UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K/A
Amendment no. 2
| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2011
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from ____________________ to ____________________
Commission file number000-30061
Elephant Talk Communications Corp.
(Exact name of registrant as specified in its charter)
| Delaware | 95-4557538 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
| Schiphol Boulevard 249 1118 BH Schiphol The Netherlands | N/A | |
| (Address of principal executive offices) | (Zip Code) |
Issuer’s telephone number:31 0 20 653 5916
Securities registered pursuant to Section 12(b) of the Act: None
Common Stock, par value $0.00001 per share
(Title of class)
Securities registered pursuant to Section 12(g) of the Act:
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.¨
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.¨
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.x
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer or a smaller reporting company. See definition of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer¨ | Accelerated filerx | |
| Non-accelerated filer¨ | Smaller reporting company¨ | |
| (Do not check if a smaller reporting company) |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes x No¨
The aggregate market value of the voting and non-voting common equity held by non-affiliates as of June 30, 2011, the last business day of the registrant’s most recently completed second fiscal quarter, was approximately $188 million based on the closing sale price of the Company’s common stock on such date of U.S. $3.21 per share, as reported by the OTC BB.
State the number of shares outstanding of each of the issuer’s classes of common equity, as of the latest practicable date: As of March 9, 2012 there were 113,807,071 shares of common stock outstanding.
EXPLANATORY NOTE
Elephant Talk Communications Corp. (unless the context otherwise requires, includes its direct and indirect subsidiaries and is referred to as “Company,” “we,” “us” or “our”) is filing this Amendment No. 2 (the “Amendment No. 2”) to its Annual Report on Form 10-K for the fiscal year ended December 31, 2011 which was originally filed on March 30, 2011 (the “Original Filing”), as amended by Amendment No. 1 filed on April 30, 2012, to include Item 9B and the Grant of Plan-based Awards table in Item 11 as required by Item 402 of Regulation S-K. This Amendment No. 2 amends Part II, Item 9B “Other Information”and Part III, Item 11 “Executive Compensation,” of the Original Filing.
This Amendment No. 2 amends and restates in its entirety Item 11 “Executive Compensation” and the management certifications filed as exhibits in Item 15 to the Original Filing, which have been re-executed and re-filed as of the date of this Amendment. This Amendment does not affect any other parts of, or exhibits to, the Original Filing.
Except as expressly stated in this Amendment No.2, this Amendment No. 2 continues to speak as of the date of the Original Filing, and we have not updated the disclosure contained in the Amendment No. 2 to reflect events that have occurred since the filing of the Original Filing. Accordingly, this Amendment No. 2 must be read in conjunction with our other filings, if any, made with the Securities and Exchange Commission (“SEC”) subsequent to the filing of the Original Filing, including amendments to those filings, if any.
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PART II
ITEM 9B.OTHER INFORMATION
General
On March 30, 2012, we consummated a private placement of certain senior secured convertible notes (the “Convertible Notes” or “Notes”) in the principal amount of $8,800,000 to five accredited investors (the “Holders”) pursuant to a Securities Purchase Agreement on the terms set forth below. We received gross proceeds of $8,000,000, after the $800,000 original issue discount. In connection with the Private Placement, we entered into the following transaction agreements: a Security Purchase Agreement (the “SPA”), the Convertible Notes, the Escrow Agreements, the Security Agreement, the Subsidiary Guaranty Agreement, the Voting Agreement and the Registration Rights Agreement.
The Convertible Notes bear an annual interest rate of 8% of the principal amount and mature on May 1, 2014. The monthly installment payments (constituting interest and amortization) in the aggregate amount of $ 2,273,718 for the first year were reserved to ensure payment of the monthly installments. We can elect, on a monthly basis, to pay the full installment amount or parts thereof in our common stock at an amount equal to 90% of the average of the five lowest volume weighted average prices (“VWAP|”) of the common stock during the twenty (20) trading days immediately prior to such installment on the trading day payment date. The remaining amount of $5,726,282 was made available to us immediately at closing of the transaction. In the first year, if we elect to pay a monthly installment in common stock, the equivalent cash installment amount will be released from the escrow to us.
The Convertible Notes are convertible at the option of the Holders into our common stock at a fixed conversion price of $2.61 (the “Fixed Conversion Price”), which equals to 115% of the trailing 30 day closing price prior to closing of the transaction. Twelve months after the issuance date, the Notes are automatically convertible at the Fixed Conversion Price, if the price of our common stock, for any consecutive 30 days, close at or above 150% of the Fixed Conversion Price.
