UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):- September 1, 2015
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BlastGard International, Inc.
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(Exact name of registrant as specified in its charter)
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Colorado
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333-47294
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84-1506325
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(State or other jurisdiction
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(Commission
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(IRS Employer
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of incorporation)
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File Number)
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Identification No.)
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2451 McMullen Booth Road, Suite 212, Clearwater, Florida
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33759
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Registrant’s telephone number, including area code:
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(727) 592-9400
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(Former name or former address, if changed since last report)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01.
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Entry into a Material Definitive Agreement
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On September 1, 2015, the Company entered into one-year employment agreements with Michael Gordon, its Chief Executive Officer, and Michael Bundy, its President and Chief Operating Officer. Each agreement automatically renews after the expiration of the initial term (and yearly thereafter) for a period of one year unless either party gives the other party written notice, at least 90 days prior to the end of the then existing term that the employment is to terminate. Messrs. Gordon and Bundy receive an annual salary of $125,000 plus a 1.2% quarterly bonus on HighCom sales. Each officer also received options to purchase 10 million shares of the Company’s Common Stock exercisable at $.009 per share from the date of vesting over a period of up to ten years. Of the 10 million options, 5 million are immediately vested and the balance of the options vest over a period of four additional years. Messrs. Gordon’s and Bundy’s employment agreements can be terminated without cause only by giving 90 days prior notice as described above. If terminated without cause, employee is entitled to full compensation during the instant, pending term. In the event employee is terminated for cause as defined in the agreement or due to the death of the employee, such employee will be paid his compensation through the termination date of his employment. Messrs. Gordon and Bundy are bound by an agreement not to compete during the term of their employment agreement and for a period of one year after the expiration of their respective employment agreements.
On September 1, 2015, the Company entered into an employment agreement with Chad Wright to serve as the Company’s Vice President of Manufacturing and Distribution. Mr. Wright’s agreement is for a term of one year and automatically renews after the expiration of the initial term (and yearly thereafter) for a period of one year unless either party gives the other party written notice, at least 90 days prior to the end of the then existing term that the employment is to terminate. Mr. Wright receives an annual salary of $63,000 plus a .06% quarterly bonus on HighCom sales. Mr. Wright received options to purchase 5 million shares of the Company’s Stock exercisable at $.009 per share from the date of vesting over a period of up to ten years. Of the 5 million options, 2.5 million are immediately vested and the balance of the options vest over a period of four additional years. Mr. Wright’s employment agreement can be terminated without cause only by giving 90 days prior notice as described above. If terminated without cause, employee is entitled to full compensation during the instant, pending term. In the event employee is terminated for cause as defined in the agreement or due to the death of the employee, such employee will be paid his compensation through the termination date of his employment. Mr. Wright is bound by an agreement not to compete during the term of his employment agreement and for a period of one year after the expiration of his employment agreement.
On September 1, 2015, the Company entered into a consulting agreement with Paul Sparkes who agreed to serve as the Company’s non-executive Chairman of the Board of the Company. Mr. Sparkes shall receive compensation at a pre-determined hourly rate. Such compensation shall be paid in common stock, warrants, options or other securities as the parties may agree in writing. The term of the consulting agreement is for a term of one year and shall automatically renew on an annual basis unless either party provides written notice of intent to terminate the agreement no less than 30 days prior to the anniversary date of the execution of the agreement. Mr. Sparkes received options to purchase 1,500,000 shares of the Company’s Common Stock, all of which are immediately vested and are exercisable at $.009 per share over a term of up to three years. Mr. Sparke’s consulting agreement provides for indemnification and an agreement not to compete during the term of the consulting agreement and for a period of three years after the expiration of the consulting agreement.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements with Certain Officers.
On September 1, 2015, the Company elected Paul Sparkes to the board of directors. Mr. Sparkes agreed to serve as the Company’s non-executive chairman of the board of directors. Mr. Sparke’s biographical information is as follows:
Paul Sparkes is an accomplished Canadian business leader with over twenty years’ experience in media, finance, capital markets and Canada’s political arena. Most recently Sparkes was Executive Vice Chair, Director and co-founder of Difference Capital Financial, a TSX-listed specialty finance company that invests in media, technology, health care and U.S. real estate. He is currently a corporate director, advisor and deal maker for growth companies in the media, technology and entertainment sectors.
