Nuvera Communications, Inc 10-K/A for FY2022
Nuvera Communications, Inc. (NUVR)
About this 10-K/A
Nuvera Communications, Inc filed this 10-K/A on April 5, 2023, covering the fiscal year ended December 31, 2022 (FY2022).
Headline figures
Fiscal year ended December 31, 2022, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $65.71M
- down 0.2% from $65.84M a year earlier
- Net income
- $7.2M
- down 41.3% from net income of $12.25M a year earlier
- Diluted EPS
- $1.41
- down 40.0% from $2.35 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT No 1 TO FORM 10-K ON FORM
(
For the fiscal year ending
For the transition period from______to______
Commission File Number:
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation or organization) |
| (I.R.S. Employer Identification No.) |
(Address of principal executive offices)
Registrant's telephone number, including area code: (
Securities registered pursuant to Section 12 (g) of the Act:
Title of each class Trading Symbol Name of each exchange on which registered
Common Stock - $1.66 par value NUVR OTCQB Marketplace
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes ☐
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “non-accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. ☐ Large accelerated filer ☐ Accelerated filer ☒
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report.
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No
| Title of each class | Trading Symbol | Name of each exchange on which registered |
| | | OTCQB Marketplace |
The aggregate market value of the registrant’s common stock held by non-affiliates computed by reference to the price at which the common stock was sold, as of the last business day of the registrant’s most recently completed second fiscal quarter was $
As of March 16, 2023, the registrant had
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant’s Proxy Statement for the 2023 Annual Meeting of Stockholders to be held on May 25, 2023 are incorporated herein by reference in Part III of this Annual Report on Form 10-K to the extent stated herein. Such proxy statement will be filed with the Securities and Exchange Commission within 120 days of the registrant’s fiscal year ended December 31, 2022.
Note to Amendment No. 1 to Form 10-K on Form 10-K/A.
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TABLE OF CONTENTS
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NOTE ABOUT FORWARD LOOKING STATEMENTS
The Securities and Exchange Commission (SEC) encourages companies to disclose forward-looking information so that investors can better understand a company’s future prospects and make informed investment decisions. Certain statements in this Annual Report on Form 10-K, including those relating to the impact on future revenue sources, pending and future regulatory orders, continued expansion of the fiber communications network and expected changes in the sources of our revenue and cost structure resulting from our entrance into new communications markets, are forward-looking statements and are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These statements reflect, among other things, our current expectations, plans and strategies, and anticipated financial results. These forward-looking statements reflect, among other things, our current expectations, plans, strategies, and anticipated financial results. There are a number of risks, uncertainties and conditions that may cause the actual results of Nuvera Communications, Inc. and its subsidiaries (“Nuvera,” the “Company,” “we” or “our” or “us”) to differ materially from those expressed or implied by these forward-looking statements. Many of these circumstances are beyond our ability to control or predict. Moreover, forward-looking statements necessarily involve assumptions on our part. These forward-looking statements generally are identified by the words “believe,” “expect,” “anticipate,” “estimate,” “project,” “intend,” “plan,” “should” “may,” “will,” “would,” “will be,” “will continue,” or similar expressions. These forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause actual results, performance or achievements to be different from those expressed or implied in the forward-looking statements. These risks and uncertainties may include, but are not limited to: i) unfavorable general economic conditions that could negatively affect our operating results; ii) substantial regulatory change and increased competition; iii) our possible pursuit of acquisitions could be expensive or not successful; iv) we may not accurately predict technological trends or the success of new products; v) shifts in our product mix may result in declines in our operating profitability; vi) possible consolidation among our customers; vii) a failure in our operational systems or infrastructure could affect our operations; viii) data security breaches; ix) possible replacement of key personnel; x) elimination of governmental network support we receive; xi) our current debt structure may change due to increases in interest rates or our ability to comply with lender loan covenants and xii) possible customer payment defaults. For these forward-looking statements, we claim the protection of the safe harbor for forward-looking statements contained in federal securities laws. Shareholders and the investing public should understand that these forward-looking statements are subject to risks and uncertainties which could affect our actual results and cause actual results to differ materially from those indicated in the forward-looking statements. All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements that appear throughout this report. Furthermore, these statements speak only as of the date they are made. Except as required under federal securities laws or the rules and regulations of the SEC, we disclaim any intention or obligation to update or revise publicly any forward-looking statements. Undue reliance should not be placed on forward-looking statements.
Website Access to SEC Reports
Our website at www.nuvera.net provides information about our products and services, along with general information about Nuvera and its management and financial results. Copies of our most recent Annual Report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, can be obtained, free of charge, as soon as reasonably practical after these reports are electronically filed or furnished to the SEC. To obtain this information, visit our website noted above and select “About Us – Investors” to view Nuvera SEC filings,” or call (844) 354-4111. The SEC also maintains a website at www.sec.gov that contains reports, proxy and information statements, and other information regarding public companies, including Nuvera Communications, Inc. Any reports filed with the SEC may also be obtained from the SEC’s Reference Room at 100F Street, NE, Washington, DC 20549.
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Code of Business Conduct and Ethics
Our Board of Directors (BOD) has adopted a Code of Business Conduct and Ethics that is applicable to all directors, the chief executive officer (CEO), chief financial officer (CFO) and to all other employees of Nuvera. All employees of Nuvera have undergone training on this Code of Business Conduct and Ethics. The information required by Item 406 of Regulation S-K is contained under “Code of Business Conduct” in the definitive proxy statement (2023 Proxy Statement) and is incorporated by reference. Our BOD has also adopted written charters for its committees that comply with the NASDAQ Global Select Market. Copies of the committee charters are available on our website above or by contacting us at (844) 354-4111.
PART I
Item 1. Business
Company Overview and History
Nuvera is a diversified communications company headquartered in New Ulm, Minnesota with more than 117 years of experience in the communications business. We operate in one principal business segment: the Communications Segment.
Our principal line of business is the operation of seven communications companies. Our original business was founded in 1905 and consisted of the operation of a single communications company (New Ulm Rural Telephone Company). In 1984, we changed our name to New Ulm Telecom, Inc. In 1986, we acquired Western Telephone Company (WTC). In 1993, we acquired Peoples Telephone Company (PTC). In 2008, we acquired Hutchinson Telephone Company (HTC). In 2012, we acquired Sleepy Eye Telephone Company (SETC). In 2018, we acquired Scott-Rice Telephone Co. (Scott-Rice). Our businesses consist of connecting customers to our advanced fiber communications network, providing managed services, switched service and dedicated private lines, connecting customers to long distance service providers and providing many other services associated with our businesses. Our businesses also provide Internet protocol television (IPTV), cable television services (CATV), Internet access services, including high-speed broadband access, and long distance service. We also install and maintain communications systems to the areas in and around our service territories in southern Minnesota and northern Iowa. In 2008 we acquired Hutchinson Telecommunications, Inc. This company operates in and around the city of Litchfield, Minnesota and operates under less regulatory oversight than our other communications companies. In 2010, we acquired the cable TV system in the city of Glencoe and operate Glencoe under the Hutchinson Telecommunications, Inc. communications company. This company offers the same services as our other communications companies. In 2000, we changed our marketing name to NU-Telecom and operated under that name in our markets. In 2018, we changed our marketing name to Nuvera and currently operate under that name in our markets.
We are closely monitoring the impact on our business of the coronavirus (COVID-19) pandemic. For a discussion of the risks related to COVID-19, refer to Part I – Item 1A – “Risk Factors” and Part II – Item 7 – “Management’s Discussion and Analysis of Financial Condition and Results of Operations”.
Recent Business Development
On December 15, 2021, the Company announced plans to build and deploy gigabit-speed (Gig or Gbps) fiber Internet across its network creating crucial access to the fastest speeds available for rural communities, small cities and suburban areas across Minnesota. “This is a transformational moment for Nuvera as we make a future-focused investment in the communities we serve by providing the most reliable fiber-to-the-premise (FTTP) access to Gig-speed services,” said Glenn Zerbe, CEO. “Our homes, businesses and communities need reliable and affordable connections to school, workplaces and entertainment, as an important and growing part of everyday life.” “Nuvera’s investment in fiber-to-the-home (FTTH) network infrastructure will allow more underserved communities across Minnesota to leverage the quality of life and economic opportunity that access to a state-of-the-art network provides now and for years to come,” said State Senator Nick Frentz, DFL-North Mankato. Nuvera’s Gig-speed end-to-end fiber network is building and rolling out now. Service will be available for thousands of customers in 2022. The company will continue to build and deploy the Gig-speed service over the next few years. “We’re excited to create ‘Nuvera Gig Cities’ in the communities we serve while also expanding access to fiber-based Internet service at a range of speeds,” said Zerbe. “Nuvera’s fiber network gives customers affordable access to a range of speeds from 100 Megabits per second (Mbps) to 1 Gig at prices that are the same whether you’re in rural Goodhue or suburban Prior Lake.”
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While Nuvera’s goal is to bring Gig-speed service to as many communities as possible, the initial buildout will focus on the following cities and surrounding communities:
● New Ulm
● Hutchinson
● Glencoe
● Goodhue
● Litchfield
● Redwood Falls
● Prior Lake
● Elko New Market
● Savage
● Sleepy Eye
● Springfield
● Aurelia, IA
Nuvera’s fiber Internet prices range from $50 per month to $125 per month for Gig-speed services. Customers can choose the right speed at an affordable price, including low-income households through Federal programs.
The Communications Segment operates the following communications companies and has investment ownership interests as follows:
Communications Segment
| ● | Communications Companies: | ||
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| Nuvera Communications, Inc., the parent company; |
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| Hutchinson Telephone Company, a wholly-owned subsidiary of Nuvera; |
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| Peoples Telephone Company, a wholly-owned subsidiary of Nuvera; |
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| Scott-Rice Telephone Co., a wholly-owned subsidiary of Nuvera; |
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| Sleepy Eye Telephone Company, a wholly-owned subsidiary of Nuvera; |
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| Western Telephone Company, a wholly-owned subsidiary of Nuvera; and |
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| Hutchinson Telecommunications, Inc., a wholly-owned subsidiary of HTC, located in Litchfield and Glencoe, Minnesota |
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| ● | Our investments and interests in several of the following entities include some management responsibilities: | ||
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| FiberComm, LC (FiberComm) – 20.00% subsidiary equity ownership interest. FiberComm is located in Sioux City, Iowa; |
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| Broadband Visions, LLC (BBV) – 24.30% subsidiary equity ownership interest. BBV provides video headend and Internet services; |
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| Independent Emergency Services, LLC (IES) – 14.29% subsidiary equity ownership interest. IES is a provider of E-911 services to the State of Minnesota as well as a number of counties located in Minnesota; and |
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| Fiber Minnesota, LLC (FM) – 7.54% subsidiary equity ownership interest. FM is a Minnesota state-wide network that provides connectivity for regional businesses. |
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We report the business operations of our seven communications companies and their associated services as a single segment that we refer to as the Communications Segment.
The Communications Segment operates the following communications companies: Nuvera, HTC, PTC, Scott-Rice, SETC, WTC and Litchfield, Minnesota. Nuvera, HTC, Scott-Rice, SETC, WTC and Litchfield are independent communications companies that are regulated by the Minnesota Public Utilities Commission at the state level, while PTC is an independent communications company that is regulated by the Iowa Utilities Board at the state level. Our communications companies located in Redwood Falls and Litchfield are currently not under the same level of regulatory oversight as our other communications companies. As of December 31, 2022 we served 32,675 broadband connections and 15,426 access lines in the Minnesota communities of Bellechester, Courtland, Evan, Goodhue, Hanska, Hutchinson, Klossner, Litchfield, Mazeppa, Elko New Market, New Ulm, Prior Lake, Redwood Falls, Sanborn, Savage, Searles, Sleepy Eye, Springfield and White Rock, as well as the adjacent rural areas of Blue Earth, Brown, Goodhue, McLeod, Meeker, Nicollet, Redwood, Rice, Scott and Wabasha counties in south central Minnesota. We also serve the community of Aurelia, Iowa as well as the adjacent rural areas surrounding Aurelia. The Communications Segment also operates multiple IPTV and CATV systems in Minnesota (including the cities of Cologne, Courtland, Glencoe, Goodhue, Hanska, Hutchinson, Litchfield, Mayer, Elko New Market, New Germany, New Ulm, Plato, Prior Lake, Redwood Falls, Sanborn, Savage, Sleepy Eye and Springfield) and one IPTV system in Aurelia, Iowa. These systems serve 9,099 customers.
The Communications Segment derives its principal revenues from (i) voice service charges to its residential and business subscribers, (ii) access charges to Interexchange Carriers (IXCs) for providing the carriers access to our local phone networks and (iii) the provisioning of video and data services.
None of our communications companies are dependent upon any single customer or small group of customers. No single customer accounted for 10% or more of our consolidated revenues in any of the last two years.
We provide a variety of business communication services to small, medium and large business customers, including many services over our advanced fiber-optic (fiber) network. The services we offer include scalable high speed broadband Internet access and voice over Internet protocol (VoIP) phone services, which range from basic service plans to virtual hosted systems. Our hosted VoIP package utilizes our soft switching technology and enables our customers to have the flexibility of employing new telephone advances and features without investing in a new telephone system. This package includes voice service, calling features, IP business telephones and unified messaging, which integrates multiple technologies into a single system and allows the customer to receive and listen to voice messages through e-mail.
In addition to Internet and VoIP services, we also offer a variety of commercial data connectivity services in select markets including private line and Ethernet services to provide high bandwidth across point-to-point and multiple site networks.
We receive the majority of our revenues through the following sources:
Voice Service – We receive recurring revenue for basic voice services that enable end-user customers to make and receive telephone calls within a defined local calling area for a flat monthly fee. In addition to subscribing to basic local telephone services, our customers may choose from multiple voice service plans with a variety of custom calling features such as call waiting, call forwarding, caller identification and voicemail. Our VoIP digital phone service is also available as an alternative to the traditional telephone line.
Network Access – We provide access services to other communications carriers for the use of our facilities to terminate or originate long distance calls on our fiber network. Additionally, we bill monthly subscriber line charges (SLCs) to substantially all of our customers for access to the public switched network. These monthly SLCs are regulated and approved by the Federal Communications Commission (FCC). In addition, network access revenue is derived from several federally administered pooling arrangements designed to provide support and distribute funding to us.
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Video Service – We provide a variety of enhanced video services on a monthly recurring basis to our customers. Depending on geographical market availability, our video services range from limited basic service to advanced digital TV, which includes several plans each with hundreds of local, national music channels including premium and pay-per-view channels as well as video-on-demand service. Certain customers may also subscribe to our advanced video services, which consist of high-definition (HD) TV, digital video recorders (DVR) and Whole Home DVR. Our Whole Home DVR allows customers the ability to watch recorded shows on any TV in the house, record multiple shows at one time and utilize an intuitive on-screen guide and user interface. Video subscribers also have access to our TV Everywhere service which allows subscriber access to full episodes of available shows, movies and live screens using a computer or mobile device. We also receive monthly recurring revenue from our subscribers for providing commercial TV programming in competition with local CATV, satellite dish TV and off-air TV service providers. We serve twenty-two communities with our IPTV services and five communities with our CATV services.
Data Service – We provide high speed Internet to business and residential customers depending on the nature of the network facilities that are available, the level of service selected and the location. Our revenue is earned based on the offering of various flat rate packages based on the level of service, data speeds and features. We also provide e-mail and managed services, such as web hosting and design, on-line file back up and on-line file storage.
Alternative Connect America Cost Model (A-Cam)/Federal Universal Service Fund (FUSF) – The Company currently receives funding based on the A-CAM, with the exception of Scott-Rice, which receives funding from the FUSF. Scott-Rice’s settlements from the National Exchange Carriers Association (NECA) pools are based on nationwide average schedules, which includes the pooling and redistribution of revenues based on a company’s actual or average costs. See below for a discussion regarding A-CAM and FUSF.
Other – Our customers are billed for toll and long-distance services on either a per call or flat-rate basis. This also includes the offering of directory assistance, operator service and long distance private lines. We also generate revenue from directory publishing through an outside vendor, sales and service of customer premise equipment (CPE), bill processing and other customer services. Our directory publishing revenue in our telephone directories recurs monthly. We also provide retail sales and service of cellular phones and accessories through Telespire, a national wireless provider. We resell these wireless services as Nuvera Wireless, our branded product. We receive both recurring revenue for our wireless services, as well as revenue collected for the sale of wireless phones and accessories.
Sales and Marketing
The key components of our overall marketing strategy include:
● Positioning ourselves as a single point of contact for our customers’ communications needs;
● Providing customers with a broad array of data, voice and communications solutions;
● Identifying and broadening commercial customer needs by developing solutions and providing integrated service offerings;
● Offering digital self-service tools and apps including an enhanced website, automated consumer online orders, appointment reminders, robust wireless home networking (Wi-Fi) apps, user guides and troubleshooting tools and videos;
● Providing excellent customer service, including centralized customer support to coordinate installation of new services, repair and maintenance functions and creating more self-service tools through our online customer portal;
● Developing and delivering new services to meet evolving customer needs and market demands; and
● Leveraging our local presence and strong reputation across our market areas.
We currently offer our services through customer service call centers, our website and commissioned sales representatives. Our customer service call centers and dedicated sales teams serve as the primary sales channels for consumer, commercial and carrier services. Our sales efforts are supported by digital media, direct mail, bill inserts, radio, TV and Internet advertising, public relations activities, community events and customer promotions. We sell our Gig consumer fiber broadband service through our fiber network, which we launched in late 2021 in select markets.
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In addition to our customer service call centers, customers can contact us through our website, online chat and social media channels. Our online customer portal enables customers to pay their bills, manage their accounts, order new services and utilize self-service help and support. Our priority is to continue enhancing our comprehensive customer care system in order to produce a high level of customer satisfaction and loyalty, which is important to our ability to reduce churn and generate recurring revenues.
Business Strategies
Transform our Company into a dominant fiber; gig broadband provider
On December 15, 2021, the Company announced plans to build and deploy Gig-speed fiber Internet across its network creating crucial access to the fastest speeds available for rural communities, small cities and suburban areas across Minnesota. The five-year build plan, which began in late 2021, will when complete, include approximately 60,000 location passings to fiber enabling Gig-capable services by 2025. In 2022, we upgraded 11,133 locations with fiber services and faster broadband speeds and plan to upgrade more than 17,000 locations in 2023. This marks the biggest fiber deployment project in our Company’s history. In addition, to best-in-class upload and download speeds, we believe the resulting fiber network will offer better reliability, improved speed consistency, and a lower operating cost relative to competing broadband network technologies. Given these benefits, we believe that our fiber deployment strategy will allow us to realize meaningful improvements to our operating results, broadband subscriber penetration and customer retention.
We believe our customers place a value on the fact that we are a local company whose goal is to meet their total communications needs. The success of this vision depends on the following strategies:
● We have and will continue to upgrade our fiber networks through our five-year build plan and enhance our products and services to take advantage of the latest technology including advanced high-bandwidth capabilities and services, expansion of our fiber network for wholesale and retail customers, Fiber-to-the-Tower services for wireless carriers and last mile fiber builds to residential and business customers. We intend to continue to introduce new services that draw upon our core competencies and we believe are attractive to our target customers. In considering new services and market expansion, we look for market opportunities that we believe present growth opportunities.
● As consumer demands for bandwidth continue to increase, our focus is on enhancing our broadband services, and progressively increasing broadband speeds. We began an extensive FTTP overbuild in portions of New Ulm in 2021 and all of our service territories in 2022. We currently offer speeds of up to 1 Gbps in select areas where fiber is available, and up to 100 Mbps and 60 Mbps in areas where 1 Gbps is not yet available. As we continue to increase broadband speeds, we are also able to simultaneously expand the array of services and content offerings that the fiber network provides.
● We market services to our residential and business customers. Data connections continue to increase as a result of consumer trends towards increased Internet usage and our enhanced product and service offerings.
● Our consumer broadband speed allows us to continue to meet the needs of our customers and the demand for higher speed resulting from the growing trend of over-the-top (OTT) content viewing. The availability of faster speeds also complements our Wi-Fi and supports our TV everywhere service and allows our subscribers to watch their favorite programs at home or away on a computer, smartphone or tablet.
● We tailor our services to commercial customers by developing solutions to fit their specific needs. We provide services to a wide range of commercial customers from sole proprietors and other small businesses to multi-location corporations. Our business suite of services includes local and long-distance calling plans, hosted voice services using network servers, the added capacity for multiple phone lines, scalable broadband Internet, online back up and business directory listings.
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● We believe that we have several advantages over our competition, including an advanced fiber communications network, competitive pricing and costs, outstanding service quality, a strong reputation, a high level of commitment to the communities we serve and a direct billing relationship with a vast majority of the customers we serve in our service territories. We manage the potential decline in communications network access and voice service revenues by offering value-added services such as higher Internet speeds, HD IPTV, DVR services, managed services, customized communications solutions, along with outstanding customer service as a competitive differentiator.
● We continue to seek ways to improve our internal processes and gain operational efficiencies. While focusing resources on revenue growth and market share gains, we continually challenge our management team and employees at all levels to seek efficiencies and enhance our customers’ experience. We continue to invest in our fiber networks and train our employees to achieve customer service excellence.
● Our current customer base provides a recurring revenue stream generating stable cash flow. Our focus remains on growing our services and supporting product lines so as to generate sufficient cash flow to fund our current operations, service our debt, fund our capital expenditure needs, pay dividends and expand our business. We have allocated resources to maintain and upgrade our fiber network while focusing on optimizing returns by completing strategic capital outlays that will make our fiber network more efficient and cost effective while providing the products and services that our customers desire in the markets we serve.
● We intend to continue to pursue a disciplined process of evaluating acquisitions of businesses as well as organic growth opportunities of market expansion and/or products which are complementary to our business portfolio.
● Across all of our service territories, we have successfully managed capital expenditures to optimize returns through disciplined planning and targeted investment of capital. For example, strategic investments in our fiber networks allows significant flexibility to expand our commercial footprint, offer competitive products and services and provide services in a cost-efficient manner while maintaining our reputation as a high-quality service provider. We will continue to invest in strategic growth initiatives to enhance and expand our fiber network to new markets and customers in order to optimize new business, backhaul and wholesale opportunities.
● Commercial services are expected to be a key growth area in the future. We are focused on enhancing our broadband and commercial product suite and are continually enhancing our commercial product offerings to meet the needs of our business customers. We overbuilt our existing networks with advanced fiber networks in the commercial areas of New Ulm, Prior Lake and Hutchinson in 2021, 2020 and 2019. We tailor our services for business customers by developing solutions to fit their specific needs. Additionally, we are continuously enhancing our suite of managed and cloud services, which increases efficiency and enables greater scalability and reliability for businesses. We are utilizing multiple software platforms to gather relevant leads and for customer relations management.
● In addition to Internet and VoIP services, we also offer a variety of commercial data connectivity services in select markets including Ethernet services; software defined wide area network (SD-WAN), a software-based network technology that provides a simplified management and automation of SD-WAN connections; multi-protocol label switching; and private line services to provide high bandwidth connectivity across point-to-point and multiple site networks. We offer a suite of cloud-based services, which includes a hosted unified communications solution that replaces the customer’s on-site phone systems and data networks, managed network security services and data protection services, including back-up and disaster recovery.
Competition
We compete in a rapidly evolving and highly competitive industry, and expect competition will continue to intensify as consolidations and mergers occur within the industry. Regulatory developments and technological advances over the past several years have increased opportunities for alternative communications service providers, which in turn have increased competitive pressures on our business. These alternative providers often face fewer regulations and have lower cost structures than we do. In addition, several of our competitors have consolidated with other communication providers and as a result are generally larger, have more financial and business resources and have greater geographical reach to provide services. Our competitive advantages include: our strong commitment and presence in the communities we serve, knowledge of these markets, our experienced voice service and support team, and our ability to offer more flexible communications solutions than our larger competitors.
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The long-range effect of competition on the delivery of communications services and equipment will depend on technological advances, regulatory actions at both the federal and the state levels, court decisions, and possible additional future federal and state legislation. Past federal and state legislation have tended to expand competition in the communications industry.
Alternatives to our service include customers leasing private line switched voice and data services in or adjacent to our service territories that permit the bypassing of our communications facilities. In addition, microwave transmission services, wireless communications, fiber/coaxial cable deployment, VoIP, satellite and other services also permit the bypassing of our local exchange network. These alternatives to local exchange service represent a potential threat to our long-term ability to provide local exchange services at economical rates.
In order to meet competition present in our industry, we are deploying the latest FTTH technology to deliver our data, video and voice services at a higher bandwidth, enabling us to provide our services at much higher speeds.
We compete in the cities of Redwood Falls, Litchfield and Glencoe, Minnesota. These communications companies are currently not under the same level of regulatory oversight as our communications companies. Lumen Technologies is the existing communications company in these markets. Competition also exists in the other communities and areas served by us for traditional telephone service from wireless communications providers and we also expect competition to increase from service providers offering VoIP. We experience competition in the Minnesota communities of Glencoe, Hutchinson, Litchfield, Elko New Market, New Ulm, Prior Lake, Redwood Falls, Savage, Sleepy Eye and Springfield in the provisioning of video services. Comcast is the existing incumbent provider of video services in the New Ulm market. Mediacom is the existing incumbent provider of video services in the Hutchinson, Litchfield, Elko New Market, Prior Lake, Redwood Falls, Savage, Sleepy Eye and Springfield markets. Several other communications providers compete with us in our markets in providing Internet services. We have responded to these competitive pressures by creating active programs to market our products and enhance our infrastructure to create higher customer value.
We are experiencing competition for some of our other services from IXCs, such as customer billing services, dedicated private lines and network switching. The provisioning of these services is contractual in nature and is primarily directed by the IXCs. Other services, such as directory advertising, operator services and cellular communications are open to competition, based primarily on service and customer experience.
We expect competition to remain a significant factor affecting our operating results and that the nature and extent of that competition will continue to increase in the future. See Part I – Item 1A – “Risk Factors – Risks Relating to Our Business”.
Human Capital Resources
As of December 31, 2022, we employed approximately 213 employees, including part-time employees. We also use temporary employees in the normal course of our business. Our employees are the cornerstone of our success. We are committed to providing meaningful, challenging work and opportunities for professional growth in a positive environment. To attract and retain qualified and experienced employees, we offer compensation and benefit packages, which we believe are competitive within the industry and the local markets in which we operate. Our benefit packages, may include, among other items, incentive compensation based on the achievement of financial targets, healthcare and insurance benefits, health savings and flexible spending accounts, a 401(k) savings plan with an employer match, paid time off, and wellness and employee assistance programs. Additionally, for certain eligible employees, we provide long-term incentive compensation, in the form of non-qualified stock options (Options). In addition, we are committed to providing employees continuing education and training programs in order for employees to achieve career goals and professional growth.
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We embrace diversity and inclusion and seek to hire and retain high-quality employees of all backgrounds and experiences. Honoring our employees as individuals is key to our culture. We believe diversity of backgrounds contributes to different ideas, which in turn drives better results for customers. We respect differences and diversity as qualities that enhance our efforts as a team and believe embracing diversity and a culture of inclusion makes our company a better place to work. We believe in and support the principles incorporated in all anti-discrimination and equal employment laws.
We also strive to create and provide a safe, healthful and secure workplace that is free from discrimination or harassment. Our workplace policies and procedures protect against behavior that creates an offensive, hostile, or intimidating work environment. Safety is a top priority and we have a strong, ongoing commitment to ensure employees are properly trained and have appropriate safety and emergency equipment. In 2020, in response to the COVID-19 pandemic, we implemented safety protocols and procedures to protect our employees, customers and business partners. These procedures included transitioning as many employees as possible to remote work-from-home arrangements, providing additional safety training and personal protective equipment for customer and business-facing employees, and complying with social distancing and other health and safety measures as required by federal, state and local governmental agencies.
Materials and Supplies
The materials and supplies that are necessary for our operations are available from a variety of sources. We are not dependent on any particular supplier or group of affiliated suppliers for our equipment needs.
Regulation
The following summary provides a high-level overview, but may not include all present and proposed federal, state and local legislation and regulations affecting the communications industry. Some legislation and other regulations are currently the subject of judicial proceedings, legislative hearings and administrative proposals that could change the manner in which this industry operates. At this time, we cannot predict the outcome of any of these developments or their potential impact on us. Regulation can change rapidly in the communications industry and these changes could have an adverse effect on us in the future.
Overview
Our consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (GAAP), rules and regulations of the SEC and, where applicable, conform to the accounting principles as prescribed by federal and state telephone utility regulatory authorities.
The services we offer are subject to varying levels of regulatory oversight. Federal and state regulatory agencies share responsibility for enforcing statutes and rules relative to the provision of communications services. Our interstate communications services are subject to regulation by the FCC. Intrastate services are governed by the relevant state regulatory commission. The Telecommunications Act of 1996 (TA96) and the rules enacted under it also gave oversight of interconnection arrangements and access to network elements to the state commissions. Our TV services are governed by FCC rules and municipal franchise agreements. There are also varying levels of regulatory oversight depending on the nature of the services offered or if the services are offered by a communications company.
Our communications company located in Redwood Falls, Litchfield and Glencoe provides services with less regulatory oversight than our communications companies. A company must file for interexchange authority to operate with the appropriate public utility commission in each state it serves. Our communications company located in Redwood Falls, Litchfield and Glencoe provides a variety of services to both residential and business customers in multiple jurisdictions.
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Federal Regulatory Framework
All carriers must comply with the FCC Act of 1934 (FCA34) as amended that requires, among other things, that our interstate services be provided at just and reasonable rates and on non-discriminatory terms and conditions. The TA96 amended the FCA34 and has had a dramatic effect on the competitive environment in the communications industry. In addition to these laws, we are also subject to rules promulgated by the FCC and could be affected by any regulatory decisions or orders they issue.
The TA96 and Local Competition
The primary goal of the TA96 and the FCC’s rules promulgated under it was to open local communications markets to competition while enhancing universal service. To some extent, Congress pre-empted the local authority of states to oversee local communications services.
The TA96 imposes a number of requirements on all local communications providers including:
● To interconnect directly or indirectly with other carriers;
● To allow others to resell services;
● To provide for number portability to allow end-users to retain their telephone number when changing providers;
● To ensure dialling parity;
● To ensure that competitor customers have non-discriminatory access to telephone numbers, operator services, directory assistance and directory listing services; and
● To allow competitors access to telephone poles, ducts, conduits and rights-of-way, and to establish reciprocal compensation arrangements for the transport and termination of communications traffic.
Access Charges
Access charges refer to the compensation received by local exchange carriers (LECs) for the use of their networks by an IXC. We provide two types of access services: special access and switched access. Special access is provided through dedicated circuits that connect other carriers to our network and is structured on a flat monthly fee basis. Switched access rates that are billed to other carriers are based on a per-minute of use fee basis. The FCC regulates prices that we charge for interstate access charges. There has been a trend toward lowering the rates charged to carriers accessing local networks and the application of a SLC as a flat rate on end-user bills. Regulation, competition, carriers optimizing their network costs and lower demand for dedicated lines have resulted in lower access rates and overall lower minutes of use on our network, which has affected our network access revenues.
Interstate access rates are established by the nationwide pooling of companies known as NECA. The FCC established NECA in 1983 to develop and administer interstate access service rates, terms and conditions. Revenues are pooled and redistributed on the basis of each company’s actual or average costs. There has been a change in the composition of interstate access charges in recent years, shifting more of the charges to the end user and reducing the amount of access charges paid by IXCs. We believe this trend will continue.
Intrastate access rates are filed with the regulatory commissions in Minnesota and Iowa.
Wireline Interstate
Our communications companies participate in the NECA common line pool where end-user common line funds collected are pooled. A portion of our communications companies’ revenue are based on settlements distributed from this pool. Our communications companies also participates in the NECA traffic-sensitive pool. These pool settlements are adjusted periodically.
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Access rates for our communications company located in Redwood Falls, Litchfield and Glencoe were established according to an order issued by the FCC in 2001. Under that order, the switched access rates charged by a competitive carrier can be no higher than the rates charged by the communications company with whom we compete.
Intercarrier Compensation (ICC) and FUSF Reform
The FCC released the National Broadband Plan in April 2010 recommending significant changes to the access charge policy and processes. This was followed on November 18, 2011, by FCC Order 11-161 (the Transformation Order), with comprehensive rules reforming all forms of ICC and implementing a new support mechanism for the deployment of broadband. Generally, the ICC reform sets forth a path towards a “bill & keep” regime which eliminates compensation for termination of traffic received from another carrier. The timeline for this transition had numerous steps depending on the type of traffic exchanged and the regulated status of the affected LEC.
These rules have been clarified in several orders on Reconsideration and have had an impact on our companies by reducing our terminating ICC, including intrastate and interstate access charges.
The FCC Transformation Order also confirmed the applicability of access charges on VoIP traffic and eliminated reciprocal compensation charges for termination of local wireless traffic. Despite these changes IXCs and others are still quite aggressive in disputing carrier access charges and/or the applicability of access charges to their traffic.
Due to the combination of rate reforms instituted by the FCC, competitive substitution by wireless and other carriers and decreased use of the switched network, the aggregate amount of interstate network access charges paid by long distance carriers to access providers such as our company, has decreased and we project that this decline will continue. For the year ended December 31, 2022, communications network access revenue represented 7.2% of our operating revenue, down from 8.6% for the year ended December 31, 2021. This excludes any funding received from FUSF and the A-CAM for broadband funding (see below for more information).
FUSF
The FUSF was originally established to overcome geographic differences in costs of providing voice service and to enable all citizens to communicate over networks regardless of geographical location and/or personal income. The FCC established universal service policies at the national level under terms contained in the Telecommunications Act of 1934. The TA96 requires explicit FUSF mechanisms and enlarged the scope of universal service to include four distinct programs:
● High-Cost program that supports local carriers operating in high-cost regions of the country to ensure reasonably based telephone rates;
● Lifeline (low-income) Subscribers program that includes the Link Up and Lifeline programs that provide support for service initiation and monthly fees and have eligibility based on subscriber income;
● Rural Health Care Providers program that supports communication services used by rural health care providers and provides them with toll free access to an Internet service provider; and
● Schools and Libraries program, also called the E-Rate program that provides support funding to schools and libraries for communications services, Internet access and internal connections.
