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Item 15.EXHIBITS AND FINANCIAL STATEMENT SCHEDULES The following documents are filed as a part of this Report on Form 10-K: 1.Financial statements: The following audited consolidated financial statements and notes thereto and the material under the caption "Report of Independent Registered Public Accounting Firm" in Part II, Item 8 of this Annual Report on Form 10-K are incorporated herein by reference: Report of Independent Registered Public Accounting Firm (Crowe LLP) Report of Independent Registered Public Accounting Firm (KPMG LLP) Consolidated Balance Sheets - December 31, 2020 and 2019 Consolidated Statements of Income - Years Ended December 31, 2020, 2019 and 2018 Consolidated Statements of Changes in Stockholders' Equity - Years Ended December 31, 2020, 2019 and 2018 Consolidated Statements of Cash Flows - Years Ended December 31, 2020, 2019 and 2018 Notes to Consolidated Financial Statements 2.All other financial statement schedules are omitted because they are not applicable or the required information is included in the Company’s Consolidated Financial Statements or Notes thereto included in Part II, Item 8 of this Annual Report on Form 10-K. 3.Exhibits The following exhibits are filed as a part of this report: EXHIBIT INDEX * Indicates a management contract or compensatory plan or arrangement. |
FORM 10-K SUMMARY Not applicable SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized: EVANS BANCORP, INC. By: /s/ David J. Nasca David J. Nasca President and Chief Executive Officer Date: March 19, 2021 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, David J. Nasca and John B. Connerton and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him, and in his name, place and stead, in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file the same, with Exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. |
Item 15.EXHIBITS AND FINANCIAL STATEMENT SCHEDULES The following documents are filed as a part of this Report on Form 10-K: 1.Financial statements: The following audited consolidated financial statements and notes thereto and the material under the caption "Report of Independent Registered Public Accounting Firm" in Part II, Item 8 of this Annual Report on Form 10-K are incorporated herein by reference: Report of Independent Registered Public Accounting Firm (internal control over financial reporting) Report of Independent Registered Public Accounting Firm (consolidated financial statements) Consolidated Balance Sheets - December 31, 2019 and 2018 Consolidated Statements of Income - Years Ended December 31, 2019, 2018 and 2017 Consolidated Statements of Changes in Stockholders' Equity - Years Ended December 31, 2019, 2018 and 2017 Consolidated Statements of Cash Flows - Years Ended December 31, 2019, 2018 and 2017 Notes to Consolidated Financial Statements 2.All other financial statement schedules are omitted because they are not applicable or the required information is included in the Company’s Consolidated Financial Statements or Notes thereto included in Part II, Item 8 of this Annual Report on Form 10-K. 3.Exhibits The following exhibits are filed as a part of this report: EXHIBIT INDEX * Indicates a management contract or compensatory plan or arrangement. |
Item 16.FORM 10-K SUMMARY Not applicable SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized: EVANS BANCORP, INC. By: /s/ David J. Nasca David J. Nasca President and Chief Executive Officer Date: March 12, 2020 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, David J. Nasca and John B. Connerton and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him, and in his name, place and stead, in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file the same, with Exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. |
Item 15.EXHIBITS AND FINANCIAL STATEMENT SCHEDULES The following documents are filed as a part of this Report on Form 10-K: 1.Financial statements: The following audited consolidated financial statements and notes thereto and the material under the caption "Report of Independent Registered Public Accounting Firm" in Part II, Item 8 of this Annual Report on Form 10-K are incorporated herein by reference: Report of Independent Registered Public Accounting Firm (internal control over financial reporting) Report of Independent Registered Public Accounting Firm (consolidated financial statements) Consolidated Balance Sheets - December 31, 2018 and 2017 Consolidated Statements of Income - Years Ended December 31, 2018, 2017 and 2016 Consolidated Statements of Stockholders' Equity - Years Ended December 31, 2018, 2017 and 2016 Consolidated Statements of Cash Flows - Years Ended December 31, 2018, 2017 and 2016 Notes to Consolidated Financial Statements 2.All other financial statement schedules are omitted because they are not applicable or the required information is included in the Company’s Consolidated Financial Statements or Notes thereto included in Part II, Item 8 of this Annual Report on Form 10-K. 3.Exhibits The following exhibits are filed as a part of this report: EXHIBIT INDEX * Indicates a management contract or compensatory plan or arrangement. |
Item 16.FORM 10-K SUMMARY Not applicable SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized: EVANS BANCORP, INC. By: /s/ David J. Nasca David J. Nasca President and Chief Executive Officer Date: February 28, 2019 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, David J. Nasca and John B. Connerton and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him, and in his name, place and stead, in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file the same, with Exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. |
Item 15.EXHIBITS AND FINANCIAL STATEMENT SCHEDULES The following documents are filed as a part of this Report on Form 10-K: 1.Financial statements: The following audited consolidated financial statements and notes thereto and the material under the caption "Report of Independent Registered Public Accounting Firm" in Part II, Item 8 of this Annual Report on Form 10-K are incorporated herein by reference: Report of Independent Registered Public Accounting Firm (internal control over financial reporting) Report of Independent Registered Public Accounting Firm (consolidated financial statements) Consolidated Balance Sheets - December 31, 2017 and 2016 Consolidated Statements of Income - Years Ended December 31, 2017, 2016 and 2015 Consolidated Statements of Stockholders' Equity - Years Ended December 31, 2017, 2016 and 2015 Consolidated Statements of Cash Flows - Years Ended December 31, 2017, 2016 and 2015 Notes to Consolidated Financial Statements 2.All other financial statement schedules are omitted because they are not applicable or the required information is included in the Company’s Consolidated Financial Statements or Notes thereto included in Part II, Item 8 of this Annual Report on Form 10-K. 3.Exhibits The information called for by this item is incorporated herein by reference to the Exhibit Index included immediately following the signature page to this Annual Report on Form 10-K. Item 16.FORM 10-K SUMMARY Not applicable EXHIBIT INDEX * Indicates a management contract or compensatory plan or arrangement. |
SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized: EVANS BANCORP, INC. By: /s/ David J. Nasca David J. Nasca President and Chief Executive Officer Date: March 1, 2018 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, David J. Nasca and John B. Connerton and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him, and in his name, place and stead, in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file the same, with Exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. |
Item 15.EXHIBITS AND FINANCIAL STATEMENT SCHEDULES The following documents are filed as a part of this Report on Form 10-K: 1.Financial statements: The following audited consolidated financial statements and notes thereto and the material under the caption "Report of Independent Registered Public Accounting Firm" in Part II, Item 8 of this Annual Report on Form 10-K are incorporated herein by reference: Report of Independent Registered Public Accounting Firm (internal control over financial reporting) Report of Independent Registered Public Accounting Firm (consolidated financial statements) Consolidated Balance Sheets - December 31, 2016 and 2015 Consolidated Statements of Income - Years Ended December 31, 2016, 2015 and 2014 Consolidated Statements of Stockholders' Equity - Years Ended December 31, 2016, 2015 and 2014 Consolidated Statements of Cash Flows - Years Ended December 31, 2016, 2015 and 2014 Notes to Consolidated Financial Statements 2.All other financial statement schedules are omitted because they are not applicable or the required information is included in the Company’s Consolidated Financial Statements or Notes thereto included in Part II, Item 8 of this Annual Report on Form 10-K. 3.Exhibits The information called for by this item is incorporated herein by reference to the Exhibit Index included immediately following the signature page to this Annual Report on Form 10-K. Item 16.FORM 10-K SUMMARY Not applicable SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized: EVANS BANCORP, INC. By: /s/ David J. Nasca David J. Nasca President and Chief Executive Officer Date: March 7, 2017 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, David J. Nasca and John B. Connerton and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him, and in his name, place and stead, in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file the same, with Exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. |
Item 15.EXHIBITS AND FINANCIAL STATEMENT SCHEDULES The following documents are filed as a part of this Report on Form 10-K: 1.Financial statements: The following audited consolidated financial statements and notes thereto and the material under the caption "Report of Independent Registered Public Accounting Firm" on pages 57 and 58 in Part II, Item 8 of this Annual Report on Form 10-K are incorporated herein by reference: Report of Independent Registered Public Accounting Firm (internal control over financial reporting) Report of Independent Registered Public Accounting Firm (consolidated financial statements) Consolidated Balance Sheets - December 31, 2015 and 2014 Consolidated Statements of Income - Years Ended December 31, 2015, 2014 and 2013 Consolidated Statements of Stockholders' Equity - Years Ended December 31, 2015, 2014 and 2013 Consolidated Statements of Cash Flows - Years Ended December 31, 2015, 2014 and 2013 Notes to Consolidated Financial Statements 2.All other financial statement schedules are omitted because they are not applicable or the required information is included in the Company’s Consolidated Financial Statements or Notes thereto included in Part II, Item 8 of this Annual Report on Form 10-K. 3.Exhibits The information called for by this item is incorporated herein by reference to the Exhibit Index included immediately following the signature page to this Annual Report on Form 10-K. SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized: EVANS BANCORP, INC. By: /s/ David J. Nasca David J. Nasca President and Chief Executive Officer Date: March 3, 2016 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, David J. Nasca and John B. Connerton and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him, and in his name, place and stead, in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file the same, with Exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated: Signature Title Date /s/ David J. Nasca President and Chief Executive Officer/ Director (Principal Executive Officer) March 3, 2016 David J. Nasca /s/ John B. Connerton Treasurer (Principal Financial Officer) March 3, 2016 John B. Connerton /s/ Nicholas J. Snyder Principal Accounting Officer March 3, 2016 Nicholas J. Snyder /s/ John R. O'Brien Chairman of the Board / Director March 3, 2016 John R. O'Brien /s/ Lee C. Wortham Vice Chairman of the Board / Director March 3, 2016 Lee C. Wortham /s/ James E. Biddle, Jr. Director March 3, 2016 James E. Biddle, Jr. /s/ Marsha S. Henderson Director March 3, 2016 Marsha S. Henderson /s/ Robert G. Miller, Jr. Director March 3, 2016 Robert G. Miller, Jr. /s/ David R. Pfalzgraf, Jr. Director March 3, 2016 David R. Pfalzgraf, Jr. /s/ Michael J. Rogers Director March 3, 2016 Michael J. Rogers /s/ Nora B. Sullivan Director March 3, 2016 Nora B. Sullivan /s/ Thomas H. Waring, Jr. Director March 3, 2016 Thomas H. Waring, Jr. EXHIBIT INDEX 10.13* First Amendment to the Evans National Bank Executive Life Insurance Plan (incorporated by reference to Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2007, as filed on August 14, 2007). |
Item 15.EXHIBITS AND FINANCIAL STATEMENT SCHEDULES The following documents are filed as a part of this Report on Form 10-K: 1.Financial statements: The following audited consolidated financial statements and notes thereto and the material under the caption "Report of Independent Registered Public Accounting Firm" on pages 62 and 63 in Part II, Item 8 of this Annual Report on Form 10-K are incorporated herein by reference: Report of Independent Registered Public Accounting Firm (internal control over financial reporting) Report of Independent Registered Public Accounting Firm (consolidated financial statements) Consolidated Balance Sheets - December 31, 2014 and 2013 Consolidated Statements of Income - Years Ended December 31, 2014, 2013 and 2012 Consolidated Statements of Stockholders' Equity - Years Ended December 31, 2014, 2013 and 2012 Consolidated Statements of Cash Flows - Years Ended December 31, 2014, 2013 and 2012 Notes to Consolidated Financial Statements 2.All other financial statement schedules are omitted because they are not applicable or the required information is included in the Company’s Consolidated Financial Statements or Notes thereto included in Part II, Item 8 of this Annual Report on Form 10-K. 3.Exhibits The information called for by this item is incorporated herein by reference to the Exhibit Index included immediately following the signature page to this Annual Report on Form 10-K. SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized: EVANS BANCORP, INC. By: /s/ David J. Nasca David J. Nasca President and Chief Executive Officer Date: March 9, 2015 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, David J. Nasca and Gary A. Kajtoch and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him, and in his name, place and stead, in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file the same, with Exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated: Signature Title Date /s/ David J. Nasca President and Chief Executive Officer/ Director (Principal Executive Officer) March 9, 2015 David J. Nasca /s/ Gary A. Kajtoch Treasurer (Principal Financial Officer) March 9, 2015 Gary A. Kajtoch /s/ John Connerton Principal Accounting Officer March 9, 2015 John Connerton /s/ John R. O'Brien Chairman of the Board / Director March 9, 2015 John R. O'Brien /s/ Lee C. Wortham Vice Chairman of the Board / Director March 9, 2015 Lee C. Wortham /s/ James E. Biddle, Jr. Director March 9, 2015 James E. Biddle, Jr. /s/ Marsha S. Henderson Director March 9, 2015 Marsha S. Henderson /s/ Kenneth C. Kirst Director March 9, 2015 Kenneth C. Kirst /s/ Robert G. Miller, Jr. Director March 9, 2015 Robert G. Miller, Jr. /s/ David R. Pfalzgraf, Jr. Director March 9, 2015 David R. Pfalzgraf, Jr. /s/ Michael J. Rogers Director March 9, 2015 Michael J. Rogers /s/ Nora B. Sullivan Director March 9, 2015 Nora B. Sullivan /s/ Thomas H. Waring, Jr. Director March 9, 2015 Thomas H. Waring, Jr. EXHIBIT INDEX 10.13* First Amendment to the Evans National Bank Executive Life Insurance Plan (incorporated by reference to Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2007, as filed on August 14, 2007). |