Previously, Sparkes was Executive Vice President, Corporate Affairs for CTVglobemedia (now Bellmedia), where he had oversight for corporate matters including strategy, regulatory, public and government affairs, communications, corporate social responsibility, as well as all sponsorship for CTVglobemedia Inc., and its divisions, including 27 conventional TV stations, 29 specialty and pay TV channels, 34 radio stations, The Globe and Mail, and Canada’s Olympic Broadcast Media Consortium.
Over the course of his decade long tenure at CTVglobemedia, Sparkes led the development and implementation of successful public affairs strategies and major campaigns in support of corporate, board and regulatory priorities over transitions including changes in shareholders, ownership structure as well as corporate acquisitions and divestitures.
Sparkes served as the chief spokesperson for the company appearing before federal parliamentary committees, hearings before the Canadian Radio-Television and Telecommunications Commission, press conferences and media interviews with national and international television, radio and print outlets including CTV, CBC, The Globe and Mail, National Post, The New York Times, Marketing Magazine and Variety. He was successful in promoting the most trusted and most recognized media brands in Canada, including CTV News.
While administering large budgets and managing diverse creative teams of people, Sparkes led the successful initiative to secure retransmission consent rights for private broadcasters, a regulatory change that generated significant returns for shareholders and changed the media industry landscape in Canada. He has been recognized as among the 100 Top Lobbyists in Canada.
Prior to joining Bell Globemedia in 2001 as Group Vice-President, Public Affairs, Sparkes held senior positions in the public service, including with the Government of Canada and the Government of Newfoundland and Labrador. From 1996 to 2001, he served in the Office of the Prime Minister as Director of Operations, and Special Assistant for Atlantic Canada. Sparkes also served as Executive Assistant to two Premiers of Newfoundland and Labrador.
Sparkes sits on several public and private boards, including Thunderbird Films and Bluedrop Performance Learning Inc., Sparkes is the Chair of the Board and Founding Member of the Smiling Land Foundation.
As a past member of the OneXOne board, Sparkes led the implementation of the First Nations School Breakfast Program providing healthy food for Aboriginal children in remote communities. He also served eight years on the board of the Animal Planet Digital Channel and four years as President of the CHUM Charitable Foundation and is a past board member of the Canadian Venture Capital & Private Equity Association and the National Arts Center Foundation. Educated in Quebec and Newfoundland, Sparkes holds a Bachelor of Arts in Political Science from Memorial University.
On September 1, 2015, the Board of Directors elected Chad Wright as Vice President of Manufacturing and Distribution. Mr. Wright oversees our manufacturing and distribution operations in Columbus Ohio as well as our research and development programs. Mr. Wright has earned a tremendous reputation in the industry over the past decade working for some of the most successful armor guru’s and companies in business today. From 2002 to 2008, Mr. Wright worked for Composix Company located in Newark OH, producing specialized vehicle parts and fuel tanks for military equipment. In 2004, Mr. Wright became the General Production Manager, overseeing day to day operations in production areas, in addition to setting up internal QMS, inventory, ISO implementation, shipping & receiving, logistics of freight and machinery, inventory management, etc. as well as overseeing all testing and evaluation of contracted equipment at off-site testing facilities. Mr. Wright’s R&D team designed, developed, and tested multiple armor applications for vehicle, body armor and various other armor applications. In 2008 and 2009, Mr. Wright worked for Tencate Advanced Armor. As their ballistics lab manager, Mr. Wright’s duties were working with the QC, testing various lot samples from in house production of ballistic fabrics, in addition to R&D projects to develop armor systems and test plans. In 2009, Mr. Wright joined HighCom Security, where Mr. Wright performed similar R&D and Ballistic Lab duties. Mr. Wright specifically helped establish an R&D area to effectively carry out corporate tasks that would comply to the ISO 9001 standards. In 2011, Mr. Wright took over as General Plant/Production Manager where he established HighCom’s Columbus Production Facility and is currently Vice President of Manufacturing. Mr. Wright oversees all operations within the Columbus facility, including but not limited to: production, shipping & receiving, order fulfilment, R&D, ballistic lab, quality control, employees, purchasing, NIJ documentation, third party lab testing, FIT Audits, ballistic data reports, compliant model build sheets, cost control on materials and facility, effective lean production methods, and maintaining our ISO/BA9000 certification as a manufacturer of high quality, cost effective protective armor that meets and exceeds industry standards.