In its Transformation Order released November 18, 2011, the FCC adopted rules which dramatically reform the universal service program and ICC regime. These rules eliminated the legacy Local Switching support, but also provide for a new Connect America Fund (CAF) support for rate of return carriers to make up some of their access revenue reductions and provide direct support to PriceCap carriers (i.e. the larger, national LECs such as Verizon and AT&T) for broadband build outs. The new rules have caused rates for end users to increase as ICC is reduced and the legacy mandate for ubiquitous voice service shifts toward broadband availability as a key outcome of the program.
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FUSF high-cost payments are distributed by NECA and are only available to carriers that have been designated as an eligible telecommunications carrier (ETC) by a state commission. Each of our communications companies has been designated as an ETC. Our communications company located in Redwood Falls, Litchfield and Glencoe is also eligible to be designated as ETCs if it meets the requirements of the program and meet a public interest standard as determined by the appropriate state regulatory agency. Our communications company located in Redwood Falls, Litchfield and Glencoe is currently not receiving FUSF support. All ETCs must certify annually to the Universal Service Administrative Company or their appropriate state regulatory commission that the funds they receive from the FUSF are being used in the manner intended. The states must then certify to the FCC which carriers have met this standard. The Transformation Order expands the information that must be reported to the State Commissions to include information on broadband availability, plans for expansion to unserved and underserved areas, in addition to information about voice services. To some extent, these levels of scrutiny make the receipt of a consistent level of FUSF payments each year more difficult to predict.
For the year ended December 31, 2022, we received an aggregate of $2,770,698 from FUSF, consisting of $1,467,845 of CAF support and $1,302,853 of Broadband Loop Support. Our net FUSF in 2022 comprised 4.2% of our total revenue for the year. For the year ended December 31, 2021, we received an aggregate of $2,793,354 from FUSF, consisting of $1,559,009 of CAF support and $1,234,345 of Broadband Loop Support. Our net FUSF in 2021 comprised 4.2% of our total revenue for the year. We receive no State universal service funding as the states in which we operate have not established state universal service funding mechanisms.
In 2019, the Company elected to receive funding from A-CAM, with the exception of Scott-Rice, which still receives funding from the FUSF.
A-CAM
The FUSF was established as part of the TA96 and provides subsidies to communications providers as means of increasing the availability and affordability of advanced communications services. In 2011, significant reform was introduced, including the creation of the CAF, to help modernize the FUSF and promote support of these communications services in the nation’s high-cost areas. In 2016, the FCC announced additional reform to further transition the CAF from supporting the provision of voice services to the provision of broadband services. On March 30, 2016, the FCC issued a Report and Order (2016 Order) that adopts the following changes to the FUSF for rate-of-return carriers:
● Establishes a voluntary cost model;
● Creates specific broadband deployment obligations;
● Provides a mechanism for support of broadband-only deployment;
● Gradually reduces the authorized rate-of-return from 11.25 percent to 9.75 percent;
● Eliminates support in those local areas served by unsubsidized competitors;
● Establishes “glide-path” transition periods for all the new changes; and
● Maintains the $2 billion budget established by the 2011 Transformation Order.
While the 2011 FUSF Transformation Order established CAF Phase I and CAF Phase II as high-cost support mechanisms for the price-cap carriers (i.e., the larger, national LECs such as Verizon and AT&T), it was not as specific about how subsidies would change for the rate-of-return carriers (i.e., the smaller LECs, including all rural LECs). In contrast, the 2016 Order focused on the rate-of-return carriers, announced specific changes to existing funding mechanisms as well as a new funding mechanism, and provided rural communications providers with greater certainty about future support.
One of the major changes introduced by the 2016 Order was the creation of the A-CAM, a new CAF support mechanism for rate-of-return carriers. Utilization of the A-CAM was voluntary; and rate-of-return carriers may have instead chose to continue relying on the legacy support mechanism known as interstate common line support, but then modified and renamed CAF Broadband Loop Support. Each carrier needed to decide which support mechanism to elect, and must have chosen one or the other, per state.
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On February 25, 2019, the FCC issued Public Notice DA 19-115, which contained revised offers of A-CAM support and associated revised service deployment obligations. On February 27, 2019, the Company’s BOD authorized and directed the Company to accept the FCC’s revised offer of A-CAM support and the revised associated service deployment obligations. Under the revised FCC offer Notice, the Company will be entitled to annually receive (i) $596,084 for its Iowa operations and (ii) $8,354,481 for its Minnesota operations. The Company will receive the revised A-CAM offer over the next 10 years starting in 2019. The Company will use the support that it receives through the A-CAM program to meet its defined broadband build-out obligations, which the Company is currently completing. A letter of acceptance to elect the revised A-CAM support was filed by the Company with the FCC on March 8, 2019. The FCC accepted the Company’s letter on March 11, 2019.
Build-out obligations: A-CAM carriers under the original A-CAM program must complete deployment of 10 Mbps downstream/1 Mbps upstream service to a number of eligible locations equal to 40 percent of fully funded locations by the end of 2020, to 50 percent of fully funded locations by the end of 2021, to 60 percent of fully funded locations by the end of 2022, to 70 percent of fully funded locations by the end of 2023, to 80 percent of fully funded locations by the end of 2024, to 90 percent of fully funded locations by the end of 2025, and to 100 percent of fully funded locations by the end of 2026. A-CAM carriers who elected additional funding and additional obligations under the revised A-CAM program must complete deployment of 25 Mbps downstream/3 Mbps upstream service to a number of eligible locations equal to 40 percent of fully funded locations by the end of 2022, to 50 percent of fully funded locations by the end of 2023, to 60 percent of fully funded locations by the end of 2024, to 70 percent of fully funded locations by the end of 2025, to 80 percent of fully funded locations by the end of 2026, to 90 percent of fully funded locations by the end of 2027, and to 100 percent of fully funded locations by the end of 2028. As of December 31, 2022, Nuvera has completed the deployment of 10/1 service to 94.6% of its funded locations and 25/3 service to 57.3% of its funded locations in Minnesota, and has completed deployment of 10/1 service to 100% of its funded locations and 25/3 service to 78.2% of its funded locations in Iowa.
Infrastructure Investment and Jobs Act
The Infrastructure Investment and Jobs Act (Infrastructure Act) passed on March 31, 2021 and included $65.0 billion toward broadband. The broadband Internet portion of the Infrastructure Act is aimed at increasing Internet coverage for more universal access, including for rural, low-income, and tribal communities. 65% of this funding is set aside specifically for underserved communities. Additionally, this measure is designed to help make Internet access more affordable and increase digital literacy.
The Infrastructure Act set aside $42.5 billion for Broadband Equity, Access and Deployment grants. The National Telecommunications and Information Administration administers the grant program and is in the process of soliciting comments before issuing final rules.
Privacy and Data Security Regulation
The FCA34 generally restricts the nonconsensual collection and disclosure to third parties of communication company customers’ personally identifiable information by communication companies, except for rendering service, conducting legitimate business activities related to the service, and responding to legal requests. We are also subject to various state and federal regulations that provide protections for customer proprietary network information (CPNI) related to our voice services. The FCC expects broadband Internet access service providers such as us to take reasonable, good faith steps to comply with existing statutory requirements to protect broadband CPNI and plans to propose new privacy and data security rules for broadband Internet service providers. The FCC has recently imposed substantial civil penalties and remediation obligations on several companies for alleged privacy and data security violations.
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The Federal Trade Commission (FTC) exercises authority over privacy protections, generally, using its existing authority over unfair and deceptive acts or practices to apply greater restrictions on the collection and use of personally identifiable and other information relating to customers. It also has undertaken numerous enforcement actions against parties that do not provide sufficient security protections against the loss of unauthorized disclosure of this type of information. We also are subject to stringent data security and data retention requirements on website operators and online services. Other privacy-oriented laws have been extended by courts to online video providers and are increasingly being used in privacy lawsuits, including class actions, against providers of video materials online.
We are also subject to state and federal laws and regulations regarding data security that primarily apply to sensitive personal information that could be used to commit identity theft. Most states have security breach notification laws that generally require a business to give notice to consumers and government agencies when certain information has been disclosed, due to a security breach, and the FCC has adopted security breach rules for voice services. Several states have also enacted general data security requirements to safeguard consumer information, including the proper disposal of consumer information.
The National Institute of Standards and Technology, in cooperation with other federal agencies and owners and operators of United States critical infrastructure, have developed a voluntary framework that provides a prioritized, flexible, repeatable, performance-based and cost-effective approach to cybersecurity risk. It is compendiums of existing cross-sector cyber-defense processes, practices and protocols that can help companies identify, assess and manage their cyber risks and vulnerabilities, and several governmental agencies have encouraged compliance with this framework. Additionally, in December 2015, Congress enacted the Cybersecurity Act of 2015, which is intended to encourage and facilitate the sharing of security threat and defensive measure information with government agencies and other companies, in order to strengthen the country’s overall cybersecurity protections. Finally, there are pending legislative proposals that could impose new requirements on owners and operators of critical infrastructure and the FCC is considering expanding its cybersecurity guidelines or adopting new cybersecurity requirements.
Network Architecture and Technology
We have and plan to continue to make significant investments in our technologically advanced fiber communications networks and continue to enhance and expand our fiber network by deploying technologies to provide additional capacity to our customers. As a result, we are able to deliver high-quality, reliable data, video and voice services in the markets we serve. Our wide-ranging fiber network provides an easy reach into existing and new areas. By bringing the fiber network into the customer premises, we can increase our service offerings, quality and bandwidth services. Our existing fiber network enables us to efficiently respond and adapt to changes in technology and is capable of supporting the rising customer demand for bandwidth in order to support the growing amount of data devices in our customer’s homes and businesses.
Our fiber networks are supported by advanced 100% digital switches, with a core fiber network connecting all of our remote exchanges. We continue to replace our copper cable network to increase bandwidth in order to provide additional products and services to our marketable homes. We are replacing our existing copper cable with fiber cable throughout our network and to all customer premises that take our services, resulting in a 100% fiber network that supports all of the inter-office and host-remote links, as well as all business parks within our service areas that take our service. In addition, this fiber infrastructure provides the connectivity required to provide broadband and long-distance services to our residential and commercial customers. Our fiber network utilizes FTTP and fiber-to-the-node networks to offer residential and commercial services.
We operate advanced fiber networks which we own or have entered into long-term leases for fiber network access. At December 31, 2022, our fiber networks consisted of approximately 2,987 route miles.
At December 31, 2022, we passed 11,133 locations with FTTP. We intend to continue to make strategic enhancements to our fiber network including improvements in overall network reliability and increases to our broadband speeds. We offer data speeds of up to 1 Gbps in select markets, and up to 100 Mbps and 60 Mbps in markets where 1 Gbps is not yet available, depending on the geographical region.
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We also provide fixed wireless broadband service to homes and small businesses from 30 towers, six of which we own, with the remaining towers being leased. Thirteen of these towers utilize Citizens Broadband Radio Service (CBRS) spectrum. Having secured 21 licenses in twelve CBRS spectrum counties in Minnesota and Iowa. This allows us to offer high-speed Internet to unserved, under-served and hard to serve rural areas.
Environmental Regulation
We are subject to federal, state and local laws and regulations governing the use, storage, disposal of, and exposure to, hazardous materials, the release of pollutants into the environment and the remediation of contamination. We could be subject to environmental laws that impose liability for the entire cost of cleanup at a contaminated site, regardless of fault or the lawfulness of the activity that resulted in contamination. We believe that our operations are in compliance with all applicable environmental laws and regulations.
Employees
As of March 1, 2023 we had 202 full-time equivalent employees dedicated to Nuvera’s operations. In addition, as of March 1, 2023 we had an additional 9 full-time equivalent employees that are employed by Nuvera but are dedicated to IES. IES is a minority equity subsidiary of Nuvera and Nuvera acts as the managing entity for IES.
Intellectual Property
Intellectual property is necessary for our operations but is not material to our overall operations.
Executive Officers of the Registrant
The names and ages of all our executive officers and the positions held by them as of March 1, 2023, are as follows:
| Name and Age |
| Position with the Company |
| Age |
|
|
|
|
|
|
| Glenn H. Zerbe |
| President and CEO |
| 57 |
|
|
|
|
|
|
| Barbara A.J. Bornhoft |
| Vice-President, Chief Operating Officer |
| 66 |
|
|
|
|
|
|
| Curtis O. Kawlewski |
| CFO and Treasurer |
| 56 |
Our executive officers are appointed annually and serve at the discretion of our BOD. Mr. Zerbe, President and CEO; Ms. Bornhoft, Vice-President, COO and Corporate Secretary; and Mr. Kawlewski, CFO and Treasurer have written employment contracts. There are no familial relationships between any director and executive officers.
Mr. Zerbe has been President and CEO since September of 2019. Prior to that time, he served as Vice President of Sales for Frontier Communications Corporation until March 2019, where he held positions of increasing responsibility since joining Frontier in 2011. Prior to his employment with Frontier, Mr. Zerbe had more than 20 years of sales, marketing and management experience in the communications industry, with companies such as Spanlink, Cisco Systems, SBC, AT&T and IBM. Mr. Zerbe serves as Chairman of the Board for IES and BBV, both equity subsidiaries of ours. In addition, Mr. Zerbe serves on the Board of Governors of FM and FiberComm, also equity subsidiaries of ours.
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Ms. Bornhoft has been Vice President, COO and Corporate Secretary since 1998. Ms. Bornhoft has been employed with the Company since 1990. Ms. Bornhoft serves as a board member for BBV, in addition to serving as President for both IES and BBV, both equity subsidiaries of ours.
Mr. Kawlewski has been CFO and Treasurer since 2009. Mr. Kawlewski also serves as the Treasurer for IES and BBV, both equity subsidiaries of ours.
Item 1A. Risk Factors.
Our operations and financial results are subject to various risks and uncertainties, including but not limited to those described below, that could adversely affect our business, financial condition, results of operations, cash flows and the trading price of our common stock.
Risks Relating to Our Business
We expect to continue to face significant competition in all parts of our business and the level of competition could intensify among our customer channels. The communications industry is highly competitive. We face actual and potential competition from many existing and emerging companies, including other incumbent and competitive communications companies, long-distance carriers and resellers, wireless companies, Internet service providers, satellite companies and CATV companies, and, in some cases, new forms of providers who are able to offer competitive services through software applications requiring a comparatively small initial investment. Due to consolidations and strategic alliances within the industry, we cannot predict the number of competitors we will face at any given time.
The wireless business has expanded significantly and has caused many subscribers with traditional telephone and land-based Internet access services to give up those services and rely exclusively on wireless service. In addition, consumers’ options for viewing TV shows have expanded as content becomes increasingly available through alternative sources. Some providers, including TV and CATV content owners, have initiated OTT services that deliver video content to TV, computers and other devices over the Internet. OTT services can include episodes of highly-rated TV series in their current broadcast seasons. They can also include original content and broadcast or sports content similar to those that we carry, but that is distinctive and exclusively available through the alternative source. Consumers can pursue each of these options without foregoing any of the other options. We may not be able to successfully anticipate and respond too many of the various competitive factors affecting the industry, including regulatory changes that may affect our competitors and us differently, new technologies, services and applications that may be introduced, changes in consumer preferences, demographic trends, and discount or bundled pricing strategies by competitors.
Competitors in the markets we serve may enjoy certain business advantages, including size, financial resources, favorable regulatory position, a more diverse product mix, brand recognition and connection to virtually all of our customers and potential customers. The largest cable operators also enjoy certain business advantages, including size, financial resources, ownership of or superior access to desirable programming and other content, a more diverse product mix, brand recognition and first-in-field advantages with a customer base that generates positive cash flow for its operations. Our competitors continue to add features, increase data speeds and adopt aggressive pricing and packaging for services comparable to the services we offer. Their success in selling services that are competitive with ours among our various customer channels could lead to revenue erosion in our business. We face intense competition in our markets for long-distance, Internet access, video service and other ancillary services that are important to our business and to our growth strategy. If we do not compete effectively we could lose customers, revenue and market share.
We must adapt to rapid technological changes. If we are unable to take advantage of technological developments, or if we adopt and implement them at a slower rate than our competitors, we may experience a decline in the demand for our services. Our industry operates in a technologically complex environment. New technologies are continually developed and existing products and services undergo constant improvement. Emerging technologies offer consumers a variety of choices for their communication and broadband needs. To remain competitive, we will need to adapt to future changes in technology to enhance our existing offerings and to introduce new or improved offerings that anticipate and respond to the varied and continually changing demands of our various customer channels. Our business and results of operations could be adversely affected if we are unable to match the benefits offered by competing technologies on a timely basis and at an acceptable cost, or if we fail to employ technologies desired by our customers before our competitors do so.
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New technologies, particularly alternative methods for the distribution, access and viewing of content, have been, and will likely continue to be, developed that will further increase the number of competitors that we face and drive changes in consumer behavior. Consumers seek more control over when, where and how they consume content and are increasingly interested in communication services outside of the home and in newer services in wireless Internet technology and devices such as tablets, smartphones and mobile wireless routers that connect to such devices. These new technologies, distribution platforms and consumer behaviors may have a negative impact on our business.
In addition, evolving technologies can reduce the costs of entry for others, resulting in greater competition and significant new advantages for competitors. Technological developments could require us to make significant new capital investments in order to remain competitive with other service providers. If we do not replace or upgrade our network and its technology on a timely basis, we may not be able to compete effectively and could lose customers. We may also be placed at a cost disadvantage in offering our services. Technology changes are also allowing individuals to bypass communications companies and cable operators entirely to make and receive calls, and to provide for the distribution and viewing of video programming without the need to subscribe to traditional voice and video products and services. Increasingly, this can be done over wireless facilities and other emerging mobile technologies in addition to traditional wired networks. Wireless companies are aggressively developing networks using next-generation data technologies, which are capable of delivering high-speed Internet service via wireless technology to a large geographic footprint. As these technologies continue to expand in availability and reliability, they could become an effective alternative to our high-speed Internet services. Although we use fiber-optics in parts of our networks and are building a new FTTP network, including in some residential areas, we continue to rely on coaxial cable and copper transport media to serve customers in many areas. The facilities we use to offer our video services, including the interfaces with customers, are undergoing a rapid evolution, and depend in part on the products, expertise and capabilities of third-parties. If we cannot develop new services and products to keep pace with technological advances, or if such services and products are not widely embraced by our customers, our results of operations could be adversely impacted.
Shifts in our product mix may result in a decline in operating profitability. Margins vary among our products and services. Our profitability may be impacted by technological changes, customer demands, regulatory changes, the competitive nature of our business and changes in the product mix of our sales. These shifts may also result in our long-lived assets becoming impaired or our inventory becoming obsolete. We review long-lived assets for potential impairment if certain events or changes in circumstances indicate that impairment may be present.
Public health threats, such as the outbreak of COVID-19, could have a material adverse effect on our business, results of operations, cash flows and stock price. We may face risks associated with public health threats or outbreaks of epidemic, pandemic or communicable diseases, such as the outbreak of the COVID-19 and its variants. The COVID-19 pandemic had in the short-term and may in the long-term adversely impact the global economy, financial markets and supply chains. The outbreak had resulted in federal, state and local governments implementing mitigation measures, including shelter-in-place orders, travel restrictions, limitations on business, school closures, vaccination and testing requirements and other measures. Governments had enacted fiscal and monetary stimulus measures to counteract the impacts of COVID-19.
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As a critical infrastructure provider, we have continued to operate our business and provide services to our customers. Although we are considered an essential business, the outbreak of COVID-19 and any preventive or protective actions implemented by governmental authorities may have a material adverse effect on our operations, customers and suppliers and could do so for an indefinite period of time. Adverse economic and market conditions as a result of COVID-19 could also adversely affect the demand for our products and services and may also impact the ability of our customers to satisfy their obligations to us. In addition, concerns regarding the economic impact of COVID-19 have caused volatility in financial and other capital markets which has and may continue to adversely affect the market price of our common stock and our ability to access capital markets. In response to the COVID-19 pandemic, we have transitioned a substantial number of our employees to telecommuting and remote work arrangements, which may increase the risk of a security breach or cybersecurity attack on our information technology systems that could impact our business.
We cannot reasonably estimate at this time the resulting future financial impact of COVID-19 on our business, but the prolonged effect of it could have a material adverse effect to our results of operations, financial condition and liquidity. The extent to which the COVID-19 pandemic may adversely impact our business, results of operations, financial condition and liquidity will depend on future developments, which are highly uncertain and unpredictable, including the severity and duration of the outbreak, current and new variants of COVID-19, the availability and distribution of effective treatments and vaccines, the effectiveness of actions taken to contain or mitigate its effects and any resulting economic downturn, recession or depression in the markets we serve.
We receive support from various funds established under federal and state laws, and the continued receipt of that support is not assured. A significant portion of our revenues come from network access and subsidies. An order adopted by the FCC in 2011 (2011 Order) significantly impacted the amount of support revenue we receive from the Universal Service Fund (USF), CAF and ICC. The 2011 Order reformed core parts of the USF, broadly recast the existing ICC scheme, established the CAF to replace support revenues provided by the USF and redirected support from voice services to broadband services.
We receive subsidy payments from various federal and state universal service support programs, including high-cost support, Lifeline and E-Rate programs for schools and libraries. The total cost of the various FUSF programs has increased significantly in recent years, putting pressure on regulators to reform the programs and to limit both eligibility and support. We cannot predict future changes that may impact the subsidies we receive. However, a reduction in subsidies support may directly affect our profitability and cash flows.
A disruption in our networks and infrastructure could cause service delays or interruptions, which could cause us to lose customers and incur additional expenses. Our customers depend on reliable service over our fiber network. The primary risks to our network infrastructure include physical damage to lines, security breaches, capacity limitations, power surges or outages, software defects and disruptions beyond our control, such as natural disasters and acts of terrorism. From time to time in the ordinary course of business, we experience short disruptions in our service due to factors such as physical damage, inclement weather and service failures of our third-party service providers. We could experience more significant disruptions in the future. Disruptions may cause service interruptions or reduced capacity for customers, either of which could cause us to lose customers and incur unexpected expenses.
A cyber-attack may lead to unauthorized access to confidential customer, personnel and business information that could adversely affect our business. Attempts by others to gain unauthorized access to organizations' information technology systems are becoming more frequent and sophisticated, and are sometimes successful. These attempts may include covertly introducing malware to companies' computers and networks, impersonating authorized users or "hacking" into systems. We seek to prevent, detect and investigate all security incidents that do occur, however we may be unable to prevent or detect a significant attack in the future. Significant information technology security failures could result in the theft, loss, damage, unauthorized use or publication of our confidential business information, which could harm our competitive position, subject us to additional regulatory scrutiny, expose us to litigation or otherwise adversely affect our business. If a security breach results in misuse of our customers' confidential information, we may incur liability as a result.
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Our operations require substantial capital expenditures and our business, financial condition, results of operations and liquidity may be impacted if funds for capital expenditures are not available when needed. We require significant capital expenditures to maintain, upgrade and enhance our network facilities and operations. While we have historically been able to fund capital expenditures from cash generated from operations and borrowings under our revolving credit facility, the other risk factors described in this section could materially reduce cash available from operations or significantly increase our capital expenditure requirements, which may result in our inability to fund the necessary level of capital expenditures to maintain, upgrade or enhance our network. This could adversely affect our business, financial condition, results of operations and liquidity.
We may be unable to obtain necessary hardware, software and operational support from third-party vendors. We depend on third-party vendors to supply us with a significant amount of hardware, software and operational support necessary to provide certain of our services, to maintain, upgrade and enhance our network facilities and operations, and to support our information and billing systems. Some of our third-party vendors are our primary source of supply for certain products and services for which there are few substitutes. The global supply chains have been and may continue to be impacted by the COVID-19 pandemic, which has caused a delay in the development, manufacturing and shipping of products and in some cases an increase in product costs. If any of these vendors should experience financial difficulties, experience supply chain issues, have demand that exceeds their capacity or can no longer meet our specifications or provide products or services we need or at reasonable prices, our ability to provide some services may be hindered, in which case our business, financial condition and results of operations may be adversely affected.
Video content costs are substantial and continue to increase. We expect video content costs to continue to be one of our largest operating costs associated with providing video service. Video programming content includes network programming designed to be shown in linear channels, as well as the programming of local over-the-air TV stations that we retransmit. The cable industry has experienced continued increases in the cost of programming, especially the cost of sports programming and local broadcast station retransmission content. Programming costs are generally assessed on a per-subscriber basis, and therefore, are directly related to the number of subscribers to which the programming is provided. Our relatively small subscriber base limits our ability to negotiate lower per-subscriber programming costs. Larger providers can often qualify for discounts based on the number of their subscribers. This cost difference can cause us to experience reduced operating margins, while our competitors with a larger subscriber base may not experience similar margin compression. In addition, escalators in existing content agreements can result in cost increases that exceed general inflation. While we expect video content costs to continue to increase, we may not be able to pass such cost increases on to our customers, especially as an increasing amount of programming content becomes available via the Internet at little or no cost. Also, some competitors or their affiliates own programming in their own right and we may not be able to secure license rights to that programming. As our programming contracts with content providers expire, there is no assurance that they will be renewed on acceptable terms or that they will be renewed at all, in which case we may not be able to provide such programming as part of our video services packages and our business and results of operations may be adversely affected.
Our ability to attract and/or retain certain key management and other personnel in the future could have an adverse effect on our business. We rely on the talents and efforts of key management personnel, many of whom have been with our company or in our industry for decades. While we maintain long-term and emergency transition plans for key management personnel and believe we could either identify internal candidates or attract outside candidates to fill any vacancy created by the loss of any key management personnel, the loss of one or more of our key management personnel could have a negative impact on our business.
Acquisitions present many risks and we may be unable to realize the anticipated benefits of acquisitions. From time to time, we make acquisitions and investments or enter into other strategic transactions. In connection with these types of transactions, we may incur unanticipated expenses; fail to realize anticipated benefits; have difficulty integrating the acquired businesses; disrupt relationships with current and new employees, customers and vendors; incur significant indebtedness or have to delay or not proceed with announced transactions. The occurrence of any of the foregoing events could have a material adverse effect on our business, financial condition, results of operations and cash flows.
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We may face significant challenges in combining the operations of an acquired business with ours in a timely and efficient manner. The failure to successfully integrate an acquired business and to successfully manage the challenges presented by the integration process may result in our inability to achieve anticipated benefits of the acquisition, including operational and financial synergies. Even if we are successful in integrating acquired businesses, we cannot guarantee that the integration will result in the complete realization of anticipated financial synergies or that they will be realized within the expected time frames.
Risks Relating to Current Economic Conditions
Weak economic conditions may have a negative impact on our business, results of operations and financial condition. Downturns in the economic conditions in the markets and industries we serve could adversely affect demand for our products and services and have a negative impact on our results of operations. Economic weakness or uncertainty may make it difficult for us to obtain new customers and may cause our existing customers to reduce or discontinue their services to which they subscribe. This risk may be worsened by the expanded availability of free or lower cost services, such as streaming or OTT services or substitute services, such as wireless phones and public Wi-Fi networks. Weak economic conditions may also impact the ability of third parties to satisfy their obligations to us.
Risks Relating to Our Common Stock
The price of our common stock may be volatile and may fluctuate substantially, which could negatively affect holders of our common stock. The market price of our common stock may fluctuate widely as a result of various factors including, but not limited to, period-to-period fluctuations in our operating results, the volume of the sales of our common stock, the limited number of holders of our common stock and the resulting limited liquidity in our common stock, dilution, developments in the communications industry, the failure of securities analysts to cover our common stock, changes in financial estimates by securities analysts, competitive factors, regulatory developments, labor disruptions, general market conditions and market conditions affecting the stock of communications companies. Communications companies have, in the past, experienced extreme volatility in the trading prices and volumes of their securities, which has often been unrelated to operating performance. High levels of market volatility may have a significant adverse effect on the market price of our common stock. In addition, in the past, securities class action litigation has often been instituted against companies following periods of volatility in their stock price. This type of litigation could result in substantial costs and divert management's attention and resources, which could have a material adverse impact on our business, financial condition, results of operations, liquidity and/or the market price of our common stock.
Our organizational documents could limit or delay another party’s ability to acquire us and, therefore, could deprive our investors of a possible takeover premium for their shares. A number of provisions in our Articles of Incorporation could make it difficult for another company to acquire us. Among other things, these provisions:
● Restrict any one individual or entity from beneficially owning more than seven percent of the outstanding capital stock of the corporation.
We also are subject to laws that may have a similar effect. For example, federal and certain state telecommunications laws and regulations generally prohibit a direct or indirect transfer of control over a business without prior regulatory approval. These laws and regulations make it difficult for another company to acquire us, and therefore, could limit the price that investors might be willing to pay in the future for shares of our common stock.
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Risks Relating to Our Indebtedness and Our Capital Structure
We have a substantial amount of debt outstanding due to our FTTP initiatives, which could adversely affect our business and restrict our ability to fund working capital and planned capital expenditures. As of December 31, 2022, we had $79.9 million of debt outstanding. Our substantial amount of expected indebtedness could adversely impact our business, including:
| ● | We may be required to use a substantial portion of our cash flow from operations to make principal and interest payments on our debt, which will reduce funds available for operations, capital expenditures, future business opportunities and strategic initiatives; |
| ● | We may have limited flexibility to react to changes in our business and our industry; |
| ● | It may be more difficult for us to satisfy our other obligations; |
| ● | We may have a limited ability to borrow additional funds or to sell assets to raise funds if needed for working capital, capital expenditures, acquisitions or other purposes; |
| ● | We may become more vulnerable to general adverse economic and industry conditions, including changes in interest rates; and |
| ● | We may be at a disadvantage compared to our competitors that have less debt. |
We cannot guarantee that we will generate sufficient revenues to service our debt and have adequate funds left over to achieve or sustain profitability in our operations, meet our working capital and capital expenditure needs or compete successfully in our markets.
We may not be able to refinance our existing debt if necessary, or we may only be able to do so at a higher interest rate. We may be unable to refinance or renew our credit facilities and our failure to repay all amounts due on the maturity dates would cause a default under the credit agreement. Alternatively, any renewal or refinancing may occur on less favorable terms. If we refinance our credit facilities on terms that are less favorable to us than the terms of our existing debt, our interest expense may increase significantly, which could impact our results of operations and impair our ability to use our funds for other purposes.
Our variable-rate debt subjects us to interest rate risk, which could impact our cost of borrowing and operating results. Certain of our debt obligations are at variable rates of interest and expose us to interest rate risk. Increases in interest rates could negatively impact our results of operations and operating cash flows. We utilize Interest Rate Swap Agreements (IRSAs) to convert a portion of our variable-rate debt to a fixed-rate basis. However, we do not maintain interest rate hedging agreements for all of our variable-rate debt and our existing hedging agreements may not fully mitigate our interest rate risk, may prove disadvantageous or may create additional risks. Changes in fair value of cash flow hedges that have been de-designated or determined to be ineffective are recognized in earnings. Significant increases or decreases in the fair value of these cash flow hedges could cause favorable or adverse fluctuations in our results of operations.
Risks Related to the Regulation of Our Business
We are subject to a complex and uncertain regulatory environment, and we face compliance costs and restrictions greater than those of many of our competitors. Our businesses are subject to regulation by the FCC and other federal, state and local entities. Rapid changes in technology and market conditions have resulted in changes in how the government addresses communications, video programming and Internet services. Many businesses that compete with our communications companies are comparatively less regulated. Some of our competitors are either not subject to utilities regulation or are subject to significantly fewer regulations. In contrast to our subsidiaries regulated as cable operators and satellite video providers, competing on-demand and OTT providers and motion picture and digital video disc firms have almost no regulation of their video activities. Recently, federal and state authorities have become more active in seeking to address critical issues in each of our product and service markets. The adoption of new laws or regulations, or changes to the existing regulatory framework at the federal, state or local level, could require significant and costly adjustments that could adversely affect our business plans. New regulations could impose additional costs or capital requirements, require new reporting, impair revenue opportunities, potentially impede our ability to provide services in a manner that would be attractive to our customers and potentially create barriers to enter new markets or to acquire new lines of business. We face continued regulatory uncertainty in the immediate future. Not only are these governmental entities continuing to move forward on these matters, their actions remain subject to reconsideration, appeal and legislative modification over an extended period of time, and it is unclear how their actions will ultimately impact our business. We cannot predict future developments or changes to the regulatory environment or the impact such developments or changes may have on us.
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Increased regulation of the Internet could increase our cost of doing business. Current laws and regulations governing access to, or commerce on, the Internet are limited. As the significance of the Internet continues to expand, federal, state and local governments may adopt new rules and regulations applicable to, or apply existing laws and regulations to, the Internet. During 2017, the FCC adopted an order eliminating its previous classification of Internet service as a telecommunications service regulated under Title II of the TA96. This effectively limits the FCC’s authority over Internet Service Providers. The FCC retained rules requiring Internet Service Providers to disclose practices associated with blocking, throttling and paid prioritization of Internet traffic. The FCC order has been challenged in court and the outcome of the challenge cannot be determined at this time.
The outcome of pending matters before the FCC and the FTC and any potential congressional action cannot be determined at this time but could lead to increased costs for the Company in connection with our provision of Internet services, and could affect our ability to compete in the markets we serve.