Negative Covenant
According to the terms of the Securities Purchase Agreement we are subject to the following negative covenants: (i) not to create any pledge, mortgage or other grant of security interest on any of its assets without the Holders’ prior written consent; (ii) not to create or assume any indebtedness that is senior to the Notes without the Holders’ prior written consent; (iii) not to guarantee any indebtedness of any of our subsidiaries or any other person with certain exceptions; (iv) not to declare or make any restricted payments, which include, among other things, dividend or distribution on any class of our capital stock.
Events of Default
According to the terms of the Convertible Notes, the following events, among other things, may be deemed as or result in an event of default:
| · | Suspension of trading for a period of 5 days or for more than an aggregate of 10 days in any 365-day period; |
| · | Failure to deliver the required number of shares of common stock within 3 days after an applicable conversion date; |
| · | Failure to pay any amount of principal, interest, and/or late charges when and as due under the Convertible Notes, including failure to pay any redemption payments; |
| · | The Company or any of its subsidiaries which is a party to the Security Agreement and Subsidiary Guaranty Agreement defaults on any indebtedness as defined in the SPA; |
| · | Failure to hold a special shareholders meeting to approve the issuance in full of all conversion shares and stock payment shares in according to the NYSE Amex rules within the required period; |
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If an event of default occurs, the Holder may declare all of the then outstanding principal of the affected Note and all other Notes held by the Holder, including any interest and unpaid late charges, to be due and payable immediately with certain exceptions. In the event of such acceleration, the amount due and owing to the Holder shall be 110% of the outstanding principal held by the Holder. In addition, such acceleration triggers default under the Security Agreement, as a result of which, the Holder may foreclose on our subsidiaries’ assets.
In the event we (in partnership with Adeptra), within 60 days from the closing date of the Private Placement, fail to announce that we have entered into a contract with one of the ten largest international financial institutions to provide SIM swapping fraud detection and prevention services to such financial institution in which the Company will receive certain requisite amount of net compensation (the “Launch Failure”), the Holders may declare all of the then outstanding principal amount of the Note to be due and payable immediately. In addition, in the event of a Launch Failure, the Holders may convert the Notes into our common stock at the lowest of (a) the Fixed Conversion Price in effect prior to such failure, (b) 90% of the average of the 5 lowest VWAPs for the 20 days prior to that day (c) 90% of the lowest reported trade price for the common stock as reported by Bloomberg on such date. Upon occurrence of a Launch Failure, the Company has the option to redeem a portion or the entire outstanding amount of the Convertible Notes at a redemption price of 100% thereof.
Reserved Shares and Other Limitations
We are required to initially reserve a number of common stock equal to 225% of the entire principal amount of the Notes at the Fixed Conversion Price (the “Reserved Shares”). The Notes include certain beneficial ownership limitations applicable to the conversion of the Notes. At no time will a holder be entitled to convert any portion of the Notes if, after such conversion the Holder would beneficially own more than 4.9% of the then issued and outstanding shares of common stock. The Holder may increase or decrease this limitation percentage not in excess of 9.9% upon a 61 day prior written notice to us.
In addition, the Holders are not entitled to convert any portion of the Note if, after such conversion, the issuance of the conversion shares would be in excess of 20% of the then issued and outstanding shares and thus require stockholder approval pursuant to NYSE Amex rules, unless such stockholder approval is obtained or a legal opinion is obtained stating no stockholder approval is required.
Stockholder Approval and Voting Agreement
Notwithstanding the fact that the issuance of the shares of common stock in connection with the Private Placement does not require stockholder approval pursuant to NYSE Amex rules, we agreed to hold a stockholders meeting for the purpose of approving the issuance in full of all conversion shares and stock payment shares within 120 days from the closing date. We expect to have such a stock holder meeting in July 2012. Further, following a Launch Failure, we will use reasonable best efforts, within 45 days of the date of such Launch Failure (or 60 days after the date of Launch Failure if the proxy statement is reviewed by the SEC), to hold a special stockholders meeting for the purpose of amending our certificate of incorporation to increase the authorized number of shares of common stock from 250,000,000 shares k to 350,000,000 shares.
Under the Voting Agreement, shareholders representing beneficial ownership of more than 36% of the issued and outstanding shares as of March 9, 2012 agreed to vote in favor of the proposal to approve the Securities Purchase Agreement.
Security Interests
Our payment obligations under the Convertible Notes are secured by a first priority security interest over substantially all the assets of the Company and our subsidiaries pursuant to the Security Agreement and guaranteed by our subsidiaries pursuant to the Subsidiary Guaranty Agreement.
The Company and its subsidiaries have agreed to grant a continuing security interest in and to all of their assets to secure the prompt and complete payment, observance and performance of the Company’s obligation under the transactional agreements.
