☒ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
☐ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Delaware |
94-3336783 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
6500 River Place Boulevard, Bldg. 7, S#250 Austin, |
78730 | |
(Address of principal executive offices) |
(Zip Code) |
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
Common Stock, par value $0.001 per share |
SONM |
The Nasdaq Capital Market |
Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
Non-accelerated filer |
☒ | Smaller reporting company | ☒ | |||
Emerging growth company | ☒ |
Item 10. |
Directors, Executive Officers and Corporate Governance. |
Name |
Age |
Position | ||
Executive Officers |
||||
Peter Liu |
54 | Chief Executive Officer | ||
Robert Tirva |
56 | President, Chief Financial Officer and Chief Operating Officer | ||
Directors |
||||
John Kneuer (1)(2) |
53 | Chairman of the Board of Directors | ||
Alan Howe (1)(3) |
60 | Director | ||
Susan G. Swenson (1)(2) |
73 | Director | ||
Mike Mulica (1)(3) |
59 | Director |
(1) | Member of the Audit Committee. |
(2) | Member of the Compensation Committee. |
(3) | Member of the Nominating and Corporate Governance Committee. |
Item 11. |
Executive Compensation. |
Name and Principal Position |
Year |
Salary ($) |
Bonus ($) |
Stock Awards ($) (1) |
Option Awards ($) (1) |
Non-Equity Incentive Plan Compensation ($) |
All Other Compensation ($) |
Total ($) |
||||||||||||||||||||||||
Robert Tirva |
2021 | $ | 325,000 | $ | 400,000 | (2) |
$ | 199,999 | $ | — | $ | — | $ | — | $ | 924,999 | ||||||||||||||||
President, Chief Financial Officer and Chief Operating Officer |
2020 | $ | 300,000 | $ | 90,000 | $ | 531,252 | $ | — | $ | — | $ | — | $ | 921,252 | |||||||||||||||||
Thomas W. Wilkinson |
2021 | $ | 166,667 | $ | — | $ | — | $ | — | $ | — | $ | 440,364 | (3) |
$ | 607,031 | ||||||||||||||||
Former Chief Executive Officer |
2020 | $ | 400,000 | $ | 160,000 | $ | 475,050 | $ | — | $ | — | $ | 8,650 | (4) |
$ | 1,043,700 |
(1) | This column reflects the full grant date fair value for stock awards or options, respectively, granted during the fiscal year as measured pursuant to ASC Topic 718 as stock-based compensation in our consolidated financial statements. The grant date fair value of stock awards were based on the closing price per share of our common stock on the applicable grant date. These amounts do not necessarily correspond to the actual value that may be recognized from the stock options and stock awards by the NEOs. |
(2) | 50% of Mr. Tirva’s net (after applicable withholding taxes) bonus for 2021 was paid in fully-vested shares of our common stock awarded under our 2019 Equity Incentive Plan (233,638 shares of our common stock granted on January 27, 2022). |
(3) | Represents (a) severance benefits (including estimated cost of reimbursement of premiums to continue health insurance under COBRA for one year) of $430,714 payable to Mr. Wilkinson pursuant to his Separation and Release Agreement with the Company, and (b) $9,650 for World Presidents Organization activities to which Mr. Wilkinson was entitled pursuant to his employment agreement. |
(4) | Represents $8,650 for World Presidents Organization activities to which Mr. Wilkinson was entitled pursuant to his employment agreement. |
Name |
Grant Date |
Exercisable |
Number of Securities Underlying Unexercised Options (#) |
Option Exercise Price |
Option Expiration Date | |||||||||||
Robert Tirva |
11/1/2019 | 9,510 | (1) |
16,899 | $ | 22.60 | 10/31/2029 |
(1) | 25% of the shares of common stock underlying the option, or 4,225 shares, vested in September 2020, the first anniversary of the vesting commencement date, and the remainder will vest in 36 equal monthly installments thereafter, subject to Mr. Tirva’s continuous service through the relevant vesting dates. During the 13 months following a change in control, if we terminate Mr. Tirva’s employment without cause or if Mr. Tirva resigns for good reason, vesting of this option will accelerate in full. |
Name |
Grant Date |
Number of Shares or Units of Stock that Have Not Vested (#) |
Market Value of Shares or Units of Stock That Have Not Vested ($) (4) |
|||||||
Robert Tirva |
11/1/2019 | 4,224 | (1) |
$ | 3,894 | |||||
6/9/2020 | 34,350 | (2) |
$ | 31,664 | ||||||
9/29/2020 | 7,500 | (2) |
$ | 6,914 | ||||||
06/18/2021 | 33,495 | (3) |
$ | 30,876 |
(1) | 25% of the shares, or 2,113 shares, vested in September 2020, the first anniversary of the vesting commencement date, and the remainder will vest in 3 equal annual installments thereafter, subject to Mr. Tirva’s continuous service through the relevant vesting dates. During the 13 months following a change in control, if we terminate Mr. Tirva’s employment without cause or if Mr. Tirva’s resigns for good reason, vesting of this award will accelerate in full. |
(2) | 25% of the shares, or 13,950 shares, vested in June 2021, the first anniversary of the vesting commencement date, and the remainder will vest in 3 equal annual installments thereafter, subject to Mr. Tirva’s continuous service through the relevant vesting dates. During the 13 months following a change in control, if we terminate employment without cause or individual resigns for good reason, vesting of these awards will accelerate in full. |
(3) | 100% of the shares are scheduled to vest on June 18, 2022, subject to continuous employment thru the relevant vest date. During the 13 months following a change in control, if we terminate employment without cause or individual resigns for good reason, vesting of these awards will accelerate in full. |
