17 unchanged sentences
Changes in internal control over financial reporting
−Removed: During the quarter ended December 31, 2019 , following steps to remediate our previously disclosed material weakness through various process improvements, including the hiring of additional associates to allow for segregated levels of review, we concluded the material weakness to be remediated.
−Removed: There were no other changes in our internal control over financial reporting that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
+Added: During the quarter ended December 31, 2020, there were no changes in our internal control over financial reporting that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Attestation Report of Independent Registered Public Accounting Firm
2 unchanged sentences
OTHER INFORMATION
−Removed: DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
−Removed: Biographical information concerning each of the Company’s directors as of February 29, 2020 is set forth below.
−Removed: Each director’s term of office expires at the 2020 Annual Meeting of Stockholders, which is currently expected to occur during June 2020.
−Removed: Jennifer Cheng
−Removed: Cheng has served as a member of our board of directors since February 2019.
−Removed: She is the co-founder and has served as director on the board of Social Energy Partners LLC, which develops sustainability and smart building/smart city projects in the United States, Caribbean, Southeast Asia and the Middle East, since September 2017.
−Removed: Cheng also served as an independent director within the meaning of the NASDAQ Marketplace Rules (“Independent Director”) of the Company from 2012 to 2015.
−Removed: From 1997 to 2006, Ms.
−Removed: Cheng was the co-founder and chairwoman of The X/Y Group, a marketing enterprise that markets and distributes global consumer brand products, including JanSport and Skechers in the greater China region.
−Removed: From 1995 to 1998, Ms.
−Removed: Cheng was a marketing director for Molten Metal Technology, a Boston-based clean energy company that developed patented technologies and offered solutions for advanced treatment and energy recycling for hazardous radioactive waste.
−Removed: Cheng received a Master’s degree in Business Administration from Fairleigh Dickinson University and a Bachelor’s degree in Economics and International Business from Rutgers University.
−Removed: Our board of directors believes that Ms.
−Removed: Cheng’s qualifications to serve as a board member include her familiarity with the Company due to her prior service as a director and her experience with and insight into businesses focused on energy efficiency.
−Removed: Ms.Cheng has served as a member of the Nominating and Corporate Governance Committee since February 2019.
−Removed: Gina Huang (Mei Yun Huang)
−Removed: Huang has served as a member of our board of directors since January 2020.
−Removed: She is the Founder and since January 1994, has been Honorary Chairwoman of Ti Town Technology Limited, an advanced industrial and mechanical equipment manufacturer based in Taiwan that specializes in the design, production, marketing and sales of corrosion-resistant pumps and motors, advanced filters and specialty alloys for semiconductor, electronic and chemical manufacturing industries, with offices across Asia and sales across the world.
−Removed: Since February 1996.
−Removed: Huang has also been the Founder and Chairwoman of Da Fa Industrial Limited, an investment company focusing on the global mining sector, Ms.
−Removed: Huang has founded each of Brilliant Start Limited and Jag International Limited, both investment companies focusing on technologies and special situations.
−Removed: Brilliant Start Limited and Jag International Limited were both founded in 2012, and Ms.
−Removed: Huang has served as Chairwoman of each since they were founded.
−Removed: Huang is a significant stockholder in the Company.
−Removed: Huang received a B.A.
−Removed: degree in Textile Design from Vanung University in Taiwan.
−Removed: Our board of directors believes Ms.
−Removed: Huang’s experience in manufacturing and her contacts with manufacturers in Asia as well as her significant investment in the Company qualify her to serve as a board member.
−Removed: Geraldine McManus
−Removed: McManus has served as a member of our board of directors since February 2019.
−Removed: She has been a Managing Member of Granger Management, an independent investment business, since May 2014.
−Removed: Previously, she was a Managing Director in the Investment Management Division at Goldman Sachs, where she worked from February 1998 until February 2014 and helped build its Private Wealth Management business, including structuring its business model and key functions focused on ultra-high net worth individuals and family groups.
−Removed: Prior to joining Goldman Sachs, Ms.
−Removed: McManus spent six years at Merrill Lynch as a Managing Director heading the Yankee Debt Capital Markets Group, advising sovereigns, supranational and international corporations on global debt issuance and liability management.
−Removed: Before working at Merrill Lynch, Ms.
−Removed: McManus spent six years at Salomon Brothers, two years as an associate in Corporate Finance and four years as a Product Specialist in the Hedge Management/Derivatives Group.
−Removed: McManus received a B.S.
−Removed: from Cornell University and an M.B.A.
−Removed: from Wharton.
−Removed: She serves on the Board of Trustees for The Delbarton School in Morristown, New Jersey, The Caron Foundation in Wernersville, Pennsylvania and The Jane Goodall Institute.
−Removed: Our board of directors believes that Ms.
−Removed: McManus’s qualifications to serve as a board member include her experience in evaluating businesses for investment, her achievements in building organizational structures and her non-profit board service.
−Removed: McManus serves as member of the Audit and Finance Committee and chair of the Nominating and Corporate Governance Committee.
−Removed: Philip Politziner
−Removed: Politziner has served as a member of our board of directors since August 2019.
−Removed: He was a founder, president and a member of the board of directors of Amper Politziner and Mattia.
−Removed: Amper Politziner and Mattia is one of two predecessor firms to Eisner Amper LLC, a full service advisory and accounting firm.
−Removed: Politziner retired from Eisner Amper in 2015, last serving as Chairman Emeritus.
−Removed: Politziner was appointed as a member of the Board of Directors of Jensyn Acquisition Corporation (NASDAQ:
−Removed: JSYN) in 2016, where he had been the chair of the audit committee until June 2019 when it consummated its merger with Peck Electric Co.
−Removed: He had served on the board of directors of Baker Tilly International North America, the Board of Directors of New Jersey Technology Council and the Board of Directors of Middlesex County Regional Chamber of Commerce.
−Removed: He has served on the Advisory Board of Jump Start New Jersey Angel Fund.
−Removed: He was awarded the Chamber of Commerce “Community Leader of Distinction” and was inducted into NJBiz Hall of Fame for businesspeople in New Jersey.
−Removed: He also appears in Who’s Who in Corporate Finance.
−Removed: Politziner received his B.S.
−Removed: in accounting from New York University and is currently licensed as a CPA in New Jersey.
−Removed: He is a member of the American Institute of Certified Public Accountants (AICPA) and the New Jersey Society of Certified Public Accountants (NJSCPA).
−Removed: Our board of directors believes that Mr.
−Removed: Politziner’s qualifications to serve as a board member include his considerable experience with financial and accounting matters and SEC compliance matters as the chair of the audit committee of a public company.
−Removed: Politziner serves as chair of the Audit and Finance Committee.
−Removed: Stephen Socolof
−Removed: Socolof has served as a member of our board of directors since May 2019.
−Removed: Socolof has been Managing Partner of Tech Council Ventures, an early-stage venture capital firm, since 2017 and remains a Managing Partner of New Venture Partners, a venture capital firm that he co-founded in 2001.