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Registration Requirements
Pursuant to the Registration Rights Agreement, we are obligated to register the shares of common stock in connection with the Convertible Notes pursuant to certain mandatory registration rights granted to the Holders. Within 30 days of the closing, we are required to file a registration statement on Form S-3 covering the resale of all the shares issuable under the Notes and any additional shares issuable with respect to the Notes as a result of any stock split, stock dividend, recapitalization, exchange, anti-dilution adjustment to the Notes or similar event or otherwise, without regard to any limitation on the issuance of shares under the Notes. We agreed to cause such initial registration statement to be effective within 120 days of closing of the Private Placement.
We will be required to pay liquidated damages of 1% of each Holder’s initial investment (the amount after the original issuance discount) on each of the following dates: (i) 30th day of closing if such initial registration statement is not file (“Filing Failure”), (ii) 30th day of closing if such initial registration statement is not declared effective (“Effectiveness Failure”), (iii) the initial day of a maintenance failure as defined in the Registration Rights Agreement; (iv) on the thirtieth day after the date of a Filing Failure and every thirtieth day thereafter (pro rated for periods totaling less than thirty days) until such Filing Failure is cured; (v) on the thirtieth day after the date of an Effectiveness Failure and every thirtieth day thereafter (pro rated for periods totaling less than thirty days) until such Effectiveness Failure is cured; and (vi) on the thirtieth day after the date of a Maintenance Failure and every thirtieth day thereafter (pro rated for periods totaling less than thirty days) until such Maintenance Failure is cured.
Exemption
The Convertible Notes were issued pursuant to the exemption from registration afforded by Section 4(2) of the Securities Act of 1933, as amended and Regulation D thereunder.
Copies of the SPA, the Convertible Notes, the Escrow Agreements, the Security Agreement, the Subsidiary Guaranty Agreement, the Voting Agreement and the Registration Rights Agreement were attached as Exhibit 10.28, Exhibit 10.29, Exhibit 10.30, Exhibit 10.31, Exhibit 10.32 and Exhibit 10.33, respectively, to our annual report on Form 10-F filed on March 30, 2012, and are incorporated herein by reference. The foregoing summaries do not purport to be complete and are qualified in their entirety by reference to such documents.
PART III
ITEM 11.EXECUTIVE COMPENSATION
General
This discussion and analysis of compensation arrangements with our named executive officers is intended to provide context for the decisions underlying the compensation paid to our named executive officers in 2011 and should be read together with the compensation tables and related disclosures set forth below.
Administration
Our board of directors has established a Compensation Committee that, among other duties, will administer the Incentive Plan. The Compensation Committee will be composed of directors, whom will be “non-employee directors” within the meaning of Rule 16b-3(b)(3) of the Securities Exchange Act of 1934, as amended. Members of our Compensation Committee will serve at the pleasure of our Board and recommends to the Board.
The primary goals of our Compensation Committee with respect to executive compensation are to attract and retain the most talented and dedicated executives possible, to assure that our executives are compensated effectively in a manner consistent with our strategy and competitive practice and to align executives’ incentives with shareholder value creation. To achieve these goals, our Compensation Committee, with management’s input, recommends executive compensation packages to our Board of Directors. Although our Compensation Committee has not adopted any formal guidelines for allocating total compensation between equity compensation and cash compensation, we believe it is important for these executives to have equity ownership in our company to provide them with long-term incentives to build value for our shareholders.
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In connection with the administration of our Incentive Plan, the Compensation Committee, with respect to awards to be made to any person who is not one of our directors will:
| · | determine which employees and other persons will be granted awards under our Incentive Plan; |
| · | grant the awards to those selected to participate; |
| · | determine the exercise price for options; and |
| · | prescribe any limitations, restrictions and conditions upon any awards, including the vesting conditions of awards. |
With respect to stock options or restricted stock awards to be made to any of our directors, the Compensation Committee will make recommendations to our Board of Directors as to:
| • | which of such persons should be granted stock options, restricted stock awards, performance units or stock appreciation rights; |
| • | the terms of proposed grants of awards to those selected by our Board of Directors to participate; |
| • | the exercise price for options; and |
| • | any limitations, restrictions and conditions upon any awards. |
Any grant of awards to any of directors under our Incentive Plan must be approved by our Board of Directors.
In addition, the Compensation Committee will:
| • | interpret our Incentive Plan; and |
| • | make all other determinations and take all other action that may be necessary or advisable to implement and administer our Incentive Plan. |
Our Compensation Objectives
We strive to establish compensation practices and provide compensation opportunities that attract, retain and reward our executives and strengthen the mutuality of interests between our executives and our stockholders in order to motivate them to maximize stockholder value.