We are subject to extensive laws and regulations relating to the protection of the environment, natural resources and worker health and safety. Our operations and properties are subject to federal, state and local laws and regulations relating to the protection of the environment, natural resources and worker health and safety, including laws and regulations governing and creating liability in connection with the management, storage and disposal of hazardous materials, asbestos and petroleum products. We are also subject to laws and regulations governing air emissions from our fleet vehicles. As a result, we face several risks, including:
| ● | Hazardous materials may have been released at properties that we currently own or formerly owned (perhaps through our predecessors). Under certain environmental laws, we could be held liable, without regard to fault, for the costs of investigating and remediating any actual or threatened contamination at these properties and for contamination associated with disposal by us, or by our predecessors, of hazardous materials at third-party disposal sites; |
| ● | We could incur substantial costs in the future if we acquire businesses or properties subject to environmental requirements or affected by environmental contamination. In particular, environmental laws regulating wetlands, endangered species and other land use and natural resources may increase the costs associated with future business or expansion or delay, alter or interfere with such plans; |
| ● | The presence of contamination can adversely affect the value of our properties and make it difficult to sell any affected property or to use it as collateral; and
| |
| ● | We could be held responsible for third-party property damage claims, personal injury claims or natural resource damage claims relating to contamination found at any of our current or past properties. |
The cost of complying with environmental requirements could be significant. Similarly, the adoption of new environmental laws or regulations, or changes in existing laws or regulations or their interpretations, could result in significant compliance costs or unanticipated environmental liabilities.
Our business may be impacted by new or changing tax laws or regulations and actions by federal, state, and/or local agencies, or by how judicial authorities apply tax laws. Our operations are subject to various federal, state and local tax laws and regulations. In connection with the products and services we sell, we calculate, collect, and remit various federal, state, and local taxes, surcharges and regulatory fees to numerous federal, state and local governmental authorities. In many cases, the application of tax laws is uncertain and subject to differing interpretations, especially when evaluated against new technologies and communications services, such as broadband Internet access and cloud related services. Tax laws are dynamic and subject to change as new laws are passed and new interpretations of the law are issued or applied. Changes in tax laws, or changes in interpretations of existing laws, could materially affect our financial position, results of operations and cash flows. For example, the Tax Cuts and Jobs Act of 2017, a major federal tax reform, that had a significant impact on our tax obligations and effective income tax rate.
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Item 1B. Unresolved Staff Comments
Not required for a smaller reporting company.
Item 2. Properties
We are primarily focused on the provision of communication services and our properties are used primarily for administrative support and to house and safeguard our operating equipment. On December 31, 2022, our gross property, plant and equipment totaled $265,823,857 (net balance of $106,191,564).
We own our corporate headquarters, which are currently located at 27 North Minnesota Street, New Ulm, Minnesota. We also own office facilities and related equipment for administrative personnel, central office buildings and operations in Minnesota and Iowa.
In addition to land and structures, our property consists of equipment necessary for the provision of communication services, including central office equipment, CPE and connections, pole lines, towers, remote terminals, aerial and underground cable and wire facilities and associated outside plant for use in providing our services, telephone switches, fiber networks and fiber communications network equipment, vehicles, furniture and fixtures, computers and other equipment.
In addition to plant and equipment we wholly-own, we utilize poles, towers, cable and conduit systems jointly-owned with other entities and lease space on facilities from other entities. These arrangements are in accordance with written agreements customary in the industry. We also have appropriate easements, rights of way and other arrangements for the accommodation of our pole lines, underground conduits, aerial and underground cables and wires.
We believe our properties are suitable and adequate to provide modern and effective communications services within our service areas, including local dial-tone, long distance service, broadband, TV and dedicated and switched long-haul transport. We also believe our properties and equipment are adequately insured. See Note 6 – “Long-Term Debt” for descriptions of the mortgages and collateral relating to the above referenced properties. See Note 1 – “Business Description and Summary of Significant Accounting Policies” and Note 4 – “Property, Plant and Equipment” for a description of our depreciation policies and information relating to the above referenced properties and equipment and their respective depreciation.
Item 3. Legal Proceedings
Other than routine litigation incidental to us, there are no pending material legal proceedings to which we are a party or to which any of our property is subject.
Item 4. Mine Safety Disclosures
Not Applicable.
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PART II
Item 5. Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Our common stock is quoted on the OTCQB Marketplace under the symbol "NUVR." As of March 1, 2023 there were 1,240 registered stockholders and approximately 905 beneficial owners of Nuvera stock.
The Company’s Articles of Incorporation restrict any one individual or entity from beneficially owning more than seven percent of the outstanding capital stock of the corporation. Specific details of this restriction are contained in Article III of the Company’s Articles of Incorporation.
Issuer Purchases of Equity Securities
Repurchases of Nuvera common stock are made to support the Company’s stock-based employee compensation plans and for other corporate purposes. In May 2019, Nuvera announced the adoption of a $4.0 million stock repurchase program running through the end of 2021. Under the stock repurchase program, repurchases could be made from time to time using a variety of methods, including through open market purchase or in privately negotiated transactions in compliance with the rules of the SEC and other applicable legal requirements. The Company did not repurchase any shares in the second, third and fourth quarters of 2022 and there are no dollar amounts set aside for future repurchases under any stock repurchase plans.
Issuer Purchases of Equity Securities (registered pursuant to Section 12 of the Exchange Act)
The following table summarizes stock repurchases for the year ended December 31, 2021.
| Period |
| Total Number of Shares Purchased as Part of Publicaly Announced Plans or or Programs (1) |
| Average Price Paid per Share |
| Maximum Approximate Dollar Value of Shares that May Yet Be Purchased Under the Plans or Programs | ||
| July 1, 2019 - December 31, 2020 | 19,487 | N/A | $ | 3,647,263 | ||||
| January 1 - June 30, 2021 | 3,028 | $ | 23.80 | $ | 3,575,197 | |||
| July 1 - December 31, 2021 | 4,000 | $ | 23.85 | $ | - | |||
| Total July 1, 2019 - December 31, 2021 | 26,515 | |||||||
| (1) The total number of shares purchased includes: shares purchased under the Board's authorizations described | ||||||||
| above, including market purchases and privately negotiated purchases. | ||||||||
In two transactions that closed on February 25, 2022 and February 28, 2022, Nuvera purchased 75,000 shares each from two shareholders, for a total of 150,000 shares at a price of $21.25 per share for a total purchase price of $3,187,500. The shares were purchased pursuant to a privately negotiated purchase agreement between Nuvera and the shareholders. The stock purchase was authorized by the Nuvera BOD and a waiver was obtained from CoBank, ACB (CoBank) to facilitate the sale. See Nuvera’s Form 8-K filed with the SEC on March 2, 2022 for more information regarding this stock purchase.
Dividends and Restrictions
We declared a quarterly dividend of $0.14 per share for the fourth, third, second and first quarters of 2022, which totaled $711,841 for the fourth, third, and second quarters and $708,407 for the first quarter. We declared a quarterly dividend of $0.14 per share for the fourth, third and second quarters of 2021 and $0.13 per share for the first quarter of 2021, which totaled $729,407 for the fourth quarter, $729,188 for the third quarter, $729,749 for the second quarter and $676,090 for the first quarter.
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A quarterly cash dividend of $0.14 per share will be paid on March 15, 2023 to stockholders of record at the close of business on March 6, 2023. We expect to continue to pay quarterly dividends during 2023, but only if and to the extent declared by our BOD on a quarterly basis and subject to various restrictions on our ability to do so (described below). Dividends on our common stock are not cumulative.
There are security and loan agreements underlying our current CoBank credit facility that contain restrictions on our distributions to stockholders and investment in, or loans, to others. See below and Note 6 – “Long-Term Debt” for additional information.
Our loan agreements include restrictions on our ability to pay cash dividends to our stockholders. However, we are allowed to pay dividends in an amount up to $3,000,000 in any year as long as no default or event of default have occurred.
Our BOD reviews quarterly dividend declarations based on our anticipated earnings, capital requirements and our operating and financial conditions. The cash requirements of our current dividend payment practices are in addition to our other expected cash needs. Should our BOD determine a dividend will be declared, we expect we will have sufficient availability from our current cash flows from operations to fund our existing cash needs and the payment of our dividends. In addition, we expect we will have sufficient availability under our revolving credit facility to fund dividend payments in addition to any fluctuations in working capital and other cash needs.
Item 6. Reserved
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion should be read in conjunction with our historical financial statements and the related notes contained elsewhere in this report.
Overview
Nuvera has an advanced fiber communications network and offers a diverse array of communications products and services. We provide broadband Internet access, video services and managed and hosted solutions services. In addition we provide local voice service and network access to other communications carriers for connections to our fiber networks as well as long distance service.
Our operations consist primarily of providing services to customers for a monthly charge. Because many of these services are recurring in nature, backlog orders and seasonality are not significant factors. Our working capital requirements include financing the construction of our advanced fiber networks. We also require capital to maintain our advanced fiber networks and infrastructure; fund the payroll costs of our highly skilled labor force; maintain inventory to service capital projects, our advanced fiber network and our communication equipment customers; pay dividends and provide for the carrying value of trade accounts receivable, some of which may take several months to collect in the normal course of business.
COVID-19
We continue to closely monitor the impact on our business of the outbreak of the COVID-19 pandemic. We have and are continuing to take precautions to ensure the safety of our employees, customers and business partners, while assuring business continuity and reliable service and support to our customers. Health and safety measures implemented include transitioning to remote work-from-home policies, proof of COVID-19 vaccination, redesigning and investing in our office spaces to accommodate a more healthy air quality environment, providing our field technicians and customer-facing personnel with personal protective equipment and additional safety training, practicing social distancing and adding calling in advance for work that must be performed inside customer premises. We are proactively monitoring and augmenting our network capacity, to meet the higher demands for data usage during the pandemic as a result of increased usage from work from home and remote learning applications. As a result of the pandemic, the demand for bandwidth upgrades have increased for our consumer, commercial and carrier customers. Our existing network enables us to efficiently respond and adapt to the increase in Internet traffic during this time.
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While we have not seen a significant adverse impact to our financial results from COVID-19 to date, the extent of the future impact of the COVID-19 pandemic on our business is uncertain and difficult to predict. Capital markets and the United States economy have also been significantly impacted by the pandemic. Adverse economic and market conditions as a result of COVID-19 could also adversely affect the demand for our products and services and may also impact the ability of our customers to satisfy their obligations to us. If the pandemic continues to cause significant negative impacts to economic conditions, our results of operations, financial condition and liquidity could be materially and adversely affected.
In 2022, we have seen our overall revenues remain steady primarily due to Internet growth mentioned above. However, we continue to see an accelerated loss in our voice service and video service customers as those customers make choices about their entertainment needs and personal finances in light of the COVID-19 pandemic. We have also experienced increased costs in 2022 which have affected our margins. In addition, we are anticipating increased inflation and future supply chain issues in the inventory, equipment and fiber we use in our business and have therefore purchased a large amount of these items in order to mitigate these potential issues and not disrupt our business operations.
With respect to liquidity, we continue to evaluate costs and spending across our organization. This includes evaluating discretionary spending and non-essential capital investment expenditures. As of December 31, 2022, we have $10.1 million on our bank revolver available for use in the event that the need arises. In addition, we have a $40.0 million delayed draw term loan available to fund our fiber expansion plans.
We will continue to actively monitor the situation and may take further actions that alter our operations as may be required by federal, state or local authorities or that we determine are in the best interests of our employees, customers, suppliers and shareholders.
Executive Summary
Highlights:
● On December 8, 2022, the Company was awarded four broadband grants from the Minnesota Department of Employment and Economic Development (DEED). The grants will provide up to 45.0% to 50.0% of the total cost of building fiber connections to homes and businesses for improved high-speed Internet in unserved and underserved communities and businesses in the Company’s service area. The Company is eligible to receive $8,594,688 of approximately $18,139,749 total project costs. The Company will provide the remaining 55.0% to 50% matching funds. Construction and expenditures for these projects will begin in the spring of 2023. We have not received any funds for these projects as of December 31, 2022.
● On July 15, 2022, Nuvera and CoBank entered into (i) an Agreement Regarding Amendments to Loan Documents and (ii) an Amended and Restated Revolving Loan Promissory Note. The agreements amended our existing credit facility with CoBank and secured a new credit facility in the aggregate principal amount of $130.0 million. Under the Agreements, among other things, (i) the Company received a $50.0 million term loan to replace existing debt, (ii) a $50.0 million delayed draw term loan, (iii) the Company’s revolving loan was increased from $20.0 million to $30.0 million, (iv) the maturity date of the term loans were set at July 15, 2029, and the maturity day of the revolving loan was set at July 15, 2027, and (iii) the Company operating subsidiaries’ agreed to extend their previous guarantees, security interests and mortgages to cover the increased amount of the revolving note. The financing was secured to facilitate the Company’s advanced fiber-build plans announced on December 15, 2021. Refer to the Company’s 8-K filing with the SEC on July 20, 2022 for further details regarding the new credit agreements with CoBank.
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● On December 15, 2021, the Company announced plans to build and deploy Gig fiber Internet across its network creating crucial access to the fastest speeds available for rural communities, small cities and suburban areas across Minnesota. “This is a transformational moment for Nuvera as we make a future-focused investment in the communities we serve by providing the most reliable FTTP access to Gig-speed services,” said Glenn Zerbe, CEO. “Our homes, businesses and communities need reliable and affordable connections to school, workplaces and entertainment, as an important and growing part of everyday life.” “Nuvera’s investment in FTTH network infrastructure will allow more underserved communities across Minnesota to leverage the quality of life and economic opportunity that access to a state-of-the-art network provides now and for years to come,” said State Senator Nick Frentz, DFL-North Mankato. Nuvera’s Gig-speed end-to-end fiber network is building and rolling out now. Service will be available for thousands of customers in 2022. The company will continue to build and deploy the Gig-speed service over the next few years. “We’re excited to create ‘Nuvera Gig Cities’ in the communities we serve while also expanding access to fiber-based Internet service at a range of speeds,” said Zerbe. “Nuvera’s fiber network gives customers affordable access to a range of speeds from 100 Mbps to 1 Gig at prices that are the same whether you’re in rural Goodhue or suburban Prior Lake.” While Nuvera’s goal is to bring Gig-speed service to as many communities as possible, the initial buildout will focus on the following cities and surrounding communities:
o New Ulm
o Hutchinson
o Glencoe
o Goodhue
o Litchfield
o Redwood Falls
o Prior Lake
o Elko New Market
o Savage
o Sleepy Eye
o Springfield
o Aurelia, IA
Nuvera’s fiber Internet prices range from $50 per month to $100 per month for Gig-speed services. Customers can choose the right speed at an affordable price, including low-income households through Federal programs.
● On January 29, 2021, the Company was awarded five broadband grants from the DEED. The grants will provide up to 35.4% of the total cost of building fiber connections to homes and businesses for improved high-speed Internet in unserved or underserved communities and businesses in the Company’s service area. The Company is eligible to receive $1,918,037 of the approximately $5,419,617 total project costs. The Company will provide the remaining 64.6% matching funds. Construction and expenditures for these projects began in the spring of 2021. We have received $396,360 for these projects as of December 31, 2022.
● On April 16, 2020, Nuvera received a $2,889,000 loan under the Small Business Administration (SBA’s) Paycheck Protection Plan (PPP). The PPP was designed to provide a direct incentive for small businesses to keep their workers employed during the COVID-19 crisis. The SBA forgave loans if all employees were kept on the payroll for a required period of time under the program starting April 16, 2020, and the loan funds were used for payroll, rent and utilities. Nuvera retained employment of all employees through this period and followed all the SBA rules regarding this loan. The Company applied for debt forgiveness in August 2020. On February 3, 2021, the Company was notified by Citizens, the lender on the Company’s PPP Loan that Citizens has received payment in full from the United States federal government for the amount of the Company’s PPP Loan and the Company’s PPP Loan had been fully forgiven.
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● In January 2020, the Company was awarded a broadband grant from the DEED. The grant will provide up to 36.5% of the total cost of building fiber connections to homes and businesses for improved high-speed Internet in unserved or underserved communities and businesses in the Company’s service area. The Company is eligible to receive $730,000 of the approximately $2,000,000 total project costs. The Company will provide the remaining 63.5% matching funds. Construction and expenditures for these projects began in the spring of 2020 and were completed under budget in the third quarter of 2021. We have received $724,465 for these projects as of December 31, 2022.
● Net income in 2022 totaled $7,196,702, which was a $5,055,219, or 41.3% decrease compared to 2021. This decrease was primarily due to a decrease in operating income, increased interest expense and the PPP loan forgiveness that occurred in 2021, all of which are described below.
● Consolidated revenue for 2022 totaled $65,714,469, which was a $123,052 decrease compared to 2021. This decrease was primarily due to decreases in voice service, network access revenue, video services, FUSF subsidies and other revenues, partially offset by increases in data services, all of which are described below.
Business Trends
Included below is a synopsis of business trends management believes will continue to affect our business in 2023.
Voice and switched access revenues are expected to continue to be adversely impacted by future declines in access lines due to competition in the communications industry from CATV providers, VoIP providers, wireless, other competitors, emerging technologies and the on-going effects of COVID-19. As we experience access line losses, our switched access revenue will continue to decline consistent with industry-wide trends. A combination of changing minutes of use, carriers optimizing their network costs, lower demand for dedicated lines and downward rate pressures may affect our future voice and switched access revenues. Access line losses totaled 1,790 or 10.40% in 2022 compared to 2021 due to the reasons mentioned above.
The expansion of our advanced fiber communications network, growth in broadband connection sales along with continued migration to higher connectivity speeds and the sales of Internet value-added services such as on-line data backup, and hosted and managed service solutions are expected to continue to offset the revenue declines from the access line trends discussed above.
To be competitive, we continue to invest in our fiber broadband network and continue to focus on the research and deployment of advanced technological products that include broadband services, wireless services, private line, VoIP, digital video, IPTV and hosted and managed services.
We continue to evaluate our operating structure to identify opportunities for increased operational efficiencies and effectiveness. This involves evaluating opportunities for task automation, network efficiency and the balancing of our workforce based on the current needs of our customers.
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Financial results for the Communications Segment for the years ended December 31, 2022 and 2021 are included below:
| Telecom Segment | |||||||||||
| 2022 | 2021 | Increase (Decrease) | |||||||||
| Operating Revenues |
|
|
|
|
|
|
|
|
|
|
|
| Voice Service | $ | 5,694,428 | $ | 6,175,847 | $ | (481,419) | -7.8% | ||||
| Network Access |
|
| 4,759,084 |
|
| 5,652,372 |
|
| (893,288) |
| -15.8% |
| Video Service | 12,497,458 | 12,597,289 | (99,831) | -0.8% | |||||||
| Data Service |
|
| 27,028,332 |
|
| 25,495,739 |
|
| 1,532,593 |
| 6.0% |
| A-CAM/FUSF | 11,721,412 | 11,743,918 | (22,506) | -0.2% | |||||||
| Other |
|
| 4,013,755 |
|
| 4,172,356 |
|
| (158,601) |
| -3.8% |
| Total Operating Revenues |
| 65,714,469 |
| 65,837,521 |
| (123,052) | -0.2% | ||||
|
|
|
|
|
|
|
|
|
|
|
|
|
| Cost of Services, Excluding Depreciation and Amortization | 30,179,770 | 29,034,757 | 1,145,013 | 3.9% | |||||||
| Selling, General and Administrative |
|
| 9,916,482 |
|
| 10,377,186 |
|
| (460,704) |
| -4.4% |
| Depreciation and Amortization Expenses |
| 14,108,246 |
| 12,538,778 |
| 1,569,468 | 12.5% | ||||
| Total Operating Expenses |
|
| 54,204,498 |
|
| 51,950,721 |
|
| 2,253,777 |
| 4.3% |
|
|
|
|
| ||||||||
| Operating Income |
| $ | 11,509,971 |
| $ | 13,886,800 |
| $ | (2,376,829) |
| -17.1% |
|
|
|
|
| ||||||||
| Net Income |
| $ | 7,196,702 |
| $ | 12,251,921 |
| $ | (5,055,219) |
| -41.3% |
|
|
|
|
| ||||||||
| Capital Expenditures |
| $ | 37,977,118 |
| $ | 19,011,909 |
| $ | 18,965,209 |
| 99.8% |
|
|
|
|
| ||||||||
| Key metrics |
|
|
|
|
|
|
|
|
|
|
|
| Access Lines | 15,426 | 17,216 | (1,790) | -10.4% | |||||||
| Video Customers |
|
| 9,099 |
|
| 10,172 |
|
| (1,073) |
| -10.5% |
| Broadband Connections | 32,675 | 32,520 | 155 | 0.5% | |||||||
Revenue
Voice Service – We receive recurring revenue for basic voice services that enable customers to make and receive telephone calls within a defined local calling area for a flat monthly fee. In addition to subscribing to basic local voice services, our customers may choose from a variety of custom calling features such as call waiting, call forwarding, caller identification and voicemail. Voice service revenue was $5,694,428, which was $481,419 or 7.8% lower in 2022 compared to 2021. This decrease was primarily due to a decrease in access lines, which continues to be impacted by the on-going effects of COVID-19, which has accelerated an industry trend of customers moving to other communications options, partially offset by a combination of rate increases introduced into several of our markets in the past few years.
The number of access lines we serve as a company have been decreasing, which is consistent with a general industry trend, as customers are increasingly utilizing other technologies, such as wireless phones and IP services.
Network Access – We provide access services to other communications carriers for the use of our facilities to terminate or originate traffic on our network. Additionally, we bill SLCs to substantially all of our customers for access to the public switched network. These monthly SLCs are regulated and approved by the FCC. In addition, network access revenue was derived from several federally administered pooling arrangements designed to provide network support and distribute funding to communications companies. Network access revenue was $4,759,084, which was $893,288 or 15.8% lower in 2022 compared to 2021. This decrease was primarily due to lower minutes of use on our network and lower special access revenues, which continues to be impacted by the on-going effects of COVID-19, which has accelerated an industry trend of customers moving to other communications options.
32
In recent years, IXCs and others have become more aggressive in disputing both interstate carrier access charges and the applicability of access charges to their network traffic. We believe that long distance and other communication providers will continue to challenge the applicability of access charges either before the FCC or directly with the LECs. We cannot predict the likelihood of future claims and cannot estimate the impact.
Video Service – We receive monthly recurring revenue from our subscribers for providing commercial TV programming in competition with local CATV, satellite dish TV and off-air TV service providers. We serve twenty-two communities with our IPTV services and five communities with our CATV services. Video service revenue was $12,497,458, which was $99,831 or 0.8% lower in 2022 compared to 2021. This decrease was primarily due to a decrease in video customers, partially offset by a combination of rate increases introduced into several of our markets over the past few years. Our video service revenues continue to be impacted by the on-going effects of COVID-19, which has accelerated an industry trend of customers moving to other video options.
Data Service – We provide high speed Internet to business and residential customers. Our revenue is earned based on the offering of various flat rate packages based on the level of service, data speeds and features. We also provide e-mail and managed services, such as web hosting and design, on-line file back up and on-line file storage. Data service revenue was $27,028,332, which was $1,532,593 or 6.0% higher in 2022 compared to 2021. This increase was primarily due to an increase in data customers, customers upgrading their packages and speeds and the implementation of a monthly equipment charge to our customers. We expect continued growth in this area will be driven by completing our advanced FTTP network, expansion of our service areas and marketing managed service solutions to businesses.
A-CAM/FUSF – In 2019, the Company elected to receive funding from A-CAM, with the exception of Scott-Rice, which still receives funding from the FUSF. See Note 2 – “Revenue Recognition” for a discussion regarding FUSF.
A-CAM/FUSF support totaled $11,721,412, which was $22,506 or 0.2% lower in 2022 compared to 2021. This decrease was primarily due to lower FUSF support received due to lower traffic on our network resulting from our declining access lines.
Other Revenue – Our customers are billed for toll and long-distance services on either a per call or flat-rate basis. This also includes the offering of directory assistance, operator service and long distance private lines. We also generate revenue from directory publishing through an outside vendor, sales and service of CPE, bill processing and other customer services. Our directory publishing revenue in our telephone directories recurs monthly. We also provide retail sales and service of cellular phones and accessories through Telespire, a national wireless provider. We resell these wireless services as Nuvera Wireless, our branded product. We receive both recurring revenue for our wireless services, as well as revenue collected for the sales of wireless phones and accessories. Other revenue was $4,013,755, which was $158,601 or 3.8% lower in 2022 compared to 2021. This decrease was primarily due to decreases in the sales and installation of CPE, and lower long-distance revenues.
Cost of Services (Excluding Depreciation and Amortization)
Cost of services (excluding depreciation and amortization) was $30,179,770, which was $1,145,013 or 3.9% higher in 2022 compared to 2021. This increase was primarily due to higher costs associated with increased maintenance and support agreements on our equipment and software, and increased costs to maintain a highly-skilled workforce. We have experienced increased inflation in our operations in 2022 and expect future inflationary pressures could affect our costs to operate our business.
33
Selling, General and Administrative Expenses
Selling, general and administrative expenses were $9,916,482, which was $460,704 or 4.4% lower in 2022 compared to 2021. This decrease reflects cost containment efforts implemented in 2022, partially offset by increased costs associated with our FTTP network initiative. We have experienced increased inflation in our operations in 2022 and expect future inflationary pressures could affect our costs to operate our business.
Depreciation and Amortization
Depreciation and amortization was $14,108,246, which was $1,569,468 or 12.5% higher in 2022 compared to 2021. This increase was primarily due to accelerated depreciation on our copper cable networks as we transition to a new advanced FTTP network and increases in our advanced FTTP network assets, reflecting our continual investment in technology and infrastructure in order to meet our customers’ demands for products and services.
Operating Income
Operating income was $11,509,971, which was $2,376,829 or 17.1% lower in 2022 compared to 2021. This decrease was primarily due to higher costs of services and depreciation, all of which are described above.
See Consolidated Statements of Income (for discussion below)
Other Income (Expense) and Interest Expense
Other income in 2022 and 2021, included a patronage credit earned with CoBank, which was a result of our debt agreements with them. The patronage credit allocated and received in 2022 was $567,468, compared to $625,490 allocated and received in 2021. CoBank determines and pays the patronage credit annually, generally in the first quarter of the calendar year, based on its results from the prior year. We record these patronage credits as income when they are received.
Interest and dividend income increased $78,688 in 2022 compared to 2021. This increase was primarily due to increases in dividend income earned on our investments.
Interest expense increased $1,357,317 in 2022 compared to 2021. This increase was primarily due to higher outstanding debt balances and increased interest rates on our non-swapped debt in connection with our increased term debt credit facility and our increased revolving credit facility with CoBank to support our fiber-build initiative.
On February 3, 2021, the Company was notified by Citizens, the lender on the Company’s PPP Loan, that Citizens had received payment-in-full from the United States federal government for the amount of the Company’s PPP Loan and the Company’s PPP Loan had been fully forgiven resulting in a gain on debt forgiveness of $2,912,433, which was the total of the PPP Loan plus accrued interest on the loan.
The Company recognized a $217,876 unrealized gain on one of its investments for the year ended December 31, 2022.
Other investment income increased $106,698 in 2022 compared to 2021. Other investment income is primarily from our equity ownerships in several partnerships and limited liability companies.
Income Taxes
Income tax expense decreased by $1,033,310 in 2022 compared to 2021 as we recorded income tax expense of $2,698,663 in 2022 and $3,731,973 in 2021. The decrease in income taxes was primarily due to decreased operating income and increased interest expense. The effective income tax rate was approximately 27.3% for 2022 and 23.4% 2021. The difference between the effective tax rate and the federal statutory tax rate are reconciled in Note 8 – “Income Taxes.”
34
Non-GAAP Measures
In addition to the results reported with GAAP, we also use certain non-GAAP measures such as net earnings before interest expense, income taxes, and depreciation and amortization (EBITDA) and adjusted EBITDA to evaluate operating performance and to facilitate the comparison of our historical results and trends. These financial measures are not a measure of financial performance under GAAP and should not be considered in isolation or as a substitute for net income as a measure of performance and net cash provided by operating activities as a measure of liquidity. They are not, on their own, necessarily indicative of cash available to fund cash needs as determined in accordance with GAAP. The calculation of these non-GAAP measures may not be comparable to similarly titled measures used by other companies. Reconciliations of these non-GAAP measures to the most directly comparable financial measures presented in accordance with GAAP are provided below.
Adjusted EBITDA is comprised of EBITDA, adjusted for certain items as permitted or required under our credit facility as described in the reconciliations below. These measures are a common measure of operating performance in the communications industry and are useful, with other data, as a means to evaluate our ability to fund our estimated uses of cash.
The following table is a reconciliation of net income to adjusted EBITDA for the years ended December 31, 2022 and 2021.
|
|
|
|
2022 |
|
|
2021 |
|
|
|
|
|
|
|
|
|
Net Income |
|
$ |
7,196,702 |
|
$ |
12,251,921 |
|
Add (subtract): |
|
|
|
|
|
|
|
Interest Expense, net of interest income |
|
|
3,481,846 |
|
|
2,126,240 |
|
Income tax expense (benefit) |
|
|
2,698,663 |
|
|
3,731,973 |
|
Depreciation and amortization |
|
|
14,108,246 |
|
|
12,538,778 |
|
EBITDA |
|
|
27,485,457 |
|
|
30,648,912 |
|
|
|
|
|
|
|
|
|
Adjustments to EBITDA: |
|
|
|
|
|
|
|
Other, net ¹ |
|
|
(1,610,018) |
|
|
(4,043,089) |
|
Investment distributions ² |
|
|
(46,305) |
|
|
(30,245) |
|
Non-cash, stock-based compensation ³ |
|
|
64,301 |
|
|
187,951 |
|
Adjusted EBITDA |
|
$ |
25,893,435 |
|
$ |
26,763,529 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
¹ Includes the equity earnings from our investments, patronage income, PPP Loan forgiveness, |
||||||
|
² Includes other cash distributions received from our investments less cash dividends. |
||||||
|
³ Represents compensation expenses in connection with the issuance of stock awards, |
||||||
35
Liquidity and Capital Resources
Capital Structure
Nuvera’s total capital structure (long-term and short-term debt obligations, net of unamortized loan fees plus stockholders’ equity) was $181,134,049 at December 31, 2022, reflecting 56.6% equity and 43.4% debt. This compares to a capital structure of $146,277,211 at December 31, 2021, reflecting 67.4% equity and 32.6% debt. In the communications industry, debt financing is most often based on operating cash flows. Specifically, our current use of our credit facilities is in a ratio of approximately 3.13 times debt to EBITDA (as defined in the loan documents), which is well within acceptable limits for our agreements and our industry. Our management believes adequate operating cash flows and other internal and external resources, such as our cash on hand, and new credit facility are available to finance ongoing operating requirements, including capital expenditures, business development, debt service and temporary financing of trade accounts receivable.
Liquidity Outlook
Our short-term and long-term liquidity needs arise primarily from (i) capital expenditures; (ii) working capital requirements needed to support our growth; (iii) debt service; (iv) dividend payments on our stock and (v) potential acquisitions.
Our primary sources of liquidity for the year ended December 31, 2022 were proceeds from cash generated from operations and cash reserves held at the beginning of the period. As of December 31, 2022, we had a working capital surplus of $18,161,983. In addition, as of December 31, 2022, we had $10.1 million available under our revolving credit facility to fund any short-term working capital needs. Also we have a $40.0 million delayed draw term loan available to fund our fiber expansion plans. The working capital surplus as of December 31, 2022 was primarily the result of increased inventories to support our fiber-build initiative and a delay in principal payments to CoBank as a part of our new debt facility with them.
We have not conducted a public equity offering. We operate with original equity capital, retained earnings and additions to indebtedness in the form of senior debt and bank lines of credit.
Impact of COVID-19 on Our Cash Flows
The global spread of COVID-19 and the various attempts to contain it may create volatility with our future cash flows. Our future cash flows are could be impacted by our customer’s inability to pay for or keep their existing services, or their inability to acquire our services due to their personal financial hardships created by COVID-19. We may not be able to expand our network, acquire new customers or service existing customers based on our future cash flow position. We continue to monitor our discretionary spending in reaction to the COVID-19 pandemic. We have experienced disruptions in our business as we implemented modifications to preserve adequate liquidity and ensure that our business can continue to operate during this uncertain time.
Cash Flows
We expect our liquidity needs to include capital expenditures, payment of interest and principal on our indebtedness, income taxes and dividends. We use our cash inflow to manage the temporary increases in cash demand and utilize our revolving credit facility to manage more significant fluctuations in liquidity caused by growth initiatives.
While it is often difficult for us to predict the impact of general economic conditions, including the impact of COVID-19 on us, we believe that we will be able to meet our current and long-term cash requirements primarily through our operating cash flows and anticipated debt financing and anticipate that we will be able to plan for and match future liquidity needs with future internal and available external resources.
36
We periodically seek to add growth initiatives by either expanding our network or our markets through organic or internal investments or through strategic acquisitions. We believe we can adjust the timing or the number of our initiatives according to any limitations which may be imposed by our capital structure or sources of financing.
The following table summarizes our cash flow:
|
|
For Year Ended December 31 |
|
|
||||||||
|
|
2022 |
|
2021 |
|
Increase (Decrease) |
||||||
|
Net cash provided by (used in): |
|
|
|
|
|
|
|
|
|
|
|
|
Operating activities |
$ |
26,524,265 |
$ |
20,782,468 |
$ |
5,741,797 |
27.63% |
||||
|
Investing activities |
|
|
(53,624,237) |
|
|
(21,253,732) |
|
|
(32,370,505) |
|
-152.31% |
|
Financing activities |
|
25,104,379 |
|
(5,840,247) |
|
30,944,626 |
|
529.85% |
|||
|
Change in cash |
|
$ |
(1,995,593) |
|
$ |
(6,311,511) |
|
$ |
4,315,918 |
|
-68.38% |
Cash Flows from Operating Activities
Cash generated by operations for the year ended December 31, 2022 was $26,524,265, compared to cash generated by operations of $20,782,468 in 2021. The increase in cash from operating activities in 2022 was primarily due to the timing of the increase/decrease in assets and liabilities, which included the accrual of interest payments on our CoBank loan that were paid in 2023 and the timing of income tax payments.
Cash generated by operations continues to be our primary source of funding for existing operations, capital expenditures, debt service and dividend payments to stockholders. Cash as of December 31, 2022 was $310,556, compared to $2,306,149 at December 31, 2021.
