Item 9A. Controls and Procedures
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
The Company’s management carried out an evaluation, under the supervision and with the participation of the Company’s Chief Executive Officer (principal executive officer) and the Company’s Vice President of Finance (principal financial and accounting officer), of the effectiveness of the design and operation of the Company’s disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended) as of December 31, 2023, pursuant to Exchange Act Rule 13a-15. Based upon that evaluation, the Company’s principal executive officer and the principal accounting officer concluded that the Company’s disclosure controls and procedures as of December 31, 2023 were effective.
Management’s Annual Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate control over financial reporting, as such term is defined in Rule 13a-15(f) of the Exchange Act. Under the supervision and with the participation of our management, including our Chief Executive Officer and Vice President of Finance, we conducted an evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2023. In conducting its evaluation, our management used the criteria set forth by the framework in the 2013 Internal Control – Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on that evaluation, management believes our internal control over financial reporting was effective as of December 31, 2023.
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Inherent Limitations on Control Systems
Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, will be or have been detected. These inherent limitations include the realities that judgments in decision making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the control. The design of any system of controls is also based in part upon certain assumptions about the likelihood of future events and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Over time, controls may become inadequate because of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate.
Changes in Internal Control Over Financial Reporting
There was no change in the Company’s internal control over financial reporting occurred during the Company’s most recently completed fiscal quarter that would have materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
This Annual Report on Form 10-K does not include an attestation report of the Company’s registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s registered public accounting firm pursuant to rules of the Securities and Exchange Commission that permit the Company to provide only management’s report in this Annual Report on Form 10-K.
Item 9B. Other Information
None.
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
Not applicable.
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PART III.
Item 10 . Directors, Executive Officers and Corporate Governance
Incorporated into this Item by reference is the information appearing under the headings “Proposal One – Election of Directors,” “Corporate Governance and Board Matters,” “Submission of Stockholder Proposals and Nominations” and, if any, “Delinquent Section 16(a) Reports,” in our Proxy Statement for our 2024 Annual Meeting of Stockholders we intend to file with the SEC (the “Proxy Statement”).
Information about our Executive Officers
As of the date of filing this Form 10-K, the following individuals were executive officers of the Company:
Name
Age
Position
Randy D. Uglem
46
President, Chief Executive Officer and Secretary
Zackery A. Weber
44
Vice President of Finance
Werner F. Jansen
33
Chief Executive Officer of Bloomia B.V.
Randy D. Uglem has served as President and CEO since August 2023. Previously he served as Senior Vice President of Lending from March 2023 to August 2023. Mr. Uglem has over twenty years of experience in credit and lending, most recently as Ag Credit and Lending Director at Air T, Inc. from February 2019 to March 2023. Mr. Uglem spent nearly 13 years at CHS Inc., serving most recently as Credit Director from 2014 to January 2019. Early in his career, he held positions at AgCountry Farm Credit Services and Affinity Plus Credit Union, as well as being involved in his family’s farming operation in North Dakota. Mr. Uglem holds a Bachelor of Science in Agricultural Economics from North Dakota State University.
Zackery A. Weber has served as Vice President of Finance since January 2022. Previously he served as Senior Director of Financial Planning and Analysis from December 2020 to January 2022. He has served in the role of principal accounting officer since January 2021. He served as Director of Financial Planning and Analysis from 2015 to December 2020, and as a Senior Financial Analyst for the Company from 2013 to 2015. Before joining the Company, Mr. Weber held analyst and accounting positions at Target Corporation with increasing responsibility from 2003 to 2013. He began his career as an auditor at McGladrey & Pullen from 2002 to 2003. Mr. Weber holds a Bachelor of Arts degree in Accounting from the University of St. Thomas and an MBA in Finance & Management, from the University of St. Thomas - Opus College of Business.
Werner F. Jansen has served as the Chief Executive Officer of Bloomia B.V. since June 2022. Previously, he served as General Manager of Fresh Tulips USA, LLC, then a wholly owned subsidiary of Bloomia B.V. comprising its U.S. operations, from 2018 to June 2022. From 2016 to 2022, he served as Director of Information and Communications Technology (ICT). Born and raised in the Netherlands, Mr. Jansen holds a Bachelor of Art degree in International Manager from University of Westminster, UK and ana Master of Art degree in Finance and Management from Cranfield University, UK. Over the past 12 years, Mr. Jansen has developed a broad set of skills at the Bloomia level and has developed a strategic view of the cut flower industry globally and a vision for Bloomia’s growing role in the cut tulips market.
There are no family relationships among any of the executive officers and directors of the Company.
