UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of the Securities
Exchange
Act of 1934
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Filed
by the Registrant
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[
X
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Filed
by a Party other than the Registrant
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[ ]
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Check the
appropriate box:
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[
X]
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Preliminary
Proxy Statement
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[ ]
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Confidential,
for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
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[ ]
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Definitive
Proxy Statement
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[ ]
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Definitive
Additional Materials
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Soliciting
Material Pursuant to §240.14a-12
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ZAGG
INCORPORATED
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(Name
of Registrant as Specified In Its Charter)
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______________________________
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(Name
of Person(s) Filing Proxy Statement, if other than the
Registrant)
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Payment
of Filing Fee (Check the appropriate box):
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No
fee required.
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[ ]
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
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1.
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Title
of each class of securities to which transaction
applies:
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2.
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Aggregate
number of securities to which transaction
applies:
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3.
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Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was
determined):
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4.
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Proposed
maximum aggregate value of
transaction:
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[ ]
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Fee
paid previously with preliminary materials.
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[ ]
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Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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1)
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Amount
Previously Paid:
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2)
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Form,
Schedule or Registration Statement
No.:
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ZAGG
INCORPORATED
3855
SOUTH 500 WEST, SUITE J
SALT
LAKE CITY, UTAH 84115
May 14,
2009
Dear
Shareholder:
You are
cordially invited to attend the annual meeting of shareholders of ZAGG Inc,
which will be held at which will be held at its corporate offices located at
3855 South 500 West Suite J, Salt Lake City, Utah 84115, on July 16, 2009, at
10:00 am Mountain Time.
Details
of the business to be conducted at the annual meeting are given in the attached
Notice of Annual Meeting of Shareholders and Proxy Statement.
Whether
or not you attend the annual meeting, it is important that your shares be
represented and voted at the meeting. Therefore, I urge you to sign, date, and
promptly return the enclosed proxy. If you decide to attend the annual meeting
and vote in person, you will of course have that opportunity.
On behalf
of the Board of Directors, I would like to express our appreciation for your
continued interest in the affairs of ZAGG Inc.
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By
Order of the Board of Directors,
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/s/
Robert G. Pedersen
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Robert
G. Pedersen II
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Chief
Executive Officer and
Director
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ZAGG
INCORPORATED
3855
SOUTH 500 WEST, SUITE J
SALT
LAKE CITY, UTAH 84115
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NOTICE
OF ANNUAL MEETING OF SHAREHOLDERS
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May 14,
2009
To the
Shareholders of ZAGG Inc:
The
annual meeting of shareholders of ZAGG Inc will be held at its corporate offices
located at 3855 South 500 West Suite J, Salt Lake City, Utah 84115, on July 16,
2009, at 10:00 am Mountain Time.
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1.
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To
elect two (2) directors to serve until the next annual meeting of the
shareholders and until a successor has been elected and
qualified;
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2.
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To
confirm the appointment of Hansen, Barnett & Maxwell, P.C. as the
Company’s independent certified public accountants for the fiscal year
ended December 31, 2009; and
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3.
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To
approve an amendment to the ZAGG Incorporated 2007 Stock Incentive Plan to
increase the number of shares of Common Stock reserved for issuance
thereunder by 3 million shares; and
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4.
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To
transact any other business that may properly come before the meeting or
any adjournment of the meeting.
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Shareholders
of record at the close of business on May 12, 2009 are entitled to notice of and
to vote at the meeting. The Company’s proxy statement accompanies
this notice. All shareholders are invited to attend the meeting in
person.
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By
Order of the Board of Directors,
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/s/
Robert G. Pedersen
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Robert
G. Pedersen II
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Chief
Executive Officer and
Director
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MAY
14, 2009
IMPORTANT
Whether
or not you expect to attend in person, we urge you to sign, date, and return the
enclosed Proxy at your earliest convenience. This will ensure the presence of a
quorum at the meeting. PROMPTLY SIGNING, DATING, AND RETURNING THE
PROXY WILL SAVE
ZAGG
INC
THE EXPENSE AND EXTRA WORK OF ADDITIONAL
SOLICITATION. Sending in your Proxy will not prevent you from voting
your stock at the meeting if you desire to do so, as your Proxy is revocable at
your option.
ZAGG
INCORPORATED
3855
SOUTH 500 WEST, SUITE J
SALT
LAKE CITY, UTAH 84115
For
the Annual Meeting of Shareholders
To be held
July 16,
2009
NO
PERSONS HAVE BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROXY STATEMENT IN CONNECTION
WITH THE SOLICITATION OF PROXIES MADE HEREBY, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY ZAGG INC OR ANY OTHER PERSON.
MATTERS
TO BE CONSIDERED
This
Proxy Statement is furnished in connection with the solicitation of proxies by
the Board of Directors of ZAGG Inc (the “Company”) for use at the annual meeting
of the shareholders of the Company, or any adjournments thereof. The
meeting will be held at 3855 South 500 West Suite J, Salt Lake City, Utah 84115,
on July 16, 2009, at 10:00 am Mountain Time, for the following
purposes:
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1.
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To
elect two (2) directors to serve until the next annual meeting of the
shareholders and until a successor has been elected and
qualified;
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2.
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To
confirm the appointment of Hansen, Barnett & Maxwell, P.C. as the
Company’s independent certified public accountants for the fiscal year
ended December 31, 2009; and
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3.
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To
approve an amendment to the ZAGG Incorporated 2007 Stock Incentive Plan to
increase the number of shares of Common Stock reserved for issuance
thereunder by 3 million shares; and
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4.
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To
transact any other business that may properly come before the meeting or
any adjournment of the meeting.
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NOTICE
OF ELECTRONIC AVAILABILITY OF PROXY STATEMENT
ZAGG Inc
is making this proxy statement available electronically via the Internet. Under
rules recently adopted by the U.S. Securities and Exchange Commission (“SEC”),
we are furnishing these proxy materials primarily via the Internet, instead of
mailing printed copies to each stockholder. On May 21, 2009, we will mail to our
stockholders of record, as of the close of business on May 12, 2009, a Notice of
Internet Availability containing instructions on how to access our proxy
materials, including our 2009 Proxy Statement. The Notice of Internet
Availability also provides instructions on how to access your proxy card to vote
through the Internet. This new process is designed to expedite stockholders’
receipt of proxy materials, lower the cost of the annual meeting, and help
conserve natural resources. However, if you would prefer to receive printed
proxy materials, please follow the instructions included in the Notice of
Internet Availability.