Cash Flows from Investing Activities
We operate in a capital-intensive business. We continue to upgrade our advanced fiber networks for changes in technology in order to provide advanced services to our customers.
Cash flows used in investing activities were $53,624,237 for the year ended December 31, 2022, compared to $21,253,732 used in investing activities in 2021. Capital expenditures relating to our fiber initiative and on-going operations were $37,977,118 in 2022 and $19,011,909 in 2021. Materials and supply expenditures increased by $15,651,923 in 2022. This increase was primarily due to a large purchase of these items to support our fiber-build initiatives and to avoid anticipated supply chain issues and increased inflation we are expecting in future periods. Our investing expenditures were financed with cash flows from our current operations and advances on our line of credit when needed. We believe that our current operations and new debt financing from CoBank will provide adequate cash flows to fund our plant additions for the upcoming year; however, funding from our revolving credit facility is available if the timing of our cash flows from operations does not match our cash flow requirements. As of December 31, 2022, we had $10.1 million available under our existing revolving credit facility and $40.0 million on our delayed draw term to fund capital expenditures and other operating needs.
Cash Flows Provided By/(Used In) Financing Activities
Cash provided by financing activities for the year ended December 31, 2022 was $25,104,379. This included long-term debt repayments of $57,330,775, loan proceeds of $56,063,223, loan origination fees of $1,165,859, changes in our revolving credit facility and delayed draw term loan of $33,172,860, grants received for plant construction of $396,360, the repurchase of common stock of $3,187,500 and the distribution of $2,843,930 of dividends to stockholders. Cash used in financing activities for the year ended December 31, 2021 was $5,840,247. This included long-term debt repayments of $4,610,400, changes in revolving credit facility of $1,077,589, grants received for plant construction of $724,465, the repurchase of common stock of $167,467 and the distribution of $2,864,434 of dividends to stockholders. The change in cash flows used in financing activities in 2022 was primarily due to changes in our revolving credit facility and delayed draw term loan associated with our new credit agreement for funding our fiber initiative, partially offset by the repurchase of common stock.
37
Working Capital
We had a working capital surplus (i.e. current assets minus current liabilities) of $18,161,983 as of December 31, 2022, with current assets of approximately $29.8 million and current liabilities of approximately $11.6 million, compared to a working capital surplus of $2,545,129 at December 31, 2021. The ratio of current assets to current liabilities was 2.56 and 1.23 at December 31, 2022 and 2021. The working capital surplus as of December 31, 2022 was primarily the result of increased inventories to support our fiber-build initiative and a delay in principal payments to CoBank as part of our new debt facility with them.
At December 31, 2022 and 2021 we were in compliance with all stipulated financial ratios in our loan agreements.
Long-Term Debt and Revolving Credit Facilities
Our long-term debt obligations as of December 31, 2022, were $79,885,082 (excluding long-term loan origination fees). Our long-term debt obligations as of December 31, 2021, were $43,369,374 (excluding long-term loan origination fees), net of current debt maturities of $4,610,400 (excluding short-term loan origination fees).
On July 15, 2022, Nuvera and CoBank entered into (i) an Agreement Regarding Amendments to Loan Documents and (ii) an Amended and Restated Revolving Loan Promissory Note. The agreements amended our existing credit facility with CoBank and secured a new credit facility in the aggregate principal amount of $130.0 million.
Under the Agreements, among other things, (i) the Company received a $50.0 million term loan to replace existing debt, (ii) a $50.0 million delayed draw term loan, (iii) the Company’s revolving loan was increased from $20.0 million to $30.0 million, (iv) the maturity date of the term loans were set at July 15, 2029, and the maturity day of the revolving loan was set at July 15, 2027, and (v) the Company’s operating subsidiaries’ agreed to extend their previous guarantees, security interests and mortgages to cover the increased amount of the revolving note. The financing was secured to facilitate the Company’s advanced fiber-build plans announced on December 15, 2021. Refer to the Company’s 8-K filing with the SEC on July 20, 2022 for further details regarding the new credit agreements with CoBank.
Our Long-Term Debt consists of the following notes:
New Credit Agreement
● TERM A-1 LOAN - $50,000,000 term note with interest payable quarterly. Final maturity date of this note is July 15, 2029. Twelve quarterly principal payments of $625,000 are due commencing December 31, 2025 through September 30, 2028, and three quarterly principal payments of $937,500 commencing on December 31, 2028 through maturity date. A final balloon payment of $39,687,500 is due at maturity of this note on July 15, 2029.
● DELAYED DRAW TERM LOAN - $50,000,000 Delayed Draw Term Loan with interest on any outstanding amounts payable quarterly. Final maturity date of this loan is July 15, 2029. Twelve quarterly principal payments of 1.25% of the outstanding loan balance are due commencing December 31, 2025 through September 30, 2028, and three quarterly principal payments of 1.875% of the outstanding loan balance commencing on December 31, 2028 through maturity date. A final balloon payment of the balance of the Delayed Draw Term Loan is due at maturity of this note on July 15, 2029. We currently have drawn $10,000,000 on this Delayed Draw Term Loan as of December 31, 2022.
38
● REVOLVING LOAN - $30,000,000 revolving loan with interest payable quarterly. Final maturity date of this note is July 15, 2027. We currently have drawn $19,885,082 on this revolving note as of December 31, 2022.
The term loan borrowings initially bear interest at a “Margin for Base Rate Loans” of 2.15% above the applicable base rate. The margin for base rate loans for term loans increases as our “Leverage Ratio” increases. The revolving loan borrowings initially bear interest at a “Margin for Base Rate Loans” of 1.90% above the applicable base rate. The margin for base rate loans for revolving loans increases as our “Leverage Ratio” increases.
We generally use variable-rate debt to finance our operations, capital expenditures and acquisitions. These variable-rate debt obligations expose us to variability in interest payments due to changes in interest rates. The terms of our credit facility with CoBank require that we enter into interest rate agreements designed to protect us against fluctuations in interest rates, in an aggregate principal amount and for a duration determined under the credit facility.
Under the new credit facility, Nuvera has the ability to enter into IRSAs in connection with amounts borrowed from CoBank. In connection with the closing of the new credit facility, the Company “rolled over” its two exiting IRSAs.
As described in Note 7 – “Interest Rate Swaps,” on August 1, 2018 we entered into an IRSA with CoBank covering 25 percent of our then existing debt balance or $16,137,500 of our aggregate indebtedness to CoBank on August 1, 2018. As of December 31, 2022, our IRSA covered $10,950,800, with a weighted average interest rate of 4.36%.
As described in Note 7 – “Interest Rate Swaps,” on August 29, 2019 we entered into a second IRSA with CoBank covering an additional $42,000,000 of our then aggregate indebtedness to CoBank on August 29, 2019. As of December 31, 2022, our IRSA covered $30,693,138, with a weighted average interest rate of 2.69%.
Our remaining outstanding debt of $38.2 million remains subject to variable interest rates at an effective weighted average interest rate of 7.99%, as of December 31, 2022.
As of December 31, 2022 our additional delayed draw term loan of $40.0 million and unused revolving credit facility of $10.1 million are subject to an unused commitment fee of 0.25% annually, until drawn. Once drawn, this debt would be subject to an effective weighted average interest rate based on current rate of interest in effect at the time.
Under the new credit agreement, the Company and its respective subsidiaries have entered into security agreements under which substantially all the assets of Nuvera and its respective subsidiaries have been pledged to CoBank as collateral. In addition, Nuvera and its respective subsidiaries have guaranteed all the obligations under the credit facility. The credit agreement contains certain customary events of default, which include failure to make payments when due, the material inaccuracy of representations or warranties, failure to observe or perform certain covenants, cross-defaults, bankruptcy and insolvency-related events, certain judgments, certain ERISA-related events, or a change in control (as defined in the credit agreement). The term mortgage notes are required to be paid in quarterly installments covering principal and interest, beginning on December 31, 2025 and maturing on July 15, 2029. The revolving mortgage is to be paid at maturity on July 15, 2027.
Our loan agreements include restrictions on our ability to pay cash dividends to our stockholders. However, we are allowed to pay dividends in an amount up to $3,000,000 in any year as long as no default or event of default have occurred. Our current Total Leverage Ratio as of December 31, 2022, was 3.13.
39
Our credit facility requires us to comply with specified financial ratios and tests. These financial ratios include total leverage ratio, debt service coverage ratio and equity to total assets ratio. At December 31, 2022, we were in compliance with all the stipulated financial ratios in our loan agreements.
There are security and loan agreements underlying our current CoBank credit facility that contain restrictions on our distributions to stockholders and investment in, or loans, to others. Also, our credit facility contains restrictions that, among other things, limits or restricts our ability to enter into guarantees and contingent liabilities, incur additional debt, issue stock, transact asset sales, transfers or dispositions, and engage in mergers and acquisitions, without CoBank approval.
On April 16, 2020, Nuvera received a $2,889,000 loan under the SBA’s PPP, which was established as part of the Coronavirus Aid, Relief Economic Security Act (CARES Act). The PPP Loan was unsecured and was evidenced by a note in the favor of Citizens as the lender. On February 3, 2021, the Company was notified by Citizens, the lender on the Company’s PPP Loan that Citizens had received payment in full from the United States federal government for the amount of the Company’s PPP Loan and the Company’s PPP Loan had been fully forgiven. We recognized a gain on the forgiveness of $2,912,433, which included the original amount of the loan plus accrued interest in the quarter ended March 31, 2021.
See Note 6 – “Long-Term Debt” for information pertaining to our long-term debt and current effective interest rates.
Guarantees
We have guaranteed a portion of the obligations of our Nuvera subsidiary joint venture investment in FiberComm. See Note 13 – “Guarantees.”
Critical Accounting Policies and Estimates
Management’s discussion and analysis of financial condition and results of operations stated in this 2022 Annual Report on Form 10-K are based upon Nuvera’s consolidated financial statements that have been prepared in accordance with GAAP, rules and regulations of the SEC and, where applicable, conform to the accounting principles as prescribed by federal and state telephone utility regulatory authorities. We presently give accounting recognition to the actions of regulators where appropriate. The preparation of our financial statements requires our management to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue and expenses, and the related disclosure of contingent assets and liabilities at the date of the financial statements and during the reporting period. Actual results may differ from these estimates. Our senior management has discussed the development and selection of accounting estimates and the related Management Discussion and Analysis disclosure with our Audit Committee. For a summary of our significant accounting policies, see Note 1 – “Business Description and Summary of Significant Accounting Policies.”
Revenue Recognition
See Note 2 – “Revenue Recognition” for a discussion of our revenue recognition policies.
Allowance for Doubtful Accounts
We maintain allowances for doubtful accounts for estimated losses resulting from the inability of our customers to make required payments. In making the determination of the appropriate allowance for doubtful accounts, we consider specific accounts, historical write-offs and changes in customer relationships, credit worthiness and concentrations of credit risk. Specific accounts receivable are written off once a determination is made that the account is uncollectible. Additional allowances may be required if the financial condition of our customers were to deteriorate, resulting in an impairment of their ability to make payments. Our allowance for doubtful accounts was $140,000 and $80,000 as of December 31, 2022 and 2021.
40
Valuation of Goodwill
We have goodwill on our books related to prior acquisitions of communications company properties. As discussed more fully in Note 5 – “Goodwill and Intangibles,” and in accordance with GAAP, goodwill is reviewed for impairment annually or more frequently if an event occurs or circumstances change that would reduce the fair value below its carrying value. We perform our annual fair value evaluation in the fourth quarter of each year.
The impairment test for goodwill involves measuring a goodwill impairment loss by comparing the implied fair value of a reporting unit’s goodwill with the carrying amount of that goodwill. Any excess of the carrying value of the reporting unit goodwill over the implied fair value of the reporting unit goodwill will be recorded as an impairment loss.
In 2022 and 2021, we engaged an independent valuation firm to aid in the completion of an annual impairment test for existing goodwill acquired. For 2022 and 2021, the testing resulted in no impairment to goodwill as the determined fair value was sufficient to pass the impairment test. We used a combination of Income (Discounted Cash Flow Method or DCF Method) and Market Approaches to estimate the fair value of the goodwill on our books related to prior acquisitions of communications company properties. The assumptions used in the estimates of fair value were based on projections provided by our management and a rate of return based on market information observed in debt and traded equity securities. Their Market Approaches considered market multiples observed in companies comparable to ours, traded on public exchange or over-the-counter, or transacted in a merger or acquisition transaction.
Assumptions used in our 2022 DCF model include the following:
● A 9.00% weighted average cost of capital based on an industry weighted average cost of capital;
● A 2.0% terminal revenue growth rate.
The most significant amount of goodwill recorded on our books was due to the acquisitions of HTC, SETC and Scott-Rice. The carrying value of the goodwill was $49,903,029 as of December 31, 2022 and 2021.
In 2022, we tested the HTC, SETC and Scott-Rice goodwill. Based on the DCF model approach that was used, we determined the estimated enterprise fair value of our reporting units exceeded the carrying amount of that reporting units by approximately 20.8%, 24.5% and 27.7% for HTC, SETC and Scott-Rice, respectively, which indicated that we had no impairment as of December 31, 2022. Future negative changes relating to our financial operations could result in a potential impairment of goodwill.
Income Taxes
The provision for income taxes consists of an amount for taxes currently payable and a provision for tax consequences deferred to future periods. Deferred income taxes are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities, and their respective tax basis. Significant components of our deferred taxes arise from differences (i) in the basis of property, plant and equipment due to the use of accelerated depreciation methods for tax purposes, as well as (ii) in partnership investments and intangible assets due to the difference between book and tax basis. Our effective income tax rate is normally higher than the United States tax rate due to state income taxes and permanent differences.
We account for income taxes in accordance with GAAP, which requires an asset and liability approach to financial accounting and reporting for income taxes. As required by GAAP, we recognize the financial statement benefit of a tax position only after determining that the relevant tax authority would more-likely-than-not sustain the position following an audit. For tax positions meeting the more-likely-than-not threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority.
41
In accordance with GAAP, we record net unrecognized tax benefits that, if recognized, would affect the income tax provision when recorded. See Note 8 – “Income Taxes.”
As of December 31, 2022 and 2021 we had $19,787 and $38,673 of unrecognized tax benefits.
We are primarily subject to United States, Minnesota, Iowa, Nebraska, North Dakota and Wisconsin income taxes. Tax years subsequent to 2018 remain open to examination by federal and state tax authorities. During the year ending December 31, 2022 we settled our examination by the State of Minnesota. The examination did not have a material effect on our financial statements. Our policy is to recognize interest and penalties related to income tax matters as income tax expense. As of December 31, 2022 and 2021 we had $3,518 and $4,102 of interest or penalties accrued that related to income tax matters.
Property, Plant and Equipment
We record impairment losses on long-lived assets used in operations when events and circumstances indicate the assets might be impaired and the undiscounted cash flows estimated to be generated by those assets are less than the carrying amounts of those assets. In assessing the recoverability of long-lived assets, we compare the carrying value to the undiscounted future cash flows the assets are expected to generate. If the total of the undiscounted future cash flows is less than the carrying amount of the assets, we would write down those assets based on the excess of the carrying amount over the fair value of the assets. Fair value is generally determined by calculating the discounted future cash flows expected from those assets. Changes in these estimates could have a material adverse effect on the assessment of long-lived assets, thereby requiring a write-down of the assets. Write-downs of long-lived assets are recorded as impairment charges and are a component of operating expenses. We have reviewed our long-lived assets and concluded that no impairment charge on these long-lived assets is necessary.
We use the group life method (mass asset accounting) to depreciate the assets of our communication companies. Communications plant acquired in a given year is grouped into similar categories and depreciated over the remaining estimated useful life of the group. When an asset is retired, both the asset and the accumulated depreciation associated with that asset are removed from the books. Due to rapid changes in technology, selecting the estimated economic life of communications plant and equipment requires a significant amount of judgment. We periodically review data on the expected utilization of new equipment, asset retirement activity and net salvage values to determine adjustments to our depreciation rates.
Equity Method Investment
We are an investor in several partnerships and limited liability corporations. Our percentages of ownership in these joint ventures range from 7.54% to 24.30%. We use the equity method of accounting for these investments, which reflects original cost and the recognition of our share of the net income or losses from the respective operations.
Incentive Compensation
We engaged an outside consultant in 2005 to advise us in our development of an Employee Incentive Plan (EIP) for employees other than executive officers and a Management Incentive Plan (MIP) for our executive officers. Both plans were implemented in 2006. Both of these plans are cash/stock-based/Option-based incentive plans. Payments on each plan are based on an achievement of objectives of measurable corporate and operational performance with financial targets. The financial targets include the achievement of specified certain operating income before interest, taxes, depreciation and amortization criteria, while the operational targets are based upon fiber passings, fiber connections, and net Internet customer additions. The EIP permits the issuance of up to 200,000 shares of our Common Stock in stock awards.
42
We accrue an estimated liability each year for these potential payouts and reverse that accrual if the incentive payout targets are not met and paid out. Incentive payouts, if earned, are typically paid in late March of the year following the target year and after the filing of our Annual Report on Form 10-K.
On February 24, 2017, our BOD adopted the Nuvera Communications, Inc. 2017 Omnibus Stock Plan (OSP) effective May 25, 2017. The shareholders of the Company approved the OSP at the May 25, 2017 Annual Meeting of Shareholders. The purpose of the OSP was to enable Nuvera and its subsidiaries to attract and retain talented and experienced people, closely link employee compensation with performance realized by shareholders, and reward long-term results with long-term compensation. The OSP enables us to grant stock incentive awards to current and new employees, including officers, and to Board members and service providers. The OSP permits stock incentive awards in the form of Options (incentive and non-qualified), stock appreciation rights, restricted stock, restricted stock units (RSU’s), performance stock, performance units, and other awards in stock or cash. The OSP permits the issuance of up to 625,000 shares of our Common Stock in any of the above stock awards.
See Note 15 – “Stock Based Compensation” for a detailed discussion of our incentive compensation and RSUs.
Recent Accounting Developments
See Note 1 – “Business Description and Summary of Significant Accounting Policies” for a discussion of recent accounting developments.
Item 7A. Quantitative and Qualitative Disclosures about Market Risk
Not required for a smaller reporting company.
43
Item 8. Financial Statements and Supplementary Data
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of Nuvera Communications, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Nuvera Communications, Inc. (a Minnesota corporation) and subsidiaries (the Company) as of December 31, 2022 and 2021, and the related consolidated statements of income, comprehensive income, stockholders’ equity and cash flows for the years then ended, and the related notes (collectively referred to as the consolidated financial statements). In our opinion, the consolidated financial statements, present fairly, in all material respects, the consolidated financial position of the Company as of December 31, 2022 and 2021, and the consolidated results of their operations and their cash flows for the years then ended in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of a critical audit matter does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
44
Evaluation of Goodwill for Impairment
Description of the Matter
At December 31, 2022, the Company’s goodwill balance was $49,903,029. As discussed in Note 5 to the consolidated financial statements, reporting unit goodwill is tested for impairment at least annually or when events or circumstances indicate the fair value of a reporting unit may be below its carrying value. This analysis involves comparing the carrying value of a reporting unit’s equity against the estimated fair value of the reporting units equity which is determined using discounted cash flow (DCF) models and market based approaches using market multiples of peer companies which offer comparable services to its reporting units. These fair value estimates are sensitive to significant assumptions, such as cash flow projections, operating and EBITDA margins, discount rates, terminal values, subscriber growth, and capital investment. These assumptions are affected by expectations about future market and economic conditions.
Auditing management’s annual impairment tests for goodwill was complex because of the significant judgment required to evaluate the management assumptions described above used to determine the fair value of the reporting units.
How We Addressed the Matter in Our Audit
We obtained an understanding of the controls over the Company’s goodwill impairment review processes. This included controls over management’s use of both an outside specialist and internal review of the valuation models and the significant assumptions noted above, utilized in both the DCF and market valuation methods.
To test the estimated fair value of the Company’s reporting units, we involved our valuation specialists to assist us in performing our audit procedures. Our procedures included, among others, testing the valuation methodology used and the significant assumptions within the valuation methodology. For example, we compared the significant assumptions to current industry, market and economic trends, and other guideline companies in the same industry and to other factors. Where appropriate, we evaluated whether changes to the company’s business model, customer base and other factors would affect the significant assumptions. We also assessed the historical accuracy of management’s past estimates, tested the clerical accuracy of the valuation calculations, and performed independent sensitivity analyses. In addition, we tested management’s reconciliation of the cumulative fair value of its reporting units to the market capitalization of the Company.
We have served as the Company’s auditor since 2008.
/s/
March 16, 2023
45
| NUVERA COMMUNICATIONS, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME FOR THE YEARS ENDED DECEMBER 31, 2022 AND 2021 | |||||
| 2022 | 2021 | ||||
| OPERATING REVENUES: |
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| Voice Service | $ | | $ | | |
| Network Access |
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| Video Service | | | |||
| Data Service |
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| A-CAM/FUSF | | | |||
| Other Non-Regulated |
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| Total Operating Revenues |
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| OPERATING EXPENSES: | |||||
| Plant Operations (Excluding Depreciation |
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| Cost of Video | | | |||
| Cost of Data |
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| Cost of Other Non-Regulated Services | | | |||
| Depreciation and Amortization |
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| Selling, General, and Administrative |
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| Total Operating Expenses |
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| OPERATING INCOME |
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| OTHER INCOME (EXPENSE): |
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| Interest During Construction |
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| CoBank Patronage Dividends | | | |||
| Interest/Dividend Income |
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| Interest Expense | ( | ( | |||
| Gain on PPP Loan Forgiveness |
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| Gain on Investments | | ||||
| Other Investment Income |
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| Total Other Income (Expense) |
| ( |
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| INCOME BEFORE INCOME TAXES | | | |||
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| INCOME TAXES |
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| NET INCOME | $ | | $ | | |
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| NET INCOME PER SHARE | |||||
| Basic | $ | |
| $ | |
| Diluted | $ | | $ | | |
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| DIVIDENDS PER SHARE | $ | | $ | | |
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| WEIGHTED AVERAGE SHARES OUTSTANDING | |||||
| Basic |
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| Diluted |
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| The accompanying notes are an integral part of these consolidated financial statements. | |||||
46
|
NUVERA COMMUNICATIONS, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME FOR THE YEARS ENDED DECEMBER 31, 2022 AND 2021
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2022 |
2021 |
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NET INCOME |
$ |
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$ |
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OTHER COMPREHENSIVE INCOME |
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Unrealized Gains on Interest Rate Swaps |
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Income Tax Expense Related to Unrealized |
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Gains on Interest Rate Swaps |
( |
( |
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OTHER COMPREHENSIVE INCOME |
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COMPREHENSIVE INCOME |
$ |
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$ |
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The accompanying notes are an integral part of these consolidated financial statements. |
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47
|
NUVERA COMMUNICATIONS, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS DECEMBER 31, 2022 AND 2021 |
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ASSETS |
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2022 |
2021 |
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CURRENT ASSETS: |
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Cash |
$ |
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$ |
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Receivables, Net of Allowance for |
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Income Taxes Receivable |
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Materials, Supplies and Inventories |
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Prepaid Expenses and Other Current Assets |
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Total Current Assets |
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INVESTMENTS & OTHER ASSETS: |
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Goodwill |
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Intangibles |
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Other Investments |
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Right of Use Asset |
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Financial Derivative Instruments |
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Other Assets |
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Total Investments and Other Assets |
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PROPERTY, PLANT & EQUIPMENT: |
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Communications Plant |
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Other Property & Equipment |
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Video Plant |
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Total Property, Plant and Equipment |
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Less Accumulated Depreciation |
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Net Property, Plant & Equipment |
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TOTAL ASSETS |
$ |
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$ |
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The accompanying notes are an integral part of these consolidated financial statements. |
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48
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NUVERA COMMUNICATIONS, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (continued) DECEMBER 31, 2022 AND 2021 |
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LIABILITIES AND STOCKHOLDERS' EQUITY |
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2022 |
2021 |
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CURRENT LIABILITIES: |
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Current Portion of Long-Term Debt, Net of |
$ |
$ |
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Accounts Payable |
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Other Accrued Taxes |
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Deferred Compensation |
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Accrued Compensation |
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Other Accrued Liabilities |
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Total Current Liabilities |
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LONG-TERM DEBT, Net of Unamortized |
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Loan Fees |
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NONCURRENT LIABILITIES: |
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Loan Guarantees |
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Deferred Income Taxes |
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Unrecognized Tax Benefit |
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Other Accrued Liabilities |
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Financial Derivative Instruments |
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Deferred Compensation |
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Total Noncurrent Liabilities |
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COMMITMENTS AND CONTINGENCIES: |
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STOCKHOLDERS' EQUITY: |
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Preferred Stock $ |
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Common Stock - $ |
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Accumulated Other Comprehensive Gain (Loss) |
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( |
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Unearned Compensation |
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Retained Earnings |
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Total Stockholders' Equity |
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TOTAL LIABILITIES AND |
$ |
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$ |
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The accompanying notes are an integral part of these consolidated financial statements. |
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49
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NUVERA COMMUNICATIONS, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE YEARS ENDED DECEMBER 31, 2022 AND 2021 |
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2022 |
2021 |
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CASH FLOWS FROM OPERATING ACTIVITIES: |
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Net Income |
$ |
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$ |
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Adjustments to Reconcile Net Income to Net Cash |
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Depreciation and Amortization |
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PPP Loan Forgiveness |
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( |
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Unrealized Gains on Investments |
( |
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Undistributed Earnings of Other Equity Investment |
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( |
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( |
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Noncash Patronage Refund |
( |
( |
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Stock Issued in Lieu of Cash Payment |
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Distributions from Equity Investments |
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Stock-based Compensation |
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Changes in Assets and Liabilities: |
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Receivables |
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( |
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Income Taxes Receivable |
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( |
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Inventories for Resale |
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( |
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Prepaid Expenses |
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( |
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Other Assets |
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( |
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( |
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Accounts Payable |
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Other Accrued Taxes |
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( |
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Other Accrued Liabilities |
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( |
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Deferred Income Tax |
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Deferred Compensation |
( |
( |
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Net Cash Provided by Operating Activities |
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CASH FLOWS FROM INVESTING ACTIVITIES: |
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Additions to Property, Plant, and Equipment, Net |
( |
( |
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Materials and Supplies for Construction |
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( |
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( |
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Other, Net |
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( |
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Net Cash Used in Investing Activities |
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( |
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( |
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CASH FLOWS FROM FINANCING ACTIVITIES: |
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Principal Payments of Long-Term Debt |
( |
( |
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Loan Proceeds |
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Loan Origination Fees |
( |
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Changes in Revolving Credit Facility |
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Grants Received for Construction of Plant |
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Repurchase of Common Stock |
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( |
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( |
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Dividends Paid |
( |
( |
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Net Cash Used in Financing Activities |
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( |
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NET CHANGE IN CASH |
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( |
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( |
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CASH at Beginning of Period |
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CASH at End of Period |
$ |
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$ |
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Supplemental cash flow information: |
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Cash paid for interest |
$ |
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$ |
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Net cash paid (received) for income taxes |
$ |
( |
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$ |
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The accompanying notes are an integral part of these consolidated financial statements. |
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50
|
NUVERA COMMUNICATIONS, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY FOR THE YEARS ENDED DECEMBER 31, 2022 AND 2021 |
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Accumulated Other Comprehensive Income (Loss) |
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Common Stock |
Unearned Compensation |
Retained Earnings |
Total Equity |
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Shares |
Amount |
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BALANCE on December 31, 2020 |
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$ |
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$ |
( |
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$ |
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$ |
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$ |
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Directors Stock Plan |
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Employee Stock Plan |
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Restricted Stock Grant |
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Exercise of RSU's |
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( |
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Repurchase of Common Stock |
( |
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( |
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( |
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( |
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Net Income |
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Dividends |
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( |
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( |
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Unrealized Gain on Interest Rate Swap |
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BALANCE on December 31, 2021 |
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( |
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Directors Stock Plan |
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Employee Stock Plan |
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Restricted Stock Grant |
( |
( |
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Non-Cash, Share-Based Compensation |
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Exercise of RSU's |
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( |
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Repurchases of Common Stock |
( |
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( |
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( |
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( |
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Net Income |
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Dividends |
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|
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|
( |
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( |
|
Unrealized Gain on Interest Rate Swap |
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BALANCE on December 31, 2022 |
|
$ |
|
$ |
|
$ |
|
$ |
|
$ |
|
|||||
|
The accompanying notes are an integral part of these consolidated financial statements. |
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51
NOTE 1 – BUSINESS DESCRIPTION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Description of Business
Nuvera is a diversified communications company headquartered in New Ulm, Minnesota with more than 117 years of experience in the communications business. Our principal line of business is the operation of seven communications companies. Our businesses consist of connecting customers to our state-of-the-art, advanced fiber communications network, providing managed services, switched service and dedicated private lines, connecting customers to long distance service providers and providing many other services associated with our company. We also provide IPTV, CATV, Internet access services, including high-speed broadband access, and long distance service. We also install and maintain communications systems to the areas in and around our service territories in southern Minnesota and northern Iowa.
Basis of Presentation and Principles of Consolidation
Our accounting policies conform to GAAP and rules and regulations of the SEC and, where applicable, conform to the accounting principles as prescribed by federal and state telephone utility regulatory authorities. We presently give accounting recognition to the actions of regulators where appropriate in preparing general purpose financial statements for most public utilities. In general, the type of regulation covered by this statement permits rates (prices) for some services to be set at levels intended to recover the estimated costs of providing regulated services or products, including the cost of capital (interest costs and a provision for earnings on stockholders’ investments).
Our consolidated financial statements report the financial condition and results of operations for Nuvera and its subsidiaries in
Classification of Costs and Expenses
Cost of services (excluding depreciation and amortization) includes all costs related to the delivery of communication services and products. These operating costs include all costs of performing services and providing related products including engineering, network monitoring and transportation costs.
Selling, general and administrative expenses include direct and indirect selling expenses, customer service, billing and collections, advertising and all other general and administrative costs associated with our operations.
Use of Estimates
The preparation of our consolidated financial statements in conformity with GAAP requires our management to make estimates and judgements that affect the reported amounts of assets, liabilities, revenue and expenses, and the related disclosure of contingent assets and liabilities. The estimates and judgements used in the accompanying consolidated financial statements are based on our management’s evaluation of the relevant facts and circumstances as of the date of the financial statements. Actual results may differ from those estimates and assumptions.
Revenue Recognition
See Note 2 – “Revenue Recognition” for a discussion of our revenue recognition policies.
Receivables
As of December 31, 2022 and 2021, our consolidated receivables totaled $
52
Allowance for Doubtful Accounts
We maintain allowances for doubtful accounts for estimated losses resulting from the inability of our customers to make required payments. In making the determination of the appropriate allowance for doubtful accounts, we consider specific accounts, historical write-offs and changes in customer relationships, credit worthiness and concentrations of credit risk. Specific accounts receivable are written off once a determination is made that the account is uncollectible. Additional allowances may be required if the financial condition of our customers were to deteriorate, resulting in an impairment of their ability to make payments.
The activity in our allowance for doubtful accounts includes the following:
| Year Ended December 31 | |||||
| 2022 | 2021 | ||||
| Balance at beginning of year | $ | |
| $ | |
| Additions charged to costs and expenses | | | |||
| Accounts written off, net of recoveries |
| ( |
|
| ( |
| Balance at end of year | $ | | $ | | |
Inventories
Inventory includes parts, materials and supplies stored in our warehouses to support basic levels of service and maintenance as well as scheduled capital projects and equipment awaiting configuration for customers. Inventory also includes (i) parts and equipment shipped directly from vendors to customer locations while in transit and (ii) parts and equipment returned from customers that are being returned to vendors for credit. Our inventory value as of December 31, 2022 and 2021 was $
We value inventory using the lower of cost or net realizable value. Similar to our allowance for doubtful accounts, we make estimates related to the valuation of inventory. As of December 31, 2022 and 2021, we had no inventory reserve. We adjust our inventory carrying value for estimated obsolescence or unmarketable inventory to the net realizable value based upon assumptions about future demand and market conditions. As market and other conditions change, we may establish additional inventory reserves at a time when the facts that give rise to a lower value are warranted. We use the average cost method of inventory costing.
Property, Plant and Equipment
We record impairment losses on long-lived assets used in operations when events and circumstances indicate the assets might be impaired and the undiscounted cash flows estimated to be generated by those assets are less than the carrying amounts of those assets. In assessing the recoverability of long-lived assets, we compare the carrying value to the undiscounted future cash flows the assets are expected to generate. If the total of the undiscounted future cash flows is less than the carrying amount of the assets, we would write down those assets based on the excess of the carrying amount over the fair value of the assets. Fair value is generally determined by calculating the discounted future cash flows expected from those assets. Changes in these estimates could have a material adverse effect on the assessment of long-lived assets, thereby requiring a write-down of the assets. Write-downs of long-lived assets are recorded as impairment charges and are a component of operating expenses. We have reviewed our long-lived assets and concluded that no impairment charge on our long-lived assets is necessary.
53
Property, plant and equipment additions are recorded net of any Broadband grants received.
We use the group life method (mass asset accounting) to depreciate the assets of our communications companies. Communications plant acquired in a given year is grouped into similar categories and depreciated over the remaining estimated useful life of the group. When an asset is retired, both the asset and the accumulated depreciation associated with that asset are removed from the books. Due to rapid changes in technology, selecting the estimated economic life of communications plant and equipment requires a significant amount of judgment. We periodically review data on the expected utilization of new equipment, asset retirement activity and net salvage values to determine adjustments to our depreciation rates. In 2022, we accelerated depreciation on our copper cable networks as we transition to a new FTTP network. Other than this change, we have not made any significant changes to the lives of these assets in the two year period ended December 31, 2022.