Code of Ethics/Code of Conduct
We have in place a “code of ethics” within the meaning of Rule 406 of Regulation S-K, which is applicable to our senior financial management, including specifically our principal executive officer, principal financial officer, and principal accounting officer. A copy of the Code of Ethics is available on our website (www.lendway.com) under the “Corporate Governance” caption. We intend to satisfy our disclosure obligations regarding any amendment to, or a waiver from, a provision of this code of ethics by posting such information on the same website.
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Item 11. Executive Compensation
The information appearing under the headings “Executive Compensation” and “Corporate Governance and Board Matters – Compensation of Non-Employee Directors” in the Proxy Statement is incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information appearing under the headings “Equity Compensation Plan Information” and “Security Ownership of Certain Beneficial Owners and Management” in the Proxy Statement is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions and Director Independence
The information appearing under the heading “Certain Relationships and Related-Party Transactions” and regarding director independence appearing under the heading “Corporate Governance and Board Matters” in the Proxy Statement is incorporated herein by reference.
Item 14. Principal Accountant Fees and Services
The information regarding principal accounting fees and services appearing under the heading “Ratification of Appointment of Independent Registered Public Accounting Firm” in the Proxy Statement is incorporated herein by reference.
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PART IV.
Item 15. Exhibits and Financial Statement Schedules
The following financial statements of Lendway, Inc. are included in Item 8:
Reports of Independent Registered Public Accounting Firms
Consolidated Balance Sheets as of December 31, 2023 and 2022
Consolidated Statements of Operations for the years ended December 31, 2023 and 2022
Consolidated Statements of Stockholders’ Equity for the years ended December 31, 2023 and 2022
Consolidated Statements of Cash Flows for the years ended December 31, 2023 and 2022
Notes to Consolidated Financial Statements
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(a) Exhibits
Exhibit
Number
Description
Incorporated by Reference To
*2.1
Asset Purchase Agreement dated May 24, 2023
Exhibit 2.1 to Current Report filed May 25, 2023
*2.2
Agreement for the Sale and Purchase of Shares, dated February 21, 2024, by and among Tulp 24.1, LLC, Tulipa Acquisitie Holding B.V., Botman Bloembollen B.V., W.F. Jansen, H.J. Strengers and the Company
Exhibit 2.1 to Current Report filed February 26, 2024
3.1
Certificate of Incorporation
Exhibit 3.1 to Current Report filed August 9, 2023
3.2
Bylaws
Exhibit 3.2 to Current Report filed August 9, 2023
+4.1
Description of Securities
**10.1
Employment Agreement with Kristine Glancy dated April 8, 2016
Exhibit 10.1 to Form 8-K filed April 13, 2016
**10.2
Change in Control Severance Agreement with Kristine Glancy dated April 8, 2016
Exhibit 10.2 to Form 8-K filed April 13, 2016
**10.3
First Amendment to Change in Control Agreement with Kristine A. Glancy dated April 28, 2018
Exhibit 10.1 to Form 10-Q for the quarterly period ended March 31, 2019
**10.4
Letter Agreement with Kristine A. Glancy dated as of July 13, 2023
Exhibit 10.1 to Form 8-K filed July 19, 2023
**10.5
Employment Agreement with Adam May dated December 20, 2019
Exhibit 10.18 to Annual Report on Form 10-K for the year ended December 31, 2019
**10.6
Change in Control Agreement with Adam May dated December 20, 2019
Exhibit 10.19 to Annual Report on Form 10-K for the year ended December 31, 2019
**10.7
Retention Agreement with Adam D. May dated January 13, 2023
Exhibit 10.1 to Form 8-K filed January 19, 2023
**10.8
Letter Agreement with Adam D. May, dated May 24, 2023
Exhibit 10.2 to Form 8-K filed May 25, 2023
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**10.9
Employment Agreement with Zackery A. Weber dated September 10, 2021
Exhibit 10.1 to Form 8-K filed September 16, 2021
**10.10
Retention Agreement with Zackery A. Weber dated January 13, 2023
Exhibit 10.2 to Form 8-K filed January 19, 2023
**10.11
Letter Agreement with Zackery A. Weber dated August 4, 2023
Exhibit 10.1 to Form 8-K filed August 9, 2023
**10.12
Employment Agreement with Randy Uglem dated March 31, 2023
Exhibit 10.3 to Form 10-Q for the three months ended March 31, 2023
**10.13
2013 Omnibus Stock and Incentive Plan, as amended
Exhibit 10.2 to Form 8-K filed December 2, 2016
**10.14
Form of Incentive Stock Option Agreement under 2013 Omnibus Stock and Incentive Plan
Exhibit 10.1 to Form 8-K filed August 23, 2013
**10.15
2018 Equity Incentive Plan
Exhibit 99.1 to Registration Statement on Form S-8, Reg. No. 333-226670
**10.16
Employee Stock Purchase Plan, as amended
Exhibit 99.2 to Registration Statement on Form S-8, filed August 8, 2018
**10.17
Deferred Compensation Plan for Directors
Exhibit 10.1 to Form 10-Q for the quarterly period ended March 31, 2018
**10.18
Form of Retention Agreement
Exhibit 10.2 to Form 8-K filed September 16, 2021
**10.19
Form of Annual Cash Incentive Compensation Agreement for fiscal year ending December 31, 2022
Exhibit 10.2 to Form 10-Q for the quarterly period ended September 30, 2022
10.20
Bridge Loan Agreement, dated February 22, 2024, by and between Botman Bloembollen B.V., W.F. Jansen, H.J. Strengers, Tulp 24.1, LLC, Tulipa Acquisitie Holding B.V. and the Company
Exhibit 10.1 to Form 8-K filed February 26, 2024
10.21
Bridge Loan Agreement, dated February 22, 2024, by and between Botman Bloembollen B.V. and Tulipa Acquisitie Holding B.V.