−Removed: Previously, Mr.
−Removed: Socolof worked at Lucent Technologies, Inc.
−Removed: from 1996 to 2001 where he established Lucent’s New Ventures Group.
−Removed: Before joining Lucent, Mr.
−Removed: Socolof spent eight years with Booz, Allen & Hamilton Inc., where he was a leader of the firm’s innovation consulting practice.
−Removed: Socolof is currently a director or observer on the boards of Stratis IoT, SunRay Scientific, Vydia Inc., and Everspin Technologies Inc., which is a semiconductor and electronics technology company listed on the NASDAQ Global Market.
−Removed: He was a director of Gainspan Corporation before its acquisition by Telit Communications, Silicon Hive, until its acquisition by Intel Corporation, SyChip, Inc.
−Removed: before its acquisition by Murata, and a board observer of Flarion Technologies, Inc., until its acquisition by Qualcomm Inc.
−Removed: Socolof holds a Bachelor of Arts degree in economics and a Bachelor of Science degree in mathematical sciences from Stanford University and received his M.B.A.
−Removed: from the Amos Tuck School at Dartmouth College, where he was a Tuck Scholar.
−Removed: He currently serves on the Board of Advisors of the Center for the Study of Private Equity at the Tuck School.
−Removed: Our board of directors believes that Mr.
−Removed: Socolof’s qualifications to serve as a board member include his long history of investing in technology growth companies, his significant leadership experience in the corporate venture community and his experience as a public company board member, as well as his financial, business and investment expertise.
−Removed: Socolof currently serves on the Audit and Finance Committee and as chair of the Compensation Committee.
−Removed: Tu has served as our Chairman and Chief Executive officer since April 2019.
−Removed: He is also the founder and Chief Executive Officer of Social Energy Partners LLC, which develops energy efficiency and smart building projects, and founder and Chief Investment Officer of 5 Elements Global Advisors LLC, which focuses on investing in the cleantech sector and is a significant stockholder in the Company.
−Removed: Tu served as the Executive Chairman and Chief Executive Officer of the Company from May 2013 to February 2017, and as the non-Executive Chairman of the board of directors from December 2012 to April 2013.
−Removed: Previously, he served as the Director of Investment Management of Gerstein Fisher & Associates, and an equity analyst at Dolphin Asset Management Corp.
−Removed: Tu received an MBA in finance from Baruch College and a B.S.
−Removed: in electrical engineering from Tsinghua University.
−Removed: A Chartered Financial Analyst (CFA) since 1997, he received an “E&Y Entrepreneur of the Year” award in the Technology category in 2016.
−Removed: Our board of directors believes that Mr.
−Removed: Tu’s qualifications to serve as a board member include his role as the Company’s Chief Executive Officer, as well as his experience advising clean energy companies.
−Removed: Executive Officers
−Removed: The following table sets forth certain information about the executive officers and certain significant employees.
−Removed: There are no family relationships among any of our directors and executive officers.
−Removed: For biographical information regarding our executive officers, see the discussion under “Biographical Information” below.
−Removed: Chairman and Chief Executive Officer
−Removed: President, Chief Financial Officer and Secretary
−Removed: Biographical Information
−Removed: See the discussion under “Directors” above.
−Removed: From 2017 to 2018, Mr.
−Removed: Nestor served as Executive Vice President and Chief Financial Officer of Alumni Ventures Group, a Manchester, New Hampshire based venture capital firm with the most active global transaction volume in 2018 according to PitchBook.
−Removed: Between 2013 and 2016, Mr.
−Removed: Nestor served as the Chief Financial Officer of Merchants Automotive Group, Inc., a privately held, $300 million in revenue in 2016 fleet management, short-term rental, automobile retail and consumer financing company.
−Removed: Previously, Mr.
−Removed: Nestor also served as Senior Vice President and Chief Financial Officer of The Penn Traffic Company, a $1.5 billion in revenue in 2009 publicly traded grocery distribution company, and Chief Financial Officer for Fairway Holdings Corp., a privately held, $750 million in revenue in 2011 grocery store chain based in the greater New York City region.
−Removed: Earlier in his career, Mr.
−Removed: Nestor held other senior leadership roles across a wide array of functions in large organizations such as American Eagle Outfitters, HJ Heinz, and WR Grace.
−Removed: Nestor received a Bachelor of Business Administration degree in Accounting from the University of Notre Dame and an MBA in Finance and Entrepreneurial Management from The Wharton School of the University of Pennsylvania.
−Removed: He is also a licensed Certified Public Accountant (CPA), Certified Management Account (CMA), Certified Financial Manager (CFM), and Chartered Financial Analyst (CFA).
−Removed: Senior Management
−Removed: John Davenport
−Removed: John Davenport currently serves as Chief Scientist for Energy Focus.
−Removed: Davenport joined Energy Focus in November 1999 as Vice President and Chief Technology Officer and served as Chief Operating Officer from July 2005 until May 2008 and President from May 2008 until July 2012.
−Removed: Prior to joining Energy Focus, Mr.
−Removed: Davenport served as President of Unison Fiber Optic Lighting Systems, LLC from 1998 to 1999.
−Removed: Davenport began his career at GE Lighting in 1972 as a research physicist and thereafter served 25 years in various capacities, including GE Lighting’s research and development manager and as development manager for high performance LED projects.
−Removed: He is a recognized global expert in light sources, lighting systems and lighting applications, with special emphasis in low wattage discharge lamps, electronic ballast technology and distributed lighting systems.
−Removed: Davenport developed numerous advanced lighting products for GE Lighting, including the blue Xenon headlamp currently used in automobiles.
−Removed: During his tenure with Energy Focus, Mr.
−Removed: Davenport led the development of a range of LED lighting products, including Intellitube®, Energy Focus’ unique tubular LED retrofit lamp.
−Removed: He is the author of more than 125 patents.
−Removed: Davenport received a Master’s degree in Physics and a Bachelor of Science degree in Physics from John Carroll University.
−Removed: Audit and Finance Committee
−Removed: The Company’s Audit and Finance Committee acts as the standing audit committee of our board of directors.
−Removed: The Audit and Finance Committee, which currently consists of Mr.
−Removed: Politziner, as chair, Mr.
−Removed: Socolof and Ms.
−Removed: McManus, held six meetings in 2019.
−Removed: Each of the members of the Audit and Finance Committee is an Independent Director and is also independent under the criteria established by the SEC and NASDAQ for audit committee membership.
−Removed: Our board of directors has determined that Mr.
−Removed: Politziner is an “audit committee financial expert,” as defined under the rules of the SEC.
−Removed: Our board has approved a charter for the Audit and Finance Committee .
−Removed: A copy of this charter can be found on the Company’s website at http://www.energyfocus.com .
−Removed: The Audit and Finance Committee’s primary functions are to assist our board of directors in its oversight of the integrity of the Company’s financial statements and other financial information, the Company’s compliance with legal and regulatory requirements, the qualifications, independence and performance of the Company’s independent registered public accounting firm.