(4) | Based on closing price of our common stock as reported on the Nasdaq Global Market on December 31, 2021 ($0.9218). |
Name |
Fees earned or Paid in Cash ($) |
Stock awards (1)(4) ($) |
Option awards (1) |
Total($) |
||||||||||||
Alan Howe |
$ | 50,000 | $ | 59,998 | (2) |
— | $ | 109,998 | ||||||||
John Kneuer |
$ | 64,667 | $ | 59,998 | (2) |
— | $ | 124,665 | ||||||||
Sue Swenson |
$ | 57,000 | $ | 59,998 | (2) |
— | $ | 116,998 | ||||||||
Kenny Young (5) |
— | — | — | $ | 0 | |||||||||||
Michael Mulica |
$ | 21,500 | $ | 224,349 | (3) |
— | $ | 245,849 | ||||||||
Ken Naumann (6) |
— | $ | 39,100 | (6) |
— | $ | 39,100 |
(1) | This column reflects the full grant date fair value for stock awards or options, respectively, granted during the year ended December 31, 2021 as measured pursuant to ASC Topic 718 as stock-based compensation in our consolidated financial statements. The grant date fair value of stock awards were based on the closing price per share of our common stock on the applicable grant date. These amounts do not necessarily correspond to the actual value that may be recognized from the stock awards by the non-employee directors. |
(2) | Each non-employee director was awarded 27,906 RSUs on November 12, 2021 having a grant date fair value of $59,998. |
(3) | Mr. Mulica was awarded 6,626 RSUs on June 17, 2021 for his initial appointment to the Board of Directors having a grant date fair value of $39,100, 75,000 RSUs on October 18, 2021 having a grant date fair value of $155,250, and 13,953 RSUs on November 12, 2021 having a grant date fair value of $29,999. |
(4) | As of December 31, 2021, each non-director employee held the following number of RSUs: (i) Mr. Howe (36,206); (ii) Mr. Kneuer (36,206); (iii) Ms. Swenson (36,206); and Mr. Mulica (95,579) Messrs. Young and Naumann, did not hold any RSUs at the end of fiscal 2021. As of December 31, 2021, each non-director employee held the following number stock options: (i) Mr. Howe (4,625); (ii) Mr. Kneuer (4,392); and (iii) Ms. Swenson (4,392). Messrs. Young, Mulica and Naumann did not hold any stock options at the end of fiscal 2021. |
(5) | Mr. Young declined to receive any compensation for his services as a member of the Board of Directors and any committee thereof. Mr. Young resigned from the Board of Directors effective February 3, 2022. |
(6) | Mr. Naumann was awarded 6,626 RSUs on June 17, 2021 for his initial appointment to the Board of Directors having a grant date fair value of $39,100. Mr. Naumann resigned from the Board of Directors effective July 16, 2021. |
Board Committee |
Chairperson Fee |
Member Fee |
||||||
Audit Committee |
$ | 15,000 | $ | 7,500 | ||||
Compensation Committee |
$ | 10,000 | $ | 5,000 | ||||
Nominating and Corporate Governance Committee |
$ | 7,500 | $ | 3,750 |
Item 12. |
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters. |
• | each person, or group of affiliated persons, who is known by us to own beneficially five percent or more of the outstanding shares of our common stock; |
• | each of our current directors; |
• | each of our named executive officers; and |
• | all of our current directors and executive officers as a group. |
Name and Address of Beneficial Owner |
Total |
Percent |
||||||
5% Stockholders: |
||||||||
Directors and Named Executive Officers: |
||||||||
Robert Tirva (1) |
318,875 | 1.65 | % | |||||
Tom Wilkinson |
0 | * | ||||||
John Kneuer (2) |
7,144 | * | ||||||
Alan Howe (3) |
8,266 | * | ||||||
Susan G. Swenson (4) |
6,700 | * | ||||||
Mike Mulica (5) |
6,626 | * | ||||||
Total of all Current Directors and Executive Officers |
457,184 | 2.37 | % |
* | Represents less than 1% of the outstanding shares of our common stock. |
(1) | Consists of 259,809 shares held directly by Robert Tirva, 47,445 shares subject to RSUs vesting and exercisable within 60 days of April 26, 2022 and 11,621 shares issuable upon the exercise of outstanding options held by Robert Tirva exercisable within 60 days April 26, ,2022 |
(2) | Consists of 4,014 shares held directly by John Kneuer, and 3,100 shares subject to RSUs vesting and exercisable within 60 days of April 26, 2022. |
(3) | Consists of 4,933 shares held directly by Alan Howe, 3,100 shares subject to RSUs vesting and exercisable within 60 days of April 26, 2022 and 233 shares issuable upon the exercise of outstanding options that are fully vested. |
(4) | Consists of 3,600 shares held directly by Susan Swenson, and 3,100 shares subject to RSUs vesting and exercisable within 60 days of April 26, 2022. |
(5) | Consists of 6,626 shares subject to RSUs held by Mike Mulica exercisable within 60 days of April 26, 2022. |
Plan Category |
Number of Securities to be Issued upon Exercise of Outstanding Options, Warrants and Rights (a) |
Weighted-Average Exercise Price of Outstanding Options, Warrants and Rights (b) |
Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (Excluding Securities Reflected in Column (a)) (c) |
|||||||||
Equity compensation plans approved by security holders |
442,524 | (1) |
$ | 39.9972 | (2) |
596,580 | (3) | |||||
Equity compensation plans not approved by security holders |
— | — | — | |||||||||
Total |
442,524 | $ | 39.9972 | 596,580 |
(1) | The aggregate number consists of the following: 40,738 shares subject to options to purchase common stock issued pursuant to our 2012 Equity Incentive Plan as of December 31, 2021, 54,675 shares subject to options to purchase common stock issued pursuant to our 2019 Equity Incentive Plan as of December 31, 2021, and 347,111 shares issuable upon vesting of outstanding RSUs issued pursuant to our 2019 Equity Incentive Plan as of December 31, 2021. |