Item 15.EXHIBITS AND FINANCIAL STATEMENT SCHEDULES The following documents are filed as a part of this Report on Form 10-K: 1.Financial statements: The following audited consolidated financial statements and notes thereto and the material under the caption "Report of Independent Registered Public Accounting Firm" on pages 59 and 60 in Part II, Item 8 of this Annual Report on Form 10-K are incorporated herein by reference: Report of Independent Registered Public Accounting Firm (internal control over financial reporting) Report of Independent Registered Public Accounting Firm (consolidated financial statements) Consolidated Balance Sheets - December 31, 2013 and 2012 Consolidated Statements of Income - Years Ended December 31, 2013, 2012 and 2011 Consolidated Statements of Stockholders' Equity - Years Ended December 31, 2013, 2012 and 2011 Consolidated Statements of Cash Flows - Years Ended December 31, 2013, 2012 and 2011 Notes to Consolidated Financial Statements 2.All other financial statement schedules are omitted because they are not applicable or the required information is included in the Company’s Consolidated Financial Statements or Notes thereto included in Part II, Item 8 of this Annual Report on Form 10-K. 3.Exhibits The information called for by this item is incorporated herein by reference to the Exhibit Index included immediately following the signature page to this Annual Report on Form 10-K. SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized: EVANS BANCORP, INC. By: /s/ David J. Nasca David J. Nasca, President and Chief Executive Officer Date: March 3, 2014 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, David J. Nasca and Gary A. Kajtoch and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him, and in his name, place and stead, in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file the same, with Exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated: Signature Title Date /s/ David J. Nasca President and Chief Executive Officer/ Director March 3, 2014 David J. Nasca (Principal Executive Officer) /s/ Gary A. Kajtoch Treasurer March 3, 2014 Gary A. Kajtoch (Principal Financial Officer) /s/ John Connerton Principal Accounting Officer March 3, 2014 John Connerton /s/ John R. O'Brien Chairman of the Board / Director March 3, 2014 John R. O'Brien /s/ Lee C. Wortham Vice Chairman of the Board / Director March 3, 2014 Lee C. Wortham /s/ James E. Biddle, Jr. Director March 3, 2014 James E. Biddle, Jr. /s/ Phillip Brothman Director March 3, 2014 Phillip Brothman Director March 3, 2014 Marsha S. Henderson /s/ Kenneth C. Kirst Director March 3, 2014 Kenneth C. Kirst /s/ Robert G. Miller, Jr. Director March 3, 2014 Robert G. Miller, Jr. /s/ Michael J. Rogers Director March 3, 2014 Michael J. Rogers /s/ Nora B. Sullivan Director March 3, 2014 Nora B. Sullivan /s/ Thomas H. Waring, Jr. Director March 3, 2014 Thomas H. Waring, Jr. EXHIBIT INDEX 10.13* First Amendment to the Evans National Bank Executive Life Insurance Plan (incorporated by reference to Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2007, as filed on August 14, 2007). |
Exhibits The information called for by this item is incorporated herein by reference to the Exhibit Index included immediately following the signature page to this Annual Report on Form 10-K. SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized: EVANS BANCORP, INC. By: /s/ David J. Nasca David J. Nasca, President and Chief Executive Officer Date: March 4, 2013 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, David J. Nasca and Gary A. Kajtoch and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him, and in his name, place and stead, in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file the same, with Exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated: Signature Title Date /s/ David J. Nasca President and Chief Executive Officer/Director (Principal Executive Officer) March 4, 2013 David J. Nasca /s/ Gary A. Kajtoch Treasurer (Principal Financial Officer) March 4, 2013 Gary A. Kajtoch /s/ Nicholas J. Snyder Principal Accounting Officer March 4, 2013 Nicholas J. Snyder /s/ John R. O’Brien Chairman of the Board/Director March 4, 2013 John R. O’Brien /s/ Lee C. Wortham Vice Chairman of the Board/Director March 4, 2013 Lee C. Wortham /s/ James E. Biddle, Jr. Director March 4, 2013 James E. Biddle, Jr. /s/ Phillip Brothman Director March 4, 2013 Philip Brothman Director Marsha S. Henderson /s/ Kenneth C. Kirst Director March 4, 2013 Kenneth C. Kirst /s/ Robert G. Miller, Jr. Director March 4, 2013 Robert G. Miller, Jr. /s/ Michael J. Rogers Director March 4, 2013 Michael J. Rogers /s/ Nancy W. Ware Director March 4, 2013 Nancy W. Ware /s/ Thomas H. Waring, Jr. Director March 4, 2013 Thomas H. Waring, Jr. EXHIBIT INDEX 10.12* First Amendment to the Evans National Bank Executive Life Insurance Plan (incorporated by reference to Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2007, as filed on August 14, 2007). |
Exhibits The information called for by this item is incorporated herein by reference to the Exhibit Index included immediately following the signature page to this Annual Report on Form 10-K. SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized: POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, David J. Nasca and Gary A. Kajtoch and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him, and in his name, place and stead, in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file the same, with Exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. |
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES The following documents are filed as a part of this Report on Form 10-K: SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized: POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, David J. Nasca and Gary A. Kajtoch and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him, and in his name, place and stead, in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file the same, with Exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. |
Exhibits The information called for by this item is incorporated herein by reference to the Exhibit Index included immediately following the signature page to this Annual Report on Form 10-K. SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized: POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, jointly and severally, David J. Nasca and Gary A. Kajtoch and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution, for him, and in his name, place and stead, in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file the same, with Exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. |
The Sarbanes-Oxley Act, among other things, (i) requires: the principal executive and principal financial officers of a public company to establish and maintain disclosure controls and procedures and internal control over financial reporting for the company, and to evaluate the effectiveness of these controls and procedures and certify and report on their findings in the company’s periodic reports; a public company to establish and maintain audit committees, comprised solely of independent directors, which committee must be empowered to, among other things, engage, supervise and discharge the company’s auditors; that a public company’s financial statements be certified by the principal executive and principal financial officers of such company; increased and quicker public disclosure - real time - of obligations of the company and its directors and officers, including disclosures of off-balance sheet transactions and accelerated reporting of transactions in company stock; (ii) prohibits personal loans to company directors and officers, except certain loans made by insured financial institutions on non- preferential terms and in compliance with other bank regulatory requirements; and (iii) creates or provides for various increased civil and criminal penalties for violations of the securities laws. |
The Sarbanes-Oxley Act, among other things, (i) requires: the principal executive and principal financial officers of a public company to establish and maintain disclosure controls and procedures and internal controls over financial reporting for the company, and to evaluate the effectiveness of these controls and certify and report on their findings in the company’s periodic reports; a public company to establish and maintain audit committees, comprised solely of independent directors, which committee must be empowered to, among other things, engage, supervise and discharge the company’s auditors; that a public company’s financial statements be certified by the principal executive and principal financial officers of such company; increased and quicker public disclosure - real time - obligations by the company and its directors and officers, including disclosures of off-balance sheet transactions and accelerated reporting of transactions in company stock; (ii) prohibits personal loans to company directors and officers, except certain loans made by insured financial institutions on non-preferential terms and in compliance with other bank regulatory requirements; and (iii) creates or provides for various increased civil and criminal penalties for violations of the securities laws. |
These forward-looking statements are based largely on the expectations of the Company’s management and are subject to a number of risks and uncertainties, including but not limited to general economic conditions, either nationally or in the Company’s market areas, that are worse than expected; increased competition among depository or other financial institutions; inflation and changes in the interest rate environment that reduce the Company’s margins or reduce the fair value of financial instruments; changes in laws or government regulations affecting financial institutions, including changes in regulatory fees and capital requirements; the Company’s ability to enter new markets successfully and capitalize on growth opportunities; the Company’s ability to successfully integrate acquired entities; changes in accounting pronouncements and practices, as adopted by financial institution regulatory agencies, the Financial Accounting Standards Board (“FASB”) and the Public Company Accounting Oversight Board; changes in consumer spending, borrowing and saving habits; changes in the Company’s organization, compensation and benefit plans; and other factors discussed elsewhere in this report on Form 10-K, as well as in the Company’s periodic reports filed with the Securities and Exchange Commission (the “SEC”). |
The SOA addresses, among other matters: audit committees; required reporting on internal controls over financial reporting by management and auditors; certification of financial statements by a reporting company’s chief executive officer and chief financial officer, or their equivalent; the forfeiture of bonuses or other incentive-based compensation and profits from the sale of an issuer’s securities by directors and senior officers in the 12-month period following initial publication of any financial statements that later require restatement; a prohibition on insider trading during pension plan blackout periods; disclosure of off-balance sheet transactions; a prohibition on certain loans to directors and officers; expedited filing requirements for Forms 4; the adoption of a code of ethics for the issuer’s principal executive officer and principal financial and accounting officers, and disclosure of any change or waiver of such code; “real time” filing of periodic reports; the formation of a public company accounting oversight board; auditor independence; and various increased civil and criminal penalties for violations of securities laws. |
The SOA addresses, among other matters: audit committees; required reporting on internal controls over financial reporting by management and auditors; certification of financial statements by the Chief Executive Officer and the Chief Financial Officer; the forfeiture of bonuses or other incentive-based compensation and profits from the sale of an issuer's securities by directors and senior officers in the twelve month period following initial publication of any financial statements that later require restatement; a prohibition on insider trading during pension plan black out periods; disclosure of off-balance sheet transactions; a prohibition on certain loans to directors and officers; expedited filing requirements for Forms 4; the adoption of a code of ethics for the issuer's principal executive officer and principal financial and accounting officers, and disclosure of any change or waiver of such code; "real time" filing of periodic reports; the formation of a public company accounting oversight board; auditor independence; and various increased civil and criminal penalties for violations of securities laws. |
SIGNATURES Pursuant to the requirements of Section 13 or 15(2d) of the Securities Exchange Act of 1934, EVANS BANCORP, INC. has duly caused this Annual Report to be signed on its behalf by the undersigned thereunto duly authorized: EVANS BANCORP, INC. By:/s/ James Tilley ---------------------------------- James Tilley, President and CEO Date: March 18, 2004 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated: Signature Title Date /s/ James Tilley President and CEO/Director March 18, 2004 - ---------------------------- James Tilley /s/ Mark DeBacker Treasurer March 18, 2004 - ---------------------------- Mark DeBacker /s/ Phillip Brothman Chairman of the Board/ March 18, 2004 - ---------------------------- Phillip Brothman Director /s/ Thomas H. Waring Jr. Vice Chairman March 18, 2004 - ---------------------------- Thomas H. Waring, Jr. of the Board/Director /s/ James E. Biddle, Jr. Secretary/Director March 18, 2004 - ---------------------------- James E. Biddle, Jr /s/LaVerne G. Hall Director March 18, 2004 - ---------------------------- LaVerne G. Hall /s/ David M. Taylor Director March 18, 2004 - ---------------------------- David M. Taylor /s/ Robert W. Allen Director March 18, 2004 - ---------------------------- Robert W. Allen /s/ William F. Barrett Director March 18, 2004 - ---------------------------- William F. Barrett /s/ Robert G. Miller, Jr. Director March 18, 2004 - ---------------------------- Robert G. Miller, Jr. /s/ John R. O'Brien Director March 18, 2004 - ---------------------------- John R. O'Brien /s/ Nancy W. Ware Director March 18, 2004 - ---------------------------- Nancy W. Ware |
We may be unable to successfully accomplish and fund our current endeavors, which would materially impact our ability to implement our business plan, including: · establishing and maintaining broad market acceptance of our technology, solutions, services and platforms, and converting that acceptance into direct and indirect sources of revenue; · establishing and maintaining adoption of our technology, solutions, services and platforms in and on a variety of environments, experiences and types of devices; · timely and successfully developing new technologies, solutions, services and platform features, and increasing the functionality and features of our existing technologies, solutions, services and platform offerings; · developing technologies, solutions, services and platforms that result in a high degree of customer satisfaction and a high level of end-customer usage; · successfully responding to competition, including competition from emerging technologies and solutions; · developing and maintaining strategic relationships to enhance the distribution, features, content and utility of our technologies, solutions, services and platforms; · identifying, attracting and retaining talented engineering, network operations, program management, technical services, creative services and other personnel at reasonable market compensation rates in the markets in which we employ such personnel; and · integration of potential evolving offerings of products and acquisitions. |
