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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-K/A
(Amendment
No. 2)
| |
☒ |
ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For
the Fiscal Year Ended: December 31, 2023
| |
☐ |
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For
the transition period from to
Commission
File Number: 001-35988
VISLINK
TECHNOLOGIES, INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
20-5856795 |
| (State
of incorporation) |
|
(I.R.S.
Employer Identification No.) |
350
Clark Drive, Suite 125,
Mt.
Olive, NJ 07828
(Address
of principal executive offices) (Zip Code)
(908)
852-3700
(Registrant’s
telephone number, including area code)
Securities
Registered Pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
symbol(s) |
|
Name
of each exchange on which registered |
| Common
Stock, $0.00001 par value |
|
VISL |
|
The
Nasdaq Capital Market |
Securities
Registered Pursuant to Section 12(g) of the Securities Act:
None
(Title
of class)
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
Indicate
by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒
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 ☒ No ☐
Indicate
by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted 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 such files.) Yes ☒ No ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer”, “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
If
securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant
included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate
by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation
received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
| Large
accelerated filer ☐ |
Accelerated
filer ☐ |
| Non-accelerated
filer ☒ |
Smaller
reporting company ☒ |
| |
Emerging
growth company ☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate
by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness
of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered
public accounting firm that prepared or issued its audit report. ☐
Indicate
by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
As
of June 30, 2023, the last business day of the registrant’s most recently completed second fiscal quarter, the aggregate market
value of the common stock held by non-affiliates of the registrant was approximately $13.5 million based on the closing price of $5.66
for the registrant’s common stock as quoted on the Nasdaq Capital Market on that date. Shares of common stock held by each director,
each officer, and each person who owns 10% or more of the outstanding common stock have been excluded from this calculation in that such
persons may be deemed affiliates. The determination of affiliate status is not necessarily conclusive.
The
registrant had 2,448,482 shares of its common stock outstanding as of March 29, 2024.
| Auditor
Name: |
|
Auditor
Location: |
|
PCAOB
ID: |
| Marcum
LLP |
|
New
York, NY |
|
688 |
Explanatory
Note
Vislink
Technologies, Inc. (the “Company,” “we”, or “our”) filed its Annual Report on Form 10-K for the fiscal
year ended December 31, 2023 (the “Original Form 10-K”) with the Securities and Exchange Commission (the “SEC”)
on April 3, 2024. The Company filed Amendment No. 1 to the Original Form 10-K with the SEC on April 29, 2024 solely for the purpose of
amending and restating Items 10, 11, 12, 13, and 14 of Part III of the Original Form 10-K in their entirety to provide the information
that the Company indicated that it would incorporate by reference from its Proxy Statement for the 2024 Annual Meeting of Stockholders,
or an amendment to the Original Form 10-K filed within 120 days of the end of our fiscal year ended December 31, 2023, in reliance on
General Instruction G(3) to Form 10-K. The Company is now filing this Amendment No. 2 to the Original Form 10-K (this “Form 10-K/A”)
solely for the purpose of amending and restating certifications by the Company’s principal executive officer and principal financial
officer in Exhibits 31.1 and 31.2, respectively, of the Original Form 10-K.
In
addition, as required by Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), this Form
10-K/A revises Item 15 of Part IV to include currently dated certifications by the Company’s principal executive officer and principal
financial officer as exhibits to this Form 10-K/A and updates the Exhibit Index to reflect the inclusion of these certifications as well
as the amended and restated certifications included in Exhibits 31.1 and 31.2.
Other
than the items outlined above, this Form 10-K/A does not attempt to modify or update the Original Form 10-K. This Form 10-K/A does not
reflect events occurring after the date of the Original Form 10-K or modify or update those disclosures that may be affected by subsequent
events. Such subsequent matters are addressed in subsequent reports filed by the Company with the SEC. Accordingly, this Form 10-K/A
should be read in conjunction with the Original Form 10-K, as previously amended. Capitalized terms not defined in this Form 10-K/A have
the meaning given to them in the Original Form 10-K.
VISLINK
TECHNOLOGIES, INC.
ANNUAL
REPORT ON FORM 10-K/A
TABLE
OF CONTENTS
PART
IV
| ITEM
15. |
EXHIBITS
AND FINANCIAL STATEMENT SCHEDULES. |
(b)
Exhibits
The
following are exhibits to this Report, and, if incorporated by reference, we have indicated the document previously filed with the SEC
in which the exhibit was included.