Goodwill and Intangible Assets
We amortize our definite-lived intangible assets over their estimated useful lives. Customer relationships are amortized over
Financial Derivative Instruments and Fair Value Measurements
We have adopted the rules prescribed under GAAP for our financial assets and liabilities. GAAP includes a fair value hierarchy that is intended to increase consistency and comparability in fair value measurements and related disclosures. The fair value hierarchy is based on inputs to valuation techniques used to measure fair value that are either observable or unobservable. Observable inputs reflect assumptions market participants would use in pricing an asset or liability based on market data obtained from independent sources, while unobservable inputs reflect a reporting entity’s pricing based upon its own market assumptions. The fair value hierarchy consists of the following three levels:
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| Level 1: | Inputs are quoted prices in active markets for identical assets or liabilities. |
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| Level 2: | Inputs are quoted prices for similar assets or liabilities in an active market, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable and market-corroborated inputs that are derived principally from or corroborated by observable market data. |
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| Level 3: | Inputs are derived from valuation techniques where one or more significant inputs or value drivers are unobservable. |
We have used financial derivative instruments to manage our overall cash flow exposure to fluctuations in interest rates. We accounted for derivative instruments in accordance with GAAP that requires derivative instruments to be recorded on the balance sheet at fair value. Changes in fair value of derivative instruments must be recognized in earnings unless specific hedge accounting criteria are met, in which case, the gains and losses are included in other comprehensive income rather than in earnings.
We have entered into IRSAs with our lender, CoBank to manage our cash flow exposure to fluctuations in interest rates. These instruments are designated as cash flow hedges and are effective at mitigating the risk of fluctuations on interest rates in the marketplace. Any gains or losses related to changes in the fair value of these derivatives are accounted for as a component of accumulated other comprehensive income (loss) for as long as the hedge remains effective.
54
The fair value of our IRSAs is discussed in Note 7 – “Interest Rate Swaps”. The fair value of our swap agreements were determined based on Level 2 inputs.
Other Financial Instruments
Other Investments - We conducted an evaluation of our investments in all of our investees in connection with the preparation of our audited financial statements at December 31, 2022. As of December 31, 2022, we believe the carrying value of our investments is not impaired.
Debt – We estimate the fair value of our long-term debt based on the discounted future cash flows we expect to pay using current rates of borrowing for similar types of debt. Fair value of the debt approximates carrying value.
Other Financial Instruments - Our financial instruments also include cash equivalents, trade accounts receivable and accounts payable where the current carrying amounts approximate fair market value.
Investments and Other Assets
We are a co-investor with other communication companies in several partnerships and limited liability companies. These joint ventures make it possible to offer services to customers, including digital video services and fiber transport services that we would have difficulty offering on our own. These joint ventures also make it possible to invest in new technologies with a lower level of financial risk. We use the equity method of accounting for these investments that reflects original cost and recognition of our share of the net income or losses from the respective operations. See Note 16 – “Segment Information” for a listing of our investments.
Investments in other companies that are not intended for resale and are not accounted for on the equity method of accounting are valued at fair value where there are readily determinable fair values. Investments in other companies that are not intended for resale and are not accounted for on the equity method of accounting are valued at cost where there are no readily determinable fair values. See Note 12 – “Other Investments” for additional information regarding our investments.
Advertising Expense
Advertising is expensed as incurred. Advertising expense charged to operations was $
Interest During Construction
We include an average cost of debt for the construction of plant in our communications plant accounts.
Income Taxes
We account for income taxes in accordance with GAAP, which requires an asset and liability approach to financial accounting and reporting for income taxes. Accordingly, deferred tax assets and liabilities arise from the difference between the tax basis of an asset or liability and its reported amount in the financial statements and operating and tax credit carryforwards. Deferred tax assets and liabilities are determined using enacted tax rates expected to apply to taxable income in the periods in which those temporary differences are expected to be recovered or settled. Valuation allowances are established when necessary to reduce deferred tax assets to the amount expected to be realized. We recognize interest and penalties related to income tax matters as income tax expense. Income tax expense or benefit is the tax payable or refundable, respectively, for the period plus or minus the change in deferred tax assets and liabilities during the period.
GAAP requires us to recognize the financial statement benefit of a tax position only after determining that the relevant tax authority would more-likely-than-not sustain the position following an audit. For tax positions meeting the more-likely-than-not threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority. See Note 8 – “Income Taxes” for additional information regarding income taxes.
55
Collection of Taxes from Customers
Sales, excise and other taxes are imposed on most of our sales to nonexempt customers. We collect these taxes from our customers and remit the entire amounts to governmental authorities. Our accounting policies dictate that we exclude these taxes collected and remitted from our revenues and expenses.
Credit Risk
Financial instruments that potentially subject us to concentrations of credit risk consist primarily of cash investments and receivables. We deposit our cash investments in high credit quality financial institutions accounts which, at times, may exceed federally insured limits. We have not experienced any losses in these accounts and do not believe we are exposed to any significant credit risk. Concentrations of credit risk with respect to trade receivables are limited due to our large number of customers.
Earnings and Dividends Per Share
The basic and diluted net income per share are calculated as follows:
| Year Ended December 31, 2022 | Year Ended December 31, 2021 | ||||||||||
| Basic | Diluted | Basic | Diluted | ||||||||
| Net Income | $ | |
| $ | |
| $ | |
| $ | |
| Weighted-average common |
| |
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| |
|
| |
|
| |
| Net income per share | $ | |
| $ | |
| $ | |
| $ | |
The weighted-average shares outstanding, basic and diluted, are calculated as follows:
| Year Ended December 31, 2022 | Year Ended December 31, 2021 | ||||||||||
| Basic | Diluted | Basic | Diluted | ||||||||
| Weighted-average common |
| |
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| Dilutive RSU's/Options |
| - |
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| - |
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| Weighted-average common |
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Recent Accounting Developments
Effective January 1, 2022, we adopted Accounting Standards Update (ASU) No. 2021-10 “Disclosures by Business Entities about Government Assistance.” ASU 2021-10 requires disclosure by business entities of the types of government assistance received, the method of accounting for such assistance and the effects of the assistance on its financial statements. The adoption of this guidance did not have a material impact on our related disclosures.
56
In March 2020, the Financial Accounting Standards Board (FASB) issued ASU 2020-04, “Reference Rate Reform (Topic 848), Facilitation of the Effects of Reference Rate Reform on Financial Reporting.” ASU 2020-04 provides optional guidance for a limited period of time to ease the potential burden in accounting for (or recognizing the effects of) reference rate reform on financial reporting. The amendments in ASU 2020-04 provide optional expedients and exceptions for applying generally accepted accounting principles to contracts, hedging relationships, and other transactions affected by reference rate reform if certain criteria are met. During the quarter ended June 30, 2022, we novated a certain hedging relationship to one our IRSAs by changing the reference rated from the London Inter-Bank Offered Rate to a secured overnight financing rate (SOFR). The amendment did not have a material impact on our consolidated financial statements.
In June 2016, the FASB issued ASU 2016-13, “Financial Instruments – Credit Losses: Measurement of Credit Losses on Financial Instruments.” ASU 2016-13 requires entities to use a new forward-looking, expected loss model to estimate credit losses. It also requires additional disclosures relating to the credit quality of trade and other receivables, including information relating to management’s estimate of credit allowances. The Company is required to adopt ASU 2016-13 for fiscal periods beginning after December 15, 2022, including interim periods within that fiscal year. Early adoption as of December 15, 2018 is permitted. As of January 1, 2022, the Company adopted ASU 2016-13 and the adoption did not have a significant impact on our consolidated financial statements.
We have reviewed all other significant newly issued accounting pronouncements and determined that they are either not applicable to our business or that no material effect is expected on our financial position and results of operations.
NOTE 2 – REVENUE RECOGNITION
The Company recognizes revenue based on the following single principles-based, five-step model that is applied to all contracts with customers. These steps include (1) identify the contract(s) with the customer, (2) identify the performance obligations in the contract, (3) determine the transaction price, (4) allocate the transaction price to the performance obligations in the contract and (5) recognize revenue when each performance obligation is satisfied.
Our revenue contracts with customers may include a promise or promises to deliver services such as broadband, video or voice services. Promised services are considered distinct as the customer can benefit from the services either on their own or together with other resources that are readily available to the customer and the Company’s promise to transfer service to the customer is separately identifiable from other promises in the contract. The Company accounts for services as separate performance obligations. Each service is considered a single performance obligation as it is providing a series of distinct services that are substantially the same and have the same pattern of transfer.
The transaction price is determined at contract inception and reflects the amount of consideration to which we expect to be entitled in exchange for transferring service to the customer. This amount is generally equal to the market price of the services promised in the contract and may include promotional or bundling discounts. The majority of our prices are based on tariffed rates filed with regulatory bodies or standard company price lists. The transaction price excludes amounts collected on behalf of third parties such as sales taxes and regulatory fees. Conversely, nonrefundable up-front fees, such as service activation and set-up fees, which are immaterial to our overall revenues, are included in the transaction price. In determining the transaction price, we consider our enforceable rights and obligations within the contract. We do not consider the possibility of a contract being cancelled, renewed or modified, which is consistent with ASC 606-10-32-4.
57
The transaction price is allocated to each performance obligation based on the standalone selling price of the service, net of the related discount, as applicable.
Revenue is recognized when performance obligations are satisfied by transferring service to the customer as described below.
Significant Judgments
The Company often provides multiple services to a customer. Provision of CPE and additional service tiers may have a significant level of integration and interdependency with the subscription voice, video, Internet, or connectivity services. Judgement is required to determine whether the provision of CPE, installation services, and additional service tiers are considered distinct and accounted for separately, or not distinct and accounted for together with the subscription services.
Allocation of the transaction price to the distinct performance obligations in bundled service subscriptions requires judgement. The transaction price for a bundle of services is frequently less than the sum of standalone selling prices of each individual service. Bundled discounts are allocated proportionally to the selling price of each individual service within the bundle. Standalone selling prices for the Company’s services are directly observable.
58
Disaggregation of Revenue
The following table summarizes revenue from contracts with customers for the years ended December 31, 2022 and 2021:
|
Twelve Months Ended December 31, |
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2022 |
2021 |
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Voice Service¹ |
$ |
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Network Access¹ |
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Video Service¹ |
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Data Service¹ |
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Directory² |
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Other Contracted Revenue³ |
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Other4 |
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Revenue from customers |
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Subsidy and other revenue |
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Total revenue |
$ |
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$ |
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¹ Month-to-Month contracts billed and consumed in the same month. |
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² Directory revenue is contracted annually, however, this revenue is recognized |
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³ This includes long-term contracts where the revenue is recognized monthly over |
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4 This includes CPE and other equipment sales. |
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5 This includes governmental subsidies and lease revenue outside the scope of ASC |
|||||
For the year ended December 31, 2022, approximately
For the year ended December 31, 2021, approximately
59
A significant portion of our revenue is derived from customers who may generally cancel their subscriptions at any time without penalty. As such, the amount of revenue related to unsatisfied performance obligations is not necessarily indicative of the future revenue to be recognized from our existing customer base. Revenue from customers with a contractually specified term and non-cancelable service period will be recognized over the term of such contracts, which is generally
Nature of Services
Revenues are earned from our customers primarily through the connection to our advanced fiber networks, digital and commercial TV programming, Internet services (high-speed broadband), and hosted and managed services. Revenues for these services are billed based on set rates for monthly service or based on the amount of time the customer is utilizing our facilities. The revenue for these services is recognized over time as the service is rendered.
Voice Service – We receive recurring revenue for basic local services that enable end-user customers to make and receive telephone calls within a defined local calling area for a flat monthly fee. In addition to subscribing to basic local telephone services, our customers may choose from multiple voice service plans with a variety of custom calling features such as call waiting, call forwarding, caller identification and voicemail. Our VOIP digital phone service is also available as an alternative to the traditional telephone line. Customers may generally cancel their subscriptions at any time without penalty. Each subscription service provided is accounted for as a distinct performance obligation and revenue is recognized over a one-month service period as the subscription services are delivered. Other optional services purchased by the customer are generally accounted for as a distinct performance obligation when purchased and revenue is recognized when the service is provided.
Network Access – We provide access services to other communication carriers for the use of our facilities to terminate or originate long distance calls on our network. Additionally, we bill monthly SLCs to substantially all of our customers for access to the public switched network. These monthly SLCs are regulated and approved by the FCC. In addition, network access revenue is derived from several federally administered pooling arrangements designed to provide support and distribute funding to us.
Revenues earned from other communication carriers accessing our network are based on the utilization of our network by these carriers as measured by minutes of use on the network or special access to the network by the individual carriers on a monthly basis. Revenues are billed at tariffed access rates for both interstate and intrastate calls and are recognized into revenue monthly based on the period the access was provided.
The NECA pools and redistributes the SLCs to various communication providers through the CAF. These revenues are earned and recognized into revenue on a monthly basis. Any adjustments to these amounts received by NECA are adjusted for in revenue upon receipt of the adjustment.
Video Service – We provide a variety of enhanced video services on a monthly recurring basis to our customers. We also receive monthly recurring revenue from our subscribers for providing commercial TV programming in competition with CATV, satellite dish TV and off-air TV service providers. We serve twenty-two communities with our IPTV services and five communities with our CATV services. Customers may generally cancel their subscriptions at any time without penalty. Each subscription service provided is accounted for as a distinct performance obligation and revenue is recognized over a one-month service period as the subscription services are delivered. Other optional services purchased by the customer are generally accounted for as a distinct performance obligation when purchased and revenue is recognized when the service is provided.
Data Service – We provide high speed Internet to business and residential customers depending on the nature of the network facilities that are available, the level of service selected and the location. Our revenue is earned based on the offering of various flat packages based on the level of service, data speeds and features. We also provide e-mail and managed services, such as web hosting and design, on-line file back up and on-line file storage. Data customers may generally cancel their subscriptions at any time without penalty. Each subscription service provided is accounted for as a distinct performance obligation and revenue is recognized over a one-month service period as the subscription services are delivered. Other optional services purchased by the customer are generally accounted for as a distinct performance obligation when purchased and revenue is recognized when the service is provided.
60
Directory – Our directory publishing revenue in our telephone directories recurs monthly and is recognized into revenue on a monthly basis.
Other Contracted Revenue - Managed services and certain other data customers include advanced fiber-delivered communications and managed information technology solutions to mainly business customers, as well as high-capacity last-mile data connectivity services to wireless and wireline carriers. Services are primarily offered on a subscription basis with a contractually specified and non-cancelable service period. The non-cancelable contract terms for these customers generally range from
Other – We also generate revenue from the sales, service and installation of CPE and other services. Sales and service of CPE are billed and recognized into revenue once the sale or service is complete or delivered. These sales and services are generally short-term in nature and are completed within
Subsidy and Other Revenue outside the Scope of ASC 606 – We receive subsidies from governmental entities to operate and expand our advanced fiber networks. In addition, we have revenue from leasing arrangements. Both of these revenue streams are outside of the scope of ASC 606.
Interstate access rates are established by a nationwide pooling of companies known as NECA. The FCC established NECA in 1983 to develop and administer interstate access service rates, terms and conditions. Revenues are pooled and redistributed on the basis of a company's actual or average costs. There has been a change in the composition of interstate access charges in recent years, shifting more of the charges to the end user and reducing the amount of access charges paid by the IXC’s. We believe this trend will continue.
Intrastate access rates are filed with state regulatory commissions in Minnesota and Iowa.
The Company currently receives funding based on the A-CAM as described below, with the exception of Scott-Rice, which receives funding from the FUSF. Scott-Rice’s settlements from the pools are based on nationwide average schedules, which includes the pooling and redistribution of revenues based on a company’s actual or average costs as described below.
A-CAM
As described above, with the exception of Scott-Rice, the remainder of our companies receive funding from A-CAM.
Per the FCC Public Notice DA 19-115, the Company receives A-CAM support and has corresponding service deployment obligations under that program. The Company annually receives (i) $
61
Accounts Receivable, Contract Assets and Contract Liabilities
The following table provides information about our receivables, contracts assets and contract liabilities from revenue contracts with our customers:
| Year Ended December 31, | ||||||||
|
| 2022 |
| 2021 |
| 2020 | |||
| Accounts receivable, net | $ | |
| $ | |
| $ | |
| Contract assets | | | | |||||
| Contract liabilities |
| |
|
| |
|
| |
Accounts Receivable
A receivable is recognized in the period the Company provides goods and services when the Company’s right to consideration is unconditional. Payment terms on invoiced amounts are generally
Contract Assets
Contract assets include costs that are incremental to the acquisition of a contract. Incremental costs are those that result directly from obtaining a contract or costs that would not have been incurred if the contract had not been obtained, which primarily relates to sales commissions. We defer and amortize these costs over the expected customer life as the contract obligations are satisfied. We determined that the expected customer life is the expected period of benefit as the commission on the renewal contact is commensurate with the commission on the initial contract. During the years ended December 31, 2022 and 2021, the Company recognized expenses of $
Contract Liabilities
Contract liabilities include deferred revenues related to advanced payments for services and nonrefundable, upfront service activation and set-up fees, which are generally deferred. In addition, contract liabilities include customer deposits that are not recognized into revenue, but are instead returned to the customer after a holding period. Short-term contract liabilities include deferred revenues for advanced payments for managed services and other long-term contracts. This includes the current portion of the deferred revenues that will be recognized monthly within one year. Short-term contract liabilities are included in current liabilities under other accrued liabilities. Long-term contract liabilities include deferred revenues for advanced payments for managed services and other long-term contracts. This includes the portion longer than one year and the corresponding deferred revenues are recognized into revenue on a monthly basis based on the term of the contract. Long-term contract liabilities are included in noncurrent liabilities under other accrued liabilities.
During the years ended December 31, 2022 and 2021, the Company recognized revenues of $
Performance Obligations
ASC 606, Revenue from Contracts with Customers, requires that the Company disclose the aggregate amount of the transaction price that is allocated to remaining performance obligations that are unsatisfied as of December 31, 2022. The guidance provides certain practical expedients that limit this requirement. The service revenue contracts of the Company meet the following practical expedients provided by ASC 606:
1. The performance obligation is part of a contract that has an original expected duration of one year or less.
62
2. Revenue is recognized from the satisfaction of the performance obligations in the amount billable to the customer in accordance with ASC 606-10-55-18.
The Company has elected these practical expedients. Performance obligations related to our service revenue contracts are generally satisfied over time. For services transferred over time, revenue is recognized based on amounts invoiced to the customer as the Company has concluded that the invoice amount directly corresponds with the value of services provided to the customer. Management considers this a faithful depiction of the transfer of control as services are substantially the same and have the same pattern of transfer over the life of the contract. As such, revenue related to unsatisfied performance obligations that will be billed in future periods has not been disclosed.
NOTE 3 – LEASES
Under FASB’s ASU 2016-02, “Leases,” which, together with its related clarifying ASUs, provided revised guidance for lease accounting and related disclosure requirements and established a right-to-use (ROU) model that requires lessees to record a ROU asset and a lease liability on the balance sheet for all leases with terms longer than twelve months. Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition. The ASU also requires disclosures to allow financial statement users to better understand the amount, timing and uncertainty of cash flows arising from leases. These disclosures include qualitative requirements, providing additional information about the amounts recorded in the financial statements.
The following table includes the ROU assets and operating lease liabilities as of December 31, 2022 and 2021. Short-term operating lease liabilities are included in current liabilities in other accrued liabilities. Long-Term operating lease liabilities are included in noncurrent liabilities in other accrued liabilities.
|
Right of Use Asset |
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Balance December 31, 2022 |
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Balance December 31, 2021 |
||
|
Operating Lease Right-Of-Use Assets |
|
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$ |
|
|
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$ |
|
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Operating Lease Liability |
|
Balance |
|
Balance December 31, 2021 |
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Short-Term Operating Lease Liabilities |
|
$ |
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$ |
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Long-Term Operating Lease Liabilities |
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||
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Total |
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$ |
|
|
|
$ |
|
63
Maturity analysis under these lease agreements are as follows:
| Maturity Analysis | |||
| 2023 |
| $ | |
| 2024 | | ||
| 2025 |
|
| |
| 2026 | | ||
| 2027 |
|
| |
| Thereafter |
| | |
| Total |
|
| |
| Less Imputed interest |
| ( | |
| Present Value of Operating Leases |
| $ | |
The following summarizes other information related to leases for the year ended December 31, 2022 as follows:
| Weighted Average Remaining Lease Term (Years) | |
| Weighted Average Discount Rate | |
We amortize our leases over the shorter of the term of the lease or the useful life of the asset. Lease expense for the years ended December 31, 2022 and 2021 was $
NOTE 4 – PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment as of December 31, 2022 and 2021, include the following:
|
| 2022 |
| 2021 | ||
| Communications Plant: |
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|
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| Land | $ | |
| $ | |
| Buildings |
| |
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| Other Support Assets |
| |
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| Central Office and Circuit Equipment |
| |
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| Cable and Wire Facilities |
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| Other Plant and Equipment |
| |
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| Plant Under Construction |
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| Other Property |
| |
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| Video Plant |
| |
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| |
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|
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| ||
| Total Property, Plant and Equipment | $ | |
| $ | |
Depreciation is computed using the straight-line method based on the estimated service or remaining useful lives of the various classes of depreciable assets. Depreciation expense was $
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NOTE 5 - GOODWILL AND INTANGIBLES
We account for goodwill and other intangible assets under GAAP. Under GAAP, goodwill and intangible assets with indefinite useful lives are not amortized, but are instead tested for impairment (i) on at least an annual basis and (ii) when changes in circumstances indicate that the fair value of goodwill may be below its carrying value. These circumstances include, but are not limited to (i) a significant adverse change in the business climate, (ii) unanticipated competition or (iii) an adverse action or assessment by a regulator. Determining impairment involves estimating the fair value of a reporting unit using a combination of (i) the income or DCF approach and (ii) the market approach that utilizes comparable companies’ data. If the carrying amount of a reporting unit exceeds its fair value, the amount of the impairment loss must be measured. The impairment loss is calculated by comparing the implied fair value of the reporting unit’s goodwill to its carrying amount. In calculating the implied fair value of the reporting unit’s goodwill, the fair value of the reporting unit is allocated to all of the assets and liabilities of the reporting unit. The excess of the fair value of a reporting unit over the amount assigned to its other assets and liabilities is the implied value of goodwill. We recognize impairment loss when the carrying amount of goodwill exceeds its implied fair value. Our goodwill totaled $
In 2022 and 2021, we engaged an independent valuation firm to aid in the completion of our annual impairment testing for existing goodwill. For 2022 and 2021, the testing results indicated no impairment charge to goodwill as the determined fair value was sufficient to pass the impairment test.
Our intangible assets subject to amortization consist of acquired customer relationships, regulatory rights and trade names. We amortize intangible assets with finite lives over their respective estimated useful lives. Identifiable intangible assets that are subject to amortization are evaluated for impairment. In addition, we periodically reassess the carrying value, useful lives and classifications of our identifiable intangible assets.
The components of our identified intangible assets are as follows:
| Useful Lives | December 31, 2022 | December 31, 2021 | |||||||||||
| Gross Carrying Amount | Accumulated Amortization | Gross Carrying Amount | Accumulated Amortization | ||||||||||
| Definite-Lived Intangible Assets |
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| Customers Relationships | | $ | | $ | | $ | | $ | | ||||
| Regulatory Rights | |
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| Trade Name | | | | | | ||||||||
| Indefinitely-Lived Intangible Assets |
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| Video Franchise | | | |||||||||||
| Spectrum |
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| Total | $ | | $ | | $ | | $ | | |||||
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| Net Identified Intangible Assets | $ | | $ | | |||||||||
Amortization expense related to the definite-lived assets was $
| 2023 | $ | |
| 2024 | $ | |
| 2025 | $ | |
| 2026 | $ | |
| 2027 | $ | |
NOTE 6 - LONG-TERM DEBT
On July 15, 2022, Nuvera and CoBank entered into (i) an Agreement Regarding Amendments to Loan Documents and (ii) an Amended and Restated Revolving Loan Promissory Note. The agreements amended our existing credit facility with CoBank and secured a new credit facility in the aggregate principal amount of $
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Under the Agreements, among other things, (i) the Company received a $
Under the new credit agreement, the Company and its respective subsidiaries have entered into security agreements under which substantially all the assets of Nuvera and its respective subsidiaries have been pledged to CoBank as collateral. In addition, Nuvera and its respective subsidiaries have guaranteed all the obligations under the credit facility. The credit agreement contains certain customary events of default, which include failure to make payments when due, the material inaccuracy of representations or warranties, failure to observe or perform certain covenants, cross-defaults, bankruptcy and insolvency-related events, certain judgments, certain ERISA-related events, or a change in control (as defined in the credit agreement).
Secured Credit Facility:
New Credit Agreement
● TERM A-1 LOAN - $
● DELAYED DRAW TERM LOAN - $
● REVOLVING LOAN - $
The term loan borrowings initially bear interest at a “
We generally use variable-rate debt to finance our operations, capital expenditures and acquisitions. These variable-rate debt obligations expose us to variability in interest payments due to changes in interest rates. The terms of our credit facility with CoBank require that we enter into interest rate agreements designed to protect us against fluctuations in interest rates, in an aggregate principal amount and for a duration determined under the credit facility.
66
Under the new credit facility, Nuvera has the ability to enter into IRSAs in connection with amounts borrowed from CoBank. In connection with the closing of the new credit facility, the Company “rolled over” its two exiting IRSAs.
As described in Note 7 – “Interest Rate Swaps,” on August 1, 2018 we entered into an IRSA with CoBank covering 25 percent of our then existing debt balance or $
As described in Note 7 – “Interest Rate Swaps,” on August 29, 2019 we entered into a second IRSA with CoBank covering an additional $
Our remaining outstanding debt of $
As of December 31, 2022 our additional delayed draw term loan of $
Our loan agreements include restrictions on our ability to pay cash dividends to our stockholders. However, we are allowed to pay dividends in an amount up to $
Our credit facility requires us to comply with specified financial ratios and tests. These financial ratios include total leverage ratio, debt service coverage ratio and equity to total assets ratio. At December 31, 2022, we were in compliance with all the stipulated financial ratios in our loan agreements.
There are security and loan agreements underlying our current CoBank credit facility that contain restrictions on our distributions to stockholders and investment in, or loans, to others. Also, our credit facility contains restrictions that, among other things, limits or restricts our ability to enter into guarantees and contingent liabilities, incur additional debt, issue stock, transact asset sales, transfers or dispositions, and engage in mergers and acquisitions, without CoBank approval.
On April 16, 2020, Nuvera received a $
67
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Long-term debt is as follows: |
2022 |
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2021 |
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Secured seven-year reducing credit facility to CoBank, ACB, in quarterly installments of $ quarterly installments of $ plus a notional variable rate of interest through July 15, 2029. |
$ |
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$ |
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Secured seven-year reducing credit facility to CoBank, ACB, in quarterly installments of December 31, 2025) and quarterly installments of beginning on December 31, 2028), plus a notional variable rate of interest through July 15, 2029. |
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Secured five-year revolving credit facility of up to $ CoBank, ACB, plus a notional variable rate of interest through July 15, 2027. |
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Secured seven-year credit facility to CoBank, ACB, amortizing in quarterly installments of $ 2018), plus a notional variable rate of interest through July 31, 2025. |
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Secured seven-year revolving credit facility of up to $ CoBank, ACB, plus a notional variable rate of interest through July 31, 2025. |
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Less: Unamortized Loan Fees |
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Less: Amount due within one year |
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Net of Current Portion of Unamortized Loan Fees |
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Total Long Term Debt |
$ |
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$ |
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Required principal payments for the next five years are as follows:
| 2023 | $ | ||
| 2024 | $ | ||
| 2025 | $ | | |
| 2026 | $ | | |
| 2027 | $ | |
NOTE 7 – INTEREST RATE SWAPS
We assess interest rate cash flow risk by continually identifying and monitoring changes in interest rate exposures that may adversely affect expected future cash flows and by evaluating hedging opportunities.
We generally use variable-rate debt to finance our operations, capital expenditures and acquisitions. These variable-rate debt obligations expose us to variability in interest payments due to changes in interest rates. The terms of our credit facility with CoBank required that we enter into interest rate agreements designed to protect us against fluctuations in interest rates, in an aggregate principal amount and for a duration determined under the credit facility.
Under the new credit facility, Nuvera has the ability to enter into IRSAs in connection with amounts borrowed from CoBank. In connection with the closing of the new credit facility, the Company “rolled over” its two exiting IRSAs.
To meet this objective, we have entered into an IRSA with CoBank covering
68
On August 29, 2019, we entered into a second IRSA with CoBank covering an additional $
Each month, we make interest payments to CoBank under its loan agreements based on the current applicable SOFR plus the contractual SOFR margin then in effect with respect to the loan, without reflecting our IRSAs. At the end of each calendar month, CoBank adjusts our aggregate interest payments based on the difference, if any, between the amounts paid by us during the month and the current effective interest rate. Net interest payments are reported in our consolidated income statement as interest expense.
As of December 31, 2022 we had the following IRSAs in effect.
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Loan # |
Maturity Date |
Notional Amount |
Current Effective Interest Rate (1) |
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TERM A-1 LN |
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$ |
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TERM A-1 LN |
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(1) As described in Note 6 – “Long-Term Debt,” the notes above initially bears interest at a SOFR rate determined by the maturity of the note, plus a “Base Rate Margin” rate equal to a maximum of 2.90% according to the individual secured credit facility. The Base Rate Margin increases as the borrower’s “Leverage Ratio” increases. The “Current Effective Interest Rate” in the table reflects the rate we pay giving effect to the swaps.
Our IRSAs under our credit facilities both qualify as cash flow hedges for accounting purposes under GAAP. We reflect the effect of these hedging transactions in the financial statements. The unrealized gain/loss is reported in other comprehensive income. If we terminate our IRSAs, the cumulative change in fair value at the date of termination would be reclassified from accumulated other comprehensive income, which is classified in stockholders’ equity, into earnings on the consolidated statements of income
The fair value of the Company’s IRSAs were determined based on valuations received from CoBank and were based on the present value of expected future cash flows using discount rates appropriate with the terms of the IRSAs. The fair value indicates an estimated amount we would be required to pay if the contracts were canceled or transferred to other parties. At December 31, 2022, the fair value asset of these swaps were $
NOTE 8 - INCOME TAXES
Income taxes recorded in our consolidated statements of income consists of the following:
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| 2022 | 2021 | |||||
| Taxes currently payable |
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| Federal | $ | ( | $ | | ||
| State |
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| Deferred Income Taxes |
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| Total Income Tax Expense |
| $ | |
| $ | |
We account for income taxes in accordance with GAAP, which requires an asset and liability approach to financial accounting and reporting for income taxes. As required by GAAP, we recognize the financial statement benefit of a tax position only after determining that the relevant tax authority would more-likely-than-not sustain the position following an audit. For tax positions meeting the more-likely-than-not threshold, the amount recognized in the financial statements is the largest benefit that has a greater than
As of December 31, 2022 and 2021 we had $
A reconciliation of the beginning and ending amount of total unrecognized benefits for the years ended December 31, 2022 and 2021 are as follows:
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| 2021 | ||
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| Balance, beginning of year |
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| Increases related to prior year tax positions |
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| Decreases related to prior year tax positions |
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| Increases related to current year tax positions |
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| Settlements |
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| Balance, end of year |
| $ | |
| $ | |
We are primarily subject to United States, Minnesota, Iowa, Nebraska, North Dakota and Wisconsin income taxes. Tax years subsequent to 2018 remain open to examination by federal and state tax authorities. During the year ending December 31, 2022, we settled our examination by the State of Minnesota. The examination did not have a material effect on our financial statements. Our policy is to recognize interest and penalties related to income tax matters as income tax expense. As of December 31, 2022 and 2021 we had $
The differences between the statutory federal tax rate and the effective tax rate were as follows:
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| 2021 | ||
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| Statutory Tax Rate |
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| Effect of: |
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| State Income Taxes Net of Federal Tax Benefit |
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| Forgiveness of PPP Loan |
| - |
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| Permanent Differences and Other, Net |
| ( |
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| Effective tax rate |
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Our effective income tax rate for the year ended December 31, 2022 was higher than the effective income tax rate for the year ended December 31, 2021 primarily due to the SBA’s PPP loan forgiveness not being taxable at the federal and state level in 2021.
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Deferred income taxes and unrecognized tax benefits reflected in our consolidated balance sheets are summarized as follows:
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| 2021 | ||
| Deferred Tax Assets |
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| Accrued Expenses |
| $ | ( |
| $ | ( |
| Deferred Compensation |
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| Other |
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| ( |
| Unrealized Loss on SWAP |
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| State NOL |
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| ( |
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| Federal NOL |
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| Leases |
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| Total Deferred Tax Assets |
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| Deferred Tax Liabilities |
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| Fixed Assets |
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| Intangible Assets |
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| Investments |
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| Unrealized Gain on SWAP |
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| Contract Assets |
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| Leases |
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| Total Deferred Tax Liabilities: |
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| Total Net Deferred Taxes |
| $ | |
| $ | |
NOTE 9 – INCENTIVE AND RETIREMENT PLANS
In 2006, we implemented an EIP for employees other than executive officers and a MIP for executive officers (collectively the 2006 Plan). In 2015, our BOD adopted and our shareholders approved our 2015 Employee Stock Plan (2015 ESP), which permits the issuance of up to
We have a 401(k) employee savings plan in effect for employees who meet age and service requirements. Our contributions to our 401(k) employee savings plan were $
NOTE 10 – COMMITMENTS AND CONTINGENCIES
On December 15, 2021, the Company announced plans for a fiber network initiative. The Company has made commitments to purchase materials and entered into contracts with various parties to successfully build this next-generation fiber network. As of December 31, 2022, the Company had outstanding commitments for material of approximately $
We are involved in certain contractual disputes in the ordinary course of business. We do not believe the ultimate resolution of any of these existing matters will have a material adverse effect on our financial position, results of operations or cash flows.
