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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Finjan Holdings Inc | NASDAQ:FNJN | NASDAQ | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 1.54 | 1.54 | 1.54 | 0 | 01:00:00 |
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to §240.14a-12
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No fee required.
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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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(5)
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Total fee paid:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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(1)
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Amount Previously Paid:
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(2)
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Form, Schedule or Registration Statement No.:
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(3)
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Filing Party:
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(4)
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Date Filed:
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1.
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To elect three Class 1 directors to serve two-year terms ending in 2016 and two Class 2 directors to serve three-year terms ending in 2017;
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2.
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To ratify the appointment of Marcum LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2014;
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3.
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To approve the Finjan Holdings, Inc. 2014 Incentive Compensation Plan;
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4.
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To approve amendments to the Company’s current certificate of incorporation as set forth below:
4A. Approval of an amendment to decrease the number of authorized shares of common stock from 1 billion to 80 million
4B. Approval of an amendment to provide that the board consist of between three and fifteen directors and to clarify provisions related to our board structure
4C. Approval of an amendment to eliminate the ability of holders of our common stock to vote on amendments relating solely to preferred stock
4D. Approval of an amendment to provide for supermajority voting for amendments to bylaws by stockholders
4E. Approval of an amendment to provide for supermajority voting for certain amendments to the charter
4F. Approval of an amendment to provide for supermajority voting to remove directors for cause
4G. Approval of an amendment to permit stockholder action only at a duly called meeting and to prohibit action by written consent of stockholders
4H. Approval of an amendment to provide that the Court of Chancery of the State of Delaware will be the exclusive forum for certain legal actions
4I. Approval of an amendment to update provisions relating to indemnification and personal liability of directors
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5.
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To hold an advisory vote on executive compensation;
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6.
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To hold an advisory vote on the frequency of holding stockholder advisory votes on executive compensation; and
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7.
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To transact such other business as may properly come before the annual meeting or any adjournment or postponement of the annual meeting.
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By Order of the Board of Directors
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Name: Philip Hartstein
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Title: President
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Page
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Questions and Answers
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1
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Why am I receiving this proxy statement?
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1
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What information is presented in this proxy statement?
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1
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Who can attend the annual meeting?
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1
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What are the voting rights of stockholders?
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2
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How do I vote?
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2
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How are proxy card votes counted?
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2
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Will my shares of common stock be voted if I do not provide my proxy and I do not attend the annual meeting?
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3
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May I change my vote after I return my proxy card?
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3
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What will constitute a quorum at the annual meeting?
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3
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How many votes are needed to approve each of the proposals?
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3
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Will any other matters be voted on?
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3
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Who is soliciting my proxy?
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3
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What is “householding” and how does it affect me?
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4
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Is there a list of stockholders entitled to vote at the annual meeting?
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4
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Management and Corporate Governance
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5
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Executive Officers and Directors
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5
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Class 1 Directors
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6
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Class 2 Directors
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7
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Class 3 Directors
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7
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Executive Officers
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8
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Family Relationships
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8
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Director Independence
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8
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Executive Sessions of Independent Directors
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8
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Board Committees
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8
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Board Meetings and Director Attendance
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10
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Director Nominees
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10
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Stockholder Proposals and Recommendations of Director Nominees
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11
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Stockholder Communications with the Board of Directors
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11
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Board Leadership Structure
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11
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Compensation Committee Interlocks and Insider Participation
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12
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Code of Business Conduct and Ethics
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12
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Section 16(a) Beneficial Ownership Reporting Compliance
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12
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Risk Oversight
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12
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Executive Compensation
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13
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Compensation Discussion and Analysis
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13
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Compensation Committee Report
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15
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Summary Compensation Table
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16
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Grant of Plan Based Awards
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17
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Outstanding Equity Awards at Fiscal Year End
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18
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Option Exercises and Stock Vested
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18
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Employment Agreements
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19
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Potential Payments Upon Termination or Change-in-Control
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20
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Director and Officer Indemnification Arrangements
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20
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Employee Benefit Plans
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21
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Director Compensation
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23
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Equity Compensation Plan Information
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24
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Voting Securities of Certain Beneficial Owners and Management
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25
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Certain Relationships and Related Transactions
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28
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Merger
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28
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Other Transactions
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29
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Related Party Transactions Policy
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29
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Proposal 1 – Election of Directors
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30
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Proposal 2 – Ratification of Appointment of Independent Registered Public Accounting Firm
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31
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Disclosure of Marcum LLP Fees for the Years Ended December 31, 2013 and 2012
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31
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2013 Change in Accounting Firm in connection with Merger
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32
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Report of the Audit Committee
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33
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Proposal 3 – Approval of the Finjan Holdings, Inc. 2014 Incentive Compensation Plan
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34
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Purposes and Eligibility
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34
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Shares Authorized for Issuance
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34
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Administration and Types of Awards
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34
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Performance-Based Compensation
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34
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Change in Control
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36
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Termination of Employment or Service
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37
