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 (Amendment No. )
Filed by the Registrant ☒
Filed by a Party other than the Registrant ☐
Check the appropriate box:
Preliminary Proxy Statement
☐ Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
☒ Definitive Proxy Statement
☐ Definitive Additional Materials
☐ Soliciting Material under §240.14a-12
KLDISCOVERY INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check all boxes that apply):
☒ No fee required.
☐ Fee paid previously with preliminary materials.
☐ Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11.
April 29, 2024
Dear Fellow Stockholders:
On behalf of our Board of Directors, I cordially invite you to participate in the 2024 Annual Meeting of Stockholders of KLDiscovery Inc. (the "Annual Meeting").
We will hold our Annual Meeting on Thursday, June 13, 2024 at 10:30 A.M. EDT in a virtual only format, which will be conducted via live audio webcast. Stockholders will have an equal opportunity to participate at the Annual Meeting online regardless of their geographic location. You will be able to participate in the Annual Meeting, vote your shares electronically and submit questions during the meeting by visiting www.virtualshareholdermeeting.com/KLDI2024 and using the 16-digit control number which appears on your Notice of Internet Availability of Proxy Materials, proxy card (printed in the box and marked by the arrow) and the instructions that accompany your proxy materials. You will not be able to attend or participate in the Annual Meeting in person. Additional information regarding how to participate in the Annual Meeting, vote your shares and submit questions can be found in this Proxy Statement.
The attached Notice of Annual Meeting and Proxy Statement describes in detail the matters to be considered by the stockholders at the Annual Meeting and the procedures for participating, submitting questions and voting at the virtual meeting.
IT IS IMPORTANT THAT YOU VOTE YOUR SHARES SO THAT YOU ARE REPRESENTED AT THE ANNUAL MEETING REGARDLESS OF THE NUMBER OF SHARES YOU OWN OR WHETHER OR NOT YOU ARE ABLE TO PARTICIPATE IN THE ANNUAL MEETING.
We urge you to vote promptly, even if you plan to participate in the Annual Meeting. Please vote electronically via the Internet or by telephone, if permitted by the broker or other nominee that holds your shares, as applicable, or if you receive a paper copy of the proxy materials, please complete, sign, date and return the accompanying proxy card or voting instruction form. Voting electronically, by telephone or by returning your proxy card or voting instruction form in advance of the Annual Meeting does not deprive you of your right to participate in the Annual Meeting or change your vote.
Thank you for your continued support of KLDiscovery and we look forward to your participation in the Annual Meeting.
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Sincerely, |
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Lawrence Prior III |
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Chair of the Board of Directors |
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KLDISCOVERY INC.
NOTICE OF 2024 ANNUAL MEETING OF STOCKHOLDERS TO BE
HELD ON JUNE 13, 2024
The annual meeting of stockholders of KLDiscovery Inc., a Delaware corporation (the "Company"), will be held virtually on Thursday, June 13, 2024, at 10:30 A.M., EDT (the "Annual Meeting"). Stockholders can participate in the Annual Meeting via the Internet at www.virtualshareholdermeeting.com/KLDI2024 by using the 16-digit control number which appears on your Notice of Internet Availability of Proxy Materials, proxy card (printed in the box and marked by the arrow) and the instructions that accompany your proxy materials.
Voting Matters:
Our Board of Directors has fixed the close of business on April 16, 2024 as the record date (the "Record Date") for the Annual Meeting. Only stockholders of record on the Record Date will be entitled to receive notice of, and to vote at, the Annual Meeting. Further information regarding voting rights and the matters to be voted upon is presented in the accompanying Proxy Statement. In addition, financial and other information about the Company is contained in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 ("fiscal 2023"), as filed with the U.S. Securities and Exchange Commission ("SEC") on March 28, 2024 (the "Annual Report").
We have elected to distribute our proxy materials over the Internet as permitted under the rules of the SEC, rather than mailing paper copies of those materials to each stockholder, which will decrease our printing and distribution costs and allow for convenient access to, and delivery of, materials in an easily searchable format. If you would prefer to receive paper copies of our proxy materials, please follow the instructions included in the Notice of Internet Availability of Proxy Materials that was first mailed to our stockholders on or about April 29, 2024 (“Notice”) to make a request. Only stockholders who make this request or have previously elected to receive a full set of proxy materials will receive paper copies of the proxy materials for the Annual Meeting. A list of the names of stockholders entitled to vote at the Annual Meeting will be available for examination by any stockholder for 10 days before the Annual Meeting for any purpose relevant to the Annual Meeting at www.proxyvote.com. Such list will also be available during the virtual Annual Meeting for examination by any stockholder at www.virtualshareholdermeeting.com/KLDI2024.
Your vote is important to us. We encourage you to read the Proxy Statement and then vote by Internet, by phone or by signing, dating and returning your proxy card (if you request a paper copy) at your earliest convenience. Sending in your proxy card will not prevent you from voting your shares at the Annual Meeting, if you desire to do so.
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By Order of the Board of Directors, |
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Andy Southam |
Eden Prairie, Minnesota
April 29, 2024
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IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON JUNE 13, 2024
The Proxy Statement and the Annual Report are available at: www.proxyvote.com.
To view this material, you must have available the 16-digit control number located on the notice mailed on or about April29, 2024, on the proxy card or, if your shares are held in the name of a broker, bank or other nominee, on the voting instruction form.
TABLE OF CONTENTS
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Corporate Governance Guidelines and Code of Business Conduct and Ethics |
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PROPOSAL 2: RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM |
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PROPOSAL 3: APPROVAL OF AN AMENDMENT TO THE SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF KLDISCOVERY INC. |
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT |
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Important Notice Regarding the Availability of Proxy Materials for the Stockholder Meeting to be Held on June 13, 2024, at 10:30 A.M., EDT (the "Annual Meeting")
KLDiscovery Inc.’s Proxy Statement and Annual Report on Form 10-K, and the means to vote electronically, are available at www.proxyvote.com. To view this material, you must have available the 16-digit control number located on the notice mailed on or about April 29, 2024, on the proxy card or, if your shares are held in the name of a broker, bank or other nominee, on the voting instruction form.
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CORPORATE GOVERNANCE AND BOARD MATTERS
Governance Guidelines and Code of Business Conduct and Ethics
Governance Guidelines
KLDiscovery Inc.’s (the “Company”, “we” or “our”) Board of Directors, (the “Board” or “Board of Directors”), is guided by our Corporate Governance Guidelines (“Guidelines”) in its oversight of the Company’s business. Among other things, the Guidelines describe the role of the Board, its responsibilities and functions and the director qualification and selection process. The full Guidelines are available on the Investor Relations page of our website at www.kldiscovery.com. In addition to the Guidelines, the charters for each principal committee of the Board are available in the same location on our website. Website references throughout this document are provided for convenience only, and the content on the referenced websites is not incorporated by reference into this document.
Codes of Ethics
We maintain a Code of Ethics that applies to all officers, directors and employees. The Code of Ethics codifies the business and ethical principles that govern all aspects of our business.
We will provide, without charge, upon request, copies of our Code of Ethics. Requests for copies of the Code of Ethics should be sent in writing to KLDiscovery, 9023 Columbine Road, Eden Prairie, MN 55347. The Code of Ethics is also available on the Investor Relations page of our website at www.kldiscovery.com.
In the event we make any amendment to, or grant any waiver from, a provision of the Code of Ethics that applies to our principal executive officer, principal financial officer or principal accounting officer that requires disclosure under applicable rules, we will disclose such amendment or waiver and reasons therefore on the Investor Relations page of our website at www.kldiscovery.com within the time period required by such rules.
Anti-Hedging and Pledging Policies
We maintain an Insider Trading Compliance Policy (“Insider Trading Policy”) that prohibits our officers, directors and employees from engaging in transactions that hedge or offset, or are designed to hedge or offset, any decrease in the market value of our securities, including forward sale contracts and collars. The Insider Trading Policy further prohibits officers, directors and employees from pledging our securities as collateral to secure loans, purchasing our securities on margin, engaging in short sales and any transactions in puts, calls or other derivative securities relating to our securities.
Board Composition
Our Board of Directors is currently comprised of ten members, classified into three classes, each comprised, as nearly as possible, of one-third of our directors. Our directors are elected to serve three-year terms. The terms of each of the Class B directors, Evan Morgan, Lauren Tanenbaum and Jill Frizzley, will end at the Annual Meeting; the terms of each of the Class C directors, Ian Fujiyama, Arjun Shah and Christopher J. Weiler, will end at our 2025 annual meeting; and the terms of each of the Class A directors, Richard J. Williams, Kevin Griffin, Lawrence Prior III and Neal P. Goldman, will end at our 2026 annual meeting of stockholders, or, in each case, until their earlier death or resignation or until their respective successors are duly elected and qualified.
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Independence of Directors
Although the Company’s common stock, $0.0001 par value per share (the “Common Stock”), is quoted on the Pink Open Market, which does not have director independence requirements, we are committed to proper governance practices and have voluntarily elected to adhere to the New York Stock Exchange (“NYSE”) listing standards in determining whether a director is independent. Generally, for a director be deemed “independent” under the NYSE rules, the board of directors must determine that the director has no material relationship with the company (either directly or as a partner, shareholder or officer of an organization that has a relationship with the company), and satisfy certain other bright-line criteria.
Our Board of Directors has reviewed its composition, the composition of its committees and the independence of each director. Based upon information requested from and provided by each director concerning his/her background, employment and affiliations, including family relationships, our Board of Directors has determined that each of Jill Frizzley, Ian Fujiyama, Neal Goldman, Evan Morgan, Lawrence Prior III, Arjun Shah, Lauren Tanenbaum and Richard Williams does not, and previously determined that each of Donna Morea and Lloyd W. Howell did not while serving as a director, have a material relationship with the Company and that each of these directors is, and in the case of Ms. Morea and Mr. Howell, was, an independent director. Our Board of Directors determined that Kevin Griffin was not independent due to his affiliation with MGG Investment Group LP, which holds 8% convertible debentures due 2024 issued by the Company. Our independent directors have regularly scheduled meetings at which only independent directors are present.
Director Nominee Qualifications, Diversity and Skills
We believe that our Board of Directors should have a variety of qualifications, skill sets and experience that, when taken as a whole, best serve the Company and our stockholders. We recognize the importance of diversity with regard to the composition of the Board and seek to have a Board that consists of members with a diversity of experience, perspectives and viewpoints, including diversity with respect to gender, race, ethnicity and nationality. For further information on the Director nominee and selection process, see “Nominating and Corporate Governance Committee Information”.