(2) | This weighted average exercise price does not reflect shares that will be issued upon the vesting of outstanding RSUs. |
(3) | Includes 538,243 shares authorized for future issuance under our 2019 Equity Incentive Plan and 58,337 shares authorized for future issuance under our 2019 Employee Stock Purchase Plan as of December 31, 2021. Under 2019 Employee Stock Purchase Plan, the number of shares of common stock reserved for issuance will automatically increase on January 1 of each calendar year for 10 years, starting January 1, 2020, and ending on, and including, January 1, 2029, in an amount equal to the lesser of 1% of the total number of shares of capital stock outstanding on December 31st of the prior calendar year, and (ii) 50,000 shares, unless the Board of Directors or Compensation Committee determines prior to such date that there will be a lesser increase, or no increase. Effective January 1, 2022, 50,000 additional shares were added to the 2019 Employee Stock Purchase Plan. Under the 2019 Equity Incentive Plan, the number of shares subject to outstanding stock options or other stock awards that were granted under the 2012 Option Plan that are forfeited, terminated, expire, or are otherwise not issued are available for issuance. Additionally, the number of shares of common stock reserved for issuance under the 2019 Equity Incentive Plan will automatically increase on January 1 of each calendar year for 10 years, starting January 1, 2020 and ending on and including January 1, 2029, in an amount equal to 5% of the total number of shares of capital stock outstanding on December 31 of the prior calendar year, unless the Board of Directors or Compensation Committee determines prior to the date of increase that there will be a lesser increase, or no increase. Effective January 1, 2022, 940,444 additional shares were added to the 2019 Equity Incentive Plan. Subject to certain express limits of the 2019 Equity Incentive Plan, shares available for award purposes under the 2019 Equity Incentive Plan generally may be used for any type of award authorized under that plan, including options, stock appreciation rights, restricted stock, RSUs, performance-based stock or cash awards or other similar rights to purchase or acquire shares of our common stock. |
Item 13. |
Certain Relationships and Related Transactions, and Director Independence. |
Item 14. |
Principal Accountant Fees and Services. |
Type of Fees |
Fees for Fiscal 2021 |
Fees for Fiscal 2020 |
||||||
Audit Fees (1) |
$ | 664,250 | $ | 734,425 | ||||
Audit-Related Fees |
— | — | ||||||
Tax Fees (2) |
39,108 | 72,991 | ||||||
All Other Fees |
— | — | ||||||
Total Fees |
$ | 703,358 | $ | 807,416 | ||||
(1) | Audit Fees consist of fees for: professional services rendered for the audit of our consolidated financial statements included in our annual report, the review of our interim consolidated financial statements included in our quarterly reports and services in connection with our Registration Statements on Form S-1 and Form S-3. |
(2) | Tax Fees consist of fees for tax compliance and tax advice. |
Item 15. |
Exhibits and Financial Statement Schedules. |
1. | Financial Statements. |
2. | Financial Statement Schedules. |
3. | Exhibits. |
31.4 | Certification of Principal Financial Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | * | ||||||||||||||||
32.1† | Certification of Principal Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | 10-K |
001-38907 |
32.1 | March 21, 2022 | |||||||||||||
32.2† | Certification of Principal Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | 10-K |
001-38907 |
32.1 | March 21, 2022 | |||||||||||||
101.INS† | XBRL Instance Document | |||||||||||||||||
101.SCH† | XBRL Taxonomy Extension Schema Document | |||||||||||||||||
101.CAL† | XBRL Taxonomy Extension Calculation Linkbase Document | |||||||||||||||||
101.DEF† | XBRL Taxonomy Extension Definition Linkbase Document | |||||||||||||||||
101.LAB† | XBRL Taxonomy Extension Label Linkbase Document | |||||||||||||||||
101.PRE† | XBRL Taxonomy Extension Presentation Linkbase Document | |||||||||||||||||
104 | Cover Page Interactive Data File - formatted in Inline XBRL and contained in Exhibit 101 |
† | Included on Original Filing |
* | Filed herewith. |
** | Compensatory plan or management contract |
+ | Portion of this exhibit (indicated by asterisks) have been omitted as the Registrant has determined that (i) the omitted information is not material and (ii) the omitted information would likely cause competitive harm to the Registrant if publicly disclosed. |
Sonim Technologies, Inc. | ||||||
Date: May 2, 2022 | By: | /s/ Robert Tirva | ||||
Robert Tirva | ||||||
President, Chief Financial Officer and Chief Operating Officer ( Duly Authorized Officer ) |
Exhibit 10.16
Sonim Technologies, Inc.
April 13, 2022
Robert Tirva
Re: | Retention and Separation Agreement |
Dear Bob:
As you know, Sonim Technologies, Inc. (the “Company”) intends to enter into a Subscription Agreement (the “Subscription Agreement”) with AJP Holding Company, LLC (“AJP”) pursuant to which AJP will acquire from the Company a majority of the Company’s outstanding voting securities. This letter sets forth our agreement as to your employment with the Company through the First Closing (as such term is defined in the Subscription Agreement) and the termination of your employment on the date of the First Closing (your “Separation Date”). If for any reason the First Closing does not occur, this letter agreement will be null and void, and the provisions below will not be effective.