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Our capital budget for 2023 is approximately $
NOTE 11 - NONCASH ACTIVITIES
Noncash investing activities included $
Noncash financing activities include $
NOTE 12 – OTHER INVESTMENTS
We are a co-investor with other communication companies in several partnerships and limited liability companies. These joint ventures make it possible to offer services to customers, including digital video services and fiber transport services that we would have difficulty offering on our own. These joint ventures also make it possible to invest in new technologies with a lower level of financial risk. We recognize income and losses from these investments on the equity method of accounting. For a listing of our investments, see Note 16 – “Segment Information.”
The FASB requires equity investments (except those accounted for under the equity method of accounting or those that result in consolidation of the investee) to be measured at fair value with changes in fair value recognized in net income. However, an entity may choose to measure equity investments that do not have readily determinable fair values at cost minus impairment, if any, plus or minus changes resulting from observable price changes in orderly transactions for an identical or similar investment of the same issuer. As of December 31, 2022, the Company has recorded a gain on one of our investments of $
NOTE 13 - GUARANTEES
Nuvera has guaranteed a portion of a ten-year loan owed by FiberComm set to mature on April 30, 2026. As of December 31, 2022, we have recorded a liability of $
NOTE 14 – DEFERRED COMPENSATION
As of December 31, 2022 and 2021, we have recorded other deferred compensation relating to executive compensation payable to certain former executives of the Company and certain former executives of past acquisitions.
NOTE 15 – STOCK BASED COMPENSATION
The Company’s 2017 Omnibus Stock Plan (2017 OSP) was adopted by the Company’s BOD on February 24, 2017 and approved by the Company’s shareholders at the May 25, 2017 Annual Meeting of Shareholders. The 2017 OSP enables the Company to grant stock incentive awards to current and new employees, including officers, and to Board members and service providers. The 2017 OSP permits stock incentive awards in the form of Options (incentive and non-qualified), stock appreciation rights, restricted stock, RSUs, performance stock, performance units, and other awards in stock or cash. The 2017 OSP permits the issuance of up to
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Starting in 2017, our BOD and Compensation Committee granted RSU awards to the Company’s executive officers under the 2017 OSP. We recognize share-based compensation expense for these RSUs over the vesting period of the RSUs, which is determined by our BOD. Forfeitures of RSUs are accounted for as they occur. Each executive officer was eligible to receive time-based RSUs and performance-based RSUs. The time-based RSUs are computed as a percentage of the executive officer’s base salary based on the closing price of Company common stock on a date set by the BOD, and vest over a three-year period, subject to the executive officer being employed by the Company on the vesting date. The performance-based RSUs are also computed as a percentage of the executive officer’s base salary based on the closing price of Company common stock on a date set by the BOD and vest over a three-year period based on the Company attaining an average Return on Invested Capital (ROIC) over that three-year period. The ROIC target is set by the BOD. Executive officers may earn more or fewer performance-based RSUs based on if the actual ROIC achieved over the time period is more or less than target. Upon vesting of either time-based or performance-based RSUs, the executive officers are issued Common Stock in exchange for the RSUs.
RSUs currently issued and outstanding are as follows:
| Targeted Performance-Based RSUs | Closing Stock Price | |||||||
| Time-Based RSUs | Vesting Date | |||||||
| Balance at December 31, 2020 | |
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| Issued | | | $ | | | |||
| Exercised |
| ( |
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| Exercised | ( | $ | | | ||||
| Balance at December 31, 2021 | |
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| Forfeited | ( | ( | ||||||
| Exercised | ( |
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| $ | |
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| Balance at December 31, 2022 | | | ||||||
Option Awards
In 2022, after considerable study, discussion and interaction with our consultants, the Compensation Committee decided to replace RSUs with non-qualified stock Options. The Compensation Committee believes that grants of Options more directly align management long-term equity compensation with increased shareholder value creation at a time when the Company is engaged in significant investment and transformation as part of its long-term strategy. The Compensation Committee also determined to extend the grant of Options include Named Executive Officers, senior employee directors and other employee directors as key members of the Company leadership team and contributors of overall success.
As previously disclosed, the number of Options awarded was computed as a percentage of the employee’s base salary using a Black-Scholes formula using an exercise price equal to the closing price of Company common stock of $
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| Closing Stock Price | ||||||
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| Vesting Date | |||||
| Options | ||||||
| Balance at December 31, 2021 |
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| Issued | | $ | | | ||
| Issued | |
| $ | |
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| Issued | | $ | | | ||
| Balance at December 31, 2022 | |
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The grant date fair value of employee stock Option awards is determined using the Black Scholes Option-pricing model. The following assumptions were used during the following periods:
| 2022 Grants | ||
| Exercise Price | $ | |
| Risk-Free Rate of Interest | | |
| Expected Term (Years) |
| |
| Expected Stock Price Volatility | | |
| Dividend Yield |
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The following table summarizes the Company’s employee stock Option activity under the 2017 OSP, which was approved by the Company’s shareholders, for the following periods:
| Number of Shares | Weighted Average Exercise Price | Weighted Average Remaining Term (Years) | Aggregate Intrinsic Value (in Thousands) | ||||||
| Outstanding as of December 31, 2021 |
| $ |
| - |
| $ | |||
| Granted | | | | - | |||||
| Forfeited |
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| - | ||
| Outstanding as of December 31, 2022 | | $ | | | $ | ||||
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| Options Vested and Exercisable as of | $ | - | $ | ||||||
The Options had no intrinsic value as of December 31, 2022.
The weighted average grant date fair value per share for employee stock and non-employee Option grants during the twelve months ended December 31, 2022, was $
NOTE 16 – SEGMENT INFORMATION
We operate in the Communications Segment and have no other significant business segments. The Communications Segment consists of voice, data and video communication services delivered to the customer over our advanced fiber communications network. No single customer accounted for a material portion of our consolidated revenues in any of the last two years.
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The Communications Segment operates the following communications companies and has investment ownership interests as follows:
Communications Segment
| ● | Communications Companies: | ||
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| • |
| Nuvera Communications, Inc., the parent company; |
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| • |
| Hutchinson Telephone Company, a wholly-owned subsidiary of Nuvera; |
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| • |
| Peoples Telephone Company, a wholly-owned subsidiary of Nuvera; |
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| • |
| Scott-Rice Telephone Co., a wholly-owned subsidiary of Nuvera; |
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| • |
| Sleepy Eye Telephone Company, a wholly-owned subsidiary of Nuvera; |
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| • |
| Western Telephone Company, a wholly-owned subsidiary of Nuvera; and |
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| • |
| Hutchinson Telecommunications, Inc., a wholly-owned subsidiary of HTC, located in Litchfield and Glencoe, Minnesota; |
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| ● | Our investments and interests in the following entities include some management responsibilities: | ||
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| • |
| FiberComm – |
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| • |
| Broadband Visions, LLC – |
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| • |
| Independent Emergency Services, LLC – |
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| • |
| Fiber Minnesota, LLC – |
NOTE 17 – BROADBAND GRANTS
On December 8, 2022, the Company was awarded
In January 2020, the Company was awarded a broadband grant from the DEED. The grant will provide up to
On January 29, 2021, the Company was awarded
Note 18 – Transactions with equity method investments
We receive and provide services to various partnerships and limited liability companies where we are an investor. Services received include digital video, special access and communications circuits. Services provided include BOD meeting attendance, labor, Internet help desk services and management services. Cost of services we receive from affiliated parties may not be the same as the costs of such services had they been obtained from different parties.
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Total revenues from transactions with affiliates were $
NOTE 19 -- SUBSEQUENT EVENTS
On January 12, 2023, Nuvera announced that it and the other owners of FiberComm will sell
Nuvera’s BOD has declared a regular quarterly dividend on our common stock of $.
We have evaluated and disclosed subsequent events through the filing date of this Annual Report on Form 10-K.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Our principal executive officer and principal financial officer evaluated the effectiveness of our disclosure controls and procedures, as defined in Exchange Act Rule 13a-15(e) or Rule 15d-15(e), as of the end of the period subject to this Report. Based on this evaluation, our principal executive officer and principal financial officer concluded that our disclosure controls and procedures were effective.
Management’s Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rules 13a-15(f) and 15d-15(f). Internal control over financial reporting refers to the process designed by, or under the supervision of, our Chief Executive Officer and Chief Financial Officer, and effected by our BOD, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that:
(1) Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of our assets;
(2) Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that our receipts and expenditures are being made only in accordance with authorization of our management and directors; and
(3) Provide reasonable assurance regarding prevention or timely detection or unauthorized acquisition, use, or disposition of our assets that could have a material effect on the financial statements.
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Because of its inherent limitations, internal control over financial reporting cannot provide absolute assurance of preventing and detecting misstatements on a timely basis. It is possible to design into the process safeguards to reduce, though not eliminate, the risk that misstatements are not prevented or detected on a timely basis. Management is responsible for establishing and maintaining adequate internal control over financial reporting for the Company.
Our management conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework set forth in the report entitled Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework). Based on this assessment, management has concluded that, as of December 31, 2022, our internal control over financial reporting was effective.
Changes in Internal Control over Financial Reporting
Based upon the evaluation performed by our management, which was conducted with the participation of our Chief Executive Officer and Chief Financial Officer, there has been no change in our internal control over financial reporting during the quarter ended December 31, 2022, that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
On March 13, 2023, the Company Board adopted changes to the Nuvera Communications, Inc. 2017 Omnibus Stock Plan (2017 Plan). Most of the changes eliminate language specific to the requirements and limitations on grants under Internal Revenue Code Section162 (m), which has been repealed by Congress. This includes, in particular, provisions related to “Performance-Based Exception” in several sections of the 2017 Plan. The Board also increased the limit on annual grants from 50,000 to 100,000 shares per participant and eliminated separate provisions on new-hire stock grants and cash-based grants. The Board also made minor changes to other sections of the 2017 Plan. The Board did not increase the number of shares authorized for issuance under the 2017 Plan or change the terms of eligibility for participants under the 2017 Plan. The foregoing description of the changes to the 2017 Plan does not purport to be complete and is qualified in its entirety by reference to the full text of the 2017 Plan, as amended, which is filed as Exhibit 10.12 to this Annual Report on Form 10-K and incorporated by reference.
Item 9C. Disclosures Regarding Foreign Jurisdictions That Prevent Inspection
Not Applicable.
PART III
Information Incorporated by Reference
In response to Part III, Items 10, 11, 12, 13 and 14, portions of the Company’s 2023 Proxy Statement for its Annual Meeting of Shareholders to be held on May 25, 2023 are incorporated by reference into this Form 10-K. The 2023 Proxy Statement will be filed pursuant to Regulation 14A within 120 days of December 31, 2022, the last day of the Company’s fiscal year.
Item 10. Directors, Executive Officers and Corporate Governance
The information required by Item 401 of Regulation S-K relating to directors and nominees of the Company is contained under “Proposal 1 – Election of Directors” in the 2023 Proxy Statement and is incorporated by reference. Information required under Item 401 about executive officers is included in Part I, Item 1 of this Annual Report on Form 10-K under “Executive Officers of the Registrant.” The information required by Item 405 of Regulation S-K is contained under “Delinquent Section 16(a) Reports in the 2023 Proxy Statement and is incorporated by reference.
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The information required by Item 406 of Regulation S-K, code of Ethics, is contained in the section entitled “Corporate Governance – Code of Business Conduct” in the 2023 Proxy Statement and is incorporated by reference.
The information required by Item 407(d)(4) and (d)(5), under “Audit Committee,” and “Audit Committee financial expert” contained under Corporate Governance – Audit Committee” in the 2023 Proxy Statement and is incorporated by reference. There is no disclosure required under Item 407(c)(3) regarding material changes in shareholder director nominating procedures.
Item 11. Executive Compensation
The information required by Item 402 of Regulation S-K is contained under “Executive Compensation” in the 2023 Proxy Statement and is incorporated by reference.
The information required by Regulation S-K Item 407(e)(4), “Compensation Committee Interlocks and Insider Participation,” and Item 407(e)(5), “Compensation Committee Report,” is not required because the Company is a smaller reporting company.
Item 12. Security Ownership of Beneficial Owners and Management, and Related Stockholder Matters
The information required by Item 201(d) of Regulation S-K, “Securities Authorized for Issuance under Equity Compensation Plans” is contained under Note 15 – Stock Based Compensation in notes to Audited Financial Statements in Item 8 of this Form 10-K.
The information required by Item 403 of Regulation S-K relating to security ownership of certain beneficial owners and management is contained under “Security Ownership of Certain Beneficial Owners and Management" in our 2023 Proxy Statement and is incorporated by reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by Item 404(b) and Item 407(a) of Regulation S-K is contained under “Certain Relationship and Related Transactions” and “Corporate Governance,” respectively in the 2023 Proxy Statement and is incorporated by reference.
Item 14. Principal Accountant Fees and Services
The information relating to principal accounting fees and services required by Item 9(e) of Schedule 14A is set forth under “Proposal 2- Ratification of Independent Registered Public Accounting Firm” – “Fees Billed and Paid to Independent Registered Public Accounting Firm, – “Audit Fees,” – “Audit-Related Fees,” – “Tax Fees,” – “All Other Fees,” and – “Audit Committee Pre-Approval Policy for Services of Independent Registered Public Accounting Firm,” in the 2023 Proxy Statement and incorporated by reference.
78
PART IV
Item 15. Exhibits and Financial Statement Schedules
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(a) 1. |
Consolidated Financial Statements |
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Included in Part II, Item 8, of this report: |
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Pages |
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44-45 |
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Consolidated Statements of Income for the Years Ended December 31, 2022 and 2021 |
46 |
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Consolidated Statements of Comprehensive Income for the Years Ended December 31, 2022 and 2021 |
47 |
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Consolidated Balance Sheets as of December 31, 2022 and 2021 |
48-49 |
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Consolidated Statements of Cash Flows for the Years Ended December 31, 2022 and 2021 |
50 |
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Consolidated Statements of Stockholders’ Equity for the Years Ended Ended December 31, 2022 and 2021 |
51 |
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52-76 |
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(a) 2. |
Consolidated Financial Statement Schedules: |
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Other schedules are omitted because they are not required or are not applicable, or the required |
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(a) 3. |
Exhibits Required |
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80-81 |
Item 16. Form 10-K Summary
Not Applicable.
79
EXHIBIT INDEX
| Nuvera Communications, Inc. 2017 Omnibus Stock Plan, as amended March 13, 2023. | |
| 101.INS | XBRL Instance File |
| 101.SCH | XBRL Taxonomy Extension Schema File |
| 101.CAL | XBRL Taxonomy Extension Calculation Linkbase File |
80
| 101.DEF | XBRL Taxonomy Extension Definition Linkbase File |
| 101.LAB | XBRL Taxonomy Extension Label Linkbase File |
| 101.PRE | XBRL Taxonomy Extension Presentation Linkbase File |
*Filed Herewith
+Management compensation plan or arrangement required to be filed as an exhibit
81
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Dated: March 16, 2023 | NUVERA COMMUNICATIONS, INC. (Registrant) | |
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| By | /s/ Glenn H. Zerbe |
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| Glenn H. Zerbe, Chief Executive Officer |
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| (Principal Executive Officer) |
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| By | /s/ Curtis O. Kawlewski |
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| Curtis O. Kawlewski, Chief Financial Officer |
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| (Principal Financial Officer) |
Pursuant to the requirements of the Securities Exchange Act of 1934, the following persons on behalf of the registrant and in the capacities and on the dates indicated have signed this report.
Each person whose signature appears below constitutes and appoints Glenn H. Zerbe and Curtis O. Kawlewski as the undersigned true and lawful attorneys-in-fact and agents, each acting alone, with full power of substitution and re-substitution, for the undersigned in any and all capacities, to sign any or all amendments to this Annual Report on Form 10-K and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all said attorneys-in-fact and agents, each acting alone, or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
| /s/ Perry L. Meyer | March 16, 2023 | |
| Perry Meyer, Chairman of the Board | ||
| /s/ Glenn H. Zerbe | March 16, 2023 | |
| Glenn H. Zerbe, President and Chief Executive Officer (Principal Executive Officer | ||
| /s/ Curtis O. Kawlewski | March 16, 2023 | |
| Curtis O. Kawlewski, Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | ||
| /s/ Dennis E. Miller | March 16, 2023 | |
| Dennis Miller, Director | ||
| /s/ Bill D. Otis | March 16, 2023 | |
| Bill D. Otis, Director | ||
| /s/ Wesley E. Schultz | March 16, 2023 | |
| Wesley E. Schultz, Director | ||
| /s/ James J. Seifert | March 16, 2023 | |
| James J. Seifert, Director | ||
| /s/ Colleen R. Skillings | March 16, 2023 | |
| Colleen R. Skillings, Director | ||
| /s/ Suzanne M. Spellacy | March 16, 2023 | |
| Suzanne M. Spellacy, Director |
82
EXHIBIT 10.8
NUVERA COMMUNICATIONS, INC.
2017 OMNIBUS STOCK PLAN
NON-INCENTIVE STOCK OPTION AGREEMENT
________________________________________________________________________
PARTICIPANT:
GRANT DATE:
EXPIRATION DATE:
NUMBER OF SHARES:
OPTION PRICE PER SHARE:
________________________________________________________________________
THIS AGREEMENT is made as of the Grant Date set forth above, by and between Nuvera Communications, Inc., a Minnesota corporation (the “Company”), and the individual named above (the “Participant”), who is an employee of the Company or any of its “Affiliates” as defined in the Plan (as defined below).
The Company desires, by affording the Participant an opportunity to purchase shares of its Common Stock, par value $.01 per share (the “Common Stock”), as hereinafter provided, to carry out the purpose of the Nuvera Communications, Inc. 2017 Omnibus Stock Plan (the “Plan”).
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and for other good and valuable consideration, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Participant the right and option to purchase all or any part of the aggregate number of shares of Common Stock set forth above (the “Shares”) on the terms and conditions set forth in the Plan and this Agreement. This Agreement is not intended to be an “incentive stock option” within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
2. Purchase Price. The purchase price of the Shares shall be the Option Price per share set forth above.
3. Term and Exercise of Option. The term of this Agreement shall commence on the Grant Date set forth above and shall continue until the Expiration Date set forth above, unless earlier terminated as provided herein or pursuant to the Plan. Except as otherwise provided herein, this Agreement will be exercisable in cumulative installments as follows:
(a) Up to 33.33% of the Shares may be purchased at any time on or after the first anniversary of the Grant Date and prior to termination of this option;
(b) Up to 66.67% of the Shares may be purchased at any time on or after the second anniversary of the Grant Date and prior to termination of this option; and
(c) Up to 100% of the Shares may be purchased at any time on or after the third anniversary and prior to termination of this option.
In the case of fractional shares, the number of Shares vesting on any date shall be rounded down to the nearest whole share and the number of Shares vesting on the last date shall be correspondingly increased by such fractional remainders.
1
Neither the Participant nor the Participant’s legal representatives, legatees or distributees, as the case may be, will be, or will be deemed to be, a holder of any Shares for any purpose unless and until certificates for such shares are issued to the Participant or the Participant’s legal representatives, legatees or distributees, under the terms of the Plan.
4. Change in Control. Notwithstanding the foregoing, the Shares shall be exercisable in full, without regard to any installment exercise provisions, in the event of a Change in Control of the Company. In such event, the Shares shall continue to be subject to the terms of the Plan, including without limitation, Section 11.3 of the Plan.
5. Limitations on Exercise of Option.
(a) Except as provided in paragraph 7 or 8 below, this option may not be exercised unless the Participant is, at the time of such exercise, in the employ of the Company or of an Affiliate, and shall have been continuously so employed since the Grant Date of this option.
(b) The exercise of this option will be contingent upon receipt from the Participant (or the purchaser acting under paragraph 8 below) of (i) representations in writing (if required by the Company, in its sole discretion), that the Shares are being acquired for investment and not for resale or with a view to the distribution thereof, and (ii) the full Option Price of such Shares.
(c) Payment of the Option Price may be made in cash or as follows: (i) by delivery (or by attestation) of other shares of Common Stock, (ii) pursuant to a “same day sale” program exercised through a brokerage transaction as permitted under the provisions of Regulation T applicable to cashless exercises promulgated by the Federal Reserve Board so long as the Company’s equity securities are registered under Section 12 of the Exchange Act, unless prohibited by Section 402 of the Sarbanes-Oxley Act of 2002, (iii) by a “net exercise” arrangement pursuant to which the Company will reduce the number of Shares issued upon exercise by the largest whole number of Shares with a Fair Market Value that does not exceed the aggregate Option Price (together with payment in cash or other payment from the Participant to the extent of any remaining balance), provided that any such Shares used to pay the Option Price shall no longer be outstanding and exercisable under such Option.
(d) The issuance of Shares upon the exercise of this option shall be subject to all applicable laws, rules and regulations, and shares shall not be issued except upon the approval of proper government agencies or stock exchanges as may be required.
(e) This option shall not be exercisable if at any date of exercise, it is the opinion of counsel for the Company that registration of said shares under the Securities Act of 1933, or other applicable statute or regulation, is required and this option shall again become exercisable only if the Company elects to and thereafter effects a registration of said shares under the Securities Act of 1933, or other applicable statute or regulation, within the period of this option.
6. Non transferability of Option. This option shall not be transferable by the Participant, other than by will or the laws of descent and distribution. During the lifetime of the Participant, this option shall be exercisable only by the Participant.
7. Non-Qualifying Event.
(a) If the Participant shall cease to be employed by the Company or an Affiliate other than upon a Qualifying Event or other than a termination for Cause (defined below), this option may be exercised, to the extent the Participant shall have been entitled to do so at the date of termination of employment, within a period of 90 days after such termination of employment, but in no case later than the Expiration Date set forth above.
(b) If the Participant’s employment is terminated for “Cause” (as defined in the Plan), the right of Participant to exercise this option shall terminate immediately upon such termination of employment.
2
(c) This Agreement will not confer upon the Participant any right with respect to continuance of employment by the Company, nor will it interfere in any way with the right of the Company or an Affiliate to terminate Participant’s employment at any time.
8. Qualifying Event.
(a) Upon a Qualifying Event of the Participant while in the employ of the Company other than Retirement, this option may be exercised, to the extent the Participant shall have been entitled to do so at the date of death or disability, within a period of one year after the date of death or disability, but in no case later than the Expiration Date set forth above. In the event of death, this option shall be exercisable only by the executors or administrators of the Participant or by the person or persons to whom the Participant’s rights under the option shall pass by the Participant’s will or the laws of descent and distribution.
(b) Upon the Retirement of the Participant while in the employ of the Company, this option may be exercised at any time after Retirement, to the extent the Participant shall have been entitled to do so at the date of Retirement, but in no case later than the Expiration Date set forth above. For purposes of this Agreement, Retirement means termination of employment from the Company on or after the date the Participant has attained age 65.
9. Tax Withholding. As a condition to the Company’s obligation to issue Shares upon exercise of this option, the Company has the right to deduct or withhold, or require the Participant to pay any required tax withholding applicable to the vesting and exercise of the option. Unless the Participant makes other arrangements for the payment of required tax withholding, the Company will satisfy any withholding tax requirements associated with the issuance of Shares by retaining from the number of Shares that would otherwise be issued to the Participant that number of Shares having an aggregate Fair Market Value equal to part or all of the tax payable by the Participant under this Paragraph, and in the event Shares are withheld or delivered, the amount withheld will not exceed the maximum federal, state FICA and other payroll taxes.
10. Confidentiality and Protection of Business Agreement. As consideration for and as a condition precedent to the grant of the option to the Participant by the Company, the Participant will execute and deliver to the Company the Confidentiality and Protection of Business Agreement, in the form attached hereto as Exhibit A and the Participant agrees that the Participant will comply with the terms thereof during employment with the Company and its Affiliates and thereafter in accordance with its terms.
11. Forfeiture and Recoupment. The Committee may, in its sole discretion and in accordance with Section 13.8 of the Plan, reduce, cancel, forfeit or recoup any rights, payments or benefits paid or otherwise due to the Participant, including any vested and unexercised options and any Shares issued under the Agreement, any Shares acquired hereunder then held by the Participant and any gain received by the Participant upon disposition of such Shares, for violation of the Confidentiality and Protection of Business Agreement, any similar agreement, or for any one or more reasons set forth in Section 13.8 of the Plan, or as required by law. Such forfeiture and recoupment shall be in addition to any other remedies available to the Company.
12. Leave of Absence. If any Participant who is an employee is taking one of the types of leave listed below and does not return to employment with the Company within 30 days of the end of the approved leave, the Participant will incur a termination of employment for purposes of the Plan as of the last day of the approved leave:
(a) a qualified military leave;
(b) a Company-approved leave of absence of less than 90 days; or
(c) a Company-approved leave of greater than 90 days, and the Company is obligated by statute or written contract to re-employ the Participant at the end of the approved leave.
The Chief Executive Officer of the Company has the authority to approve all leaves of absence and to enter into contracts to provide for re-employment for purposes of the Plan.
13. At-Will Employment. Nothing in this Agreement constitutes a commitment, guaranty, contract or understanding of any kind that the Company will retain the services of the Participant as an employee for any term; all employment remains at will, subject to the terms of any employment agreement that the Company has with the Participant. The Agreement does not affect in any way the right of the Company or Participant to terminate the employment relationship at any time for any reason, without any liability or claim under the Plan.
3
14. Code § 409A. This Agreement is intended to be exempt from the requirements of Section 409A of the Code and must be construed and interpreted in accordance with this intent. Except as provided in this Agreement or as provided in the Plan, no payment will be subject to further deferral except as otherwise permitted or required pursuant to regulations and other guidance issued pursuant to Section 409A of the Code. Any provision of this Agreement that would fail to satisfy the exemption for a short-term deferral for purposes of Section 409A of the Code will be amended to so comply on a timely basis.
15. Plan Controls. Notwithstanding anything in this Agreement to the contrary, the terms of this Agreement are subject to the terms of the Plan. In accordance with the Plan, all decisions of the Committee are final and binding upon Participant and the Company. Nothing in this Agreement modifies or reduces the rights or discretions of the Committee set forth in the Plan.
IN WITNESS WHEREOF, the Company and Participant have each executed and delivered this Agreement and Exhibit A and agree to be bound by their terms as of the date first above written.
COMPANY: PARTICIPANT:
NUVERA COMMUNICATIONS, INC. [PARTICIPANT]
By:
Perry Meyer, Chair of the Board Signature
4
EXHIBIT 10.9
NUVERA COMMUNICATIONS INC.
NEW ULM TELECOM, INC. 2017 OMNIBUS STOCK PLAN
EMPLOYEE RESTRICTED STOCK UNIT AWARD AGREEMENT
| PATICIPANT: |
|
| AWARD DATE:
|
|
Pursuant to Section 7.4 and 7.6 of the New Ulm Telecom, Inc. 2017 Omnibus Stock Plan (the "Plan"), the Board of Directors of Nuvera, Inc. (the "Company") hereby grants to the Participant Restricted Stock Units ("Units") in the common stock ("Shares") of the Company, subject to the terms and conditions set forth in this Restricted Stock Unit Award Agreement (“Agreement") and the Plan. Capitalized terms not defined in the Agreement have the meaning given these terms in the Plan.
1. Time Vesting Units. Subject to the terms of this Agreement and the Plan, The Board hereby grant to the Participant ___ of Units ("time Vesting Units") that will vest on December 31, 2023, provided the Participant remains employed by the Company on the date, subject to earlier vesting as set forth in Paragraph 4.
2. Performance Vesting Units. The Board hereby grants to the Participant Units (“Performance Vesting Units”) that will be earned and vested only at the time and upon achievement of the Performance Goals ("Goals") of the Average Annual Return on Invested Capital of the Company ("ROC") at Target of 7.608% (subject to adjustment as described below) over the period January 1, 2021 to December 31, 2023
("Performance Period") at, below or above Target in accordance with the following chart, provided the Participant remains employed by the Company as of December 31, 2023.
| AVERAGE ANNUAL RETURN ON INVESTED | PERCENTAGE OF UNITS EARNED | NUMBER OF UNITS EARNED | |
|
| CAPITAL | ||
| THRESHOLD: | 90% | 50% | 360 |
| TARGET: | 100% | 100% | 719 |
| MAXIMUM: | 110% | 150% | 1,079 |
The number of Performance Vesting Units (rounded to the nearest whole share) earned will be interpolated from 50% to 100% of the Target Units for performance between Threshold and Target Goals and will Maximum Goals. The Board, in its sole discretion, may adjust the ROIC for the Performance Period, including adjustment that may result in non-GAAP financial measures, such as the effect of changes in accounting standards, tax laws and regulations, and extraordinary, non-recurring or unusual events specified by the Board, including write-offs or write-downs, capital gains or losses, acquisitions or divestitures, restructurings and litigation judgements and settlements.
3. Termination of Employment. If the Participant's employment with the Company terminated for any reason, including, but not limited to death, Disability or Retirement, prior to December 31, 2023, all Units will immediately forfeit to the Company without payment to the Participant as of the date of the termination unless the Board determines that some or all of the unvested Units will vest as of the date of the termination.
4. Change in Control. Notwithstanding any other provision of this Agreement, if there is a Change in Control of the Company prior to December 31, 2023:
a. All Time Vesting Units will vest immediately prior to the Change in Control; and
b. All or a portion of the Performance Vesting Units will be earned and vested immediately prior to the Change in Control in accordance with Paragraph 3 above but based upon the actual level of achievement of the Performance Goal at or immediately prior to the Change in Control as against the stated Performance Goals prorated based on the time elapsed in the Performance Period as of the Change in Control.
Within 30 days of the Change in Control, the Company will transfer to the Participant one unrestricted, fully transferable Share of stock in exchange for each earned and vested Time Vesting Unit and Performance Vesting Unit as determined above and thereupon all Units granted hereunder will be cancelled and of no further force and effect.
1
5. Payout of Units. The Compensation Committee of the Board shall determine, after the end of the Performance Period, the achievement of the ROIC Goal and the number of Performance Vesting Units that the Participant has earned in accordance with Paragraph 3 above, which determination shall be final and binding on the Company and the Participant. Within 10 days of such determination, but no later than march 15, 2024 the Company will transfer to the Participant one unrestricted, fully transferable Share of stock in settlement for each earned and vested Time Vesting Unit and Performance Vesting Unit as determined above and thereupon all the Units granted hereunder wilt be cancelled and no further force and effect.
6. Tax Withholding. As a condition of the Company's obligation to issue Shares in settlement of the earned and vested Units, the Company has the right to deduct or withhold, or require the Participant to pay any required tax withholding applicable to the vesting and issuance of the Shares in settlement of any vested Units. Unless the Participant makes other arrangements for the payment of required tax withholding, the Company will satisfy any withholding tax requirements associated with the issuance of Shares by retaining from the number of Shares that would otherwise be issued to the Participant that number of Shares having an aggregate Fair Market Value equal to part or all of the tax payable by the Participant under this Paragraph, and in the event Shares are withheld or delivered, the amount withheld will not exceed the maximum federal, state FICA and other payroll taxes,
7. No Rights as Shareholder in Units. Until Shares are issued in settlement of vested Units, the Participant will not be deemed for any purpose to be, or have rights as, a Company shareholder, including to exercise, directly or by proxy, voting rights or to receive dividends with respect to the Shares issuable prior to or concurrent with the vesting of the Units. In addition, the Participant will not be entitled to any dividend equivalents, in the form of cash, additional Units or Shares, with respect to the Units for the period prior to the settlement of the Units. From and after the date of settlement, the Participant will have all rights and privileges of any other shareholder with respect to the Shares issued in settlement of the vested Units.
8. Equitable Unit Adjustment. Pursuant to Section 3.4 of the Plan, the Company will make an equitable adjustment in the number of Units that have not vested in the event of a change in the capital structure of the Company including but not limited to stock dividends or stock splits. Any additional Units issued to the Participant as a result of any of the foregoing events will continue to be subject to the terms set forth in this Agreement to the same extent as the Units giving rise to the right to receive the additional Unit.
9. Non-Transferability. The Units represent an unfunded promise to issue Shares in the future and Participant has no rights other than as a general creditor of the Company with respect to the issuance of Shares in settlement of any vested Units. The Participant may not sell, transfer, pledge, assign or otherwise encumber any of the Units, whether voluntarily, involuntarily or by operation of law. Any purported transfer, pledge or encumbrance of the Units is void and unenforceable against the Company, and no purported transferee will acquire any right or interest with respect to the Shares as a result.
10. Forfeiture and Recoupment. The Committee may, in its sole discretion, reduce, cancel, forfeit or recoup any rights, payments or benefits paid or otherwise due to the Participant, including any Units and any Shares issued under the Agreement for any one or more reasons and pursuant to the terms set forth in Section 13.8 of the Plan, or as required by law.
11. Leave of Absence. If any Participant who is an employee is taking one of the types of leave listed below and does not return to employment with the Company within 30 days of the end of the approved leave, the Participant will incur a termination of employment for purposes of the Plan as of the last day of the approved leave:
a. a qualified military leave;
b. a Company-approved leave of absence of less than 90 days; or
c. a Company- approved leave of greater than 90 days, and the Company is obligated by statute or written contract to re-employ the Participant at the end of the approved leave.
The Chief Executive Officer of the Company has the authority to approve all leaves of absence and to enter into contract to provide for re-employment for purposes of the Plan.
2
12. in this Agreement constitutes a commitment, guaranty, contract or understanding of any kind that the Company will retain the services of the Participant as an employee for any term; all employment remains at will, subject to the terms of any employment agreement that the Company has with the Participant. The Agreement does not affect in any way the right of the Company or Participant to terminate the employment relationship at any time for any reason, without any liability or claim under the Plan.
13.Code S 409A. This Agreement is intended to be exempt from the requirements of Section 409A of the Code ad must
be construed and interpreted in accordance with this intent. Except as provided in this Agreement or as provided in the Plan, no Payment will be subject to further deferral except as otherwise permitted or required pursuant to regulations and other guidance issued pursuant to Section 409A of the Code. Any provision of this Agreement that would fail to satisfy the exemption for a short-term deferral for purposes of Section 409A of the Code will be amended to so comply on a timely basis.
IN WITNESS WHEREOF, the Company and Participant have each executed and delivered this
Agreement and agree to be bound by its terms as of the date first above written.