Board Composition Highlights
* One Director elected to not voluntarily self-identify
Board Leadership Structure and Role in Risk Oversight
Our Board of Directors periodically evaluates our leadership structure and the combination or separation of the Chief Executive Officer and Chair of the Board of Directors roles is driven by our needs at any point in time. As a result, no policy exists requiring combination or separation of these leadership roles and our governing documents do not mandate a particular structure. This approach has allowed our Board of Directors the flexibility to establish the most appropriate structure for the Board at any given time.
At this time, our Board believes that having an independent Chair provides strong independent leadership and oversight for our Company and our Board. The separation of the Chair and CEO positions allows our independent
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Chair to focus on the governance of our Board, Board meeting agenda planning, the recruitment of new directors and Board committee responsibilities. Furthermore, this structure allows our CEO to focus his attention on the Company’s business and execution of the Company’s strategy.
Our Board of Directors oversees the risk management activities designed and implemented by our management team and also considers specific risk topics over the short, medium, and long term, including risks associated with our strategic initiatives, cybersecurity, business plans and capital structure. The Board executes its oversight responsibilities both directly and through its committees. Our management, including our executive officers, is primarily responsible for managing the risks associated with the operation and business of the Company over various time frames and reports periodically to the Board of Directors and the Audit Committee on risk management activities, including cybersecurity. Risks are evaluated based on their potential magnitude as well as the immediacy of the risk. Our Board of Directors has delegated to the Audit Committee oversight of its risk management process, and our other board committees also consider risks related to the performance of their respective committee responsibilities. All committees report to the Board of Directors regularly regarding their respective risk oversight responsibilities and as frequently as appropriate, including when a matter rises to the level of a material or enterprise risk.
Meetings and Committees of the Board of Directors
Our Board of Directors held seven meetings in 2023. We expect our directors to attend all board meetings and any meetings of committees of which they are members and to dedicate sufficient time as necessary to properly discharge their responsibilities. Except for Mr. Griffin, each member of the Board of Directors attended at least 75% of the aggregate of the total number of meetings held in 2023 of the Board of Directors and the total number of meetings of committees of the Board of Directors of which he or she was a member. Although we do not have a formal policy regarding director attendance at stockholder meetings, we attempt to schedule meetings so that all directors can attend, and we encourage their attendance and participation. All of our directors who served on the Board of Directors at the time of the 2023 annual meeting of stockholders attended that meeting virtually.
We have a separate standing Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee. Each of the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee are composed solely of independent directors.
Audit Committee Information
Arjun Shah (chair), Lawrence Prior III, Evan Morgan and Lauren Tanenbaum currently serve as members of our Audit Committee. Mr. Shah has been designated as an “audit committee financial expert” as defined by applicable SEC rules. The Board has determined that each of the members of the Audit Committee is an “independent director,” under NYSE rules, and is “financially literate,” meaning that they are each able to read and understand fundamental financial statements, including a company’s balance sheet, income statement and cash flow statement. The Audit Committee has a written charter, which is available on the Investor Relations page of our website at www.kldiscovery.com.
The Audit Committee is responsible for:
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Our Audit Committee held four meetings in 2023.
Nominating and Corporate Governance Committee Information
Our Nominating and Corporate Governance Committee currently consists of Ian Fujiyama (chair), Lawrence Prior III and Richard Williams. The Nominating and Corporate Governance Committee is responsible for overseeing the selection of persons to be nominated to serve on our Board of Directors. The Nominating and Corporate Governance Committee considers persons identified as potential nominees to our Board of Directors by its members, management, stockholders, investment bankers and others. The Nominating and Corporate Governance Committee has a written charter, which is available on the Investor Relations page of our website at www.kldiscovery.com.
Guidelines for Selecting Director Nominees
The guidelines for selecting director nominees, which are specified in the Nominating and Corporate Governance Committee Charter, generally provide that persons to be nominated should:
The Nominating and Corporate Governance Committee considers a number of qualifications relating to management and leadership experience, background, integrity and professionalism in evaluating a person’s candidacy for membership on the Board of Directors and may require certain skills or attributes, such as financial literacy or expertise or accounting experience, to meet specific board needs that arise from time to time and for Audit Committee compliance with applicable SEC rules and regulations. The Nominating and Corporate Governance Committee also considers the overall experience and makeup of our directors to promote a broad and diverse mix of experience and perspective on our Board of Directors, including diversity with respect to race, gender, geography and areas of expertise. Accordingly, the Nominating and Corporate Governance Committee seeks to include women, minority and other underrepresented groups in the pool from which the Committee selects director nominees. The Nominating and Corporate Governance Committee uses the same standards and process to evaluate nominees recommended by stockholders and other persons.
Our Nominating and Corporate Governance Committee met once during 2023.
Compensation Committee Information
Our Compensation Committee currently consists of Richard Williams (chair) and Arjun Shah. The Compensation Committee has a written charter, which is available on the Investor Relations page of our website at www.kldiscovery.com.
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The Compensation Committee’s duties include, but are not limited to:
The Compensation Committee may also, in its sole discretion, retain or obtain the advice of a compensation consultant, legal counsel or other adviser and will be directly responsible for the appointment, compensation and oversight of the work of any such adviser. However, before engaging or receiving advice from a compensation consultant, external legal counsel or any other adviser, the Compensation Committee will consider the independence of each such adviser, including the factors required by the SEC.
The Compensation Committee makes compensation decisions regarding all of our Named Executive Officers. Our Chief Executive Officer makes recommendations to the Compensation Committee to assist it in determining compensation levels for our other executive officers and reviews the performance of our other executive officers. While the Compensation Committee utilizes this information and values management’s observations with regard to compensation, the ultimate decisions regarding executive compensation are made by the Compensation Committee.
Additionally, the Compensation Committee may form and delegate any of its responsibilities to one or more subcommittees as it deems appropriate.
Our Compensation Committee met once in 2023.
Compensation Committee Interlocks and Insider Participation
None of the members of the Compensation Committee is currently, or has been at any time, one of our officers or employees. None of our executive officers currently serves, or has served during the last year, as a member of the Board of Directors or Compensation Committee of any entity that has one or more executive officers serving as a member of our Board of Directors or Compensation Committee.
Communication with the Board of Directors
We have adopted a Stockholder Communications Policy. Stockholders may communicate directly with the Board of Directors, including the independent members of our Board of Directors as a group and the Chair of the Board of Directors, about corporate governance, corporate strategy, board-related matters or other substantive matters. The Company Secretary and Chair of the Board will review, screen and, to the extent appropriate, forward correspondence to the Board, the Board committee, the group of directors or the individual director to whom the communication was addressed. The purpose of this screening is to allow the Board to avoid having to consider irrelevant or inappropriate communications (such as advertisements, solicitations and hostile communications). Communications should be addressed to the intended recipient(s) by name or position in care of: Company Secretary, 9023 Columbine Road, Eden Prairie, MN 55347 or andrew.southam@kldiscovery.com.
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2023 Director Compensation
Director Compensation
Members of our Board of Directors who are not our employees are generally eligible to participate in a compensation program, which we refer to as the Non-Employee Director Compensation Program, under which a director is eligible to receive the following amounts as compensation for his or her services on our Board of Directors and its committees:
For fiscal year 2023, Ian Fujiyama, Arjun Shah, Lauren Tanenbaum and Richard Williams declined to participate in the Non-Employee Director Compensation Program. In addition, Evan Morgan declined the annual retainer fee under the Non-Employee Director Compensation Program but did receive equity-based compensation under the Non-Employee Director Compensation Program.
One-third of the restricted stock units granted upon a director’s initial election or appointment will vest on each of the first three anniversaries of the date of grant, such that the award will be fully vested on the third anniversary of the date of grant, subject to continued service. The restricted stock units granted annually to directors will vest in a single installment on the day before the next annual meeting, subject to continued service. In addition, all unvested restricted stock units will vest in full upon the occurrence of a change in control of our Company (as defined under the KLDiscovery Inc. 2019 Incentive Award Plan), subject to continued service through the date of the change of control.
Director retainer fees under the Non-Employee Director Compensation Program are payable in cash in arrears in four equal quarterly installments not later than the fifteenth day following the final day of each calendar quarter, provided that the amount of each payment will be prorated for any portion of a quarter that a director is not serving on our Board of Directors (or not serving in the applicable committee role).
Each member of our Board of Directors is entitled to be reimbursed for reasonable travel and other expenses incurred in connection with attending meetings of the Board of Directors and any committee of the Board of Directors on which he or she serves.
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2023 Director Compensation Table
The table below shows all compensation to our non-employee directors for the year ended December 31, 2023
Related Person Transaction Policy and Procedures
The Board of Directors has adopted a written policy and procedures for the review of all related party transactions. Further, our Code of Ethics requires us to avoid, wherever possible, all related party transactions that could result in actual or potential conflicts of interests, except under guidelines approved by the Board of Directors (or the Audit Committee). Related party transactions are defined as transactions in which (1) the aggregate amount involved will or may be expected to exceed $120,000 in any calendar year, (2) we or any of our subsidiaries is a participant and (3) any (a) executive officer, director or nominee for election as a director, (b) greater than 5% beneficial owner of our Common Stock, or (c) immediate family member of the persons referred to in clauses (a) and (b) has or will have a direct or indirect material interest (other than solely as a result of being a director or a less than 5% beneficial owner of another entity). A conflict-of-interest situation can arise when a person takes actions or has interests that may make
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it difficult to perform his or her work objectively and effectively. Conflicts of interest may also arise if a person, or a member of his or her family, receives improper personal benefits as a result of his or her position.
Our Audit Committee, pursuant to its written charter, is responsible for reviewing and approving related party transactions to the extent we enter into such transactions. The Audit Committee will consider all relevant factors when determining whether to approve a related party transaction, including whether the related party transaction is on terms no less favorable than terms generally available to an unaffiliated third-party under the same or similar circumstances and the extent of the related party’s interest in the transaction. No director may participate in the approval of any transaction in which he or she is a related party, but that director is required to provide the Audit Committee with all material information concerning the transaction. Additionally, we require each of our directors and executive officers to complete an annual directors’ and officers’ questionnaire that elicits information about related party transactions.
These procedures are intended to determine whether any such related party transaction impairs the independence of a director or presents a conflict of interest on the part of a director, employee or officer.
Set forth below is a description of certain relationships and transactions with related parties since January 1, 2023, involving our directors, executive officers, beneficial holders of more than 5% of our capital stock, or persons or entities affiliated with them.