You and the Company hereby agree as follows:
1. | From the date hereof through your Separation Date, your employment with the Company will continue to be governed by the terms of the Employment Agreement between you and the Company, dated October 14, 2021 (the “Employment Agreement”) as modified by this letter agreement, and you agree to continue to perform your duties for the Company in good faith and to the best of your abilities over such period of time. You understand and acknowledge that it is expected that Peter Liu will be appointed the Company’s Chief Executive Officer in connection with the signing of the Subscription Agreement on or about the date hereof. You hereby agree that you will not resign for Good Reason (as defined in your Employment Agreement), and you hereby waive any right you may have to resign for Good Reason, as a result of or in connection with such appointment (including, without limitation, as a result of the reduction of your duties and responsibilities in connection with Peter Liu becoming Chief Executive Officer). |
2. | Provided that your employment does not terminate for any reason prior to such date, your employment with the Company will terminate on your Separation Date. Upon such termination and subject to your satisfying in full the severance conditions set forth in Section 6(c) of your Employment Agreement (including, without limitation, the requirement that you provide a valid release of claims to the Company), you will be entitled to receive the following severance benefits (in lieu of the severance benefits otherwise provided in your Employment Agreement): |
- 1 -
• | a cash payment in the amount of one million dollars ($1,000,000), such payment to be made in equal installments on the Company’s regular payroll schedule over a period of twenty (20) months following your Separation from Service (as defined in the Employment Agreement); provided, however, that no payments will be made prior to the thirtieth (30th) day following your Separation from Service and that, on the 30th day following your Separation from Service, the Company will pay you in a lump sum the installment payments that you would have received on or prior to such date under such schedule; and provided, further, that such payments shall be subject to applicable tax withholdings and any delay in payment that may be required pursuant to Section 409A of the U.S. Internal Revenue Code as provided in Section 8 of the Employment Agreement; |
• | full accelerated vesting of your then-outstanding and unvested stock options and other stock awards granted by the Company; and |
• | subject to your providing such consulting services as reasonably requested by the Company during the three-month period following your Separation Date (it being understood that you will receive no other consideration for such consulting services) and provided that you timely elect continued health insurance coverage under COBRA, reimbursement by the Company for your COBRA Premiums (as defined in the Employment Agreement) through the period starting on the Separation Date and ending on the earliest to occur of: (x) eighteen (18) months after the Separation Date; (y) the date you become eligible for group health insurance coverage through a new employer; or (z) the date you cease to be eligible for COBRA continuation coverage for any reason, including plan termination (and you agree to immediately notify the Company in writing if you become covered under another employer’s group health plan or otherwise cease to be eligible for COBRA during such 18-month period). |
The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company expressly to assume and agree to perform this letter agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken place. This letter agreement will be binding upon and inure to the benefit of the Company and any such successor to the Company and will inure to the benefit of and be enforceable by your successors.
Nothing contained in this letter agreement constitutes an employment or service commitment by the Company (or any of its subsidiaries or successors) or affects your status as an employee at will who is subject to termination without cause at any time. This letter agreement may be amended only by a written agreement between you and the Company that expressly refers to this letter agreement. The validity, interpretation, construction and performance of this letter agreement shall be governed by the laws of the State of California without regard to the conflicts of laws principles thereof.
- 2 -
Except as expressly provided above, the Employment Agreement shall remain in full force and effect in accordance with its current terms. This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
If this letter accurately sets forth our mutual understanding with respect to the foregoing matters, please indicate your acceptance by signing this letter and returning it to any member of the Board of Directors of the Company. A duplicate copy of this letter is included for your records.
[Signature Page to follow]
- 3 -
IN WITNESS WHEREOF, the undersigned parties have executed this letter agreement as of the date first above written.
Sonim Technologies, Inc. | ||
By: | /s/ Alan Howe | |
Print Name: Alan Howe | ||
Title: Director |
Accepted and Agreed: |
/s/ Robert Tirva |
Robert Tirva |
- 4 -
Exhibit 10.17
July 31, 2013
Mr. Peter Liu (Hau Liu, BA 528459)
Re: Employment Agreement
Dear Peter:
This letter agreement (the “Agreement”) confirms the revised terms of your employment with Sonim Technologies, Inc., and Sonim Technologies (Shenzhen) Ltd. (together the “Company” or “Sonim”). This Agreement and these employment terms supersede and replace in their entirety any and all previous promises, representations or agreements on the subjects covered herein, including (without limitation) your offer letter from the Company dated July 28, 2010, and as amended on August 24, 2011 and October 24, 2011 (the “Offer Letter”),
1. | Position and Duties. You will serve as the Company’s Senior Vice President and Country Manager of Greater China. You will report to the Chief Executive Officer of the Company (the “CEO”). You will work at our facility located in Shenzhen, China. Of course, Sonim may change your position, duties, and work location from time to time, as it deems necessary. You will devote your full business time and attention to the business affairs of the Company, except for reasonable vacations and periods of illness or incapacity. As a Sonim employee, you will be expected to abide by Company rules and policies and to acknowledge in writing that you have read the Company’s Employee handbook. |
2. | Compensation and Benefits. |
a. | Base Salary. You will receive an annual salary of RMB 105,147 monthly (RMB 1,261,770 annualized), less required and designated payroll deductions and withholdings, and payable according to the Company’s regular payroll schedule as follows: |
i. | Base: RMB 420,085 in gross, you need to pay your individual income tax to China local tax authority by yourself |
ii. | Bonus Advance for Child’s Tuition: RMB 240,000 |
iii. | Allowance: RMB 511,685 Allowance for Medical and Life Insurance: RMB 90,000 |