The primary goals of our executive compensation program are:
| · | Our executive compensation program primarily consists of a base salary, cash incentive payments upon the achievement of corporate objectives and long-term equity-based incentive awards, which historically are in the form of stock. |
| · | The equity component of our compensation program is designed to align a portion of our executive officer's compensation with the interests of our stockholders to create long term value. |
In 2011, the Compensation Committee gathered information from independent sources to determine a list of appropriate peer companies, compensation ranges for the executive officers and recommendations. The Compensation Committee reviewed the recommendations and approved the 2011 compensations to our names executive officers with no changes.
Types of Awards
Our Incentive Plan permits the Compensation Committee to grant the following types of awards.
Stock Options. Stock options are contractual rights entitling an optionee who has been granted a stock option to purchase a stated number of shares of our common stock at an exercise price per share determined at the date of the grant. Options are evidenced by stock option agreements with the respective optionees. The exercise price for each stock option granted under our Incentive Plan will be determined by our Board of Directors or a committee of the Board at the time of the grant, but will not be less than fair market value on the date of the grant. Our Board of Directors or a committee of the Board will also determine the duration of each option; however, no option may be exercisable more than ten years after the date the option is granted. Within the foregoing limitations, the Board of Directors or committee of the Board may, in its discretion, impose limitations on exercise of all or some options granted under our Incentive Plan, such as specifying minimum periods of time after grant during which options may not be exercised. Options granted under our Incentive Plan will vest at rates specified in the option agreement at the time of grant; however, all options granted under our Incentive Plan will vest upon the occurrence of a change of control, as defined in the Incentive Plan. Our Incentive Plan also contains provisions for our Board of Directors or a committee of the Board to provide in the participants’ option award agreements for accelerating the right of an individual employee to exercise his or her stock option or restricted stock award in the event of retirement or other termination of employment. No cash consideration is payable to us in exchange for the grant of options.
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Our Incentive Plan provides that the stock options may either be Incentive Stock Options within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended, or Non-Qualified Options, which are stock options other than Incentive Stock Options within the meaning of Sections 422 of the Code. Incentive Stock Options may be granted only to our employees or employees of our subsidiaries, and must be granted at a per share option price not less than the fair market value of our common stock on the date the Incentive Stock Option is granted. In the case of an Incentive Stock Option granted to a shareholder who owns shares of our outstanding stock of all classes representing more than 10% of the total combined voting power of all of our outstanding stock of all classes entitled to vote in the election of directors, the per share option price must be not less than 110% of the fair market value of one share of our common stock on the date the Incentive Stock Option is granted and the term of such option may not exceed five years. As required by the Code, the aggregate fair market value, determined at the time an Incentive Stock Option is granted, of our common stock with respect to which Incentive Stock Options may be exercised by an optionee for the first time during any calendar year under all of our incentive stock option plans may not exceed $100,000.
The exercise price for Non-Qualified Options may not be less than the fair market value of our common stock on the date the Non-Qualified Option is granted. Non-Qualified Options are not subject to any of the restrictions described above with respect to Incentive Stock Options. The exercise price of stock options may be paid in cash, in whole shares of our common stock, in a combination of cash and our common stock, or in such other form of consideration as our Board of Directors or the committee of the Board may determine, equal in value to the exercise price. However, only shares of our common stock which the option holder has held for at least six months on the date of the exercise may be surrendered in payment of the exercise price for the options. In no event may a stock option be exercised after the expiration of its stated term.
Stock Appreciation Rights.A stock appreciation right permits the grantee to receive an amount (in cash, common stock, or a combination thereof) equal to the number of stock appreciation rights exercised by the grantee multiplied by the excess of the fair market value of our common stock on the exercise date over the stock appreciation rights’ exercise price. Stock appreciation rights may or may not be granted in connection with the grant of an option. The exercise price of stock appreciation rights granted under the Incentive Plan will be determined by the Board of Directors or a committee of the Board; provided, however, that such exercise price cannot be less than the fair market value of a share of common stock on a date the stock appreciation right is granted (subject to adjustments). A stock appreciation right may be exercised in whole or in such installments and at such times as determined by the Board of Directors or a committee of the Board.
Restricted Stock.Restricted shares of our common stock may be granted under our Incentive Plan subject to such terms and conditions, including forfeiture and vesting provisions, and restrictions against sale, transfer or other disposition as the Board of Directors or a committee of the Board may determine to be appropriate at the time of making the award. In addition, the Board of Directors or a committee of the Board may direct that share certificates representing restricted stock be inscribed with a legend as to the restrictions on sale, transfer or other disposition, and may direct that the certificates, along with a stock power signed in blank by the grantee, be delivered to and held by us until such restrictions lapse. The Board of Directors or a committee of the Board, in its discretion, may provide in the award agreement for a modification or acceleration of shares of restricted stock in the event of permanent disability, retirement or other termination of employment or business relationship with the grantee.