Securities Purchase Agreement
On December 16, 2019, we entered into a Securities Purchase Agreement, which was subsequently amended on November 19, 2021 (the “Purchase Agreement”) with Ontario Teachers’ Pension Plan, another large global financial institution and affiliates of MGG Investment Group LP, an affiliate of Kevin Griffin (“MGG”), a member of the Board of Directors, each of which is a greater than 5% beneficial owner of Common Stock (the “Purchasers”). Pursuant to the Purchase Agreement, on December 19, 2019 (the “Closing Date”), we sold an aggregate principal amount of $200 million of 8% convertible debentures due 2024 (the “Debentures”) in a private placement to the Purchasers. The Debentures have a term of five years and are repayable at any time prior to maturity without any prepayment penalty. However, in the event we elect to pre-pay the Debentures, the holders will have a right to purchase Common Stock from us in an amount commensurate in value to the pre-payment at a price of $18 per share, subject to adjustment (the “conversion price”). Additionally, the holders may convert the Debentures into shares of our Common Stock at the conversion price at any time. The Debentures mature on December 19, 2024. As of December 31, 2023, $130.4 million, including payment in kind interest, of our Debentures are held by affiliates of MGG. For the year ended December 31, 2023, we recognized $5.0 million in interest expense related to the Debentures held by affiliates of MGG.
Stockholders’ Agreement
In connection with the closing of the Company’s business combination with Pivotal Acquisition Corp.'s (“Pivotal”) (the “Business Combination”), we entered into a Stockholders’ Agreement (as amended on March 25, 2020 and further amended on February 2, 2021) (“Stockholders Agreement”) with affiliates of The Carlyle Group (“TCG”) and Revolution Growth, each of which is a greater than 5% beneficial owner of Common Stock. Ms. Tanenbaum and Messrs. Fujiyama, Prior and Shah, each a director, and Donna Morea, a former director, are affiliates of TCG. Mr. Morgan serves as a Special Adviser to Revolution Growth. Pursuant to the Stockholders Agreement, (i) the holders of a majority of the shares of our Common Stock held by such TCG entities and Revolution Growth have the right to designate candidates to be appointed or nominated for election to our Board of Directors, with the number of nominees to be determined based on their aggregate ownership of common stock. For so long as these parties to the Stockholders Agreement maintain collective ownership of at least 65% or more of the total number of shares of Common Stock they owned as of the Closing Date, they will have the right to designate up to six persons to be appointed or nominated for election to our Board of Directors; to the extent the aggregate ownership drops below 65% of such number but is greater than or equal to 35% thereof, these parties will have the right to designate up to three persons to be appointed or nominated for election to our Board of Directors; and to the extent the aggregate ownership drops below 35% of such number but is greater than or equal to 10% thereof, these parties will have the right to designate one person to be appointed or nominated for election to our Board of Directors. For so long as these parties have the right to designate one more nominees and have not exercised their right, or none of their nominees have been elected or appointed to the board, these parties may designate a board observer to attend and participate in all meetings of our Board of Directors or any committees thereof in a non-voting capacity. The stockholders’ agreement will terminate
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automatically if these parties cease to beneficially own more than 5% of our outstanding shares of Common Stock (on a non-fully diluted basis), provided, that certain provisions of the stockholders’ agreement survive termination, including with respect to certain expense reimbursement, indemnification and insurance matters.
Registration Rights Agreement
In connection with the consummation of the Business Combination, we entered into a Registration Rights Agreement with certain affiliates of TCG, Revolution Growth and the other pre-Business Combination stockholders (the “LD Topco Stockholders”) of LD Topco Inc. (“LD Topco”), Pivotal, and the other holders of our Class B common stock that were issued prior to Pivotal’s initial public offering (which were converted upon consummation of the Business Combination into our single class of Common Stock on a one-for-one basis). Pursuant to the Registration Rights Agreement, these stockholders were granted certain demand and piggyback registration rights with respect to the resale of our securities they hold, subject to certain conditions set forth therein. Specifically, the affiliates of TCG were granted demand registration rights and, subject to certain limitations, all parties to the agreement were granted piggyback registration rights to participate in registrations of our securities, including Company-initiated registrations and demand registrations initiated by other securityholders with such rights.
Other Matters
Matt Weiler and Nick Weiler, the sons of Christopher Weiler, our Chief Executive Officer, have been employed with KLDiscovery since 2015 and 2017, respectively. Matt Weiler currently serves as a Senior Director, Client Shared Services in our Client Shared Services division and Nick Weiler currently serves as a Managing Director, Business Development in our Global Sales and Marketing division. In 2023, Matt Weiler received total annual salary and cash incentives of $180,000 and annual equity compensation, including stock options and restricted stock units, of less than $20,000. In 2023, Nick Weiler received total annual salary and cash incentives of $392,000 and annual equity compensation, including stock options and restricted stock units, of less than $20,000. Matt Weiler and Nick Weiler’s equity compensation vests in accordance with the Company’s standard vesting schedules, as described in “2023 Executive Compensation—Equity Compensation.”
We have entered into an indemnification agreement with each of our directors and executive officers. The indemnification agreements, together with our Bylaws, provide that we will jointly and severally indemnify each indemnitee to the fullest extent permitted by the Delaware General Corporation Law from and against all loss and liability suffered and expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by or on behalf of the indemnitee in connection with any threatened, pending or completed action, suit or proceeding that arises by reason of the indemnitee’s status or service as an executive officer or director. Additionally, we agree to provide an advance to the indemnitee of all out-of-pocket costs of any type incurred in connection therewith.
From time to time, we may make sales to and purchases from companies that are affiliated with TCG. Such transactions have been entered into in the ordinary course of business and are not considered material or related party transactions.
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PROPOSAL 1:
ELECTION OF DIRECTORS
There are currently ten directors on our Board of Directors, divided into three classes, with four directors in Class A, three directors Class B and three directors in Class C. The terms of office of the Class B directors, Evan B. Morgan, Lauren Tanenbaum and Jill Frizzley, will expire at the Annual Meeting. Upon the recommendation of our Nominating and Corporate Governance Committee, the Board of Directors has approved the nomination of current Class B directors Evan B. Morgan, Lauren Tanenbaum and Jill Frizzley for election at the Annual Meeting, each to serve for a term of three years expiring at our 2027 annual meeting of stockholders (or until such time as their respective successors are elected and qualified or their earlier resignation, death or removal from office). Each nominee is currently a director of the Company and has consented to serve as a director, if elected. In the event of death or disqualification of any nominee or the refusal or inability of any nominee to serve as a director, proxies cast for that nominee may be voted with discretionary authority for a substitute or substitutes as shall be designated by the Board of Directors.
Vote Required
Nominees for election to the Board of Directors shall be elected by a plurality of the votes cast by the shares present in person or represented by proxy at the Annual Meeting and entitled to vote for the election of directors, provided a quorum is present. Proxies cannot be voted for a greater number of persons than the number of nominees named. See “General Information about the Annual Meeting—What vote is required for each item?” for information regarding how votes are counted, including the treatment of broker non-votes.
OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE "FOR" EACH OF THE CLASS B DIRECTOR NOMINEES NAMED IN THIS PROXY STATEMENT.
Nominees For Election at the Annual Meeting
Information regarding our director nominees, including their qualifications and principal occupations, as well as the key experience and qualifications that led the Board of Directors to conclude each nominee should serve as a director, is provided below.
Class B Director Nominees
Jill Frizzley has been a member of the Board of Directors of KLDiscovery since March 2024. Ms. Frizzley was recommended by the Company’s legal and financial advisors. Ms. Frizzley currently serves as President of Wildrose Partners, LLC, an independent consulting company providing governance and related advisory services to corporations, a position she has held since June 2019. Ms. Frizzley served as Counsel in the Business Finance & Restructuring Group at Weil, Gotshal & Manges LLP from 2016 until May 2019, and previously practiced in the Business Finance Group at Shearman & Sterling LLP from 2000 until 2016. Ms. Frizzley currently serves as a board member of Invitae Corporation and Sabre Corporation, and during the past five years was a member of the following public company boards: Hudson Technologies Inc., Vivus Inc., Avaya Holdings Corp., Virgin Orbit Holdings, iMedia Brands, Inc., Surgalion Holdings, Inc. and Proterra Inc. Ms. Frizzley received a B.S. in Genetics with Honors from the University of Alberta and her LLB from the University of Toronto Faculty of Law. We believe that Ms. Frizzly is qualified to serve as a member of our Board of Directors due to her extensive corporate governance and legal experience, as well as her experience as a board member of publicly traded companies.
Evan B. Morgan has been a member of the Board of Directors of KLDiscovery since December 2015. Mr. Morgan has served as Manager of The Radcliff Companies, a New York-based private investment partnership, since July 2016. Radcliff invests across the capital structure seeking long-term compounding at high rates of return primarily in privately held consumer and services businesses. Prior to Radcliff, Mr. Morgan served as a partner at Revolution Growth, a Washington DC based growth equity investment firm. Since 2016, Mr. Morgan has served as Special Advisor to Revolution Growth. Mr. Morgan previously served as a member of the board of directors of Pivotal Acquisition Corp. from December 2018 until April 2019. Mr. Morgan received a B.A. from the University of
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Pennsylvania. We believe that Mr. Morgan is qualified to serve as a member of our Board of Directors due to his knowledge of our business and industry.
Lauren Tanenbaum has been a member of the Board of Directors of KLDiscovery since February 2021. Since July 2018, Ms. Tanenbaum has served as a Principal within the Global Capital Markets team at TCG. She provides financing guidance for TCG’s U.S.-based private equity funds both at initial acquisition and on an ongoing portfolio basis. In her role, Ms. Tanenbaum arranges a wide variety of financings ranging from large, broadly syndicated transactions to middle market private placements. Prior to joining TCG in 2018, Ms. Tanenbaum worked at J.P. Morgan from 2011 to 2018, most recently as a Vice President in Leveraged Finance. Additionally, she was an Investment Banker in the Public Finance department at Morgan Stanley from 2009 to 2011. Ms. Tanenbaum received a B.A. in History from the University of Pennsylvania. We believe that Ms. Tanenbaum is qualified to serve as a member of our Board of Directors due to her extensive corporate finance experience.
Directors and Executive Officers
Our current directors and executive officers are listed below. Also set forth below are the biographies for all our current directors and executive officers other than the director nominees, which are set forth above. There are no family relationships among any of our directors or executive officers.