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Amendment and Termination
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38
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Transferability
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38
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Adjustments
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38
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Federal Tax Consequences
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38
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2014 Plan Benefits
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40
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Overview of Proposals 4A Through 4I (Charter Amendment Proposals)
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42
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Proposal 4A – Approval of an Amendment to Our Certification of Incorporation to Decrease the Number of Authorized Shares of Common Stock from 1 Billion to 80 Million
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43
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Proposal 4B – Approval of an Amendment to Our Certificate of Incorporation to Provide That the Board Consist of Between Three and Fifteen Directors and to Clarify Provisions Related to Our Board Structure
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44
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Proposal 4C – Approval of an Amendment to Our Certificate of Incorporation to Eliminate the Ability of Holders of Our Common Stock to Vote on Amendments Relating Solely to Preferred Stock
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45
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Proposal 4D – Approval of an Amendment to Our Certificate of Incorporation to Provide for Supermajority Voting for Amendments to Our Bylaws Adopted by Our Stockholders
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46
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Proposal 4E – Approval of an Amendment to Our Certificate of Incorporation to Provide for Supermajority Voting for Amendments to Certain Provisions of Our Certificate of Incorporation
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47 |
Proposal 4F – Approval of an Amendment to Our Certificate of Incorporation to Provide for Supermajority Voting to Remove Directors for Cause
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48 |
Proposal 4G – Approval of an Amendment to Our Certificate of Incorporation to Permit Stockholder Action only at a Duly Called Meeting and to Prohibit Action by Written Consent of Stockholders
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49
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Proposal 4H – Approval of an Amendment to Our Certificate of Incorporation to Provide That the Court of Chancery of the State of Delaware Will be the Exclusive Forum for Certain Legal Actions
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50
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Proposal 4I – Approval of an Amendment to Our Certificate of Incorporation to Update Provisions Related to Indemnification and Personal Liability of Directors
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51
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Proposal 5 – Advisory Vote on Executive Compensation
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52
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Proposal 6 – Advisory Vote on the Frequency of the Advisory Vote on Executive Compensation
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53
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Other Matters
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55
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Availability of Proxy Statement and Annual Report on Form 10-K
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55
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Important Notice Regarding the Availability of Proxy Materials for the Stockholder Meeting to be Held on Thursday, July 10, 2014
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55
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Other Matters to Come Before the 2014 Annual Meeting
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55
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Stockholder Proposals and Nominations for the 2015 Annual Meeting
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55
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Name
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Position
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Age
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Class
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Executive
Officer Since
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Director Since
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Term Expires
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Daniel Chinn
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Director
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47
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1
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2010-2014(5)
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2013
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2014(2)
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Eric Benhamou
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Director (1)
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58
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1
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N/A
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2013
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2014(2)
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Michael Southworth
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Director (4)
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41
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1
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N/A
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2014
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2014(3)
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Alex Rogers
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Director (1)
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39
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2
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N/A
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2013
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2014
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Glenn Daniel
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Director (4)
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67
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2
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N/A
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2014
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2014
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Michael Eisenberg
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Director (1)
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42
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3
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N/A
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2013
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2015
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Harry Kellogg
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Director (4)
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70
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3
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N/A
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2014
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2015
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Philip Hartstein
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President
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37
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N/A
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2013
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N/A
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N/A
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Shimon Steinmetz
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Chief Financial Officer
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36
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N/A
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2013
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N/A
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N/A
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Name
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Audit Committee (1)
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Compensation Committee (2)
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Nominating and Corporate
Governance Committee (3)
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|||
Eric Benhamou*
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ü
|
Chair | ||||
Daniel Chinn
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ü
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Chair | ||||
Glenn Daniel
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ü
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ü
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||||
Michael Eisenberg
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ü
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Chair |
ü
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|||
Harry Kellogg
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ü
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|||||
Alex Rogers
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ü
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|||||
Michael Southworth
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ü
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·
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general economic conditions
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·
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our current and historical compensation practices and current and historical compensation practices of peer companies
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·
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each executive’s performance, skill sets and roles in the Company; and
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·
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the Company’s need for skill sets and the global or regional market for the executive’s skill sets.
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Respectfully submitted,
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||
The Compensation Committee of the Board of Directors
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Michael Eisenberg (Chairman)
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Glenn Daniel
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Alex Rogers
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Stock
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Option
|
||||||||||||||||||||||||
Name and
|
Bonus
|
Awards
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Awards
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All Other
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|||||||||||||||||||||
Principal Position
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Year
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Salary
|
(1)
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(2)
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(2)
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Compensation
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Total
|
||||||||||||||||||
Philip Hartstein
|
2013
|
$
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150,000
|
$
|
50,000
|
$
|
-
|
$
|
276,942
|
$
|
75,000
|
$
|
551,942
|
||||||||||||
President (3)
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|||||||||||||||||||||||||
Shimon Steinmetz
|
2013
|
$
|
100,000
|
$
|
50,000
|
$
|
-
|
$
|
118,689
|
$
|
59,999
|
$
|
328,688
|
||||||||||||
Chief Financial Officer (4)
|
|||||||||||||||||||||||||
Daniel Chinn
|
2013
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
451,143
|
$
|
-
|
$
|
451,143
|
||||||||||||
Chief Executive Officer,
|
|||||||||||||||||||||||||
Finjan, Inc. (5)
|
|||||||||||||||||||||||||
Edward Gildea
|
2013
|
$
|
49,215
|
$
|
-
|
$
|
29,411
|
$
|
-
|
$
|
300,000
|
$
|
378,626
|
||||||||||||
President and Chief
|
2012
|
$
|
229,005
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
229,005
|
||||||||||||
Executive Officer (6)
|
2011
|
$
|
198,900
|
$
|
-
|
$
|
144,498
|
$
|
117,740
|
$
|
-
|
$
|
461,138
|
||||||||||||
David Allen
|
2013
|
$
|
81,442
|
$
|
-
|
$
|
3,219
|
$
|
-
|
$
|
175,000
|
$
|
259,661
|
||||||||||||
Chief Financial Officer (7)
|
2012
|
$
|
187,676
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
187,676
|
||||||||||||
2011
|
$
|
156,081
|
$
|
-
|
$
|
41,887
|
$
|
34,130
|
$
|
-
|
$
|
232,098
|
(1)
|
The Company provided discretionary cash bonuses to its President and Chief Financial Officer based upon the Company’s progress following the completion of the Merger. The bonuses were not based on specific performance criteria.
