SCHEDULE
14A INFORMATION
PROXY
STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE
ACT OF 1934
Filed
by the Registrant þ
Filed
by a Party other than the Registrant o
Check the
appropriate box:
o
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Preliminary
Proxy Statement
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o
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Confidential,
For Use of the Commission Only (As Permitted by Rule
14a-6(e)(2))
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þ
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Definitive
Proxy Statement
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o
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Definitive
Additional Materials
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o
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Soliciting
Material under §240.14a-12
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AFTERSOFT
GROUP, 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):
o
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11
.
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(1)
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Title
of each class of securities to which transaction
applies:
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(2)
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Aggregate
number of securities to which transaction
applies:
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(3)
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Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was
determined):
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(4)
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Proposed
maximum aggregate value of
transaction:
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o
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Fee
paid previously with preliminary
materials.
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o
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Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the form or schedule and the date of its
filing.
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(1)
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Amount
Previously Paid:
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(2)
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Form,
Schedule or Registration Statement
No.:
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Second
Floor, 9 Lower Bridge Street
Chester,
Cheshire UK CH1 1RS
011
44 1244 311794
Important
Notice Regarding the Availability of Proxy Materials
for
the Annual Meeting of Stockholders to Be Held on July 6,
2009
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The
Notice of Annual Meeting, Proxy Statement
and
Annual Report on Form 10-K are available at:
http://www.vfnotice.com/aftersoft/
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NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
TO
BE HELD ON JULY 6, 2009
To
the Stockholders of Aftersoft Group, Inc.:
NOTICE IS HEREBY GIVEN that an
Annual Meeting of Stockholders of Aftersoft Group, Inc., a Delaware corporation,
will be held on July 6, 2009 at 10:00 a.m. (British Summer Time) at
The Eaton Suite – Executive Boardroom, The Chester Grosvenor and Spa, Eastgate,
Chester, UK CH1 1LT, for the following purposes:
1. To
elect seven (7) members of the Company’s Board of Directors, each to serve until
the 2010 Annual Meeting of Stockholders and until their successors are elected
and qualified or until their earlier resignation or removal (Proposal No.
1);
2. To
consider and act upon a proposal to ratify the Board’s selection of KMJ Corbin
& Company LLP as the Company’s
independent auditors for the fiscal year ending June 30, 2009 (Proposal No. 2);
and
3. To
consider and act upon such other business as may properly come before the Annual
Meeting or any adjournment thereof.
The
foregoing items of business are more fully described in the Proxy Statement that
is attached and made a part of this Notice. Only stockholders of record of our
Common Stock, $0.0001 par value per share, at the close of business on June 12,
2009 will be entitled to notice of, and to vote at, the Annual Meeting of
Stockholders or any adjournment thereof.
A copy of
our Annual Report to Stockholders on Form 10-K for the year ended June 30, 2008,
which contains financial statements and other information of interest to
stockholders, accompanies this Notice and the enclosed Proxy
Statement.
All
stockholders are cordially invited to attend the Annual Meeting of Stockholders
in person. Your vote is important regardless of the number of shares you own.
Only record or beneficial owners of Aftersoft’s Common Stock as of the Record
Date may attend the Annual Meeting in person. When you arrive at the Annual
Meeting, you must present photo identification, such as a driver’s license.
Beneficial owners also must provide evidence of stock holdings as of the Record
Date, such as a recent brokerage account or bank statement.
Whether
or not you expect to attend the Annual Meeting of Stockholders, please complete,
sign, date, and return the enclosed proxy card in the enclosed postage-paid
envelope in order to ensure representation of your shares. It will help in our
preparations for the meeting if you would check the box on the form of proxy if
you plan on attending the Annual Meeting. Your proxy is revocable in accordance
with the procedures set forth in the Proxy Statement.
Chester,
UK
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By
Order of the Board of Directors,
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June 12,
2009
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IAN
WARWICK
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Chairman
and Chief Executive
Officer
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TABLE OF
CONTENTS
PROXY
STATEMENT FOR 2009 ANNUAL MEETING OF STOCKHOLDERS
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1
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Information
Concerning the Proxy Materials and the Annual Meeting
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1
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Voting
Procedures and Vote Required
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2
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SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
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3
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ELECTION
OF DIRECTORS (Proposal No. 1)
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7
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CORPORATE
GOVERNANCE
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10
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Board
of Directors
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10
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Director
Independence
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10
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Board
Meetings and Attendance
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10
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Annual
Meeting Attendance
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10
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Stockholder
Communications with the Board
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10
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Board
Committees
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10
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Family
Relationships
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12
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Involvement
in Certain Legal Proceedings
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12
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DIRECTOR
COMPENSATION FOR FISCAL 2008
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12
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INFORMATION
ABOUT OUR EXECUTIVE OFFICERS
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13
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EXECUTIVE
COMPENSATION
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14
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Compensation
Discussion and Analysis
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14
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Compensation
Committee Report
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18
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Summary
Compensation Table for Fiscal Years 2008 and 2007
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18
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Other
Compensation
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19
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Outstanding
Equity Awards at 2008 Fiscal Year End
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19
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Employment
Agreements with Executive Officers Subsequent to Fiscal
2008
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20
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CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR
INDEPENDENCE
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22
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COMPLIANCE
WITH SECTION 16(a) OF THE EXCHANGE ACT
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29
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RATIFICATION
OF APPOINTMENT OF INDEPENDENT AUDITORS (Proposal No.
2)
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30
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AUDIT
COMMITTEE REPORT
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32
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STOCKHOLDER
PROPOSALS FOR 2010 ANNUAL MEETING
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33
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EXPENSES
AND SOLICITATION
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33
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OTHER
BUSINESS
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33
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ADDITIONAL
INFORMATION
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33
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PROXY
STATEMENT FOR 2009 ANNUAL MEETING OF STOCKHOLDERS
In this Proxy Statement, Aftersoft
Group, Inc., a Delaware corporation, is referred to as “Aftersoft,” the
“Company,” “we,” “us” and “our.”
Information
Concerning the Proxy Materials and the Annual Meeting
Proxies
in the form enclosed with this Proxy Statement are being solicited by our Board
of Directors for use at the 2009 Annual Meeting of our Stockholders to be held
at 10:00 a.m. (British Summer Time) on July 6, 2009, at The Eaton Suite –
Executive Boardroom, The Chester Grosvenor and Spa, Eastgate, Chester, UK CH1
1LT, and at any adjournment thereof. Your vote is very important. For this
reason, our Board of Directors is requesting that you permit your Common Stock,
$0.0001 par value per share (“Common Stock”), to be represented at the Annual
Meeting by the proxies named on the enclosed proxy card. This Proxy
Statement contains important information for you to consider when deciding how
to vote on the matters brought before the meeting. Please read it
carefully.
Voting
materials, which include this Proxy Statement, the enclosed proxy card, and the
enclosed Annual Report to Stockholders on Form 10-K for the year ended June 30,
2008, which contains financial statements and other information of interest to
stockholders, will first be mailed to stockholders on or about June 15,
2009.
Only
stockholders of record as of the close of business on June 12, 2009 (the “Record
Date”) of our Common Stock will be entitled to notice of, and to vote at, the
Annual Meeting. As of May 29, 81,287,462 shares of Common Stock were issued and
outstanding. As of the Record Date, 81,287,462 shares of Common Stock were
issued and outstanding. Holders of Common Stock are entitled to one vote per
share held by them. Stockholders may vote in person or by proxy, however,
granting a proxy does not in any way affect a stockholder’s right to attend the
Annual Meeting and vote in person. Any stockholder giving a proxy has the right
to revoke that proxy by (i) filing a later-dated proxy or a written notice of
revocation with us at our principal offices at any time before the original
proxy is exercised or (ii) attending the Annual Meeting and voting in
person.
Each of
Ian Warwick and Simon Chadwick are named as attorneys in the proxy. Mr. Warwick
is our President and Chief Executive Officer and is also a member of our Board
of Directors. Mr. Chadwick is our Chief Operating Officer and is also a member
of our Board of Directors. Mr. Warwick or Mr. Chadwick will vote all shares
represented by properly executed proxies returned in time to be counted at the
Annual Meeting, as described below under “Voting Procedures.” Any stockholder
granting a proxy has the right to withhold authority to vote for any or all of
the nominees to the Board of Directors. Where a vote has been specified in the
proxy with respect to the matters identified in the Notice of the Annual
Meeting, including the election of directors, the shares represented by the
proxy will be voted in accordance with those voting specifications. If no voting
instructions are indicated, your shares will be voted as recommended by our
Board on all matters, and as the proxy holders may determine in their discretion
with respect to any other matters properly presented for a vote before the
Annual Meeting.
The
stockholders will consider and vote upon (i) a proposal to elect seven (7)
members of our Board of Directors, each to serve until the 2010 Annual Meeting
of Stockholders and until their successors are elected and qualified or until
their earlier resignation or removal; and (ii) a proposal to ratify the Board’s
selection of KMJ Corbin & Company LLP as our independent
auditors for the fiscal year ending June 30, 2009. Stockholders also will
consider and act upon such other business as may properly come before the Annual
Meeting.
Voting
Procedures and Vote Required
Mr.
Warwick or Mr. Chadwick will vote all shares represented by properly executed
proxies returned in time to be counted at the Annual Meeting. The presence, in
person or by proxy, of at least a majority of the issued and outstanding shares
of Common Stock entitled to vote at the Annual Meeting is necessary to establish
a quorum for the transaction of business. Shares represented by proxies pursuant
to which votes have been withheld for any or all of the nominees for directors,
or which contain one or more abstentions, as well as “broker non-vote” shares
(described below) are counted as present for purposes of determining the
presence or absence of a quorum for the Annual Meeting.
All
properly executed proxies delivered pursuant to this solicitation and not
revoked will be voted at the Annual Meeting as specified in such proxies. As
noted above, proxies will be voted as recommended by our Board on all matters
and will be voted in the discretion of the proxy holder on any other matters
that properly come before the Annual Meeting, if no voting instructions are
indicated.
Vote Required for Election of
Directors (Proposal 1). Our Certificate of Incorporation, as
amended, does not authorize cumulative voting. Delaware law and our Bylaws
provide that directors are to be elected by a plurality of the votes of the
shares present in person or represented by proxy at the Annual Meeting and
entitled to vote on the election of directors. This means that the seven (7)
candidates receiving the highest number of affirmative votes at the Annual
Meeting will be elected as directors. Only shares that are voted in favor of a
particular nominee will be counted toward that nominee’s achievement of a
plurality. Shares present at the Annual Meeting that are not voted for a
particular nominee or shares present by proxy where the stockholder properly
withheld authority to vote for such nominee will not be counted toward that
nominee’s achievement of a plurality.
Vote Required for Ratification of
Auditors (Proposal 2). Delaware law and our Bylaws provide
that, on all other matters (other than the election of directors and except to
the extent otherwise required by our Certificate of Incorporation or applicable
Delaware law), the affirmative vote of a majority of the shares present, in
person or by proxy, and voting on the matter, will be required for approval.
Accordingly, the affirmative vote of a majority of the shares present at the
Annual Meeting, in person or by proxy, and voting on the matter, will be
required to ratify the Board’s selection of KMJ Corbin & Company LLP as our independent
auditors for the fiscal year ending June 30, 2009.
If you
hold shares beneficially in street name and do not provide your broker with
voting instructions, your shares may constitute “broker non-votes.” Generally,
broker non-votes occur on a matter when a broker is not permitted to vote on
that matter without instructions from the beneficial owner and instructions are
not given. Brokers that have not received voting instructions from their clients
cannot vote on their clients’ behalf on “non-routine” proposals. Broker
non-votes are not counted for the purposes of obtaining a quorum for the Annual
Meeting, and, in tabulating the voting result for any particular proposal,
shares that constitute broker non-votes are not considered entitled to vote.
There are no votes scheduled for the Annual Meeting that are considered
“non-routine.”
Abstentions
are counted as “shares present” at the Annual Meeting for purposes of
determining the presence of a quorum and with respect to any matters being voted
upon at the Annual Meeting. Abstentions will have no effect on the outcome of
the election of directors, but with respect to any other proposal an abstention
will operate to prevent the approval of such proposal to the same extent as a
vote against such proposal.
Votes at
the meeting will be tabulated by one or more inspectors of election appointed by
the Chief Executive Officer.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth certain information regarding the beneficial
ownership of our Common Stock as of May 29, 2009 by (a) each stockholder who is
known to us to own beneficially 5% or more of our outstanding Common Stock; (b)
all directors; (c) our executive officers, and (d) all executive officers and
directors as a group. Except as otherwise indicated, all persons listed below
have (i) sole voting power and investment power with respect to their shares of
Common Stock, except to the extent that authority is shared by spouses under
applicable law, and (ii) record and beneficial ownership with respect to their
shares of Common Stock. The percentage of beneficial ownership is based upon
81,287,462 shares of Common Stock outstanding as of May 29, 2009. Unless
otherwise identified, the address of our directors and officers is c/o Aftersoft
Group, Inc., Heronsway, Chester Business Park, Chester, UK CH4 9QR.
Name and address of beneficial owner
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Amount and Nature of
Beneficial Ownership
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Percent of class of
Common Stock (1)
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Wynnefield
Persons (2)
c/o
Wynnefield Capital Inc.
450
Seventh Ave., Suite 509
New
York, NY 10123
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12,537,896
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(3)
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14.85
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%
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Quillen
Persons (4)
145
East 57th Street, 10th Floor
New
York, NY 10022
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6,960,112
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(5)
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8.52
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%
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ComVest
Capital LLC
105
S. Narcissus Ave.
West
Palm Beach, FL 33401
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9,444,678
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(6)
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10.41
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%
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Directors
and Officers:
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Ian
Warwick
Chief
Executive Officer
and
Chairman
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4,561,452
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(7)
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5.61
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%
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Simon
Chadwick
Chief
Operating Officer
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1,961,084
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2.41
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%
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Charles
F. Trapp
Chief
Financial Officer
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1,048,571
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(8)
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1.29
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%
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Frederick
Wasserman,
Director
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81,501
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(9)
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0.10
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%
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Dwight
B. Mamanteo,
Director
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390,297
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(10)
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0.48
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%
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Marcus
Wohlrab,
Director
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39,085
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(11)
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0.05
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%
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Gerald
M. Czarnecki,
Director
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673,545
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(12)
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0.83
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%
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W.
