the following severance package in the
event he is “terminated without cause,” “terminated for good reason,” or “terminated upon permanent disability”:
(i) monthly payments of $35,833 or such sum equal to his monthly base compensation at the time of the termination, whichever is higher,
for a period of 36 months from the date of such termination and (ii) reimbursement for COBRA health insurance costs for 18 months from
the date of such termination and, thereafter, reimbursement for health insurance costs for Mr. Cutaia and his family during the immediately
subsequent 18-month period. In addition, all of Mr. Cutaia’s then-unvested restricted stock awards or other awards will immediately
vest, without restriction, and any unearned and unpaid bonus compensation, expense reimbursement, and all accrued vacation, personal,
and sick days, and related items shall be deemed earned, vested, and paid immediately. For purposes of the employment agreement, “terminated
without cause” means if Mr. Cutaia were to be terminated for any reason other than a discharge for cause or due to Mr. Cutaia’s
death or permanent disability. For purposes of the employment agreement, “terminated for good reason” means the voluntary
termination of the employment agreement by Mr. Cutaia if any of the following were to occur without his prior written consent, which
consent cannot be unreasonably withheld considering our then-current financial condition, and, in each case, which continues uncured
for 30 days following receipt by us of Mr. Cutaia’s written notice: (i) there is a material reduction by us in (A) Mr. Cutaia’s
annual base salary then in effect or (B) the annual target bonus, as set forth in the employment agreement, or the maximum additional
amount up to which Mr. Cutaia is eligible pursuant to the employment agreement; (ii) we reduce Mr. Cutaia’s job title and position
such that Mr. Cutaia (A) is no longer our Chief Executive Officer; (B) is no longer our Chairperson of our Board; or (C) is involuntarily
removed from our Board; or (iii) Mr. Cutaia is required to relocate to an office location outside of Orange County, California, or outside
of a 30-mile radius of Newport Beach, California. For purposes of the employment agreement, “terminated upon permanent disability”
means if Mr. Cutaia were to be terminated because he is then unable to perform his duties due to a physical or mental condition for (i)
a period of 120 consecutive days or (ii) an aggregate of 180 days in any 12-month period.
Tax
and Accounting Considerations
Among
the factors it considers when making executive compensation decisions, the Compensation Committee considers the anticipated tax and accounting
impact to us (and to our executive officers) of various payments, equity awards and other benefits.
The
Compensation Committee considers the impact of the provisions of Section 162(m) of the Internal Revenue Code, or the Code, as amended
by the Tax Cuts and Jobs Act, or the TCJA. That section generally limits the deductibility of compensation paid by a publicly held company
to “covered employees” for a taxable year to $1.0 million. Effective for taxable years beginning on and after January 1,
2018, “covered employees” generally include our Chief Executive Officer, Chief Financial Officer and other highly compensated
executive officers. Effective for taxable years beginning prior to January 1, 2018, an exception to this deduction limit applied to “performance-based
compensation,” such as cash incentive and stock option awards, that satisfied certain criteria. This exception to the Section 162(m)
deduction limit for “performance-based compensation” was repealed by the TCJA. Thus, except for certain “performance-based
compensation” payable pursuant to written contracts that were in effect on November 2, 2017 and that are not modified in any material
respect on or after that date, effective for taxable years beginning on and after January 1, 2018 our tax deduction with regard to compensation
of “covered employees” is limited to $1.0 million per taxable year with respect to each executive officer. With respect to
cash and equity awards that were in effect on November 2, 2017, and that are not modified in any material respect on or after that date,
the Committee is mindful of the benefit to us and our stockholders of the full deductibility of compensation and have taken steps so
that both the cash incentive and stock option awards that we granted may qualify for deductibility under Section 162(m) of the Code.
However, awards that we granted that were intended to qualify as “performance-based compensation” may not necessarily qualify
for such status under Section 162(m) of the Code. With respect to cash incentive and equity awards that we may grant in the future, we
do not anticipate that the $1.0 million deduction limitation set forth in Section 162(m) of the Code will have a material impact on our
results of operations.