b. | Benefits. You will be eligible to participate in the Company’s standard employee benefits pursuant to the terms, conditions and limitations of the applicable benefit plans. |
c. | Cash Bonus Plan. As a member of senior management of the Company, you will be eligible to participate under the Company’s Cash Bonus Plan, the terms of which are set forth on Exhibit A attached hereto. |
d. | Equity Incentive Compensation. Subject to approval by the Board of Directors of the Company (the “Board”), the Company will grant you a new equity award (the “New Equity Award”) pursuant to the Sonim Technologies, Inc. 2012 Equity Incentive Plan (the “Plan) for shares of the Company’s common stock which together with your outstanding Sonim stock options will provide you common stock equity rights that equal approximately 0.75% of the Company’s fully-diluted capitalization as of the date of grant. The New Equity Award, if granted by the Board, shall be subject to the terms and conditions of the Plan, any amendments thereto, and the applicable grant notice and award agreement. |
3. | Proprietary Information Agreement and Company Policies. At the time of commencement of your employment, you executed an Employment, Confidential Information and Invention Assignment Agreement with the Company (the “Proprietary Information Agreement”), a copy of which is attached hereto as Exhibit A. You acknowledge and agree that you continue to be required to comply with the Proprietary Information Agreement as a condition of your continued employment. In addition, you agree that you will continue to comply with the Company’s policies and procedures generally regarding proprietary and confidential information and otherwise as are in effect from time to time. |
4. | No Conflicts. During the term of your employment with the Company, except on behalf of the Company, you agree not to directly or indirectly, whether as an officer, director, employee, stockholder, partner, proprietor, associate, representative, consultant, agent, or in any capacity whatsoever, engage in, become financially interested in, be employed by or have any business connection with any other person, corporation, firm, partnership or other entity whatsoever which is known by you to compete directly with the Company, throughout the world, in any line of business engaged in (or planned to be engaged in) by the Company; provided, however, that you may own, as a passive investor, securities of any publicly-held competitor corporation, so long as your direct holdings in any one such corporation shall not in the aggregate constitute more than 1% of the voting stock of such corporation. |
5. | At-Will Employment Relationship. Your employment relationship continues to be terminable at will, and either you or the Company may terminate your employment relationship at any time, with or without Cause (defined below), and with or without advance notice. In addition, the Company may modify the other terms and conditions of your employment, including, but not limited to, compensation, benefits, position, title, reporting relationship and office location, from time to time in its sole discretion. Your at-will employment relationship can only be changed in a written agreement signed by you and the CEO or by a duly authorized member of the Board. |
6 | Severance Benefits. |
a. | Termination by the Company without Cause; Termination Due to Death or Disability; Resignation for Good Reason. If at any time prior to a Change in Control (defined below), or more than thirteen (13) months after a Change in Control, the Company terminates your employment without Cause, or your employment terminates due to your death or permanent disability, or you resign for Good Reason (defined below), and provided such termination constitutes a “separation from service” (as defined under Treasury Regulation Section 1.409A-l(h), without regard to any alternative definition thereunder, a “Separation from Service”), then subject to your obligations below, the Company will make severance payments to you in the form of salary continuation payments for a period of four (4) months at the rate of your base salary in effect as of your termination date, less required and designated payroll deductions and withholdings. |
b. | Termination by the Company without Cause, or Resignation for Good Reason, Following Change in Control. If at any time within thirteen (13) months after a Change in Control, the Company terminates your employment without Cause or you resign for Good Reason, and provided such termination constitutes a Separation from Service, then subject to your obligations below, the Company will provide you with the following severance benefits: |
i. | the Company will make severance payments to you in the form of salary continuation payments for a period of three (3) months at the rate of your base salary in effect as of your termination date, less required and designated payroll deductions and withholdings; and |
ii. | the vesting of your then-outstanding Company stock options/ awards as of your termination date shall be accelerated such that the stock option/ award shares that would have vested had you remained employed for two years following the date of your termination shall vest and become immediately exercisable as of your termination date. If you receive the severance benefits under this Section 6(b), you shall not be eligible for any other severance benefits, including those set forth in Section 6(a). |
c. | The severance benefits described above are conditional upon (a) your continuing to comply with your obligations under your Proprietary Information Agreement; and (b) your delivering to the Company an effective, general release of claims in favor of the Company in a form acceptable to the Company within 30 days following your Separation from Service. The salary continuation payments will be paid in equal installments on the Company’s regular payroll schedule and will be subject to applicable tax withholdings over the period outlined above following the date of your Separation from Service; provided, however, that no payments will be made prior to the 30th day following your Separation from Service. On the 30th day following your Separation from Service, the Company will pay you in a lump sum the salary continuation payments that you would have received on or prior to such date under the original schedule but for the delay while waiting for the 30th day in compliance with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the effectiveness of the release, with the balance of the salary continuation payments being paid as originally scheduled. |
7. | Termination By The Company With Cause; Resignation Not for Good Reason. If at any time the Company terminates your employment with Cause or you resign from your employment without Good Reason then you shall not be entitled to any severance pay, severance benefits, or any compensation or benefits from the Company whatsoever following the termination of your employment, except as required by law. |
8. | Definitions. |