COMPANY: PARTICIPANT:
NUVERA COMMUNICATIONS, INC.
By: _______________________________ ________________________________
Signature
3
EXHIBIT 10.12
NUVERA COMMUNICATIONS, Inc.
Plan Term: May 25, 2017 through May 24, 2027
Adopted by the Board of Directors on February 24, 2017
Approved by the Shareholders of the Company on May 25, 2017
Amendment adopted by the Board of Directors on March 13, 2023
| SECTION | PAGE | |
| SECTION 1 PURPOSE | 1 | |
| SECTION 2 DEFINITIONS | 1 | |
| 2.1 | BOARD | 1 |
| 2.2 | CAUSE | 1 |
| 2.3 | CODE | 1 |
| 2.4 | COMMITTEE | 1 |
| 2.5 | COMPANY | 1 |
| 2.6 | DEFERRED COMPENSATION | 1 |
| 2.7 | DISABILITY | 2 |
| 2.8 | EXCHANGE ACT | 2 |
| 2.9 | EXERCISE PRICE | 2 |
| 2.1 | FAIR MARKET VALUE | 2 |
| 2.11 | INSIDER | 2 |
| 2.12 | ISO | 2 |
| 2.13 | KEY PERSON | 2 |
| 2.14 | NQSO | 2 |
| 2.15 | OPTION | 3 |
| 2.16 | OUTSIDE DIRECTOR | 3 |
| 2.17 | PARTICIPANT | 3 |
| 2.18 | PERFORMANCE-BASED EXCEPTION | 3 |
| 2.19 | PERFORMANCE GOAL | 3 |
| 2.2 | PERFORMANCE PERIOD | 3 |
| 2.21 | PERFORMANCE STOCK | 3 |
| 2.22 | PERFORMANCE UNITS | 3 |
| 2.23 | PLAN | 4 |
| 2.24 | QUALIFYING EVENT | 4 |
| 2.25 | RESTRICTED STOCK AWARD | 4 |
| 2.26 | RESTRICTED STOCK UNIT | 4 |
| 2.27 | RETIREMENT | 4 |
| 2.28 | SERVICE | 4 |
| 2.29 | SHARE | 4 |
| 2.3 | SPECIFIED EMPLOYEE | 4 |
| 2.31 | STOCK APPRECIATION RIGHT | 4 |
| 2.32 | STOCK INCENTIVE | 5 |
| 2.33 | STOCK INCENTIVE AGREEMENT | 5 |
| 2.34 | SUBSIDIARY | 5 |
| 2.35 | TEN PERCENT SHAREHOLDER | 5 |
| SECTION 3 SHARES SUBJECT TO STOCK INCENTIVES | 5 | |
| 3.1 | AGGREGATE SHARES AUTHORIZED | 5 |
| 3.2 | SHARE COUNTING | 5 |
| 3.3 | LIMITATIONS ON STOCK INCENTIVES | 5 |
| 3.4 | SHARE ADJUSTMENT | 6 |
| SECTION 4 EFFECTIVE DATE AND TERM OF PLAN | 6 | |
| SECTION 5 ADMINISTRATION | 6 | |
| 5.1 | GENERAL ADMINISTRATION | 6 |
| 5.2 | AUTHORITY OF THE COMMITTEE | 7 |
| 5.3 | DELEGATION OF AUTHORITY | 7 |
| 5.4 | DECISIONS BINDING | 7 |
| SECTION 6 ELIGIBILITY | 7 | |
| SECTION 7 TERMS AND CONDITIONS OF STOCK INCENTIVES | 7 | |
| 7.1 | ALL STOCK INCENTIVES | 7 |
| 7.2 | OPTIONS | 9 |
| 7.3 | RESTRICTED STOCK | 10 |
| 7.4 | RESTRICTED STOCK UNITS | 10 |
| 7.5 | STOCK APPRECIATION RIGHTS | 11 |
| 7.6 | PERFORMANCE STOCK AND PERFORMANCE UNITS | 12 |
| 7.7 | OTHER AWARDS | 12 |
| 7.8 | NON-EMPLOYEE DIRECTOR STOCK INCENTIVES AND OTHER AWARDS | 12 |
| SECTION 8 SECURITIES REGULATION | 13 | |
| 8.1 | LEGALITY OF ISSUANCE | 13 |
| 8.2 | RESTRICTIONS ON TRANSFER; REPRESENTATIONS; LEGENDS | 13 |
| 8.3 | REGISTRATION OF SHARES | 13 |
| SECTION 9 COMPLIANCE WITH THE CODE | 13 | |
| 9.1 | DISCRETION IN FORMULATION OF PERFORMANCE CRITERIA | 13 |
| 9.2 | PERFORMANCE PERIODS | 13 |
| 9.3 | MODIFICATIONS TO PERFORMANCE GOAL CRITERIA | 13 |
| 9.4 | LIMITATION ON PAYMENT OR EXERCISE | 13 |
| 9.5 | DELAY IN PAYMENT OR EXERCISE FOR SPECIFIED EMPLOYEES | 14 |
| 9.6 | WITHHOLDING | 14 |
| 9.7 | NOTIFICATION OF DISQUALIFYING DISPOSITIONS OF AN ISO | 14 |
| SECTION 10 STOCK INCENTIVES TO PARTICIPANTS OUTSIDE THE US | 14 | |
| SECTION 11 CHANGE IN CONTROL OF THE COMPANY | 15 | |
| 11.1 | CHANGE IN CONTROL | 15 |
| 11.2 | VESTING UPON A CHANGE IN CONTROL | 15 |
| 11.3 | DISPOSITION OF STOCK INCENTIVES | 16 |
| 11.4 | GENERAL RULE FOR OTHER STOCK INCENTIVES | 16 |
| SECTION 12 AMENDMENT OR TERMINATION | 17 | |
| 12.1 | AMENDMENT OF PLAN | 17 |
| 12.2 | TERMINATION OF PLAN | 17 |
| 12.3 | AMENDMENT OF STOCK INCENTIVES | 17 |
| SECTION 13 MISCELLANEOUS | 17 | |
| 13.1 | SHAREHOLDER RIGHTS | 17 |
| 13.2 | NO GUARANTEE OF CONTINUED RELATIONSHIP | 18 |
| 13.3 | TRANSFERS & RESTRUCTURINGS | 18 |
| 13.4 | LEAVES OF ABSENCE | 18 |
| 13.5 | GOVERNING LAW/CONSENT TO JURISDICTION | 18 |
| 13.6 | ESCROW OF SHARES | 18 |
| 13.7 | NO FRACTIONAL SHARES | 18 |
| 13.8 | FORFEITURE AND RECOUPMENT | 18 |
| 13.9 | SEVERABILITY | 19 |
| 13.1 | NO TRUST OR FUND CREATED | 19 |
Nuvera Communications, inc.
2017 omnibus STOCK PLAN
SECTION 1
PURPOSE
The purpose of the Plan is to enable Nuvera Communications, Inc. (the “Company”) and its subsidiaries to attract and retain employees, directors and service providers of the Company by aligning financial interests of these individuals with the other stockholders of the Company.
The Plan provides for the grant of Incentive Stock Options, Non-Qualified Stock Options, Restricted Stock, Restricted Stock Units, Stock Appreciation Rights, Performance Stock, Performance Units, and other awards to aid the Company in obtaining these goals, subject to the approval by the shareholders.
SECTION 2
DEFINITIONS
2.1 BOARD
Board means the Board of Directors of the Company.
2.2 CAUSE
(a) Employee’s conviction, including the entry of a plea of guilty or no contest, of a felony, or any criminal violation involving moral turpitude.
(b) Employee engages in fraud or other acts of dishonesty involving the Company, or any other conduct that has a material adverse effect on the business or reputation of the Company or the Employee.
(c) Employee engages in material misconduct or refuses to carry out or is grossly negligent in the performance of his or her material duties to the Company.
(d) Employee fails to follow any written policy (including but not limited to the Company’s Code of Conduct), resolution or any reasonable instruction of the Board or any Committee thereof, or the Chief Executive Officer of the Company and Employee fails to remedy such failure within 30 days following reasonable notice.
(e) Employee voluntarily terminates his or her employment following the occurrence of any of the acts or omissions described in subsections (a) through (d) above.
2.3 CODE
Code means the Internal Revenue Code of 1986, as amended and any successor, and regulations promulgated thereunder.
2.4 COMMITTEE
Committee means the Compensation Committee of the Board or any other committee appointed by the Board to administer the Plan.
2.5 COMPANY
Company means Nuvera Communications, Inc., (formerly New Ulm Telecom, Inc.) a corporation organized under the laws of the State of Minnesota (or any successor corporation).
2.6 DEFERRED COMPENSATION
Deferred Compansation means any Stock Incentive under this Plan that provides for the “deferral of compensation” as defined in Treas. Reg. §1.409A-1(b) and that would be subject to the taxes specified in Section 409A(a)(1) of the Code if and to the extent the Stock Incentive Agreement does not meet or is not administered and interpreted in compliance with the requirements of Section 409A(a)(2), (3) and (4) of the Code. Deferred Compensation shall not include any amount that is otherwise exempt from the requirements of Section 409A of the Code.
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2.7 DISABILITY
Disability means a physical or mental condition resulting from a bodily injury or disease or mental disorder rendering such person incapable of continuing to perform the essential employment duties of such person at the Company as such duties existed immediately prior to the bodily injury, disease or mental disorder.
2.8 EXCHANGE ACT
Exchange Act means the Securities Exchange Act of 1934, as amended and any successor, and regulations and rules promulgated thereunder.
2.9 EXERCISE PRICE
Exercise Price means the price that shall be paid to purchase one Share upon the exercise of an Option granted under this Plan.
2.10 FAIR MARKET VALUE
Fair Market Value of one Share on any given date shall be determined by the Committee as follows: (a) if the Shares are listed for or admitted for trading on one of more national securities exchanges, the last reported sales price on the principal exchange on the date in question, or if such Shares shall not have been traded on such principal exchange on such date, the last reported sales price on such principal exchange on the first day prior thereto on which such Shares were so traded; or (b) if the Shares are not listed for or admitted for trading on a national securities exchange, but is traded in the over-the-counter market, the closing bid price for such Shares on the date in question, or if there is no such bid price for such Shares on such date, the closing bid price on the first day prior thereto on which such price existed; or (c) if neither (a) or (b) is applicable, with respect to any Option intended to qualify as an ISO, by any fair and reasonable determination made in good faith by the Committee, and, with respect to any other Stock Incentive that is intended to be exempt from the requirements of Section 409A of the Code, a value determined by the reasonable application of a reasonable valuation method as defined in regulations promulgated under Section 409A of the Code, which determination shall be final and binding on all parties.
2.11 INSIDER
Insider means an individual who is, on the relevant date, an officer, member of the Board or ten percent beneficial owner of any class of the Company’s equity securities that is registered pursuant to Section 12 of the Exchange Act, all as defined under Section 16 of the Exchange Act.
2.12 ISO
ISO (“Incentive Stock Option”) means an Option granted under this Plan to purchase Shares that is intended by the Company to satisfy the requirements of Section 422 of the Code.
2.13 KEY PERSON
Key Person means a person, other than an employee, who is (a) a member of the Board; or (b) a service provider providing bona fide services to the Company.
2.14 NQSO
NQSO (“Non-Qualified Stock Option”) means an option granted under this Plan to purchase Shares that is not intended by the Company to satisfy the requirements of Section 422 of the Code, and includes any ISO that, by subsequent action of the Company or the Participant permitted by the Plan, ceases to be an ISO.
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2.15 OPTION
Option means an ISO or a NQSO.
2.16 OUTSIDE DIRECTOR
Outside Director means a member of the Board who is not an employee and who: (a) is a “non-employee director” under Rule 16b-3 under the Exchange Act, as amended from time to time; (b) if applicable, satisfies the requirements of the principal stock exchange for the Shares relating to the independence of directors or the independence of directors serving on the Compensation Committee of the Board; and (c) satisfies the independence or similar requirement of the Securities and Exchange Commission applicable to directors or to directors serving on the Compensation Committee of the Board.
2.17 PARTICIPANT
Participant means a Key Person or an employee who is designated to receive an award under the Plan by the Committee.
2.18 RESERVED
2.19 PERFORMANCE GOAL
Performance Goal means, the performance measure(s) to be used by the Committee for purposes of awarding Stock Incentives shall be chosen from among the following:(a) earnings per share; (b) net income (before or after taxes); (c) return measures (including, but not limited to, return on assets, invested capital, equity or sales); (d) cash flow return on investments (net cash flows divided by owners equity); (e) earnings before or after taxes, depreciation and amortization, or a similar measure; (f) revenues and or sales (gross or net); (g) operating income (before or after taxes); (h) total shareholder return; (i) corporate performance indicators (indices based on the level of certain services provided to customers); (j) cash generation, working capital, profit or revenue targets; (k) growth measures, such as revenue or sales growth; (l) rate of change (positive or negative) or change from prior period; (m) ratios, such as expenses, market share, debt or leverage; (n) share price or measures based on share price; (o) external measures or indices; (p) any combination of one or more of these factors; or (q) such other performance criteria as the Committee may establish in its sole discretion. In setting Performance Goals using these performance measures, the Committee may establish goals on an absolute basis, rate basis, subsidiary, segment, unit or division performance basis, or relative to a peer group performance or other benchmark. The Committee may provide that one or more objectively determinable adjustments be made in any Performance Goal, including adjustments that may result in such measures being considered non-GAAP financial measures, such as the effect of changes in accounting standards, tax laws and regulations, and extraordinary, non-recurring or unusual events specified by the Committee, including write-offs or write-downs, capital gains or losses, acquisitions or divestitures, restructurings, and litigation judgments and settlements.
2.20 PERFORMANCE PERIOD
Performance Period means the period during which a Performance Goal must be attained with respect to a Stock Incentive that is performance based, as determined by the Committee.
2.21 PERFORMANCE STOCK
Performance Stock means an award of Shares granted to a Participant that is subject to the achievement of any Performance Goal, either as to the delivery of such Shares or the calculation of the amount deliverable as a result of achieving a level of performance over a specified Performance Period, or any combination thereof.
2.22 PERFORMANCE UNITS
Performance Units means a contractual right granted to a Participant to receive a Share (or cash equivalent) upon achievement of any Performance Goal or a level of performance over a specified Performance Period that are deliverable either at the end of the Performance Period or at a later time.
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2.23 PLAN
Plan means the Nuvera Communications, Inc. 2017 Omnibus Stock Plan, as it may be further amended from time to time.
2.24 QUALIFYING EVENT
Qualifying Event means, with respect to a Participant, such Participant’s death, Disability or Retirement.
2.25 RESTRICTED STOCK AWARD
Restricted Stock Award means an award of Shares granted to a Participant under this Plan that is subject to restrictions in accordance with the terms and provisions of this Plan and the applicable Stock Incentive Agreement.
2.26 RESTRICTED STOCK UNIT
Restricted Stock Unit means a contractual right granted to a Participant under this Plan to receive a Share (or cash equivalent) that is subject to restrictions of this Plan and the applicable Stock Incentive Agreement.
2.27 RETIREMENT
Retirement means retirement from active employment with the Company and any subsidiary or parent corporation of the Company on or after age 65, or upon an earlier date with the consent of the Committee, and upon such terms and conditions as determined by the Committee.
2.28 SERVICE
Service means services provided to the Company or any Subsidiary as either a Key Employee or a Key Person.
2.29 SHARE
Share means one share of the common stock of the Company.
2.30 SPECIFIED EMPLOYEE
Specified Employee means a Participant who is a “key employee” as described in Section 416(i)(1)(A) of the Code, disregarding paragraph (5) thereof. For purposes of determining key employees under Section 416(i)(1)(A) of the Code, the definition of compensation shall be the same as defined in the Company’s qualified retirement plan, but excluding any compensation of a Participant whose location is not effectively connected with the conduct of a trade or business within the United States. If a Participant is a key employee at any time during the 12 months ending on each December 31, the Participant is a Specified Employee for the 12 month period commencing on the next April 1. Any such identification of a Specified Employee under this Plan shall apply to all nonqualified deferred compensation plans in which the Specified Employee participates. In the case of certain corporate transactions (a merger, acquisition or spin-off), or in the case of nonresident alien employees, the Company will determine Specified Employees in accordance with Treas. Reg. §1.409A-1(i).
2.31 STOCK APPRECIATION RIGHT
Stock Appreciation Right means a right granted to a Participant pursuant to the terms and provisions of this Plan whereby the individual, without payment to the Company (except for any applicable withholding or other taxes), receives Shares, or such other consideration as the Committee may determine, in an amount equal to the excess of the Fair Market Value per Share on the date on which the Stock Appreciation Right is exercised over the exercise price per Share noted in the Stock Appreciation Right, for each Share subject to the Stock Appreciation Right.
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2.32 STOCK INCENTIVE
Stock Incentive means an ISO, NQSO, Restricted Stock, Restricted Stock Unit, Stock Appreciation Right, Performance Stock, Performance Unit, or cash.
2.33 STOCK INCENTIVE AGREEMENT
Stock Incentive Agreement means a document, agreement, certificate, resolution or other evidence in writing or electronic form approved by the Committee that sets forth the terms and conditions of a Stock Incentive granted by the Company to a Participant pursuant to this Plan.
2.34 SUBSIDIARY
Subsidiary means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if each of the corporations (other than the last corporation in the unbroken chain) owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in the chain.
2.35 TEN PERCENT SHAREHOLDER
Ten Percent Shareholder means a person who owns (after taking into account the attribution rules of Section 424(d)) of the Code more than ten percent of the total combined voting power of all classes of shares of stock of either the Company or a Subsidiary.
SECTION 3
SHARES SUBJECT TO STOCK INCENTIVES
3.1 AGGREGATE SHARES AUTHORIZED
The aggregate number of Shares that may be issued under the Plan is 625,000 Shares, subject to adjustment as provided in Section 3.4. These Shares will be reserved, to the extent that the Company deems appropriate, from authorized but unissued Shares, and from Shares that have been reacquired by the Company.
3.2 SHARE COUNTING
For purposes of determining the limits described in this Plan, in particular this Section 3, Shares covered by a Stock Incentive will not be counted as used unless and until actually delivered to a Participant and thereupon on a one-for-one basis. If any Shares covered by a Stock Incentive under this Plan are not purchased or are forfeited or reacquired by the Company prior to vesting, or if a Stock Incentive terminates, or is cancelled without the delivery of any Shares, these Shares will be added back to the limits described in this Plan and are again available for grants from the Plan. In addition, the following principles will apply in determining the number of Shares under any applicable limit:
(a) Shares tendered or attested to in payment of the Exercise Price of upon a net exercise of an Option will not be added back to the applicable limit;
(b) Shares withheld by the Company to satisfy the tax withholding obligation will not be added back to the applicable limit;
(c) Shares that are reacquired by the Company with the amount received upon exercise of an Option will not be added back to the applicable limit;
(d) The aggregate Shares exercised pursuant to a Stock Appreciation Right that is settled in Shares will reduce the applicable limit, rather than the number of Shares actually issued; and
(e) Any Stock Incentive that is settled in cash will not reduce the applicable limit.
3.3 LIMITATIONS ON STOCK INCENTIVES
Subject to adjustment pursuant to Section 3.4:
(a) No more than 625,000 Shares may be used for Incentive Stock Options;
(b) No Participant may be granted any Stock Incentive covering an aggregate number of Shares in excess of 100,000 in any calendar year.
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3.4 SHARE ADJUSTMENT
Notwithstanding anything in Section 12 to the contrary: (a) the number of Shares reserved under Section 3.1, (b) the limit on the number of Shares that may be granted subject to Stock Incentives during a calendar year to any individual under Section 3.1 and 3.3, (c) the number of Shares subject to certain Stock Incentives granted subject to Section 3.1, and (d) the Exercise Price of any Options and the specified price of any Stock Appreciation Rights, shall be adjusted by the Committee in an equitable manner to reflect any change in the capitalization of the Company, including, but not limited to, such changes as stock dividends or stock splits. Furthermore, the Committee shall have the right to adjust (in a manner that satisfies the requirements of Code Section 424(a)): (i) the number of Shares reserved under Section 3.1; (ii) the number of Shares subject to certain Stock Incentives subject to Section 3.1; and (iii) the Exercise Price of any Options and the specified exercise price of any Stock Appreciation Rights in the event of any corporate transaction described in Section 424(a) of the Code that provides for the substitution or assumption of such Stock Incentives. If any adjustment under this Section creates a fractional Share or a right to acquire a fractional Share, such fractional Share shall be disregarded, and the number of Shares reserved under this Plan and the number subject to any Stock Incentives granted under this Plan shall be the next lower number of Shares, rounding all fractions downward. An adjustment made under this Section by the Committee shall be conclusive and binding on all affected persons and, further, shall not constitute an increase in the number of Shares reserved under Section 3.1 or an increase in any limitation imposed by the Plan.
SECTION 4
EFFECTIVE DATE AND TERM OF PLAN
The effective date of this Plan shall be May 25,2017, provided, however, that if the Plan is not approved by the shareholders of the Company within 12 months of the approval by the Board, the Plan will be terminated and all Stock Incentives granted under the Plan will be terminated and deemed null and void and further provided that no Stock Incentive shall vest and no Shares may be issued under the Plan prior to approval of the Plan by the shareholders of the Company. No Stock Incentive shall be granted under this Plan on or after the earlier of:
(a) the tenth anniversary of the effective date of this Plan, and
(b) the date on which all of the Shares reserved under Section 3 of this Plan have been issued or are no longer available for use under this Plan.
This Plan shall continue in effect until all outstanding Stock Incentives have been exercised in full or are no longer exercisable, all Restricted Stock Awards or Restricted Stock Units have vested or been forfeited and all Performance Shares or Units have be awarded or lapsed at the end of the Performance Periods.
SECTION 5
ADMINISTRATION
5.1 GENERAL ADMINISTRATION
The Committee shall administer this Plan. The Committee, acting in its absolute discretion, shall exercise such powers and take such action as expressly called for under this Plan. The Committee shall have full power to construe and interpret the Plan and any agreement or instrument entered into under the Plan; to establish, amend or waive rules and regulations for the Plan’s administration, and to make all other determinations and take all other actions that may be necessary or advisable for the administration of the Plan. Notwithstanding anything herein to the contrary, the Board may, without further action of the Committee, exercise the powers and duties of the Committee or any delegate under the Plan.
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5.2 AUTHORITY OF THE COMMITTEE
Except as limited by law or by the Articles of Incorporation or By-laws of the Company, the Committee shall have full power to: (a) select Participants in the Plan; (b) determine the types of Stock Incentives for each Participant in a manner consistent with the Plan; (c) determine the number of Shares or the method of determining the number of Shares or other payment under such Stock Incentive; (d) determine the terms and conditions of Stock Incentives in a manner consistent with the Plan, including, subject to Section 7.1(e), the time and manner of exercise, the restrictions on the rights granted under the Stock Incentive and the lapse thereof, the manner of payment, if any, the restrictions or holding period applicable to the payment or Stock received upon exercise or in satisfaction of the Stock Incentive; and (e) amend the terms and conditions of any outstanding Stock Incentives as provided in accordance with Section 12.3. The Committee shall have the independent authority and discretion over the appointment, compensation and oversight of the services of advisors to the Committee, including compensation consultants and legal counsel, provided such advisors meet the standards for independence as established by the Securities Exchange Commission. The Company shall pay the compensation and expenses of such advisors. The Committee may seek the assistance of such other persons as it may see fit in carrying out its routine administrative functions concerning the Plan.
5.3 DELEGATION OF AUTHORITY
The members of the Committee shall be appointed from time to time by, and shall serve at the discretion of, the Board. The Committee may appoint one or more separate committees (any such committee, a “Subcommittee”) composed of two or more Outside Directors of the Company (who may but need not be members of the Committee) and may delegate to any such Subcommittee or to one or more executive officers of the Company the authority to grant Stock Incentives, and administer the Plan or any aspect of it; provided, however, that only the Committee may grant Stock Incentives to Insiders.
5.4 DECISIONS BINDING
All determinations and decisions made by the Committee pursuant to the provisions of this Plan and all related orders and resolutions of the Committee shall be final, conclusive and binding on all persons, including the Company, its shareholders, members of the Board, Participants, and their estates and beneficiaries.
SECTION 6
ELIGIBILITY
Participants selected by the Committee shall be eligible for the grant of Stock Incentives under this Plan, but no Participant shall have the right to be granted a Stock Incentive under this Plan merely as a result of his or her status as a Key Person or employee. Notwithstanding the foregoing, an ISO may only be granted to a Participant who is a common law employee of the Company or Subsidiary.
SECTION 7
TERMS AND CONDITIONS OF STOCK INCENTIVES
7.1 ALL STOCK INCENTIVES
(a) Grants of Stock Incentives. The Committee, in its absolute discretion, shall grant Stock Incentives under this Plan from time to time and shall have the right to grant new Stock Incentives in exchange for outstanding Stock Incentives; provided, however, the Committee shall not have the right to: (i) lower the Exercise Price of an existing Option or specified price of an existing Stock Appreciation Right; (ii) take any action that would be treated as a “repricing” under generally accepted accounting principles; or (iii) cancel an existing Option or Stock Appreciation Right at a time when its Exercise Price or specified price exceeds the fair market value of the underlying stock subject to such Option or Stock Appreciation Right in exchange for another Stock Incentive, including cash or other equity in the Company (except as provided in Sections 3.4, 10 and 11). Stock Incentives shall be granted to Participants selected by the Committee, and the Committee shall be under no obligation whatsoever to grant any Stock Incentives, or to grant Stock Incentives to all Participants, or to grant all Stock Incentives subject to the same terms and conditions.
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(b) Shares Subject to Stock Incentives. The number of Shares as to which a Stock Incentive shall be granted shall be determined by the Committee in its sole discretion, subject to the provisions of Section 3.1 as to the total number of Shares available for grants under the Plan, and to any other restrictions contained in this Plan.
(c) Stock Incentive Agreements. Each Stock Incentive shall be evidenced by a Stock Incentive Agreement. The Stock Incentive Agreement may be in an electronic medium, may be limited to notation on the books and records of the Company and, with the approval of the Committee, need not be signed by a representative of the Company or a Participant. The Committee shall have sole discretion to modify the terms and provisions of any Stock Incentive in accordance with Section 12.3.
(d) Date of Grant. The date a Stock Incentive is granted shall be no earlier than the date on which the Committee: (i) has approved the terms and conditions of the Stock Incentive Agreement; (ii) has determined the recipient of the Stock Incentive and the number of Shares covered by the Stock Incentive; and (iii) has taken all such other action necessary to direct the grant of the Stock Incentive.
(e) Vesting of Stock Incentives. Except as otherwise provided in this subsection (e), Stock Incentives under the Plan may have restrictions on the vesting or delivery of and, in the case of Options or Stock Appreciation Rights, the right to exercise, that lapse based upon the service of a Participant, or based upon other criteria that the Committee may determine appropriate, such as the attainment of performance criteria as determined by the Committee, including but not limited to one or more Performance Goals. Until the end of the period(s) of time specified in the vesting schedule or the satisfaction of any performance criteria, the Shares subject to such Stock Incentive Award shall remain subject to forfeiture. Options and Stock Appreciation Rights shall become vested and exercisable no earlier than one (1) year after the grant date, except that Options and Stock Appreciation Rights of up to a maximum of five percent of the Shares authorized for issuance under the Plan may be granted or accelerated without regard to such minimum one (1) year vesting or period of restriction requirement of this Section 7.1(e), or issued in payment for a Performance Award, or accelerated in the event of death, Disability, or in the event of a Change in Control as provided in Section 11.2.
(f) Acceleration of Vesting of Stock Incentives. Except as provided in Section 7.1(e), the Committee shall have the power to permit, in its sole discretion, an acceleration of the expiration of the applicable restrictions or the applicable period of such restrictions with respect to any part or all of the Shares awarded to a Participant; provided, however, the Committee may grant Stock Incentive Awards precluding such accelerated vesting.
(g) Dividend Equivalents. The Committee may grant dividend equivalents with respect to any Stock Incentive, subject to the limitation under Section 7.6(b) with respect to Performance Stock or Performance Units. The Committee shall establish the terms and conditions to which the dividend equivalents are subject. Under a dividend equivalent, a Participant shall be entitled to receive payments equivalent to the amount of dividends paid by the Company to holders of Shares with respect to the number of dividend equivalents held by the Participant, which may be paid concurrently with the payment of dividends or deferred and paid at a later date. The dividend equivalent may provide for payment in Shares or in cash, or a fixed combination of Shares or cash, or the Committee may reserve the right to determine the manner of payment at the time the dividend equivalent is payable. Any such dividend equivalent that is intended to exempt from Section 409A of the Code with respect to a Stock Incentive that constitutes Deferred Compensation shall be stated in a separate arrangement.
(h) Transferability of Stock Incentives. Except as otherwise provided in a Participant’s Stock Incentive Agreement, no Stock Incentive granted under the Plan may be sold, transferred, pledged, assigned or otherwise alienated or hypothecated, except upon the death of the holder Participant by will or by the laws of descent and distribution. Except as otherwise provided in a Participant’s Stock Incentive Agreement, during the Participant’s lifetime, only the Participant may exercise any Option or Stock Appreciation Right unless the Participant is incapacitated, in which case the Option or Stock Appreciation Right may be exercised by and any other Stock Incentive may be payable to the Participant’s legal guardian, legal representative, or other representative whom the Committee deems appropriate based on applicable facts and circumstances. The determination of incapacity of a Participant and the identity of appropriate representative of the Participant to exercise the Option or receive any other payment under a Stock Incentive if the Participant is incapacitated shall be determined by the Committee.
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(i) Deferral Elections. The Committee may require or may permit Participants to elect to defer the issuance of Shares or the settlement of Stock Incentives in cash under this Plan pursuant to such rules, procedures, or programs as it may establish from time to time. However, notwithstanding the preceding sentence, the Committee shall not, in establishing the terms and provisions of any Stock Incentive, or in exercising its powers under this Plan: (i) create any arrangement that would constitute an employee pension benefit plan as defined in Section 3(3) of the Employee Retirement Income Security Act, as amended, unless the arrangement provides benefits solely to one or more individuals who constitute members of a select group of management or highly compensated employees; or (ii) create any arrangement that would constitute Deferred Compensation unless the arrangement complies with Section 9.4 and 9.5 or unless the Committee, at the time of grant, specifically provides that the Stock Incentive is not intended to comply with Section 409A of the Code.
7.2 OPTIONS
(a) Grants of Options. Each grant of an Option shall be evidenced by a Stock Incentive Agreement that shall specify whether the Option is an ISO or NQSO, and incorporate such other terms as the Committee deems consistent with the terms of this Plan and, in the case of an ISO, necessary or desirable to permit such Option to qualify as an ISO. The Committee may modify the terms and provisions of an Option in accordance with Section 12 even though such modification may change the Option from an ISO to a NQSO.
(b) Exercise Price. Subject to adjustment in accordance with Section 3.4 and the other provisions of this Section, the Exercise Price shall be specified in the applicable Stock Incentive Agreement and shall not be less than the Fair Market Value of a Share on the date the Option is granted. With respect to each ISO to a Participant who is not a Ten Percent Shareholder, the Exercise Price shall not be less than the Fair Market Value of a Share on the date the ISO is granted. With respect to each ISO to a Participant who is a Ten Percent Shareholder, the Exercise Price shall not be less than one hundred ten percent (110%) of the Fair Market Value of a Share on the date the ISO is granted.
(c) Option Term. Unless earlier terminated as provided in Section 7.2(d), each Option granted under this Plan shall be exercisable in whole or in part at such time or times as set forth in the related Stock Incentive Agreement, but no Stock Incentive Agreement shall: (i) make an Option exercisable prior to the date such Option is granted or after it has been exercised in full; or (ii) make an Option exercisable after the date that is: (A) the tenth (10th) anniversary of the date such Option is granted, if such Option is a NQSO or an ISO granted to a Participant who is not a Ten Percent Shareholder; or (B) the fifth (5th) anniversary of the date such Option is granted, if such Option is an ISO granted to a Ten Percent Shareholder. Options issued under the Plan may become exercisable based on the service of a Participant, or based upon the attainment (as determined by the Committee) of performance criteria, including but not limited to Performance Goals.
(d) Termination of Service. Except as provided in the Option Agreement or a separate agreement with the Participant that covers Options, or as otherwise provided by the Committee: (i) if the Participant’s Service with the Company and a Subsidiary ends before the Options vest, the Participant shall forfeit all unvested Options; and (ii) any Options held by such Participant may thereafter be exercised to the extent it was exercisable at the time of such termination, but may not be exercised after 90 days after such termination (12 months if such termination is a result of a Qualifying Event), or the expiration of the stated term of the Options, whichever period is the shorter. In the event a Participant’s Service with the Company or any Subsidiary is terminated for Cause, all unexercised Options granted to such Participant shall immediately terminate.
(e) Payment. The Exercise Price of Shares acquired pursuant to an Option shall be paid, to the extent permitted by applicable statutes and regulations by delivering to the Company or its designated agent, either: (i) in cash or by check at the time the Option is exercised; or (ii) at the discretion of the Committee at the time of the grant of the Option (or subsequently in the case of an NQSO): (A) by delivery (or by attestation) of other Shares, rounded to next whole share, including Shares acquired as part of the exercise (i.e., a pyramid exercise); (B) if permitted by applicable law, the withholding of Shares delivered by that number of Shares, rounded to the next whole share, equal to the Fair Market Value of the Exercise Price (i.e., a cashless or net exercise); (C) pursuant to a “same day sale” program exercised through a brokerage transaction as permitted under the provisions of Regulation T applicable to cashless exercises promulgated by the Federal Reserve Board so long as the Company’s equity securities are registered under Section 12 of the Exchange Act, unless prohibited by Section 402 of the Sarbanes-Oxley Act of 2002; or (D) by some combination of the foregoing. Notwithstanding the foregoing, with respect to any Participant who is an Insider, a tender or attestation of Shares or, a cashless or net exercise shall be a subsequent transaction approved as part of the original grant of an Option for purposes of the exemption under Rule 16b-3 of the Exchange Act. Except as provided above, payment shall be made at the time that the Option or any part thereof is exercised, and no Shares shall be issued or delivered upon exercise of an Option until full payment has been made by the Participant. The holder of an Option, as such, shall have none of the rights of a shareholder.