RECORD
DATE
The Board
of Directors of ZAGG Inc has fixed the close of business on May 12, 2009 as the
record date for the determination of shareholders entitled to notice of and to
vote at the annual meeting.
PROXY
SOLICITATION
In
addition to the solicitation of proxies by the Board of Directors through use of
the mails, proxies may also be solicited by ZAGG Inc and its directors, officers
and employees (who will receive no additional compensation therefore) by
telephone, telegram, facsimile transmission or other electronic communication,
and/or by personal interview. The Company will reimburse banks,
brokerage houses, custodians and other fiduciaries that hold shares of common
stock in their name or custody, or in the name of nominees for others, for their
out-of-pocket expenses incurred in forwarding copies of the proxy materials to
those persons for whom they hold such shares. The Company will bear
the costs of the annual meeting and of soliciting proxies therefore, including
the cost of printing and mailing this proxy statement and related
materials. The Company has spent approximately $5,000 in legal and
other expenses in the preparation of this proxy statement and other expenses
connected with the solicitation of security holders. It is
anticipated that the Company will spend an additional $2,000 in solicitation of
security holders before the meeting is held.
Any
questions or requests for assistance regarding the Company's proxies and related
materials may be directed in writing to the Chief Executive Officer, Robert G.
Pedersen II, 3855 South 500 West, Suite J Salt Lake City, Utah
84115.
QUORUM
The
presence, in person or by proxy duly authorized, of a majority of all the shares
outstanding, represented by shareholders of record, will constitute a quorum of
that voting group for action on that matter. Shares of common stock
present in person or represented by proxy (including shares which abstain or do
not vote with respect to one or more of the matters presented for stockholder
approval) will be counted for purposes of determining whether a quorum exists at
the annual meeting.
VOTING
SECURITIES AND PRINCIPAL HOLDERS THEREOF
The
nominees elected as directors are those receiving the largest numbers of votes
cast by the shares entitled to vote in the election, either present in person or
represented by proxy at the meeting, up to the number of directors to be elected
by such shares. Shareholders entitled to vote at any election of
directors are not entitled to cumulative votes. Votes may be cast in
favor of the election of directors or withheld. Votes that are
withheld will be counted for the purposes of determining the presence or absence
of a quorum, but will have no other effect on the election of
directors.
Confirmation
of Hansen, Barnett & Maxwell, P.C., as auditors for the Company, and the
approval of an amendment to the ZAGG Incorporated 2007 Stock Incentive Plan will
require the affirmative vote of the holders of a majority of the votes cast,
excluding abstentions, at any meeting at which a quorum is present.
Each
share of common stock entitles the holder thereof to one vote per share on each
matter presented to the stockholders for approval at the annual
meeting. On May 12, 2009, there were an aggregate of 19,820,015
shares of common stock outstanding and entitled to vote.
Shares
held in “street name” by brokers or nominees who indicate on their proxies that
they do not have discretionary authority to vote such shares as to a particular
matter will not be voted in favor of such matter and will not be counted as
shares voting on such matter. Accordingly, broker non−votes, if any,
will be counted for the purposes of determining the presence or absence of a
quorum, but will have no effect on the election of directors or the approval of
the other matters voted upon at the annual meeting.
OTHER
MATTERS
All
Proxies will be voted in accordance with the instructions of the
stockholder. If no choice is specified, the proxies will be voted FOR
the election of all the nominees to serve as our directors and FOR the approval
of all of the other proposals set forth in the accompanying Notice of Meeting
and on the proxy card. If other matters are properly presented,
however, the persons named as proxy appointees will vote in accordance with
their best judgment on such matters. The grant of a proxy also will
confer discretionary authority on the persons named as proxy appointees to vote
in accordance with their best judgment on matters incident to the conduct of the
annual meeting.
SHAREHOLDER
PROPOSALS
No
proposals have been received from any shareholder to be considered at the annual
meeting.
The
deadline for submittal of shareholder proposals for the next regularly scheduled
annual meeting will be not less than 120 calendar days before the date of the
company's proxy statement released to shareholders in connection with the
previous year's annual meeting. A shareholder proposal submitted
outside the processes of SEC Regulation Section 240.14a−8 will be considered
untimely if received at the principal offices of the Company on or after 45 days
prior to the Company's release of its proxy statement to
shareholders.
DISSENTERS’
RIGHT OF APPRAISAL
There are
no rights of appraisal or similar rights of dissenters with respect to any of
the scheduled matters to be acted upon at the annual meeting.
REVOCATION
OF PROXY
Execution
of a proxy by a shareholder will not affect such shareholder's right to attend
the annual meeting and to vote in person. Any shareholder who
executes a proxy has a right to revoke it at any time before it is voted by: (a)
advising the Company in writing of such revocation; (b) executing a later−dated
proxy which is presented to us at or prior to the annual meeting; or (c)
appearing at the annual meeting and voting in person. Attendance at
the annual meeting will not itself be deemed to revoke a proxy unless the
shareholder gives affirmative notice at the annual meeting that the stockholder
intends to revoke the proxy and vote in person.
INTEREST
OF CERTAIN PERSONS IN MATTERS TO BE ACTED UPON
No person
has any substantial interest, direct or indirect, in the any matter to be acted
upon other than the election of directors.
SHAREHOLDERS
ARE URGED TO READ AND CAREFULLY CONSIDER THE INFORMATION PRESENTED IN THIS PROXY
STATEMENT, AND SHAREHOLDERS ARE URGED TO COMPLETE, DATE, SIGN AND PROMPTLY
RETURN THE ENCLOSED PROXY.