Class A and C Directors
Ian Fujiyama has been a member of the Board of Directors of KLDiscovery since March 2020. Since 2005, Mr. Fujiyama has served as a Managing Director for TCG and since 2010 he has served as a Partner for TCG. Mr. Fujiyama focuses on buyouts and strategic minority investments in the aerospace, defense and government services sectors. Since joining TCG in 1997, Mr. Fujiyama has led TCG’s recent investments in the Federal services sector, including Novetta, Booz Allen Hamilton and ARINC. Beginning in 1999, he spent two years in Hong Kong and Seoul working in TCG’s Asia Buyout fund, Carlyle Asia Partners, where he was a founding member of the team and helped lead TCG’s investment in KorAm Bank, TCG’s first investment in the financial services industry. Mr. Fujiyama was also involved in a number of successfully exited holdings, including ARINC, United Components, Inc, Lear Siegler Services, EG&G Technical Services and CPI. Prior to joining TCG, Mr. Fujiyama was an Associate at Donaldson Lufkin and Jenrette Securities Corp, with a focus on high yield and merchant banking transactions. Mr. Fujiyama received his B.S. in economics, summa cum laude, from The Wharton School of the University of Pennsylvania with a concentration in finance. Mr. Fujiyama has served on the boards of directors of ARINC, Booz Allen Hamilton,
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Dynamic Precision Group, CPI, Novetta and currently serves on the boards of directors of Two Six Technologies, Inc., StandardAero Holding Corp., Loc Performance and Man Tech International. Additionally, Mr. Fujiyama served as the Chairman of TCG’s Diversity and Inclusion Committee. We believe that Mr. Fujiyama is qualified to serve as a member of our Board of Directors due to his knowledge of technology solutions and corporate finance experience.
Arjun Shah has been a member of the Board of Directors of KLDiscovery since March 2021. Mr. Shah currently serves as a Principal of TCG with a focus on buyout and growth equity investments in enterprise software and tech-enabled services. He is based in Washington D.C. Since joining TCG in 2017, Mr. Shah has been actively involved with TCG’s investments in YipitData, Abrigo, ION Group, Workforce Logiq, and KLDiscovery. Prior to joining TCG, Mr. Shah was with Tinicum Incorporated from 2015 to 2017 and prior to joining Tinicum Incorporated he was with The Blackstone Group. Mr. Shah received his M.B.A., with high distinction, from Harvard Business School, where he was a Baker Scholar. He graduated summa cum laude from the Jerome Fisher Program in Management & Technology at University of Pennsylvania, where he received a B.S.in economics from The Wharton School and a B.S. in engineering. We believe that Mr. Shah is qualified to serve as a member of our Board of Directors due to his knowledge of technology solutions and corporate finance experience.
Neal Goldman has been a member of the Board of Directors of KLDiscovery since March 2024. Mr. Goldman was recommended by the Company’s legal and financial advisors. Mr. Goldman has over 25 years of experience in investing and working with companies to maximize shareholder value. Since 2013, he has been the Managing Member of SAGE Capital Investments, LLC, a consulting firm specializing in independent board of director services, restructuring, strategic planning and transformations for companies in multiple industries including energy, technology, media, retail, gaming and industrials. Prior to 2013, he was a Managing Director at Och-Ziff Capital Management, LP and a Founding Partner of Brigade Capital Management, LLC, which he helped to build to over $12 billion in assets under management. Mr. Goldman currently serves as Chairman of the board of directors of Talos Energy Inc. and Diamond Offshore Drilling, Inc., and he is a member of the board of directors of Weatherford International plc. He previously served on the boards of directors of Core Scientific, Inc., Mallinckrodt plc, Redbox Entertainment Inc., Ultra Petroleum and Ditech Holding Corporation (f/k/a Walter Investments Inc.). Mr. Goldman received his B.A. from the University of Michigan and his M.B.A from the University of Illinois. We believe that Mr. Goldman is qualified to serve as a member of our Board of Directors due to his extensive experience in strategic and financial planning, public company corporate governance and as a board member of publicly traded companies.
Kevin Griffin has been a member of our Board of Directors of KLDiscovery since December 2019 and previously served as a member of the board of directors of Pivotal beginning in September 2018. During Mr. Griffin’s 20 plus-year career, Mr. Griffin has originated and invested over $10 billion across the capital structure of middle market businesses and has also sat on numerous boards of directors. Mr. Griffin founded MGG in October 2014 and has served as its Chief Executive Officer and Chief Investment Officer since such time. Prior to launching MGG, Mr. Griffin was a Managing Director with Highbridge Principal Strategies from January 2010 to June 2014, where he was a senior member of the Specialty Lending Platform and a Member of the Highbridge Credit Committee. Prior to this, Mr. Griffin was the Head of Private Investing for Octavian Funds, a hedge fund focused on global investing across debt and equity structures, from 2007 to 2009. From 2003 to 2007, Mr. Griffin was part of Fortress Investment Group in charge of originating and underwriting investment opportunities for the Drawbridge Special Opportunities Fund. Prior to Fortress, Mr. Griffin was an investor with one of the first publicly traded business development companies, American Capital, where he was involved in numerous equity buyout and subordinated debt investments. Mr. Griffin began his career with Houlihan Lokey, Howard & Zukin’s Investment Banking Division, focusing primarily on distressed M&A and financial restructurings. The M&A Advisor in May 2015 named Mr. Griffin a winner of its 40 Under 40 Emerging Leaders Award. The Hedge Fund Journal, in association with Ernst & Young, in December 2016 named Mr. Griffin one of 50 “Tomorrow’s Titans.” Mr. Griffin received a BSBA in Finance from Georgetown University. We believe that Mr. Griffin is qualified to serve as a member of our Board of Directors due to his extensive business and operational experience and contacts.
Lawrence B. Prior, III has been a member of the Board of Directors of KLDiscovery since March 2020. Since June 2018, Mr. Prior has served as an Operating Executive for TCG, focused on the aerospace, defense and government services sectors. He is based in Washington, DC and serves as the Chairman of the Board of Two Six Technologies and also serves on the Board of Acentra Health. Mr. Prior also serves on the board of directors of Shift5, an operational technology data and cybersecurity company; and as an independent Non-executive director of QinetiQ Group Plc
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(QQ-L), a leading science and engineering company operating primarily in the defense, security and critical infrastructure markets. Mr. Prior was President and Chief Executive Officer of CSRA, Inc. from November 2015 to April 2018, which was acquired by General Dynamics. Previously, he was Executive Vice President and General Manager of CSC’s North American Public Sector business, providing next-generation technology solutions and mission services to the U.S. Department of Defense, Intelligence Community and FedCiv sectors. Before joining CSC, Mr. Prior held executive leadership positions at BAE Systems Inc., ManTech International, SAIC, LightPointe Communications, High Technology Solutions, the County of San Diego and TRW. Earlier in his career, Mr. Prior worked as a professional staff member on the House Permanent Select Committee on Intelligence and served as an Intelligence Officer in the U.S. Marine Corps. Mr. Prior earned his B.S. degree from Loyola Marymount University and a M.A. in security studies from the Edmund A. Walsh School of Foreign Service at Georgetown University. We believe that Mr. Prior is qualified to serve as a member of our Board of Directors due to his knowledge of technology solutions and corporate finance experience.
Christopher J. Weiler co-founded KLDiscovery in 2005 and has served as its Chief Executive Officer and a director since such time. Mr. Weiler was awarded EY entrepreneur of the year in 2014 for the Washington, D.C. metropolitan area. Prior to co-founding KLDiscovery, Mr. Weiler co-founded On-Site Sourcing in 1993, a litigation support and electronic discovery services company, and served as its President and Chief Executive Officer until August 2004. From 1991 to 1992, Mr. Weiler worked for Pitney Bowes Management Services as a manager, and from 1985 to 1991, he served in the U.S. Navy as a surface warfare officer and as a Navy Senate Liaison Officer in Washington, D.C. Mr. Weiler received a B.S. in Political Science and graduated with merit from the U.S. Naval Academy in 1985. Mr. Weiler also was awarded the MVP and Jeffrey Korn leadership and academic awards for the 1984 Navy football team. Mr. Weiler currently serves on the Board of Proof Technology, Inc., a private on-demand legal service of process platform. We believe that Mr. Weiler is qualified to serve as a member of our Board of Directors due to his vast knowledge of our company and his extensive experience in the electronic discovery services industry.
Richard J. Williams has been a member of the Board of Directors of KLDiscovery since February 2018. In 2004, Mr. Williams co-founded WestView Capital Partners, a private equity firm focused on growth-oriented companies, and he currently serves as its Manager Partner. WestView currently manages approximately $2.7 billion of capital. Prior to co-founding WestView, he was a Partner in Tudor Investment Corporation’s private equity group from 2000 to 2004. Prior to joining Tudor, Mr. Williams was a Managing Director of Triumph Capital Group, a Boston-based private equity firm. In these positions, Mr. Williams has been responsible for investments in the technology services, software and business services sectors. Mr. Williams currently serves on the boards of directors of AccountabilIT, Invisors LLC, Health Monitor Network, Summit 7 Corp and Physicians Lif Care Planning Corp. Mr. Williams previously served on the boards of directors of numerous private and public companies including LDiscovery. Mr. Williams received a B.S. in Computer Science from Yale University and an MBA from the Wharton School at the University of Pennsylvania. We believe that Mr. Williams is qualified to serve as a member of our Board of Directors due to his extensive experience with growth-oriented companies and other public companies.
Executive Officers
Dawn Wilson has served as the Chief Financial Officer of KLDiscovery since September 2017. Ms. Wilson has over 20 years of experience in finance and accounting. After starting her career at Arthur Andersen in 1992, she has primarily been with public companies in the technology and services industry. Prior to joining KLDiscovery, Ms. Wilson served as Vice President of Accounting of CoStar Group from July 2004 to August 2016, the leading provider of commercial real estate information, analytics and online marketplaces. She received a Masters in Accounting from Virginia Polytechnic Institute and State University.
Krystina Jones joined KLDiscovery in 2006 in the sales division, where she was responsible for generating new business from Am Law 100 law firms and Fortune 500 corporations. Ms. Jones currently serves as Chief Revenue Officer, a position she has held since January 2023. In this role, she is responsible for developing, implementing and executing a global sales and marketing strategy across the entire organization. Additionally, Ms. Jones is responsible for KLDiscovery’s global sales operations teams who support the business development managers in delivering best-in-class service to their clients. Prior to this role, Ms. Jones served as in various other sales and marketing roles with KLDiscovery, including, most recently, EVP, Global Sales & Marketing from May 2021 to December 2022 and EVP, Global LT Sales & Marketing from February 2019 to May 2021.