The
Compensation Committee also considers the impact of Section 409A of the Code, and in general, our executive plans and programs are designed
to comply with the requirements of that section so as to avoid possible adverse tax consequences that may result from noncompliance.
We
account for equity awards in accordance with the requirements of Financial Accounting Standards Board Accounting Standards Codification,
or FASB ASC, Topic 718, Stock Compensation.
Our
change of control and severance Agreements do not allow for excise tax gross up payments.
Securities
Authorized for Issuance under Equity Compensation Plans
The
following table summarizes certain information regarding our equity compensation plans as of December 31, 2021:
Plan
Category |
|
Number of Securities to be Issued Upon Exercise of Outstanding Awards
(#) |
|
|
Weighted-Average Exercise Price of Outstanding Awards
($)(1) |
|
|
Number of Securities Remaining Available for Future Issuance
(#) |
Equity
compensation plans approved by security holders |
|
|
5,578,723 |
|
|
$ |
1.49 |
|
|
|
5,448,323 |
Equity
compensation plans not approved by security holders |
|
|
1,002,751 |
|
|
$ |
2.71 |
|
|
|
- |
Total |
|
|
6,581,474 |
|
|
$ |
1.68 |
|
|
|
5,448,323 |
(1) | This
amount does not take into account shares issuable upon the vesting or settlement of outstanding
restricted stock units, which have no exercise price. |
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth, as of August 24, 2022, certain information with respect to the beneficial ownership of our common stock by
(i) each of our current directors and director nominees, (ii) each of our named executive officers, (iii) our directors, director nominees
and executive officers as a group, and (iv) each stockholder known by us to be the beneficial owner of more than 5% of the outstanding
shares of our outstanding common stock.
We
have determined beneficial ownership in accordance with the rules of the SEC, which generally includes voting or investment power over
securities. Except in cases where community property laws apply or as indicated in the footnotes to this table, we believe, based on
the information furnished to us, that each stockholder identified in the table possesses sole voting and investment power over all shares
of common stock shown as beneficially owned by the stockholder. Shares of common stock issuable upon conversion of convertible notes,
exercise of options or warrants, or settlement of restricted stock units, or that may become issuable within 60 days of August 24, 2022,
are considered outstanding and beneficially owned by the person holding the convertible notes, options, warrants or restricted stock
units for the purpose of computing the percentage ownership of that person, but are not treated as outstanding for the purpose of computing
the percentage ownership of any other person.
Name and Address of Beneficial Owner(1)(2) | |
Title of Class | | |
Amount and
Nature of Beneficial
Ownership | | |
Percent of Class(3) | |
Rory J. Cutaia | |
| Common | | |
| 5,984,976 | (4) | |
| 5.8 | % |
James P. Geiskopf | |
| Common | | |
| 992,135 | (5) | |
| 1.0 | % |
Philip J. Bond | |
| Common | | |
| 272,924 | (6) | |
| * | |
Kenneth S. Cragun | |
| Common | | |
| 272,924 | (6) | |
| * | |
Judith Hammerschmidt | |
| Common | | |
| 260,561 | (7) | |
| * | |
Nancy Heinen | |
| Common | | |
| 260,561 | (7) | |
| * | |
Salman H. Khan | |
| Common | | |
| 89,755 | (8) | |
| * | |
Edmund C. Moy | |
| - | | |
| - | | |
| * | |
| |
| | | |
| | | |
| | |
All directors and executive officers as a group (8 persons) | |
| Common | | |
| 8,133,836 | | |
| 7.9 | % |
(1) |
Messrs.
Cutaia, Geiskopf, Bond and Cragun, and Mses. Hammerschmidt and Heinen, are current directors. Mr. Moy is a director nominee. Ms.
