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0000948708
0000948708
2021-10-04
2021-10-04
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 6, 2021 (October 4, 2021)
Smith Micro Software, Inc.
(Exact name of Registrant as Specified in Its Charter)
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Delaware
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001-35525
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33-0029027
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(State or Other Jurisdiction
of Incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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5800 Corporate Drive
Pittsburgh, PA
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15237
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant’s Telephone Number, Including Area Code: (412) 837-5300
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):
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☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange on which registered
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Common Stock, par value $0.001 per share
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SMSI
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NASDAQ
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
(b) On October 6, 2021, as described more fully below, Smith Micro Software, Inc. (the “Company”), announced that Mr. James M. Kempton has been appointed as the Company’s Vice President and Chief Financial Officer, effective November 3, 2021. On such date, Mr. Michael K. Fox, who currently serves as the Company’s Interim Chief Financial Officer will step down from that role. Mr. Fox’s departure from the role is consistent with the Company’s previously announced process wherein it established the interim position while it conducted its search for a successor chief financial officer, and is not related to any issues regarding financial disclosures or accounting matters.
(c) As stated above, on October 6, 2021, the Company announced that Mr. Kempton has been appointed as the Company’s Vice President and Chief Financial Officer, effective November 3, 2021. Effective as of such date, Mr. Kempton will also serve as the Company’s Treasurer, as well as its principal financial officer and principal accounting officer.
Mr. Kempton, age 46, has served as Controller and principal accounting officer of L.B. Foster Company, a leading provider of products and services for the rail industry and solutions to support critical infrastructure projects, since February 2020. From August 2018 to January 2020, Mr. Kempton served as Executive Vice President and Chief Financial Officer of Caliburn International, a global provider of professional services and solutions to the federal government. Prior thereto, from October 2013 to August 2018, Mr. Kempton was employed by Michael Baker International, a global provider of engineering and professional services, serving as its Executive Vice President and Chief Financial Officer from July 2016 to August 2018, and prior thereto as its Senior Vice President and Corporate Controller from March 2015 to July 2016, and prior thereto as its Vice President and Corporate Controller, from October 2013 to March 2015. Prior to his service at Michael Baker International, Mr. Kempton served in successive financial leadership roles at Michael Baker Corporation from January 2007 to October 2013, which most recently included service as the company’s Vice President, Corporate Controller and Treasurer and its principal accounting officer. Earlier in his career, Mr. Kempton held successive roles at Ernst & Young, LLP. Mr. Kempton holds a Bachelor of Arts degree from Thiel College and is a certified public accountant.
There are no arrangements or understandings between Mr. Kempton and any other persons pursuant to which Mr. Kempton was selected as the Vice President and Chief Financial Officer of the Company. There are no family relationships between Mr. Kempton and any director or executive officer of the Company, and Mr. Kempton has no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), nor are any such transactions currently proposed.
In connection with Mr. Kempton’s appointment, on October 4, 2021, the Company entered into an offer letter (the “Offer Letter”) with Mr. Kempton, which provides that he will receive an annual base salary of $275,000, and will be eligible to participate in the Company’s discretionary corporate incentive bonus program with annual targeted bonus of $100,000, a discretionary cash bonus program with targeted annual bonus amount of $40,000, and, subject to compensation committee approval, an annual restricted stock award grant targeted at 100,000 restricted shares of Company common stock. Mr. Kempton will also receive an initial grant of 20,000 fully vested shares of Company common stock at the time he begins his employment. Mr. Kempton will be eligible to participate in the Company’s standard benefits programs. A copy of the Offer Letter is attached hereto as Exhibit 10.1 and is incorporated by reference herein.
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Item 7.01
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Regulation FD Disclosure
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The Company issued a press release on October 6, 2021 announcing the appointment of Mr. Kempton to the positions set forth above in Item 5.02, a copy of which is furnished as Exhibit 99.1 and incorporated by reference into this Item 7.01.
The information presented in Item 7.01 of this Current Report on Form 8-K and the accompanying press release shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, unless the Company specifically states that the information is to be considered “filed” under the Exchange Act or specifically incorporates it by reference into a filing under the Securities Act or the Exchange Act.
Item 9.01. Financial Statements and Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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Smith Micro Software, Inc.
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Date: October 6, 2021
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By:
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/s/ William W. Smith, Jr.