Performance Units.The Incentive Plan permits grants of performance units, which are rights to receive cash payments equal to the difference (if any) between the fair market value of our common stock on the date of grant and its fair market value on the date of exercise of the award, except to the extent otherwise provided by the Board of Directors or a committee of the Board or required by law. Such awards are subject to the fulfillment of conditions that may be established by the Board of Directors or a committee of the Board including, without limitation, the achievement of performance targets based upon the factors described above relating to restricted stock awards.
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Performance Bonus.The Incentive Plan permits grants of performance bonuses, which may be paid in cash, common stock or combination thereof as determined by the Board of Directors or a committee of the Board. The maximum value of performance bonus awards granted under the Incentive Plan shall be established by the Compensation Committee at the time of the grant. An employee’s receipt of such amount will be contingent upon achievement of performance targets during the performance period established by the Compensation Committee.
Compensation of Executive Officers Summary Table
The following table sets forth all annualized compensation paid to our named executive officers at the end of the fiscal years ended December 31, 2011 and 2010. Individuals we refer to as our "named executive officers" include our Chief Executive Officer, Chief Technology Officer, Chief Financial Officer, Chief Commercial Officer, Chief Executive Officer of ValidSoft and General Counsel.
SUMMARY COMPENSATION TABLE
| Name and principle position | Year (f) | Salary ($) | Bonus Stock Awards ($) (1) | Stock Awards ($)(1) | Total ($) | |||||||||||||||
| Steven van der Velden | 2010 | $ | 0 | $ | $ | 955,661 | (2) | $ | 955,661 | |||||||||||
| (President and CEO) | 2011 | $ | 0 | $ | 46.412 | $ | 377,722 | (2) | $ | 424,134 | ||||||||||
| Martin Zuurbier | 2010 | $ | 206,655 | (a) | $ | $ | 301,788 | (3) | $ | 508,443 | ||||||||||
| (COO,CTO) | 2011 | $ | 218,400 | (a) | $ | 37,974 | $ | 40,436 | (3) | $ | 296,810 | |||||||||
| Mark Nije | 2010 | $ | 182,811 | (b) | $ | $ | 301,788 | (4) | $ | 484,598 | ||||||||||
| (Chief Financial Officer) | 2011 | $ | 193,200 | (b) | $ | 31,090 | $ | 71,438 | (4) | $ | 295,728 | |||||||||
| Patrick Carroll | 2010 | $ | 182,811 | (c) | $ | $ | 301,788 | (5) | $ | 484,598 | ||||||||||
| (CEO ValidSoft) | 2011 | $ | 193,200 | (c) | $ | 31,090 | $ | 102,028 | (5) | $ | 327,137 | |||||||||
| Willem van den Brink | 2010 | $ | 59,612 | (d) | $ | $ | 21,343 | (6) | $ | 80,955 | ||||||||||
| (Chief Commercial Officer) | 2011 | $ | 252,000 | (d) | $ | $ | 89,291 | (6) | $ | 341,291 | ||||||||||
| Alex Vermeulen | 2010 | $ | 143,069 | (e) | $ | $ | 150,894 | (7) | $ | 293,963 | ||||||||||
| (General Counsel) | 2011 | $ | 151,200 | (e) | $ | 18,654 | $ | 14,521 | (7) | $ | 184,375 | |||||||||
(1) The amounts included in these columns are the aggregate fair values of the awards granted by the Company to the executives in the fiscal year in lieu of salary and bonus, valued in accordance with ASC 718 for the fiscal years ended December 31, 2010 and December 31, 2011. Pursuant to SEC rules, the amounts in these columns exclude the impact of estimated forfeitures related to service-based vesting conditions. The share prices used for 2011 calculations in this table are the share prices of the last trading day of each preceding quarter of grant. The calculations do include exchange differences as the basic salary and subsequent bonus in 2011 has been agreed upon in euro. Payment can be elected either in cash or in shares in lieu of salary and bonus. When officers opt for payment in shares there is a 25% discount on the 'purchase' price. The amounts however are shown at fair market value by using the share price of the preceding month closing price. In principle officers might earn approximately 33% more than the 'agreed' cash salary when they have chosen for 100% compensation in shares.
(2) Comprised of 546,096 shares in 2010 and 157,147 shares in 2011 of restricted stock granted as salary and bonus
(3) Comprised of 172,450 shares in 2010 and 30,564 shares in 2011 of restricted stock granted as salary and bonus
(4) Comprised of 172,450 shares in 2010 and 38,078 shares in 2011 of restricted stock granted as salary and bonus
(5) Comprised of 172,450 shares in 2010 and 49,625 in 2011 shares of restricted stock granted as salary and bonus
(6) Comprised of 9,304 shares in 2010 and 33,084 shares in 2011 of restricted stock granted as salary.