Reference is made to Item 1.01 for a description of material agreements entered into by the Company with its executive officers and/or directors of the Company.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
10.1 Employment Agreement dated September 1, 2015 – Michael J. Gordon*
10.2 Employment Agreement dated September 1, 2015 – Michael L. Bundy*
10.3 Employment Agreement dated September 1, 2015 – Chad Wright*
10.4 Consulting Agreement dated September 1, 2015 – Paul Sparkes*
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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September 2, 2015
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BLASTGARD INTERNATIONAL, INC. |
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By: |
/s/ Michael J. Gordon
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Michael J. Gordon, Chief Executive Officer |
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the “Agreement”) made as of this 1st day of September, 2015, by and between HIGHCOM SECURITY, INC., a California corporation authorized to do business in the state of Florida, at 2451McMullen Booth Road, Suite 212, Clearwater, FL 33759 (referred to here as “Employer”), and Michael J. Gordon (referred to here as “Employee”).
RECITALS:
A. The Employer desires to retain the services of and employ the Employee pursuant to the terms and conditions of this Agreement.
B. Employee desires to render services to the Employer pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and of the covenants and agreements contained here, the Employer and Employee covenant and agree as follows:
1. Duties. Employee is being employed as the Chief Executive Officer (CEO) and the Chief Financial Officer (CFO) and as such will render to Employer those skills necessary to efficiently accomplish his employment. The Employee agrees to devote such amount of time to the discharge of his responsibilities and duties under this Agreement as may be reasonably necessary. In discharging such duties, Employee agrees that Employee will at all times faithfully and to the best of his ability, experience and talents, perform all of the duties that may be required of and from Employee pursuant to the express and implicit terms of this Agreement, to the satisfaction of the Employer. The Employee shall have the responsibilities, duties and title(s) as may be set forth by the Employer.
2. Term. The term of this Agreement shall be for a period of One (1) year, commencing on the date set forth in the initial paragraph hereof and expiring (unless sooner terminated as otherwise provided in this Agreement or unless otherwise renewed as set forth here) One (1) year following the date of this Agreement. After the expiration of the initial term of this Agreement, the term of employment shall be automatically extended for periods equal to the initial term of this Agreement. This Agreement will survive each renewal period, unless either party gives the other written notice, at least ninety (90) days prior to the end of the then existing term, that the employment is to terminate. Any and all prior written or oral agreements which are or purport to be Employment Agreements between or among the parties are superseded by the instant Agreement and are therefore deemed null and void as of the date of execution of this Agreement.
3. Compensation. During the period of employment, the Employer agrees to compensate the Employee for services rendered under this Agreement, in accordance with the Salary Schedule attached to and incorporated in this Agreement as Exhibit “A”. Additionally, Employee is eligible for the awarding of a discretionary annual bonus at the sole determination of the Board of Directors. No representations or promises are made as to the amount of said bonus or the awarding of a bonus.
4. Vacation or Paid Time Off (“PTO”). The Employee shall take vacation time or PTO in such amounts during each year as is designated by the Employer on Exhibit “A”. The Employee shall be entitled to full compensation during the vacation period. Employee shall give Employer notice as a condition of Employee taking vacation time or PTO.
5. Policies and Procedures. The Employer shall have the authority to establish from time to time policies and procedures to be followed by the Employee in fulfilling and discharging Employee’s duties under this Agreement. The Employee agrees to comply with such policies and procedures as the Employer may promulgate from time to time.
6. Limitations on Authority. Without the express written consent of the Employer, the Employee shall have no express, apparent or implied authority to:
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sign documents on behalf of Employer, under any circumstances;
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(b)
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make verbal or written representations on behalf of Employer, unless otherwise set forth in this Agreement; or
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(c)
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enter into any other contracts or agreements of any nature on behalf of Employer.