|
(2)
|
Represents the full grant date fair value of the stock award or option grant, as applicable, calculated in accordance with FASB ASC Topic 718
and
FASB ASC 505,
Equity-Based Payments to Non-employees
. Our policy and assumptions made in the valuation of share-based payments are contained in Note 11 to our December 31, 2013 financial statements. The value of stock awards presented in the Summary Compensation Table reflects the grant date fair value of the awards and does not correspond to the actual value that will be recognized by the named executive officers.
|
(3)
|
In April 2013, Finjan, Inc. engaged Philip Hartstein to serve as its President pursuant to a consulting agreement, which was terminated upon the execution of an employment agreement between the Company and Mr. Hartstein effective as of July 1, 2013. Prior to the effectiveness of such employment agreement, the Company paid Mr. Hartstein $75,000 of consulting fees, which are reflected as “other compensation” in the table above. During 2013, Finjan, Inc. granted Mr. Hartstein a ten-year option, which, as a result of the Merger, was converted into a ten-year option to purchase 432,403 shares of common stock at an exercise price of $1.66 per share.
|
(4)
|
In April 2013, Finjan, Inc. engaged Shimon Steinmetz to serve as its Chief Financial Officer pursuant to a consulting agreement, which was terminated upon the execution of an employment agreement between the Company and Mr. Steinmetz effective as of July 1, 2013. Prior to the effectiveness of such employment agreement, the Company paid Mr. Steinmetz $59,999 of consulting fees, including $10,000 of moving expenses, which are reflected as “other compensation” in the table above. During 2013, Finjan, Inc. granted Mr. Steinmetz a ten-year option, which, as a result of the Merger, was converted into a ten-year option to purchase 185,315 shares of common stock at an exercise price of $1.66 per share.
|
(5)
|
During 2013, Finjan, Inc. granted Mr. Chinn a ten-year option, which, as a result of the Merger, was converted into an option to purchase 535,355 shares of common stock at an exercise price of $1.66 per share. Mr. Chinn served as the Chief Executive Officer of our subsidiary, Finjan, Inc. from 2010 until April 2, 2014 when he transitioned to focus his time on serving on the Company’s Board of Directors.
|
(6)
|
Edward Gildea was the President and Chief Executive Officer of Converted Organics, Inc. prior to the Merger. Mr. Gildea resigned his positions as an officer of the Company effective as of June 3, 2013. Mr. Gildea did not receive compensation in his capacity as a director during the year ended December 31, 2013. The Company awarded 20,162 shares of restricted stock to Mr. Gildea in connection with the closing of the Merger, all of which vested on December 3, 2013. Mr. Gildea also received $300,000, in cash, in connection with the termination of his severance agreement upon the consummation of the Merger. Mr. Gildea’s compensation is not included in the financial statements included within this Annual Report because this is pre-Merger compensation. Mr. Gildea resigned as a member of the Board on May 8, 2014.
|
(7)
|
David Allen was the Chief Financial Officer of Converted Organics, Inc. prior to the Merger. Mr. Allen resigned his position as an officer of the Company effective as of June 3, 2013. The Company awarded 2,207 shares of stock to Mr. Allen in connection with the closing of the Merger, all of which vested immediately upon grant. Mr. Allen also received $175,000, in cash, in connection with the termination of his severance agreement upon consummation of the Merger. Mr. Allen’s compensation is not included in the financial statements included within this Annual Report because this is pre-Merger compensation.
|
Name
|
Grant Date
|
All Other Stock Awards: Number of Shares of Stock or Units
|
All Other Option Awards: Number of Securities Underlying Options
|
Exercise or Base Price of Option Awards
|
Grant Date Fair Value of Stock and Option Awards
|
||||||||||||
Philip Hartstein
|
5/7/2013
|
-
|
432,403
|
$
|
1.66
|
$
|
276,942
|
||||||||||
Shimon Steinmetz
|
5/7/2013
|
-
|
185,315
|
$
|
1.66
|
$
|
118,689
|
||||||||||
Daniel Chinn
|
5/7/2013
|
-
|
535,355
|
$
|
1.66
|
$
|
451,143
|
||||||||||
Edward Gildea
|
6/3/2013
|
20,161
|
-
|
n/a
|
$
|
29,411
|
|||||||||||
David Allen
|
6/3/2013
|
2,207
|
-
|
n/a
|
$
|
3,219
|
Option Awards
|
Stock Awards
|
|||||||||||||||||||||||||||||||
Name
|
Number of
Securities
Underlying
Unexercised
Options
Exercisable
|
Number of
Securities
Underlying
Unexercised
Options
Unexercisable
|
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
|
||||||||||||||||||||||||
Philip Hartstein (1)
|
-
|
432,403
|
$
|
1.66
|
5/7/2023
|
-
|
$
|
-
|
-
|
$
|
-
|
|||||||||||||||||||||
Shimon Steinmetz (2)
|
-
|
185,315
|
$
|
1.66
|
5/7/2023
|
-
|
$
|
-
|
-
|
$
|
-
|
|||||||||||||||||||||
Daniel Chinn
|
422,107
|
113,248
|
$
|
1.66
|
5/7/2023
|
-
|
$
|
-
|
-
|
$
|
-
|
|||||||||||||||||||||
Edward Gildea (3)
|
-
|
-
|
$
|
-
|
-
|
-
|
$
|
-
|
-
|
$
|
-
|
|||||||||||||||||||||
David Allen (3)
|
-
|
-
|
$
|
-
|
-
|
-
|
$
|
-
|
-
|
$
|
-
|
Option Awards
|
Restricted Stock
|
|||||||||||||||
Number of Shares
|
Value Realized
|
Number of
|
Value Realized
|
|||||||||||||
Name
|
Acquired on Exercise
|
on Exercise
|
Shares Vested
|
on Vesting
|
||||||||||||
Edward Gildea
|
-
|
$
|
-
|
20,161
|
$
|
154,232
|
||||||||||
David Allen
|
-
|
$
|
-
|
2,207
|
$
|
3,219
|
·
|
$65,000 annual director fee, payable in arrears in four equal quarterly installments on the last day of each fiscal quarter during which a director serves as a member of the Board; provided, however, that each such installment shall only be paid if such director served as such during the entire fiscal quarter with respect to which such installment is payable;
|
·
|
$17,500 annual fee to members of the audit committee, payable in arrears on the last day of each fiscal year during which such director served as a member of the Audit Committee;
|
·
|
$10,000 annual fee to the Chairman of the audit committee, payable in arrears on the last day of each fiscal year during which such Chairman served as the Chairman of the Audit Committee; and
|
·
|
Subject to shareholder approval of a new incentive plan, a grant of restricted stock units, or RSUs, to each non-executive director, such RSUs to represent a number of shares of the common stock equal to $100,000, divided by the closing sales price of the common stock on the date of grant, rounded to the nearest whole share, to vest in accordance with the following vesting schedule: one-third of the RSUs to vest on the one year anniversary of the grant date, and an additional 8.33% of the RSUs to vest every three calendar months thereafter.