−Removed: More specifically, the Audit Committee:
−Removed: appoints, compensates, evaluates and, when appropriate, replaces the Company’s independent registered public accounting firm;
−Removed: reviews and pre-approves audit and permissible non-audit services;
−Removed: reviews the scope of the annual audit;
−Removed: monitors the independent registered public accounting firm’s relationship with the Company;
−Removed: meets with the independent registered public accounting firm and management to discuss and review the Company’s financial statements, internal controls, and auditing, accounting and financial reporting processes.
−Removed: Code of Ethics
−Removed: We have adopted a Code of Ethics and Business Conduct, which applies to all of our directors, officers, and employees.
−Removed: Our Code of Ethics and Business Conduct can be found on our website at www.energyfocus.com.
−Removed: Any person may receive a copy free of charge by writing to us at Energy Focus, Inc., 32000 Aurora Road, Suite B, Solon, Ohio 44139, Attention:
−Removed: We intend to disclose on our website any amendment to, or waiver from, a provision of our Code of Ethics and Business Conduct that applies to our directors and executive officers, including our principal executive officer, principal financial officer, principal accounting officer or controller, or any persons performing similar functions, and that is required to be publicly disclosed pursuant to the rules of the SEC.
−Removed: Delinquent Section 16(a) Reports
−Removed: Section 16(a) of the Exchange Act requires our officers, directors and persons owning more than 10% of a registered class of our equity securities, who collectively we generally refer to as insiders, to file certain reports regarding ownership of, and transactions in, our securities with the SEC.
−Removed: Such insiders are also required by SEC rules to furnish us with copies of all Section 16(a) reports they file.
−Removed: Based solely on our review of such reports filed with the SEC and written representations from the reporting persons, we believe that all of our insiders filed the required reports on a timely basis under Section 16(a) for fiscal year 2019, except (i) Ms.
−Removed: Cheng inadvertently filed two late Form 4s with respect to two transactions;
−Removed: McManus inadvertently filed two late Form 4s with respect to two transactions;
−Removed: (iii) the Former Schedule 13D Parties inadvertently filed one late Form 4 with respect to two transactions;
−Removed: Socolof inadvertently filed one late Form 3 after being appointed a director and two late Form 4s with respect to two transactions;
−Removed: Nestor inadvertently filed one late Form 3 after being appointed President, Chief Financial Officer and Secretary;
−Removed: Politziner inadvertently filed one late Form 4 with respect to one transaction.
−Removed: EXECUTIVE COMPENSATION
−Removed: Summary Compensation Table
−Removed: The following table sets forth information about compensation of our current and former Chief Executive Officer;
−Removed: and our current and former Chief Financial Officer (our “Named Executive Officers”) for the years indicated:
−Removed: Name and Principal Position
−Removed: Salary ($) (1)
−Removed: Option Awards
−Removed: Non-Equity Incentive Plan Compensation
−Removed: All Other Compensation
−Removed: Tewksbury, III
−Removed: Former Chairman, Chief Executive Officer and President (6)
−Removed: Tod Nestor (7)
−Removed: Former Chief Financial Officer and Secretary (8)
−Removed: Amounts paid in 2018 and 2019 reflect adjustments to implement salary increases and the timing of payroll dates.
−Removed: Under SEC rules, the values reported reflect the aggregate grant date fair values computed in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718 (“FASB ASC Topic 718”), to each of the Named Executive Officers in the years shown.
−Removed: We calculate the grant date fair value of stock option grants using the Black-Scholes option pricing model.
−Removed: We calculate the fair value of RSU grants based on the closing stock price on the grant date.
−Removed: A discussion of the assumptions used in calculating the fair value is set forth in Note 11 to the Consolidated Financial Statements contained in Item 8 of the 10-K Filing.
−Removed: The amounts set forth in this column are amounts paid under the Company’s cash incentive program, which is described below under “Cash incentive plan.”
−Removed: The amounts set forth in this column include Company-paid contributions for life insurance and supplemental disability policies
−Removed: Tu joined the Company as an executive officer on April 2, 2019.
−Removed: Amounts reported reflect amounts earned for the portion of 2019 Mr.
−Removed: Tu was an employee.
−Removed: Tewksbury served as the Chairman, Chief Executive Officer and President until the 10-K Filing on April 1, 2019.
−Removed: Nestor joined the Company as an executive officer on July 1, 2019.
−Removed: Amounts reported reflect amounts earned for the portion of 2019 Mr.
−Removed: Nestor was an employee.
−Removed: Turin was appointed as Chief Financial Officer and Secretary on May 29, 2018 and served until the 10-K Filing on April 1, 2019.
−Removed: Narrative Disclosure to Summary Compensation Table
−Removed: The Compensation Committee (the “Committee”) of our board of directors generally has the responsibility of administering our executive compensation program or making recommendations to the full board with respect to such program.
−Removed: The Committee reviews and, as appropriate, makes recommendations to the full Board regarding the base salaries and annual cash bonuses for executive officers, and administers our stock incentive plans, including the grants of stock options.
−Removed: Compensation Philosophy and Objectives
−Removed: Our principal executive compensation policy is to provide a compensation program that will attract, motivate and retain persons of high quality and provide incentives that align the interests of our employees and directors with those of our stockholders.
−Removed: In administering the executive compensation program, the Committee is mindful of the following principles and guidelines, which are supported by the full Board:
−Removed: Base salaries for executive officers should be competitive.
−Removed: A sufficient portion of annual compensation should be at risk in order to align the interests of executives with those of our stockholders.
−Removed: The variable part of annual compensation should reflect both individual and corporate performance.
−Removed: As a person’s level of responsibility increases, a greater portion of total compensation should be at risk and include more stock-based compensation to provide executives long-term incentives, and help to align further the interests of executives and stockholders in the enhancement of stockholder value.
−Removed: Executive officer compensation has three primary components:
−Removed: base salary, bonuses granted under a bonus or cash incentive plan, and stock-based awards granted pursuant to our 2014 Equity Incentive Plan (“2014 Plan”).
−Removed: In addition, executive officers receive certain benefits that are generally available to all salaried employees.
−Removed: We do not have any defined benefit pension plans, non-qualified deferred compensation arrangements, or supplemental retirement plans for our executive officers.
−Removed: During 2019, the Compensation Committee engaged Radford (a division of Aon) to assist with the review of the Company’s executive compensation by providing data on market trends and, more specifically, with respect to a group of peer companies having similar size and other characteristics to the Company based on the Company’s performance and how the Company’s compensation levels compared with such peers.
−Removed: For each Named Executive Officer’s compensation for 2019, the Committee reviewed the proposed level for each compensation component based on various factors, including the median level for the peer group and other competitive market factors, internal equity and consistency, and an emphasis on pay for performance.
−Removed: The Committee made recommendations to our board of directors, based on input from the then Chief Executive Officer other than with respect to his own compensation, which then approved the final compensation amounts for each executive officer.