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7. Termination. The Employer may terminate this Agreement as follows:
(a) Subject to the terms and conditions of this Agreement including the Term as set forth in paragraph 2, in the Employer’s sole and absolute discretion and WITHOUT CAUSE, Employee can be immediately discharged. Such discharge WITHOUT CAUSE must occur consistent with the notice provisions of paragraph 2 herein and cannot occur during either the initial term or any automatic renewal term other than with the giving of ninety (90) days notice as provided in paragraph 2. If for any reason Employer terminates Employee WITHOUT CAUSE during a term of this Agreement as provided in paragraph 2, Employee is entitled to full compensation during the instant, pending Term.
(b) At any time and immediately upon written notice to the Employee if the discharge is FOR CAUSE. In the notice of termination furnished to the Employee under this subparagraph (b), the reason or reasons for the termination shall be given. By way of illustration and not limitation, any one or more of the following conditions shall be deemed to be grounds for discharge of the Employee for cause under this subparagraph (b):
(i) In the event the Employee shall expressly fail or refuse to comply with the policies, standards and regulations of the Employer from time to time established;
(ii) In the event the Employee shall expressly fail or refuse to report for work (unless otherwise excused) for a period in excess of one (1) day;
(iii) In the event that the Employee behaves in an unprofessional, immoral, or fraudulent manner, or should the Employee’s conduct discredit the Employer or be detrimental to the reputation, character and standing of the Employer.
(iv) In the event that the Employee breaches any of the mutually agreed upon covenants in this Agreement.
(c) Death of Employee: Upon the death of the Employee, this Agreement shall automatically terminate, if it has not previously expired or otherwise been terminated by any party to this Agreement.
(d) This Agreement shall terminate automatically upon the filing by either party of a petition in Bankruptcy, insolvency or like proceedings, readjustment or rearrangement of the business, any adjustment for the benefit of creditors, and filing against such party of any petition in Bankruptcy, insolvency or like proceedings, or the appointment of a receiver for the property or assets of such party.
8. Notice. Any notice required or permitted under this Agreement shall be deemed properly given at the time it is personally delivered or mailed, properly addressed and post-paid, to the following addresses:
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Employer:
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HighCom Security, Inc.
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2451 McMullen Booth Road, Suite 212
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Clearwater, FL 33759
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2.
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Employee:
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Michael J. Gordon
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149 Brent Circle
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Oldsmar, FL 34677
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9. Confidential Matters. The Employee agrees that during Employee’s employment by the Employer and subsequent to the termination of Employee’s employment by the Employer for any reason whatsoever and with or without cause, Employee will not release or divulge any information relating to the Employer to any other person or persons without the prior express written consent of the Employer. The Employee is aware and acknowledges that the Employee shall have access to confidential information by virtue of his employment and Employee agrees to keep that information confidential at all times. The type of confidential information covered by this paragraph shall include, but is not limited to, any information obtained in transcribing any and all reports, any and all information contained in such reports, list(s) of clients of Employer, computer programs and/or software as amended by Employer’s trade secrets utilized by Employer and any information acquired by Employee during the course of training by Employer relating to methods and procedures to be applied while rendering services on Employer’s behalf to the Employer’s clients. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
10. Non-Compete.
(a) The Employee agrees that during Employee’s employment by the Employer and for an additional period of one (1) year from and after the expiration of this Agreement or the earlier termination of employment, subject to the provisions of paragraph 11 below, Employee will not compete directly or indirectly with the Employer and shall not either directly or indirectly have any ownership interest in, become a shareholder, director, officer or employee of or otherwise provide services to other clients Employer is now providing services for (a list of which can be obtained by requesting the same of Employer), pursuant to contract or otherwise. In addition, Employee shall not solicit business from any of the above-referenced clients of Employer.
(b) The prohibition contained in paragraph 10(a) is throughout the United States of America. The parties agree that due to their executive capacities with Employer and due to the fact that Employer conducts business throughout the United States, such geographical limitation is appropriate.