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William W. Smith, Jr.
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President and Chief Executive Officer
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EXHIBIT 10.1
September 30, 2021
James M. Kempton, CPA
Dear Jim:
On behalf of Smith Micro Software, Inc. (“Smith Micro” or the “Company”) it is a pleasure to extend to you an offer of employment as Vice President and Chief Financial Officer. If you accept this offer, you will begin work on November 3, 2021 and report to Bill Smith, President and CEO of Smith Micro.
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This is a full-time, exempt position with a salary of $ 11,458.34 per semi-monthly pay period, or when annualized $275,000.00 per year.
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Vacation accrual to begin at twenty-five (25) days annually and follow company policy.
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You will be eligible for a discretionary annual cash bonus of $40,000.00. This annual amount, which is measured and paid quarterly, is a discretionary cash bonus and will be effective for the fourth quarter of 2021, which represents one quarter or $10,000.00. You are required to have active employment in good standing (i.e., continue to work productively and not resign or commit any act that would constitute “cause,” as determined by the Company) as of the last day of the last full payroll period each quarter to earn and receive payment.
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You will be eligible to participate in Smith Micro’s discretionary Corporate Incentive Bonus program beginning with our fourth quarter, which begins October 1, 2021. Your annual target bonus amount is $100,000.00, and your actual bonus earned will be calculated and paid quarterly based upon the corporation’s achievement of set goals for revenue and operating expense. Note that your fourth quarter bonus amount may be prorated based on your actual start date of employment.
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Sign-on grant of 20,000 immediately vested shares pursuant to the Company’s 2015 Omnibus Equity Incentive Plan, as amended (the “Plan”).
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Subject to annual compensation committee approval, targeted annual restricted stock award (RSA) grant of 100,000 restricted shares pursuant to the Plan. RSAs are typically subject to time-based and performance-based vesting.
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The details, terms, and conditions of your grants, including vesting provisions as applicable, will be included in the applicable award agreement executed pursuant to the Plan. The award agreement associated with your initial sign-on grant will be provided to you within 30 days of the date on which your employment with the Company begins.
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Smith Micro Software, Inc. | 5800 Corporate Drive, 5th Floor, Pittsburgh, PA 15237, USA | phone: 412.837.5300 | www.smithmicro.com
September 30, 2021
Smith Micro Offer Letter - James M. Kempton, CPA
Page 2 of 3
Also, in accordance with the Smith Micro Employee Handbook, you will receive our standard benefits package, including medical, dental, vision, short-term disability, long-term disability and life insurance coverage. You will be eligible to participate in our 401(k) and Section 125 (Flexible Spending Account) plans. Note that the precise benefits provided by the Company may change over time, at the Company's discretion. You will be notified of any changes no later than the date they become effective.
This offer of employment is not for any definite period of time and all employment with the Company is “at-will.” This means that it can be terminated by you or by the Company at any time, with or without advance notice, and for any or no particular reason or cause. It also means that your job duties, title and responsibility and reporting level, compensation and benefits, as well as the Company’s personnel policies and procedures, may be changed with or without notice at any time in the sole discretion of the Company. This “at-will” nature of your employment shall remain unchanged during your tenure as an employee and may not be changed, except in an express writing signed by you and by the Company’s Chief Executive Officer.
This offer, and any employment pursuant to this offer, is conditioned upon the following:
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As authorized by you, the completion of a background check and pre-employment drug test with satisfactory results.
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As required by law, your ability to provide satisfactory documentary proof of your identity and right to work in the United States of America no later than the third day after you commence working for the Company. Please let me know if you need a list of acceptable USCIS Form I-9 documentation.
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Your signed agreement to, and ongoing compliance with, the terms of our standard Employee Proprietary Information and Inventions Agreement without modification.
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Your return of a copy of this letter, after being signed by you without modification, as instructed no later than 10/8/2021, after which time this offer will expire. By signing and accepting this offer, you represent and warrant that you are not subject to any pre-existing contractual or other legal obligation with any person, company or business enterprise which may be an impediment to your employment with, or your providing services to, the Company, as its employee. If you accept employment, you may not either bring onto Company premises or use in any manner any confidential or proprietary information developed, used or disclosed to you while you were employed by any company or entity.