a. | Cause. For purposes of this Agreement, “Cause” is defined as any of the following: (i) theft, dishonesty, or falsification of any employment or Company record; (ii) conviction (including any plea of guilty or nolo contendere) of a felony or any criminal act that impairs your ability to perform your duties with the Company; (iii) failure or inability to perform any reasonable assigned duties after notice from the Company of, and a reasonable opportunity to cure, such failure or inability, if capable of cure; (iv) improper disclosure of the Company’s confidential or proprietary information; (v) commission of an intentional or grossly negligent act that has a material detrimental effect on the Company’s reputation or business; or (vi) any material breach of any written agreement with the Company, which breach is not cured pursuant to the terms of such agreement, if capable of cure, or a material breach of a confidentiality or proprietary information and inventions agreement, which breach shall be deemed noncurable. |
b. | Good Reason. For purposes of this Agreement, you will have “Good Reason” for your resignation from your employment with the Company if any of the following actions are taken by the Company without your express written consent: |
i. | any failure by the Company to pay, or any material reduction by the Company of (a) your base salary in effect immediately prior to such failure to pay or reduction (unless reductions comparable in amount and duration are concurrently made generally for employees of the Company with responsibilities, organizational level and title comparable to your own), or (b) your bonus compensation amount eligibility, if any, in effect immediately prior to the date of such failure to pay or such reduction (subject to applicable performance requirements with respect to the actual amount of bonus compensation you earn); |
ii. | the assignment of any duties, or the reduction of your responsibilities or duties, that are materially inconsistent with your position, duties, responsibilities and status with the Company immediately prior to such assignment or reduction; provided, however, that your assignment to an operating division of an acquiring company that includes the business of the Company following an acquisition, pursuant to which your duties are commensurate with the duties you had before the acquisition, except that the business of the Company is no longer independent but contained in a division, shall not be deemed a material reduction of your responsibilities, duties, or status hereunder and your resignation in connection therewith shall not be deemed for “Good Reason;” or |
iii. | the relocation of your principal place of employment to a location that is more than fifty (50) miles from your current work location. |
provided, however, that to resign for Good Reason, you must (1) provide written notice to the CEO within 30 days after the first occurrence of the event giving rise to Good Reason setting forth the basis for your resignation, (2) allow the Company at least 30 days from receipt of such written notice to cure such event, and (3) if such event is not reasonably cured within such period, your resignation from all positions you then hold with the Company is effective not later than 90 days after the expiration of the cure period. |
c. | Change in Control. For purposes of this Agreement, a “Change in Control” is defined as the consummation of an “Acquisition” or “Asset Transfer” as defined in the Company’s then-current Amended and Restated Certificate of Incorporation. |
9. | Code Section 409A. It is intended that all of the benefits and payments under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Code Section 409A provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and this Agreement will be construed to the greatest extent possible as consistent with those provisions. If not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Code Section 409A, and incorporates by reference all required definitions and payment terms. For purposes of Code Section 409A (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), your right to receive any installment payments under this Agreement (whether severance payments, reimbursements or otherwise) will be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder will at all times be considered a separate and distinct payment. Notwithstanding any provision to the contrary in this Agreement, if you are deemed by the Company at the time of your Separation from Service to be a “specified employee” for purposes of Code Section 409A(a)(2)(B)(i), and if any of the payments upon Separation from Service set forth herein and/or under any other agreement with the Company are deemed to be “deferred compensation”, then if delayed commencement of any portion of such payments is required to avoid a prohibited distribution under Code Section 409A(a)(2)(B)(i) and the related adverse taxation under Section 409A, the timing of the payments upon a Separation from Service will be delayed as follows: on the earlier to occur of (i) the date that is six months and one day after the effective date of your Separation from Service, and (ii) the date of the your death (such earlier date, the “Delayed Initial Payment Date”), the Company will (A) pay to you a lump sum amount equal to the sum of the payments upon Separation from Service that you would otherwise have received through the Delayed Initial Payment Date if the commencement of the payments had not been delayed pursuant to this paragraph, and (B) commence paying the balance of the payments in accordance with the applicable payment schedules set forth above. No interest will be due on any amounts so deferred. |
10. | Entire Agreement. This Agreement, including the Proprietary Information Agreement, constitutes the complete, final and exclusive embodiment of the entire agreement between you and the Company with respect to the terms and conditions of your employment. If you enter into this Agreement, you are doing so voluntarily, and without reliance on any promise, warranty, representation or agreement, written or oral, other than those expressly contained herein. This Agreement supersedes any and all promises, warranties, representations or agreements, whether oral or written, including the Offer Letter. This Agreement may not be amended or modified except by a written instrument signed by you and the CEO or a duly authorized member of the Board. |
11. | Enforceability. If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination will not affect any other provision of this Agreement, and the Agreement, including the invalid or unenforceable provisions, shall be enforced insofar as possible to achieve the intent of the parties. |
12. | Binding Nature. This Agreement will be binding upon and inure to the benefit of the personal representatives and successors of the respective parties hereto. |
13. | Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to conflicts of law principles. |
14. | Miscellaneous. With respect to the enforcement of this Agreement, no waiver of any right hereunder shall be effective unless it is in writing. For purposes of construction of this Agreement, any ambiguity shall not be construed against either party as the drafter. This Agreement may be executed in more than one counterpart, and signatures transmitted via facsimile shall be deemed equivalent to originals. |
If these revised terms of your employment with Sonim are acceptable to you, please sign this Agreement and return it to me.