Austin Lewis IV (13)
c/o
Lewis Asset Management Corp.
45
Rockefeller Plaza
New
York, NY 10111
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16,284,345
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(14)
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18.57
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%
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Executive
Officers and Directors
as
a group (8 persons)
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25,039,880
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28.55
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%
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Former Officers:
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Michael
Jamieson(15)
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560,000
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0.69
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%
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Michael
O’Driscoll
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0
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0.00
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%
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(1)
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Based
on a total of 81,287,462 shares of Common Stock outstanding. In accordance
with Securities and Exchange Commission rules, each person’s percentage
interest is calculated by dividing the number of shares that person owns
by the sum of (a) the total number of shares outstanding as of May 29,
2009 plus (b) the number of shares such person has the right to acquire
within sixty (60) days of May 29,
2009.
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(2)
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Comprised
of Wynnefield Partners Small Cap Value, LP (“Wynnefield Partners”) and
Wynnefield Partners Small Cap Value LP I (“Wynnefield Partners I”), and
the general partner of each of these entities, Wynnefield Capital
Management, LLC (“Wynnefield LLC”); Wynnefield Small Cap Value Offshore
Fund Ltd. (“Wynnefield Offshore”) and its investment manager, Wynnefield
Capital, Inc. (“Wynnefield Capital”); Wynnefield Capital, Inc. Profit
Sharing & Money Purchase Plan (the “Plan”); Channel Partnership II, LP
(“Channel”); Nelson Obus, who serves as principal and co-managing member
of Wynnefield Capital Management, LLC, principal executive officer of
Wynnefield Capital, Inc. and general partner of Channel Partnership II,
LP; and Joshua H. Landes, who serves as principal and co-managing member
of Wynnefield Capital Management, LLC and executive officer of Wynnefield
Capital, Inc. (collectively, the “Wynnefield Persons”). Dwight Mamanteo,
one of the Company’s directors, is an investment analyst with Wynnefield
Capital. Mr. Mamanteo exercises neither voting nor dispositive control
over the shares beneficially owned by Wynnefield Capital. The Company has
been informed that Nelson Obus and Joshua H. Landes share voting and
investment control over the shares beneficially owned by Wynnefield
Partners, Wynnefield Partners I, Wynnefield Offshore, Wynnefield LLC,
Wynnefield Capital and the Plan, and that Nelson Obus exercises sole
voting and investment control over the shares beneficially owned by
Channel. Based upon information provided in a Schedule 13D/A
filed with the SEC on April 3, 2009 and a Form 4 filed on May 22,
2009.
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(3)
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Represents
an aggregate 9,412,894 shares of common stock and 3,125,002 shares
issuable upon exercise of warrants which are currently exercisable at
$1.00 per share and expire July 2, 2013, which are beneficially owned as
follows: (i) 2,451,015 shares of common stock and 833,334 shares issuable
upon exercise of warrants are beneficially owned by Wynnefield Partners;
(ii) 3,065,485 shares of common stock and 833,334 shares issuable upon
exercise of warrants are beneficially owned by Wynnefield Partners I;
(iii) 2,860,963 shares of common stock and 833,334 shares issuable upon
exercise of warrants are beneficially owned by Wynnefield Offshore; (iv)
410,431 shares of common stock beneficially owned by the Wynnefield
Capital, Inc. Profit Sharing & Money Purchase Plan; and (v) 625,000
shares of common stock and 625,000 shares issuable upon exercise of
warrants are beneficially owned by Channel. Based upon
information provided in a Form 4 filed with the SEC on May 22,
2009.
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(4)
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Comprised
of Little Wing, L.P. (“Little Wing”); Quilcap Corp., the general partner
of Little Wing (“Quilcap Corp.”); Tradewinds Fund, Ltd. (“Tradewinds”);
Quilcap Management, LLC, the investment manager of Little Wing and
Tradewinds (“Quilcap Management”); and Parker Quillen, the President of
Quilcap Corp. and the Sole Managing Member of Quilcap Management
(collectively, the “Quillen Persons”). Based upon information
provided in a Schedule 13G/A filed with the SEC on February 13,
2009.
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(5)
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Represents
(i) 5,976,508 shares of common stock and 357,292 shares of common stock
issuable upon exercise of warrants, which are currently exercisable at
$1.00 per share and expire July 2, 2013, owned by Little Wing, with
respect to which Little Wing has the power to vote and dispose, which
power may be exercised by Mr. Quillen, as President of Quilcap Corp and as
Sole Managing Member of Quilcap Management; and (ii) 540,879 shares of
common stock and 59,375 shares of common stock issuable upon exercise of
warrants, which are currently exercisable at $1.00 per share and expire
July 2, 2013, owned by Tradewinds, with respect to which Tradewinds has
the power to vote and dispose, which power may be exercised by Mr.
Quillen, as the Sole Managing Member of Quilcap Management; and (iii)
26,058 shares of common stock with respect to which Mr. Quillen has sole
voting and dispositive power. Based upon information provided
in a Schedule 13G/A filed with the SEC on February 13,
2009.
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(6)
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Includes
the following shares owned by ComVest Capital LLC: (i) 1,000,000 shares
issuable upon exercise of warrants to purchase shares of Common Stock,
which are currently exercisable at $0.11 per share and expire December 31,
2013; (ii) 2,083,333 shares issuable upon exercise of warrants to purchase
shares of Common Stock, which are currently exercisable at $0.3618 per
share and expire December 31, 2013; (iii) 2,000,000 shares issuable upon
exercise of warrants to purchase shares of Common Stock, which are
currently exercisable at $0.11 per share and expire December 31, 2013, and
(iv) 3,361,345 shares of common stock issuable upon conversion of the
$5,000,000 principal amount of that certain Convertible Term Note dated
December 21, 2007 issued to Comvest Capital LLC, at a current conversion
rate of $1.4875 per share. The Company has been informed that Comvest
Capital Advisors, LLC is the managing entity of ComVest Capital, LLC, and
that Gary Jaggard, managing director of Comvest Capital, LLC, exercises
voting and investment control over the shares beneficially owned by
ComVest Capital, LLC. Also includes 1,000,000 shares issuable upon
exercise of warrants owned by Commonwealth Associates, LP, an entity
affiliated with Comvest Capital, LLC. See “Certain Relationships and
Related Transactions and Director Independence” for additional
detail.
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(7)
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Represents
shares that Mr. Warwick owns
directly.
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(8)
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Includes
420,000 vested shares of an award of an aggregate 750,000 restricted
shares of Common Stock granted by the Company on May 13, 2008 for services
previously rendered.
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(9)
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Includes
(i) 14,000 vested shares of restricted Common Stock of an award for an
aggregate 25,000 shares of restricted Common Stock granted on May 13, 2008
by the Company for services previously rendered; and (ii) 27,501 vested
shares of restricted Common Stock out of an award of an aggregate of
110,000 shares of restricted Common Stock granted on October 6,
2008.
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(10)
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Includes
(i) 14,000 vested shares of restricted Common Stock of an award for an
aggregate 25,000 shares of restricted Common Stock granted on May 13, 2008
by the Company for services previously rendered; and (ii) 19,935 vested
shares of restricted Common Stock out of an award of an aggregate of
104,000 shares of restricted Common Stock granted on October 6,
2008.
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(11)
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Includes
(i) 14,000 vested shares of restricted Common Stock of an award for an
aggregate 25,000 shares of restricted Common Stock granted on May 13, 2008
by the Company for services previously rendered; and (ii) 25,085 vested
shares of restricted Common Stock out of an award of an aggregate of
104,000 shares of restricted Common Stock granted on October 6,
2008.
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(12)
|
Includes
(i) 11,528 vested shares of restricted Common Stock out of an award for an
aggregate 25,000 shares of restricted Common Stock granted by the Company
for joining the Board of Directors on October 6, 2008; and (ii) 26,835
vested shares of restricted Common Stock out of an award of an aggregate
140,000 shares of restricted Common Stock granted on October 6,
2008.
|
|
(13)
|
W.
Austin Lewis IV is the portfolio manager and general partner of Lewis
Asset Management Corp., the investment manager of Lewis Opportunity Fund,
LP and LAM Opportunity Fund, LTD. Accordingly, Mr. Lewis is deemed to
be the beneficial owner of the shares owned by Lewis Opportunity Fund, LP
and LAM Opportunity Fund, LTD. and beneficially owned by Lewis Asset
Management Corp.
|
|
(14)
|
Represents
(i) 3,209,981 shares owned directly by W. Austin Lewis IV, (ii) 5,322,646
shares of common stock and 5,112,328 shares issuable upon exercise of
warrants, which are currently exercisable at $1.00 per share and expire
April 24, 2014, owned by Lewis Opportunity Fund, LP, and (iii) 1,348,719
shares of common stock and 1,290,671 shares of common stock issuable upon
exercise of warrants, which are currently exercisable at $1.00 per share
and expire April 24, 2014, owned by LAM Opportunity Fund,
LTD.
|
|
(15)
|
Mr.
Jamieson previously served as the Company’s Chief Operating Officer and a
director on the Company’s Board of Directors, but resigned these positions
on March 6, 2007. He currently serves as Chief Executive
Officer of the Company’s subsidiary, MAM Software
Ltd.
|
Information
about the Change in Control of Aftersoft
On
November 24, 2008 (the “Dividend Distribution Date”), Auto Data Network, Inc.
(“ADNW”), the former parent of Aftersoft, distributed a dividend of the
71,250,000 shares of Aftersoft Common Stock that ADNW owned at such time in
order to complete the previously announced spin-off of Aftersoft’s businesses.
The dividend shares were distributed in the form of a pro rata dividend to the
holders of record as of November 17, 2008 (the “Record Date”) of ADNW’s common
and convertible preferred stock. Each holder of record of shares of ADNW common
and preferred stock as of the close of business on the Record Date was entitled
to receive 0.6864782 shares of Aftersoft's common stock for each share of common
stock of ADNW held at such time, and/or for each share of ADNW common stock that
such holder would own, assuming the convertible preferred stock owned on the
Record Date was converted in full.
Due to
the nature of the dividend distribution, the ex-dividend date was set by NASDAQ
as Tuesday, November 25, 2008, one day following the Dividend Distribution Date.
No consideration was paid by any ADNW shareholder to receive the distribution of
the dividend shares. Only whole shares were delivered to ADNW shareholders, so
any resulting fractional shares in calculating the dividend were rounded up to
the nearest whole number, which rounding up resulted in the issuance of an
aggregate additional amount of approximately 8,247 shares.
As a
result of Aftersoft’s ownership of certain ADNW securities, Aftersoft received
approximately 13,965,295 shares of its own common stock in connection with the
dividend distribution.
Prior to
the spin-off, ADNW owned approximately 77% of Aftersoft’s issued and outstanding
common stock. Subsequent to and as a result of the spin-off, Aftersoft is no
longer a subsidiary of ADNW.
ELECTION
OF DIRECTORS
(Proposal
No. 1)
The
following individuals have been nominated as members of our Board of Directors,
each to serve until the 2010 Annual Meeting of Stockholders, until their
successors are elected and qualified or until their earlier resignation or
removal. Pursuant to Delaware law and our Bylaws, directors are to be elected by
a plurality of the votes of the shares present in person or represented by proxy
at the Annual Meeting and entitled to vote on the election of directors. This
means that the seven (7) candidates receiving the highest number of affirmative
votes at the Annual Meeting will be elected as directors. Only shares that are
voted in favor of a particular nominee will be counted toward that nominee’s
achievement of a plurality. Proxies cannot be voted for a greater number of
persons than the number of nominees named or for persons other than the named
nominees.
Following
is information about each nominee, including biographical data for at least the
last five years. Should one or more of these nominees become unavailable to
accept nomination or election as a director, the individuals named as proxies on
the enclosed proxy card will vote the shares that they represent for the
election of such other persons as the Board may recommend, unless the Board
reduces the number of directors. We have no reason to believe that any nominee
will be unable or unwilling to serve if elected as a director.
Name of Director
|
|
Age
|
|
Director since:
|
Ian
Warwick
|
|
49
|
|
December
2005
|
|
|
|
|
|
Simon
Chadwick
|
|
40
|
|
July
2007
|
|
|
|
|
|
Dwight
B. Mamanteo
|
|
39
|
|
March
2007
|
|
|
|
|
|
Marcus
Wohlrab
|
|
46
|
|
March
2007
|
|
|
|
|
|
Frederick
Wasserman
|
|
54
|
|
July
2007
|
|
|
|
|
|
Gerald
M. Czarnecki
|
|
69
|
|
August
2008
|
|
|
|
|
|
W.
Austin Lewis IV
|
|
33
|
|
January
2009
|
Ian Warwick has served as
Chief Executive Officer and Chairman of the Board of Directors since December
2005. He served as CEO, President and Chairman of ADNW, Aftersoft’s former
parent, from October 2005 until immediately following the spin-off of Aftersoft
from ADNW on November 24, 2008. From September 2004 until December 2005, Mr.
Warwick served as CEO of Broaden Software, Inc., a software company aggregator.
From January 2004 to July 2004, he served as CEO of Bioaccelerate Holdings, Inc.
where he established the structure of the business to enable it raise capital
and acquire pharmaceutical products and licenses. From March 2001 to September
2003, he established and listed on the OTCBB, Corpsan, Inc. a supply chain and
enterprise resource planning company for the design and print
industry.
Simon Chadwick has served as
Chief Operating Officer since May 2007 and as a director since July 2007. Mr.