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AUDIT COMMITTEE MATTERS
Audit Committee Pre-Approval Policies and Procedures
The Audit Committee maintains policies and procedures for the pre-approval of work performed by the Company's independent registered public accounting firm and, pursuant to the Audit Committee charter, all auditor engagements must be approved in advance by the Audit Committee. All of the services provided to the Company by Ernst & Young LLP (“EY”), the Company’s independent registered public accounting firm, during fiscal years ended December 31, 2022 and 2023 were pre-approved by the Audit Committee.
Audit and Non-Audit Fees
The following table sets forth the aggregate fees and expenses billed to us by our independent registered public accounting firm for fiscal years 2022 and 2023:
Report of the Audit Committee
In accordance with a written charter adopted by the Board of Directors, the Audit Committee assists the Board of Directors in fulfilling its responsibility for oversight of the quality and integrity of the Company's financial reporting processes and its internal audit function. Management has the primary responsibility for the financial statements and the reporting process, including the system of internal controls and for assessing the effectiveness of the Company's internal control over financial reporting. The independent auditors are responsible for performing an independent audit of the Company's consolidated financial statements and internal control over financial reporting in accordance with the standards of the Public Company Accounting Oversight Board (the “PCAOB”) and for issuing reports thereon.
In this context, the Audit Committee has met and held discussions with management, the independent auditors and internal audit, as well as legal counsel. Management represented to the Audit Committee that the Company's consolidated financial statements were prepared in accordance with generally accepted accounting principles, and the Audit Committee has reviewed and discussed the consolidated financial statements with management and the independent auditors. The Audit Committee discussed with the independent auditors those matters required to be discussed by the applicable requirements of the PCAOB and the SEC.
In addition, the Audit Committee has received the written disclosures and the letter from the independent auditors required by the applicable requirements of the PCAOB regarding the independent accountant's communications with the Audit Committee concerning independence and has discussed with the independent auditors the auditors' independence from the Company and its management.
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The Audit Committee discussed with the Company's internal and independent auditors the overall scope and plans for their respective audits. The Audit Committee meets with the internal and independent auditors, with and without management present, to discuss the results of their examinations, the evaluations of the Company's internal controls and the overall quality of the Company's accounting principles.
In reliance on the reviews and discussions referred to above, the Audit Committee recommended to the Board of Directors, and the Board of Directors approved, the inclusion of the audited financial statements of the Company for the fiscal year ended December 31, 2023 in the Company's Annual Report, filed with the SEC on March 28, 2024.
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Members of the Audit Committee |
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Arjun Shah (Chair) Lawrence Prior III Lauren Tanenbaum |
The foregoing report is not "soliciting material," shall not be deemed "filed" and shall not be deemed incorporated by reference by any general statement incorporating by reference this Proxy Statement into any filing under the Securities Act or under the Securities Exchange Act of 1934 (the “Exchange Act”), each as amended, except to the extent that the Company specifically incorporates this information by reference, and shall not otherwise be deemed filed under the Securities Act or the Exchange Act.
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PROPOSAL 2:
RATIFICATION OF APPOINTMENT OF
INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
The Audit Committee of the Company’s Board of Directors has appointed the firm of Ernst & Young LLP as the Company's independent registered public accounting firm for our fiscal year ending December 31, 2024. EY has been the Company’s auditor since 2016. At the Annual Meeting, stockholders will be asked to ratify the selection of EY.
Although ratification is not required by law, our certificate of incorporation or our Bylaws, our Board of Directors believes that stockholders should be given the opportunity to express their view on the subject. While not binding on the Audit Committee, if the stockholders do not ratify this appointment, the appointment will be reconsidered by the Audit Committee, but may, nonetheless, retain EY as the Company’s independent registered public accounting firm. Even if the selection is ratified, the Audit Committee in its discretion may select a different independent registered public accounting firm at any time during the year if it determines that such a change would be in the best interests of the Company and our stockholders.
A representative of EY is expected to be present virtually at the Annual Meeting and will be provided with an opportunity to make a statement, if he or she desires, and is expected to be available to respond to appropriate questions of stockholders, if any.
Vote Required
The affirmative vote of a majority of the votes cast (excluding abstentions and broker non-votes) is required to ratify the appointment of EY as the Company's independent registered public accounting firm. See “General Information about the Annual Meeting—What vote is required for each item?” for information regarding how votes are counted, including the treatment of abstentions.
OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS YOU VOTE "FOR" THIS PROPOSAL
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PROPOSAL 3:
APPROVAL OF AN AMENDMENT TO THE SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF KLDISCOVERY INC.
General
The State of Delaware, where the Company is incorporated, recently enacted legislation that expands exculpation protection to officers, thereby enabling companies to eliminate the monetary liability of certain officers in certain circumstances, similar to, but more limited than, the protection already afforded to directors under the Company’s Second Amended and Restated Certificate of Incorporation (the “Certificate”). Delaware adopted these amendments to address inconsistent treatment between officers and directors in certain circumstances and to address rising litigation and insurance costs for companies. In line with the update to Delaware law, we are seeking stockholder approval to amend the Certificate to extend exculpation to certain officers to the fullest extent permitted by Delaware law (the “Proposed Amendment”). The current exculpation protections available to directors will not change as a result of the Proposed Amendment.
Purpose and Effect of the Proposed Amendment
The Proposed Amendment is a result of the Board of Directors’ ongoing review of corporate governance best practices given recent changes in Delaware law. In considering the Proposed Amendment, the Board of Directors carefully considered the implications of amending our Certificate to provide exculpation from liability for certain of our officers.
The Board of Directors believes that it is important to extend exculpation protection to officers, to the fullest extent permitted by Delaware law, to better position the Company to attract and retain qualified and experienced officers. In the absence of such protection, such individuals could be deterred from serving or continuing to serve as officers due to exposure to personal liability and the risk of incurring substantial expense in defending lawsuits, regardless of merit. The nature of an officer’s role often requires the person to make decisions on crucial matters and frequently in response to time-sensitive opportunities and challenges, which can create substantial risk of allegations, claims and lawsuits seeking to impose liability with the benefit of hindsight, regardless of merit. Aligning the protections available to our officers with those available to our directors would empower officers to exercise their business judgment in furtherance of stockholder interests without the potential for distraction posed by the heightened risk of personal liability.
The Board of Directors also believes that the Proposed Amendment would strike the appropriate balance between furthering our goals of attracting and retaining quality officers with promoting stockholder accountability because, consistent with the update to Delaware law, the Proposed Amendment would exculpate officers only in connection with direct claims brought by stockholders, including class actions, but would not eliminate or limit liability with respect to any of the following:
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Taking into account the narrow class and type of claims for which officers would be exculpated, and the benefits the Board of Directors believes would accrue to the Company and its stockholders—enhancing our ability to attract and retain talented officers and potentially reducing future litigation costs associated with frivolous lawsuits—the Board of Directors has declared the Proposed Amendment to be advisable and has determined it to be in the best interests of KLDiscovery and its stockholders.
Additional Information
The general description of the Proposed Amendment set forth above is qualified in its entirety by reference to the text of the Proposed Amendment, which is attached as Appendix A to this Proxy Statement (revisions to the Certificate are indicated by double underlining).
The Proposed Amendment is binding. If Proposal 3 is approved, the Company intends to file a Certificate of Amendment to the Certificate with the Secretary of State of the State of Delaware, which will become effective at the time of the filing. If Proposal 3 is not approved by the requisite vote, then a Certificate of Amendment will not be filed with the Secretary of State of the State of Delaware, the Certificate will remain unchanged and our officers will not be entitled to exculpation under Delaware law.
The Board reserves the right to elect to abandon the Proposed Amendment if it determines, in its sole discretion, that such change is no longer in the best interests of the Company and its stockholders. If the Board were to exercise such discretion, we will publicly disclose that fact, and the Certificate would remain unchanged.
Vote Required
The affirmative vote of a majority of the outstanding shares of the Company’s Common Stock is required to approve the Proposed Amendment. See “General Information about the Annual Meeting—What vote is required for each item?” for information regarding how votes are counted, including the treatment of abstentions and broker non-votes.
OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS YOU VOTE "FOR" THIS PROPOSAL.
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2023 EXECUTIVE COMPENSATION
Overview
This section provides information about our fiscal 2023 compensation for our 2023 “Named Executive Officers” ("NEOs"). As an “emerging growth company” as defined in the JOBS Act, we are not required to include a Compensation Discussion and Analysis section and have elected to comply with the scaled disclosure requirements applicable to emerging growth companies. In addition, as an emerging growth company, we are not required to hold an advisory vote, referred to as the “say-on-pay” vote, to approve the compensation of our NEOs.
Our Compensation Committee, the members of which are appointed by our Board, is responsible for establishing, implementing and monitoring our compensation philosophy and objectives. We intend for the total compensation paid to our executive officers to be reasonable and competitive. Compensation of our executives is structured around the achievement of individual performance and near-term corporate targets as well as long-term business objectives.
Our NEOs, who are our principal executive officer and the two next most highly compensated executive officers (other than our principal executive officer) serving as executive officers as of December 31, 2023, were:
2023 Summary Compensation Table
The following table presents summary information regarding the total compensation for the years ended December 31, 2023 and December 31, 2022, for the Named Executive Officers.
(1) |
Amounts include the $150,000 annual irrecoverable draw payable to Ms. Jones pursuant to the 2021 and 2023 Commission Plans, as applicable, as further described below under the heading “—Sales Commission Plan.” |
(2) |
Cash bonuses for Mr. Weiler and Ms. Wilson under the Annual Bonus Plan for 2023. |
(3) |
The amounts reported in these columns do not reflect the actual economic value realized by the NEO. Amounts in these columns reflect the estimated aggregate grant date fair value of stock awards and options granted during the applicable year computed in accordance with ASC Topic 718, excluding the effect of estimated forfeitures. The assumptions used by the Company in calculating these amounts are included in Note 9 to our audited consolidated financial statements in the Annual Report. |
(4) |
Amount reflects commissions earned by Ms. Jones pursuant to the 2021 and 2023 Commission Plans, as described below under the heading “Sales Commission Plan.” |
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(5) |
The amounts reported in this column for 2023 consist of Company profit sharing contribution payments pursuant to the Company’s 401(k) plan of $11,746 for Mr. Weiler, $12,932 for Ms. Wilson and $13,199 for Ms. Jones; Company paid insurance premiums of $13,553 for Mr. Weiler, $7,553 for Ms. Wilson and $6,731 for Ms. Jones; Company paid taxes on vested stock awards of $7,438 for Mr. Weiler, $6,999 for Ms. Wilson and $1,749 for Ms. Jones and wellness gift cards of $800 for Mr. Weiler and $400 for Ms. Jones. |
Outstanding Equity Awards at 2023 Fiscal Year End
The following table lists all outstanding equity awards held by our NEOs as of December 31, 2023
Narrative to 2023 Summary Compensation Table and Outstanding Equity Awards at 2023 Fiscal Year End
Compensation Philosophy & Mix
Our NEO executive compensation program is designed to align the interests of our NEOs with the interests of our stockholders. While base salary and performance-based cash incentive opportunities reward short-term goals, equity awards promote longer-term retention and commitment to the operating results of the Company. We believe this mix rewards our NEOs for their short-term individual contributions to the Company while also incentivizing them to focus on future results.