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(7) Comprised of 86,225 shares in 2010 and 13,404 shares in 2011 of restricted stock granted as salary and bonus
(a) These amounts have been agreed and paid in euro. Amount for 2010 is EUR 156,000 and for 2011 EUR 186,000.
(b) These amounts have been agreed and paid in euro. Amount for 2010 is EUR 138,000 and for 2011 EUR 156,000.
(c) These amounts have been agreed and paid in euro. Amount for 2010 is EUR 138,000 and for 2011 EUR 138,000.
(d) These amounts have been agreed and paid in euro. Amount for 2010 is EUR 45,000 (only 3 months) and for 2011 EUR 180,000.
(e) These amounts have been agreed and paid in euro. Amount for 2010 is EUR 108,000 and 2011 is EUR 126,000.
(f) In regards to the 2012 bonus; The Compensation Committee is yet to determine the level of achievement of the 2011 performance targets. Depending on the level of achievement, the following executive officers may be eligible to receive certain cash bonus up to certain percentage of their base salary as follows:
| Threshold | On Target | Maximum | ||||||||||||||||
| • | Steven van der Velden | 60 | % | $ | 0 | $ | 190,289 | $ | 380,578 | |||||||||
| • | Martin Zuurbier | 50 | % | $ | 0 | $ | 158,574 | $ | 317,148 | |||||||||
| • | Pat Carroll | 50 | % | $ | 0 | $ | 146,055 | $ | 292,110 | |||||||||
| • | Mark Nije | 40 | % | $ | 0 | $ | 116,844 | $ | 233,688 | |||||||||
| • | Alex Vermeulen | 35 | % | $ | 0 | $ | 70106 | $ | 140,213 | |||||||||
The bonus may be paid in cash, common stock or combination as determined by the Compensation Committee. For further detail; see discussion under ‘Incentive Bonus Executive Officers’ in this Item.
Narrative Disclosure to Summary Compensation Table.
Consultancy and Employment Agreements
We currently have the following agreements with our executive directors and officers:
Steven van der Velden, President and Chief Executive Officer -We have a consultancy agreement with QAT Investments SA and QAT II Investments SA (the “QAT Companies”) for the provision of the services of Mr. van der Velden as President and Chief Executive Officer.. The QAT companies are paid for the services of Mr. Van der Velden as base compensation € 228,000 per year, of which 100% is paid in the form of restricted common stock, which is consistent with prior years. Mr. Van der Velden receives no fees (cash or stock) for serving on our board of directors.
Martin Zuurbier, Operations/Chief Technical Officer -We intend to enter into a consultancy agreement with Interact W.L.L., a fully owned entity by Mr. Zuurbier, which will provide for the continued services of Mr. Zuurbier as Chief Technical Officer. Interact is paid € 228,000 per year for the services of Mr. Zuurbier. Mr. Zuurbier receives no fees (cash or stock) for serving on our board of directors.
Mark Nije, Chief Financial Officer, -We intend to enter into a consultancy agreement with LMI Europe B.V, a wholly owned entity by Mr. Nije, which will provide for the continued services of Mr. Nije as Chief Financial Officer.. LMI Europe B.V. is paid € 210,000 per year for the services of Mr. Nije.
Patrick Carroll, Chief Executive Officer of ValidSoft, a 100% subsidiary of the Company,- We have a consultancy agreement with Mr. Carroll which provides for his services in his services as Chief Executive Officer. Mr. Carroll is paid € 210,000 per annum, of which 34% is paid in the form of restricted common stock, which is consistent with prior years.
Alex Vermeulen, Chief General Counsel,- We intend to enter into a consultancy agreement with Scere Company Italy SRL, a fully owned entity by Mr. Vermeulen, which will provide for the continued services of Mr. Vermeulen as Chief General Counsel. Scere Company Italy SRL is paid € 144,000 per annum for the services of Mr. Vermeulen.
None of the existing agreements include any provisions to any severance benefit, neither when the Executive Officer’s employment is terminated by him with or without good reason, nor if the Executive Officer is terminated by the Company with or without cause. The company is investigating any such future policies, in particular with respect to any termination or change-in-control.
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Also included is the Executive Officer’s assumption of liabilities that arise out of these consultancy agreements on the impact of accounting and tax treatments.