Chadwick has served as the Company’s vice-president of Corporate Development
since January 2006. From September 2004 to March 2006, Mr. Chadwick served as
the chief technical officer of Broaden Software, Inc., a software company
aggregator, for which he structured several acquisitions and provided business
and technology appraisals and negotiations in the United Kingdom, New Zealand
and South Africa. From November 2003 to September 2004, he served as the chief
executive officer of BrainBox Consulting Ltd., a technology consulting company.
From July 2000 to November 2003, he served as the chief technology officer of
Corspan Inc., a private equity funded company focused on e-business initiatives,
including the acquisition of leading-edge knowledge, content, and management
systems. Mr. Chadwick received his Bachelor of Science degree in chemistry and
computer science from the University of Hull (Hull, England).
Dwight B. Mamanteo became a
Director of the Company on March 1, 2007. Mr. Mamanteo serves as the Chairman of
the Company’s Compensation Committee and as a member of the Company’s Audit
Committee and a member of the Company’s Governance and Nomination Committee.
From November 2004 to the present, he has served as an investment analyst and
portfolio manager at Wynnefield Capital Inc., a private investment firm
headquartered in New York City. From September 1999 to June 2004, he served as
manager of Global Alliances Technical Services for BEA Systems in the US and
France. He has also provided technical consulting services to Delta
Technologies, VISA International, Liberty Mutual, Ameritec Communications and
Ericcson Communications. Mr. Mamanteo also serves on the Board of Directors of
PetWatch Animal Hospitals, Inc. and was appointed its Chairman of the Board in
February 2009, and since April 2009 has served on the Board of Directors, and a
member of the Compensation and Governance Committees of Easylink Services
International Corporation (NASDAQ: ESIC), a provider of e-commerce solutions
connecting businesses with their trading communities. He also served on the
Board of Directors of Sevis Sherpa Corporation, where he chaired the
Compensation Committee. Mr. Mamanteo received his MBA from the Columbia
University Graduate School of Business and his Bachelor of Electrical
Engineering from Concordia University (Montreal).
Marcus Wohlrab became a
Director of the Company on March 1, 2007. Mr. Wohlrab is the Chairman of the
Governance and Nomination Committee and is a member of the Compensation
Committee. In April 2001, Mr. Wohlrab founded Easting Capital Limited, a company
that serves as a placing agent for credit and interest rate securities as well
as negotiating public finance deals for large infrastructure projects as well as
private companies. Easting Capital has recently been re launched beginning 2008
with new shareholders and is now known as Clearmond AG registered in
Switzerland. From October 2000 to April 2001, Mr. Wohlrab was Executive Vice
President Market Development for Easdaq, the pan-European Stock Market for
growth companies (later acquired by NASDAQ). From January 1998 to September
2000, he served as Director Europe and Middle East for NASDAQ International. He
also founded, built and helped finance WinWatch/WinVista, a software programming
entity focused on Internet and Windows security products. He was also Director
of Corporate Finance for Modatech Systems, Assistant Director for the Union Bank
of Switzerland, Vice President of Sales and Marketing for Paine Webber
International, and Vice President for Wood Gundy/CIBC/Oppenheimer. Mr. Wohlrab
received a Bachelor of Science degree in Mathematics and Geology from Devon
University and is fluent in Italian, French, German and English.
Frederick Wasserman became a
Director of the Company on July 17, 2007. Mr. Wasserman is the Chairman of the
Audit Committee and is a member of the Governance and Nomination Committee. Mr.
Wasserman is President of FGW Partners, LLC, a financial management consulting
firm he started, effective as of May 1, 2008. From August 2005 to December 2006,
he served as Chief Operating and Chief Financial Officer of Mitchell & Ness
Nostalgia Company, a manufacturer of licensed sportswear. From January 2001 to
February 2005, he served as President and Chief Financial Officer of Goebel of
North America, a subsidiary of the manufacturer of M.I. Hummel products, W.
Goebel Porzellanfabrik Company. From December 1995 to January 2001 he served as
Vice-President of Finance and Chief Financial Officer of Papel Giftware, serving
as the company’s interim president from May 2000 to January 2001. He also brings
13 years of public accounting experience, most notably work with each of Coopers
& Lybrand and Eisner & Company. He received a Bachelor of Science degree
in Economics from the University of Pennsylvania’s Wharton School, and has been
a Certified Public Accountant. Mr. Wasserman also serves as a Director for the
following companies: Acme Communications, Inc. (chairman- Nominating Committee,
member- Audit Committee), Breeze-Eastern Corporation (Chairman- Audit
Committee), Allied Defense Group (Member-Audit Committee, Ethics and Governance
Committee), TeamStaff, Inc.(Chairman- Audit Committee), Crown Crafts, Inc. and
Gilman + Ciocia, Inc. (Chairman- Compensation Committee, Member- Audit
Committee).
Gerald M. Czarnecki became a
Director of the Company on August 13, 2008. Mr. Czarnecki serves as our lead
director and is an ex officio member of each of the Audit Committee,
Compensation Committee and Governance and Nomination Committee. Mr. Czarnecki is
the Chairman and CEO of The Deltennium Group, Inc., a privately held consulting
and direct investment firm, since its founding in 1995. Since August 2007, Mr.
Czarnecki has served as President and CEO of 02Media, Inc., a private
organization providing direct response marketing campaign management and
infomercial production, educational and branded entertainment TV programming and
Internet marketing campaign management. From April 1, 2007 to January 15, 2008,
Mr. Czarnecki served as interim President & CEO of Junior Achievement
Worldwide, Inc., where he also serves on the board of directors, and as member
of the Executive Committee, and Chairman of its Human Resources, Compensation
and Pension Committees. Mr. Czarnecki is a member of the Board of Directors of
State Farm Insurance Company and is Chairman of the Audit Committee; a member of
the Board of Directors of Del Global Technology, Inc. since June 2003, and
Chairman of the Audit Committee; and a member of the Board of Directors of State
Farm Bank and State Farm Fire & Casualty. He is also a member of the
advisory board for Private Capital, Inc. and serves as Chairman of the Board of
Trustees of National University. In addition he is Chairman of the Board of
National Leadership Institute, a nonprofit organization dedication to
facilitating quality leadership and governance in nonprofit organizations;
Chairman of the National Association of Corporate Directors - Florida Chapter,
and faculty member; and member of the Board of Directors of Junior Achievement
of South Florida, Inc. Mr. Czarnecki holds a B.S. in Economics from Temple
University, and M.A. in Economics from Michigan State University, a Doctor of
Humane Letters from National University and is a Certified Public
Accountant.
W. Austin Lewis IV was
appointed to the Board on January 27, 2009. Mr. Lewis serves as a member of the
Audit Committee and the Compensation Committee. He currently serves as the Chief
Executive Officer of Lewis Asset Management Corp., an investment management
company headquartered in New York City which he founded in 2004. From 2003 to
2004, Mr. Lewis was employed at Puglisi & Company, a New York based
broker-dealer registered with FINRA, where he served as a registered
representative and managed individual client accounts, conducted due diligence
for investment banking activities and managed his own personal account. In 2002,
Mr. Lewis co-founded Thompson Davis, & Company, Inc., a registered
broker-dealer headquartered in Richmond, Virginia. From 1998 to 2002, Mr. Lewis
was employed by Branch Cabell and Company, Inc. in Richmond, Virginia (“Branch
Cabell”) where he was a registered representative. Following the November 2000
acquisition of Branch Cabell by Tucker Anthony Incorporated (“Tucker Anthony”),
Mr. Lewis served as a Vice-President for Tucker Anthony and subsequently RBC
Dain Rauscher, Inc. which acquired Tucker Anthony in August of 2001. Mr. Lewis
received his Bachelor of Science degree in Finance and Financial Economics from
James Madison University in 1998.
At
the Annual Meeting a vote will be taken on a proposal to approve the election of
the seven (7) director nominees.
THE BOARD
OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR THE ELECTION OF THE SEVEN (7)
DIRECTOR NOMINEES.
CORPORATE
GOVERNANCE
Board
of Directors
The Board
oversees our business affairs and monitors the performance of our management. In
accordance with our corporate governance principles, the Board does not involve
itself in day-to-day operations. The directors keep themselves informed through
discussions with the Chief Executive Officer, other key executives and by
reading the reports and other materials sent to them and by participating in
Board and committee meetings. Our directors hold office until the next annual
meeting of stockholders and until their successors are elected and qualified or
until their earlier resignation or removal, or for other reason is unable to
serve in the capacity of director.
Director
Independence
Our
determination of independence of directors is made using the definition of
“independent director” contained in Rule 4200(a)(15) of the rules of the NASDAQ
Stock Market (“NASDAQ”) , even though such definitions do not currently apply to
us because we are not listed on NASDAQ. We have determined that Dwight B.
Mamanteo, Marcus Wohlrab, Frederick Wasserman, Gerald Czarnecki and Austin Lewis
are “independent” within the meaning of such rules. Ian Warwick and Simon
Chadwick are not “independent” under these rules, due to their respective
positions as our Chief Executive Officer and Chief Operating
Officer.
Board
Meetings and Attendance
During
fiscal 2008, the Board held 12 physical and telephonic meetings. No incumbent
director attended, either in person or via telephone, fewer than 75% of the
aggregate of all meetings of the Board and committees, if any, on which each
director served. The Board also approved certain actions by unanimous written
consent.
Annual
Meeting Attendance
Two of
the Company’s then five directors attended our 2008 Annual Meeting of
Stockholders, which was held in Chester, England.
Stockholder
Communications with the Board
We have
not implemented a formal policy or procedure by which our stockholders can
communicate directly with our Board of Directors. Nevertheless, every effort has
been made to ensure that the views of stockholders are heard by the Board of
Directors or individual directors, as applicable, and that appropriate responses
are provided to stockholders in a timely manner. We believe that we are
responsive to stockholder communications, and therefore have not considered it
necessary to adopt a formal process for stockholder communications with our
Board. During the upcoming year, our Board will continue to monitor whether it
would be appropriate to adopt such a process.
Board
Committees
Our Board
of Directors has three standing committees of the Board: a Compensation
Committee, an Audit Committee and Governance and Nomination Committee. As of May
29, 2009, the members of these committees are:
Compensation Committee
|
|
Audit Committee
|
|
Governance and Nomination
Committee
|
Dwight
B. Mamanteo - Chair
|
|
Frederick
Wasserman** - Chair
|
|
Marcus
Wohlrab – Chair
|
|
|
|
|
|
Marcus
Wohlrab
|
|
Dwight
B. Mamanteo
|
|
Dwight
B. Mamanteo
|
|
|
|
|
|
W.
Austin Lewis IV
|
|
W.
Austin Lewis IV
|
|
Frederick
Wasserman
|
|
|
|
|
|
Gerald
M. Czarnecki -ex officio member
|
|
Gerald
M. Czarnecki -ex officio member
|
|
Gerald
M. Czarnecki -ex officio
member
|
**The
Board of Directors has determined that Frederick Wasserman is an “audit
committee financial expert” as defined in Regulation S-K.
Audit
Committee
The Audit
Committee of the Board of Directors assists the Board of Directors in fulfilling
its responsibility for oversight of the quality and integrity of the accounting,
auditing, and reporting practices of the Company, and such other duties as
directed by the Board. The Committee’s purpose is to oversee the accounting and
financial reporting processes of the Company, the audits of the Company’s
financial statements, the qualifications of the public accounting firm engaged
as the Company's independent auditor to prepare or issue an audit report on the
financial statements of the Company, and the performance of the Company's
internal and independent auditors. The Committee’s role includes a particular
focus on the qualitative aspects of financial reporting to shareholders, the
Company’s processes to manage business and financial risk, and compliance with
significant applicable legal, ethical, and regulatory requirements. The
Committee is directly responsible for the appointment, compensation, retention
and oversight of the independent auditor.
During
fiscal 2008, the Audit Committee held 4 physical and telephonic
meetings.
The Audit
Committee’s charter was attached as Appendix A to the Company’s proxy statement
relating to the Company’s 2008 Annual Meeting of Stockholders, which was filed
with the SEC on May 15, 2008 and amended on May 19, 2008.
Compensation
Committee
The
Compensation Committee’s role is to discharge the Board’s responsibilities
relating to compensation of the Company’s executives, to produce an annual
report on executive compensation for inclusion in the Company’s proxy statement,
and to oversee and advise the Board on the adoption of policies that govern the
Company’s compensation programs, including stock and benefit plans.
During
fiscal 2008, the Compensation Committee held 4 physical and telephonic
meetings.
The
Compensation Committee’s charter was attached as Appendix B to the Company’s
proxy statement relating to the Company’s 2008 Annual Meeting of Stockholders,
which was filed with the SEC on May 15, 2008 and amended on May 19,
2008.
Governance and Nomination
Committee
The
Governance and Nomination Committee’s role is to appoint nominees for election
to the Company’s Board of Directors, to identify and recommend candidates to
fill vacancies occurring between annual shareholder meetings, to review,
evaluate and recommend changes to the Company’s corporate governance policies,
and to review the Company's policies and programs that relate to matters of
corporate responsibility, including public issues of significance to the Company
and its stakeholders.
During
fiscal 2008, the Governance and Nomination Committee held 4 physical and
telephonic meetings.
The
Governance and Nomination Committee’s charter was attached as Appendix C to the
Company’s proxy statement relating to the Company’s 2008 Annual Meeting of
Stockholders, which was filed with the SEC on May 15, 2008 and amended on May
19, 2008.
Family
Relationships
There are
no familial relationships among any of our officers and directors.
Involvement
in Certain Legal Proceedings
No
director, person nominated to become a director, executive officer, promoter or
control person of our company has, during the last five years: (i) been
convicted in or is currently subject to a pending a criminal proceeding
(excluding traffic violations and other minor offenses); (ii) been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to any Federal or state securities or banking or commodities
laws including, without limitation, in any way limiting involvement in any
business activity, or finding any violation with respect to such law, nor (iii)
any bankruptcy petition been filed by or against the business of which such
person was an executive officer or a general partner, whether at the time of the
bankruptcy or for the two years prior thereto.