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(f) ISO Tax Treatment Requirements. With respect to any Option that is intended to be an ISO, to the extent that the aggregate Fair Market Value (determined as of the date of grant of such Option) of Shares with respect to which such Option is exercisable for the first time by any individual during any calendar year exceeds one hundred thousand dollars ($100,000) to the extent of such excess, such Option shall not be treated as an ISO in accordance with Section 422(d) of the Code and in Treas. Reg. §1.422-4. With respect to any Option that is intended to be an ISO, such Option shall cease to be treated as an ISO if the Participant disposes of Shares acquired upon exercise of the Option within two (2) years from the date of the granting of the Option or within one (1) year of the exercise of the Option, or if the Participant has not met the requirements of Section 422(a)(2) of the Code.
7.3 RESTRICTED STOCK
(a) Grants of Restricted Stock Awards. Shares awarded pursuant to Restricted Stock Awards shall be subject to such restrictions as determined by the Committee for periods determined by the Committee. The Committee may require a cash payment from the Participant in exchange for the grant of a Restricted Stock Award or may grant a Restricted Stock Award without the requirement of a cash payment.
(b) Termination of Service. Except as provided in the Stock Incentive Agreement or a separate agreement with the Participant covering the Restricted Stock, or unless the Committee determines that some or all of the Participant’s unvested Restricted Stock shall vest as of the date of such event, the Participant shall forfeit all unvested Restricted Stock if the Participant’s Service with the Company and a Subsidiary ends for any reason before any restrictions lapse; except that in the case of Restricted Stock based on performance criteria then, as of the date on which such Qualifying Event occurs, the Participant shall be entitled to receive a number of Shares that is determined by measuring the selected performance criteria from the Company’s most recent publicly available quarterly results that are available as of the date the Qualifying Event occurs or such later date as the Committee determines, but no later than the end of the Performance Period; provided, however, the Committee may grant Restricted Stock Awards precluding such partial awards when a Qualifying Event occurs.
(c) Voting, Dividend & Other Rights. Unless the applicable Stock Incentive Agreement provides otherwise, a Participant awarded Restricted Stock shall be entitled to vote and to receive dividends during the periods of restriction of the Shares to the same extent as the Participant would have been entitled if the Shares were not restricted.
7.4 RESTRICTED STOCK UNITS
(a) Grants of Restricted Stock Units. A Restricted Stock Unit shall entitle the Participant to receive one Share at such future time and upon such terms as specified by the Committee in the Stock Incentive Agreement. The Committee may require a cash payment from the Participant in exchange for the grant of Restricted Stock Units or may grant Restricted Stock Units without such requirement
(b) Termination of Service. Except as provided in the Stock Incentive Agreement or a separate agreement with the Participant covering the Restricted Stock Unit, or unless the Committee determines that some or all of the Participant’s unvested Restricted Stock Units shall vest as of the date of such event, the Participant shall forfeit all unvested Restricted Stock Units if the Participant’s Service with the Company and a Subsidiary ends for any reason; except that in the case of Restricted Stock Units based on performance criteria then, as of the date on which such Qualifying Event occurs, the Participant shall be entitled to receive a number of Shares that is determined by measuring the selected performance criteria from the Company’s most recent publicly available quarterly results that are available as of the date the Qualifying Event occurs or such later date as the Committee determines, but no later than the end of the Performance Period; provided, however, the Committee may grant Restricted Stock Units precluding such partial awards when a Qualifying Event occurs.
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(c) Voting, Dividend & Other Rights. A Participant awarded Restricted Stock Units shall not be entitled to vote or to receive dividends until the date the Shares are issued to the Participant pursuant to the Restricted Stock Units, and, unless the Stock Incentive Agreement provides otherwise, the Participant shall not be entitled to any dividend equivalents (as described in Section 7.1(g)).
7.5 STOCK APPRECIATION RIGHTS
(a) Grants of Stock Appreciation Rights. A Stock Appreciation Right shall entitle the Participant to receive upon exercise the excess of the Fair Market Value of number of Shares exercised, over the specified price for such Shares. The specified price for a Stock Appreciation Right granted in connection with a previously or contemporaneously granted Option, shall not be less than the Exercise Price for Shares that are subject to the Option. In the case of any other Stock Appreciation Right, the specified price shall not be less than one hundred percent (100%) of the Fair Market Value of a Share at the time the Stock Appreciation Right is granted. If related to an Option, the exercise of a Stock Appreciation Right shall result in a pro rata expiration and cancellation of the same number of Shares of the related Option for which the Stock Appreciation Right has been exercised.
(b) Term. Subject to earlier termination as provided in Section 7.5(c), each Stock Appreciation Right granted under this Plan shall be exercisable in whole or in part at such time or times as set forth in the related Stock Incentive Agreement, but no Stock Incentive Agreement shall: (i) make a Stock Appreciation Right exercisable prior to the date such Stock Appreciation Right is granted or after it has been exercised in full; or (ii) make a Stock Appreciation Right exercisable after the date that is: (A) the tenth (10th) anniversary of the date such Stock Appreciation Right is granted; or (B) the fifth (5th) anniversary of the date such Stock Appreciation Right is granted, if such Stock Appreciation Right is granted in connection with the grant of an ISO to a Ten Percent Shareholder. Stock Appreciation Rights issued under the Plan may become exercisable based on the service of a Participant, or based upon the attainment (as determined by the Committee) of performance criteria, including but not limited to Performance Goals.
(c) Termination of Service. Except as provided in the Stock Incentive Agreement or a separate agreement with the Participant that governs the Stock Appreciation Rights granted, or as otherwise provided by the Committee: (i) if the Participant’s Service with the Company and a Subsidiary ends before the Stock Appreciation Rights vest, the Participant shall forfeit all unvested Stock Appreciation Rights; and (ii) any Stock Appreciation Rights held by such Participant may thereafter be exercised to the extent it was exercisable at the time of such termination, but may not be exercised after 90 days after such termination (12 months if such termination is a result of a Qualifying Event), or the expiration of the stated term of the Stock Appreciation Rights, whichever period is the shorter. In the event a Participant’s employment with the Company or any Subsidiary is terminated for Cause, all unexercised Stock Appreciation Rights granted to such Participant shall immediately terminate.
(d) Exercise and Payment. Upon exercise of a Stock Appreciation Right, the Company shall pay to the Participant the appreciation with Shares (computed using the aggregate Fair Market Value of Shares on the date of exercise) or in cash, or in any combination thereof as specified in the Stock Incentive Agreement or, if not specified, as the Committee determines. To the extent that a Stock Appreciation Right is exercised, the specified price shall be treated as paid in Shares for purposes of Section 3.
(e) Special Provisions for Tandem Stock Appreciation Rights. A Stock Appreciation Right granted in connection with an Option may only be exercised to the extent that the related Option has not been exercised. A Stock Appreciation Right granted in connection with an ISO: (i) will expire no later than the expiration of the underlying ISO; (ii) may be for no more than the difference between the exercise price of the underlying ISO and the Fair Market Value of the Shares subject to the underlying ISO at the time the Stock Appreciation Right is exercised; (iii) may be transferable only when, and under the same conditions as, the underlying ISO is transferable; and (iv) may be exercised only: (A) when the underlying ISO could be exercised; and (B) when the Fair Market Value of the Shares subject to the ISO exceeds the exercise price of the ISO.
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7.6 PERFORMANCE STOCK AND PERFORMANCE UNITS
(a) Awards of Performance Stock and Performance Units. Performance Stock and Performance Units shall become payable to a Participant upon achievement of performance criteria as determined by the Committee. Each award will specify the number of Performance Stock or Performance Units to which it pertains, which number may be subject to adjustment to reflect changes in compensation or other factors. Subject to the limitation set forth in Section 3.4, any grant of Performance Stock or Performance Units may specify that the amount payable with respect thereto may not exceed a maximum specified by the Committee at the date of grant.
(b) Limitation on Dividend and Dividend Equivalents. No dividends or dividend equivalents shall be paid on unvested Performance Stock or Performance Units unless the Performance Goal has been met; provided that such dividends or dividend equivalents: (i) may accumulate for the benefit of the Participant and paid to the Participant after such Performance Stock or Performance Units vest and (ii) will otherwise comply with Section 7.1(g).
(c) Payment. Each grant will specify the time and manner of payment of Performance Stock or Performance Units that have been earned. Any Performance Stock award shall be payable in Shares. Any Performance Unit award may specify that the amount payable with respect thereto may be paid by the Company in cash, in Shares or in any combination thereof and may either grant to the Participant or retain in the Committee the right to elect among cash or Shares.
7.7 OTHER AWARDS
(a) Other awards may, subject to limitations under applicable law, be granted to any Participant denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Shares or factors that may influence the value of such Shares, including, without limitation, convertible or exchangeable debt securities, other rights convertible or exchangeable into Shares, purchase rights for Shares, awards with value and payment contingent upon performance of the Company or specified Subsidiaries, affiliates or other business units thereof, or any other factors designated by the Committee. The Committee shall determine the terms and conditions of such awards.
(b) Cash awards, as an element of or supplement to any other Stock Incentives granted under this Plan, may also be granted to Participants on such terms and conditions as the Committee may determine, subject to the limitation set forth in Section 3.4.
(c) Shares may be granted to a Participant as a bonus, or in lieu of obligations of the Company or a Subsidiary to pay cash or deliver other property under this Plan or under other plans or compensatory arrangements, subject to such terms as the Committee shall determine, subject to the limitation set forth in Section 3.4.
(d) Participants designated by the Committee may be permitted to reduce compensation otherwise payable in cash in exchange for Shares or other Stock Incentives under the Plan.
7.8 NON-EMPLOYEE DIRECTOR STOCK INCENTIVES AND OTHER AWARDS
The Board will have the power and authority to grant any Stock Incentive to all non-employee Directors or to any individual non-employee Director, provided that such grant shall be solely for substantial services performed or to be performed by the non-employee Directors or non-employee Director as determined in good faith by the Board. The Board will also have the power and authority to designate by resolution, written plan or policy, a percentage of the annual retainer for each non-employee director to be paid in common stock, the date or dates on which the common stock will be issued and the vesting schedule, if any, for Shares issued in lieu of an annual retainer. In Addition, the Board may, by resolution, plan or policy, permit each non-employee director to elect to receive an additional percentage of his or her retainer to be issued in Shares, subject to rules and procedures for this election established by the Committee.
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SECTION 8
SECURITIES REGULATION
8.1 LEGALITY OF ISSUANCE
No Share shall be issued under this Plan unless and until the Committee has determined that all required actions have been taken to register such Share under the Securities Act of 1933 or the Company has determined that an exemption therefrom is available, any applicable listing requirement of any stock exchange on which the Share is listed has been satisfied, and any other applicable provision of state, federal or foreign law, including foreign securities laws where applicable, has been satisfied.
8.2 RESTRICTIONS ON TRANSFER; REPRESENTATIONS; LEGENDS
Regardless of whether the offering and sale of Shares under the Plan have been registered under the Securities Act of 1933 or have been registered or qualified under the securities laws of any state, the Company may impose restrictions upon the sale, pledge, or other transfer of such Shares (including the placement of appropriate legends on stock certificates) if, in the judgment of the Company and its counsel, such restrictions are necessary or desirable to achieve compliance with the provisions of the Securities Act of 1933, the securities laws of any state, the United States or any other applicable foreign law. If the offering and sale of Shares under the Plan is not registered under the Securities Act of 1933 and the Company determines that the registration requirements of the Securities Act of 1933 apply but an exemption is available that requires an investment representation or other representation, the Participant shall be required, as a condition to acquiring such Shares, to represent that such Shares are being acquired for investment, and not with a view to the sale or distribution thereof, except in compliance with the Securities Act of 1933, and to make such other representations as are deemed necessary or appropriate by the Company and its counsel. All Stock Incentive Agreements shall contain a provision stating that any restrictions under any applicable securities laws will apply.
8.3 REGISTRATION OF SHARES
The Company may, and intends to, but is not obligated to, register or qualify the offering or sale of Shares pursuant to this Plan under the Securities Act of 1933 or any other applicable state, federal or foreign law.
SECTION 9
COMPLIANCE WITH THE CODE
9.1 DISCRETION IN FORMULATION OF PERFORMANCE CRITERIA
The Committee shall have the discretion to adjust the determinations of the degree of attainment of the pre-established performance criteria.
9.2 PERFORMANCE PERIODS
The Committee shall have the discretion to determine the period during which any performance criteria, including any Performance Goal must be attained with respect to a Stock Incentive. Such period may be of any length, and must be established prior 25% of such period has elapsed).
9.3 RESERVED
9.4 LIMITATION ON PAYMENT OR EXERCISE
With respect to any Stock Incentive that constitutes Deferred Compensation, such Stock Incentive shall provide for payment or exercise only upon: (a) a fixed date or schedule that complies with the requirements of Treas. Reg. §1.409A-3; (b) on a date based upon the Participant’s “separation from service,” or “disability,” or “unforeseeable emergency” as those terms are defined under Section 409A of the Code; (c) the Participant’s death; or (d) a Change in Control as defined in Section 11.1. Any election permitted under any Stock Incentive that constitutes Deferred Compensation shall comply with the requirements of Treas. Reg. §1.409A-2 and shall be irrevocable as of the date of grant of the Stock Incentive. In addition, with respect to any Stock Incentive that constitutes Deferred Compensation, except to the extent acceleration or deferral is permitted by or complies with the requirements of Section 409A of the Code, neither the Committee nor a Participant may accelerate or defer the time or schedule of any payment or exercise of, or the amount scheduled to be reported as income as a result.
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9.5 DELAY IN PAYMENT OR EXERCISE FOR SPECIFIED EMPLOYEES
Notwithstanding anything in the Plan, unless the Stock Incentive Agreement specifically provides otherwise, no Stock Incentive that constitutes Deferred Compensation shall be paid to or exercised by a Specified Employee earlier than 181 days following the Participant’s “separation from service” as defined for purposes of Section 409A of the Code (or if earlier, upon the Specified Employee’s death), except as permitted under Section 409A of the Code and the regulations and other guidance promulgated thereunder. The Committee may specify in the Stock Incentive Agreement that the amount of the Deferred Compensation delayed pursuant to this Section 16.4 shall accumulate interest or earnings during the period of such delay.
9.6 WITHHOLDING
All taxes imposed on any Stock Incentive shall be the sole responsibility of the Participant. The Company shall have the right to deduct or withhold, or require a Participant to remit to the Company as a condition precedent for the grant, exercise, satisfaction of conditions or the lapse of restrictions under any Stock Incentive or the issuance of Shares, an amount sufficient to satisfy the federal, state and local taxes, domestic or foreign, required by law or regulation to be withheld with respect to any taxable event arising as a result. Unless the Stock Incentive Agreement provides otherwise, the Participant may satisfy such tax obligation by:
(a) electing to have the Company withhold Shares (rounded to the next whole Share) otherwise to be delivered upon such exercise, satisfaction of conditions or lapse of restriction with a Fair Market Value equal to the amount of such taxes, up to the maximum tax rate in the applicable tax jurisdiction of the Participant; and
(b) delivering to the Company Shares (rounded to the next whole Share) other than Shares issuable upon such exercise, satisfaction of conditions or lapse of restrictions with a Fair Market Value equal to the amount of such taxes, up to the maximum tax rate in the applicable tax jursidiction of the Participant.
Notwithstanding the foregoing, with respect to any Participant who is an Insider, a withholding or tender of Shares shall be a subsequent transaction approved as part of the Stock Incentive for purposes of the exemption under Rule 16b-3 of the Exchange Act.
9.7 NOTIFICATION OF DISQUALIFYING DISPOSITIONS OF AN ISO
If a Participant sells or otherwise disposes of any of the Shares acquired pursuant to an ISO on or before the later of: (a) the date two (2) years after the date of grant of such ISO; or (b) the date one (1) year after the exercise of such ISO, then the Participant shall immediately notify the Company in writing of such sale or disposition and shall cooperate with the Company in providing sufficient information to the Company for the Company to properly report such sale or disposition to the Internal Revenue Service. The Participant acknowledges and agrees that he or she may be subject to federal, state and local tax withholding by the Company on the compensation income recognized by Participant from any such early disposition, and agrees that he or she shall include the compensation from such early disposition in his gross income for federal tax purposes. The Company may condition the exercise of any ISO on the Participant’s express written agreement with these provisions of this Plan.
SECTION 10
STOCK INCENTIVES TO PARTICIPANTS OUTSIDE THE US
The Committee shall have the authority to require that any Stock Incentive Agreement relating to a Stock Incentive in a jurisdiction outside of the United States contain such terms as are required by local law in order to constitute a valid grant under the laws of such jurisdiction. Such authority shall be notwithstanding the fact that the requirements of the local jurisdiction may be different from or more or less restrictive than the terms set forth in this Plan. No purchase or delivery of Shares pursuant to a Stock Incentive to a Participant outside the United States shall occur until applicable restrictions imposed pursuant to this Plan (as modified as provided in this Section 10) or the applicable Stock Incentive have terminated.
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SECTION 11
CHANGE IN CONTROL OF THE COMPANY
11.1 CHANGE IN CONTROL
“Change in Control” of the Company means an event that would be required to be reported in response to Item 6(e) on Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or not the Company is then subject to such reporting requirement, including, without limitation, if:
(a) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or other than a Subsidiary of the Company, becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 30% or more of the combined voting power of the Company’s then outstanding securities; or
(b) During any period of two consecutive years (not including any period ending prior to the effective date of this Plan), the Incumbent Directors cease for any reason to constitute at least a majority of the Board. The term “Incumbent Directors” shall mean those individuals who are members of the Board of Directors on the effective date of this Plan and any individual who subsequently becomes a member of the Board (other than a director designated by a person who has entered into agreement with the Company to effect a transaction contemplated by Section 11.1(c)) whose election or nomination for election by the Company’s shareholders was approved by a vote of at least a majority of the then Incumbent Directors; or
(c) In the event:
(i) the Company consummates a merger, consolidation, share exchange, division or other reorganization of the Company with any corporation or entity, other than an entity owned at least 80% by the Company, unless immediately after such transaction, the shareholders of the Company immediately prior to such transaction beneficially own, directly or indirectly 51% or more of the combined voting power of resulting entity’s outstanding voting securities as well as 51% or more of the Total Market Value of the resulting entity, or in the case of a division, 51% or more of the combined voting power of the outstanding voting securities of each entity resulting from the division as well as 51% or more of the Total Market Value of each such entity, in each case in substantially the same proportion as such shareholders owned shares of the Company prior to such transaction;
(ii) the Company consummates an agreement for the sale or disposition (in one transaction or a series of transactions) of assets of the Company, the total consideration of which is greater than 51% of the Total Market Value of the Company; or
(iii) the Company adopts a plan of complete liquidation or winding up of the Company.
(d) “Total Market Value” shall mean the aggregate market value of the Company’s or the resulting entity’s outstanding common stock (on a fully diluted basis) plus the aggregate market value of the Company’s or the resulting entity’s other outstanding equity securities as measured by the exchange rate of the transaction or by such other method as the Committee determines where there is not a readily ascertainable exchange rate.
11.2 VESTING UPON A CHANGE IN CONTROL
Except as otherwise provided in a Stock Incentive Agreement or as provided in the next sentence, if a Change in Control occurs, and if the agreements effectuating the Change in Control do not provide for the assumption or substitution of all Stock Incentives granted under this Plan, with respect to any Stock Incentive granted under this Plan that is not so assumed or substituted (a “Non-Assumed Stock Incentive”), such Stock Incentive shall immediately vest and be exercisable and any restrictions thereon shall lapse. Notwithstanding the foregoing, unless the Committee determines at or prior to the Change in Control, with respect to a Stock Incentive that is subject a Performance Goal for which the Performance Period has not expired, the Participant shall be entitled to receive a number of Shares that is determined by measuring the applicable Performance Goal based upon actual results at or immediately prior to the Change in Control as against the stated Performance Goals pro rated based on the time elapsed in the Performance Period as of the Change in Control date.
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11.3 DISPOSITION OF STOCK INCENTIVES
Except as otherwise provided in a Stock Incentive Agreement, the Committee, in its sole and absolute discretion, may, with respect to any or all of such Non-Assumed Stock Incentives, take any or all of the following actions to be effective as of the date of the Change in Control (or as of any other date fixed by the Committee occurring within the thirty (30) day period immediately preceding the date of the Change in Control, but only if such action remains contingent upon the effectuation of the Change in Control) (such date referred to as the “Action Effective Date”):
(a) Unilaterally cancel such Non-Assumed Stock Incentive in exchange for:
(i) whole and fractional Shares (or whole Shares and cash in lieu of any fractional Share) or whole and fractional shares of a successor (or for whole shares of a successor and cash in lieu of any fractional share) that, in the aggregate, are equal in value to the excess of:
(A) in the case of Options, the Shares that could be purchased subject to such Non-Assumed Stock Incentive less the aggregate Exercise Price for the Options with respect to such Shares; and
(B) in the case of Restricted Stock, Restricted Stock Units, Stock Appreciation Rights, Performance Stock, Performance Units and Other Awards, Shares subject to such Stock Incentive determined as of the Action Effective Date (taking into account vesting), less the value of any consideration payable on exercise.
(ii) cash or other property equal in value to the excess of:
(A) in the case of Options, the Shares that could be purchased subject to such Non-Assumed Stock Incentive less the aggregate Exercise Price for the Options with respect to such Shares; and
(B) in the case of Restricted Stock, Restricted Stock Units, Stock Appreciation Rights, Performance Stock, Performance Units and Other Awards, Shares subject to such Stock Incentive determined as of the Action Effective Date (taking into account vesting) less the value of any consideration payable on exercise.
In the event the Exercise Price or consideration payable on exercise is equal to or greater than the Shares, cash or other property payable as provided in paragraphs (i) and (ii) above, then such Options and other Stock Incentives shall be automatically cancelled without payment of any consideration therefor.
(b) In the case of Options, unilaterally cancel such Non-Assumed Option after providing the holder of such Option with: (i) an opportunity to exercise such Non-Assumed Option to the extent vested within a specified period prior to the date of the Change in Control; and (ii) notice of such opportunity to exercise prior to the commencement of such specified period. However, notwithstanding the foregoing, to the extent that the recipient of a Non-Assumed Stock Incentive is an Insider, payment of cash in lieu of whole or fractional Shares or shares of a successor may only be made to the extent that such payment: (A) has met the requirements of an exemption under Rule 16b-3 promulgated under the Exchange Act; or (B) is a subsequent transaction the terms of which were provided for in a transaction initially meeting the requirements of an exemption under Rule 16b-3 promulgated under the Exchange Act. Unless a Stock Incentive Agreement provides otherwise, the payment of cash in lieu of whole or fractional Shares or in lieu of whole or fractional shares of a successor shall be considered a subsequent transaction approved by the original grant of the Option.
11.4 GENERAL RULE FOR OTHER STOCK INCENTIVES
If a Change in Control occurs, then, except to the extent otherwise provided in the Stock Incentive Agreement pertaining to a particular Stock Incentive or as otherwise provided in this Plan, each Stock Incentive shall be governed by applicable law and the documents effectuating the Change in Control.
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SECTION 12
AMENDMENT OR TERMINATION
12.1 AMENDMENT OF PLAN
This Plan may be amended by the Committee from time to time to the extent that the Committee deems necessary or appropriate; provided, however, no such amendment shall be made without the approval of the shareholders of the Company if such amendment:
(a) increases the number of Shares reserved under Section 3, except as set forth in Section 3.4;
(b) extends the maximum life of the Plan under Section 4 or the maximum exercise period under Section 7;
(c) decreases the minimum Exercise Price under Section 7;
(d) changes the designation of Participant eligible for Stock Incentives under Section 6; or
(e) would cause the Plan to no longer comply with Rule 16b-3 of the Exchange Act, Section 422 of the Code.
Shareholder approval of other material amendments (such as an expansion of the types of awards available under the Plan, an extension of the term of the Plan, or a change to the method of determining the Exercise Price of Options issued under the Plan) may also be required pursuant to rules promulgated by an established stock exchange or a national market system.
12.2 TERMINATION OF PLAN
The Board also may suspend the granting of Stock Incentives under this Plan at any time and may terminate this Plan at any time.
12.3 AMENDMENT OF STOCK INCENTIVES
The Committee shall have the right to modify, amend or cancel any Stock Incentive after it has been granted if:
(a) the modification, amendment or cancellation does not diminish the rights or benefits of the Participant under the Stock Incentive (provided, however, that a modification, amendment or cancellation that results solely in a change in the tax consequences with respect to a Stock Incentive shall not be deemed as a diminishment of rights or benefits of such Stock Incentive);
(b) the Participant consents in writing to such modification, amendment or cancellation;
(c) there is a dissolution or liquidation of the Company;
(d) this Plan or the Stock Incentive Agreement expressly allows such modification, amendment or cancellation; or
(e) the Company would otherwise have the right to make such modification, amendment or cancellation by applicable law.
Notwithstanding the forgoing, the Committee may reform any provision in a Stock Incentive extended to be exempt from Section 409A of the Code to maintain to maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A of the Code; provided, however, that if no reasonably practicable reformation would avoid the imposition of any penalty tax or interest under Section 409A of the Code, no payment or benefit will be provided under the Stock Incentive and the Stock Incentive will be deemed null, void and of no force and effect, and the Company shall have no further obligation in connection with such Stock Incentive.
SECTION 13
MISCELLANEOUS
13.1 SHAREHOLDER RIGHTS
Except as provided in Section 7. 3 with respect to Restricted Stock, or in a Stock Incentive Agreement, no Participant shall have any rights as a shareholder of the Company as a result of the grant of a Stock Incentive pending the actual delivery of Shares subject to such Stock Incentive to such Participant.
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13.2 NO GUARANTEE OF CONTINUED RELATIONSHIP
The grant of a Stock Incentive to a Participant under this Plan shall not constitute a contract of employment or other relationship with the Company and shall not confer on a Participant any rights upon his or her termination of employment or relationship with the Company in addition to those rights, if any, expressly set forth in the Stock Incentive Agreement that evidences his or her Stock Incentive.
13.3 TRANSFERS & RESTRUCTURINGS
The transfer of a Participant’s employment between or among the Company or a Subsidiary (including the merger of a Subsidiary into the Company) shall not be treated as a termination of his or her Service under this Plan. Likewise, the continuation of Service by a Participant with a corporation that is a Subsidiary shall be deemed to be a termination of Service when such corporation ceases to be a Subsidiary.
13.4 LEAVES OF ABSENCE
Unless the Committee provides otherwise, vesting of Stock Incentives granted hereunder will be suspended during any unpaid leave of absence. A Participant will not cease to be in the Service of the Company in the case of any leave of absence approved by the Company. With respect to any ISOs, no such leave may exceed 90 days unless reemployment upon expiration of such leave is guaranteed by statute or contract and if reemployment upon expiration of a leave of absence is not so guaranteed, then three (3) months following the 91st day of such leave any ISO held by the Participant will cease to be treated as an ISO and if exercised thereafter will be treated for tax purposes as a NQSO.
13.5 GOVERNING LAW/CONSENT TO JURISDICTION
This Plan shall be construed under the laws of the State of Minnesota without regard to principles of conflicts of law. Each Participant consents to the exclusive jurisdiction in the United States District Court for the District of Minnesota (if jurisdiction exists) or state courts located in Hennepin County, Minnesota for the determination of all disputes arising from this Plan and waives any rights to remove or transfer the case to another court.
13.6 ESCROW OF SHARES
To facilitate the Company’s rights and obligations under this Plan, the Company reserves the right to appoint an escrow agent, who shall hold the Shares owned by a Participant pursuant to this Plan.
13.7 NO FRACTIONAL SHARES
No fractional Shares shall be issued or delivered pursuant to the Plan or any Stock Incentive, and the Committee shall determine whether cash shall be paid in lieu of any fractional Share or whether such Shares shall be cancelled or otherwise eliminated.
13.8 FORFEITURE AND RECOUPMENT
Without limiting in any way the generality of the Committee’s power to specify any terms and conditions of an Award consistent with law, and for greater clarity, the Committee may specify in an Stock Incentive Agreement that the Participant’s rights, payments, and benefits with respect to a Stock Incentive, including any payment or Shares received upon exercise or in satisfaction of the Stock Incentive under this Plan shall be subject to reduction, cancellation, forfeiture, or recoupment upon the occurrence of certain specified events, in addition to any otherwise applicable vesting or performance conditions, without limit as to time. Such events shall include, but shall not be limited to, failure to accept the terms of the Stock Incentive Agreement, termination of Service under certain or all circumstances, Cause, violation of the Company’s Code of Conduct or other material Company policies, misstatement of financial or other material information about the Company including as required in accordance with the provisions of Section 302 of Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any applicable guidance thereunder, including rules promulgated by any securities exchange on which the Company’s equity securities are listed, fraud, misconduct, breach of noncompetition, confidentiality, nonsolicitation, noninterference, corporate property protection, or other agreement that may apply to the Participant, or other conduct by the Participant that the Committee determines is detrimental to the business or reputation of the Company and its Subsidiaries, including facts and circumstances discovered after termination of Service. The Committee shall determine, as late as the time of the recoupment, regardless of whether such method is stated in the Stock Incentive Agreement, whether the Company shall effect any such recoupment: (a) by seeking repayment from the Participant; (b) by reducing (subject to applicable law and the terms and conditions of the applicable plan, program or arrangement) the amount that would otherwise be payable to the Participant under any compensatory plan, program or arrangement maintained by the Company or any of its affiliates; (c) by withholding payment of future increases in compensation (including the payment of any discretionary bonus amount) or grants of compensatory awards that would otherwise have been made in accordance with the Company’s otherwise applicable compensation practices; (d) by a holdback or escrow (before or after taxation) of part or all of the Shares, payment or property received upon exercise or satisfaction of the Stock Incentive; or (e) by any combination of the foregoing.
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13.9 SEVERABILITY
If any provision of the Plan or any Stock Incentive is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or would disqualify the Plan or any Stock Incentive under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially altering the purpose or intent of the Plan or the Stock Incentive, such provision shall be stricken as to such jurisdiction or as to such Stock Incentive, and the remainder of the Plan or any such Stock Incentive shall remain in full force and effect.
13.10 NO TRUST OR FUND CREATED
Neither the Plan nor any Stock Incentive shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Subsidiary and a Participant. To the extent that any Paticipant acquires a right to receive payments from the Company or any Subsidiary pursuant to a Stock Incentive, such right shall be no greater than the right of any unsecured general creditor of the Company or any Subsidiary.
19
EXHIBIT 21
SUBSIDIARIES OF NUVERA COMMUNICATIONS, INC.
| Name of Subsidiary | Ownership | Jurisdiction of Incorporation |
| Hutchinson Cellular, Inc. | 100% owned by HTC | Minnesota |
| Hutchinson Telecommunications, Inc. | 100% owned by HTC | Minnesota |
| Hutchinson Telephone Company | 100% | Minnesota |
| Peoples Telephone Company | 100% | Iowa |
| Scott Rice Telephone Co. | 100% | Minnesota |
| Sleepy Eye Telephone Company | 100% | Minnesota |
| TechTrends, Inc. | 100% | Minnesota |
| Western Telephone Company | 100% | Minnesota |
The financial statements of all wholly-owned subsidiaries listed above are included in the Consolidated Financial Statements of Nuvera Communications, Inc. on this Form 10-K for the year 2022. Nuvera Communications, Inc. is incorporated in the state of Minnesota.
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Registration Statement Nos. 333-204576 and 333-218261 on Form S-8 of our reports dated March 16, 2023, relating to the financial statements of Nuvera Communications , Inc and subsidiaries (the “Company”) appearing in this annual report on Form 10-K of the Company for the year ended December 31, 2022.
/s/ OlsenThielen & Co. Ltd
Roseville, Minnesota
March 16, 2023
EXHIBIT 31.1
CHIEF EXECUTIVE OFFICER CERTIFICATION
UNDER RULE 13a-14(a) ADOPTED
PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Glenn H. Zerbe, President and Chief Executive Officer of Nuvera Communications, Inc., certify that:
1. I have reviewed this 2022 Annual Report on Form 10-K of Nuvera Communications, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materiality affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting.
5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's Board of Directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: March 16, 2023 /s/ Glenn H. Zerbe
Glenn H. Zerbe
President and Chief Executive Officer
EXHIBIT 31.2
CHIEF FINANCIAL OFFICER CERTIFICATION
UNDER RULE 13a-14(a) ADOPTED
PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Curtis O. Kawlewski, Chief Financial Officer of Nuvera Communications, Inc., certify that:
1. I have reviewed this 2022 Annual Report on Form 10-K of Nuvera Communications, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting.
5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's Board of Directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: March 16, 2023 /s/ Curtis O. Kawlewski
Curtis O. Kawlewski
Chief Financial Officer
EXHIBIT 32.1
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED TO SECTION 906
OF THE SARBANES-OXLEY ACT OF 2002
Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (“Section 906”), Glenn H. Zerbe and Curtis O. Kawlewski, President and Chief Executive Officer and Chief Financial Officer, respectively, of Nuvera Communications, Inc., each certify that to his knowledge (i) the Annual Report on Form 10-K for the fiscal year ended December 31, 2022 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, and (ii) the information contained in such report fairly represents, in all material respects, the financial condition and results of operations of Nuvera Communications, Inc.
| /s/ Glenn H. Zerbe | |
| Glenn H. Zerbe | |
| President and Chief Executive Officer | |
| (Principal Executive Officer) | |
| March 16, 2023 | |
| /s/ Curtis O. Kawlewski | |
| Curtis O. Kawlewski | |
| Chief Financial Officer | |
| (Principal Financial Officer and Chief | |
| Accounting Officer) | |
| March 16, 2023 |