|
|
Number of securities to be
issued upon exercise of
outstanding options,
warrants and rights
|
|
Weighted average
exercise price of
outstanding options,
warrants and rights
|
|
Number of securities
remaining available for
future issuance under
equity compensation
plans (excluding
securities reflected in
the first column)
|
|||||||
Equity compensation plans approved by security holders
|
|
1,625,476
|
|
|
$
|
1.76
|
|
|
629,254
|
(1)
|
||
Equity compensation plans not approved by security holders
|
|
—
|
|
|
—
|
|
|
—
|
|
|||
Total
|
|
1,625,476
|
|
|
$
|
1.76
|
|
|
629,254
|
|
(1)
|
As of December 31, 2014, the amount of securities available for future issuance under equity compensation plans was 611,360 shares available under the 2013 Plan and 17,894 shares available under the 2010 Plan.
|
·
|
each person who is known by us to own beneficially more than 5% of our common stock;
|
·
|
each of our directors;
|
·
|
each of our named executive officers; and
|
·
|
all of our directors and executive officers as a group.
|
Shares Beneficially Owned
|
||||||||||
Name of Beneficial Owner
|
Number
|
%(1)
|
||||||||
Daniel Chinn, Director
|
483,319
|
(2
|
)
|
2.1
|
%
|
|||||
Philip Hartstein, President
|
134,928
|
(3
|
)
|
*
|
||||||
Shimon Steinmetz, Chief Financial Officer
|
57,784
|
(4
|
)
|
*
|
||||||
Michael Eisenberg, Director
|
5,353,555
|
(5
|
)
|
23.9
|
%
|
|||||
Eric Benhamou, Director
|
617,718
|
(6
|
)
|
2.8
|
%
|
|||||
Alex Rogers, Director
|
0
|
(7
|
)
|
--
|
||||||
All directors and executive officers as a group
|
6,647,304
|
(9
|
)
|
28.8
|
%
|
|||||
BCPI I, L.P.
2480 Sand Hill Road
Menlo Park, CA 94025
|
5,353,555
|
(10
|
)
|
23.9
|
%
|
|||||
Israel Seed IV, L.P.
309 Queensgate House
South Church Street
Georgetown,
Grand Cayman, Cayman Islands
|
4,365,207
|
(11
|
)
|
19.5
|
%
|
|||||
HarbourVest International Private Equity Partners IV Direct Fund L.P.
c/o HarbourVest Partners, LLC
One Financial Center
44th Floor
Boston, MA 02111
|
4,303,435
|
(12
|
)
|
19.2
|
%
|
|||||
Cisco Systems, Inc.
170 W. Tasman Drive
San Jose, CA 95134
|
1,688,429
|
7.5
|
%
|
|||||||
Star Bird Holdings Limited
c/o BWCI Group,
Albert House,
South Esplanade,
St Peter Port
Guernsey GY1 3BY
|
1,461,933
|
(13
|
)
|
6.5
|
%
|
|||||
D and A Income Limited
c/o HSBC Trustee (C.I.) Limited
HSBC House
Esplanade
St Helier
Jersey JE1 1GT, Channel Islands
|
1,461,933
|
(14
|
)
|
6.5
|
%
|
(1)
|
Percentages are based on 22,368,453 shares of common stock issued and outstanding as of May 15, 2014.
|
(2)
|
Includes options to purchase up to 483,319 shares of common stock, which are currently exercisable or will become exercisable within sixty days, for $1.6559 per share. Does not include options to purchase up to 52,036 shares of common stock which are not currently exercisable and will not become exercisable within the next 60 days.
|
(3)
|
Includes options to purchase up to 134,928 shares of common stock, which are currently exercisable or will become exercisable within sixty days, for $1.6559 per share. Does not include options to purchase up to 297,475 shares of common stock which are not currently exercisable and will not become exercisable within the next 60 days.
|
(4)
|
Includes options to purchase up to 57,784 shares of common stock, which are currently exercisable or will become exercisable within sixty days, for $1.6559 per share. Does not include options to purchase up to 127,531 shares of common stock which are not currently exercisable and will not become exercisable within the next 60 days.
|
(5)
|
Represents the 5,353,555 shares of common stock held by BCPI I, L.P. See footnote (10).