PROPOSAL
NO. 1
ELECTION
OF DIRECTORS
At the
annual meeting, shareholders will be asked to consider and to take action on the
election of two (2) persons to the Board of Directors (the
“Board”). The persons named below are nominees for election as a
director and all nominees are currently serving as directors of the
Company. If any such nominee cannot be a candidate for election at
the annual meeting, then it is management's intention to vote its shares voted
either for a substitute nominee designated by the Board or for the election only
of the remaining nominees.
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Name
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Age
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Robert
G. Pedersen II
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42
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Larry
Harmer
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37
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Set forth
below is a brief description of the background and business experience of each
of the nominees for director.
Robert G. Pedersen II
- Mr.
Pedersen provides the overall vision and leadership of ZAGG Incorporated. Mr.
Pedersen has more than 20 years' experience in executive management, sales and
marketing, communications, as well as owning and managing several start-up
businesses and enterprises. Since 1998, Mr. Pedersen was a co-owner and
executive manager for Del Sol, LC, a Utah-based international specialty retailer
of apparel and accessories, where he implemented the in-line retail store model.
Del Sol now has more than 80 stores world-wide. Additionally, Mr. Pedersen
created and was the director of DelSol.com, Del Sol LC’s Internet presence. In
2002 Mr. Pedersen founded PayTeck, Inc., a Utah provider of Internet-based
payment processing services, which was later sold to Zion's Bank, a public
company, in 2005. Mr. Pedersen joined ZAGG in October 2005 as a consultant and
then in January 2006 joined the company as a full partner in a full time
capacity and has served as its Chief Executive Officer and Chairman since that
time. Mr. Pedersen is also the Company’s largest shareholder. Mr. Pedersen
earned a degree in business administration (BSBA) from the University of Phoenix
and a Masters Degree (MBA) from Brigham Young University in Business
Administration with an emphasis in marketing, finance and organizational
communications.
Larry Harmer
– Mr. Harmer
co-founded a consumer products company that, under his leadership, grew from a
licensee with several brands including the Polaroid brand to a global
organization with revenues that exceeded $1.5 billion (in about 4
years). Mr. Harmer played a significant role in the purchase,
privatization and divestiture of the Polaroid asset portfolio and was
responsible for all international vendor and customer relationships. He has
extensive experience in selling the retail industry. Mr.
Harmer’s previous experience includes serving as CEO for the Polaroid
Corporation, Managing Director of SGSV Ltd a global asset management firm,
Director of Business Strategy for PricewaterhouseCoopers LLP, Director of
Organizational Development for Nortel Networks, and co-founding Wholonics
Leadership Group, LLC. Mr. Harmer earned an MBA, an MOB and a BA in
Chinese & Asian Studies from Brigham Young University. He has
taught Rapid Prototyping and Process Design in University of Michigan’s
Executive MBA Program. He is fluent in Mandarin Chinese, equally
comfortable conducting business in English or Chinese.
It is the
intention of the person named in the accompanying proxy to vote proxies for the
election of the two (2) nominees. Each nominee has consented to being
named in this proxy statement and to serve, if elected. In the event
that any of the nominees should for some reason, presently unknown, become
unavailable for election, the persons named in the form of proxy as proxy
holders intend to vote for substitute nominees.
TERMS
OF OFFICE
Our
directors are appointed for a one-year term to hold office until the next annual
meeting of our shareholders, or until their successors are elected and
qualified, or until removed from office in accordance with our
bylaws.
EXECUTIVE
OFFICERS AND SIGNIFICANT EMPLOYEES
Our
executive officers are appointed by our board of directors and hold office until
removed by the board. The following table sets forth the names of the
Company’s executive officers, their ages, and present position.
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Name
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Age
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Position
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Robert
G. Pedersen II
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42
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Chief
Executive Officer, Director
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Brandon
T. O’Brien
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38
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Chief
Financial
Officer
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Set forth
below is a brief description of the background and business experience of Mr.
O’Brien. Information describing the background and experience of Mr. Pedersen is
set forth above.
Brandon T. O’Brien
- Mr.
O’Brien became our Chief Financial Officer on February 12, 2007. Prior to
assuming his position as the Chief Financial Officer for the Company, Mr.
O’Brien, served as the Vice President of Finance at Fonix Corporation, a speech
recognition software company, from January 2003 to January 2007, and as an
independent financial consultant from September 2001 to January 2003. Mr.
O’Brien has extensive experience in mergers and acquisitions, accounting for
financial transactions with foreign subsidiaries and the application of
financial accounting standards and principles. Mr. O’Brien has broad experience
with both small micro-cap public companies and with large multinational public
companies. Mr. O’Brien is a licensed Certified Public Accountant and has
attained the Certified Management Accountant and Certified Financial Manager
designations. Mr. O’Brien earned a Bachelor of Science degree in Accounting from
Utah State University in 1995 and a Masters of Business Administration from the
University of Utah in 1996.
EXECUTIVE
COMPENSATION
The
following table sets forth information regarding the compensation earned by each
of the named executives for the fiscal years ended December 31, 2008 and
2007.
Summary
Compensation Table
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Name
and Principal Position
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Year
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Salary
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Bonus
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Stock
Awards
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Option
Awards
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All
Other Compensation
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Total
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Robert
G. Pedersen II President,
Chief
Executive Officer and Director
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2008
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$
179,000
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$
34,000
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--
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$
9,728
(1)
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--
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$
228,728
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2007
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$
120,000
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$ 12,000
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$ 95,000
(1)
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--
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--
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$ 227,000
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Brandon
T. O’Brien
Chief
Financial Officer
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2008
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$120,000
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$ 16,000
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$ 64,400
(1)
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$
8,107
(1)
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--
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$ 208,507
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2007
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$
101,846
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$ 12,000
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$ 120,000
(1)
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--
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--
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$ 233,846
(2)
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(1)
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These
amounts reflect the dollar amount recognized for financial statement
reporting purposes for the fiscal years indicated in accordance with
Statement of Financial Accounting Standards (“SFAS”) No. 123R, Share Based
Payments of awards of restricted stock and stock options, as applicable,
granted pursuant to the Company’s long-term incentive
plans. Assumptions and methodologies used in the calculation of
these amounts with respect to the 2008 fiscal year are included in
footnotes to the Company’s audited financial statements for the fiscal
years ended December 31, 2008 and 2007 which were included in the
Company’s Annual Reports on Form 10-K for those
years.