In
addition, the Company is not engaged in, nor is it aware of any pending or
threatened, litigation in which any of its directors, executive officers,
affiliates or owner of more than 5% of the Company’s Common Stock is a party
adverse to the Company or has a material interest adverse to the
Company.
DIRECTOR
COMPENSATION FOR FISCAL 2008
During
fiscal 2008, directors who were not officers of the Company received $2,500 for
each Board meeting attended in person and $750 for each Board Committee meeting
attended in person, or 75% of the applicable rate if attended such Board or
Committee meeting by teleconference. Directors who are also executive officers
of the Company do not receive any additional compensation for their service on
the Board.
The
following table reflects all compensation awarded to, earned by or paid to the
Company’s directors for the fiscal year ended June 30, 2008.
Name
|
|
Fees
Earned or
Paid in
Cash
($)
|
|
|
Stock
Awards
($)(1)
|
|
|
Options
Awards
($)
|
|
|
Non-Equity
Incentive Plan
Compensation
($)
|
|
|
Nonqualified
Deferred
Compensation
Earnings
($)
|
|
|
All
Other
Compen-
sation
($)
|
|
|
Total
($)
|
|
Ian Warwick
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Simon Chadwick
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Dwight B. Mamanteo
|
|
$ |
29,000 |
|
|
|
850 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
$ |
29,850 |
|
Marcus Wohlrab
|
|
$ |
29,000 |
|
|
|
850 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
$ |
29,850 |
|
Frederick Wasserman
|
|
$ |
28,600 |
|
|
|
850 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
$ |
29,450 |
|
(1)
|
The
amount shown in the table reflects the dollar amount recognized for fiscal
2008 financial statement reporting purposes of the outstanding stock
awards held by the directors in accordance with FAS 123R. Stock awards
represent an award on May 13, 2008 to each of Mr. Mamanteo, Wohlrab and
Wasserman of 25,000 shares of Common Stock with a grant date closing price
of $0.10 per share, of which 34% or 8,500 shares, vested immediately on
the date of grant. The remaining 66% of the shares, or 16,500 shares, will
vest in three equal installments of 5,500 shares, on each of the first,
second and third anniversaries of the grant date. The shares were not
issued pursuant to any existing compensation plan. Refer to the Company’s
Consolidated Financial Statements for the Fiscal Years Ended June 30, 2008
and 2007, Note 1 “Stock Based Compensation” and Note 10 “Stockholders
Equity” included in the Company’s Annual Report on Form 10-K for the
fiscal year ended June 30, 2008, with respect to valuation assumptions for
this stock grant. The directors held no other stock or option awards at
June 30, 2008.
|
INFORMATION
ABOUT OUR EXECUTIVE OFFICERS
Our
executive officers are:
Name
|
|
Age
|
|
Position
|
Ian
Warwick
|
|
49
|
|
Chief
Executive Officer and Chairman of the Board of
Directors
|
Charles
F. Trapp
|
|
59
|
|
Chief
Financial Officer
|
Simon
Chadwick
|
|
40
|
|
Chief
Operating Officer and
Director
|
Biographical information about Ian
Warwick and Simon Chadwick appears on page 7 above.
Charles F. Trapp was appointed
Vice President of Finance and Chief Financial Officer on November 30, 2007,
following the resignation of the Company’s former CFO, Michael O’Driscoll. Mr.
Trapp was the co-founder and President of Somerset Kensington Capital Co., a
Bridgewater, New Jersey-based investment firm that provided capital and
expertise to help public companies restructure and reorganize from 1997 until
November 2007. Earlier in his career, he served as CFO and/or a board member for
a number of public companies, including AW Computer Systems, Vertex Electronics
Corp., Worldwide Computer Services and Keystone Cement Co. His responsibilities
have included accounting and financial controls, federal regulatory filings,
investor relations, mergers and acquisitions, loan and labor negotiations, and
litigation management. Mr. Trapp is a Certified Public Accountant and received
his Bachelor of Science degree in Accounting from St. Peter’s College in Jersey
City, New Jersey.
EXECUTIVE
COMPENSATION
Compensation
Discussion and Analysis
Overview
The
Compensation Committee (the “Compensation Committee” or the “Committee”) of the
Board administers our executive compensation program. Each member of the
Committee is a non-employee and an independent director. The Compensation
Committee is responsible for establishing salaries, administering our incentive
programs, and determining the total compensation for our Chief Executive Officer
and other executive officers. The Compensation Committees seeks to achieve the
following goals with our executive compensation programs: to attract, motivate,
and retain key executives and to reward executives for value creation. The
Compensation Committee seeks to foster a performance-oriented environment by
tying a significant portion of each executive’s cash and equity compensation to
the achievement of performance targets that are important to the Company and its
stockholders. Our executive compensation program has three principal elements:
base salary, cash bonuses, and equity incentives under a recently established
2007 Long-Term Stock Incentive Plan (the “LTIP”).
This
Compensation Discussion and Analysis speaks as of the end of the fiscal year
ended June 30, 2008.
Compensation
Principles
We
believe the top growing companies design their compensation program to attract,
motivate, and retain highly talented individuals to drive business success. We
further believe that the ideal programs tend to be principle-based rather than
rules-based with such best practices compensation programs providing for the
opportunity for executives and other key employees to achieve significant
compensation upon the realization of objectives that clearly benefit a company
and its shareholders. The Committee believes that best-practices plan will
reflect the following principles:
(1) Compensation should be
related to performance
A proper
compensation program should reinforce our Company’s business and financial
objectives. Employee compensation will vary based on Company versus individual
performance. When the Company performs well against the objectives that the
Compensation Committee and Board will set, employees will receive greater
incentive compensation. To the extent the business does not achieve or meet
these objectives, incentive awards will be reduced or eliminated. An employee’s
individual compensation will also vary based on his or her performance,
contribution, and overall value to the business. Employees with sustained high
performance should be rewarded more than those in similar positions with lesser
performance.
(2) Our employees should think
like stockholders
The
second critical principle of our compensation programs should be to foster an
environment where our employees should act in the interests of the Company’s
stockholders. We believe that the best way to encourage them to do that is
through an equity interest in their company. Equity interest in a company can be
achieved in several respects: the establishment of equity incentive plans that
provide for the granting of equity-based awards, such as stock options and/or
restricted stock or performance share units to employees. This requires the
establishment of an omnibus long-term stock-based incentive plan, which LTIP was
approved and adopted by our Board and shareholders. While this plan also
provides for traditional stock options, we believe that options should not form
the dominant focus of a proper incentive plan and that performance share units
or performance vesting restricted stock grants represent a preferred form of
equity incentive. The philosophy behind such a structure is that as employees
earn more stock (as opposed to options) they will think more like stockholders.
Put another way, when all employees become owners, they think and behave like
owners.
(3) Incentive compensation
should be a greater part of total compensation for more senior
positions
The
proportion of an individual’s total compensation that varies with individual and
Company performance objectives should increase as the individual’s business
responsibilities increase. Thus, cash bonuses and LTIP-based compensation should
form the overwhelmingly dominant portion of overall compensation for the
Company’s senior employees and the milestones for payouts on those plans for our
senior employees are based entirely on corporate results.
Compensation
Targets
Historically,
we have not set targets for our offices and employees. Presently the
Compensation Committee with the assistance of outside advisors and input of the
officers of the Company is setting competitive targets that properly reflect the
challenges of the business and create an equity-focused culture throughout the
entire Company.
We
believe that in allocating compensation among these elements, the compensation
of a company’s senior-most levels of management - those persons having the
greatest ability to influence a company’s performance - should be predominantly
performance-based, while more junior employees should receive a greater portion
of their compensation based on their base salary.
Base
Salary and Cash Incentive
We will
divide total cash compensation into a base salary portion and a cash incentive
bonus portion. The Compensation Committee establishes the Chief Executive
Officer’s targeted cash compensation first and then sets the cash compensation
for other officers accordingly, based on the function served by that officer,
that officer’s experience, and expected individual performance. Generally, we
believe that the higher the level of responsibility of the executive within our
Company, the greater the portion of that executive’s target total cash
compensation that consists of the cash incentive component. The higher the
executive’s level of responsibility within the Company, the greater the
percentage of the executive’s compensation that should be tied to the Company’s
performance.
Equity
Incentive
Long-term
performance is achieved through an ownership culture that encourages such
performance by our executive officers through the use of stock and stock-based
awards. The Committee believes that the use of stock and stock-based awards
offers the best approach to properly achieving our goals. We believe that
stock-based compensation provide the principal method for executive officers to
acquire equity or equity-linked interests in the Company. We have implemented
the LTIP which we will utilize for such a purpose, which has received
shareholder approval.
Rationale
for Paying each Element
Base
compensation and participation in benefit plans are established to provide
employees with appropriate industry competitive terms. Director retainers are
paid partially to compensate directors for their considerable time investment
and to assist directors in covering their indirect operating expenses as
independent contractors. Annual incentive cash bonuses are paid to reward
employees for performance and stockholder value enhancement in the current year,
based upon targets set by the Board for the CEO and his direct reports, with the
CEO establishing the individual targets for all other employees.
LTIP
awards will be designed to reward the building of long-term stockholder value,
while providing modest, interim rewards in the pursuit of such longer-term
objectives.
Determination
of Amounts to Pay
Base
salaries, benefits and potential cash bonuses are established based upon current
market conditions. Where needed, outside consultants may be retained to assist
in this process. Benefit plan structures may be evaluated periodically to
determine market competitiveness with similar companies.
Stock-based
awards to be granted will be evaluated based upon projected total compensation
levels for participants assuming certain objectives are achieved. Since the
majority of the total potential compensation is based upon performance, our
expectation is that the total projected compensation level be well above
average, because the “at risk” compensation levels generally exceed 2/3 of
anticipated compensation under the assumption that bonus targets are met. The
Committee, taking into consideration management’s recommendations and with
sign-off from all independent Directors, will set each year’s goals and
milestones, their weightings, and the formulas for award calculation. For
accounting purposes, cash elements are expensed as earned. LTIP awards are
expensed as provided for under FAS 123R, and are further described in the
footnotes to the audited financial statements included in the Company's Annual
Report on Form 10-K for the fiscal year ended June 30, 2008.
How
the Elements Interact
While
each element is set with certain needs in mind, the Committee also looks at the
total compensation package for each individual to determine that the total
payout is appropriate to the level of responsibility attributable to each
participant. The total compensation package will also include any bonus amounts
and awards to be based on performance targets, when such targets are ultimately
set by the Committee.
Chief
Executive Officer Compensation
The
Compensation Committee uses the same factors in determining the compensation of
our Chief Executive Officer as it does for other senior officers. Our Chief
Executive Officer’s base salary for the fiscal year ended June 30, 2008 was US
$349,195. Our Chief Executive Officer’s salary is established in British pounds,
which is the currency of his residence. When translated into U.S. dollars, which
is our currency, the amount of his compensation will fluctuate based upon
exchanges rates. Our Chief Executive’s salary is set at a specific level in
British Pounds Sterling. During the past 18 months the weakness in the U.S.
Dollar relative to the British Pound has effectively increased his salary on a
Dollar-denominated basis, even though his base salary in Pounds Sterling has not
changed. Additionally, the deterioration of the exchange rate has weakened the
Compensation Committee’s ability to compare the CEO’s salary to a peer group.
Also, since his salary is set pursuant to his employment agreement that was
entered into with our parent, ADNW, we have used the peer group described below
for comparison purposes only. We are reviewing his compensation and the
compensation of our other senior officers with the expectation of putting
agreements in place with our officers to be effective after the spinoff from
ADNW. His salary will be evaluated based on a comparison with a peer group as
determined by our independent directors. Our independent directors are surveying
companies whose revenue base and organizational size were consistent with ours
as well as several companies within our industry, which we defined as business
and supply chain management software solutions. The peer group is thus being
created from a group of companies that are both similar in size as well as
companies within our industry segment. Finally, we will compare the peer group
to compensation for similar companies that are in the midst of a
turnaround.
Employment
Agreements
As of
June 30, 2008, we had not yet entered into any employment agreements with our
executive officers. See “Employment Agreements with Executive Officers
Subsequent to Fiscal 2008” below for a description of the employment agreements
we entered into with our executive officers during fiscal 2009.
Severance
Benefits
We
anticipate that each Executive Officer’s contract will contain a severance
benefit for that officer if he or she is terminated other than for cause or the
officer leaves the Company after a change in control, provided they leave for
“good reason.” The severance benefit will range from six (6) months’ benefit to
two (2) years’ benefit in the case of our Chief Executive Officer. We plan to
provide this benefit because we want executives to focus on the Company’s
business and enhancing stockholder value without undue concern about any
possible loss of their job.
We do not
offer retirement plans for our officers.
Change
in Control
We
anticipate that each officer’s contract will contain standard provisions that
protect that officer in the event there is a change in control that has not been
approved by our Board of Directors. In addition, our LTIP provides for
acceleration of vesting in the event of a change in control.
The
precise terms and conditions of each executive contract and of each plan will be
contained in each such contract or plan, and will be filed with the
SEC.
Perquisites
We offer
limited perquisites for our executives. We may offer life insurance policies for
our Named Executive Officers, but as of the date of this report, have yet to
establish those policies.
Board
Process
The
Compensation Committee of the Board of Directors approves all compensation and
awards to executive officers, which include the Chief Executive, the Chief
Financial Officer, and Chief Operating Officer, and any other Named Executive
Officers. Generally, on its own initiative the Compensation Committee reviews
the performance and compensation of the Chief Executive, Chief Financial
Officer, and Chief Operating Officer and, following discussions with those
individuals, establishes their compensation levels where it deems appropriate.
For the remaining officers, the Chief Executive Officer makes recommendations to
the Compensation Committee that generally, with such adjustments and
modifications that are deemed necessary or appropriate by the Committee, are
approved. With respect to equity-based compensation awarded to others, the
Compensation Committee grants restricted stock, generally based upon the
recommendation of the Chief Executive Officer.