|
(6)
|
Includes shares of common stock held by Benhamou Global Ventures LLC, with respect to which Eric Benhamou has sole voting and dispositive power.
|
(7)
|
Excludes the 4,303,435 shares held by HarbourVest International Private Equity Partners IV-Direct Fund L.P. Alex Rogers is an employee of HarbourVest Partners (Asia) Limited, a subsidiary of HarbourVest Partners, LLC, the Managing Member of HIPEP IV Direct Associates LLC, which is the General Partner of HarbourVest International Private Equity Partners IV-Direct Fund L.P. Mr. Rogers does not have voting power or dispositive power with respect to shares held by HarbourVest International Private Equity Partners IV-Direct Fund L.P. and disclaims beneficial ownership of the shares held by HarbourVest International Private Equity Partners IV-Direct Fund.
|
(8)
|
Includes 20,162 shares issued to Mr. Gildea in connection with the termination of his severance agreement on June 3, 2013. The business address for Mr. Gildea is 7A Commercial Wharf West, Boston, MA 02110.
|
(9)
|
Includes options to purchase up to 676,031 shares of common stock held by Daniel Chinn, Philip Hartstein and Shimon Steinmetz which are currently exercisable or will become exercisable within 60 days for $1.6559 per share.
|
(10)
|
Represents 5,353,555 shares of common stock held by BCPI I, L.P. (“BCPI I”) for itself and as nominee for BCPI Founders’ Fund I, L.P. (“BCPI FF”) and for other individuals and entities. BCPI Partners I, L.P. (“BCPI GP”), the general partner of both BCPI I and BCPI FF, may be deemed to have sole power to vote and dispose of these shares, BCPI Corporation (“BCPI Corp.”), the general partner of BCPI GP, may be deemed to have sole power to vote and dispose of these shares, and Michael Eisenberg (“Eisenberg”) and Arad Naveh (“Naveh”), the directors of BCPI Corp., may be deemed to have shared power to vote and dispose of these shares. The foregoing information is based solely upon information contained in the Schedule 13D filed by BCPI I, BCPI GP, BCPI Corp., Eisenberg and Naveh on June 13, 2013.
|
(11)
|
Represents 4,365,207 shares of common stock held by Israel Seed IV, L.P., the general partner of which is Israel Venture Partners 2000 Limited (“Israel Venture”). Neil Cohen (“Cohen”), Jonathan Medved and Michael Eisenberg are the current members of Israel Venture. However, Neil Cohen is the managing member of Israel Venture and, in his capacity as such, has voting and dispositive power with respect to securities beneficially owned by Israel Venture. Both Israel Venture and Cohen have disclaimed beneficial ownership of the reported securities except to the extent of their pecuniary interest therein. The foregoing information is based solely upon information contained in the Schedule 13D filed by Israel Seed and Israel Venture on June 13, 2013.
|
(12)
|
Voting and investment power over the securities owned directly by HarbourVest International Private Equity Partners IV-Direct Fund L.P. (“HarbourVest Direct”) is exercised by the Investment Committee of HarbourVest Partners, LLC, (“HarbourVest Partners”) which is the Managing Member of HIPEP IV Direct Associates LLC (“HarbourVest Associates”), which is the General Partner of HarbourVest Direct. Based solely upon the Schedule 13G filed by HarbourVest Direct, HarbourVest Associates and HarbourVest Partners, each of HarbourVest Direct, HarbourVest Associates and HarbourVest Partners shares voting and dispositive power with respect to the shares of common stock held by HarbourVest Direct.
|
(13)
|
BWCI Pension Trustees Limited (“PTL”) and BWCI Trust Company Limited (“CTL”), as the corporate directors of Star Bird Holdings Limited (“STAR”), manage various investments of STAR, including STAR’s investments in the Company. Each of PTL and CTL has, except in limited circumstances, the power to vote or to direct the vote and to dispose or to direct the disposition of the shares of common stock that STAR may be deemed to beneficially own. As a result, STAR, PTL and CTL may be deemed to constitute a “group” within the meaning of the provisions of Rule 13d-3 of the Exchange Act, with respect to STAR’s investment in the Company. PTL and CTL own directly no Shares. Each of PTL and CTL have disclaimed beneficial ownership of any securities owned by STAR. The foregoing information is based solely upon information contained in the Schedule 13G filed by STAR, PTL and CT2 on June 18, 2013.
|
(14)
|
D & A Income Limited (“D&A”) is wholly-owned by HSBC International Trustee Limited, Jersey Branch (“HSBC International Trustee Limited”), as the sole trustee of certain trusts. Accordingly, HSBC International Trustee Limited may be deemed to beneficially own the shares of our common stock held directly by D&A. HSBC PB Corporate Services 1 Limited is the sole director of D&A and may also be deemed to beneficially own the shares of our common stock held by D&A. The foregoing is based on information provided by the stockholder.
|
·
|
Eric Benhamou
,
Daniel Chinn
and
Michael Southworth
to serve as
Class 1
directors with terms scheduled to end at the 2016 annual meeting of stockholders and until their successors are duly elected and qualified or until the director's earlier resignation or removal.
|
·
|
Alex Rogers
and
Glenn Daniel
to serve as
Class 2
directors with terms scheduled to end at the 2017 annual meeting of stockholders and until their successors are duly elected and qualified or until the director's earlier resignation or removal.