Heinen is not standing for re-election at the Annual Meeting. Messrs. Cutaia and Khan are our named executive officers (and our only
executive officers). |
|
|
(2)
|
Unless
otherwise indicated, the address of each beneficial owner listed in the table below is: c/o Verb Technology Company, Inc., 3401 North
Thanksgiving Way, Suite 240, Lehi, Utah 84043. |
|
|
(3) |
Percentage
of common stock is based on 102,430,979 shares of our common stock outstanding as of August 24, 2022. |
(4)
|
Consists
of (i) 4,714,137 shares of common stock held directly by Mr. Cutaia, (ii) 240,240 shares of common stock held by Cutaia Media Group
Holdings, LLC (an entity over which Mr. Cutaia has dispositive and voting authority), (iii) 54,006 shares of common stock held by
Mr. Cutaia’s spouse (as to which shares, he disclaims beneficial ownership), (iv) 4,500 shares of common stock held jointly
by Mr. Cutaia and his spouse, (v) 33,333 shares of common stock underlying stock options exercisable within 60 days of August 24,
2022, (vi) 138,889 shares of common stock underlying warrants granted to Mr. Cutaia that are exercisable within 60 days of August
24, 2022, and (viii) 799,870 shares of common stock underlying convertible notes previously issued to Mr. Cutaia, determined by
dividing the aggregate amount of principal and accrued interest as of August 24, 2022, which was $823,866, by the fixed conversion
price of $1.03. This amount excludes 1,104,957 shares of common stock underlying restricted stock units that will not vest within
60 days of August 24, 2022. For additional information about the convertible notes issued to Mr. Cutaia, refer to the section
titled “Certain Relationships and Related Transactions.” |
|
|
(5)
|
Consists
of (i) 986,801 shares of common stock held directly, and (ii) 5,333 shares of common stock held by Mr. Geiskopf’s children.
This amount excludes 129,418 shares of common stock underling restricted stock units that will not vest within 60 days of August
24, 2022. |
|
|
(6) |
Consists
of (i) 206,257 shares of common stock held directly, and (ii) 66,667 shares of common stock underlying stock options exercisable
within 60 days of August 24, 2022. This amount excludes 64,709 shares of common stock underlying restricted stock units that will
not vest within 60 days of August 24, 2022. |
|
|
(7) |
Consists
of 260,561 shares of common stock held directly. This amount excludes 94,112 shares of common stock underlying restricted stock units
that will not vest within 60 days of August 24, 2022. |
|
|
(8) |
On
January 20, 2022, our Board appointed Salman H. Khan as Interim Chief Financial Officer and Treasurer. On March 30, 2022, our Board
approved Mr. Khan’s permanent appointment as Chief Financial Officer and Treasurer. |
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
General
Other
than the transactions discussed below, and the executive compensation arrangements described in the section titled “Executive Compensation”
since January 1, 2020, there was not, and there is not currently proposed, any transaction or series of similar transactions to which
we were or will be a party for which the amount involved exceeds or will exceed $120,000 and in which any director, director nominee,
executive officer, holder of more than 5% of our common stock, or any member of the immediate family of any of the foregoing, had or
will have a direct or indirect material interest (any such transaction, a “related party transaction”).
Policies
and Procedures for Approval of Related Party Transactions
If
we contemplate entering into any transaction with a related party, regardless of the amount involved, the terms of such transaction are
required to be presented to our Board for approval in advance of the transaction. Any director, officer
or employee who becomes aware of a transaction or relationship that could reasonably be expected to give rise to a conflict of interest
is required to disclose the matter promptly to our Board. Our Board must then either approve or reject the transaction and may only approve
the transaction if it determines, based on all of the information presented, that the related party transaction is not inconsistent with
the best interests of the Company and its stockholders.