The
Compensation Committee believes that objectives cannot be established in a
vacuum and thus invites management’s input into the establishment of milestones.
Although Committee meetings are held in executive session, without management’s
presence, the Committee (and from time to time individual members of the
Committee) routinely meets with senior officers of the Company to discuss
objectives, to explain the rationale for certain objectives or milestones, and
to assure that it has management’s input in assessing the consequences of
decisions made in Committee, for instance, the impact that its decisions may
have on our financial statements. The Committee’s interactions with management
seek to achieve a balance between receiving management’s buy-in for objectives
and assuring that management is not actually or effectively establishing the
terms and parameters for its own compensation.
Forward-Looking
Statements
Disclosures
in this Compensation Discussion & Analysis may contain certain
forward-looking. Statements that do not relate strictly to historical or current
facts are forward-looking and usually identified by the use of words such as
“anticipate,” “estimate,” “approximate,” “expect,” “intend,” “plan,” “believe”
and other words of similar meaning in connection with any discussion of future
operating or financial matters.
Without
limiting the generality of the foregoing, forward-looking statements contained
in this report include the matters discussed regarding the expectation of
compensation plans, strategies, objectives, and growth and anticipated financial
and operational performance of the Company and its subsidiaries. A variety of
factors could cause the Company’s actual results to differ materially from the
anticipated results or other expectations expressed in the Company’s
forward-looking statements. The risks and uncertainties that may affect the
operations, performance and results of the Company’s business and
forward-looking statements include, but are not limited to those set forth
herein.
Any
forward-looking statement speaks only as of the date on which such statement is
made and the Company does not intend to correct or update any forward-looking
statements, whether as a result of new information, future events or
otherwise.
Compensation
Committee Report
The Report of the Compensation
Committee (the “Compensation Report”) does not constitute soliciting material
and should not be deemed filed or incorporated by reference into any other
Company filing under the Securities Act of 1933 or the Securities Exchange Act
of 1934, except to the extent the Company specifically incorporates this
Compensation Report by reference therein.
Recommendations of the Compensation
Committee. We have reviewed and discussed the Compensation Discussion
& Analysis (“CD&A”) with the Company’s management. Based on this review
and these discussions, we recommended to the Board of Directors that the
CD&A be included in the Company’s Proxy Statement for its 2009 Annual
Meeting of Stockholders.
This Compensation Report has been
furnished by the Compensation Committee of the Board of
Directors.
Dwight B.
Mamanteo, Chair
Marcus
Wohlrab
W. Austin
Lewis IV
Gerald M.
Czarnecki
Summary
Compensation Table for Fiscal Years 2008 and 2007
The
following table sets forth information for the fiscal year ended June 30, 2008
and 2007 concerning the compensation paid and awarded to all individuals serving
as (a) our Chief Executive Officer, Ian Warwick, (b) the two most highly
compensated Executive Officers (other than our Chief Executive Officer) of ours
and our subsidiaries at the end of our fiscal year ended June 30, 2008 and 2007
whose total compensation exceeded $100,000 for these periods, Simon Chadwick and
Charles F. Trapp, and (c) two additional individuals for whom disclosure would
have been provided pursuant to (b) except that they were not serving as
executive officers at the end of our fiscal year ended June 30, 2008. These
individuals may be collectively referred to herein as our “Named Executive
Officers.”
Name and
Principal Position
|
|
Fiscal
Year
|
|
Salary
($)
|
|
|
Bonus
($)
|
|
|
Stock
Awards
($)
|
|
|
Option
Awards
($)
|
|
|
Non-
Equity
Incentive
Plan
Compensation
($)
|
|
|
Non-
qualified
Deferred
Compensation
Earnings
($)
|
|
|
All
Other
Compensation
($)
|
|
|
Total
($)
|
|
Ian
Warwick (1)
|
|
2008
|
|
|
349,195 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
349,195 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chief
Executive Officer, President and Director
|
|
2007
|
|
|
350,682 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
350,682 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simon
Chadwick (2)
|
|
2008
|
|
|
259,402 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
259,402 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chief Operating Officer and
Director
|
|
2007
|
|
|
260,507 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
260,507 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charles
F. Trapp (3)
|
|
2008
|
|
|
214,583 |
|
|
|
— |
|
|
|
25,500 |
(3) |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
240,083 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vice
President, Finance, and Chief Financial Officer
|
|
2007
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael
O’Driscoll (4)
|
|
2008
|
|
|
93,593 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
46,992 |
(4) |
|
|
140,585 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Former Chief Financial Officer
and Director
|
|
2007
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael
Jamieson (5)
|
|
2008
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Former
Chief Operating Officer
|
|
2007
|
|
|
196,384 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
196,384 |
|
(1)
|
Reflects
salary paid to Mr. Warwick for services rendered to us and our
subsidiaries during fiscal 2008 and 2007 as Aftersoft’s Chief Executive
Officer and President. Salary was paid in British pounds at an annual
salary of 175,000 GBP. The amounts shown was translated to U.S. dollars
based on a June 30, 2008 currency conversion rate of 1 GBP = $1.9954 and
the June 30, 2007 currency conversion rate of 1 GBP = $2.0039. Mr. Warwick
did not receive any additional compensation for his services as a director
on our Board of Directors.
|
(2)
|
Reflects
annual salary paid to Mr. Chadwick for services rendered to us and our
subsidiaries during fiscal 2008 and 2007 as Aftersoft’s Chief Operating
Officer. Salary was paid in British pounds at an annual salary of 130,000
GBP. The amounts shown was translated to U.S. dollars based on a June 30,
2008 currency conversion rate of 1 GBP = $1.9954 and the June 30, 2007
currency conversion rate of 1 GBP = $2.0039. Mr. Chadwick did not receive
any additional compensation for his services as a director on Board of
Directors.
|
(3)
|
Mr.
Trapp was appointed Vice President Finance and Chief Financial Officer
effective as of December 1, 2007. The amount shown in the table reflects
salary in the amount of $134,167 earned for services in these capacities
between December 1, 2007 and June 30, 2008, as well as salary in the
amount of $80,416 earned for services as an accountant prior to his
appointment as an officer. The salary for fiscal 2008 also includes
$20,500 that was deferred and contributed by Mr. Trapp to the Company’s
plan established under section 401(k) of the Internal Revenue Code of
1986, as amended. The amount shown in the “Stock Awards” column reflects
the dollar amount recognized for fiscal 2008 financial statement reporting
purposes of the outstanding stock awards held by Mr. Trapp in accordance
with FAS 123R. Stock award represent an award on May 13, 2008 of 750,000
shares of Common Stock with a grant date closing price of $0.10 per share,
of which 34% or 255,000 shares vested immediately on the date of grant.
The remaining 66% of the shares or 495,000 shares will vest in three equal
installments of 165,000 shares on each of the first, second and third
anniversaries of the grant date. The shares were not issued pursuant to
any existing compensation plan. Refer to the Company’s Consolidated
Financial Statements for the Fiscal Years Ended June 30, 2008 and 2007,
Note 1 “Stock Based Compensation” and Note 10 “Stockholders Equity”
included in the Company’s Annual Report on Form 10-K for the fiscal year
ended June 30, 2008, with respect to valuation assumptions for this stock
grant. Mr. Trapp held no other stock or option awards at June 30,
2008.
|
(4)
|
The
2008 salary reflected in the table was earned by Mr. O’Driscoll for
services rendered as our Chief Financial Officer between July 1, 2007 and
November 30, 2007 in the amount of $93,593. The amount shown under “All
Other Compensation” reflects amounts paid to Mr. O’Driscoll in connection
with the termination of his employment with the Company. The salary and
termination payments were made in British pounds and were translated to
U.S. dollars based on the November 30, 2007 currency conversion rate of 1
GBP = $2.0705.
|
(5)
|
Mr.
Jamieson previously served as our Chief Operating Officer and a Director
on our Board of Directors, but resigned these positions on March 6, 2007.
The amount shown in the table reflects compensation paid to him for his
services during 2007 as Chief Executive Officer of our subsidiary, MAM
Software Ltd. The amount shown reflects annual salary paid to Mr. Jamieson
in British pounds at an annual salary of 98,000 GPB, and was translated to
U.S. dollars based on June 30, 2007 currency conversion rate of 1 GBP =
$2.0039.
|
Other
Compensation
Other
than as described above, there were no post-employment compensation, pension or
nonqualified deferred compensation benefits earned by the executive officers
during the year ended June 30, 2008. We do not have any retirement, pension, or
profit-sharing programs for the benefit of our directors, officers or other
employees. The Board of Directors may recommend adoption of one or more such
programs in the future.
Outstanding
Equity Awards at 2008 Fiscal Year End
The
following table provides information relating to the vested and unvested option
and stock awards held by the named executives as of June 30, 2008. Each award to
each named executive is shown separately, with a footnote describing the award’s
vesting schedule.
|
|
Option Awards
|
|
|
Stock Awards
|
|
Name
|
|
Number of
Securities
Underlying
Unexercised
Options
(# Exercisable)
|
|
|
Number of
Securities
Underlying
Unexercised
Option
(# Unexercisable)
|
|
|
Equity
Incentive
Plan
Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options (#)
|
|
|
Option
Exercise
Price
($)
|
|
|
Option
Expiration
Date
|
|
|
Number of
Shares or
Units of
Stock That
Have Not
Vested
(#)
|
|
|
Market
Value of
Shares or
Units of
Stock That
Have Not
Vested
($)
|
|
|
Equity
Incentive
Plan
Awards:
Number
of
Unearned
Shares,
Units
or
Other
Rights
That
Have Not
Vested
(#)
|
|
|
Equity
Incentive
Plan
Awards:
Market or
Payout
Value of
Unearned
Shares,
Units or
Other
Rights
That
Have Not
Vested
($)
|
|
Ian Warwick
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Simon
Chadwick
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charles
F. Trapp
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
495,000 |
(1) |
|
|
|
|
|
$ |
123,750 |
(2) |
|
|
— |
|
|
|
— |
|
Michael O’Driscoll
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
Stock
awards represent an award on May 13, 2008 to Mr. Trapp of 750,000 shares
of Common Stock with a grant date fair value of $0.10 per share, of which
34%, or 255,000 shares, vested immediately on the date of grant. The
remaining 66% of the shares, the 495,000 shares reflected in the table,
will vest in three equal installments of 165,000 shares, on each of the
first, second and third anniversaries of the grant date. The shares were
not issued pursuant to any existing compensation
plan.
|
(2)
|
Based
on the closing price of $0.25 of the Company’s Common Stock on June 30,
2008.
|
Employment
Agreements with Executive Officers Subsequent to Fiscal 2008
Effective
as of December 1, 2008 (the “Effective Date”), upon the approval of our Board of
Directors, We entered into employment agreements with each of Ian Warwick, our
President and Chief Executive Officer, Charles F. Trapp, our Executive Vice
President and Chief Financial Officer, and Simon Chadwick, our Executive Vice
President and Chief Operating Officer.
Ian Warwick Employment
Agreement
The
Employment Agreement with Mr. Warwick (the “Warwick Agreement”) is for an
initial term of two and one-half years from the Effective Date, and is
automatically renewable for successive one-year periods unless terminated by Mr.
Warwick or us. Mr. Warwick will receive an annual base salary of $300,000,
payable in U.S. dollars. The annual salary is increased to $350,000 upon our
achievement of a market capitalization goal of $50 million for at least 25
consecutive trading days. The terms of the Warwick Agreement also entitles Mr.
Warwick, a United Kingdom resident, to a make-whole payment that will restore
him to the British Pound Sterling equivalent that existed on the Effective Date
in the event that the value of the U.S. Dollar relative to the British Pound
Sterling increases such that his base salary is reduced, as a result of such
currency translation, by 10% or more (the “Make-Whole Payment”).
The
Warwick Agreement also provides for an appointment to our Board of Directors, on
which Mr. Warwick already serves.
Mr.
Warwick is eligible for a performance-based annual cash incentive bonus of up to
150% of his base salary in any fiscal year depending on the extent to which the
applicable performance goal(s) of the Company, which are to be established by
our Compensation Committee or pursuant to a formal bonus plan, are achieved,
subject to any operating covenants in place with respect to outstanding bank
debt. The Compensation Committee established an EBITDA-related target for the
fiscal year ended June 30, 2009, with respect to Mr. Warwick’s potential
incentive bonus for fiscal 2009.
In
addition, Mr. Warwick is entitled to participate in all of our benefit plans and
our equity-based compensation plans, which currently consists of our 2007
Long-Term Incentive Plan (the “LTIP”). Pursuant to the Warwick Agreement, Mr.
Warwick is to be awarded two grants of 3-year performance share unit awards
under the LTIP, each for 500,000 performance share units as a base objective,
with 30% of the award vesting in the first year of the grant provided that the
base target for that year is met, 30% of the award vesting in the second year of
the grant provided that the base target for the second year is met, and 40% of
the award vesting in the third and final year of the grant provided that the
base target for the third year is met (“Performance Share Units”). The
performance measures for these awards, which have been set by the Compensation
Committee, are based on increases in our earnings per share (“EPS”) and return
on invested capital (“ROIC”). Further, with respect to both awards in each grant
year, (i) if the Company’s results amount to less than 80% of the established
target(s), none of the awards will vest; (ii) if the Company’s results are equal
to 80% of the established target(s), 50% of the award will vest; (iii) if the
Company’s results are equal to 100% of the established target(s), 100% of the
award will vest; and (iv) if the Company’s results are equal to or better than
120% of the established target(s), 150% of the award will vest. Results between
these established parameters will be interpolated.
The
Warwick Agreement also entitles Mr. Warwick to be granted options to purchase
300,000 shares of our common stock under the LTIP. These options will vest as to
one-third of the award on each of the first three anniversaries of the grant
date, at a strike price of $0.75, $1.00 and $1.25, respectively. The options
expire ten years from the grant date.