Sincerely, |
Sonim Technologies, Inc. |
/s/ Robert J. Plaschke |
Robert J. Plaschke |
Chief Executive Officer |
Understood and agreed to: |
/s/ Peter Liu |
Peter Liu |
12-08-2013 |
Date |
EXHIBIT A: CASH BONUS PLAN
A. | Subject to the discretion of the Board of Directors of the Company (the “Board”), you will be eligible for an annual Bonus that will be based upon the “Cash Result” (as defined below) performance of the Company and the following guidelines: |
Year |
Target Bonus | Cash Result Target | ||||||
2013 |
$ | 60,000 | $ | 8.4M | ||||
2014, beyond |
$ | 60,000 | [TBD | ] |
“Cash Result” (or Cash from Operations) is defined as
• | Operating Profit |
• | Add back: depreciation and amortization |
• | Less: Capitalized NRE expenditure and Fixed Asset purchases |
B. | The Board will determine the actual bonus to which you are entitled each year using the following formula as a guideline: |
i. | Calculating a fraction (“Fraction”), the numerator of which is that year’s actual Cash Result and the denominator of which is that year’s Cash Result Target. |
ii. | Setting the Percentage Pay-Out = the Fraction, limited so the minimum value is zero and the maximum value is 2. |
iii. | Multiplying the Percentage Pay-Out by that year’s Target Bonus. |
C. | The Company’s Cash Result for each year shall be approved by the Board as soon as practicable following completion of the respective year-end audit (the date of such determination, the “Determination Date”). The company’s Cash Result Targets for 2014 and beyond will be approved by the Board annually, which approval is expected to occur prior to January 31 each year. |
D. | If approved, bonus payments will be made annually and in accordance with Company’s standard policies and procedures. Payment shall be conditioned on (1) you being in the Company’s continuous service through the relevant year’s Determination Date and (2) Sonim maintaining a minimum cash balance of $10M at the end of the fiscal quarter immediately preceding the respective Determination Date. In the event any approved bonus amounts are not paid pursuant to the foregoing subsection (2), such amounts shall be paid to you when and if Sonim achieves a cash balance in excess of $10M, at which time you must be in the Company’s continuous service to earn and receive such bonus payment. |
E. | The Company will deduct from any bonus payment approved by the Board in any given year the amount of the Bonus Advance for Child’s Tuition paid in such year. |
Exhibit 10.18
February 01, 2016
Mr. Peter Liu
(Hau Liu, BA 528459)
Re: Offer Letter Amendment.
Dear Peter:
Sonim Technologies, Inc. (“Sonim” or the “Company”) is pleased to offer you a salary increase and change in your title to Executive Vice President of Global Operations, to demonstrate the Company’s appreciation of the hard work and dedication that you have provided during your employment.
This amendment will be effective from February 15, 2016 your compensation will be $21,083.33 per month ($253,000.00 annualized), less payroll deductions and all required withholdings.
• | Additional (a) Severance Benefits, (b) Termination by Company with Cause; Resignation Not for Good Reason, and (c) Definitions (see attached EXHIBIT A) |
The terms as specifically set forth herein and to the extent not inconsistent herewith, all terms and conditions of the Offer Letter dated July 31, 2013 (‘Offer Letter”) shall remain in full force and effect.
We look forward to continuing our productive and enjoyable work relationship.
Sincerely,
SONIM TECHNOLOGIES, INC. |
/s/ Richard Long |
Richard Long |
CFO |
Accepted: |
/s/ Peter Liu |
Peter Liu |
EXHIBIT A
1. | Severance Benefits. |
a. | Termination by the Company without Cause; Termination Due to Death or Disability; Resignation for Good Reason. If at any time prior to a Change in Control (defined below), or more than thirteen (13) months after a Change in Control, the Company terminates your employment without Cause, or your employment terminates due to your death or permanent disability, or you resign for Good Reason (defined below), and provided such termination constitutes a “separation from service” (as defined under Treasury Regulation Section 1.409A-l(h), without regard to any alternative definition thereunder, a “Separation from Service”), then subject to your obligations below, the Company will make severance payments to you in the form of salary continuation payments for a period of six (6) months at the rate of your base salary in effect as of your termination date, less required and designated payroll deductions and withholdings. |
b. | Termination by the Company without Cause, or Resignation for Good Reason, Following Change in Control. If at any time within thirteen (13) months after a Change in Control, the Company terminates your employment without Cause or you resign for Good Reason, and provided such termination constitutes a Separation from Service, then subject to your obligations below, the Company will provide you with the following severance benefits: |
i. | the Company will make severance payments to you in the form of salary continuation payments for a period of six (6) months at the rate of your base salary in effect as of your termination date, less required and designated payroll deductions and withholdings; and |
ii. | the vesting of your then-outstanding Company stock options/ awards as of your termination date shall be accelerated such that the stock option/ award shares that would have vested had you remained employed for two years following the date of your termination shall vest and become immediately exercisable as of your termination date. If you receive the severance benefits under this Section 6(b), you shall not be eligible for any other severance benefits, including those set forth in Section 6(a). |
c. | The severance benefits described above are conditional upon (a) your continuing to comply with your obligations under your Proprietary Information Agreement; and (b) your delivering to the Company an effective, general release of claims in favor of the Company in a form acceptable to the Company within 30 days following your Separation from Service. The salary continuation payments will be paid in equal installments on the Company’s regular payroll schedule and will be subject to applicable tax withholdings over the period outlined above following the date of your Separation from Service; provided, however, that no payments will be made prior to the 30th day following your Separation from Service. On the 30th day following your Separation from Service, the Company will pay you in a lump sum the salary continuation payments that you would have received on or prior to such date under the original schedule but for the delay while waiting for the 30th day in compliance with Section 409A of the Internal Revenue code of 1986, as amended (the “Code”) and the effectiveness of the release, with the balance of the salary continuation payments being paid as originally scheduled. |
2. | Termination by The Company with Cause; Resignation Not for Good Reason. If at any time the Company terminates your employment with Cause or you resign from your employment without Good Reason then you shall not be entitled to any severance pay, severance benefits, or any compensation or benefits from the Company whatsoever following the termination of your employment, except as required by law. |