If the share price is not reached, the Company shall issue to the Apeiron Systems stockholders for each such share of the Company’s common stock that is equal to the number of “Qualifying Shares” multiplied by the difference between the Guaranteed Value and the highest “Calculated Value” achieved during the “Valuation Period.” See Section 5.10 of the Apeiron Systems Merger Agreement that was filed as an Exhibit to the Company’s 8-K Current Report dated December 31, 2018, and filed with the SEC on December 31, 2018, and which is accessible by Hyperlink in Part IV, Item 15, under the heading “Apeiron Systems Merger Current Reports.” Critical Accounting Policies and Estimates Use of Estimates The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. |
Involvement in Certain Legal Proceedings During the past ten (10) years, none of our directors, executive officers or persons nominated to become directors or executive officers (or those in similar positions with us) has been the subject of any of the following: (1) A petition under the federal bankruptcy laws or any state insolvency law was filed by or against, or a receiver, fiscal agent or similar officer was appointed by a court for the business or property of such person, or any partnership in which he was a general partner at or within two (2) years before the time of such filing, or any corporation or business association of which he was an executive officer at or within two (2) years before the time of such filing; (2) Such person was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (3) Such person was the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him or her from, or otherwise limiting, the following activities: (i)Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity; (ii)Engaging in any type of business practice; or (iii)Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws; (4) Such person was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than sixty (60) days the right of such person to engage in any activity described in paragraph (f)(3)(i) of this section, or to be associated with persons engaged in any such activity; (5) Such person was found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, and the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended, or vacated; (6) Such person was found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated; (7) Such person was the subject of, or a party to, any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of: (i) Any federal or state securities or commodities law or regulation; or (ii) Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or (iii) Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or (8) Such person was the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C. |
Closing conditions to the Apeiron Systems Merger Agreement included, among other conditions that: (i) the Apeiron Systems shareholders have a $1.00 per share “Guaranteed Value” on the KonaTel shares they received under the Apeiron Systems Merger if the KonaTel shares do not trade at or above $1.00 for ten (10) consecutive days during the period commencing on December 31, 2020, and ending December 31, 2021, on the applicable trading market for our common stock during that period, and subject to such shares being continuously owned of record by the Apeiron Systems shareholders, as outlined in Section 5.10 of the Apeiron Systems Merger Agreement; (ii) there would be a “Net Working Capital” computation that was intended to provide sufficient cash resources to operate Apeiron Systems for a period of not less than ninety (90) days, with the understanding that any overage of the estimate shall be paid to the Apeiron Systems shareholders and any deficit shall be paid by the Apeiron Systems shareholders to us; (iii) we would execute Employment Agreements with Messrs. Ploude and Yanson (see the heading “Significant Employees” of Part IIII, Item 12); and that Messrs. Ploude and Yanson would execute and deliver a Shareholder Voting Agreement and a two year Lock-Up/Leak-Out Agreement governing the resale of their respective shares of KonaTel (see the headings “Apeiron Systems Merger Shareholders Voting Agreement” and “Apeiron Systems Merger Lock-Up/Leak-Out Agreement” of Part III, Item 12, hereof, for a summary of these executed and delivered agreements). |
We may be unable to successfully accomplish and fund our current endeavors, which would materially impact our ability to implement our business plan, including: · establishing and maintaining broad market acceptance of our technology, solutions, services and platforms, and converting that acceptance into direct and indirect sources of revenue; · establishing and maintaining adoption of our technology, solutions, services and platforms in and on a variety of environments, experiences and types of devices; · timely and successfully developing new technologies, solutions, services and platform features, and increasing the functionality and features of our existing technologies, solutions, services and platform offerings; · developing technologies, solutions, services and platforms that result in a high degree of customer satisfaction and a high level of end-customer usage; · successfully responding to competition, including competition from emerging technologies and solutions; · developing and maintaining strategic relationships to enhance the distribution, features, content and utility of our technologies, solutions, services and platforms; · identifying, attracting and retaining talented engineering, network operations, program management, technical services, creative services and other personnel at reasonable market compensation rates in the markets in which we employ such personnel; and · integration of potential evolving offerings of products and acquisitions. |
The Apeiron Systems shareholders also have a $1.00 “Guaranteed Value” of the “KonaTel Shares” they received under the Apeiron Systems Merger Agreement, which indicates, subject to certain enumerated conditions, that in the event that the KonaTel common stock does not reach an average closing price equal to or exceeding $1.00 per share over any period of ten consecutive Trading Days during the period commencing on December 31, 2020, and ending on December 31, 2021, as quoted by the applicable Trading Market on which the KonaTel shares of common stock are listed or quoted for trading, KonaTel shall issue to the Apeiron Systems shareholders for each such share of the KonaTel shares of common stock continuously owned and held of record in the respective names of the Apeiron Systems shareholders during the Valuation Period the number of shares of KonaTel common stock that is equal to the number of Qualifying Shares multiplied by the difference between the Guaranteed Value and the highest Calculated Value achieved during the Valuation Period. |
Involvement in Certain Legal Proceedings During the past ten (10) years, none of our directors, executive officers or persons nominated to become directors or executive officers (or those in similar positions with us) has been the subject of any of the following: (1) A petition under the federal bankruptcy laws or any state insolvency law was filed by or against, or a receiver, fiscal agent or similar officer was appointed by a court for the business or property of such person, or any partnership in which he was a general partner at or within two (2) years before the time of such filing, or any corporation or business association of which he was an executive officer at or within two (2) years before the time of such filing; (2) Such person was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (3) Such person was the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him or her from, or otherwise limiting, the following activities: (i) Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity; (ii) Engaging in any type of business practice; or (iii) Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws; (4) Such person was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than sixty (60) days the right of such person to engage in any activity described in paragraph (f)(3)(i) of this section, or to be associated with persons engaged in any such activity; (5) Such person was found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, and the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended, or vacated; (6) Such person was found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated; (7) Such person was the subject of, or a party to, any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of: (i) Any federal or state securities or commodities law or regulation; or (ii) Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or (iii) Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or (8) Such person was the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C. |
Apeiron Systems Shareholder Voting Agreement Apeiron Systems Merger Shareholder Voting Agreement The closing of the KonaTel Nevada Merger was subject, among other conditions, to the execution and delivery of a Shareholder Voting Agreement between the Company and Messrs. Ploude and Yanson, whereby Mr. McEwen was granted an irrevocable proxy to vote the respective shares of our common stock owned or acquired by each of the foregoing, together with various additional rights, including a right of veto on certain corporate actions, for a period of two (2) years, including corporate action regarding the following matters: (i) an increase in the compensation of any employee of the Company by more than $20,000 in any one calendar year and for these purposes, the term compensation included any form of remuneration or monetary benefit; (ii) the issuance of stock, the creation of a new class of stock, the grant of options or warrants, modification of any shareholder, option holder or warrant holder’s rights, grants, conversion rights or the taking of any other action that directly or indirectly diluted the outstanding securities of the Company, (iii) the issuance of debt in excess of $100,000 in the aggregate in any one (1) calendar year; (iv) the approval of a plan of merger, reorganization or conversion; (v) the sale, transfer or other conveyance of assets of the Company having an aggregate value in excess of $100,000 in any one (1) calendar year, other than in the ordinary course of the business; (vi) the entry into a contract or other transaction having a total aggregate contractual liability for the Company in excess of $100,000 in any one (1) calendar year; (vii) any change in the Bylaws of the Company modifying these requirements (all of which are included in our Amended and Restated Bylaws incorporated herein by reference as an Exhibit [see Part IV, Item 15, Exhibit 3(ii)]); and (viii) that Mr. McEwen be named as a “nominee” to the Board of Directors of the Company at any special or annual meeting of the Company’s shareholders to elect members to the Board of Directors and to vote all proxies provided to management in connection with any such meeting for Mr. McEwen as one of the “nominees” to our Board of Directors, so long as Mr. McEwen owns 5% or more of the outstanding shares of our common stock, among other provisions. |
Lock-Up/Leak-Out Agreement Apeiron Systems Merger Lock-Up/Leak-Out Agreement Subject to compliance with all of the applicable provisions of SEC Rule 144 as now in effect or hereafter amended, including SEC interpretations thereof, or another available exemption from the registration provisions of the Securities Act, or an effective S-1 registration statement filed with the SEC under the Securities Act, which is accompanied by a “current” resale prospectus that includes the shares of common stock that are sought to be publicly sold by a shareholder subject to the Lock-Up/Leak-Out Agreement through a registered broker-dealer (respectively, a “Registration Statement,” the “Shareholder” and the “Shareholder Broker”), the Shareholder may only sell shares of common stock of the Company commencing on the later of six (6) months from December 31, 2018, which was the effective date of the Apeiron Systems Merger (the “Lock-Up Period”); provided, however, the Lock-Out Period shall not cover any common Stock owned by the Shareholder that is included in a Registration Statement, though the provisions of the Leak-Out Period (as defined below) shall continue to be applicable to the Shareholder and the common stock. |
Following the Lock-Up Period, the Shareholder may sell the Common Stock as follows (the “Leak-Out Period”): · one (1) week, no more than the greater of (5%) of the total shares of the Company publicly traded on any nationally recognized medium of a stature no less than the OTC Pink Tier over the previous ten (10) trading days; or · one percent of the total outstanding shares of the Company as reported in the Company’s most recently filed SEC report or registration statement in the Edgar Archives of the SEC, divided by thirteen (13) weeks, which number may be updated from time to time, based upon the number of shares reflected as being outstanding in the Company’s SEC filings, on a non-cumulative basis, meaning that if the amount of shares allowed to be sold under this subparagraph are not sold in any specific week, that the unsold amount cannot be accumulated and sold in any subsequent week or weeks with the sale of other shares that are allowed to be sold in a specific week and that all of such sales be shall made at the “ask” price and not at the “bid” price for the Company’s shares in any applicable public market for such shares. |
The following were conditions to the closing of the KonaTel Nevada Merger Agreement: (i) the execution and delivery of a Stock Option Cancellation Agreement by the sole option holder of shares of KonaTel Nevada; (ii) the assumption of the Employment Agreements of two key employees of KonaTel Nevada (see the heading “Significant Employees” of Part III, Item 10 hereof); (iii) the execution and delivery of an Employment Agreement with Mr. McEwen, employing him as the President, CEO, Chairman of the Board and a director (see the heading “Employment Agreement of D. Sean McEwen” of Part III, Item 11); (iv) the execution and delivery of a Shareholder Voting Agreement between the Company, Mr. Savage, Mr. Atkinson, M2 and Mr. McEwen (see the heading “KonaTel Merger Shareholder Voting Agreement” of Part III, Item 12); (v) the reservation of 5,000,000 shares of our authorized common stock for issuance to directors, executive officers and employees as incentives or bonuses, and the granting of an aggregate of 3,850,000 of those options at the closing, including grants to Messrs. Savage, Atkinson, Mr. McEwen and the two key employees whose Employment Agreements were assumed by the Company (see the heading “Outstanding Equity Awards” of Part III, Item 12; (vi) the execution and delivery of a Lock-Up/Leak-Out Agreement by Mr. Savage, Mr. Atkinson, M2 and Mr. McEwen respecting the resale of their respective shares of common stock beneficially owned or subsequently acquired by them in the Company covering an eighteen (18) month period ending June 17, 2019 (see the heading “KonaTel Merger Lock-Up/Leak-Out Agreement” of Part III, Item 12); (vii) the adoption of Amended and Restated Bylaws, which included provisions consistent with the terms and provisions of the Shareholder Voting Agreement (see Exhibit 3. |