The
Warwick Agreement provides that in the event Mr. Warwick’s employment is
terminated for Good Reason, for any reason other than for Cause, Death or
Disability or for Good Reason during the 30-day period immediately following the
first anniversary of the Effective Date (the “Window Period”), he is entitled
to, among other things, a severance payment equal to his 12 months base salary.
In addition, under such circumstances, all of Mr. Warwick’s stock options, stock
appreciation rights and restricted stock will immediately vest and be payable in
shares of our common stock and all of his performance share units that would
vest in the course of any fiscal year shall vest on a pro rata
basis.
Charles F. Trapp Employment
Agreement
The
Employment Agreement with Mr. Trapp (the “Trapp Agreement”) is for an initial
term of one year from the Effective Date, and is automatically renewable for
successive one-year periods unless terminated by Mr. Trapp or us. Mr. Trapp will
receive an annual base salary of $220,000, payable in U.S. dollars. Mr. Trapp is
eligible for a performance-based annual cash incentive bonus of up to 150% of
his base salary in any fiscal year depending on the extent to which the
applicable performance goal(s) of the Company, which are to be established by
the Compensation Committee or pursuant to a formal bonus plan, are achieved,
subject to any operating covenants in place with respect to outstanding bank
debt. The Compensation Committee established an EBITDA-related target for the
fiscal year ended June 30, 2009, with respect to Mr. Trapp’s potential incentive
bonus for fiscal 2009.
In
addition, Mr. Trapp is entitled to participate in all of our benefit plans and
equity-based compensation plans, which currently consists of the LTIP. Mr. Trapp
will be awarded two grants of 3-year Performance Share Unit awards under the
LTIP, each for 300,000 performance share units as a base objective, with the
same terms, performance targets and metrics as Mr. Warwick’s Performance Share
Unit awards described above. Mr. Trapp also will be granted options to
purchase 100,000 shares of our common stock under the LTIP. These options will
vest as to one-third of the award on each of the first three anniversaries of
the grant date, at a strike price of $0.75, $1.00 and $1.25, respectively. The
options expire ten years from the grant date.
The Trapp
Agreement provides that in the event Mr. Trapp’s employment is terminated for
Good Reason, for any reason other than for Cause, Death or Disability or for
Good Reason during the Window Period, Mr. Trapp is entitled to, among other
things, a severance payment equal to his 12 months base salary, all of Mr.
Trapp’s stock options, stock appreciation rights and restricted stock shall
immediately vest and be payable in shares of our common stock and all of his
performance share units that would vest in the course of any fiscal year shall
vest on a pro rata basis.
Simon Chadwick Employment
Agreement
The
Employment Agreement with Mr. Chadwick (the “Chadwick Agreement”) is for an
initial term of two years from the Effective Date, and is automatically
renewable for successive one-year periods unless terminated by Mr. Chadwick or
us. Mr. Chadwick will receive an annual base salary of $225,000, payable in U.S.
dollars. The terms of the Chadwick Agreement also entitles Mr. Chadwick, a
United Kingdom resident, to a Make-Whole Payment consistent with the one awarded
to Mr. Warwick.
The
Chadwick Agreement also provides for an appointment to our Board of Directors,
on which he already serves.
Mr.
Chadwick is eligible for a performance-based annual cash incentive bonus of up
to 150% of his base salary in any fiscal year depending on the extent to which
the applicable performance goal(s) of the Company, which are to be established
by the Compensation Committee or pursuant to a formal bonus plan, are achieved,
subject to any operating covenants in place with respect to outstanding bank
debt. The Compensation Committee established an EBITDA-related target for the
fiscal year ended June 30, 2009, with respect to Mr. Chadwick’s potential
incentive bonus for fiscal 2009.
In
addition, Mr. Chadwick is entitled to participate in all of our benefit plans
and our equity-based compensation plans, which currently consists of the LTIP.
Mr. Chadwick will be awarded two grants of 3-year Performance Share Unit awards
under the LTIP, each for 400,000 performance share units as a base objective,
with the same terms, performance targets and metrics as Mr. Warwick’s and Mr.
Trapp’s Performance Share Unit awards described above. The Chadwick Agreement
also grants Mr. Chadwick options to purchase 200,000 shares of our common stock
under the LTIP. These options will vest as to one-third of the award on each of
the first three anniversaries of the grant date, at a strike price of $0.75,
$1.00 and $1.25, respectively. The options expire ten years from the grant
date.
In the
event Mr. Chadwick’s employment is terminated for Good Reason, for any reason
other than for Cause, Death or Disability or for Good Reason during the Window
Period, Mr. Chadwick is entitled to, among other things, a severance payment
equal to his 12 months base salary, all of Mr. Chadwick’s stock options, stock
appreciation rights and restricted stock shall immediately vest and be payable
in shares of our common stock and all of his performance share units that would
vest in the course of any fiscal year shall vest on a pro rata
basis.
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE
Transactions
with Auto Data Network, Inc.
Prior to
the spin-off of Aftersoft from ADNW on November 24, 2008, Mr. Warwick served as
Chairman and CEO of both companies. Effective immediately following the spinoff,
Mr. Warwick resigned from all positions with ADNW. None of the Company’s other
officers and directors serve as officers or directors of ADNW.
During
the 2008, 2007 and 2006 fiscal years, the Company had the following transactions
with ADNW:
· From
time to time ADNW advanced funds to the Company. As of June 30, 2008, the
balance of such advances was zero. During the 2008 fiscal year, payments
totaling $2,108,000 were advanced to Aftersoft with repayments of $219,000. In
fiscal 2006, the Company transferred its note receivable with a related party
known as MAM North America, Inc. (“MAM North America”) in the amount of $510,000
to ADNW. ADNW had agreed to accept the assignment for all the issued shares of
MAM North America from the Company and repaid the $510,000 note receivable on
October 1, 2005 by allowing the Company to reduce its balance of loans due to
ADNW. The Company sold its 43% shareholder interests in MAM Software North
America, Inc. in October 2005. As a consequence of the sale ADNW agreed that MAM
Software Limited could offset the $510,000 note receivable from MAM Software
North America, Inc. against the outstanding debt due ADNW. The net book value of
the Company’s investment in MAM Software North America, Inc. prior to the
transfer to ADNW was zero. The transactions allowed the Company to improve its
balance sheet by reducing loans due to the ADNW. Furthermore MAM North America
has indemnified MAM UK against all past or current liabilities. In December
2005, the Company sold property and equipment to a third party for $308,000, who
paid the $308,000 directly to ADNW. On June 10, 2006, the Company sold 100% of
the outstanding Common Stock of Euro Soft (which by then had its own operations)
to a different third party for $1,400,000. The proceeds from the sale of Euro
Soft were paid by this third party purchaser directly to ADNW. No prior or
subsequent relationship existed between ADNW or Aftersoft with either of these
purchasers.
· The
Company issued the following shares of Common Stock to ADNW as full
consideration of three acquisitions:
1. On
December 21, 2005, the Company issued 32,500,000 shares of its Common Stock to
ADNW for the acquisition of MAM Software Limited and CarParts Technologies Inc.
Prior to this transaction, ADNW owned 100% of MAM Software Limited and CarParts
Technologies, Inc. The approximate dollar value of the 32,500,000 shares that
were issued at the time was $54,925,000, which is based on the closing price of
our stock of $1.69 per share on that date. The transaction was undertaken as
part of the spin-off of businesses that were formerly owned by ADNW into what
ultimately became Aftersoft Group, Inc.
2. On
August 25, 2006, the Company issued 28,000,000 shares of its Common Stock to
ADNW for the acquisition of EXP Dealer Software Limited (“EXP”). EXP is a former
subsidiary of the Company, which was sold on November 12, 2007. Prior to this
transaction, ADNW owned 100% of EXP. The transaction was undertaken with ADNW
because the Company believed at the time that EXP would prove to be a strategic
component of the Company’s business in the United States. The approximate dollar
value of the 28,000,000 shares that were issued at the time was $30,800,000,
which is based on the closing price of the Company’s stock of $1.10 per share on
that date.
3. On
February 1, 2007, the Company issued 16,750,000 shares of its Common Stock to
ADNW for the acquisition of Dealer Software and Services Limited (“DSS”). DSS is
a former subsidiary of the Company, which was sold on November 12, 2007. Prior
to this transaction, ADNW owned 100% of DSS. The transaction was undertaken with
ADNW because the Company believed at the time that DSS would prove to be a
strategic component of the Company’s business in the United States. The
approximate dollar value of the 16,750,000 shares that were issued at the time
was $15,075,000, which is based on the closing price of the Company’s stock of
$0.90 per share on that date.
Transactions
with Auto Data Network, Inc.
Balance
due to ADNW as of June 30, 2005
|
|
$ |
(884,418 |
) |
Transfer
of advances made to MAM Software USA to ADNW
|
|
|
510,000 |
|
Advances
received from ADNW
|
|
|
(633,875 |
) |
Payments
made on behalf of ADNW
|
|
|
236,183 |
|
Payment
made from Note Receivable by a third party direct to ADNW
|
|
|
450,000 |
|
Proceeds
from sale of Aftersoft Fixed Assets paid by a third party direct to
ADNW
|
|
|
308,000 |
|
Balance
due to ADNW as of June 30, 2006
|
|
|
(14,110 |
) |
Payments
made by ADNW to third parties for earn-outs on behalf of
Aftersoft
|
|
|
(2,200,000 |
) |
Payments
made from note receivable by third party direct to ADNW
|
|
|
950,000 |
|
Payments
made on behalf of ADNW
|
|
|
1,528,110 |
|
Balance
due from ADNW as of June 30, 2007
|
|
|
264,000 |
|
Payments
made on behalf of ADNW
|
|
|
2,108,000 |
|
Write
down of advance to net realizable value
|
|
|
(800,000 |
|
16,000,000
shares of ADNW common stock issued in April 2008 by ADNW to the Company as
payment for advances
|
|
|
(1,572,000 |
|
Balance
at June 30, 2008
|
|
$ |
0 |
|
From time
to time various payments were made by ADNW and Aftersoft companies on behalf of
other companies within the ADNW group of companies. The advances do not attract
interest and there is no set dates for repayment.
On June
29, 2007, the Company granted to a holder of 2,124,098 shares of ADNW preferred
stock, which is convertible into 7,231,622 shares of common stock of ADNW,
certain exchange rights. The preferred shareholder agreed to waive anti-dilution
rights it held in ADNW for the right to exchange the preferred shares for
6,402,999 units of the Company, which units were issued as part of the private
placement that closed in July 2007, and contained the same terms as the
securities issued in that offering (see Note 10 to the consolidated financial
statements included elsewhere in this report) - one share of the Company’s
Common Stock, and a five-year warrant to purchase one share of Company’s Common
Stock exercisable at $1.00. On April 24, 2008, the Company completed the
exchange transaction and issued the shares and warrants.
In April
2008, the Company received an aggregate of 27,631,622 shares, or 26.6% of ADNW’s
common stock, for assuming certain liabilities of ADNW, including with respect
to a lawsuit involving Arthur Blumenthal. This matter is described under “Legal
Proceedings” and a share exchange with a former ADNW shareholder, described
below. On July 3, 2008, the Company sold 5,231,622 of such shares to
unaffiliated third parties for $0.17 per share, and aggregate gross proceeds of
approximately $889,000. An additional 2,000,000 shares were used at the request
of the Company to pay certain service providers in respect of services
previously rendered to ADNW, and to settle certain outstanding minor obligations
of ADNW.
On
November 24, 2008 (the “Dividend Distribution Date”), ADNW distributed a
dividend of the 71,250,000 shares of the Company’s common stock that ADNW owned
at such time in order to complete the previously announced spin-off of
Aftersoft’s businesses. The dividend shares were distributed in the form of a
pro rata dividend to the holders of record as of November 17, 2008 (the “Record
Date”) of ADNW’s common and convertible preferred stock. Each holder of record
of shares of ADNW common and preferred stock as of the close of business on the
Record Date was entitled to receive 0.6864782 shares of Aftersoft's common stock
for each share of common stock of ADNW held at such time, and/or for each share
of ADNW common stock that such holder would own, assuming the convertible
preferred stock owned on the Record Date was converted in full.
Due to
the nature of the dividend distribution, the ex-dividend date was set by NASDAQ
as Tuesday, November 25, 2008, one day following the Dividend Distribution Date.
No consideration was paid by any ADNW shareholder to receive the distribution of
the dividend shares. Only whole shares were delivered to ADNW shareholders, so
any resulting fractional shares in calculating the dividend were rounded up to
the nearest whole number.
As a
result of Aftersoft’s ownership of certain ADNW securities, Aftersoft received
approximately 13,965,295 shares of its own common stock in connection with the
dividend distribution. On December 31, 2008, Aftersoft retired 13,730,413 of the
shares. The remaining 234,882 shares were used by Aftersoft for rounding of
fractional shares issued in respect of the spin-off dividend, to make
adjustments for the benefit of the holders of ADNW’s Series B Convertible
Preferred Stock which received fewer shares in connection with the spin-off than
the number to which they were entitled as a result of a calculation error
relating to the Series B conversion rate, and for other minor
adjustments.
Prior to
the spin-off, ADNW owned approximately 77% of Aftersoft’s issued and outstanding
common stock. Subsequent to and as a result of the spin-off, Aftersoft is no
longer a subsidiary of ADNW.
Transactions
with ComVest Capital LLC and its affiliate, Commonwealth Associates
LP
ComVest
Capital LLC
ComVest
Capital LLC (“ComVest’) is the Company’s senior secured lender. During fiscal
2008, ComVest extended to the Company a $1,000,000 secured revolving credit
facility and a $5,000,000 term loan pursuant to the terms of a Revolving Credit
and Term Loan Agreement (the “Loan Agreement”), a Revolving Credit Note and a
Convertible Term Note, each dated December 21, 2007. The material terms of these
loans are described further below. In connection with this transaction, the
Company issued to ComVest warrants to purchase an aggregate of 5,083,333 shares
of the Company’s common stock. The material terms of these warrants are
described further below.