−Removed: We have not adopted any formal or informal policies or guidelines for allocating compensation between long-term and currently paid compensation, between cash and non-cash compensation, or among different forms of non-cash compensation.
−Removed: The Committee seeks to establish executive officer base salary levels that are competitive with the median amounts paid to executives performing similar functions within the Company’s peer group.
−Removed: The Committee also takes into account a number of largely subjective factors, including changes in the individual’s duties and responsibilities, the personal performance of such executive officer, the performance of the Company, cost-of-living increases, and such other factors as the Committee deems appropriate, including the individual’s overall mix between fixed and variable compensation and between cash and stock-based compensation.
−Removed: Cash Incentive Plan
−Removed: Effective July 16, 2019, an Executive Bonus Plan (the “Bonus Plan”) was established, based on the Committee’s recommendation to our board of directors, for executive management under which the executive officers are each eligible for a cash incentive payment.
−Removed: Our board of directors set the potential payments at up to the following percentages of such executive’s 2019 prorated salary, with the final amounts payable to be determined by our board of directors based upon the 2019 financial results with respect to the metrics and percentages described below:
−Removed: Incentive Payment as a % of Base Salary (1)
−Removed: Chief Executive Officer
−Removed: President and Chief Financial Officer
−Removed: Based on the annual salary rate for the year and prorated for the portion of the year they worked for the Company.
−Removed: Subject to the terms of the Bonus Plan, distribution of the 2019 bonus was based 70% on Company performance and 30% on individual performance.
−Removed: Our board of directors or the Committee could, in its sole discretion, adjust amounts payable to any participant downward or upward to reflect such considerations as it may in its sole discretion deem to be appropriate.
−Removed: The Company performance metrics selected for the Bonus Plan by the Committee were revenue and cash management.
−Removed: The minimum targets for the revenue condition and the cash management condition for Company performance were not met in 2019.
−Removed: The individual performance distribution was determined to be $120,000 for the Chief Executive Officer and $50,000 for the President and Chief Financial Officer, for a total of $170,000, which were paid in January 2020.
−Removed: As permitted by the Bonus Plan, the Committee used its discretion to grant Mr.
−Removed: Nestor a bonus that was $9,500, in excess of the amount payable pursuant to the Bonus Plan in light of his performance during 2019.
−Removed: Discretionary Bonuses
−Removed: The Committee may from time to time award a discretionary annual cash bonus to executive officers, in the amounts and based on the factors determined by the Committee.
−Removed: The bonus awards may be based on an executive officer’s individual performance or on the overall success of the Company, or both.
−Removed: There were no discretionary bonuses awarded to the Named Executive Officers with respect to 2019, other than the discretionary bonus paid to Mr.
−Removed: Nestor under the Bonus Plan.
−Removed: Stock Awards and Other Stock-Based Awards
−Removed: The Committee believes that employee equity ownership provides significant motivation to executive officers to maximize value for the Company’s stockholders and, therefore;
−Removed: periodically grants time-based stock options and restricted stock units (“RSUs”) under the Company’s 2014 Stock Incentive Plan, as amended (the “Equity Incentive Plan”) at the then current market price.
−Removed: The Committee grants, or recommends to the Board to grant, options and/or RSUs to executive officers, typically after consideration of recommendations from the Chief Executive Officer.
−Removed: Recommendations for equity awards are based upon the relative position, responsibilities, and previous and expected contributions of each officer, previous equity award grants to such officers and customary levels of equity award grants for the respective position in other comparable companies.
−Removed: The exercise price for stock options is equal to the fair market value of our common stock on the grant date.
−Removed: Stock options generally vest over a four-year period with 25% vesting one year from the date of grant and the remaining 75% vesting equally on a monthly basis over the remaining 36 months.
−Removed: Options expire 10 years from the date of grant.
−Removed: RSUs, if granted, generally vest over a
−Removed: three-year period with 33% vesting one year from the grant date, 33% vesting two years from the grant date, and the remaining 34% vesting three years from the grant date.
−Removed: Under the Equity Incentive Plan, upon a Change of Control (as defined in such plan) all outstanding unvested RSUs become fully vested if not assumed, or substituted with a new award, by the successor to the Company and, if such awards are assumed or substituted by the successor to the Company, they become fully vested if the RSU holder’s employment is terminated (other than a termination for cause) within two years following a Change of Control.
−Removed: If an option holder’s employment is terminated within two years after a Change of Control for any reason other than death, retirement, disability or termination for cause, each outstanding stock option that is vested following such termination will remain exercisable until the earlier of the third anniversary of termination or the expiration of the term of the stock option.
−Removed: In July 2019, Mr.
−Removed: Tu, Executive Chairman and Chief Executive Officer, was awarded 300,000 stock options and Mr.
−Removed: Nestor, President and Chief Financial Officer, was awarded 150,000 stock options.
−Removed: These options have an exercise price of $0.42 per share.
−Removed: One fourth of these options vest on July 16, 2020, with the remaining three-fourths vesting in equal monthly installments thereafter over a three-year period.
−Removed: Change in Control Benefit Plan
−Removed: On February 19, 2017, we established a Change in Control Benefit Plan to provide for the payment of certain benefits to selected eligible employees and directors of the Company.
−Removed: A Change in Control is defined in the same manner as under the Equity Incentive Plan and, subject to limited exceptions, includes any one or more of the following events summarized below:
−Removed: any “person” becomes the beneficial owner, directly or indirectly, of 50% or more of the total voting power of the voting securities of the Company then outstanding and entitled to vote generally in the election of directors of the Company;
−Removed: individuals who, as of the beginning of any 24-month period, constitute the Board cease for any reason during such 24-month period to constitute at least a majority of the Board; or
−Removed: consummation of (A) a merger, consolidation or reorganization of the Company, in each case, with respect to which all or substantially all of the persons who were the respective owners of the voting securities of the Company prior to such merger, consolidation or reorganization, do not, following such merger, consolidation or reorganization
−Removed: beneficially own, directly or indirectly, at least 35% of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors of the entity or entities resulting from such merger, consolidation or reorganization, (B) a complete liquidation or dissolution of the Company, or (C) a sale or other disposition of all or substantially all of the assets of the Company.
−Removed: The Company entered into Change in Control participation agreements with Dr.
−Removed: Tewksbury on February 19, 2017 and with Mr.
−Removed: Turin on May 18, 2018 (which terminated upon their departure).
−Removed: The Change in Control participation agreement provides for a lump sum payment equal to one times annual base salary and target bonus, accelerated vesting of stock awards, and continuation of group health plan benefits for 12 months if the participant’s employment is involuntarily terminated within 24 months of a Change in Control.
−Removed: There are no Change in Control participation agreements in place with either Mr.
−Removed: Tu, Executive Chairman and Chief Executive Officer or Mr.
−Removed: Nestor, President Chief Financial Officer and Secretary.
−Removed: Employment Agreements with Named Executive Officers
−Removed: We do not have employment agreements with any of our Named Executive Officers.