Exhibit 10.2 to Form 8-K filed February 26, 2024
*10.22
Credit Agreement, dated February 20, 2024, by and among the Company, TULP 24.1, LLC, Tulipa Acquisitie Holding B.V., Bloomia B.V., Fresh Tulips USA, LLC, and Associated Bank, N.A., a national banking association
Exhibit 10.3 to Form 8-K filed February 26, 2024
10.23
Amended and Restated Limited Liability Company Agreement, dated February 22, 2024, by and among the Company, Tulp 24.1, LLC and Werner F. Jansen
Exhibit 10.4 to Form 8-K filed February 26, 2024
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10.24
Management Services Agreement, dated February 22, 2024, by and between the Company and Tulp 24.1, LLC
Exhibit 10.5 to Form 8-K filed February 26, 2024
10.25
Lease Agreement, dated July 1, 2021, by and between Horti-Group, LLC and Fresh Tulips USA, LLC dba Bloomia
Exhibit 10.6 to Form 8-K filed February 26, 2024
+21.1
List of Subsidiaries
+23.1
Consent of Independent Registered Public Accounting Firm
+23.2
Consent of Independent Registered Public Accounting Firm
+24.1
Powers of Attorney
+31
Certification of Principal Executive and Financial Officer pursuant to Section 302 of the Sarbanes Oxley Act of 2002
++32
Section 1350 Certifications
+97
Compensation Recoupment Policy
+101
The following materials from Lendway Inc.’s Annual Report on Form 10-K for the year ended December 31, 2023 are filed herewith, formatted in inline XBRL (Extensible Business Reporting Language): (i) Balance Sheets, (ii) Statements of Operations, (iii) Statements of Stockholders’ Equity (iv) Statements of Cash Flows, and (v) Notes to Financial Statements.
+104
Cover Page Interactive Data File (the cover page XBRL tags are embedded in the inline XBRL document)
* Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule will be furnished to the SEC upon request; provided, however, that the parties may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any document so furnished.
** Denotes a management contract or compensatory plan or arrangement required to be filed as an exhibit to this report pursuant to Item 15(b) of Form 10-K.
+ Filed herewith.
++ Furnished herewith.
Item 16. Form 10-K Summary
None.
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SIGNATURES
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, thereunto duly authorized.
Lendway, Inc.
By:
/s/ Randy D. Uglem
Randy D. Uglem
President and Chief Executive Officer
Dated: April 1, 2024
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the registrant in the capacities and on the dates indicated.
Signature
Title
Date
/s/ Randy D. Uglem
President, Chief Executive Officer and Secretary
April 1, 2024
Randy D. Uglem
(principal executive officer)
/s/ Zackery A. Weber
Vice President of Finance
April 1, 2024
Zackery A. Weber
(principal financial and accounting officer)
*
Chairman of the Board, Director
April 1, 2024
Mark R. Jundt
*
Director
April 1, 2024
Mary H. Herfurth
*
Director
April 1, 2024
Chad B. Johnson
*
Director
April 1, 2024
Matthew R. Kelly
*
Director
April 1, 2024
Daniel C. Philp
*
Director
April 1, 2024
Nicholas J. Swenson
* Randy D. Uglem, by signing his name hereto, does hereby sign this document on behalf of each of the above-named directors of the registrant pursuant to Powers of Attorney duly executed by such persons.
By:
/s/ Randy D. Uglem
Randy D. Uglem
Attorney-in-fact
32