Closing conditions to the Apeiron Systems Merger Agreement included, among other conditions that: (i) the Apeiron Systems shareholders have a $1.00 per share “Guaranteed Value” on the KonaTel shares they received under the Apeiron Systems Merger if the KonaTel shares do not trade at for above $1.00 for ten (10) consecutive days during the period commencing on December 31, 2020, and ending December 31, 2021, on the applicable trading market for our common stock during that period, and subject to such shares being continuously owned of record by the Apeiron Systems shareholders, as outlined in Section 5.10 of the Apeiron Systems Merger Agreement; (ii) there be a “Net Working Capital” computation that was intended to provide sufficient cash resources to operate Apeiron Systems for a period of not less than ninety (90) days, with the understanding that at the end of such ninety (90) period, the parties will review and re-compute the New Working Capital computation, with the understanding that any overage of the estimate shall be paid to the Apeiron Systems shareholders and any deficit shall be paid by the Apeiron Systems shareholders to us; (iii) we would execute Employment Agreements with Messrs. Ploude and Yanson (see the heading “Significant Employees” of Part IIII, Item 12); and that Messrs. Ploude and Yanson would execute and deliver a Shareholder Voting Agreement and a two year Lock-Up/Leak-Out Agreement governing the resale of their respective shares of KonaTel (see the headings “Apeiron Systems Merger Shareholders Voting Agreement” and “Apeiron Systems Merger Lock-Up/Leak-Out Agreement” of Part III, Item 12, hereof). |
We may be unable to successfully accomplish and fund our current endeavors, which would materially impact our ability to implement our business plan, including: · establishing and maintaining broad market acceptance of our technology, solutions, services and platforms, and converting that acceptance into direct and indirect sources of revenue; · establishing and maintaining adoption of our technology, solutions, services and platforms in and on a variety of environments, experiences and types of devices; · timely and successfully developing new technologies, solutions, services and platform features, and increasing the functionality and features of our existing technologies, solutions, services and platform offerings; · developing technologies, solutions, services and platforms that result in a high degree of customer satisfaction and a high level of end-customer usage; · successfully responding to competition, including competition from emerging technologies and solutions; · developing and maintaining strategic relationships to enhance the distribution, features, content and utility of our technologies, solutions, services and platforms; · identifying, attracting and retaining talented engineering, network operations, program management, technical services, creative services and other personnel at reasonable market compensation rates in the markets in which we employ such personnel; and · integration of potential evolving offerings of products and acquisitions. |
As a condition to the KonaTel Nevada Merger, the Company entered into Shareholder Voting Agreement between majority shareholders and Mr. McEwen whereby Mr. McEwen was granted an irrevocable proxy coupled with an interest from each of the foregoing, together with the following rights, including a right of veto, for a period of two (2) years, on the following matters: (i) an increase in the compensation of any employee of the Company by more than $20,000 in any one calendar year and for these purposes, the term compensation includes any form of remuneration or monetary benefit; (ii) the issuance of stock, the creation of a new class of stock, the grant of options or warrants, modification of any shareholder, option holder or warrant holder’s rights, grants, conversion rights or the taking of any other action that directly or indirectly dilutes the outstanding securities of the Company, excepting the private placement of common stock of the Company for an equity funding of $1,300,000 through the offer and sale of 6,500,000 shares of the Company’s common stock solely to “accredited investors”; (iii) the issuance of debt in excess of $100,000 in the aggregate in any one calendar year; (iv) the approval of a plan of merger, reorganization or conversion; (v) the sale, transfer or other conveyance of assets of the Company having an aggregate value in excess of $100,000 in any one calendar year, other than in the ordinary course of the business; and (vi) the entry into a contract or other transaction having a total aggregate contractual liability for the Company in excess of $100,000 in any one calendar year. |
Involvement in Certain Legal Proceedings During the past ten (10) years, none of our directors, executive officers or persons nominated to become directors or executive officers (or those in similar positions with us) has been the subject of any of the following: (1) A petition under the federal bankruptcy laws or any state insolvency law was filed by or against, or a receiver, fiscal agent or similar officer was appointed by a court for the business or property of such person, or any partnership in which he was a general partner at or within two (2) years before the time of such filing, or any corporation or business association of which he was an executive officer at or within two (2) years before the time of such filing; (2) Such person was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (3) Such person was the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him or her from, or otherwise limiting, the following activities: (i) Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity; (ii) Engaging in any type of business practice; or (iii) Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws; (4) Such person was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than sixty (60) days the right of such person to engage in any activity described in paragraph (f)(3)(i) of this section, or to be associated with persons engaged in any such activity; (5) Such person was found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, and the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended, or vacated; (6) Such person was found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated; (7) Such person was the subject of, or a party to, any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of: (i) Any federal or state securities or commodities law or regulation; or (ii) Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or (iii) Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or (8) Such person was the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C. |
Shareholder Voting Agreements KonaTel Merger Shareholder Voting Agreement The closing of the KonaTel Nevada Merger was subject, among other conditions, to the execution and delivery of a Shareholder Voting Agreement between the Company, Mr. Savage, Mr. Atkinson, M2 and Mr. McEwen, whereby Mr. McEwen was granted an irrevocable proxy to vote the respective shares of our common stock owned or acquired by each of the foregoing, together with various additional rights, including a right of veto on certain corporate actions, for a period of two (2) years, including corporate action regarding the following matters: (i) an increase in the compensation of any employee of the Company by more than $20,000 in any one calendar year and for these purposes, the term compensation included any form of remuneration or monetary benefit; (ii) the issuance of stock, the creation of a new class of stock, the grant of options or warrants, modification of any shareholder, option holder or warrant holder’s rights, grants, conversion rights or the taking of any other action that directly or indirectly diluted the outstanding securities of the Company, excepting shares in the current private placement of common stock of the Company for an equity funding of $1,300,000 through the offer and sale of 6,500,000 shares of the Company’s common stock solely to “accredited investors”; (iii) the issuance of debt in excess of $100,000 in the aggregate in any one calendar year; (iv) the approval of a plan of merger, reorganization or conversion; (v) the sale, transfer or other conveyance of assets of the Company having an aggregate value in excess of $100,000 in any one calendar year, other than in the ordinary course of the business; (vi) the entry into a contract or other transaction having a total aggregate contractual liability for the Company in excess of $100,000 in any one calendar year; (vii) any change in the Bylaws of the Company modifying these requirements (all of which are included in our Amended and Restated Bylaws incorporated herein by reference as an Exhibit [see Part IV, Item 15, Exhibit 3(ii)]); and (viii) that Mr. McEwen be named as a “nominee” to the Board of Directors of the Company at any special or annual meeting of the Company’s shareholders to elect members to the Board of Directors and to vote all proxies provided to management in connection with any such meeting for Mr. McEwen as one of the “nominees” to our Board of Directors, so long as Mr. McEwen owns 5% or more of the outstanding shares of our common stock, among other provisions. |
Lock-Up/Leak-Out Agreements KonaTel Merger Lock-Up/Leak-Out Agreement Subject to compliance with all of the applicable provisions of SEC Rule 144 as now in effect or hereafter amended, including SEC interpretations thereof, or another available exemption from the registration provisions of the Securities Act, or an effective S-1 Registration Statement filed with the SEC under the Securities Act, which is accompanied by a “current” Resale Prospectus that includes the shares of common stock that are sought to be publicly sold by a shareholder subject to the Lock-Up/Leak-Out Agreement through a registered broker-dealer (respectively, a “Registration Statement” and the “Shareholder Broker”), the Shareholder may only sell shares of common stock of the Company commencing on the later of six (6) months from April 17, 2018 (October 17, 2018), which is the date we filed our 8-KA-2 Current Report with the SEC that included the requisite financial statements of KonaTel Nevada and unaudited pro forma combined condensed financial statements of the Company and KonaTel Nevada as referenced elsewhere in this Annual Report, or the date of purchase by any Shareholder in our private placement (the “Lock-Up Period”); provided, however, the Lock-Out Period shall not cover any common Stock owned by the Shareholder that is included in a Registration Statement, though the provisions of the Leak-Out Period (as defined below) shall continue to be applicable to the Shareholder and the common stock. |
· notwithstanding, the Company may allow any covered shareholder the right to sell or transfer shares of common stock in a bona fide private transaction or by gift or for estate planning purposes, subject to receipt of an opinion of legal counsel for the Company that there is an available exemption from registration for any such transaction under the Securities Act, and subject to any transferee’s execution and delivery of a copy of this Agreement; provided, however, in such event, the covered shareholder and any transferee in any such conveyance of shares of common stock shall be required to aggregate their respective sales of shares of common stock during the 18 month term of the Lock-Up/Leak-Out Agreement so that the combined sale of shares of common stock sold by the covered shareholder and any transferee does not exceed the number of shares of common stock that could have been sold by the covered shareholder during the Leak-Out Period as if any such transaction had not occurred; and provided, further, however, these provisions of “aggregation” shall not apply to any disposition by operation of law, including the dissolution of an “entity” covered shareholder and the distribution of shares of common stock to its shareholders or members, pro rata, according to their respective interests in any such entity, or specifically, M2. |
The following additional actions were taken at the closing of the Merger, through the execution and delivery of various additional agreements among the parties and others, and which were conditions precedent to the closing : · the execution and delivery of a Stock Option Cancellation Agreement by the sole option holder of shares of KonaTel (Exhibit 5.4(c) to the KonaTel Merger Agreement); · the assumption of the Employment Agreements of two key employees of KonaTel (Section 6.4(b) of the KonaTel Merger Agreement [for additional information, see the heading “Significant Employees” of the caption “Directors and Executive Officers” of Part III, Item 10 hereof]); · the execution and delivery of an Employment Agreement with Mr. McEwen, employing him as the President, Chairman of the Board and a director (Exhibit 6.4(c) to the KonaTel Merger Agreement [for additional information, see the heading “McEwen Employment Agreement” of the caption “Executive Compensation” of Part III, Item 10 hereof]); · the execution and delivery of a Shareholder Voting Agreement between the Company, Mr. Savage, Mr. Atkinson, M2 and Mr. McEwen whereby Mr. McEwen was granted an irrevocable proxy coupled with an interest from each of the foregoing, together with the following rights, including a right of veto, for a period of two (2) years, on the following matters: (i) an increase in the compensation of any employee of the Company by more than $20,000 in any one calendar year and for these purposes, the term compensation includes any form of remuneration or monetary benefit; (ii) the issuance of stock, the creation of a new class of stock, the grant of options or warrants, modification of any shareholder, option holder or warrant holder’s rights, grants, conversion rights or the taking of any other action that directly or indirectly dilutes the outstanding securities of the Company, excepting a current private placement of common stock of the Company for an equity funding of $1,300,000 through the offer and sale of 6,500,000 shares of the Company’s common stock solely to “accredited investors”; (iii) the issuance of debt in excess of $100,000 in the aggregate in any one calendar year; (iv) the approval of a plan of merger, reorganization or conversion; (v) the sale, transfer or other conveyance of assets of the Company having an aggregate value in excess of $100,000 in any one calendar year, other than in the ordinary course of the business; (vi) the entry into a contract or other transaction having a total aggregate contractual liability for the Company in excess of $100,000 in any one calendar year; (vii) any change in the Bylaws of the Company modifying these requirements (all of which are included in our Amended and Restated Bylaws filed as an Exhibit herewith [see Part IV, Item 15, Exhibit 3(ii)]); and (viii) that Mr. McEwen be named as a “nominee” to the Board of Directors of the Company at any special or annual meeting of the Company’s shareholders to elect members to the Board of Directors and to vote all proxies provided to management in connection with any such meeting for Mr. McEwen as one of the “nominees” to our Board of Directors, so long as Mr. McEwen owns 5% or more of the outstanding shares of our common stock, among other provisions. |