At the
time the loans were made, ComVest was not a party related to the Company. Each
of these loans were made in the ordinary course of business, were made on the
substantially the same terms, including interest rates and collateral, as those
prevailing at the time for comparable loans with persons not related to the
lender and did not involve more than the normal risk of collectibility or
present other unfavorable features. As a result of the issuance of the
Convertible Term Note and the warrants, ComVest became a shareholder of the
Company, and currently may be deemed to have beneficial ownership of
approximately 10.66% of the Company’s common stock (including certain warrants
held by Commonwealth Associates LP, see below).
Credit Facility and
Revolving Credit Note . Pursuant to the terms of the Loan Agreement, the
Credit Facility is available to the Company through November 30, 2009, unless
the maturity date is extended, or the Company prepays the Term Loan (described
below) in full, in each case in accordance with the terms of the Loan Agreement.
The Credit Facility provides for borrowing capacity of an amount up to (at any
time outstanding) the lesser of the Borrowing Base at the time of each advance
under the Credit Facility, or $1,000,000. The borrowing base at any time will be
an amount determined in accordance with a borrowing base report that the Company
is required to provide to the lender, based upon the Company’s Eligible Accounts
and Eligible Inventory, as such terms are defined in the Loan Agreement. The
Loan Agreement provides for advances to be limited to (i) 80% of Eligible
Accounts plus, in ComVest’s sole discretion, (ii) 40% of Eligible Inventory,
minus (iii) such reserves as ComVest may establish from time to time in its
discretion. As of December 31, 2008, the borrowing base was
$1,228,000.
In
connection with the Credit Facility, the Company issued a Revolving Credit Note
(the “Credit Note”) on December 21, 2007 payable to ComVest in the principal
amount of $1,000,000, initially bearing interest at a rate per annum equal to
the greater of (a) the prime rate, as announced by Citibank, N.A. from time to
time, plus two percent (2%), or (b) nine and one-half percent (9.5%). The
applicable interest rate will be increased by four hundred (400) basis points
during the continuance of any event of default under the Loan Agreement.
Interest is computed on the daily unpaid principal balance and is payable
monthly in arrears on the first day of each calendar month commencing
January 1, 2008. Interest is also payable upon maturity or
acceleration of the Credit Note. On February 10, 2009, the interest rate was
increased from 9.5% to 11% in connection with a waiver the Company received for
violating one of the debt covenants at December 31, 2008 (discussed
below).
During
the Company’s fourth fiscal quarter of 2008, the Company drew down $500,000 of
the Credit Facility, and drew down the remaining $500,000 during the first and
second fiscal quarter of 2009. As a result, as of June 30, 2008, the outstanding
principal due on the credit facility was $500,000, and as of March 31, 2009, the
entire credit facility had been extended, and has an outstanding principal
amount due of $1,000,000. As of March 31, 2009, the Company has not yet repaid
any principal. As described above, this loan currently bears interest at a rate
of 11%. During fiscal 2008, the Company paid $2,045 in interest payments, and
during the first two quarters of fiscal 2009, the Company paid $35,559 in
interest payments.
Term Loan and Convertible
Term Note. In addition to the Credit Facility, ComVest extended a
Term Loan, evidenced by a Convertible Term Note (the “Term Note”) issued on
December 21, 2007, in the principal amount of $5,000,000. The Term Loan was a
one-time loan, and unlike the Credit Facility, the principal amount is not
available for re-borrowing. The Term Note bears interest at a rate of eleven
percent (11%) per annum, except that during the continuance of any event of
default, the interest rate will be increased to sixteen percent
(16%).
Initially,
the Term Note was payable in 23 equal monthly installments of $208,333.33 each,
payable on first day of each calendar month commencing January 1, 2009, through
November 1, 2010, with the balance due on November 30, 2010. The amortization
schedule was subsequently modified, and was delayed for one year so that
payments will commence on January 1, 2010, pursuant to an amendment of the Loan
Agreement during the quarter ended June 30, 2008 (see below).
The
number of shares issuable upon conversion of the Term Note and the conversion
price may be proportionately adjusted in the event of any stock dividend,
distribution, stock split, stock combination, stock consolidation,
recapitalization or reclassification or similar transaction. In addition,
the number of conversion shares, and/or the conversion price may be adjusted in
the event of certain sales or issuances of shares of the Company’s common stock,
or securities entitling any person to acquire shares of common stock, at any
time while the Term Note is outstanding, at an effective price per share which
is less than the then-effective conversion price of the Term Note. The principal
and interest payable on the Term Note was initially convertible into shares of
the Company’s common stock at the option of ComVest, at an initial conversion
price of $1.50 per share. On July 3, 2008, the conversion price was reduced to
approximately $1.49 per share following the Company’s subsequent issuance of
shares of common stock and warrants at an effectively lower price. Consequently,
the number of shares issuable upon conversion of the principal amount of the
Term Note was increased to 3,361,345 shares from 3,333,333 shares. The Company
also may require conversion of the principal and interest under certain
circumstances.
Since
December 21, 2007, the principal amount due on the Term Note has been
$5,000,000. As of March 31, 2009, the Company has not yet repaid any principal.
As described above, this loan currently bears interest at a rate of 11%. During
fiscal 2008, the Company paid $290,278 in interest payments, and during the
first two quarters of fiscal 2009, the Company paid $281,112 in interest
payments.
Warrants. In
connection with the Loan Agreement, the Company issued warrants to ComVest to
purchase the following amounts of shares of the Company’s common stock,
exercisable after December 21, 2007 and expiring December 31, 2013: a) warrants
to purchase 1,000,000 shares of common stock at an initial exercise price of
$0.3125 per share; b) warrants to purchase 2,000,000 shares of common stock at
an initial exercise price of $0.39 per share; and c) warrants to purchase
2,083,333 shares of the Company’s common stock at an initial exercise price of
$0.3625 per share. The warrants also contain a cashless exercise feature. The
number of shares of common stock issuable upon exercise of the warrants, and/or
the applicable exercise prices, may be proportionately adjusted in the event of
any stock dividend, distribution, stock split, stock combination, stock
consolidation, recapitalization or reclassification or similar transaction. In
addition, the number of shares issuable upon exercise of the warrants, and/or
the applicable exercise prices may be adjusted, at any time while the warrants
are outstanding, in the event of certain issuances of shares of the Company’s
common stock, or securities entitling any person to acquire shares of the
Company’s common stock, at an effective price per share which is less than the
then-effective exercise prices of the warrants.
The
exercise prices for 3,000,000 of these warrants were subsequently modified in
connection with waivers the Company received for violations of one of the debt
covenants, as discussed further below.
Debt Covenants . The
Loan Agreement contains customary affirmative and negative covenants,
including:
(a) Maximum
limits for capital expenditures of $600,000 per fiscal year;
(b) Limitation
on future borrowings, other than in certain circumstances, including to finance
capital expenditures;
(c) Limitation
on guaranteeing any obligation, except for obligations in the ordinary course of
business and obligations of the Company’s wholly owned subsidiaries incurred in
the ordinary course of business;
(d) Limitation
on entering Sale-Leaseback Transactions with respect to the sale or transfer of
property used or useful in the Company’s business operations;
(e) Limitation
on acquiring securities or making loans;
(f)
Limitation on
acquiring real property;
(g) Limitation
on selling assets of the Company or permitting any reduction in the Company’s
ultimate ownership position of any subsidiary;
(h) Limitation
on paying dividends;
(i)
Limitation on selling any accounts receivable; and
(j)
Requiring that, at the end of any quarter of any fiscal year, the ratio of (a)
Earnings Before Interest, Depreciation, and Amortization (“EBIDA”) minus capital
expenditures incurred to maintain or replace capital assets, to (b) debt service
(all interest and principal payments), for the four (4) consecutive quarters
then ended, to be not less than 1.25 to 1.00 (the “EBIDA Ratio
Covenant”).
The Loan
Agreement is collateralized by a pledge of all of the Company’s assets and the
stock of the Company’s subsidiaries.
Amendments to Loan Agreement
and Waivers for Violations of Certain Covenants. Subsequent to March 31,
2008, the Company notified ComVest that the Company had incurred a loss of
$1,897,000 for the three-month period ending March 31, 2008, and as a result,
the Company had a ratio of EBIDA to debt service of (4.41):1.00, therefore
violating the EBIDA Ratio Covenant described above. ComVest agreed to grant the
Company a waiver for the violation of this loan covenant. On May 15,
2008, the Company and ComVest entered into a Waiver and Amendment pursuant
to which ComVest granted the waiver, and, in consideration therefor, the Company
reduced the exercise price for 1,000,000 warrants issued to ComVest in
connection with the Loan Agreement from $0.3125 per share to $0.11 per share,
and recognized the incremental fair value of the modified warrants of $24,000 as
additional interest expense. As a result of ComVest granting this waiver,
the Company was not in violation of any loan covenants at March 31,
2008.
Subsequent
to June 30, 2008, the Company advised ComVest that the Company had incurred
a loss of $11,664,000 for the six-month period ending June 30, 2008, and that as
a result had again violated the EBIDA Ratio Covenant with an EBIDA to debt
service ratio of (2.26):1.00. ComVest agreed to provide the Company with another
waiver. In connection therewith, the Company and ComVest entered into a letter
agreement amending the Loan Agreement (the “September 23, 2008 Waiver and
Amendment”) and modifying the EBIDA Ratio Covenant. Pursuant to the
September 23, 2008 Waiver and Amendment, the EBIDA Ratio Covenant was waived for
the quarter ending September 30, 2008 and was reduced to 0.62:100 from 1.25:1.00
for the quarter ended December 31, 2008. Additionally, the EBIDA Ratio
Covenant was reset for future quarters to 0.71:1.00 for the four quarters ended
March 31, 2009; 0.50:1.00 for the four quarters ended June 30, 2009; and
1.25:1.00 for the four quarters ended September 30, 2009 and thereafter.
Additionally, ComVest agreed to delay the commencement of the loan amortization
related to the Term Note for one year, from January 1, 2009 to January 1, 2010.
In consideration for these modifications, the Company reduced the exercise price
related to 2,000,000 warrants issued to ComVest in connection with the Loan
Agreement from $0.39 to $0.11. The incremental fair value of the modified
warrants is $15,000, which was recorded as an additional debt discount and is
being amortized over the remaining life of the term loan pursuant to EITF 96-19,
“Debtor's Accounting for a Modification or Exchange of Debt Instruments.” As a
result of these amendments, the Company was not in violation of any loan
covenants at June 30, 2008.
Subsequent
to the end of the quarter ended December 31, 2008, the Company advised ComVest
of the loss, and that as a result, the Company’s ratio of EBIDA to debt service
was (1.41):1.00 in violation of the amended EBIDA Ratio Covenant. ComVest agreed
to extend an additional waiver of this covenant, which was granted on February
10, 2009, under a Waiver and Amendment #2 letter agreement (the “February 10,
2009 Waiver and Amendment”). In consideration for the waiver, the Company agreed
to increase the interest rate on the $1,000,000 Credit Facility from 9.5% to
11%. As a result of ComVest granting this waiver, the Company was not in
violation of any loan covenants at December 31, 2008. If the Company restores
compliance with the EBIDA Ratio Covenant as of the close of any quarter ending
on or after March 31, 2009, then the annual interest rate will be restored to
9.5%, effective as of the first day of the calendar month next succeeding the
Company’s demonstrated quarter-end compliance with such covenant.
Effective
April 22, 2009, the Company entered into a letter
agreement dated April 14, 2009 (the “April 22, 2009 Amendment”) with ComVest,
further amending the EBIDA Ratio Covenant to require that the applicable minimum
EBIDA Ratio be met as of the end of the quarter for such fiscal quarter. Prior
to the April 22, 2009 Amendment, the EBIDA Ratio Covenant required that the
applicable minimum EBIDA Ratio be met as of the end of each quarter of any
fiscal year for the four (4) consecutive quarters then ended. The minimum EBIDA
Ratios themselves were not modified by the April 22, 2009 Amendment, and remain
at 0.71:1.00 for the quarter ended March 31, 2009; 0.50:1.00 for the quarter
ended June 30, 2009; and 1.25:1.00 for the quarter ended on or after September
30, 2009.
Commonwealth
Associates LP
The
Company has engaged Commonwealth Associates LP (“Commonwealth”) as its
consultant and exclusive merger and acquisitions advisor pursuant to a
Consulting Agreement dated June 3, 2008 (the “Consulting Agreement”).
Commonwealth and ComVest are entities that are under common control. The
Consulting Agreement is for an initial term of 24 months, and provides that
Commonwealth will (i) be issued warrants to purchase up to 3,000,000 shares of
the Company’s common stock, which will be exercisable for 5 years at a price of
$0.30 per share, or the effective price for the Company’s shares resulting from
the sale of approximately 28,631,622 shares of ADNW’s common stock with respect
to which Commonwealth may act as placement agent, whichever is lower, and will
contain anti-dilution protection and a cashless exercise feature with respect to
one-half of the warrants; (ii) receive $15,000 per month for 18 months for its
advisory services beginning June 3, 2008 and (iii) receive a fee in connection
with an M&A transaction equal to 5% of the aggregate consideration paid or
received by the Company.
On July
3, 2008, the Company issued to Commonwealth warrants to purchase an aggregate of
1,000,000 shares of the Company’s common stock as compensation for work
performed in connection with the Company’s sale on July 3, 2008 of the 5,231,622
shares of ADNW common stock that it owned, which is further described in
footnote 12 on page F-32 of the Company’s Annual Report on Form 10-K for the
fiscal year ended June 30, 2008. The warrants are currently exercisable at an
exercise price of $0.30 per share and expire on July 3, 2013. Additionally,
during the six months ended December 31, 2008, the Company paid $45,000 to
Commonwealth, and recorded a liability for unpaid fees of
$45,000.
Director
Independence
Information
about the independence of our directors is set forth above under “Corporate
Governance – Director Independence” at page 10.