Certain
of the agreements filed as exhibits to this Report contain representations and warranties by the parties to the agreements made solely
for the agreement’s benefit. These representations and warranties:
| |
● |
may
have been qualified by disclosures that were made to the other parties in connection with the negotiation of the agreements, which
disclosures are not necessarily reflected in the agreements; |
| |
● |
may
apply standards of materiality that differ from those of a reasonable investor; and |
| |
● |
were
made only as specified dates in the agreements and subject to subsequent developments and changed circumstances. |
Accordingly,
these representations and warranties may not describe the actual state of affairs as of the date that these representations and warranties
were made or at any other time. Investors should not rely on them as statements of fact.
Exhibit
Number |
|
Description
of Exhibit |
| 3.1(i) |
|
Amended & Restated Certificate of Incorporation, incorporated by reference to the Company’s Registration Statement on Form S-1 No. 333-191867, as filed with the Commission on October 23, 2013. |
| 3.1(i)(a) |
|
Amendment to Certificate of Incorporation, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on June 13, 2014. |
| 3.1 (i)(b) |
|
Amendment to Certificate of Incorporation, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on July 20, 2015. |
| 3.1(i)(c) |
|
Amended and Restated Certificate of Designation of Series B Convertible Preferred Stock, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on February 10, 2016. |
| 3.1(i)(d) |
|
Certificate of Designation of Series C Convertible Preferred Stock, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on February 26, 2015. |
| 3.1(i)(e) |
|
Certificate of Designation of Series D Convertible Preferred Stock, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on April 27, 2016. |
| 3.1(i)(f) |
|
Certificate of Designation of Series E Convertible Preferred Stock, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on December 27, 2016. |
| 3.1(i)(g) |
|
Certificate of Designation of the Series A Preferred Stock of the Company, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on November 9, 2022. |
| 3.1(i)(h) |
|
Certificate of Elimination for Series C Convertible Preferred Stock, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on February 10, 2016. |
| 3.1(i)(i) |
|
Certificate of Elimination for Series B Convertible Preferred Stock, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on December 7, 2016. |
| 3.1(i)(j) |
|
Certificate of Elimination for Series D Preferred Stock of the Company, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on November 9, 2022. |
| 3.1(i)(k) |
|
Certificate of Elimination for Series E Preferred Stock of the Company, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on November 9, 2022. |
| 3.1(i)(l) |
|
Certificate of Elimination for Series A Preferred Stock of the Company, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on March 27, 2023. |
| 3.1(i)(m) |
|
Amendment to Certificate of Incorporation, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on June 20, 2016. |
| 3.1(i)(n) |
|
Certificate of Amendment to Certificate of Incorporation of the Company, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on February 26, 2019. |
| 3.1(i)(o) |
|
Certificate of Amendment to the Certificate of Incorporation of the Company, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on August 5, 2020. |
| 3.1(i)(p) |
|
Certificate of Amendment to the Certificate of Incorporation, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on April 28, 2023. |
| 3.1(ii) |
|
Third Amended & Restated Bylaws, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on August 20, 2021. |
| 4.1 |
|
Form of Common Stock Certificate of the Registrant, incorporated by reference to the Company’s Amendment to the Registration Statement on Form S-1 No. 333-187094, as filed with the Commission on May 21, 2013. |
| 4.2 |
|
Warrant Agreement, including Form of Common Warrant and Form of Pre-Funded Warrant from July 2019 Offering, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on July 16, 2019. |
| 4.3 |
|
Description of Registrant’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934, incorporated by reference to the Company’s Annual Report on Form 10-K, as filed with Commission on April 3, 2024. |
| 10.1 |
|
2023 Omnibus Equity Incentive Plan, incorporated by reference to the Company’s Registration Statement on Form S-8 No. 333-274366, as filed with Commission on September 6, 2023. |
| 10.2 |
|
Employment Agreement by and between the Company and Carleton M. Miller, incorporated by reference to the Company’s Amendment to the Current Report on Form 8-K, as filed with the Commission on January 25, 2020 |