The Shareholder Voting Agreement also provides, however, that if Mr. McEwen has been removed as a director for cause by our shareholders and such removal has been confirmed by a Delaware court of competent jurisdiction under Delaware Law, this “nominee” provision shall not be enforceable by Mr. McEwen and shall be void (Exhibit 6.4(d) to the KonaTel Merger Agreement [for additional information, see the heading “Shareholder Voting Agreement” of the caption “Security Ownership of Certain Beneficial Owners and Management” of Part III, Item 10 hereof]); · the reservation of 5,000,000 shares of our authorized common stock for issuance to directors, executive officers and employees, as incentives or bonuses, and the granting of an aggregate of 3,850,000 of those options at the Closing of the Merger, including grants to Messrs. Savage, Atkinson, Mr. McEwen and the two key employees whose Employment Agreements were assumed by the Company at the Closing of the Merger (Exhibit 6.4(e) to the KonaTel Merger Agreement [the “Form of Incentive Stock Option Agreement”]); and for additional information, see the heading “Outstanding Equity Awards” of the caption “Executive Compensation” of Part III, Item 10 hereof; · the execution and delivery of a Lock-Up/Leak-Out Agreement by Mr. Savage, Mr. Atkinson, M2 and Mr. McEwen respecting the resale of their respective shares of common stock beneficially owned or subsequently acquired in the Company covering an 18 month period commencing at the Closing of the Merger (Exhibit 6.4(f) to the Merger Agreement [the “Form of the Lock-Up/Leak-Out Agreement]); and for additional information, see the heading “Lock-Up/Leak-Out Agreements” of the caption “Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters” of Part II, Item 5 hereof; and · the adoption of Amended and Restated Bylaws. |
We may be unable to successfully accomplish and fund our current endeavors, which would materially impact our ability to implement our business plan, including: · establishing and maintaining broad market acceptance of our technology, solutions, services and platforms, and converting that acceptance into direct and indirect sources of revenue; · establishing and maintaining adoption of our technology, solutions, services and platforms in and on a variety of environments, experiences and device types; · timely and successfully developing new technology, solutions, services and platform features, and increasing the functionality and features of our existing technology, solutions, services and platform offerings; · developing technology, solutions, services and platforms that result in a high degree of customer satisfaction and a high level of end-customer usage; · successfully responding to competition, including competition from emerging technologies and solutions; · developing and maintaining strategic relationships to enhance the distribution, features, content and utility of our technology, solutions, services and platforms; · identifying, attracting and retaining talented engineering, network operations, program management, technical services, creative services and other personnel at reasonable market compensation rates in the markets in which we employ such personnel; and · integration of potential evolving offerings of products and acquisitions. |
Each $1,000 unit consisted of (i) one share of Series A 6% Convertible Preferred Stock that was convertible at any time at the option of the Holder into common stock at the conversion price of $0.70 per common share based on the total dollar amount invested and (ii) 1,429 warrants (issued for each Series A 6% Convertible Preferred Stock sold in each unit) to purchase common shares of the Company at an exercise price of $1.35 with a life of three years as of the “Effective Date” defined as the earliest date of the following to occur: (a) the initial registration statement required by the Offering Documents had been declared effective by the United States Securities and Exchange Commission (the “SEC”), (b) all of the underlying shares have been sold pursuant to SEC Rule 144 or may be sold pursuant to SEC Rule 144 without the requirement for the Company to be in compliance with the current public information required under SEC Rule 144 and without volume or manner-of-sale restrictions or (c) following the one year anniversary of June 3, 2014. |
The approved transactions include the following: (i) the approval of a potential settlement agreement with Chisholm Partners II, LLC and certain members of Chisholm II, (ii) the approval of the amendment of the Certificate of Designation for the Series A 6% Convertible Preferred Stock modifying the Conversion Price to $0.05, (iii) the Removal of Section 7, “Certain Adjustments” in the Series A 6% Convertible Preferred Stock Certificate of Designation (iv) the modification of the permitted indebtedness allowable under the Series A 6% Convertible Preferred Stock Certificate of Designation to $200,000, (v) the approval of promissory notes with related parties in an amount up to $60,000, (vi) the waiver of the right of redemption upon Triggering Events for the Company’s violations of Section 10 of the Certificate of Designation, (vii) the waiver of the accrual of the late fee for unpaid dividends as of January 1, 2016, (viii) the waiver of the first right of refusal to purchase shares from other Series A 6% Convertible Preferred Shareholders, and (ix) waiver of the “Most Favored Nation” provision in the SPA for the Series A 6% Convertible Preferred Stock, among other things. |
Each $1,000 unit consisted of (i) one share of Series A 6% Convertible Preferred Stock that is convertible at any time at the option of the holder into common stock at the conversion price of $0.70 per common share based on the total dollar amount invested (subject to adjustment) and (ii) 1,429 warrants (issued for each Series A 6% Convertible Preferred Stock sold in each unit) to purchase common shares of the Company at an exercise price of $1.35 for three years of the “Effective Date, “ defined as the earliest date of the following to occur: (a) the initial registration statement required by the Offering Documents has been declared effective by the United States Securities and Exchange Commission (the “SEC”), (b) all of the underlying shares have been sold pursuant to SEC Rule 144 or may be sold pursuant to SEC Rule 144 without the requirement for the Company to be in compliance with the current public information required under SEC Rule 144 and without volume or manner-of-sale restrictions or (c) following the one year anniversary of June 3, 2014. |
The approved transactions include the following: (i) the approval of a potential settlement agreement with Chisholm Partners II, LLC and certain members of Chisholm II, (ii) the approval of the amendment of the Certificate of Designation for the Series A 6% Convertible Preferred Stock modifying the Conversion Price to $0.05, (iii) the Removal of Section 7, “Certain Adjustments” in the Series A 6% Convertible Preferred Stock Certificate of Designation, (iv) the modification of the permitted indebtedness allowable under the Series A 6% Convertible Preferred Stock Certificate of Designation to $200,000, (v) the approval of promissory notes with related parties in an amount up to $60,000, (vi) the waiver of the right of redemption upon Triggering Events for the Company’s violations of Section 10 of the Certificate of Designation, (vii) the waiver of the accrual of the late fee for unpaid dividends as of January 1, 2016, (viii) the waiver of the first right of refusal to purchase shares from other Series A 6% Convertible Preferred Shareholders, and (ix) waiver of the “Most Favored Nation” provision in the SPA for the Series A 6% Convertible Preferred Stock, among other things. |
The approved transactions include the following: (i) the approval of a potential settlement agreement with Chisholm Partners II, LLC and certain members of Chisholm II, (ii) the approval of the amendment of the Certificate of Designation for the Series A 6% Convertible Preferred Stock modifying the Conversion Price to $0.05, (iii) the Removal of Section 7, “Certain Adjustments” in the Series A 6% Convertible Preferred Stock Certificate of Designation, (iv) the modification of the permitted indebtedness allowable under the Series A 6% Convertible Preferred Stock Certificate of Designation to $200,000, (v) the approval of promissory notes with related parties in an amount up to $60,000, (vi) the waiver of the right of redemption upon Triggering Events for the Company’s violations of Section 10 of the Certificate of Designation, (vii) the waiver of the accrual of the late fee for unpaid dividends as of January 1, 2016, (viii) the waiver of the first right of refusal to purchase shares from other Series A 6% Convertible Preferred Shareholders, and (ix) waiver of the “Most Favored Nation” provision in the SPA for the Series A 6% Convertible Preferred Stock, among other things. |
Involvement in Certain Legal Proceedings During the past 10 years, none of our present or former directors, executive officers or persons nominated to become directors or executive officers (or those in similar positions with us) has been the subject of any of the following: (1) A petition under the federal bankruptcy laws or any state insolvency law was filed by or against, or a receiver, fiscal agent or similar officer was appointed by a court for the business or property of such person, or any partnership in which he was a general partner at or within two (2) years before the time of such filing, or any corporation or business association of which he was an executive officer at or within two (2) years before the time of such filing; (2) Such person was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (3) Such person was the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him or her from, or otherwise limiting, the following activities: (i) Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity; (ii) Engaging in any type of business practice; or (iii) Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws; (4) Such person was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than sixty (60) days the right of such person to engage in any activity described in paragraph (f)(3)(i) of this section, or to be associated with persons engaged in any such activity; (5) Such person was found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, and the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended, or vacated; (6) Such person was found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated; (7) Such person was the subject of, or a party to, any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of: (i) Any federal or state securities or commodities law or regulation; or (ii) Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or (iii) Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or (8) Such person was the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C. |
Lock-Up/Leak-Out Agreement Subject to compliance with all of the applicable provisions of SEC Rule 144 as now in effect or hereafter amended, including SEC interpretations thereof, or an effective S-1 Registration Statement filed with the SEC under the Securities Act, which is accompanied by a “current” Resale Prospectus that includes shares of Common Stock covered by the Lock-Up/Leak-Out Agreement that are sought to be publicly sold by a covered shareholder through a registered broker-dealer and except as otherwise expressly provided therein, the covered shareholder may only sell his/her/its common stock subject to the following conditions, commencing on the later of six months from (i) the Effective Time of the KonaTel Merger or the date of purchase by any covered shareholder, as applicable; or (ii) the date of the filing of an 8-K Current Report with the SEC under Item 5.01(8), which includes all applicable audited and reviewed financial statements of the Company and KonaTel, as may be required by applicable securities laws and SEC rules and regulations (the “Lock-Up Period”); provided, however, the Lock-Up Period shall not cover any shares of common stock owned by a covered shareholder that is included in a registration statement, though the provisions of the Leak-Out Period shall continue to be applicable. |
· Notwithstanding, the Company may allow any covered shareholder the right to sell or transfer shares of common stock in a bona fide private transaction or by gift or for estate planning purposes, subject to receipt of an opinion of legal counsel for the Company that there is an available exemption from registration for any such transaction under the Securities Act, and subject to any transferee’s execution and delivery of a copy of this Agreement; provided, however, in such event, the covered shareholder and any transferee in any such conveyance of shares of common stock shall be required to aggregate their respective sales of shares of common stock during the 18 month term of the Lock-Up/Leak-Out Agreement so that the combined sale of shares of common stock sold by the covered shareholder and any transferee does not exceed the number of shares of common stock that could have been sold by the covered shareholder during the Leak-Out Period as if any such transaction had not occurred; and provided, further, however, these provisions of “aggregation” shall not apply to any disposition by operation of law, including the dissolution of an “entity” covered shareholder and the distribution of shares of common stock to its shareholders or members, pro rata, according to their respective interests in any such entity, or specifically, M2. |
Each $1,000 unit consisted of (i) one share of Series A 6% Convertible Preferred Stock that is convertible at any time at the option of the Holder into common stock at the conversion price of $0.70 per common share based on the total dollar amount invested and (ii) 1,429 warrants (issued for each Series A 6% Convertible Preferred Stock sold in each unit) to purchase common shares of the Company at an exercise price of $1.35 with a life of three years as of the “Effective Date” defined as the earliest date of the following to occur: (a) the initial registration statement required by the Offering Documents has been declared effective by the United States Securities and Exchange Commission (the “SEC”), (b) all of the underlying shares have been sold pursuant to SEC Rule 144 or may be sold pursuant to SEC Rule 144 without the requirement for the Company to be in compliance with the current public information required under SEC Rule 144 and without volume or manner-of-sale restrictions or (c) following the one year anniversary of June 3, 2014. |
The approved transactions include the following: (i) the approval of a potential settlement agreement with Chisholm Partners II, LLC and certain members of Chisholm II, (ii) the approval of the amendment of the Certificate of Designation for the Series A 6% Convertible Preferred Stock modifying the Conversion Price to $0.05, (iii) the Removal of Section 7, “Certain Adjustments” in the Series A 6% Convertible Preferred Stock Certificate of Designation (iv) the modification of the permitted indebtedness allowable under the Series A 6% Convertible Preferred Stock Certificate of Designation to $200,000, (v) the approval of promissory notes with related parties in an amount up to $60,000, (vi) the waiver of the right of redemption upon Triggering Events for the Company’s violations of Section 10 of the Certificate of Designation, (vii) the waiver of the accrual of the late fee for unpaid dividends as of January 1, 2016, (viii) the waiver of the first right of refusal to purchase shares from other Series A 6% Convertible Preferred Shareholders, and (ix) waiver of the “Most Favored Nation” provision in the SPA for the Series A 6% Convertible Preferred Stock, among other things. |
