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I have concluded my discussions and am able to confirm that my statement of the facts surrounding this agreement are correct.From the poetic to the business side of things:
The first, important thing to say is that I have not formed a concluded view about todays announcement regarding the agreement to settle with the former Board member and chairperson by the grant of 8 million options to avoid some possible legal issue that had arisen between the parties.
The announcement this morning is for me opaque without further information and I have commenced a dialogue with the company to see what further information they are able or willing to supply.
The second thing I did was proceed to the last Annual Report as I thought the 8 million options being granted in the agreement was the amount I last read as being applicable to the former Chairperson. The following is the extract from the Annual Report covering this issue:
"Balance at beginning of period 1 January 2021
Granted as remuneration Exercised Net change other (1) Balance at end of period 31 December 2021
Vested and exercisable
E Hernandez 8,000,000" (until 2024)
The third thing I did was to confirm my memory that the former Chairperson had been one of the Board members who had agreed when the companies back was too the financial wall to waive any additional directors fees for taking on the roll of Chairperson in the companies hour of need.
So from the Annual Report and other releases by the company it can be seen that the former Chairperson had shown loyalty and support to the company in the past and that the 8 million options the subject of this agreement were already vested and exercisable.
From other discussions here and research at the time it was established that upon exercising the options under US Tax law a tax liability would be incurred.
As others have pointed out the decision to step down and resign the Chairperson's role facilitated the restructure of the company's Board as it moved to the new commercial phase of its operations.
I do not know with certainty but it seems as though the Chairman was once again acting in the best interests of the company and shareholders in standing aside as he did to allow the strategic plan of the Board and KMP to be given effect.
As I said I have commenced a dialogue with the company and have not formed a concluded view but it would appear that the only concession that the former Chairperson was seeking and will receive is a delay in exercising the options and in obtaining that delay put off to a later date which would have otherwise been 2024, his liability to pay tax on 8 million shares.
The willingness of the company to accommodate the former Chairperson could be seen as an acknowledgment of his support during very difficult financial times by not taking his full entitlements as they then were and in stepping down to allow the new strategic phase of the company to proceed.
I have a suspicion that there might have been an informal agreement to extend the exercise date of the vested options but after the option date had passed contrary advice was received by the company to the effect that this was ultra vires the power given to the company under their constitution and so the legal risk was that the former Chairperson would have an action in breach of contract to recover the 8 million options or damages he having been promised an extension of the date to exercise if he resigned.
If I am correct this has not cost shareholders one single penny as the options had vested and could have been taken up and the current agreement is avoiding the cost of legal proceedings.
However as I have said I will wait on the further information that I may receive before arriving at a concluded view.
My opinion only DYOR
FF
AKIDA BALLISTA
I can also add that the former Chairperson in addition to waiving his entitlement to additional director fees after stepping in when Stephen Wilkes suddenly resigned as Chairperson also after the LDA Capital agreement was secured and the companies finances were stabilised declined a Board offer to reimburse him the waived fees.
Further that he approached the company to extend saying that he was concerned that in the present market conditions that his sale of at least 4 million of his 8 million entitlement to meet his taxation obligations would have an adverse impact on shareholder and market confidence.
By not exercising and selling as he was entitled to do he has been placed in a less favourable tax position by agreeing to receive the 8 million RSU in lieu.
I have absolutely no issue with the decision of the company on this occasion and support the view expressed by many others that this is further evidence of the high ethical standards by which the Board and KMP carry out their obligations to the company, it’s employees and shareholders.
In addition I have read every post here and at HC on this issue and there is one truth that is conveniently being ignored by the usual suspects.
The truth which they are ignoring is that these options had VESTED. The former Chairperson was legally entitled to convert and sell the 8 million resulting shares on market.
This action proposed to shareholders will not cost Brainchip or its shareholders one additional cent.
If it is not clear from the forgoing I will be voting for this motion and if necessary will speak in its favour at the meeting whenever that might occur.
My opinion only DYOR
FF
AKIDA BALLISTA