| 10.3 |
|
Notice of Grant of Stock Option for Time-Vested Options and Stock Option Agreement by and between the Company and Carleton M. Miller, incorporated by reference to the Company’s Amendment to the Current Report on Form 8-K, as filed with Commission on January 25, 2020 |
| 10.4 |
|
Notice of Grant of Stock Option for Performance-Vested Options and Stock Option Agreement by and between the Company and Carleton M. Miller, incorporated by reference to the Company’s Amendment to the Current Report on Form 8-K, as filed with Commission on January 25, 2020 |
| 10.5 |
|
Offer Letter by and between the Company and Michael Bond, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on January 17, 2024. |
| 10.6 |
|
Inducement RSU Award Agreement between the Company and Michael Bond, incorporated by reference to the Company’s Current Report on Form 8-K, as filed with Commission on January 17, 2024. |
| 10.7 |
|
Form of Indemnification Agreement by and between the Company and its officers and directors, incorporated by reference to the Company’s Annual Report on Form 10-K for the period ended December 31, 2019, as filed with the Commission on April 1, 2020-. |
| 10.8 |
|
Non-Employee Director Compensation Policy, incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the period ended September 30, 2020 as filed with the Commission on November 12, 2020. |
| 10.9 |
|
Form of Non-Employee Director Restricted Shares Agreement, incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the period ended September 30, 2020 as filed with the Commission on November 12, 2020. |
| 14.1 |
|
Code of Ethics, incorporated by reference to the Company’s Annual Report on Form 10-K for the period ended December 31, 2013, as filed with the Commission on March 6, 2014. |
| 21.1 |
|
List of Subsidiaries, incorporated by reference to the Company’s Annual Report on Form 10-K, as filed with Commission on April 3, 2024 |
| 23.1 |
|
Consent of Marcum LLP, incorporated by reference to the Company’s Annual Report on Form 10-K, as filed with Commission on April 3, 2024. |
| 31.1* |
|
Certification of Principal 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 Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
| 31.3* |
|
Certification of the Principal Executive Officer pursuant to Rules 13a-14(b) and 15d-14(a) under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| 31.4* |
|
Certification of the Principal Financial Officer pursuant to Rules 13a-14(b) and 15d-14(a) under the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| 32.1 |
|
Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, incorporated by reference to the Company’s Annual Report on Form 10-K, as filed with Commission on April 3, 2024. |
| 32.2 |
|
Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, incorporated by reference to the Company’s Annual Report on Form 10-K, as filed with Commission on April 3, 2024. |
| 97.1 |
|
Clawback Policy, incorporated by reference to the Company’s Annual Report on Form 10-K, as filed with Commission on April 3, 2024 |
| 101.INS |
|
Inline
XBRL Instance Document |
| 101.SCH |
|
Inline
XBRL Taxonomy Schema |
| 101.CAL |
|
Inline
XBRL Taxonomy Calculation Linkbase |
| 101.DEF |
|
Inline
XBRL Taxonomy Definition Linkbase |
| 101.LAB |
|
Inline
XBRL Taxonomy Label Linkbase |
| 101.PRE |
|
Inline
XBRL Taxonomy Presentation Linkbase |
| 104 |
|
Cover
Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Amendment No.
2 to Annual Report on Form 10-K to be signed on its behalf by the undersigned thereunto duly authorized.
| |
VISLINK
TECHNOLOGIES, INC. |
| |
|
|
| Date:
August 1, 2024 |
By: |
/s/
Carleton Miller |
| |
|
Carleton
Miller |
| |
|
Chief
Executive Officer
(Duly
Authorized Officer and Principal Executive Officer) |
| |
|
|
| Date:
August 1, 2024 |
By: |
/s/
Michael C. Bond |
| |
|
Michael
C. Bond |
| |
|
Chief
Financial Officer
(Duly
Authorized Officer and Principal Financial Officer) |
Pursuant
to the requirements of the Securities Exchange Act of 1934, this Report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Carleton Miller |
|
Chief
Executive Officer |
|
August
1, 2024 |
| Carleton
Miller |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| |
|
|
|
|
| /s/
Michael C. Bond |
|
Chief
Financial Officer |
|
August
1, 2024 |
| Michael
C. Bond |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| |
|
|
|
|
| /s/
Susan Swenson |
|
Chairman
of the Board of Directors |
|
August
1, 2024 |
| Susan
Swenson |
|
|
|
|
| |
|
|
|
|
| |
|
|
|
|
| /s/
Jude T. Panetta |
|
Director |
|
August
1, 2024 |
| Jude
T. Panetta |
|
|
|
|
| |
|
|
|
|
| |
|
|
|
|
| /s/
Ralph Faison |
|
Director |
|
August
1, 2024 |
| Ralph
Faison |
|
|
|
|
| |
|
|
|
|
| /s/
Brian K. Krolicki |
|
Director |
|
August
1, 2024 |
| Brian
K. Krolicki |
|
|
|
|