Each $1,000 unit consisted of (i) one share of Series A 6% Convertible Preferred Stock that is convertible at any time at the option of the holder into common stock at the conversion price of $0.70 per common share based on the total dollar amount invested (subject to adjustment) and (ii) 1,429 warrants (issued for each Series A 6% Convertible Preferred Stock sold in each unit) to purchase common shares of the Company at an exercise price of $1.35 for three years of the “Effective Date, ” defined as the earliest date of the following to occur: (a) the initial registration statement required by the Offering Documents has been declared effective by the United States Securities and Exchange Commission (the “SEC”), (b) all of the underlying shares have been sold pursuant to SEC Rule 144 or may be sold pursuant to SEC Rule 144 without the requirement for the Company to be in compliance with the current public information required under SEC Rule 144 and without volume or manner-of-sale restrictions or (c) following the one year anniversary of June 3, 2014. |
The approved transactions include the following: (i) the approval of a potential settlement agreement with Chisholm Partners II, LLC and certain members of Chisholm II, (ii) the approval of the amendment of the Certificate of Designation for the Series A 6% Convertible Preferred Stock modifying the Conversion Price to $0.05, (iii) the Removal of Section 7, “Certain Adjustments” in the Series A 6% Convertible Preferred Stock Certificate of Designation (iv) the modification of the permitted indebtedness allowable under the Series A 6% Convertible Preferred Stock Certificate of Designation to $200,000, (v) the approval of promissory notes with related parties in an amount up to $60,000, (vi) the waiver of the right of redemption upon Triggering Events for the Company’s violations of Section 10 of the Certificate of Designation, (vii) the waiver of the accrual of the late fee for unpaid dividends as of January 1, 2016, (viii) the waiver of the first right of refusal to purchase shares from other Series A 6% Convertible Preferred Shareholders, and (ix) waiver of the “Most Favored Nation” provision in the SPA for the Series A 6% Convertible Preferred Stock, among other things. |
The approved transactions include the following: (i) the approval of a potential settlement agreement with Chisholm Partners II, LLC and certain members of Chisholm II, (ii) the approval of the amendment of the Certificate of Designation for the Series A 6% Convertible Preferred Stock modifying the Conversion Price to $0.05, (iii) the Removal of Section 7, “Certain Adjustments” in the Series A 6% Convertible Preferred Stock Certificate of Designation (iv) the modification of the permitted indebtedness allowable under the Series A 6% Convertible Preferred Stock Certificate of Designation to $200,000, (v) the approval of promissory notes with related parties in an amount up to $60,000, (vi) the waiver of the right of redemption upon Triggering Events for the Company’s violations of Section 10 of the Certificate of Designation, (vii) the waiver of the accrual of the late fee for unpaid dividends as of January 1, 2016, (viii) the waiver of the first right of refusal to purchase shares from other Series A 6% Convertible Preferred Shareholders, and (ix) waiver of the “Most Favored Nation” provision in the SPA for the Series A 6% Convertible Preferred Stock, among other things. |
Involvement in Certain Legal Proceedings During the past ten (10) years, none of our present or former directors, executive officers or persons nominated to become directors or executive officers (or those in similar positions with us) has been the subject of any of the following: (1) A petition under the federal bankruptcy laws or any state insolvency law was filed by or against, or a receiver, fiscal agent or similar officer was appointed by a court for the business or property of such person, or any partnership in which he was a general partner at or within two (2) years before the time of such filing, or any corporation or business association of which he was an executive officer at or within two (2) years before the time of such filing; (2) Such person was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (3) Such person was the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him or her from, or otherwise limiting, the following activities: (i) Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity; (ii) Engaging in any type of business practice; or (iii) Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws; (4) Such person was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than sixty (60) days the right of such person to engage in any activity described in paragraph (f)(3)(i) of this section, or to be associated with persons engaged in any such activity; (5) Such person was found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, and the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended, or vacated; (6) Such person was found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated; (7) Such person was the subject of, or a party to, any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of: (i) Any federal or state securities or commodities law or regulation; or (ii) Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or (iii) Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or (8) Such person was the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C. |
The Effective Date is defined as the earliest date of the following to occur: (a) the initial registration statement required by the Offering Documents has been declared effective by the Commission, (b) all of the underlying shares have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 and without volume or manner-of-sale restrictions or (c) following the one year anniversary of the Closing Date provided that a holder of underlying shares is not an Affiliate of the Company, all of the underlying shares may be sold pursuant to an exemption from registration under Section 4(1) of the Securities Act without volume or manner-of-sale restrictions and Company counsel has delivered to such holders a standing written unqualified opinion that re-sales may then be made by such holders of the underlying shares pursuant to such exemption which opinion shall be in form and substance reasonably acceptable to such holders. |
Warrants: · 1.68 year term · Risk-free rate of 0.64% during the two year term · Stock price volatility of 194.22% · Assumption of future stock offerings by the Company of zero in the first nine months of the term and 100% in the next twelve months, with zero probability of being a down round Conversion Feature on Preferred Stock: · Estimated conversion of all preferred shares within 11 months · Risk-free rate of 0.33% based on the assumed one year outstanding · Stock price volatility of 194.22% · Assumption of future stock offerings by the Company of zero in the first nine months of the term and 100% in the next twelve months, with zero probability of being a down round Activity for derivative instruments liability during the year ended September 30, 2015 and the period ended September 30, 2014 was as follows: NOTE 10 - REGISTRATION RIGHTS PENALTY In connection with the private placement and sale of 2,025 units of Series A 6% Convertible Preferred Stock and related warrants at the price of $1,000 per unit, the Company was required to register certain shares of common stock as part of a Registration Rights Agreement. |
Involvement in Certain Legal Proceedings During the past ten (10) years, none of our present or former directors, executive officers or persons nominated to become directors or executive officers (or those in similar positions with us) has been the subject of any of the following: (1) A petition under the federal bankruptcy laws or any state insolvency law was filed by or against, or a receiver, fiscal agent or similar officer was appointed by a court for the business or property of such person, or any partnership in which he was a general partner at or within two (2) years before the time of such filing, or any corporation or business association of which he was an executive officer at or within two (2) years before the time of such filing; (2) Such person was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (3) Such person was the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him or her from, or otherwise limiting, the following activities: (i) Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity; (ii) Engaging in any type of business practice; or (iii) Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws; (4) Such person was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than sixty (60) days the right of such person to engage in any activity described in paragraph (f)(3)(i) of this section, or to be associated with persons engaged in any such activity; (5) Such person was found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, and the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended, or vacated; (6) Such person was found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated; (7) Such person was the subject of, or a party to, any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of: (i) Any federal or state securities or commodities law or regulation; or (ii) Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or (iii) Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or (8) Such person was the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C. |
The Effective Date is defined as the earliest date of the following to occur: (a) the initial registration statement required by the Offering Documents has been declared effective by the Commission, (b) all of the underlying shares have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 and without volume or manner-of-sale restrictions or (c) following the one year anniversary of the Closing Date provided that a holder of underlying shares is not an Affiliate of the Company, all of the underlying shares may be sold pursuant to an exemption from registration under Section 4(1) of the Securities Act without volume or manner-of-sale restrictions and Company counsel has delivered to such holders a standing written unqualified opinion that re-sales may then be made by such holders of the underlying shares pursuant to such exemption which opinion shall be in form and substance reasonably acceptable to such holders. |
Warrants: · Three year term · Risk-free rate of 1.07% during the three year term · Stock price volatility of 162.75% · Assumption of future stock offerings by the Company of zero in the first six months of the term and 100% in the next twelve months, with zero probability of being a down round Conversion Feature on Preferred Stock: · Estimated conversion of all preferred shares within 14 months · Risk-free rate of 0.58% based on the assumed two years outstanding · Stock price volatility of 181.39% · Assumption of future stock offerings by the Company of zero in the first six months of the term and 100% in the next twelve months, with zero probability of being a down round Note 10 - Fair Value Measurements The Company measures fair value in accordance with FASB ASC Topic 820, Fair Value Measurements and Disclosures, which defines fair value, establishes a framework for measuring fair value, establishes a fair value hierarchy based on the quality of inputs used to measure fair value and enhances disclosure requirements for fair value measurements. |
Involvement in Certain Legal Proceedings During the past ten (10) years, none of our present or former directors, executive officers or persons nominated to become directors or executive officers (or those in similar positions with us) has been the subject of any of the following: (1) A petition under the federal bankruptcy laws or any state insolvency law was filed by or against, or a receiver, fiscal agent or similar officer was appointed by a court for the business or property of such person, or any partnership in which he was a general partner at or within two (2) years before the time of such filing, or any corporation or business association of which he was an executive officer at or within two (2) years before the time of such filing; (2) Such person was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (3) Such person was the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him or her from, or otherwise limiting, the following activities: (i) Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity; (ii) Engaging in any type of business practice; or (iii) Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws; (4) Such person was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than sixty (60) days the right of such person to engage in any activity described in paragraph (f)(3)(i) of this section, or to be associated with persons engaged in any such activity; (5) Such person was found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, and the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended, or vacated; (6) Such person was found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated; (7) Such person was the subject of, or a party to, any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of: (i) Any federal or state securities or commodities law or regulation; or (ii) Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or (iii) Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or (8) Such person was the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C. |
Risks associated with operating in foreign countries include, but are not limited to: •political, social and economic instability; •inconsistent product regulation or policy changes by foreign agencies or governments; •war, civil disturbance or acts of terrorism; •the impact of pandemics and other diseases; •trade disputes: •compliance with and changes in applicable foreign laws; •loss or non-renewal of treaties or similar agreements with foreign tax authorities; •difficulties in enforcement of contractual obligations and intellectual property rights; •high social benefits for labor; •national and regional labor strikes; •imposition of limitations on conversions of foreign currencies into U.S. dollars or payment of dividends and other payments by non-U.S. subsidiaries; •foreign exchange rate risks; •difficulties in expatriating cash generated or held by non-U.S. subsidiaries; •uncertainties arising from local business practices and cultural considerations; •changes in tax laws, or the interpretation thereof, affecting foreign tax credits or tax deductions relating to our non-U.S. earnings or operations; •hyperinflation, currency devaluation or defaults in certain foreign countries; •duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; •customs, import/export and other trade compliance regulations or policies; •non-tariff barriers and higher duty rates; •difficulty in collecting international accounts receivable and potentially longer payment cycles; •application of the Foreign Corrupt Practices Act and similar laws; •increased costs in maintaining international manufacturing and marketing efforts; and •taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs and excluding any impact from acquisitions, we believe our cash requirements over the next few years will consist primarily of: •capital expenditures of approximately $230 million in 2021, and thereafter annual capital expenditures of approximately $200 million to $230 million which may increase as a result of specific growth or specific cost savings projects; •principal payments of bank term loans and revolving loans under our Credit Agreement and other outstanding debt agreements and obligations of $26.1 million in 2021, $0.7 million in 2022, $0.7 million in 2023, $400.6 million in 2024, and $2,809.4 million thereafter, which amounts do not give effect to the issuance by us on February 10, 2021 of the 1.4% Notes and the use of the gross proceeds therefrom, except that the maturities of the term loans under our Credit Agreement which were prepaid with such gross proceeds were extended for the purposes of this paragraph to 2026 to match the maturities of the 1.4% Notes; •cash payments for quarterly dividends on our common stock as approved by our Board of Directors; •annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2020 were not significant); •our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and term loans under our Credit Agreement, which bear fluctuating rates of interest, the 4¾% Notes, the 3¼% Notes, the 4⅛% Notes, the 2¼% Notes and the 1.4% Notes; •payments of approximately $110 million to $120 million for federal, state and foreign tax liabilities in 2021, which may increase annually thereafter; and •payments for pension benefit plan contributions, which are not expected to be significant based on the fact that our domestic pension plans were more than 100 percent funded at December 31, 2020. |