−Removed: Outstanding Equity Awards at Fiscal Year-End
−Removed: The following table sets forth information with respect to equity awards outstanding for our Named Executive Officers as of December 31, 2019:
−Removed: Option Awards
−Removed: Award Grant Date
−Removed: Securities Underlying
−Removed: Unexercised Options
−Removed: Securities Underlying Unexercised Options
−Removed: Unexercisable
−Removed: Option Exercise Price
−Removed: Option Expiration Date
−Removed: Tewksbury, III
−Removed: One-fourth vests on the first anniversary of the grant date, and the remainder vests in equal monthly installments thereafter over a three-year period.
−Removed: One third was to vest on the first anniversary of the grant date, and the remainder was to vest monthly in equal installments over the following 24-month period.
−Removed: Pursuant to the terms of Dr.
−Removed: Tewksbury’s separation agreement with the Company, his unvested options terminated on April 1, 2019 and his vested options will remain exercisable for one year following his separation date, or through April 1, 2020.
−Removed: Compensation of Directors
−Removed: We use a combination of cash and stock-based awards to attract and retain qualified candidates to serve on our board.
−Removed: In setting director compensation, our board considers the significant amount of time that directors expend in fulfilling their duties, the skill level required, and the compensation of board members at comparable companies.
−Removed: Our board has approved the following annual cash and stock-based compensation for non-employee directors:
−Removed: Annual Cash Retainer
−Removed: Additional Annual Cash Retainers:
−Removed: Lead Director
−Removed: Compensation Committee Chair
−Removed: Compensation Committee Member
−Removed: Audit and Finance Committee Chair
−Removed: Audit and Finance Committee Member
−Removed: Nominating and Corporate Governance Committee Chair
−Removed: Nominating and Corporate Governance Committee Member
−Removed: Initial Restricted Stock Unit Grant
−Removed: Each current non-employee director received 20,000 RSUs/shares of common stock for their service during 2019, with any RSUs granted vesting in full on December 17, 2019, the date of our annual meeting of stockholders.
−Removed: The Board, at its discretion, may grant options or other equity awards to newly elected directors and additional grants to other directors.
−Removed: The following table shows the total annual compensation paid to non-employee directors for the year ended December 31, 2019:
−Removed: Fees Earned or Paid in Cash ($) (1)
−Removed: Stock Awards ($) (2)
−Removed: Jennifer Cheng
−Removed: Geraldine McManus
−Removed: Philip Politziner
−Removed: Stephen Socolof
−Removed: Eisenberg (3)
−Removed: Satish Rishi (3)
−Removed: Represents cash fees earned during 2019.
−Removed: Represents RSUs that vested on December 17, 2019 and settled in Common Stock or stock grants.
−Removed: The grant date fair value is calculated based on the closing price of the stock on the grant date.
−Removed: Black and Messrs.
−Removed: Eisenberg and Rishi resigned from our board of directors effective as of the April 1, 2019.
−Removed: Dorchak resigned from the Board as of February 21, 2019.
−Removed: Their unvested RSUs vested as of their respective resignation dates.
−Removed: Ramelot’s term as a director expired at the 2019 Annual Meeting of stockholders held on December 17, 2019, and he was not re-nominated for an additional term.
−Removed: SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
−Removed: Securities authorized for issuance under equity compensation plans
−Removed: The following table details information regarding our existing equity compensation plans as of December 31, 2019 :
−Removed: Equity Compensation Plan Information
−Removed: Plan category
−Removed: Number of securities to be issued upon exercise of outstanding options, warrants and rights
−Removed: Weighted-average exercise price of outstanding options, warrants and rights
−Removed: Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a))
−Removed: Equity compensation plans approved by security holders
−Removed: (1) Includes 385,778 shares available for issuance under the 2013 Employee Stock Purchase Plan and 851,160 shares available for issuance under our 2014 Stock Incentive Plan, which may be issued in the form of options, restricted stock, restricted stock units, and other equity-based awards.
−Removed: (2) Does not include 33,051 shares that are restricted stock units and do not have an exercise price.
−Removed: Security Ownership of Principal Stockholders and Management
−Removed: The following table sets forth certain information with respect to beneficial ownership of Common Stock as of February 21, 2020, as to (i) each person known by the Company to beneficially own more than 5% of the outstanding shares of Common Stock, (ii) each of the Company’s current directors and Named Executive Officers listed below, and (iii) all current executive officers and directors of the Company as a group.
−Removed: Unless otherwise specified, the address for each
−Removed: officer and director is 32000 Aurora Road, Suite B, Solon Ohio 44139.
−Removed: Except as otherwise indicated and subject to community property laws where applicable, each person or entity included in the table below has sole voting and investment power with respect to the shares beneficially owned by that person or entity.
−Removed: As noted in the footnotes to the tables below, beneficial ownership of our common stock includes shares of Series A Preferred Stock, which are convertible into our common stock on a one-for-one-basis.
−Removed: Pursuant to the Series A Certificate of Designation, each holder of outstanding shares of Series A Preferred Stock is entitled to vote with holders of outstanding shares of our common stock, voting together as a single class, with respect to any and all matters presented to the stockholders of the Company for their action or consideration, except as provided by law.
−Removed: In any such vote, each share of Series A Preferred Stock shall be entitled to a number of votes equal to 55.37% of the number of shares of common stock into which such share of Series A Preferred Stock is convertible.
−Removed: Shares Beneficially Owned
−Removed: Name and Address
−Removed: 5% Stockholders
−Removed: Schedule 13D Parties (James Tu and Gina Huang (Mei Yun Huang)
−Removed: 1 Bridge Plaza North, #275
−Removed: Fort Lee, NJ 07024
−Removed: Gina Huang (Mei Yun Huang)
−Removed: Current Directors and Named Executive Officers
−Removed: Jennifer Cheng
−Removed: Philip Politziner
−Removed: Stephen Socolof
−Removed: See “5% Stockholders” above
−Removed: Gina Huang (Mei Yun Huang)
−Removed: See “5% Stockholders” above
−Removed: Tewksbury III
−Removed: All Current Directors and Executive Officers as a Group
−Removed: *Less than one percent
−Removed: Based on 15,892,526 shares of Common Stock outstanding as of February 21, 2020.
−Removed: In addition, shares of Common Stock issuable pursuant to options that are currently exercisable, or may become exercisable within 60 days of February 21, 2020, or pursuant to RSUs scheduled to vest within 60 days of February 21, 2019, are included in the reported beneficial holdings of the individual owning such options or RSUs.
−Removed: These shares of Common Stock have been treated as outstanding in calculating the percentage ownership of the individual possessing such interest, but not for any other individual.
−Removed: On January 30, 2020, James Tu and Gina Huang and certain of their respective controlled affiliates filed a Schedule 13D that indicated that they may be deemed to be members of a “group” (as such term is defined in as defined in Section 13(d)(3) of the Exchange Act and Rule 13d-5(b) promulgated thereunder).