3. | Definitions. |
a. | Cause. For purposes of this Agreement, “Cause” is defined as any of the following: (i) theft, dishonesty, or falsification of any employment or Company record; (ii) conviction (including any plea of guilty or nolo contendere) of a felony or any criminal act that impairs your ability to perform your duties with the Company; (iii) failure or inability to perform any reasonable assigned duties after notice from the Company of, and a reasonable opportunity to cure, such failure or inability, if capable of cure; (iv) improper disclosure of the Company’s confidential or proprietary information; (v) commission of an intentional or grossly negligent act that has a material detrimental effect on the Company’s reputation or business; or (vi) any material breach of any written agreement with the Company, which breach is not cured pursuant to the terms of such agreement, if capable of cure, or a material breach of a confidentiality or proprietary information and inventions agreement, which breach shall be deemed non-curable. |
b. | Good Reason. For purposes of this Agreement, you will have “Good Reason” for your resignation from your employment with the Company if any of the following actions are taken by the Company without your express written consent: |
i. | any failure by the Company to pay, or any material reduction by the Company of (a) your base salary in effect immediately prior to such failure to pay or reduction (unless reductions comparable in amount and duration are concurrently made generally for employees of the Company with responsibilities, organizational level and title comparable to your own), or (b) your bonus compensation amount eligibility, if any, in effect immediately prior to the date of such failure to pay or such reduction (subject to applicable performance requirements with respect to the actual amount of bonus compensation you earn); |
ii. | the assignment of any duties, or the reduction of your responsibilities or duties, that are materially inconsistent with your position, duties, responsibilities and status with the Company immediately prior to such assignment or reduction; provided, however, that your assignment to an operating division of an acquiring company that includes the business of the Company following an acquisition, pursuant to which your duties are commensurate with the duties you had before the acquisition, except that the business of the Company is no longer independent but contained in a division, shall not be deemed a material reduction of your responsibilities, duties, or status hereunder and your resignation m connection therewith shall not be deemed for “Good Reason;” or |
iii. | the relocation of your principal place of employment to a location that is more than fifty (50) miles from the County of San Mateo in the State of California; |
provided, however, that to resign for Good Reason, you must (1) provide written notice to the CEO within 30 days after the first occurrence of the event giving rise to Good Reason setting forth the basis for your resignation, (2) allow the Company at least 30 days from receipt of such written notice to cure such event, and (3) if such event is not reasonably cured within such period, your resignation from all positions you then hold with the Company is effective not later than 90 days after the expiration of the cure period.
c. | Change in Control. For purposes of this Agreement, a “Change in Control” is defined as the consummation of an “Acquisition” or “Asset Transfer” as defined in the Company’s then-current Amended and Restated Certification of Incorporation. |
Exhibit 10.19
Sonim Technologies, Inc.
April 13, 2022
Mr. Peter Liu
Re: | Amendment of Offer Letter |
Dear Peter:
You are a party to an offer letter with Sonim Technologies, Inc. (the “Company”) dated July 31, 2013 (the “Original Offer Letter”), as amended by a letter agreement between you and the Company dated February 1, 2016 (the “First Amendment” and together with the Original Offer Letter, the “Offer Letter”). Reference is made to that certain Subscription Agreement, dated on or around the date hereof, by and between the Company and AJP Holding Company, LLC (the “Subscription Agreement”). This letter agreement amends the Offer Letter as set forth below:
1. | Effective as of the execution of the Subscription Agreement by the Company and AJP Holding Company, LLC, you will serve the Company as its Chief Executive Officer, reporting to the Company’s Board of Directors. |
2. | For clarity, your place of employment is the Company’s principal executive offices and your current annual salary and target annual bonus shall remain unchanged. |
3. | If the Subscription Agreement is terminated in accordance with its terms prior to the First Closing (as defined in the Subscription Agreement) (the “Termination Event”), effective on the date of such Termination Event (if ever), you will automatically cease to serve the Company as its Chief Executive Officer and shall revert back to serving the Company in your title as Executive Vice President of Global Operations (the “Title Change”). If a Termination Event occurs, you hereby acknowledge and agree that you shall not be entitled to any severance or other similar benefits in connection with the Termination Event, including, without limitation, any such benefits provided in Section 6 of the Offer Letter (as amended by the First Amendment), and the Title Change shall not constitute a termination of your employment by or with the Company and shall not be a basis for you to claim that you are resigning from your employment with the Company for Good Reason (as defined in the Offer Letter). |
The Offer Letter, as amended by this letter agreement, continues in full force and effect.
[Remainder of Page Intentionally Left Blank]
Please acknowledge your agreement with the foregoing by signing this letter agreement where indicated below.
Sincerely,
|
Sonim Technologies, Inc. |
/s/ Robert Tirva |
Robert Tirva |
President, Chief Financial Officer and Chief |
Operating Officer |
ACKNOWLEDGED AND AGREED: |
/s/ Peter Liu |
Peter Liu |
Exhibit 31.3
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
PURSUANT TO RULE 13a-14(a) UNDER SECURITIES EXCHANGE ACT OF 1934
I, Peter Liu, certify that:
1. | I have reviewed this Amendment No. 1 to the Annual Report on Form 10-K/A of Sonim Technologies, Inc. (the “registrant”) for the year ended December 31, 2021; and |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report. |
Date: May 2, 2022
/s/ Peter Liu |
Peter Liu |
Chief Executive Officer (Principal Executive Officer) |
Exhibit 31.4
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
PURSUANT TO RULE 13a-14(a) UNDER SECURITIES EXCHANGE ACT OF 1934
I, Robert Tirva, certify that:
1. | I have reviewed this Amendment No. 1 to the Annual Report on Form 10-K/A of Sonim Technologies, Inc. (the “registrant”) for the year ended December 31, 2021; and |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report. |
Date: May 2, 2022
/s/ Robert Tirva |
Robert Tirva |
President, Chief Financial Officer and Chief Operating Officer (Principal Financial Officer) |