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(2)
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Mr.
O’Brien was appointed our Chief Financial Officer on February 12,
2007.
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Outstanding
Equity Awards
The
following table sets forth information concerning unexercised options, stock
that has not vested and equity incentive plan awards for each named executive
officer as of December 31, 2008.
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Outstanding
Equity Awards at Fiscal Year-End
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OPTION
AWARDS
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STOCK
AWARDS
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Name
of Executive
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Number
of Exercisable Securities Underlying Unexercised Options
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Number
of Unexercisable Securities Underlying Unexercised Options
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Option
Exercise Price
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Option
Expiration Date
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Number
of shares or Units of Stock that Have Not Vested
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Market
Value of Shares or Units of Stock That Have Not Vested
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Equity
Incentive Plan Awards: Number of unearned Shares, Units or Other Rights
That Have Not Vested
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Equity
Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or
Other Rights That Have Not Vested
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Robert
G. Pedersen II
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--
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60,000
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$0.65
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3/6/2013
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60,000
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$55,800
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--
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--
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Brandon
T. O’Brien
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--
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50,000
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$0.65
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3/6/2013
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50,000
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$46,500
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--
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--
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Compensation
of Directors
The table
below summarizes all compensation of our non-employee directors for the year
ended December 31, 2008.
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DIRECTOR
COMPENSATION
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Name
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Fees
Earned or Paid in Cash
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Stock
Awards
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Option
Awards
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Non-Equity
Incentive Plan Compensation
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Non-Qualified
Deferred Compensation Earnings
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All
Other Compensation
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Total
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Larry
Harmer
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--
|
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--
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$
113,399
(1)
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--
|
|
--
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--
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$
113,399
|
|
(1)
|
This
amount reflects the dollar amount recognized for financial statement
reporting purposes for the fiscal year indicated in accordance with SFAS
No. 123R, Share Based Payments of awards of restricted stock and stock
options, as applicable, granted pursuant to the Company’s long-term
incentive plans. Assumptions and methodologies used in the
calculation of these amounts with respect to the 2008 fiscal year are
included in footnotes to the Company’s audited financial statements for
the fiscal year ended December 31, 2008 which were included in the
Company’s Annual Report on Form
10-K.
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Narrative
Disclosure to the Director Compensation Table
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We
do not pay any cash compensation to our
directors.
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SIGNIFICANT
EMPLOYEES
We have
no significant employees other than our executive officers.
FAMILY
RELATIONSHIPS
There are
no family relationships between or among the directors, executive officers, or
persons nominated or chosen by us to become directors or executive
officers.
LEGAL
PROCEEDINGS
We are
not a party to any pending legal proceeding. We are not aware of any
pending legal proceeding to which any of our officers, directors, or any
beneficial holders of 5% or more of our voting securities are adverse to us or
have a material interest adverse to us.
To the
best of the Company’s knowledge, during the past five years, none of the
following occurred with respect to a present or former director, executive
officer, or employee: (1) any bankruptcy petition filed by or against any
business of which such person was a general partner or executive officer either
at the time of the bankruptcy or within two years prior to that time; (2) any
conviction in a criminal proceeding or being subject to a pending
criminal proceeding (excluding traffic violations and other minor offenses); (3)
being subject to any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining, barring, suspending or otherwise limiting
his or her involvement in any type of business, securities or banking
activities; and (4) being found by a court of competent jurisdiction (in a civil
action), the SEC or the Commodities Futures Trading Commission to have violated
a federal or state securities or commodities law, and the judgment has not been
reversed, suspended or vacated.
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
Other
than as disclosed below, none of our directors or executive officers, nor any
proposed nominee for election as a director, nor any person who beneficially
owns, directly or indirectly, shares carrying more than 5% of the voting rights
attached to all of our outstanding shares, nor any members of the immediate
family (including spouse, parents, children, siblings, and in-laws) of any of
the foregoing persons has any material interest, direct or indirect, in any
transaction since our incorporation or in any presently proposed transaction
which, in either case, has or will materially affect us.
In
November 2006, the Company entered into a convertible note with an affiliate of
the Company’s Chief Executive Officer in the original principal amount of
$100,000. The note was convertible at the holder's option any time up
to maturity at a conversion price equal to $0.35 per common share. The note was
due on May 15, 2007, bore interest at 20% per year and was
unsecured. In March 2007, the Company repaid $50,000 of the principal
balance of the note. In addition, the remaining $50,000 of principal
plus accrued interest of $1,749 was converted into 147,853 shares of the
Company’s common stock.
The note
was a conventional convertible instrument and the Company evaluated the
conversion feature and determined that there was not a separate derivative
instrument associated with the note and no derivative liability was
recognized. The Company determined that there was no beneficial
conversion feature associated with the note as the conversion price was equal to
the deemed market value on the date of grant.
SECTION
16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section
16(a) of the Exchange Act requires our directors and executive officers and
persons who beneficially own more than ten percent of a registered class of the
Company’s equity securities to file with the SEC initial reports of ownership
and reports of changes in ownership of common stock and other equity securities
of the Company. Officers, directors and greater than ten percent
beneficial shareholders are required by SEC regulations to furnish us with
copies of all Section 16(a) forms they file. To the best of our
knowledge based solely on a review of Forms 3, 4, and 5 (and any amendments
thereof) received by us during or with respect to the year ended December 31,
2008, the following persons have failed to file, on a timely basis, the
identified reports required by Section 16(a) of the Exchange Act during fiscal
year ended December 31, 2008:
|
Name
and principal position
|
|
Number
of late reports
|
|
Transactions
not timely reported
|
|
Known
failures to file a required form
|
|
Robert
G. Pedersen II
Chief
Executive Officer, Chairman
|
|
--
|
|
--
|
|
--
|
|
Brandon
T. O’Brien
Chief
Financial Officer
|
|
--
|
|
2
|
|
--
|
|
Larry
Harmer
Director
|
|
1
|
|
--
|
|
--
|
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth, as of May 12, 2009, certain information regarding
the ownership of our capital stock by the following persons on such date: each
of the directors and executive officers, each person who is known to be a
beneficial owner of more than 5% of any class of our voting stock, and all of
our officers and directors as a group. Unless otherwise indicated below, to our
knowledge, all persons listed below had sole voting and investing power with
respect to their shares of capital stock, except to the extent authority was
shared by spouses under applicable community property laws.