−Removed: This number reflects the beneficial ownership of the group collectively and includes 1,721,023 shares of Common Stock that could be acquired upon the conversion of 1,721,023 shares of Series A Preferred Stock.
−Removed: For information regarding the beneficial ownership of Mr.
−Removed: Huang individually, see footnotes (3) and (4), respectively.
−Removed: Tu has shared voting and dispositive power over 300,000 shares of Common Stock held by 5 Elements Global Fund L.P.
−Removed: (“Global Fund”) and 924,253 shares of Common Stock issuable upon the conversion of 924,253 shares of Series A Preferred Stock held by Fusion Park LLC.
−Removed: (“Fusion Park”).
−Removed: Global Fund and Fusion Park are controlled affiliates of Mr.
−Removed: Huang has shared voting and dispositive power over 1,214,160 shares of Common Stock (which includes 796,770 shares of Series A Preferred Stock convertible into 796,770 shares of Common Stock) held by Brilliant Start Enterprise, Inc.
−Removed: (“Brilliant Start”), and 600,000 shares of Common Stock held by Jag International Ltd.
−Removed: Brilliant Start and Jag are controlled affiliates of Ms.
−Removed: Includes 51,503 options currently exercisable until April 1, 2020.
−Removed: CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE
−Removed: Transactions with Related Persons
−Removed: On November 30, 2018, each of Gina Huang, Brilliant Start, Jag, Jiangang Luo, Cleantech Global Ltd., James Tu, Global Fund, Yeh-Mei Hui Cheng, Communal International, Ltd., and 5 Elements Energy Efficiency Limited (the “Former Schedule 13D Parties”) filed a Schedule 13D with the SEC, indicating that they may have been deemed to be a “group” under Section 13(d)(3) of the Exchange Act of 1934, as amended, and Rule 13d-5 promulgated thereunder, and that such group beneficially owned 17.6% of our common stock.
−Removed: The Schedule 13D was amended on February 26, 2019 and April 3, 2019.
−Removed: A description of the relationships between certain of the Former Schedule 13D Parties is set forth below:
−Removed: Gina Huang (“Ms.
−Removed: Huang”), who:
−Removed: is the Chairperson of Brilliant Start and the sole owner of Jag;
−Removed: has voting and dispositive power over the common stock beneficially owned by Brilliant Start and Jag;
−Removed: Jiangang Luo (“Mr.
−Removed: Luo”), who is the Managing Partner of Cleantech Global Ltd.
−Removed: (“Cleantech”), and a former member of our board of directors;
−Removed: James Tu (“Mr.
−Removed: Tu”), who is now the Company’s Chairman and Chief Executive Officer and member of our board and previously served as Chairman, Chief Executive Officer and President of the Company and a member of our board from December 18, 2012 until his resignation from such positions on February 19, 2017:
−Removed: has voting and dispositive power over the common stock held by Global Fund;
−Removed: is a Co-Founder and 50% owner of Communal International, Ltd.
−Removed: (“Communal”), which has 50% ownership interest in Energy Efficiency (defined below);
−Removed: Yeh-Mei Hui Cheng (“Ms.
−Removed: Cheng”), who:
−Removed: is the general partner and controlling partner of Energy Efficiency (defined below);
−Removed: owns 50% of Energy Efficiency;
−Removed: is Co-Founder and 50% owner of Communal, which owns the other 50% of Energy Efficiency;
−Removed: is the mother of Jennifer Cheng, a current member of our board of directors, and Simon Cheng, a member of our board of directors through February 19, 2017 and a current employee of the Company.
−Removed: Communal, which holds 50% ownership interest in 5 Elements Energy Efficiency Limited (“Energy Efficiency”);
−Removed: Energy Efficiency, which is owned 50% by Ms.
−Removed: Cheng and 50% by Communal.
−Removed: On February 21, 2019, the Former Schedule 13D Parties entered into a settlement with the Company providing for the appointment of two directors (Geraldine McManus and Jennifer Cheng) and the nomination of those two director for election at the Company’s 2019 annual meeting of stockholders.
−Removed: On March 29, 2019, the Company entered into a note purchase agreement (the “Note Purchase Agreement”) with certain investors, including Fusion Park (of which James Tu is the sole member) and Brilliant Start (which is controlled by Gina Huang), for the purchase of an aggregate of $1.7 million in subordinated convertible promissory notes.
−Removed: Pursuant to the Note Purchase Agreement, Fusion Park and Brilliant Start purchased $580,000 and $500,000, respectively, in principal amount of the subordinated convertible promissory notes.
−Removed: The subordinated convertible promissory notes were amended on May 29, 2019 (as amended, the “Convertible Notes”).
−Removed: In connection with the sale of Convertible Notes, Mr.
−Removed: Tu was appointed as a member of our board of directors on April 1, 2019 and Chief Executive Officer, President and interim Chief Financial Officer on April 2, 2019.
−Removed: The Convertible Notes had a maturity date of December 31, 2021 and bore interest at a rate of 5% per annum until June 30, 2019 and at a rate of 10% thereafter.
−Removed: Pursuant to their terms, on January 16, 2020 following approval of certain amendments to our certificate of incorporation by our stockholders, the principal amount of all of the Convertible Notes and the accumulated interest thereon in the amount of $1,815,041 converted at a conversion price of $0.67 per share into an aggregate of 2,709,018 shares of Series A Preferred Stock, which is convertible on a one-for-one basis into shares of our common stock.
−Removed: Upon the conversion of the Convertible Notes, Fusion Park and Brilliant Start received 924,253 shares and 796,770 shares, respectively, of Series A Preferred Stock.
−Removed: On January 30, 2020, the Former Schedule 13D Parties filed an amendment to their Schedule 13D, which among other things, reported that the “group” that may have been formed by the Former Schedule 13D parties was no longer a group.
−Removed: That amendment did note, however, that Ms.
−Removed: Huang, Jag, Brilliant Start, James Tu, Global Fund and Fusion Park may be deemed to be a “group” (as such term is defined in as defined in Section 13(d)(3) of the Exchange Act and Rule 13d-5(b) promulgated thereunder).
−Removed: Director Independence
−Removed: Our board of directors has determined that each of the following current directors is an Independent Director:
−Removed: • Jennifer Cheng
−Removed: • Stephen Socolof
−Removed: • Geraldine F.
−Removed: • Philip Politziner
−Removed: In addition, to the knowledge of the current management, each of the following persons that served as a director during the last completed fiscal year but is no longer a member of our board of directors was an Independent Director during his or her tenure:
−Removed: Black, Glenda M.
−Removed: Dorchak, Marc J.
−Removed: Eisenberg, Michael Ramelot and Satish Rishi.
−Removed: Each of the Audit and Finance Committee, the Nominating and Corporate Governance Committee and the Compensation Committee is comprised entirely of Independent Directors.
−Removed: PRINCIPAL ACCOUNTING FEES AND SERVICES
−Removed: Accountant Fees and Services
−Removed: Plante & Moran, PLLC provided audit services to the Company for the fiscal year ending December 31, 2018.