|
|
For The Years Ended
December
|
|||||||
|
2013
|
|
2012
|
|||||
Audit Fees (1)
|
|
$
|
128,750
|
|
|
$
|
141,459
|
|
Audit-Related Fees (2)
|
|
73,800
|
|
|
—
|
|||
Tax Fees (3)
|
|
—
|
|
|
—
|
|
||
All Other Fees
|
|
—
|
|
|
—
|
|||
|
|
|||||||
Total
|
|
$
|
202,550
|
|
|
$
|
141,459
|
|
(1)
|
Audit fees relate to professional services rendered in connection with the audit of the Company’s annual financial statements and internal control over financial reporting, quarterly review of financial statements included in the Company’s Quarterly Reports on Form 10-Q, and audit services provided in connection with other statutory and regulatory filings.
|
(2)
|
Audit-related fees relate to professional services rendered in connection with assurance and related services that are reasonably related to the performance of the audit or review of the Company’s financial statements, including due diligence.
|
(3)
|
Tax fees relate to professional services rendered for tax compliance, tax advice and tax planning for the Company.
|
Respectfully submitted,
|
||
The Audit Committee of the Board of Directors
|
||
Eric Benhamou (Chairman)
|
||
Glenn Daniel
Harry Kellogg
Michael Southworth
|
·
options (non-qualified and incentive stock options);
|
·
deferred stock;
|
·
stock appreciation rights, or SARs;
|
·
performance units;
|
·
restricted stock;
|
·
annual incentive awards; and
|
·
restricted stock units;
|
·
substitute awards.
|
● |
Earnings (either in the aggregate or on a per-share basis);
|
● | Operating and maintenance cost management and employee productivity; | |
● | Net income or loss (either in the aggregate or on a per-share basis); | ● | Share price or total shareholder return (including return on assets, investments, equity, or sales); | |
● | Operating profit; | |||
● | Earnings before any or all of interest, tax, depreciation or amortization (actual and adjusted and either in the aggregate or on a per-Share basis); | ● | Return on assets, equity, or sales; | |
● | Growth or rate of growth in cash flow; | ● | Growth or rate of growth in return measures; | |
● | Cash flow provided by operations (either in the aggregate or on a per-share basis); | ● | Share price (including growth measures and total shareholder return or attainment by our common stock of a specified value for a specified period of time); | |
● | Free cash flow (either in the aggregate on a per-share basis); | ● | Strategic business criteria, consisting of one or more objectives based on meeting specified revenue, market share, market penetration, geographic business expansion goals, objectively identified project milestones, production volume levels, cost targets and goals relating to acquisitions or divestitures; | |
● | Costs; | |||
● | Gross or net revenues; | ● | Achievement of business or operational goals such as market share and/or business development; or | |
● | Reductions in expense levels in each case, where applicable, determined either on a company-wide basis or in respect of any one or more business segments; | ● | Debt ratings, debt leverage and debt service. |
|
·
|
the size and classified structure of the Board, director removal requirements and the ability to fill vacancies on the Board;
|
|
·
|
the prohibition against stockholder action by written consent;
|
|
·
|
supermajority voting requirements for charter and bylaw amendments;
|
|
·
|
indemnification of directors and officers; and
|
|
·
|
the designation of the Delaware Court of Chancery as the exclusive forum for certain legal actions.
|
·
|
A triennial advisory vote is consistent with the long-term objectives of our compensation program. The Compensation Committee generally makes equity grants that vest over a three-year period to our named executive officers, in part, to better align their interests with stockholder interests and motivate them toward superior future performance. We believe that a three-year vesting period encourages performance that is oriented towards long-term achievements and growth.
|
·
|
We are concerned that an annual advisory vote on executive compensation could lead to a near-term perspective inappropriately bearing on our executive compensation programs.
|
·
|
A triennial advisory vote would provide sufficient time for the Board of Directors and our Compensation Committee to implement effective compensation programs, and necessary time to evaluate the impact of any new programs or changes. Similarly, a triennial advisory vote would provide stockholders an opportunity to thoughtfully evaluate the effects of our compensation program and any changes implemented over the prior three years.
|
·
|
We believe that our compensation program does not encourage executives to take excessive risks or pose any significant risks that might be of concern to our stockholders.
|
·
|
Needless to say, a triennial vote would minimize unnecessary administrative costs.
|
By Order of the Board of Directors
|
||
|
||
Name: Philip Hartstein
|
||
Title: President
|
||
New York, New York
|
||
June 10, 2014
|
Section 1. Establishment, Purpose and Duration |
1
|
||
1.1.
|
Effective Date and Purpose
|
1
|
|
1.2.
|
Duration of the Plan
|
1
|
|
Section 2. Definitions |
1
|
||
2.1.
|
“Annual Incentive Award”
|
1
|
|
2.2.
|
“Available Shares”
|
1
|
|
2.3.
|
“Award”
|
1
|
|
2.4.
|
“Award Agreement”
|
1
|
|
2.5.
|
“Beneficiary”
|
1
|
|
2.6.
|
“Board”
|
2
|
|
2.7.
|
“Bonus Opportunity”
|
2
|
|
2.8.
|
“Cause”
|
2
|
|
2.9.
|
“Change in Control”
|
2
|
|
2.10.
|
“Code”
|
3
|
|
2.11.
|
“Committee”
|
3
|
|
2.12.
|
“Common Stock”
|
3
|
|
2.13.
|
“Company”
|
3
|
|
2.14.
|
“Covered Employee”
|
3
|
|
2.15.
|
“Deferred Compensation Award”
|
3
|
|
2.16.
|
“Deferred Stock”
|
3
|
|
2.17.
|
“Disability”
|
3
|
|
2.18.
|
“Dividend Equivalent”
|
3
|
|
2.19.
|
“Effective Date”
|
4
|
|
2.20.
|
“Eligible Person”
|
4
|
|
2.21.
|
“Employer”
|
4
|
|
2.22.
|
“Employment Agreement”
|
4
|
|
2.23.