Beneficial
ownership is determined in accordance with the rules of the Securities and
Exchange Commission and generally includes voting or investment power with
respect to securities. Shares of our common stock subject to options, warrants
or convertible securities exercisable or convertible within 60 days of May 12,
2009 were deemed outstanding for computing the percentage of the person or
entity holding such options, warrants or convertible securities but are not
deemed outstanding for computing the percentage of any other person, and was
based upon the number of shares of the Common Stock issued and outstanding, as
of May 12, 2009 which was 19,820,015 shares.
|
Title
of
Class
|
|
Name
and Address
Of
Beneficial
Owners
(1)
|
|
Amount
and Nature
Of
Beneficial Ownership
|
|
Percent
Of
Class
(2)
|
|
Common
Stock
|
|
Robert
G. Pedersen II
President
and Chief Executive Officer
(3)
|
|
7,402,557
|
|
35.95%
|
|
Common
Stock
|
|
Brandon
T. O’Brien
Chief
Financial Officer
(4)
|
|
497,447
|
|
2.50%
|
|
Common
Stock
|
|
Andrew
C. Park
201
Post Street, 11th Floor
San
Francisco, CA 94108
|
|
1,587,353
|
|
7.80%
|
|
Common
Stock
|
|
SunCreek,
LLC
2873
Tolcate Lane
Holladay,
Utah 84121
|
|
5,000,000
|
|
25.23%
|
|
Common
Stock
|
|
Larry
Harmer
Director
(5)
|
|
333,333
|
|
1.68%
|
|
Common
Stock
|
|
Alan
Davidson
36
Candlewyck Dr.
Henderson,
NV 89052
|
|
1,025,194
|
|
5.17%
|
|
|
|
All
officers, directors and director nominees as a group (3
persons)
|
|
8,233,337
|
|
39.81%
|
|
(1)
|
Unless
otherwise noted, the address for each of the named beneficial owners is:
3855 South 500 West, Suite J, Salt Lake City, Utah, 84115. Unless
otherwise indicated, beneficial ownership is determined in accordance with
Rule 13d-3 promulgated under the Exchange Act and generally includes
voting and/or investment power with respect to securities. Shares of
common stock subject to options or warrants that are currently exercisable
or exercisable within sixty days of May 12, 2009, are deemed to be
beneficially owned by the person holding such options or warrants for the
purpose of computing the percentage of ownership set forth in the above
table, unless otherwise indicated.
|
|
(2)
|
The
calculations of percentage of beneficial ownership are based on 19,283,995
shares of common stock outstanding as of May 12,
2009.
|
|
(3)
|
Includes
1,595,000 shares of Common Stock held directly by Mr. Pedersen, 5,000
shares of Common Stock held by Mr. Pedersen’s spouse and 5,000,000 shares
of Common Stock held by SunCreek, LLC, an entity wholly owned by Mr.
Pedersen. Mr. Pedersen exercises sole voting and investment
control over the shares held by SunCreek, LLC. Also includes warrants to
purchase 750,000 shares of common stock at $1.30 per share and options to
purchase 20,000 shares of common stock at $0.65 per
share.
|
|
(4)
|
Includes
406,853 shares of Common Stock held directly by Mr. O’Brien, warrants to
purchase 73,927 shares of common stock at $1.30 per share and options to
purchase 16,667 shares of common stock at $0.65 per
share.
|
|
(5)
|
Includes
options to purchase 333,333 shares of common stock at $0.60 per
share.
|
AUDIT
COMMITTEE
We do not
have a separately-designated standing audit committee. The entire
Board of Directors performs the functions of an audit committee, but no written
charter governs the actions of the Board when performing the functions of that
would generally be performed by an audit committee. The Board
approves the selection of our independent accountants and meets and interacts
with the independent accountants to discuss issues related to financial
reporting. In addition, the Board reviews the scope and results of
the audit with the independent accountants, reviews with management and the
independent accountants our annual operating results, considers the adequacy of
our internal accounting procedures and considers other auditing and accounting
matters including fees to be paid to the independent auditor and the performance
of the independent auditor.
For the
fiscal year ending December 31, 2008, the Board:
|
1.
|
Reviewed
and discussed the audited financial statements with management,
and
|
|
2.
|
Reviewed
and discussed the written disclosures and the letter from our independent
auditors on the matters relating to the auditor's
independence.
|
Based
upon the Board’s review and discussion of the matters above, the Board
authorized inclusion of the audited financial statements for the year ended
December 31, 2008 to be included in the Annual Report on Form 10-K and filed
with the Securities and Exchange Commission.
NOMINATION
COMMITTEE
The
Company's independent directors annually review all director performance over
the past year and make recommendations to the Board for future
nominations. When evaluating director nominees, the Company's
independent directors consider the following factors:
|
§
|
The
appropriate size of the Company’s Board of
Directors;
|
|
§
|
The
needs of the Company with respect to the particular talents and experience
of its directors;
|
|
§
|
The
knowledge, skills and experience of nominees, including experience in
finance, administration or public service, in light of prevailing business
conditions and the knowledge, skills and experience already possessed by
other members of the Board;
|
|
§
|
Experience
in political affairs;
|
|
§
|
Experience
with accounting rules and practices;
and
|
|
§
|
The
desire to balance the benefit of continuity with the periodic injection of
the fresh perspective provided by new Board
members.
|
The
Company’s goal is to assemble a Board that brings together a variety of
perspectives and skills derived from high quality business and professional
experience. In doing so, the Board will also consider candidates with
appropriate non-business backgrounds.