Related
Party Transactions
Notes
Payable to Related Parties
The
Company had the following outstanding notes payable to related parties as of December 31, 2021 and January 1, 2020:
Note | |
Issuance Date | |
Maturity Date | |
Interest Rate | | |
Original Borrowing | | |
Largest Amount Outstanding Since January 1, 2020 | | |
Amount Outstanding as of December 31, 2021 | | |
Interest Paid Since January 1, 2021 | | |
Interest Paid Since January 1, 2020 | |
Note 1(1) | |
December 1, 2015 | |
February 8, 2021 | |
| 12.0 | % | |
$ | 1,249,000 | | |
$ | 825,000 | | |
$ | 725,000 | | |
$ | 91,000 | | |
$ | 205,000 | |
Note 2(2) | |
December 1, 2015 | |
April 1, 2017 | |
| 12.0 | % | |
| 112,000 | | |
| 112,000 | | |
| - | | |
| - | | |
| - | |
Note 3(3) | |
April 4, 2016 | |
June 4, 2021 | |
| 12.0 | % | |
| 343,000 | | |
| 240,000 | | |
| 40,000 | | |
| 44,000 | | |
| 50,000 | |
Total notes payable - related parties | |
$ | 1,177,000 | | |
$ | 765,000 | | |
$ | 135,000 | | |
$ | 255,000 | |
(1) |
On
December 1, 2015, we issued a convertible note to Mr. Cutaia in the principal amount of $1,249,000 to consolidate all loans and advances
made by Mr. Cutaia to us as of that date. The note bears interest at a rate of 12% per annum, is secured by our assets, and initially
matured on February 8, 2021. 30% of the original principal amount of the note, or $375,000, was converted to common stock in 2018,
while the remaining balance of $825,000 was not initially convertible. During the year ended December 31, 2020, the Company made
principal payments of $100,000 and interest payments of $114,000 on the note. As of December 31, 2020, the outstanding principal
balance of the note was $725,000 and the accrued interest was $4,000. |
|
|
|
In
February 2021, Mr. Cutaia and the Company amended the note to extend the maturity date from February 8, 2021 to February 8, 2023.
In exchange for the extension, the Company issued Mr. Cutaia warrants to purchase 138,889 shares of common stock with a grant date
fair value of $287,000. The warrants were fully vested upon issuance, are exercisable at $2.61 per share, and have a term of three
years. There were no other changes to the original terms of the note. |
|
On
May 19, 2021, our Board approved an amendment to the note to allow for conversion of the note at any time at the discretion of the
holder at a fixed conversion price of $1.03, which was the closing price of the common stock on the amendment date. |
|
|
|
As
of December 31, 2021, the outstanding balance of the note was $725,000 and the accrued interest was $0. Assuming all principal and
interest owed under the note had converted into common stock on that date, it would have converted into an aggregate of 703,883 shares,
based on the fixed conversion price. |
|
|
(2) |
On
December 1, 2015, we issued a note payable to a former director in the principal amount of $112,000, representing unpaid consulting
fees as of November 30, 2015. The note was unsecured, bore interest at a rate of 12% per annum, and matured in April 2017. |
|
|
|
On
September 24, 2021, we settled all amounts owed under the note for $140,000. |
|
|
(3) |
On
April 4, 2016, we issued a convertible note to Mr. Cutaia, in the principal amount of $343,000 to consolidate all loans and advances
made by Mr. Cutaia to us during the period December 2015 through March 2016. The note bears interest at a rate of 12% per annum,
is secured by our assets, and initially matured on June 4, 2021. 30% of the original principal amount of the note, or $103,000, was
converted to common stock in 2018, while the remaining balance of $240,000 was not initially convertible. |
|
|
|
On
May 19, 2021, our Board approved an amendment to the note to allow for conversion of the note at any time at the discretion of the