Incentive Bonus Executive Officers
It is the Compensation Committee's objective to have a substantial portion of each executive officer's compensation contingent upon the achievement of corporate objectives. At the beginning of each year, our Chief Executive Officer discusses corporate objectives with the Compensation Committee to be used in the bonus plan. The Compensation Committee reviews the objectives with the Chief Executive Officer and then approves the objectives. In 2011, the Compensation Committee approved the corporate objectives with modifications from the suggested objectives. In 2011, each of our named executive officers was eligible to receive a cash bonus up to a percentage of their base salary as follows:
| • | Steven van der Velden | 60% |
| • | Martin Zuurbier | 50% |
| • | Pat Carroll | 50% |
| • | Willem van den Brink | 50% |
| • | Mark Nije | 40% |
| • | Alex Vermeulen | 35% |
The target bonus amounts are established by the Compensation Committee at the beginning of each year and are based primarily on the Compensation Committee's understanding of the compensation arrangements for similar positions in the industry.
The bonus amounts may be paid in cash, common stock or combination thereof as determined by the Compensation Committee.
At the end of the year, our Chief Executive Officer evaluates the achievement of the corporate objectives and then recommends an incentive payment for each of the executive officers to the Compensation Committee, which advises the board to decide within its full discretion. In 2011, the corporate objectives on which our executive compensation was based, and their achievement, were as follows:
| • | Cash flow | 33.3% |
| • | Revenue | 33.3% |
| • | Deal closure | 33.3% |
Cash Flow and Revenue targets will only count if the target is met in full. If the Revenue target is exceeded, the bonus for this category will be raised pro rata with a cap of 100%.
By the structure of the corporate objectives, including and attaching these to the overall company performance, the bonus incentives build value for our shareholders.
Any bonus allocation on performance levels of any Executive Officer is only done in retrospect, based on achieved targets and executed performance in the previous fiscal year and no pre-funding in the existing fiscal year is included, as a policy to avoid possible adjustment or recovery of awards or payments, would performance upon which they are based be restated or otherwise adjusted in a manner that would reduce the size of an award or payment.
Grant of plan-based awards table
The following table sets forth awards made to the executive officers in 2011 under all the existing plans:
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Grant of plan-based awards
| Name and principle position | Grant Date | Other Stock | Grant Date Fair | |||||
| Steven van der Velden | 03-01-2012 | 36,567 | $ | 99,462 | ||||
| (President and CEO) | $ | |||||||
| Patrick Carroll | 03-01-2012 | 11,547 | $ | 31,409 | ||||
| (CEO ValidSoft) | $ | |||||||
| Willem van den Brink | 03-01-2012 | 7,698 | $ | 20,939 | ||||
| (Chief Commercial Officer) | $ | |||||||
The Company elected to issue the compensation shares to the above executive officers from the shares authorized under its Amended and Restated 2008 Long-Term Incentive Compensation Plan (“2008 Plan”)
The amounts included in these columns are the aggregate fair values of the awards granted by the Company to the executives in the fourth quarter of 2011 in lieu of salary, valued in accordance with ASC 718 for the fiscal years ended December 31, 2011, where payment was done in shares in lieu of salary. When officers opt for payment in shares there is a 25% discount on the 'purchase' price. The amounts in these columns exclude the impact of estimated forfeitures related to service-based vesting conditions. The share prices used for calculations in this table are the share prices of the last trading day of each preceding quarter of grant. The calculations take into consideration exchange differences as the agreed basic salaries for 2011 were denominated in euro. In principle, an executive officer may earn approximately 33% more than the agreed cash salary if the executive officer chooses to be compensated in stock only..
Compensation of Non- Executive Directors Summary Table
The following table represents compensation paid in 2011 to our non-executive directors.
| Name | Fees Earned or Paid in Cash ($) | Stock Award ($) | Option Awards ($) | Non-Equity Incentive Plan Compensation ($) | Non-Qualified Deferred Compensation Earnings ($) | All Other Compensation ($) | Total ($) | |||||||||||||||||||||
| Johan Dejager | $ | 0 | $ | 109,352 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 109,352 | ||||||||||||||
| Yves van Sante | $ | 0 | $ | 109,352 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 109,352 | ||||||||||||||
| Roderick de Greef | $ | 48,125 | $ | 54,262 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 102,387 | ||||||||||||||
| Phil Hickman | $ | 11,204 | $ | 186,642 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 197,846 | ||||||||||||||
| Jacques Kerrest | $ | 21,250 | $ | 28,333 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 49,583 | ||||||||||||||
| Charles E. Levine | $ | 8,333 | $ | 11,111 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 19,444 | ||||||||||||||
| Rijkman Groenink | $ | 0 | $ | 105,000 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | $ | 105,000 | ||||||||||||||
In 2011 the compensation to our non-executive directors was paid for a minimum of 50% in shares. Compensation was paid per quarter in arrear, whereby the conversion of cash in shares was done at the average ETAK closings of the 10 days prior to the start of the quarter discounted for 25%. This is in line with our policy to stimulate as much as possible conversion in shares to improve our cash position. The shares for Johan Dejager and Yves van Sante were issued to QAT Investments and QAT II Investments, with which the Company has an agreement for the provision of the services of the gentlemen. Yves van Sante resigned as Board member per August 1, 2011 and became per the same date Observer. The compensation due to QAT for his services remained at the same level as before.