Other
than the foregoing, there are no stated minimum criteria for director nominees,
although the Board may also consider such other factors as it may deem are in
the best interests of the Company and its stockholders. In addition,
the Board identifies nominees by first evaluating the current members of the
Board willing to continue in service. Current members of the Board
with skills and experience that are relevant to the Company’s business and who
are willing to continue in service are considered for
re-nomination. If any member of the Board does not wish to continue
in service or if the Board decides not to re-nominate a member for re-election,
the Board then identifies the desired skills and experience of a new nominee in
light of the criteria above. Current members of the Board are polled
for suggestions as to individuals meeting the criteria described
above. The Board may also engage in research to identify qualified
individuals. To date, the Company has not engaged third parties to
identify or evaluate or assist in identifying potential nominees, although the
Company reserves the right in the future to retain a third party search firm, if
necessary. The Board does not typically consider shareholder nominees
because it believes that its current nomination process is sufficient to
identify directors who serve the Company's best interests.
MEETINGS
OF THE BOARD OF DIRECTORS
During
the fiscal year ended December 31, 2008, the Board met 6 times, in person
or by telephonic conference. Each incumbent Director attended in
excess of 75 percent of the total meetings of the Board. In
addition, various matters were approved by consent resolution which in each case
was signed by each of the members of the Board then serving.
STOCKHOLDER
COMMUNICATIONS WITH THE BOARD OF DIRECTORS
Historically,
we have not adopted a formal process for stockholder communications with the
Board. Nevertheless, every effort has been made to ensure that the Board or
individual directors, as applicable, hear the views of stockholders and that
appropriate responses are provided to stockholders in a timely manner. Any
matter intended for the Board, or for any individual member or members of the
Board, should be directed to our Chief Executive Officer, Mr. Robert G. Pedersen
II, with a request to forward the same to the intended recipient. All such
communications will be forwarded unopened.
THE BOARD
OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF THE NOMINEES. PROXIES
SOLICITED BY ZAGG INC WILL BE SO VOTED UNLESS SHAREHOLDERS SPECIFY IN THEIR
PROXIES A CONTRARY CHOICE.
PROPOSAL
NO. 2
SELECTION
OF AUDITORS
The Board
of Directors selected Hansen, Barnett & Maxwell, P.C. as the Company’s
independent auditors to examine the Company’s financial statements for the
fiscal year ended December 31, 2009. The Board
is asking the shareholders
to confirm this appointment.
Representatives
of Hansen, Barnett & Maxwell, P.C. are not expected to be present at the
annual meeting of the shareholders.
AUDIT
FEES
Hansen,
Barnett & Maxwell, P.C. has served as our independent registered public
accounting firm since April 17, 2007. During the years ended December 31, 2008
and 2007, we paid Hansen, Barnett & Maxwell, P.C. fees in the aggregate
amount of $46,500 and $50,500, respectively, for the annual audit of the
Company’s financial statements, the quarterly reviews of our financial
statements included in our quarterly reports on Form 10-Q and the review of our
registration statements.
During
the years ended December 31, 2008 and 2007, we paid Hansen, Barnett &
Maxwell, P.C. $4,600 and $0 for tax services.
THE BOARD
OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF CONFIRMING HANSEN, BARNETT &
MAXWELL, P.C. AS THE COMPANY’S INDEPENDENT AUDITORS. PROXIES
SOLICITED BY ZAGG INC WILL BE SO VOTED UNLESS SHAREHOLDERS SPECIFY IN THEIR
PROXIES A CONTRARY CHOICE.
PROPOSAL
NO. 3
APPROVAL
OF AMENDMENT TO THE ZAGG INCORPORATED
2007
STOCK INCENTIVE PLAN
The Board
of Directors approved an amendment to the ZAGG Incorporated 2007 Stock Incentive
Plan (the “Plan”) to increase the number of shares of Common Stock reserved for
issuance thereunder by 3 million shares. The Board
is asking the shareholders
to confirm this amendment.
General
Information
ZAGG Inc
established the Plan in 2007 to promote the interests of the company and its
shareholders by using investment interests in the company to attract, motivate
and retain highly qualified key personnel, encourage equity ownership among this
group, and enhance a mutuality of interest with shareholders in improving the
long-term performance of the company and the value of the company’s Common
Stock. On November 13, 2007, the Board of Directors adopted the Plan. The Plan
was approved by the shareholders at the June 18, 2008 annual meeting of
shareholders. Currently, the maximum number of shares of Common Stock available
for issuance under the Plan is 2,000,000.
ZAGG Inc
currently maintains the Plan under which stock options and stock awards for an
aggregate of approximately 2,000,000 shares of the company’s common stock were
outstanding as of May 12, 2009. On February 19, 2009, there were 1,531,667
shares of the company’s common stock outstanding under the Plan. Since that date
and through May 12, 2009, ZAGG Inc has issued 436,667 in stock options and stock
awards under a plan approved by the Board of Directors to increase the number of
stock available under the Plan by 3,000,000 shares. Consequently,
ZAGG Inc now seeks shareholder approval to increase the amount of common stock
for options and equity awards by 3,000,000 to include those issuances under the
amended terms of the Plan. Thus, if the stockholders approve the
proposed amendments to the Plan, the number of shares of common stock available
for options and equity grants to its employees, officers, directors and
consultants will be first utilized to cover the 436,667 shares of common stock
issued for options and equity grants, with a remaining 2,563,333 shares of
common stock available under the Plan for future use. As of May 12, 2009,
approximately 97 of the Company’s employees, officers, directors and
consultants, representing substantially all of the Company’s full-time
employees, were eligible to participate in the Plan.
The Board
of Directors has approved the amendment to the Plan, described above, subject to
stockholder approval. The Board of Directors adopted the amendment to the Plan
because it believes that:
|
§
|
Additional
shares for options and awards under the Plan are necessary to attract and
retain qualified employees and executives;
and
|
|
§
|
Additional
shares for options and awards under the Plan are needed to further the
goal of motivating existing personnel and providing long-term equity
incentives which is an integral component of the Company’s compensation
policy;
|
Description
of the Plan
A summary
of the Plan, as amended by the increase in the number of shares of Common Stock
reserved for issuance described above, is set forth below. This summary is
qualified in its entirety by the full text of the Plan, which is attached to
this proxy statement as Appendix A.