The primary elements of compensation for our NEOs are base salary, annual cash bonuses, awards of stock options, awards of RSUs and, for Ms. Jones, commissions and an irrevocable draw through our sales commission program.
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Our NEOs are also eligible to participate in our employee benefit plans and programs, including medical and dental benefits, flexible spending accounts, long-term care benefits, and short- and long-term life insurance, to the same extent as our other full-time employees, subject to the terms and eligibility requirements of those plans.
Base Salaries
The Company’s NEOs receive a base salary to compensate them for services rendered to our Company. The base salary payable to each NEO is intended to provide a fixed component of compensation reflecting the executive’s skill set, experience, role and responsibilities.
The annual base salaries for our NEOs as of December 31, 2022 and December 31, 2023 were as follows:
Annual Cash Bonuses
In addition to base salaries, Mr. Weiler and Ms. Wilson are eligible to participate in the KLDiscovery Inc. Corporate Annual Bonus Plan (the “Annual Bonus Plan”). The Annual Bonus Plan is designed to motivate our employees to achieve corporate goals and to reward our employees for their contributions towards achievement of these goals. Our Board of Directors annually approves the Company’s annual budget, which includes a discretionary bonus pool for granting awards under the Annual Bonus Plan. The extent to which the bonus pool is funded is based on the Company’s achievement of certain adjusted EBITDA goals during the plan year, and bonuses are granted from the bonus pool to eligible employees based on each employee’s role, seniority, and annual cash bonus target.
For 2023, the financial goals related generally to the achievement of Adjusted EBITDA goals. Disclosure of how Adjusted EBITDA is calculated from our audited financial statements is provided in the section of the Annual Report entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Key Components of our Results of Operations – Adjusted EBITDA.”
Mr. Weiler and Ms. Wilson’s 2023 annual cash bonus targets, expressed as a percentage of base salary, were 100% and 60%, respectively.
Sales Commission Plan
In 2023, Ms. Jones was eligible to earn sales commissions pursuant to the 2023 Commission Plan (together with the addendums thereunder). Under the 2023 Commission Plan, Ms. Jones was eligible to earn an annual irrevocable draw of $150,000, payable in equal monthly installments as well as additional monthly commission that is based on invoiced revenue multiplied by specified commission rates, payable in arrears to the extent that they exceed her monthly draw. Effective November 1, 2022, the 2021 Commission Plan was updated and replaced with the 2023 Commission Plan.
Equity Compensation
We have granted equity awards pursuant to the KLDiscovery Inc. 2019 Incentive Award Plan (the “2019 Plan”) to our eligible employees, including our NEOs, and we have historically offered stock options and RSUs as the long-term incentive component of our compensation program. The Company’s stock options generally allow employees, including our NEOs, to purchase shares of our common stock at a price equal to the fair market value of our Common Stock on the date of grant, as determined by the Board of Directors. The Company’s RSUs represent a contractual
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right to receive one share of our Common Stock for each RSU upon the settlement date, subject to certain vesting conditions.
Generally, stock options and RSUs granted under the 2019 Plan have vesting schedules that are designed to encourage continued employment. Stock options granted to our NEOs generally vest over a three-year period, subject to continued employment and generally expire ten years from the date of grant. In the event of a change in control of the Company (a “Change in Control”), the option tranche that was scheduled on the applicable vesting date immediately following the Change in Control will immediately vest and the remainder of the option will vest in each of the subsequent anniversaries of the Change in Control. We refer to this option vesting schedule herein as the “Standard Option Vesting Schedule.”
RSUs granted to our NEOs generally vest according to the following vesting schedule (subject to continued employment), which we refer to herein as the “Standard RSU Vesting Schedule”.
During 2022 and 2023, the Company also granted performance based RSUs to certain employees, including certain of our NEOs, 50% of which vest based on the achievement of annual consolidated revenue targets and 50% of which vest based on the achievement of certain annual Nebula revenue targets. These units will vest over three annual installments based on the achievement of the annual consolidated revenue and Nebula revenue performance conditions and are not subject to any liquidity event vesting condition. If the performance conditions are not met in the first or second year, all units granted will vest in the third year if the cumulative performance conditions are met at that time. On February 2, 2023, notwithstanding that the applicable revenue targets for 2022 were not met, the Compensation Committee approved the vesting of 50% of the shares underlying the restricted stock unit awards applicable to the 2022 targets. The approval by the Compensation Committee was in recognition of the achievement of adjusted EBITDA in 2022 and the goals of the Company to incentivize employees. The grant of awards with performance conditions supports the Company’s goal of aligning executive incentives with long-term stockholder value and promote executive officers’ continuing stake in the long-term success of the Company. A determination of vesting for any of the shares underlying the restricted stock unit awards applicable to 2023 performance has not been made.
From time to time, our Board of Directors may also construct alternate vesting schedules as it determines are appropriate to motivate particular employees.
In 2022 and 2023, Mr. Weiler received awards of 100,000 and 89,000 stock options, respectively. In addition, in 2022 and 2023, Mr. Weiler received awards of 42,500 and 38,790 performance based RSUs, respectively. The outstanding stock options and performance based RSUs vest based on the Company’s Standard Option Vesting Schedule, Standard RSU Vesting Schedule and performance based RSU vesting criteria described above.
In each of 2022 and 2023, Ms. Wilson received awards of 100,000 and 89,000 stock options, respectively. In addition, in 2022 and 2023, Ms. Wilson received awards of 40,000 and 34,480 performance based RSUs, respectively. The outstanding stock options and performance based RSUs vest based on the Company’s Standard Option Vesting Schedule, Standard RSU Vesting Schedule and performance based RSU vesting criteria described above.
In 2022 and 2023, Ms. Jones received awards of 18,000 and 15,000 stock options respectively. In addition, in 2022 and 2023, Ms. Jones received awards of 10,000 and 8,620 performance based RSUs, respectively. The outstanding stock options and performance based RSUs vest based on the Company’s Standard Option Vesting Schedule, Standard RSU Vesting Schedule and performance based RSU vesting criteria described above.
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Executive Employment and Severance Arrangements
The Company has entered into employment and severance arrangements with each of the NEOs. The material terms and conditions of these arrangements are described below.
Christopher J. Weiler
Mr. Weiler is party to an employment agreement, dated September 30, 2011, and which has been subsequently amended, pursuant to which he serves as the Chief Executive Officer of the Company. The current term of the employment agreement will expire on September 30, 2024, subject to automatic one-year renewals unless either party gives written notice of non-renewal at least ninety days prior to the then-scheduled expiration of the term. Pursuant to his employment agreement, Mr. Weiler is entitled to an annual base salary, and is eligible to participate in an incentive program established by the Board under which Mr. Weiler may earn a bonus based on achievement of performance metrics as determined by the Board.
Mr. Weiler has also agreed to refrain from disclosing our confidential information during or at any time following his employment with us and from competing with us or soliciting our employees or customers during his employment and for one year following termination of his employment.
Mr. Weiler is also party to an executive severance agreement with the Company, dated as of September 30, 2020 and subsequently amended on December 12, 2022. In the event that Mr. Weiler’s employment is terminated either by the Company without cause (as defined in his employment agreement) or by Mr. Weiler for good reason (as defined in his employment agreement), subject to his execution and non-revocation of a general release of claims and continued compliance with his restrictive covenant obligations, as described above, Mr. Weiler would be entitled to receive (i) an amount in cash equal to the sum of (A) his base salary and (B) a pro-rated bonus for the year in which his termination occurs and (ii) direct payment of or reimbursement for continued medical, dental or vision coverage pursuant to COBRA for up to 12 months. In the event that Mr. Weiler’s employment is terminated either by the Company without cause or by Mr. Weiler for good reason, in either case, within three months prior to or twelve months following a change in control, then in lieu of the severance benefits described above, subject to his execution and non-revocation of a general release of claims and continued compliance with his restrictive covenant obligations, as described above, Mr. Weiler would be entitled to receive (i) an amount in cash equal to 1.5 times the sum of (A) his base salary plus (B) his target annual bonus for the year of termination, (ii) direct payment of or reimbursement for continued medical, dental or vision coverage pursuant to COBRA for up to 18 months and (iii) accelerated vesting of all unvested equity or equity-based awards held by him that vest solely based on the passage of time, with any such awards that vest based on the attainment of performance-vesting conditions being governed by the terms of the applicable award agreement.
Dawn M. Wilson and Krystina L. Jones
The Company entered into an offer letter agreement with Ms. Wilson pursuant to which she serves as the Chief Financial Officer of the Company. Pursuant to her offer letter, Ms. Wilson is entitled to an annual base salary and is eligible to earn a discretionary bonus currently targeted at 60% of her annual base salary based on the achievement of key performance objectives and company performance.
Ms. Jones is party to an offer letter agreement pursuant to which Ms. Jones has been employed by the Company. Pursuant to her offer letter, Ms. Jones is entitled to an annual base salary and an irrevocable draw of $150,000, and is eligible to receive monthly commissions under the Company’s current commission plan.
The Company has entered into restrictive covenant agreements with each of Mses. Wilson and Jones pursuant to which they agree to refrain from disclosing our confidential information during or at any time following their employment with us and from competing with us or soliciting our employees or customers during their employment and for one year following termination of their employment.