−Removed: GBQ Partners, LLC, an independent member of the BDO Alliance USA, provided audit services to the Company for the fiscal year ending December 31, 2019.
−Removed: The following table presents fees for professional services rendered by Plante & Moran, PLLC for 2018;
−Removed: and Plante & Moran, PLLC and GBQ Partners, LLC collectively for 2019:
−Removed: Year Ended December 31,
−Removed: Audit-Related Fees
−Removed: All Other Fees
−Removed: “Audit Fees” include the aggregate fees billed for professional services rendered.
−Removed: Audit Fees for 2019 include fees billed by Plante & Moran, PLLC and GBQ Partners, LLC and include payments for professional services rendered in 2019,
−Removed: including audit services related to quarterly reviews and audits of consolidated financial statements, reviews in connection with SEC filings and related consents, comfort letters related to the public stock offering, and other consultations.
−Removed: Because we are a smaller reporting company, for both 2019 and 2018, we were not required to obtain an attestation report with respect to our internal control over financial reporting from our independent registered public accounting firm.
−Removed: Therefore, no fees related to that attestation report were incurred.
−Removed: Pre-Approval Policies and Procedures
−Removed: It is the Company’s policy that all audit and non-audit services to be performed by the Company’s principal auditors be approved in advance by the Audit and Finance Committee.
−Removed: The Audit and Finance Committee pre-approved all services provided by GBQ Partners, LLC during 2019.
+Added: ITEMS 10 to 14 (inclusive)
+Added: Except as set forth in Part I, the information required by Items 10, 11, 12, 13 and 14 will appear in the definitive Energy Focus, Inc.
+Added: Proxy Statement for the Annual Meeting of Stockholders to be held on or about May 26, 2021, which will be filed pursuant to Regulation 14A under the Securities Exchange Act of 1934 and is incorporated by reference in this Annual Report pursuant to General Instruction G(3) of Form 10-K (other than the portions thereof not deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934).
EXHIBITS, FINANCIAL STATEMENT SCHEDULES
−Removed: (1) Financial statements
−Removed: The financial statements required by this Item 15(a)(1) are set forth in Item 8 of this Annual Report.
+Added: (a) (1) Financial statements
+Added: The financial statements required by this Item 15(a)(1) are set forth in Item 8, “Financial Statements and Supplementary Data,” of this Annual Report.
(2) Financial statement schedules
4 unchanged sentences
(amounts in thousands)
−Removed: Year ended December 31, 2019
−Removed: Allowance for doubtful accounts and returns
−Removed: Inventory reserves
−Removed: Valuation allowance for deferred tax assets
+Added: Description Beginning
+Added: Balance Charges to
+Added: Expense Deductions Ending
Year ended December 31, 2020
7 unchanged sentences
EXHIBIT INDEX
−Removed: Description of Documents
+Added: Number Description of Documents
Certificate of Incorporation of Energy Focus, Inc.
1 unchanged sentence
Certificate of Amendment to the Certificate of Incorporation of Energy Focus, Inc.
−Removed: filed with the Secretary of State of the State of Delaware on June 21, 2010 (filed with this Report).
+Added: filed with the Secretary of State of the State of Delaware on June 21, 2010 (incorporated by reference to Exhibit 3.2 to the Registrant’s Annual Report on Form 10-K filed on March 24, 2020).
Certificate of Amendment to the Certificate of Incorporation of Energy Focus, Inc.
−Removed: filed with the Secretary of State of the State of Delaware on October 9, 2012 (filed with this Report).
+Added: filed with the Secretary of State of the State of Delaware on October 9, 2012 (incorporated by reference to Exhibit 3.3 to the Registrant’s Annual Report on Form 10-K filed on March 24, 2020).
Certificate of Amendment to the Certificate of Incorporation of Energy Focus, Inc.
−Removed: filed with the Secretary of State of the State of Delaware on October 28, 2013 (filed with this Report).
+Added: filed with the Secretary of State of the State of Delaware on October 28, 2013 (incorporated by reference to Exhibit 3.4 to the Registrant’s Annual Report on Form 10-K filed on March 24, 2020).
Certificate of Amendment to the Certificate of Incorporation of Energy Focus, Inc.
3 unchanged sentences
Certificate of Amendment to the Certificate of Incorporation of Energy Focus, Inc.
−Removed: filed with the Secretary of State of the State of Delaware on January 15, 2020 (filed with this Report).
+Added: filed with the Secretary of State of the State of Delaware on January 15, 2020 (incorporated by reference to Exhibit 3.7 to the Registrant’s Annual Report on Form 10-K filed on March 24, 2020).
Certificate of Designation of Series A Convertible Preferred Stock of Energy Focus, Inc.
3 unchanged sentences
Amendment to the Certificate of Designation of Series A Convertible Preferred Stock of Energy Focus, Inc.
−Removed: filed with the Secretary of State of the State of Delaware on January 15, 2020 (filed with this Report).
+Added: filed with the Secretary of State of the State of Delaware on January 15, 2020 (incorporated by reference to Exhibit 3.10 to the Registrant’s Annual Report on Form 10-K filed on March 24, 2020).
+Added: Certificate of Amendment of Certificate of Incorporation, dated June 11, 2020 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on June 11, 2020).
Bylaws of Energy Focus, Inc.
−Removed: (incorporated by reference to Exhibit 3.5 to the Registrant’s Annual Report on Form 10-K filed on March 10, 2016).
−Removed: Certificate of Ownership and Merger, Merging Energy Focus, Inc., a Delaware corporation, into Fiberstars, Inc., a Delaware corporation, filed with the Secretary of State of the State of Delaware on May 4, 2007 (incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q filed on May 10, 2007).
+Added: (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on May 18, 2020).
+Added: Certificate of Ownership and Merger, Merging Energy Focus, Inc., a Delaware corporation, into Fiberstars, Ind.
+Added: a Delaware corporation, filed with the Secretary of State of the State of Delaware on May 4, 2007 (incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q filed on May 10, 2007).
Description of Securities of Energy Focus, Inc.
−Removed: (filed with this Report).
+Added: (incorporated by reference to Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K filed on March 24, 2020).
Form of Warrant (incorporated by reference to Exhibit 4.1 of the Registrant’s Current Report on Form 8-K filed on January 13, 2020).
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.2 of the Registrant’s Current Report on Form 8-K filed on January 13, 2020).
+Added: Form of Amendment to Common Stock Purchase Warrant (filed with this Annual Report).
2013 Employee Stock Purchase Plan (incorporated by reference to Appendix A to the Registrant’s Definitive Proxy Statement on Form DEF14A filed on August 16, 2013).
−Removed: 2004 Stock Incentive Plan (incorporated by reference to Exhibit 99.1 to the Registrant’s Registration Statement on Form S-8 (Commission File No.
−Removed: 333-122-686) filed on February 10, 2005).
2008 Incentive Stock Plan, as amended (incorporated by reference from Appendix B to the Registrant’s Preliminary Proxy Statement on Form PRER14A filed on June 8, 2012).