Grants of
incentive or non-qualified stock options, restricted stock or a combination of
the foregoing may be made under the Plan. The maximum aggregate number of shares
of our common stock that may be issued pursuant to grants and the exercise of
options shall not exceed 5,000,000 shares of common stock, including shares
previously issued under the Plan. Unless sooner terminated by the Board in its
sole discretion, this Plan will expire on June 18, 2018. The full text of the
ZAGG Incorporated 2007 Stock Incentive Plan is attached hereto as Appendix
A.
In
summary, the Plan provides as follows:
Administration
of the Plan
This Plan
shall be administered by the Board of Directors or by a Compensation Committee
(hereinafter the “Committee”) composed of members selected by, and serving at
the pleasure of, the Board of Directors (the “Plan Administrator”). Subject to
the provisions of the Plan, the Plan Administrator shall have authority to
prescribe, amend and rescind rules and procedures governing administration of
this Plan. The Plan Administrator shall have full power and authority (i) to
interpret the terms of this Plan, the terms of the grants and the rules and
procedures established by the Plan Administrator and (ii) to determine the
meaning of or requirements imposed by or rights of any person under this Plan,
any grant or any rule or procedure established by the Plan Administrator. The
interpretation and construction by the Plan Administrator of any provision of
the Plan, or of any agreement issued and executed under the Plan, shall be final
and binding upon all parties. No member of the Committee or Board shall be
liable for any action or determination undertaken or made in good faith with
respect to the Plan or any agreement executed pursuant to the Plan. Service on
the Committee shall constitute service as a director of the Company so that the
members of the Committee shall be entitled to indemnification and reimbursement
as directors of the Company for any action or any failure to act in connection
with service on the Committee to the full extent provided for at any time in the
Company's Articles of Incorporation and By Laws, or in any insurance policy or
other agreement intended for the benefit of the Company's
directors.
Securities
Issuable under the Plan
The Plan
Administrator shall have the right and the power to grant at any time to any
eligible persons, options, restricted stock or a combination thereof (each a
"Grant"), in such quantity, at such price, on such terms and subject to such
conditions consistent with the provisions of this Plan as may be established by
the Plan Administrator on or prior to the granting date for such
Grant.
Eligible
Persons under the Plan
A person
shall be eligible to receive a Grant under the Plan only if on the proposed
granting date for such Grant such person is an employee of, is currently serving
as a member of the Board of Directors of, has rendered or is expected to render
within a twelve-month period of the granting date advisory or consulting
services to, or to whom an offer of employment has been extended by the
Company.
Stock
Options
The Plan
Administrator shall have the power to determine the grantee to whom options are
granted, the number of shares subject to each option, the number of options
granted to each grantee and the time at which each option is granted. Except as
otherwise expressly provided in the Plan, the Plan Administrator shall also have
the power to determine, at the time of the grant of each option, all terms and
conditions governing the rights and obligations of the grantee with respect to
such option. With respect to any option, the Plan Administrator shall have the
power to determine: (a) the purchase price per share or the method by which the
purchase price per share will be determined; (b) the length of the period during
which the option may be exercised and any limitations on the number of shares
purchasable with the option at any given time during such period; (c) the times
at which the option may be exercised; (d) any conditions precedent to be
satisfied before the option may be exercised, such as vesting period; (e) any
restrictions on resale of any shares purchased upon exercise of the option; (f)
the extent to which the option may be transferable; and (g) whether the option
will constitute an “Incentive Stock Option.”
It is the
Company's intent that Non-qualified Stock Options granted under the Plan not be
classified as Incentive Stock Options, that Incentive Stock Options be
consistent with and contain or be deemed to contain all provisions required
under Section 422 of the Code and any successor thereto, and that any
ambiguities in construction be interpreted in order to effectuate such intent.
If an Incentive Stock Option granted under the Plan does not qualify as such for
any reason, then to the extent of such non-qualification, the stock option
represented thereby shall be regarded as a Non-qualified Stock Option duly
granted under the Plan, provided that such stock option otherwise meets the
Plan's requirements for Non-qualified Stock Options.
No
Incentive Stock Option may be granted under the Plan which is exercisable more
than ten years after its granting date. No grantee may be granted Incentive
Stock Options if the value of the shares subject to those options which first
become exercisable in any given calendar year (and the value of the shares
subject to any other Incentive Stock Options issued to the grantee under the
Plan or any other plan of the Company which first become exercisable in such
year) exceeds $200,000. For this purpose, the value of shares shall be
determined on the granting date. Any Incentive Stock Options issued in excess of
the $200,000 limit shall be treated as Non-qualified Options. Incentive Stock
Options shall be taken into account in the order in which they were
granted.
Stock
Grants
The Plan
Administrator may at any time and from time to time grant shares of restricted
stock under the Plan to such grantees and in such amounts as it determines. Each
grant of restricted stock shall specify the applicable restrictions on such
shares (including, for example, time, performance, price and milestone based
vesting restrictions), the duration of such restrictions and the time or times
at which such restrictions shall lapse with respect to all or a specified number
of shares that are part of the grant.
The
grantee will be required to pay the Company the aggregate par value of any
shares of restricted stock within ten days of the date of grant, unless such
shares of restricted stock are treasury shares.
Unless
otherwise determined by the Plan Administrator, certificates representing shares
of restricted stock granted under the Plan will be held in escrow by the Company
on the grantee's behalf during any period of restriction thereon and will bear
an appropriate legend specifying the applicable restrictions thereon, and the
grantee will be required to execute a blank stock power therefore. Except as
otherwise provided by the Committee, during such period of restriction the
grantee shall have all of the rights of a holder of common stock, including but
not limited to the rights to receive dividends and to vote, and any stock or
other securities received as a distribution with respect to such grantee's
restricted stock shall be subject to the same restrictions as then in effect for
the restricted stock.