|
“Exchange Act”
|
4
|
|
2.24.
|
“Exercise Date”
|
4
|
|
2.25.
|
“Fair Market Value”
|
4
|
|
2.26.
|
“Grant Date”
|
4
|
|
2.27.
|
“Grantee”
|
4
|
|
2.28.
|
“Immediate Family”
|
5
|
|
2.29.
|
“Incentive Stock Option”
|
5
|
|
2.30.
|
“including”
|
5
|
|
2.31.
|
“Non-Qualified Stock Option”
|
5
|
|
2.32.
|
“Option”
|
5
|
|
2.33.
|
“Option Price”
|
5
|
|
2.34.
|
“Performance-Based Exception”
|
5
|
|
2.35.
|
“Performance Goal”
|
5
|
|
2.36.
|
“Performance Measure”
|
5
|
|
2.37.
|
“Performance Period”
|
5
|
|
2.38.
|
“Performance Unit”
|
5
|
|
2.39.
|
“Permitted Transferee”
|
5
|
2.40.
|
“Person”
|
6
|
|
2.41.
|
“Plan”
|
6
|
|
2.42.
|
“Restricted Stock”
|
6
|
|
2.43.
|
“Restricted Stock Unit” or “RSU”
|
6
|
|
2.44.
|
“Restrictions”
|
6
|
|
2.45.
|
“Rule 16b-3”
|
6
|
|
2.46.
|
“SEC”
|
6
|
|
2.47.
|
“Section 16 Non-Employee Director”
|
6
|
|
2.48.
|
“Section 16 Person”
|
6
|
|
2.49.
|
“Settlement Date”
|
6
|
|
2.50.
|
“Share”
|
6
|
|
2.51.
|
“Stock Appreciation Right” or “SAR”
|
7
|
|
2.52.
|
“Strike Price”
|
7
|
|
2.53.
|
“Subsidiary”
|
7
|
|
2.54.
|
“Substitute Award”
|
7
|
|
2.55.
|
“Term”
|
7
|
|
2.56.
|
“Termination of Service”
|
7
|
|
2.57.
|
“Year”
|
7
|
|
Section 3. Administration |
7
|
||
3.1.
|
Committee.
|
7
|
|
3.2.
|
Powers of the Committee
|
8
|
|
Section 4. Shares Subject to the Plan and Adjustments |
10
|
||
4.1.
|
Number of Shares Available for Grants.
|
10
|
|
4.2.
|
Adjustments in Authorized Shares and Awards.
|
11
|
|
4.3.
|
Compliance With Code Section 162(m).
|
12
|
|
4.4.
|
Performance Based Exception Under Code Section 162(m).
|
12
|
|
Section 5. Eligibility and General Conditions of Awards |
14
|
||
5.1.
|
Eligibility
|
14
|
|
5.2.
|
Award Agreement
|
14
|
|
5.3.
|
General Terms and Termination of Service
|
14
|
|
5.4.
|
Non-transferability of Awards.
|
16
|
|
5.5.
|
Cancellation and Rescission of Awards
|
16
|
|
5.6.
|
Substitute Awards
|
16
|
|
5.7.
|
Exercise by Non-Grantee
|
17
|
|
5.8.
|
No Cash Consideration for Awards
|
17
|
|
Section 6. Stock Options |
17
|
||
6.1.
|
Grant of Options
|
17
|
|
6.2.
|
Award Agreement
|
17
|
|
6.3.
|
Option Price
|
17
|
|
6.4.
|
Vesting
|
17
|
|
6.5.
|
Grant of Incentive Stock Options
|
18
|
|
6.6.
|
Exercise and Payment.
|
19
|
|
Section 7. Stock Appreciation Rights |
20
|
||
7.1.
|
Grant of SARs
|
20
|
7.2.
|
Award Agreements
|
20
|
|
7.3.
|
Strike Price
|
20
|
|
7.4.
|
Vesting
|
20
|
|
7.5.
|
Exercise and Payment
|
21
|
|
7.6.
|
Grant Limitations
|
21
|
|
Section 8. Restricted Stock |
21
|
||
8.1.
|
Grant of Restricted Stock
|
21
|
|
8.2.
|
Award Agreement
|
21
|
|
8.3.
|
Consideration for Restricted Stock
|
21
|
|
8.4.
|
Vesting
|
21
|
|
8.5.
|
Effect of Forfeiture
|
21
|
|
8.6.
|
Escrow; Legends
|
22
|
|
8.7.
|
Shareholder Rights in Restricted Stock
|
22
|
|
Section 9. Restricted Stock Units |
22
|
||
9.1.
|
Grant of Restricted Stock Units
|
22
|
|
9.2.
|
Award Agreement
|
22
|
|
9.3.
|
Crediting Restricted Stock Units
|
22
|
|
Section 10. Deferred Stock |
23
|
||
10.1.
|
Grant of Deferred Stock
|
23
|
|
10.2.
|
Award Agreement
|
23
|
|
10.3.
|
Deferred Stock Elections.
|
24
|
|
10.4.
|
Deferral Account.
|
24
|
|
Section 11. Performance Units |
25
|
||
11.1.
|
Grant of Performance Units
|
25
|
|
11.2.
|
Value/Performance Goals
|
25
|
|
11.3.
|
Earning of Performance Units
|
26
|
|
11.4.
|
Adjustment on Change of Position
|
26
|
|
Section 12. Annual Incentive Awards |
26
|
||
12.1.
|
Annual Incentive Awards
|
26
|
|
12.2.
|
Determination of Amount of Annual Incentive Awards.
|
26
|
|
12.3.
|
Time of Payment of Annual Incentive Awards
|
27
|
|
12.4.
|
Form of Payment of Annual Incentive Awards
|
27
|
|
Section 13. Dividend Equivalents |
28
|
||
Section 14. Change in Control |
28
|
||
14.1.
|
Acceleration of Vesting
|
28
|
|
14.2.
|
Special Treatment in the Event of a Change in Control
|
28
|
|
Section 15. Amendments and Termination |
29
|
||
15.1.
|
Amendment and Termination.
|
29
|
|
15.2.
|
Previously Granted Awards
|
29
|
|
Section 16. Beneficiary Designation |
29
|
||
Section 17. Withholding |
30
|
||
17.1.
|
Required Withholding.
|
30
|
FINJAN HOLDINGS, INC.
|
|||
|
By:
|
||
Name: Philip Hartstein | |||
Its: President
|
|||
FINJAN HOLDINGS, INC.