The Company also entered into executive severance agreements with each of Mses. Wilson and Jones. Under these severance agreements, which became effective on June 17, 2020 and were subsequently amended on December 12, 2022, in the event that Ms. Wilson or Ms. Jones’s employment is terminated by the Company without cause (as defined in the severance agreements) or by Ms. Wilson or Ms. Jones for good reason (as defined in the severance agreements), subject to her execution and non-revocation of a general release of claims, Ms. Wilson or Ms. Jones, as applicable,
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would be entitled to receive (i) an amount in cash equal to the sum of (A) twelve months of her base salary, (B) a pro-rated bonus for the year in which her termination occurs, and (C) for Ms. Jones, an amount equal to six months of her average monthly sales commissions over the prior three year period and (ii) direct payment of or reimbursement for continued medical, dental or vision coverage pursuant to COBRA for up to twelve (12) months. In the event that Ms. Wilson’s or Ms. Jones’s employment is terminated either by the Company without cause or by Ms. Wilson or Ms. Jones, as applicable, for good reason, in either case, within three months prior to or twelve months following a change in control, then in lieu of the severance benefits described above, subject to her execution and non-revocation of a general release of claims and continued compliance with her restrictive covenant obligations, as described above, Ms. Wilson or Ms. Jones, as applicable, would be entitled to receive (i) an amount in cash equal to the sum of (A) her base salary plus (B) her target annual bonus for the year of termination and (C) for Ms. Jones, an amount equal to twelve months of her average monthly sales commissions over the prior three year period, (ii) direct payment of or reimbursement for continued medical, dental or vision coverage pursuant to COBRA for up to 12 months and (iii) accelerated vesting of all unvested equity or equity-based awards held by her that vest solely based on the passage of time, with any such awards that vest based on the attainment of performance-vesting conditions being governed by the terms of the applicable award agreement.
Other Elements of Compensation
Retirement, Health, Welfare and Additional Benefits
Our NEOs are eligible to participate in our employee benefit plans and programs, including medical, dental and vision benefits and life insurance, to the same extent as other full-time employees, subject to the terms and eligibility requirements of those plans. We also sponsor a 401(k) defined contribution plan in which our NEOs may participate, subject to limits imposed by the Internal Revenue Code of 1986, as amended, to the same extent as all of our other full-time employees. The plan allows us to make discretionary employer matching contributions equal to 100% of the first 3% and 50% of the next 2% of a participant’s deferral. Matching contributions are fully vested as of the date on which the contribution is made. We believe that providing a vehicle for tax-deferred retirement savings through our 401(k) plan adds to the overall desirability of our executive compensation package and further incentivizes our employees, including our NEOs, in accordance with our compensation policies. We do not provide our NEOs with perquisites or other personal benefits, other than the retirement and health and welfare benefits that apply uniformly to all of our eligible employees.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table sets forth information regarding the beneficial ownership of our Common Stock as of April 16, 2024 by:
Beneficial ownership is determined under SEC rules and regulations and generally includes securities over which a person has voting or investment power as well as certain securities a person has the right to acquire within 60 days, including through the exercise of any option, warrant or right or upon the conversion of another security. As a result, unless otherwise noted, the number of shares beneficially owned by each individual or entity in the table below includes (i) shares of Common Stock issuable upon exercise of warrants, (ii) shares of Common Stock issuable upon conversion of the Debentures and (iii) shares of Common Stock issuable upon exercise of stock options or RSUs that have vested or will vest within 60 days of the Record Date. However, shares of Common Stock that may be issuable to certain of our stockholders if the reported closing sale price of our Common Stock equals or exceeds $13.50 per share for any 20 consecutive trading days before December 19, 2024, the five-year period following the Closing Date (the “Contingent Shares”), are not treated as shares beneficially owned by such persons because satisfaction of the conditions to the person’s right to acquire the securities is not within such person’s control. For purposes of calculating a person’s beneficial ownership percentage, any shares a person has the right to acquire as outlined above are considered outstanding and beneficially owned by that person but are not treated as outstanding for the purpose of computing the beneficial ownership percentage of any other person.
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Except in cases where community property laws apply or as otherwise indicated in the footnotes to the table, we believe that all persons named in the table have sole voting and investment power with respect to all shares of common stock beneficially owned by them. The percentage of shares beneficially owned by each person is based on 43,086,267 shares of our common stock issued and outstanding as of April 16, 2024.
* Denotes less than 1%.
Includes (i) 4,984 shares of common stock held by Conifer Partners and (ii) 32,852 shares of common stock held by Radcliff Principal Holdings LLC. Does not include (i) 315 Contingent Shares that may be issuable to Conifer Partners
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and (ii) 2,077 Contingent Shares that may be issuable to Radcliff Principal Holdings LLC. Mr. Morgan has, or, in the case of the Contingent Shares, will have, voting and dispositive control over such shares of Common Stock and Contingent Shares.
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GENERAL INFORMATION ABOUT THE ANNUAL MEETING
Questions and Answers About the Annual Meeting
The following discussion addresses some questions you may have regarding the Annual Meeting. These questions and answers may not address all questions that may be important to you as a stockholder of the Company. Please refer to the more detailed information contained elsewhere in this Proxy Statement and the documents referred to or incorporated by reference in this Proxy Statement for additional information.
Why am I receiving this Proxy Statement?
The Company is soliciting proxies for the Annual Meeting. You are receiving a Proxy Statement because you owned shares of Common Stock at the close of business on April 16, 2024, the record date for the Annual Meeting (the “Record Date”), which entitles you to vote at the Annual Meeting. By use of a proxy, you can vote whether or not you participate in the Annual Meeting. This Proxy Statement describes the matters on which we would like you to cast a vote and provides information on those matters so that you can make an informed voting decision.
Why is KLDiscovery calling the Annual Meeting?
We are calling the Annual Meeting and submitting proposals to stockholders of the Company to consider and vote upon: (i) the election of the three Class B directors named in this Proxy Statement; (ii) the ratification of the appointment of our independent registered public accounting firm for the year ended December 31, 2024; (iii) an amendment to the Second Amended and Restated Certificate of Incorporation of KLDiscovery Inc.; and (iv) any other business that may properly come before the Annual Meeting or any adjournments or postponements thereof.
How does the Board of Directors recommend that I vote?
Our Board of Directors recommends that you vote FOR the election of each of the director nominees named in Proposal 1 and FOR Proposals 2 and 3.
What is the record date for the meeting?
Our Board of Directors has fixed the close of business on April 16, 2024 as the Record Date for determining the stockholders entitled to notice of, and to vote at, the Annual Meeting. On the Record Date, we had 43,086,267 shares of Common Stock outstanding and entitled to vote.
What do I need to do now?
After carefully reading and considering the information in this Proxy Statement, please vote your shares as described in “How do I vote?”.
How do I vote?
Stockholders of record may vote their shares via the Internet at www.proxyvote.com prior to the virtual Annual Meeting or at www.virtualshareholdermeeting.com/KLDI2024 during the virtual Annual Meeting. Stockholders of record may also vote by telephone prior to the meeting by dialing 1-800-690-6903. Stockholders that hold shares of Common Stock through a bank or broker may vote by following the instructions provided by such bank or broker. Stockholders that request a paper copy of our proxy materials may also vote by completing, dating, signing and promptly mailing the proxy card or voting instruction form in the envelope provided, which requires no postage if mailed in the United States.
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What vote is required for each item?
With respect to Proposal 1 (Election of Directors), each director must be elected by the affirmative vote of a plurality of the votes cast with respect to such director by the shares present in person or represented by proxy at the Annual Meeting and entitled to vote, provided a quorum is present. A plurality vote means the three director nominees who receive the highest number of shares voted “for” their election will be elected. With respect to Proposal 1, you may vote “for” or “withhold” authority to vote for each of the director nominees. Broker non-votes, if any, will have no effect on the vote for this proposal.
Approval of Proposal 2 (Ratification of Appointment of Independent Registered Public Accounting Firm) will require the affirmative vote of a majority of the votes cast (excluding abstentions and broker non-votes), provided a quorum is present. A majority of the votes cast means that the number of votes cast “For” a proposal exceeds the number of votes cast “Against” that proposal. With respect to Proposal 2, you may vote “for,” “against” or “abstain” from voting on this proposal. If you “abstain” from voting with respect to this proposal, your vote will have no effect on the proposal. Broker non-votes, if any, will have no effect on the vote for this proposal. This proposal is an advisory vote and, as such, is not binding on the Company.
Approval of Proposal 3 (Amendment of the Second Amended and Restated Certificate of Incorporation of KLDiscovery Inc.) will require the affirmative vote of a majority of the outstanding shares of the Company’s Common Stock. With respect to Proposal 3, you may vote “for,” “against” or “abstain” from voting on this proposal. If you “abstain” from voting with respect to this proposal, your vote will have the same effect as a vote “against” the proposal. Broker non-votes, if any, will have the same effect as a vote “against” this proposal.
What constitutes a quorum?
The presence, in person or by duly executed proxy, of stockholders holding shares representing a majority of all the votes entitled to be cast at the Annual Meeting will constitute a quorum. Shares are considered present “in person” if voted by the holder of those shares or by proxy during the virtual Annual Meeting. If a quorum is not present at the Annual Meeting, the Annual Meeting will be adjourned or postponed to solicit additional proxies.
How is the vote counted?
Holders of record of Common Stock on the Record Date will be entitled to one vote per share on any matter that may properly come before the Annual Meeting and any adjournments or postponements of the Annual Meeting.
Shares of our Common Stock represented at the Annual Meeting by properly executed proxies received prior to or at the Annual Meeting, and not revoked prior to or at the Annual Meeting, will be voted at the Annual Meeting, and at any adjournments, continuations or postponements of the Annual Meeting, in accordance with the instructions on the proxies.
If a proxy is duly executed and submitted without instructions, the shares of Common Stock represented by that proxy will be voted:
Can I revoke a proxy and change my vote?
Yes. You have the right to revoke your proxy at any time prior to the time your shares are voted at the Annual Meeting.
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A record holder who executes a proxy may revoke it or change its vote(s) before or at the Annual Meeting by: (i) delivering to our corporate secretary a written notice of revocation of a previously delivered proxy, with such notice dated after the previously delivered proxy; (ii) duly executing, dating and delivering to our corporate secretary a subsequent proxy; (iii) voting again over the Internet or by telephone; or (iv) participating in the Annual Meeting and voting at that time. Participation at the Annual Meeting will not, in and of itself, constitute revocation of a proxy. Any written notice revoking a proxy should be delivered to KLDiscovery Inc., Attn: General Counsel and Secretary, 9023 Columbine Road, Eden Prairie, MN 55347.
If your shares of Common Stock are held in a brokerage account or through any other nominee, you must follow your broker's or nominee’s instructions to revoke a proxy.