Except as
otherwise provided by the Plan Administrator, at such time as a grantee ceases
to be a director, officer or employee of, or otherwise performing services for,
the Company or its subsidiaries for any other reason, all shares of restricted
stock granted to such participant on which the restrictions have not lapsed
shall be immediately forfeited to the Company.
Terms
and Conditions of Grants
Specific
requirements for the terms and conditions of all Grants entered into are
detailed in the Plan.
Amendment
of the Plan
Except as
provided in the following two sentences, the Board shall have complete power and
authority to amend this Plan at any time, and no approval by the Company's
stockholders or by any other person, committee or other entity of any kind shall
be required to make any amendment approved by the Board effective. The Board
shall not, without the affirmative approval of the Company's stockholders, amend
the Plan in any manner which would cause any outstanding Incentive Stock Options
to no longer qualify as Incentive Stock Options. No termination or amendment of
this Plan may, without the consent of the Grantee prior to termination or the
adoption of such amendment, materially and adversely affect the rights of such
Grantee under such Grant.
Effective
Date
This Plan
will become effective at the earliest on June 18, 2008 (the "Effective Date"),
the date of the annual shareholder meeting, if approved by the majority of
shareholders. Unless sooner terminated by the Board in its sole discretion, this
plan will expire on June 18, 2018.
THE BOARD
OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR THE APPROVAL OF THE ZAGG INCORPORATED
2007 STOCK INCENTIVE PLAN. PROXIES SOLICITED BY ZAGG INC WILL BE SO VOTED UNLESS
SHAREHOLDERS SPECIFY IN THEIR PROXIES A CONTRARY CHOICE.
FINANCIAL
AND OTHER INFORMATION
The
Company has prepared and filed the Annual Report on Form 10-KSB for the fiscal
year ended December 31, 2007. The Company is sending to shareholders
the annual report for the most recent fiscal year.
WHERE
YOU CAN FIND MORE INFORMATION
The
Company is subject to the informational requirements of the Securities Exchange
Act of 1934, as amended, and, in accordance therewith, files reports and other
information with the Securities and Exchange Commission (the "SEC"). You can
read and copy any materials that the Company files with the SEC at the SEC's
Public Reference Room at 100 F Street, N. E., Washington, D.C. 20549. You can
obtain information about the operation of the SEC's Public Reference Room by
calling the SEC at 1-800-SEC-0330. The SEC also maintains a website that
contains information the Company files electronically with the SEC, which you
can access over the Internet at http://www.sec.gov. Copies of these materials
may also be obtained by mail from the Public Reference Section of the SEC, 100 F
Street, N. E., Washington, D.C. 20549. at prescribed
rates.
FORWARD-LOOKING
STATEMENTS
This
proxy statement includes statements that are not historical
facts. These statements are “forward-looking statements” as defined
in the Private Securities Litigation Reform Act of 1995 and are based, among
other things, on the Company’s current plans and expectations. As such, these
forward-looking statements involve uncertainty and risk.
The
Company does not undertake any obligation to update the forward-looking
statements contained in this proxy statement to reflect actual results, changes
in assumptions, or changes in other factors affecting these forward-looking
statements.
|
By
Order of the Board of Directors,
|
|
|
|
|
|
/s/
Robert G. Pedersen
|
|
Robert
G. Pedersen II
|
|
Chief
Executive Officer and
Director
|
The
undersigned appoints Robert G. Pedersen II of ZAGG Inc with full power of
substitution, the attorney and proxy of the undersigned, to attend the annual
meeting of shareholders of ZAGG Inc, to be held July 16, 2009 beginning at 10:00
am, Mountain Time, at its corporate offices located at 3855 South 500 West Suite
J, Salt Lake City, Utah 84115, and at any adjournment thereof, and to vote the
stock the undersigned would be entitled to vote if personally present, on all
matters set forth in the proxy statement sent to shareholders, a copy of which
has been received by the undersigned, as follows:
ZAGG
INC
Annual
Meeting of Shareholders
July 16,
2009
PROXY
This
Proxy is solicited on behalf of the Board of Directors for use at
the
Annual
Meeting on July 16, 2009
Please
mark your votes as indicated
[X] Total
Number of Shares Held: ____________
This
proxy when properly signed will be voted in the manner directed herein by the
undersigned shareholder.
IF NO
DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR THE
PROPOSALS
.
Nominees
– Robert G.
Pedersen II
Larry Harmer
|
FOR
Election of ALL Nominees
|
NOT
FOR Election of ALL Nominees
|
ABSTAIN
|
|
[ ]
|
[ ]
|
[ ]
|
Except
vote withheld from the following nominee listed above. (INSTRUCTION:
To withhold authority to vote for a nominee, strike a line through the nominee’s
name in the list below.)
Robert G. Pedersen II
Larry Harmer
|
2.
|
Confirm
Appointment of HANSEN, BARNETT & MAXWELL, P.C. as auditors for the
Company
|
|
FOR
Appointment
|
NOT
FOR Appointment
|
ABSTAIN
|
|
[ ]
|
[ ]
|
[ ]
|
|
3.
|
Approval
of amendment to the ZAGG Incorporated 2007 Stock Incentive
Plan
|
|
FOR
|
NOT
FOR
|
ABSTAIN
|
|
[ ]
|
[ ]
|
[ ]
|
In their
discretion, the proxies are authorized to vote upon such other business as may
properly come before the meeting.
IMPORTANT
- PLEASE SIGN AND RETURN PROMPTLY. When joint tenants hold shares, both should
sign. When signing as attorney, executor, administrator, trustee, or guardian,
please give full title as such. If a corporation, please sign in full corporate
name by President or other authorized officer. If a partnership, please sign in
partnership name by an authorized person. Please sign exactly as your name
appears on your stock certificate(s).
|
__________________________
|
__________________________
|
__________________________
|
|
Print
Name
|
Signature
|
Date
|
|
|
|
|
|
__________________________
|
__________________________
|
__________________________
|
|
Print
Name
|
Signature
|
Date
|