The 1.4% Notes and related guarantees rank equally in right of payment with all of our and the subsidiary guarantors’ existing and future senior indebtedness, including under the Credit Agreement and the 4¾% Notes, the 3¼% Notes, the 4⅛% Notes and the 2¼% Notes; be senior in right of payment to all of our and the subsidiary guarantors’ future indebtedness that is by its terms expressly subordinated in right of payment to the 1.4% Notes; rank equally in right of payment to all of our and the subsidiary guarantors’ existing and future senior secured indebtedness (including indebtedness under the Credit Agreement) that is secured by the Collateral on a first-priority basis, to the extent of the value of the Collateral; rank effectively senior to all of our and the subsidiary guarantors’ existing and future unsecured indebtedness and indebtedness secured on a junior basis, in each case to the extent of the value of the Collateral; rank effectively junior to all existing and future indebtedness that is secured by liens on assets that do not constitute a part of the Collateral, to the extent of the value of such assets; and be structurally subordinated to all existing and future indebtedness and other liabilities of each of our existing and future subsidiaries that do not guarantee the 1.4% Notes. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • trade disputes: • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into U.S. dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • difficulties in expatriating cash generated or held by non-U.S. subsidiaries; • uncertainties arising from local business practices and cultural considerations; • changes in tax laws, or the interpretation thereof, affecting foreign tax credits or tax deductions relating to our non-U.S. earnings or operations; • hyperinflation, currency devaluation or defaults in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations or policies; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • application of the Foreign Corrupt Practices Act and similar laws; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs and excluding any impact from acquisitions, (including the proposed acquisition of the Albéa Dispensing Business), we believe our cash requirements over the next few years will consist primarily of: • capital expenditures of approximately $200 million in 2020, and thereafter annual capital expenditures of approximately $175 million to $200 million which may increase as a result of specific growth or specific cost savings projects; • principal payments of bank term loans and revolving loans under our Credit Agreement and other outstanding debt agreements and obligations of $27.9 million in 2020, $3.3 million in 2021, $13.5 million in 2024, and $2,180.9 million thereafter, which amounts do not give effect to the issuance by us on February 26, 2020 of the additional 4⅛% Notes and the 2¼% Notes and the use of the net proceeds therefrom, except that the maturities of the U.S. A term loans under our Credit Agreement which were prepaid with such net proceeds were extended for the purposes of this paragraph to 2028 to match the maturities of the additional 4⅛% Notes and the 2¼% Notes; • cash payments for quarterly dividends on our common stock as approved by our Board of Directors; • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2019 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and term loans under our Credit Agreement, which bear fluctuating rates of interest, the 4¾% Notes, the 3¼% Notes, the 4⅛% Notes and the 2¼% Notes; • payments of approximately $75 million to $95 million for federal, state and foreign tax liabilities in 2020, which may increase annually thereafter; and • payments for pension benefit plan contributions, which are not expected to be significant based on the fact that our domestic pension plans were more than 100 percent funded at December 31, 2019. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into U.S. dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • difficulties in expatriating cash generated or held by non-U.S. subsidiaries; • uncertainties arising from local business practices and cultural considerations; • changes in tax laws, or the interpretation thereof, affecting foreign tax credits or tax deductions relating to our non-U.S. earnings or operations; • hyperinflation, currency devaluation or defaults in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations or policies; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • application of the Foreign Corrupt Practices Act and similar laws; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs and excluding any impact from acquisitions, we believe our cash requirements over the next few years will consist primarily of: • capital expenditures of approximately $200 million in 2019, and thereafter annual capital expenditures of approximately $175 million to $200 million which may increase as a result of specific growth or specific cost savings projects; • principal payments of bank term loans and revolving loans under our Credit Agreement and other outstanding debt agreements and obligations of $170.2 million in 2019, $84.5 million in 2020, $83.2 million in 2021, $383.3 million in 2022, $83.3 million in 2023, $468.8 million in 2024 and $1,044.4 million in 2025; • cash payments for quarterly dividends on our common stock as approved by our Board of Directors; • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2018 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and term loans under our Credit Agreement, which bear fluctuating rates of interest, the 5½% Notes, the 4¾% Notes and the 3¼% Notes; • payments of approximately $50 million to $70 million for federal, state and foreign tax liabilities in 2019, which may increase annually thereafter; and • payments for pension benefit plan contributions, which are not expected to be significant based on the fact that our domestic pension plans were more than 100 percent funded at December 31, 2018. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into U.S. dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • difficulties in expatriating cash generated or held by non-U.S. subsidiaries; • uncertainties arising from local business practices and cultural considerations; • changes in tax laws, or the interpretation thereof, affecting foreign tax credits or tax deductions relating to our non-U.S. earnings or operations; • hyperinflation, currency devaluation or defaults in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • application of the Foreign Corrupt Practices Act and similar laws; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs and excluding any impact from acquisitions, we believe our cash requirements over the next few years will consist primarily of: • capital expenditures of approximately $200 million in 2018, and thereafter annual capital expenditures of approximately $175 million to $200 million which may increase as a result of specific growth or specific cost savings projects; • principal payments of bank term loans and revolving loans under our Credit Agreement and other outstanding debt agreements of $108.8 million in 2018, $86.5 million in 2019, $361.5 million in 2020, $83.6 million in 2021, $383.6 million in 2022, $459.9 million in 2023 and $1,080.4 million in 2025; • cash payments for quarterly dividends on our common stock as approved by our Board of Directors; • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2017 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and term loans under our Credit Agreement, which bear fluctuating rates of interest, the 5% Notes, the 5½% Notes, the 4¾% Notes and the 3¼% Notes; • payments of approximately $50 million to $70 million for federal, state and foreign tax liabilities in 2018, which may increase annually thereafter; and • payments for pension benefit plan contributions, which are not expected to be significant based on the fact that our domestic pension plans were more than 100 percent funded at December 31, 2017. |
The Term Loans are payable in installments as follows (expressed as a percentage of the original principal amount of the applicable Term Loan outstanding on the date that it is borrowed), with the remaining outstanding principal amounts to be repaid on the maturity date of the Term Loans: If, on the date that is 91 days prior to the maturity date of any of the 5% Senior Notes due 2020 and the 5½% Senior Notes due 2022, or collectively the Prior Notes, all of the Prior Notes that mature on such maturity date have not been (a) repaid in full, (b) amended to extend the final maturity date thereof to a date that is more than 90 days after the maturity date of the Revolving Loans or the Terms Loans, as applicable, or (c) refinanced with other senior notes with a final maturity date that is more than 90 days after the maturity date of the Revolving Loans or the Terms Loans, as applicable, then the Revolving Loans and the Term Loans will mature on the date that is 91 days prior to the earliest maturity date of the Prior Notes that remain outstanding. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into U.S. dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • difficulties in expatriating cash generated or held by non-U.S. subsidiaries in a tax efficient manner; • uncertainties arising from local business practices and cultural considerations; • changes in tax laws, or the interpretation thereof, affecting foreign tax credits or tax deductions relating to our non-U.S. earnings or operations; • hyperinflation, currency devaluation or defaults in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • application of the Foreign Corrupt Practices Act and similar laws; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs and excluding any impact from acquisitions (including the pending acquisition of the Dispensing Systems Business), we believe our cash requirements over the next few years will consist primarily of: • capital expenditures of approximately $150 million in 2017, and thereafter annual capital expenditures of approximately $130 million to $160 million which may increase as a result of specific growth or specific cost savings projects; • principal payments of bank term loans and revolving loans under our Credit Agreement and other outstanding debt agreements of $217.1 million in 2017, $9.2 million in 2018, $2.8 million in 2019, $633.2 million in 2020, $300.0 million in 2022 and $408.9 million in 2025, which amounts do not give effect to the issuance by us on February 13, 2017 of the 4¾% Notes and the 3¼% Notes and the use of the net proceeds therefrom, except that the maturities of the term loans under our Credit Agreement which were repaid with such net proceeds were extended for the purposes of this paragraph to 2025 to match the maturities of the 4¾% Notes and the 3¼% Notes; • cash payments for quarterly dividends on our common stock as approved by our Board of Directors; • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2016 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and term loans under our Credit Agreement, which bear fluctuating rates of interest, the 5% Notes, the 5½% Notes, the 4¾% Notes and the 3¼% Notes; • payments of approximately $80 million to $90 million for federal, state and foreign tax liabilities in 2017, which may increase annually thereafter; and • payments for pension benefit plan contributions, which are not expected to be significant based on the fact that our domestic pension plans were more than 100 percent funded at December 31, 2016. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into U.S. dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • difficulties in expatriating cash generated or held by non-U.S. subsidiaries in a tax efficient manner; • uncertainties arising from local business practices and cultural considerations; • changes in tax laws, or the interpretation thereof, affecting foreign tax credits or tax deductions relating to our non-U.S. earnings or operations; • hyperinflation, currency devaluation or defaults in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • application of the Foreign Corrupt Practices Act and similar laws; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs and excluding any impact from acquisitions, we believe our cash requirements over the next few years will consist primarily of: • capital expenditures of approximately $170 million in 2016, which includes carryover amounts for the three new manufacturing facilities in the United States that we began constructing in 2015, and thereafter annual capital expenditures of approximately $120 million to $160 million which may increase as a result of projects emanating out of Can Vision 2020SM; • principal amortization payments of bank term loans under our Credit Agreement and other outstanding debt agreements of $152.4 million in 2016, $75.0 million in 2017, $68.5 million in 2018, $2.9 million in 2019, $927.0 million in 2020 and $300.0 million in 2022; • cash payments for quarterly dividends on our common stock as approved by our Board of Directors; • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2015 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and term loans under our Credit Agreement, which bear fluctuating rates of interest, the 5½% Notes and the 5% Notes; • payments of approximately $90 million to $110 million for federal, state and foreign tax liabilities in 2016, which may increase annually thereafter; and • payments for pension benefit plan contributions, which are not expected to be significant based on the fact that our domestic pension plans were more than 100 percent funded at December 31, 2015. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into U.S. dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • difficulties in expatriating cash generated or held by non-U.S. subsidiaries in a tax efficient manner; • uncertainties arising from local business practices and cultural considerations; • changes in tax laws, or the interpretation thereof, affecting foreign tax credits or tax deductions relating to our non-U.S. earnings or operations; • hyperinflation, currency devaluation or defaults in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • application of the Foreign Corrupt Practices Act and similar laws; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs and the amounts necessary to fund the Offer, and excluding any impact from acquisitions, we believe our cash requirements over the next few years will consist primarily of: • capital expenditures of approximately $250 million in 2015, which includes amounts for our three recently announced new manufacturing facilities in the United States, and thereafter annual capital expenditures of approximately $120 million to $160 million which may increase as a result of projects emanating out of Can Vision 2020SM; • principal amortization payments of bank term loans under our Credit Agreement and other outstanding debt agreements of $125.1 million in 2015, $75.6 million in 2016, $72.2 million in each of 2017 and 2018, $3.0 million in 2019, $950.9 million in 2020 and $300.0 million in 2022; • cash payments for quarterly dividends on our common stock as approved by our Board of Directors; • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2014 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and term loans under our Credit Agreement, which bear fluctuating rates of interest, the 5½% Notes and the 5% Notes; • payments of approximately $90 million to $110 million for federal, state and foreign tax liabilities in 2015, which may increase annually thereafter; and • payments for pension benefit plan contributions, which are not expected to be significant based on the fact that our domestic pension plans were more than 100 percent funded at December 31, 2014. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • difficulties in expatriating cash generated or held by non-U.S. subsidiaries in a tax efficient manner; • uncertainties arising from local business practices and cultural considerations; • changes in tax laws, or the interpretation thereof, affecting foreign tax credits or tax deductions relating to our non-U.S. earnings or operations; • hyperinflation, currency devaluation or defaults in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • application of the Foreign Corrupt Practices Act and similar laws; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs and excluding any impact from acquisitions, we believe our cash requirements over the next few years will consist primarily of: • annual capital expenditures of approximately $120 million to $160 million, which may increase as a result of projects emanating out of Can Vision 2020 SM; • principal amortization payments of bank term loans under the Credit Agreement and other outstanding debt agreements of $126.2 million in 2014, $46.7 million in 2015, $76.9 million in each of 2016, 2017 and 2018, $480.7 million in 2019, $501.7 million in 2020 and $300.0 million in 2022; • cash payments for quarterly dividends on our common stock as approved by our Board of Directors; • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2013 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and term loans under the Credit Agreement, which bear fluctuating rates of interest, the 5½% Notes and the 5% Notes; • payments of approximately $100 million to $120 million for federal, state and foreign tax liabilities in 2014, which may increase annually thereafter; and • payments for pension benefit plan contributions, which are not expected to be significant based on the current funded status of our domestic pension plans at December 31, 2013. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • difficulties in expatriating cash generated or held by non-U.S. subsidiaries in a tax efficient manner; • uncertainties arising from local business practices and cultural considerations; • changes in tax laws, or the interpretation thereof, affecting foreign tax credits or tax deductions relating to our non-U.S. earnings or operations; • hyperinflation, currency devaluation or defaults in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • application of the Foreign Corrupt Practices Act and similar laws; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs and excluding any impact from pending acquisitions, we believe our cash requirements over the next few years will consist primarily of: • annual capital expenditures of $120 million to $150 million; • principal amortization payments of bank term loans under our Credit Agreement and other outstanding debt agreements of $255.3 million in 2013, $164.5 million in 2014, $214.2 million in 2015, $212.3 million in 2016, $316.7 million in 2017 and $508.3 million in 2018; • cash payments for quarterly dividends on our common stock as approved by our Board of Directors; • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2012 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and term loans under our Credit Agreement, which bear fluctuating rates of interest, and the 5% Notes; • payments of approximately $100 million to $120 million for federal, state and foreign tax liabilities in 2013, which may increase annually thereafter; and • payments for pension benefit plan contributions, which will be dependent on the funded status of our pension benefit plans. |
Other factors that could cause the actual results of our operations or our financial condition to differ from those expressed or implied in these forward-looking statements include, but are not necessarily limited to, our ability to effect cost reduction initiatives and realize benefits from capital investments; our ability to satisfy our obligations under our contracts; the impact of customer claims; compliance by our suppliers with the terms of our arrangements with them; changes in consumer preferences for different packaging products; changes in general economic conditions; the idling or loss of one or more of our significant manufacturing facilities; significant information technology security breaches or disruptions; significant increases in the costs of health care benefits in the United States as well as the unknown impact of recent health care legislation in the United States which is scheduled to become effective over the next several years; the adoption of new accounting standards or interpretations; changes in income tax provisions; and other factors described elsewhere in this Annual Report or in our other filings with the SEC. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • difficulties in expatriating cash generated or held by non-U.S. subsidiaries in a tax efficient manner; • uncertainties arising from local business practices and cultural considerations; • changes in tax laws, or the interpretation thereof, affecting foreign tax credits or tax deductions relating to our non-U.S. earnings or operations; • hyperinflation, currency devaluation or defaults in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs and excluding any impact from pending acquisitions, we believe our cash requirements over the next few years will consist primarily of: • annual capital expenditures of $125 to $150 million; • principal amortization payments of bank term loans under our Credit Agreement and other outstanding debt agreements of $87.8 million in 2012, $159.0 million in each of 2013 and 2014, $208.7 million in 2015, $456.6 million in 2016 and $309.9 million in 2017 (or 2016 if our 7 1/4% Notes have not been repaid or refinanced on or before July 7, 2016); • cash payments for quarterly dividends on our common stock of approximately $8.5 million (assuming our Board of Directors continues to approve dividends at the same level); • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2011 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and term loans under our Credit Agreement, which bear fluctuating rates of interest, and the 7 1/4% Notes; • payments of approximately $100 to $120 million for federal, state and foreign tax liabilities in 2011, which may increase annually thereafter; and • payments for pension benefit plan contributions which will be dependent on the funded status of our pension benefit plans. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • difficulties in expatriating cash generated or held by non-U.S. subsidiaries in a tax efficient manner; • changes in tax laws, or the interpretation thereof, affecting foreign tax credits or tax deductions relating to our non-U.S. earnings or operations; • hyperinflation and currency devaluation in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs and excluding any impact from pending acquisitions, we believe our cash requirements over the next few years will consist primarily of: • annual capital expenditures of $110 to $140 million, although capital expenditures in 2011 may be higher as a result of our decision to shift some capital expenditures from 2010 to 2011 to take advantage of available tax benefits in 2011; • principal amortization payments of bank term loans under our Credit Agreement and other outstanding debt agreements of $13.9 million in 2011, $96.9 million in 2012, $96.9 million in 2013, $129.3 million in 2014, $129.3 million in 2015 and $444.0 million in 2016; • cash payments for quarterly dividends on our common stock of approximately $7.8 million (assuming our Board of Directors continues to approve dividends at the same level); • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2010 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and term loans under our Credit Agreement, which bear fluctuating rates of interest, and the 7 1/4% Notes; • payments of approximately $85 to $95 million for federal, state and foreign tax liabilities in 2011, which may increase annually thereafter; and • payments for pension benefit plan contributions which will be dependent on the funded status of our pension benefit plans. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • difficulties in expatriating cash generated or held by non-U.S. subsidiaries in a tax efficient manner; • changes in tax laws, or the interpretation thereof, affecting foreign tax credits or tax deductions relating to our non-U.S. earnings or operations; • hyperinflation and currency devaluation in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs, we believe our cash requirements over the next few years will consist primarily of: • annual capital expenditures of $110 to $140 million; • principal amortization payments of bank term loans under our Credit Agreement and other outstanding debt agreements of $26.1 million in 2010, $178.0 million in 2011, $151.7 million in 2012 and $200.0 million in 2013; • cash payments for quarterly dividends on our common stock of approximately $8.2 million (assuming our Board of Directors continues to approve dividends at the same level); • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2009 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and bank term loans under our Credit Agreement, which bear fluctuating rates of interest, the 6 3/4% Notes and the 7 1/4% Notes; • payments of approximately $85 to $95 million for federal, state and foreign tax liabilities in 2010, which may increase annually thereafter; and • payments for pension benefit plan contributions which will be dependent on the funded status of our pension benefit plans. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • hyperinflation and currency devaluation in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs, we believe our cash requirements over the next few years will consist primarily of: • annual capital expenditures of $110 to $140 million; • principal amortization payments of bank term loans under our Credit Agreement and other outstanding debt agreements of $158.9 million in 2009, $128.1 million in 2010, $212.6 million in 2011 and $185.3 million in 2012; • cash payments for quarterly dividends on our common stock of approximately $7.3 million (assuming our Board of Directors continues to approve dividends at the same level); • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2008 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and bank term loans under our Credit Agreement, which bear fluctuating rates of interest, and the 6 3/4% Notes; • payments of approximately $75 to $85 million for federal, state and foreign tax liabilities in 2009 as a result of recent tax laws, which may increase annually thereafter; and • payments of approximately $23 million for pension benefit plan contributions in 2009 (which were made in February 2009), which may change annually thereafter based on the funded status of our pension benefit plans. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • hyperinflation and currency devaluation in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs, we believe our cash requirements over the next few years will consist primarily of: • annual capital expenditures of $110 to $140 million; • principal amortization payments of bank term loans under the Credit Agreement and other outstanding debt agreements of $112.9 million in 2008, $130.4 million in each of 2009 and 2010 and $222.3 million in 2011; • cash payments for quarterly dividends on our common stock of approximately $6.5 million (assuming our Board of Directors continues to approve dividends at the same level); • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2007 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and bank term loans under the Credit Agreement, which bear fluctuating rates of interest, and the 6 3/4% Notes; and • payments of approximately $65 to $75 million for federal, state and foreign tax liabilities in 2008, which includes the benefits from the recent Economic Stimulus Act of 2008 and which may increase annually thereafter. |
Risks associated with operating in foreign countries include, but are not limited to: • political, social and economic instability; • inconsistent product regulation or policy changes by foreign agencies or governments; • war, civil disturbance or acts of terrorism; • compliance with and changes in applicable foreign laws; • loss or non-renewal of treaties or similar agreements with foreign tax authorities; • difficulties in enforcement of contractual obligations and intellectual property rights; • high social benefits for labor; • national and regional labor strikes; • imposition of limitations on conversions of foreign currencies into dollars or payment of dividends and other payments by non-U.S. subsidiaries; • foreign exchange rate risks; • hyperinflation and currency devaluation in certain foreign countries; • duties, taxes or government royalties, including the imposition or increase of withholding and other taxes on remittances and other payments by non-U.S. subsidiaries; • customs, import/export and other trade compliance regulations; • non-tariff barriers and higher duty rates; • difficulty in collecting international accounts receivable and potentially longer payment cycles; • increased costs in maintaining international manufacturing and marketing efforts; and • taking of property by nationalization or expropriation without fair compensation. |
In addition to our operating cash needs, we believe our cash requirements over the next few years will consist primarily of: • annual capital expenditures of $110 to $140 million; • principal amortization payments of bank term loans under the Credit Agreement and other outstanding debt agreements of $26.4 million in 2007, $92.5 million in 2008 and $124.8 million in 2009; • cash payments for quarterly dividends on our common stock of approximately $6.0 million (assuming our Board of Directors continues to approve dividends at the same level); • annual payments to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested, which payments are dependent upon the price of our common stock at the time of vesting and the number of restricted stock units that vest, none of which is estimable at this time (payments in 2006 were not significant); • our interest requirements, including interest on revolving loans (the principal amount of which will vary depending upon seasonal requirements) and bank term loans under the Credit Agreement, which bear fluctuating rates of interest, and the 6 3/4% Notes; and • payments of approximately $50 to $60 million for federal, state and foreign tax liabilities in 2007, which may increase annually thereafter. |
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