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September 30, 2021
Smith Micro Offer Letter - James M. Kempton, CPA
Page 3 of 3
If you accept this offer, this letter and the written agreements referenced in this letter shall constitute the complete agreement between you and the Company with respect to the terms and conditions of your employment. Any representations not contained in this letter, or contrary to those contained in this letter (whether written or oral), that may have been made to you are expressly superseded by this offer. Except as otherwise specified in this letter, the terms and conditions of your employment pursuant to this letter may not be changed, except by a writing issued by the Chief Executive Officer of the Company.
We look forward to you accepting this offer and a mutually rewarding relationship. As with any important decision, you should rely on your own independent investigation and judgment concerning the Company and its future prospects.
To indicate your acceptance of this offer, date, and sign in the space below.
We at Smith Micro look forward to working with you.
Sincerely,
/s/ Angel Hermes
Angel Hermes
Global Director, Human Resources
I accept this offer of employment as outlined above:
/s/ James M. Kempton10/04/2021
James M. Kempton, CPADate
EXHIBIT 99.1
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IR INQUIRIES:
Charles Messman
Investor Relations
949-362-5800
IR@smithmicro.com
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Smith Micro Appoints James Kempton as New Chief Financial Officer
PITTSBURGH, PA, October 6, 2021 – Smith Micro Software, Inc. (NASDAQ:SMSI), today announced the appointment of James M. Kempton as its new Chief Financial Officer, effective November 3, 2021. Kempton joins Smith Micro from L.B. Foster Company where he serves as Corporate Controller and Principal Accounting Officer.
“We are very pleased to announce Jim’s appointment as our new CFO,” said William W. Smith, Jr., President and CEO of Smith Micro. “Jim brings a successful track record of proven leadership and extensive expertise and experience in financial matters that will help continue to drive Smith Micro’s strong business case.”
Prior to joining L.B. Foster in February 2020, Kempton served as Executive Vice President and CFO at Caliburn International of Reston, Virginia. Prior to that he held successive executive leadership positions at Michael Baker International and Michael Baker Corporation, both based in Pittsburgh. Mr. Kempton began his career with Ernst and Young, one of the largest professional services firms in the world.
Mr. Smith added, “I also want to thank Michael Fox, who will continue to serve as interim CFO until Jim’s arrival."
Smith Micro Appoints James Kempton as New Chief Financial OfficerPage 2 of 2
Mr. Kempton will succeed Michael Fox, who has served as Smith Micro’s Interim Chief Financial Officer since September 2021. Mr. Fox joined Smith Micro in August 2021 as Interim Vice President Finance, after former CFO Tim Huffmyer announced his resignation.
About Smith Micro Software, Inc.
Smith Micro develops software to simplify and enhance the mobile experience, providing solutions to some of the leading wireless service providers and cable MSOs around the world. From enabling the family digital lifestyle to providing powerful voice messaging capabilities, our solutions enrich today’s connected lifestyles while creating new opportunities to engage consumers via smartphones and consumer IoT devices. The Smith Micro portfolio also includes a wide range of products for creating, sharing and monetizing rich content, such as visual voice messaging, optimizing retail content display and performing analytics on any product set. For more information, visit www.smithmicro.com.
Smith Micro and the Smith Micro logo are registered trademarks or trademarks of Smith Micro Software, Inc. All other trademarks and product names are the property of their respective owners.
Forward-Looking Statements
Certain statements in this press release are forward-looking statements regarding future events or results, including statements related to the Company’s expected future performance and other statements using such words as “expect,” “anticipate,” “believe,” “plan,” “intend,” “could,” “will” and other similar expressions. Forward-looking statements involve risks and uncertainties, which could cause actual results to differ materially from those expressed or implied in the forward-looking statements. Among the important factors that could cause or contribute to such differences are changes resulting from or relating to difficulties in hiring or retaining key management personnel, the ongoing COVID-19 pandemic, including changes in consumer behavior, changes in our customers’ retail store operations and/or changes in health and safety recommendations and requirements, changes in customer or platform requirements and limitations on our ability to compete effectively with other software and technology companies. These and other factors discussed in our filings with the Securities and Exchange Commission, including our filings on Forms 10-K and 10-Q, could cause actual results to differ materially from those expressed or implied in any forward-looking statements. The forward-looking statements contained in this release are made on the basis of the views and assumptions of management, and we do not undertake any obligation to update these statements to reflect events or circumstances occurring after the date of this release.