May I vote during the virtual Annual Meeting?
Yes. If you were a stockholder of record as of the close of business on April 16, 2024, you may participate in the virtual Annual Meeting and vote your shares during the Annual Meeting instead of voting in advance by Internet or telephone or returning your signed proxy card (if you request a paper copy). However, we urge you to vote in advance even if you are planning to participate in the Annual Meeting.
How do I vote if my shares are held in "street name" by my bank, broker or other agent or nominee?
If you are a beneficial owner of shares registered in the name of your broker, bank, or other agent or nominee, you should have received voting instructions with these proxy materials from that organization rather than from us. Simply follow the voting instructions provided by your broker, bank or other agent or nominee to ensure that your vote is counted. To vote in person at the Annual Meeting, you must obtain a valid proxy from your broker, bank, or other agent or nominee. Follow the instructions from your broker, bank or other agent or nominee included with these proxy materials or contact your broker, bank or other nominee to request a proxy form.
If my shares are held in "street name" by a broker, will my broker vote my shares for me even if I do not give my broker voting instructions?
Beneficial owners who hold their shares in street name should follow the instructions on the voting instruction form provided to you with these proxy materials. Banks, brokers and other nominees holding shares must vote according to specific instructions they receive from the beneficial owners of those shares. If you are a beneficial owner of shares held in street name and do not provide the bank, broker or other nominee that holds your shares with specific voting instructions, the nominee may in some cases vote the shares in its discretion, but is not permitted to vote on certain proposals and may elect not vote on any of the proposals. If you do not provide voting instructions and the nominee that holds your shares elects to vote your shares on some but not all matters, it will result in a “broker non-vote” for the matters on which the broker does not vote. Broker non-votes will be counted for the purpose of determining the presence or absence of a quorum at the Annual Meeting, but may not be counted for the purpose of determining the number of votes cast on certain matters. We encourage you to provide specific instructions to your broker, bank or other agent or nominee by returning your voting instruction form or by voting electronically via the Internet or by telephone, if permitted by the broker, bank or other agent or nominee that holds your shares. This ensures that your shares will be properly voted at the Annual Meeting.
Who will count the votes?
Representatives of Broadridge Financial Solutions, Inc. will count the votes and serve as the independent inspector of election.
When and where is the Annual Meeting?
The Annual Meeting will be held virtually on Thursday, June 13, 2024, at 10:30 A.M., EDT. The Annual Meeting will be a completely virtual meeting of stockholders, conducted solely via live audio webcast. The virtual meeting link is www.virtualshareholdermeeting.com/KLDI2024.
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How do I log-in to the Annual Meeting?
To participate in the virtual Annual Meeting, log in at www.virtualshareholdermeeting.com/KLDI2024. Stockholders will need their unique 16-digit control number which appears on the Notice Regarding the Availability of Proxy Materials, the proxy card (printed in the box and marked by the arrow) and the instructions that accompany the proxy materials. If your shares are held in street name and your voting instruction form or Notice of Internet Availability indicates that you may vote those shares through the http://www.proxyvote.com website, then you may access, participate in and vote at the Annual Meeting with the 16-digit access code indicated on that voting instruction form or Notice of Internet Availability. Otherwise, if you hold your shares in street name, please contact your broker, bank, or other nominee as soon as possible (preferably at least 5 days before the annual meeting), to obtain a "legal proxy" in order to be able to attend, participate in or vote at the Annual Meeting.
How do I submit a question at the Annual Meeting?
As part of the Annual Meeting, we will hold a live Q&A session, during which we will answer questions submitted during the Annual Meeting which are pertinent to the Company and the meeting matters, as time permits. If you wish to submit a question during the Annual Meeting, visit www.virtualshareholdermeeting.com/KLDI2024, type your question into the “Ask a Question” field, and click “Submit.” Answers to any such questions that are not addressed during the Annual Meeting will be published following the meeting on the Company’s website at www.investors.kldiscovery.com under the link “Governance”. Questions and answers may be grouped by topic and substantially similar questions will be grouped and answered once. We reserve the right to edit or reject questions we deem profane or otherwise inappropriate.
Who pays the costs for soliciting proxies by KLDiscovery?
We are soliciting proxies for the Annual Meeting from our stockholders and we will bear the entire cost of soliciting proxies from our stockholders. Copies of solicitation materials will be furnished to brokerage houses, fiduciaries and custodians holding Common Stock for the benefit of others so that such brokerage houses, fiduciaries and custodians may forward the solicitation materials to such beneficial owners. We may reimburse persons representing beneficial owners of Common Stock for their expenses in forwarding solicitation materials to those beneficial owners. Original solicitation of proxies by mail may be supplemented by telephone or personal solicitation by our directors, officers or other employees of the Company. No additional compensation will be paid to our directors, officers or other employees for these services.
What happens if the meeting is adjourned?
If a quorum is not present at the Annual Meeting, the Annual Meeting may be adjourned from time to time by the chairperson of the Annual Meeting or upon the approval of the holders of shares representing a majority of the votes present in person or by proxy at the Annual Meeting, until a quorum is present. Any business may be transacted at the adjourned meeting which might have been transacted at the meeting originally noticed. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
May I see a list of stockholders entitled to notice of the meeting as of the record date?
A list of the names of stockholders entitled to vote at the Annual Meeting will be available for examination by any stockholder for 10 days before the Annual Meeting for any purpose relevant to the Annual Meeting at www.proxyvote.com. Such list will also be available during the virtual Annual Meeting for examination by any stockholder at www.virtualshareholdermeeting.com/KLDI2024.
Who should I contact if I have technical issues accessing the virtual Annual Meeting?
Online access to the audio webcast will open approximately thirty minutes prior to the start of the Annual Meeting to allow time for you to log in and test your computer audio system. We encourage stockholders to access the meeting prior to the start time. If you encounter any difficulties accessing the Annual Meeting during the check-in or meeting time, please call the technical support number that will be posted on the Annual Meeting website log-in page.
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Who can help answer my questions regarding the Annual Meeting or the proposals?
You may contact KLDiscovery to assist you with questions about the Annual Meeting. You may reach KLDiscovery at:
KLDiscovery Inc.
Attention: Dawn Wilson
9203 Columbine Road
Eden Prairie, MN 55347
dawn.wilson@kldiscovery.com
(571) 424-0818
Other Matters
Delivery of Documents to Stockholders Who Share an Address
The SEC's rules permit the Company to deliver a single set of Annual Meeting materials to one address shared by two or more of the Company's stockholders. The Company has delivered only one Notice or Proxy Statement and Annual Report (where paper copies were previously requested) to multiple stockholders who share an address, unless the Company received contrary instructions from the affected stockholders prior to the mailing date. The Company will promptly deliver, upon written or oral request, a separate copy of the Notice or separate paper copies of all Annual Meeting materials, as requested, to any stockholder at the shared address to which a single copy of those documents was delivered. If you prefer to receive separate copies of the Notice or the Proxy Statement or Annual Report (where paper copies were previously requested), contact KLDiscovery Inc., 9023 Columbine Road, Eden Prairie, MN 55347, Attention: Dawn Wilson, Investor Relations, emailing us at dawn.wilson@kldiscovery.com or calling us at (571) 424-0818.
Stockholders sharing an address can request delivery of a single copy of the Annual Meeting materials, if they are currently receiving multiple copies of the Annual Meeting materials, by writing to KLDiscovery Inc., 9023 Columbine Road, Eden Prairie, MN 55347 Attention: Dawn Wilson, Investor Relations, emailing us at dawn.wilson@kldiscovery.com or calling us at (571) 424-0818.
Where You Can Find More Information
We are subject to the information filing requirements of the Exchange Act and, in accordance with the Exchange Act, file certain reports and other information with the SEC relating to our business, financial condition and other matters. Electronic copies of these materials are available on the SEC website at http://www.sec.gov.
Any person from whom proxies for the meeting are solicited may obtain, if not already received, from the Company, without charge, a copy of the Company's Annual Report, by written request addressed to KLDiscovery Inc., 9203 Columbine Road, Eden Prairie, MN 55347, Attention: Investor Relations Department. The Annual Report is not soliciting material and is not incorporated into this document by reference.
In order to obtain any documents, you request from the Company in time for the Annual Meeting, you must request the documents from the Company by Thursday, May 30, 2024, which is ten business days prior to the date of the Annual Meeting.
Proposals by our Stockholders
Stockholder proposals intended for inclusion in next year's proxy statement under Rule 14a-8 of the Exchange Act should be sent to our principal executive offices and must be received by the close of business 5:00 P.M., EST on December 30, 2024. The proposal must comply with the SEC regulations under Rule 14a-8 of the Exchange Act regarding the inclusion of stockholder proposals in our proxy materials. As the rules of the SEC make clear, simply submitting a proposal does not guarantee that it will be included in the Proxy Statement.
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Additionally, our Bylaws provide that stockholders desiring to nominate a director or bring any other business before the stockholders at an annual meeting must notify our corporate secretary of this proposal in writing not later than 90 days nor earlier than 120 days prior to the first anniversary of the preceding year's annual meeting of stockholders. Accordingly, for our 2025 annual meeting of stockholders, any notification must be made no earlier than February 13, 2025 and no later than the close of business 5:00 P.M., EDT on March 15, 2025. If the date of the meeting is more than 30 days before or after such anniversary date, then notice must be received not later than the 90 days prior to such annual meeting or, if later, the tenth day following the day on which public disclosure of the date of such annual meeting was first made. The stockholder must be a stockholder of record both at the time of giving notice and at the time of the annual meeting. Stockholders are advised to review our Bylaws, which contain additional requirements with respect to advance notice of stockholder proposals. The fact that the Company may not insist upon compliance with these requirements should not be construed as a waiver of our right to do so at any time in the future.
In addition to satisfying the foregoing requirements under KLDiscovery’s advance notice provisions of our Bylaws, to comply with the universal proxy rules, stockholders who intend to solicit proxies in support of director nominees other than KLDiscovery’s nominees under these advance notice provisions must provide notice that sets forth the information required by Rule 14a-19 to the Secretary of the Company under the Exchange Act no later than the close of business 5:00 P.M., EDT on April 14, 2025.
2023 Annual Report on Form 10-K
A copy of our 2023 Annual Report on Form 10-K, including financial statements, as filed with the SEC may be obtained without charge upon written request to: Corporate Secretary, KLDiscovery Inc., 9203 Columbine Road, Eden Prairie, MN 55347. It is also available on our investor relations website at www.investors.kldiscovery.com.
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