Rijkman Groening was appointed to the Board on April 1, 2011, Jacques Kerrest was appointed on Aug 1, 2011 and Charles Levine was appointed on October 27, 2011.
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Part IV
ITEM 15. Exhibits, Financial Statement Schedules
The following exhibits are filed with this Amendment.
| Number | Description | |
| 10.1 | Securities Purchase Agreement by and among the Company and certain purchasers dated March 29, 2012; incorporated herein by reference Exhibit 10.28 to our annual report on Form 10-F filed on March 30, 2012 | |
| 10.2 | Form of Secured Convertible Note issued to certain purchasers dated March 29, 2012.incorporated herein by reference Exhibit 10.29 to our annual report on Form 10-F filed on March 30, 2012 | |
| 10.3 | Security Agreement by and among the Company and its subsidiaries and certain purchasers dated March 29, 2012.incorporated herein by reference Exhibit 10.30 to our annual report on Form 10-F filed on March 30, 2012 | |
| 10.4 | Form of Escrow Agreement by and among the Company, certain purchasers and Wells Fargo Bank, National Association dated March 29, 2012; incorporated herein by reference Exhibit 10.31 to our annual report on Form 10-F filed on March 30, 2012 | |
| 10.5 | Subsidiary Guaranty by and among the company and its subsidiaries and certain purchasers dated March 29, 2012;incorporated herein by reference Exhibit 10.32 to our annual report on Form 10-F filed on March 30, 2012 | |
| 10.6 | Registration Rights Agreement by and among the Company and certain purchasers dated March 29, 2012;incorporated herein by reference Exhibit 10.33 to our annual report on Form 10-F filed on March 30, 2012 | |
| 31.1 | Certification of the Company’s Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (*)(**) | |
| 31.2 | Certification of the Company’s Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (*)(**) | |
| 32.1 | Certification of the Company’s Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (*)(**) | |
| 32.2 | Certification of the Company’s Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (*)(**) | |
| 101.INS*** | XBRL Instance Document | |
| 101.SCH*** | XBRL Taxonomy Schema | |
| 101.CAL*** | XBRL Taxonomy Calculation Linkbase | |
| 101.DEF*** | XBRL Taxonomy Definition Linkbase | |
| 101.LAB*** | XBRL Taxonomy Label Linkbase | |
| 101.PRE*** | XBRL Taxonomy Presentation Linkbase |
| * | Filed Herewith |
| ** | A signed original of this written statement has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request. |
| *** | Incorporation by reference to the exhibits 101 to the Annual Report on Form 10-K for the fiscal year ended December 31, 2011 filed on March 30, 2012. XBRL (Extensible Business Reporting Language) information is furnished and not filed or a part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, is deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise is not subject to liability under these sections. |
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SIGNATURES
In accordance with the Exchange Act, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| ELEPHANT TALK COMMUNICATIONS CORP. | ||
| Date: May 4, 2012 | By: | /s/ Steven van der Velden |
| Name: | Steven van der Velden | |
| Title: | President and Chief Executive Officer | |
In accordance with the Exchange Act, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Person | Capacity | Date | ||
| /s/ Steven van der Velden | Chairman of the Board and Director (Principal Executive Officer) | May 4, 2012 | ||
| Steven van der Velden | ||||
| /s/ Mark Nije | Chief Financial Officer (Principal Financial Officer) | May 4, 2012 | ||
| Mark Nije | ||||
| /s/ Johan Dejager | Director | May 4, 2012 | ||
| Johan Dejager | ||||
| /s/ Rijkman Groenink | Director | May 4, 2012 | ||
| Rijkman Groenink | ||||
| /s/ Phil Hickman | Director | May 4, 2012 | ||
| Phil Hickman | ||||
| /s/ Jacques Kerrest | Director | May 4, 2012 | ||
| Jacques Kerrest | ||||
| /s/ Charles Levine | Director | May 4, 2012 | ||
| Charles Levine | ||||
| /s/ Martin Zuurbier | Operations, Chief Technical Officer, Director. | May 4, 2012 | ||
| Martin Zuurbier |
| 13 |