holder at a fixed conversion price of $1.03, which was the closing price of the common stock on the amendment date. On the same date,
$200,000 of the principal amount of the note was converted into 194,175 shares of common stock at the fixed conversion price. |
|
|
|
As
of December 31, 2021, the outstanding balance of the note amounted to $40,000 and the accrued interest was $0. Assuming all principal
and interest owed under the note had converted into common stock on that date, it would have converted into an aggregate of 38,835
shares, based on the fixed conversion price. |
Deferred
Compensation to Related Parties
The
Company had the following outstanding deferred compensation owed to related parties as of December 31, 2021 and January 1, 2020:
Note | |
Issuance Date | |
Maturity Date | |
Interest Rate | | |
Original Borrowing | | |
Largest Amount
Outstanding Since January 1, 2020 | | |
Amount Outstanding as of December 31, 2021 | | |
Interest
Paid Since January 1, 2021 | | |
Interest
Paid Since January 1, 2020 | |
Notes 1 & 2(1) | |
December 23, 2019 | |
January 10, 2021 | |
| 0 | % | |
$ | 278,000 | | |
$ | 278,000 | | |
$ | 139,000 | | |
$ | - | | |
$ | - | |
Notes 1 & 2(1) | |
December 23, 2019 | |
January 10, 2021 | |
| 0 | % | |
| 278,000 | | |
| 278,000 | | |
| 139,000 | | |
| - | | |
| - | |
Notes 3 & 4(2) | |
December 23, 2019 | |
January 10, 2022 | |
| 0 | % | |
| 243,000 | | |
| 243,000 | | |
| 122,000 | | |
| - | | |
| - | |
Notes 3 & 4(2) | |
December 23, 2019 | |
January 10, 2022 | |
| 0 | % | |
| 243,000 | | |
| 243,000 | | |
| 121,000 | | |
| - | | |
| - | |
Total deferred compensation - related parties | |
| |
| |
| | | |
| | | |
$ | 1,042,000 | | |
$ | 521,000 | | |
$ | - | | |
$ | - | |
(1) |
On
December 23, 2019, we awarded Mr. Cutaia and Mr. Clayborne annual incentive compensation awards of $430,000 and 125,000, respectively.
Our Board determined it was in the Company’s best interest to defer payments to these employees. We paid 50% of the annual
incentive compensation on January 10, 2021, and the remaining 50% on January 20, 2022. |
|
|
(2) |
On
December 23, 2019, we awarded Mr. Cutaia and Mr. Clayborne a cash bonus for our successful up-listing to Nasdaq and the acquisition
of Verb Direct totaling $324,000 and 162,000, respectively. Our Board determined it was in the Company’s best interest to defer
payments to these employees. We paid 50% of the bonus on January 10, 2021, and the remaining 50% on January 20, 2022. |
2021
ANNUAL REPORT ON FORM 10-K
Copies
of our proxy materials, including this Proxy Statement and the Annual Report are available online at www.proxyvote.com. The Annual
Report, however, is not part of this proxy solicitation material.
Any
person who was our stockholder on the Record Date (including any beneficial owner of shares) may request a copy of the Annual Report,
and it will be furnished without charge upon receipt of a written request. Requests should be directed to Verb Technology Company, Inc.,
3401 North Thanksgiving Way, Suite 240, Lehi, Utah 84043, Attention: Investor Relations, or by calling Investor Relations at (855) 250-2300.
In addition, copies of this Proxy Statement, the Annual Report, and all other documents filed electronically by us, may be reviewed on
the SEC’s website at: http://www.sec.gov.
OTHER
BUSINESS
As
of the date of this Proxy Statement, we are not aware of any other business to be considered or acted upon at the Annual Meeting. In
the event any other matters are properly presented at the Annual Meeting, or any postponement or adjournment thereof, the person named
as proxy will vote in accordance with his discretion with respect to those matters.
|
By
Order of the Board of Directors, |
|
|
|
/s/
Rory J. Cutaia |
|
Chairperson
of our Board, Chief Executive Officer, President and Secretary |
|
|
|
Lehi,
Utah |
|
September
6, 2022 |
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