5 unchanged sentences
Form of Incentive Stock Option Grant Agreement to Employees (incorporated by reference to Exhibit 10.4 to the Registrant’s Current Report on Form 8-K filed on July 16, 2014).
−Removed: Chairman, Chief Executive Officer and President Offer Letter and Change in Control Participation Agreement dated February 19, 2017 between Theodore L.
−Removed: Tewksbury III and Energy Focus, Inc.
−Removed: (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed February 21, 2017).
−Removed: Energy Focus, Inc.
−Removed: Executive Bonus Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on April 17, 2017).
−Removed: Change in Control Plan and Form of Participation Agreement (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed February 21, 2017).
−Removed: Chief Financial Officer Offer Letter dated May 18, 2018 between Jerry Turin and Energy Focus, Inc.
−Removed: (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed on August 8, 2018).
−Removed: Change in Control Plan and Form of Participation Agreement (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed February 21, 2017).
Form of Notice of Stock Option Grant for 2008 Stock Incentive Plan (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed on November 13, 2013).
1 unchanged sentence
dated April 19, 2016 (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed on May 11, 2016).
−Removed: Loan and Security Agreement dated December 11, 2018 by and between the Company and Austin Financial Services, Inc.
−Removed: (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K/A filed on December 14, 2018).
Agreement dated February 21, 2019 entered into by Energy Focus, Inc.
2 unchanged sentences
Form of Subordinated Convertible Promissory Note entered into by the Company and each of the Investors on March 29, 2019 (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed on April 1, 2019).
−Removed: Separation Agreement and Release between Energy Focus, Inc.
−Removed: and Theodore L.
−Removed: Tewksbury III, effective as of April 1, 2019 (incorporated by reference to Exhibit 10.3 to the Registrant’s Current Report on Form 8-K filed on April 1, 2019).
−Removed: Separation Agreement and Release between Energy Focus, Inc.
−Removed: and Jerry Turin, effective as of April 1, 2019 (incorporated by reference to Exhibit 10.4 to the Registrant’s Current Report on Form 8-K filed on April 1, 2019).
Form of Amended and Restated Subordinated Convertible Promissory Note entered into by the Company and each of the Investors thereto (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on May 30, 2019).
4 unchanged sentences
Executive Bonus Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on July 19, 2019).
−Removed: Note Purchase Agreement, dated November 25, 2019, by and between Energy Focus, Inc.
−Removed: and Iliad Research and Trading, L.P.
−Removed: (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on November 29, 2019).
−Removed: Promissory Note, effective November 25, 2019, in favor of Iliad Research and Trading, L.P.
−Removed: (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed on November 29, 2019).
Form of Securities Purchase Agreement, dated as of January 9, 2020, between the Company and each purchaser named in the signature pages thereto (incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed on January 13, 2020).
+Added: SBA Loan Agreement, dated as of April 17, 2020, between the Company and KeyBank National Association (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed on May 13, 2020).
+Added: Loan and Security Agreement, dated as of August 11, 2020, by and between the Company and Crossroads Financial Group, LLC (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed on August 13, 2020).
+Added: Loan and Security Agreement, dated as of August 11, 2020, by and between the Company and Factors Southwest L.L.C.
+Added: (incorporated by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q filed on August 13, 2020).
+Added: Energy Focus, Inc.
+Added: 2020 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on September 22, 2020).
+Added: Energy Focus, Inc.
+Added: 2020 Stock Incentive Plan - Form of Restricted Stock Unit Award Agreement for Employees (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed on September 22, 2020).
+Added: Energy Focus, Inc.
+Added: 2020 Stock Incentive Plan - Form of Restricted Stock Unit Award Agreement for Non-Employee Directors (incorporated by reference to Exhibit 10.3 to the Registrant’s Current Report on Form 8-K filed on September 22, 2020).
+Added: Energy Focus, Inc.
+Added: 2020 Stock Incentive Plan - Form of Nonqualified Stock Option Agreement for Employees (incorporated by reference to Exhibit 10.4 to the Registrant’s Current Report on Form 8-K filed on September 22, 2020).
+Added: Energy Focus, Inc.
+Added: 2020 Stock Incentive Plan - Form of Incentive Stock Option Agreement (incorporated by reference to Exhibit 10.5 to the Registrant’s Current Report on Form 8-K filed on September 22, 2020).
Subsidiaries of the Registrant (filed with this Report).
Consent of GBQ Partners, LLC, Independent Registered Public Accounting Firm (filed with this Report).
−Removed: Consent of Plante & Moran, PLLC, Independent Registered Public Accounting Firm (filed with this Report).
Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
4 unchanged sentences
(i) Consolidated Balance Sheets, (ii) Consolidated Statements of Operations, (iii) Consolidated Statements of Comprehensive Income (Loss), (iv) Consolidated Statements of Shareholders’ Equity, (v) Consolidated Statements of Cash Flows, (vi) the Notes to Consolidated Financial Statements.
+Added: 104** Cover Page Interactive Data File (embedded within the Inline XBRL document).
* Management contract or compensatory plan or arrangement.
−Removed: This exhibit shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise subject to the liability of that Section.
−Removed: Such exhibit shall not be deemed incorporated into any filing under the Securities Act of 1933, as amended, or the Exchange Act.
+Added: ** Pursuant to Regulation S-T, this interactive data file is not deemed filed for purposes of Section 11 of the Securities Act, or Section 18 of the Exchange Act, or otherwise subject to the liabilities of these sections.
+Added: + This exhibit will not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that Section.
+Added: Such exhibit shall not be deemed incorporated into any filing under the Securities Act or the Exchange Act.
+Added: # Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(b)(10).
FORM 10-K SUMMARY
−Removed: Not applicable.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereto duly authorized.
4 unchanged sentences
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 indicated and on the date indicated:
+Added: Date Signature Title
March 25, 2021
−Removed: Executive Chairman and Chief Executive Officer
−Removed: (Principal Executive Officer)
+Added: /s/ James Tu Executive Chairman and Chief Executive Officer
+Added: James Tu (Principal Executive Officer)
March 25, 2021
−Removed: /s/ Tod Nestor
−Removed: President and Chief Financial Officer
−Removed: (Principal Financial and Accounting Officer )
+Added: /s/ Tod Nestor President and Chief Financial Officer
+Added: Tod Nestor (Principal Financial and Accounting Officer )
March 25, 2021
/s/ Jennifer Y.
+Added: Cheng Director
March 25, 2021
/s/ Gina Huang (Mei Yun Huang)
−Removed: Gina Huang (Mei Yun Huang)
+Added: Gina Huang (Mei Yun Huang) Director
March 25, 2021
/s/ Geraldine F.
+Added: McManus Director
March 25, 2021
/s/ Philip Politziner
−Removed: Philip Politziner
+Added: Philip Politziner Director
March 25, 2021
/s/ Stephen Socolof
−Removed: Stephen Socolof
+Added: Stephen Socolof Director
Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.