COMPLIANCE
WITH SECTION 16(a) OF THE EXCHANGE ACT
Under the
securities laws of the United States, our directors, executive (and certain
other) officers, and any persons holding ten percent or more of our Common Stock
must report on their ownership of the Common Stock and any changes in that
ownership to the Securities and Exchange Commission. Specific due dates for
these reports have been established. During the fiscal year ended June 30, 2008,
we believe that all reports required to be filed by such persons pursuant to
Section 16(a) were filed on a timely basis.
RATIFICATION
OF APPOINTMENT OF INDEPENDENT AUDITORS
(Proposal
No. 2)
KMJ CORBIN & COMPANY LLP
(“KMJ Corbin”) has served as our
independent auditors since June 30, 2006 and has been appointed by the Audit
Committee of the Board of Directors to continue as our independent auditors for
the fiscal year ending June 30, 2009.
At the
Annual Meeting, the shareholders will vote on a proposal to ratify this
selection of the auditors. If this ratification is not approved by the
affirmative vote of a majority of the shares present at the Annual Meeting, in
person or by proxy, and voting on the matter, the Board will reconsider its
selection of auditors.
KMJ
Corbin has no interest, financial or otherwise, in our Company. We do not
currently expect a representative of KMJ Corbin to physically attend the
Annual Meeting, however, it is anticipated that a KMJ Corbin representative will
be available to participate in the Annual Meeting via telephone in the event he
or she wishes to make a statement, or in order to respond to appropriate
questions.
On
February 14, 2006, our previous independent accountants, Donahue
Associates, LLC (“Donahue”) resigned as our accountant. Donahue prepared a
report dated March 25, 2005 on our financial statements for the fiscal year
ended December 31, 2004 and 2003. The report did not contain an adverse opinion
or disclaimer of opinion and was not modified as to audit scope or accounting
principles. The report did contain an uncertainly about our ability to continue
as a going concern without obtaining additional funding. There were no
disagreements with Donahue on any matter of accounting principles, financial
statement disclosure, or auditing scope or procedure, which, if not resolved to
Donahue’s satisfaction, would have caused it to make reference to the subject
matter of the disagreement in connection with its report. As a result, the
Board of Directors approved the appointment of KMJ Corbin as our independent
registered public accounting firm.
The
following table presents aggregate fees for professional services rendered by
KMJ Corbin for the audit of our annual consolidated financial statements for the
fiscal year ended June 30, 2008 and 2007.
|
|
For the Year Ended June 30,
|
|
|
|
2008
|
|
|
2007
|
|
Audit
fees(1)
|
|
$ |
153,000 |
|
|
$ |
186,000 |
|
Audit-
related fees(2)
|
|
|
79,000 |
|
|
|
32,000 |
|
Tax
fees(3)
|
|
|
– |
|
|
|
– |
|
All
other fees
|
|
|
– |
|
|
|
– |
|
Total
fees
|
|
$ |
232,000 |
|
|
$ |
218,000 |
|
|
(1)
|
Audit
fees are comprised of annual audit fees and quarterly review
fees.
|
|
(2)
|
Audit-related
fees for fiscal years 2008 and 2007 are comprised of consent fees and work
on registration statements, consultation fees on accounting issues, and
fees related to the restatements of the fiscal 2007 quarterly reports that
were filed in fiscal 2008.
|
|
(3)
|
There
are no tax fees which usually comprise of tax compliance and consultation
fees.
|
Policy
on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of
Independent Auditors
The
Audit Committee pre-approves all audit and non-audit services provided by the
independent auditors prior to the engagement of the independent auditors with
respect to such services. The Chairman of the Audit Committee has been delegated
the authority by the Committee to pre-approve interim services by the
independent auditors other than the annual audit. The Chairman must report all
such pre-approvals to the entire Audit Committee at the next Committee
meeting
At
the Annual Meeting a vote will be taken on a proposal to ratify the selection of
KMJ Corbin as our
independent
auditors for the fiscal year ending June 30, 2009.
THE BOARD
OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR THE RATIFICATION OF
THE
SELECTION OF KMJ CORBIN AS THE COMPANY’S
INDEPENDENT AUDITORS FOR THE
FISCAL
YEAR ENDING JUNE 30, 2009.
AUDIT
COMMITTEE REPORT
The following Report of the Audit
Committee (the “Audit Report”) does not constitute soliciting material and
should not be deemed filed or incorporated by reference into any other Company
filing under the Securities Act of 1933 or the Securities Exchange Act of 1934,
except to the extent the Company specifically incorporates this Audit Report by
reference therein.
Role of the Audit
Committee
The Audit
Committee’s primary responsibilities fall into three broad
categories:
First,
the Committee is charged with monitoring the preparation of quarterly and annual
financial reports by the Company’s management, including discussions with
management and the Company’s outside auditors about draft annual financial
statements and key accounting and reporting matters;
Second,
the Committee is responsible for matters concerning the relationship between the
Company and its outside auditors, including recommending their appointment or
removal; reviewing the scope of their audit services and related fees, as well
as any other services being provided to the Company; and determining whether the
outside auditors are independent (based in part on the annual letter provided to
the Company pursuant to Independence Standards Board Standard No. 1);
and
Third,
the Committee reviews financial reporting, policies, procedures, and internal
controls of the Company.
The
Committee has implemented procedures to ensure that during the course of each
fiscal year it devotes the attention that it deems necessary or appropriate to
each of the matters assigned to it under the Committee’s charter. In overseeing
the preparation of the Company’s financial statements, the Committee met with
management and the Company’s outside auditors, including meetings with the
Company’s outside auditors without management present, to review and discuss all
financial statements prior to their issuance and to discuss significant
accounting issues. Management advised the Committee that all financial
statements were prepared in accordance with generally accepted accounting
principles, and the Committee discussed the statements with both management and
the outside auditors. The Committee’s review included discussion with the
outside auditors of matters required to be discussed pursuant to Statement on
Auditing Standards No. 61 (Communication with Audit
Committees).
With
respect to the Company’s outside auditors, the Committee, among other things,
discussed with KMJ Corbin & Company LLP matters relating to its
independence, including the disclosures made to the Committee as required by the
Independence Standards Board Standard No. 1 (Independence Discussions with
Audit Committees).
Recommendations of the Audit
Committee. In reliance on the reviews and discussions referred to above,
the Committee recommended to the Board that the Board approve the inclusion of
the Company’s audited financial statements in the Company’s Annual Report on
Form 10-K for the fiscal year ended June 30, 2008, for filing with the
SEC.
This
report has been furnished by the Audit Committee of the Board of
Directors.
Frederick
Wasserman, Chair
Dwight B.
Mamanteo
W. Austin
Lewis IV
Gerald M.
Czarnecki
STOCKHOLDER
PROPOSALS FOR 2010 ANNUAL MEETING
It is
contemplated that the next Annual Meeting of Stockholders will be held on or
about January 2010. Stockholders may submit proposals on matters appropriate for
stockholder action at annual meetings in accordance with the rules and
regulations adopted by the Securities and Exchange Commission. Any
proposal which an eligible stockholder desires to have included in our proxy
statement and presented at the 2010 Annual Meeting of Stockholders will be
included in our proxy statement and related proxy card if it is received by us a
reasonable time before we begin to print and send our proxy materials and if it
complies with Securities and Exchange Commission rules regarding inclusion
of proposals in proxy statements. In order to avoid controversy as to the date
on which we receive a proposal, it is suggested that any stockholder who wishes
to submit a proposal submit such proposal by Certified Mail, Return Receipt
Requested.
Other
deadlines apply to the submission of stockholder proposals for the 2010 Annual
Meeting that are not required to be included in our proxy statement under
Securities and Exchange Commission rules. With respect to these stockholder
proposals for the 2010 Annual Meeting, a stockholder’s notice must be received
by us a reasonable time before we begin to print and send our proxy materials.
The form of proxy distributed by the Board of Directors for such meeting will
confer discretionary authority to vote on any such proposal not received by such
date. If any such proposal is received by such date, the proxy statement for the
meeting will provide advice on the nature of the matter and how we intend to
exercise our discretion to vote on each such matter if it is presented at that
meeting.
EXPENSES
AND SOLICITATION
We will
bear the costs of printing and mailing proxies. In addition to soliciting
stockholders by mail or through our regular employees, we may request banks,
brokers and other custodians, nominees and fiduciaries to solicit their
customers who have shares of our Common Stock registered in the name of a
nominee and, if so, will reimburse such banks, brokers and other custodians,
nominees and fiduciaries for their reasonable out-of-pocket costs. Solicitation
by our officers and employees may also be made of some stockholders following
the original solicitation.
OTHER
BUSINESS
The Board
of Directors knows of no other items that are likely to be brought before the
meeting except those that are set forth in the foregoing Notice of Annual
Meeting of Stockholders. If any other matters properly come before the meeting,
the persons designated on the enclosed proxy will vote in accordance with their
judgment on such matters.
ADDITIONAL
INFORMATION
We are
subject to the information and reporting requirements of the Securities Exchange
Act of 1934, as amended, and in accordance therewith, we file periodic reports,
documents and other information with the SEC relating to our business, financial
statements and other matters. Such reports and other information may be
inspected and are available for copying at the offices of the SEC, 100 F Street,
N.E., Washington, D.C. 20549 or may be accessed at www.sec.gov. Information
regarding the operation of the public reference rooms may be obtained by calling
the SEC at 1-800-SEC-0330. You are encouraged to review the Annual Report on
Form 10-K mailed along with these proxy materials, together with any subsequent
information we filed or will file with the SEC and other publicly available
information. A copy of any public filing is also available, at no charge,
by contacting our legal counsel, Gersten, Savage LLP, Attn: David E. Danovitch,
Esq. at 212-752-9700.
*************
It is
important that the proxies be returned promptly and that your shares be
represented. Stockholders are urged to mark, date, execute, and promptly return
the accompanying proxy card.
June
12, 2009
|
AFTERSOFT
GROUP, INC.
|
|
|
|
|
|
Ian
Warwick
|
|
Chairman
and Chief Executive
Officer
|
ANNUAL MEETING OF
STOCKHOLDERS OF
AFTERSOFT GROUP,
INC.
Please
mark, date, sign and mail
your
proxy card in the
envelope
provided as soon
as
possible
Please
detach and mail in the envelope provided
MARK,
DATE, SIGN AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE
IN BLUE OR BLACK INK AS SHOWN HERE x
THE BOARD OF
DIRECTORS RECOMMENDS A VOTE “FOR” ALL
PROPOSALS.
1. Election
of Directors
¨ FOR
ALL NOMINEES
¨ Ian
Warwick
¨ Simon
Chadwick
¨ Dwight
B. Mamanteo
¨ Marcus
Wohlrab
¨ Frederick
Wasserman
o Gerald
M. Czarnecki
o
W. Austin Lewis IV
¨ WITHHOLD
AUTHORITY
FOR
ALL NOMINEES
¨ FOR
ALL EXCEPT
(See Instruction below)
INSTRUCTION:
To withhold authority to vote for any individual nominee(s),mark “FOR ALL
EXCEPT” and write the name of the nominee you wish to withhold authority
in the box below.
To
change the address on your account, please check
o
the
box at right and indicate your
new address in the
space
above.
Please note that changes to the registered
name(s)
on the account may be submitted via this method.
|
|
2. To
consider and act upon a proposal to ratify the Board’s selection of
KMJ CORBIN
& COMPANY LLP as
the Company’s independent auditors for the fiscal year ending June 30,
2009.
¨ FOR
THE PROPOSAL
¨ AGAINST
THE PROPOSAL
THIS
PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED AS DIRECTED. IF NO DIRECTION
IS MADE, THE PROXY SHALL BE VOTED FOR THE ELECTION OF THE LISTED NOMINEES
AS DIRECTORS, FOR THE RATIFICATION KMJ CORBIN & COMPANY LLP AS THE COMPANY’S
INDEPENDENT AUDITORS FOR THE FISCAL YEAR ENDING JUNE 30, 2009, AND, IN THE
CASE OF OTHER MATTERS THAT LEGALLY COME BEFORE THE MEETING, AS SAID
ATTORNEY(S) MAY DEEM ADVISABLE.
PLEASE
CHECK HERE IF YOU PLAN TO ATTEND THE ANNUAL MEETING OF STOCKHOLDERS ON
JULY 6, 2009 AT 10:00 A.M. (BRITISH SUMMER TIME) AT THE EATON SUITE –
EXECUTIVE BOARDROOM, THE CHESTER GROSVENOR AND SPA, EASTGATE, CHESTER, UK
CH1 1LT.
¨
|
Signature
of Stockholder ______________ Date: ________
|
|
Signature
of Stockholder ______________ Date:
________
|
Note:
This proxy must be signed exactly as the name appears hereon. When shares are
held jointly, each holder should sign. When signing as executor, administrator,
attorney, trustee or guardian, please give full title as such. If the signer is
a corporation, please sign full corporate name by a duly authorized officer,
giving full title as such. If signer is a partnership, please sign in
partnership name by an authorized person.
AFTERSOFT
GROUP, INC.
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
ANNUAL
MEETING OF STOCKHOLDERS TO BE HELD ON JULY 6, 2009
Revoking
all prior proxies, the undersigned, a stockholder of AFTERSOFT GROUP, INC. (the
“Company”), hereby appoints Ian Warwick and Simon Chadwick or either of them, as
attorneys and agents of the undersigned, with full power of substitution, to
vote all of the shares of the Company’s Common Stock, par value $0.0001 per
share (“Common Stock”), owned by the undersigned at the Annual Meeting of
Stockholders of the Company to be held on July 6, 2009 at The Eaton Suite –
Executive Boardroom, The Chester Grosvenor and Spa, Eastgate, Chester, UK CH1
1LT, at 10:00 a.m. British Summer Time, and at any adjournment
thereof, as fully and effectively as the undersigned could do if personally
present and voting, hereby approving, ratifying, and confirming all that said
attorney and agent or his substitute may lawfully do in place of the undersigned
as indicated on the reverse.
IMPORTANT: SIGNATURE
REQUIRED ON THE REVERSE SIDE