ATTN: INVESTOR RELATIONS
122 EAST 42ND STREET, SUITE 1512
NEW YORK, NY 10168
|
VOTE BY INTERNET -
www.proxyvote.com
Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 PM Eastern Time on July 9, 2014. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form.
ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS
If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years.
VOTE BY PHONE - 1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions up until 11:59 PM Eastern Time on July 9, 2014. Have your proxy card in hand when you call and then follow the instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717.
|
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
|
|||
M76085-P53580
KEEP THIS PORTION FOR YOUR RECORDS
|
|||
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
|
DETACH AND RETURN THIS PORTION ONLY
|
FINJAN
HOLDINGS, INC.
|
For
All
|
Withhold
All
|
For All
Except
|
To withhold authority to vote for any individual nominee(s), mark “For All Except” and write the number(s) of the nominee(s) on the line below.
|
|||||||||||
The Board of Directors recommends you vote FOR the following:
|
|||||||||||||||
1. |
To elect three Class 1 directors to serve two-year terms ending in
2016 and two Class 2 directors to serve three-year terms ending in 2017;
|
o | o | o | |||||||||||
Nominees:
|
|||||||||||||||
01) Eric Benhamou (Class 1)
02) Daniel Chinn
(Class 1)
03)
Michael Southworth (Class 1)
|
04) Alex Rogers (Class 2)
05) Glenn Daniel (Class 2)
|
||||||||||||||
For
|
Against | Abstain | |||||||||||||
The Board of Directors recommends you vote FOR the following proposals:
|
For
|
Against | Abstain | 4d. |
Approval of an amendment to provide for
supermajority voting for amendments to bylaws by stockholders
|
o | o | o | |||||||
2. |
To ratify the appointment of Marcum LLP as our independent
registered public accounting firm for the fiscal year ending December 31, 2014;
|
o | o | o | 4e. |
Approval of an amendment to provide for
supermajority voting for certain amendments to the charter
|
o
|
o
|
o
|
||||||
3. |
To approve the Finjan Holdings, Inc. 2014 Incentive
Compensation Plan;
|
o | o | o | 4f. |
Approval of an amendment to provide for
supermajority voting to remove directors for cause
|
o | o | o | ||||||
4. |
To approve amendments to the Company's current certificate of
incorporation as set forth below:
|
o | o | o | 4g. |
Approval of an amendment to permit stockholder action
only at a duly called meeting and to prohibit action by written consent of stockholders
|
o | o | o | ||||||
4a. |
Approval of an amendment to decrease the number of
authorized shares of common stock from 1 billion to 80 million
|
o | o | o | 4h. |
Approval of an amendment to provide that the
Court of Chancery of the State of Delaware will be the exclusive forum for certain legal actions
|
o | o | o | ||||||
4b. |
Approval of an amendment to provide that the
board consists of between three and fifteen directors and to clarify provisions related to our board structure
|
o | o | o | 4i. |
Approval of an amendment to update provisions
relating to indemnification and personal liability of directors
|
o | o | o | ||||||
4c. | Approval of an amendment to eliminate the ability of holders of our common stock to vote on amendments relating solely to preferred stock | o | o | o | 5. |
To approve, on an advisory basis, the Company's executive
compensation; and
|
o | o | o | ||||||
Please indicate if you plan to attend this meeting.
|
o | o |
The Board of Directors recommends you vote
3 Years on the following proposal:
|
1 Year
|
2 Years | 3 Years | Abstain | ||||||||
Yes
|
No
|
||||||||||||||
6. |
To vote, on an advisory basis, on the frequency of holding
stockholder advisory votes on executive compensation.
|
o | o | o | o | ||||||||||
NOTE:
Such other business as may properly come before the meeting or any adjournment thereof.
|
|||||||||||||||
Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer.
|
|||||||||||||||
Signature [PLEASE SIGN WITHIN BOX]
|
Date
|
Signature (Joint Owners)
|
Date
|
||||||||||||
M76086-P53580
|
FINJAN HOLDINGS, INC.
Annual Meeting of Stockholders
July 10, 2014 9:00 AM (EDT)
This proxy is solicited by the Board of Directors
The stockholder(s) hereby appoint(s) Philip Hartstein and Shimon Steinmetz, or either of them, as proxies, each with the power to appoint his substitute, and hereby authorize(s) them to represent and to vote, as designated on the reverse side of this ballot, all of the shares of common stock of FINJAN HOLDINGS, INC. that the stockholder(s) is/are entitled to vote at the Annual Meeting of Stockholders to be held at 9:00 AM, EDT, on July 10, 2014, at 575 Madison Avenue, 11th Floor, New York, NY 10022, and any adjournment or postponement thereof.
This proxy, when properly executed, will be voted in the manner directed herein. If no such direction is made, this proxy will be voted in accordance with the Board of Directors' recommendations.
|
|||
Continued and to be signed on reverse side
|
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