(c) If, at any time, a court of competent jurisdiction determines that either the time or area restrictions of this paragraph are invalid, the parties agree that the court may establish valid time and area restrictions and the parties agree to comply with these restrictions as established by the court of competent jurisdiction. THESE PROVISIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
11. Terms and Conditions of Non-Compete.
(a) Employer and Employee agree that the Non-Compete contained in paragraph 10 (a), (b), and (c) above shall become null and void upon the occurrence of either of the following:
(i) If the Employer files for protection under the Bankruptcy Code;
(ii) If the Employer ceases conducting active business operations or lacks the operating capital to meet monthly payroll;
(iii) If the Employer dissolves; or
(iv) If a sale of the Employer’s common stock or equity is effected such that the current majority shareholder, namely 8464081 Canada Inc., or any affiliated entity or designee of 8464081 Canada Inc., ceases to be the largest single Shareholder of Employer.
(b) In the case of a voluntary resignation by Employee, the provisions of paragraph 10 (a), (b) and (c) shall remain in full force and effect.
(c) In the case of a non-causal termination of Employee by Employer as that term is defined in paragraph 7 (a) above, Employer agrees to compensate Employee with up to one (1) year of total compensation as that term is defined below in this sub-section, within thirty (30) days from the date of termination. The term compensation as used in this sub-section means the total compensation paid during the immediately preceding calendar year of the date of non-causal termination or the total compensation paid during the calendar year immediately preceding the past calendar year, whichever total compensation amount is greater. Therefore, in a non-causal involuntary termination of Employee by Employer, the non-compete as provided for in paragraph 10 (a), (b), and (c), is null and void.
(d) In the case of a causal termination (due to productivity, policy or personality differences and not due to conduct which would otherwise constitute larceny or the unauthorized taking of tangible or personal property of the Company) of Employee by Employer as that term is defined in paragraph 7 (b) above, the non-compete as provided for in paragraphs 10 (a), (b), and (c), shall be deemed null and void; however, there shall be two (2) month’s salary compensation paid following termination by Employer to Employee plus any wages which may be due, owing and vested during the period of employment.
12. Injunction Without Bond. Due to the nature of this Agreement and the services provided hereunder, the parties acknowledge that a breach of the covenants contained in Paragraphs 9, 10 and 11 of this Agreement will result in irreparable injury to Employer and the only appropriate remedy for such breach would be an injunction. Thus, in the event there is a breach or threatened breach by the Employee of the provisions of Paragraphs 9, 10 and 11, the Employer shall be entitled to seek and obtain injunctive relief without the posting of a bond to restrain the Employee from disclosing in whole or in part any confidential matters or from rendering service to any person, firm, corporation, association or other entity, and the Employer will be entitled to reimbursement for all costs and expenses, including reasonable attorneys fees (both at the trial and appellate levels) in connection therewith. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
13. Developments by Employee. The Employee is aware and understands that during the terms of his employment by the Employer as set forth in this Agreement, that the Employee with the financial and other assistance which may be provided by the Employer may develop and improve certain valuable property such as, but not limited to, patents, trademarks, inventions, and other trade secrets and formulas. The Employee agrees that all such matters which may be developed or produced by Employee during his employment by the Employer is and will be the property of the Employer and that the Employee further agrees that Employee will, at the request of the Employer, execute such documents as the Employer may request to assign and transfer all of that property to the Employer. The Employee will, at all times, fully advise and inform the Employer on all matters which the Employee may be developing or working on while employed by the Employer. The Employee further agrees that upon the expiration or earlier termination of Employee’s employment for any reason whatsoever (whether with or without cause) that Employee will immediately deliver and surrender to the Employer all materials of any nature, relating to the Employer in Employee’s possession including, but not limited to, all customer lists, price lists, manuals and all other material whatsoever furnished by Employee by the Employer or produced by Employee during his employment with the Employer. THIS CLAUSE SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
14. Severability. If any provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by or in favor of any party or substantially increase the burden of any party to this Agreement, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement.
15. Governing Law, Jurisdiction and Venue. This Agreement shall be construed in accordance with and shall be governed by the laws of the State of Florida, and venue of any action hereunder shall lie solely with the courts in and for Pinellas County, Florida, to which jurisdiction each of the parties agrees to submit for the purposes of any litigation involving this Agreement.
16. Attorneys Fees and Costs. In the event a dispute arises between the parties under this Agreement, other than under Paragraphs 9 and 10, and suit is instituted, the prevailing party shall be entitled to recover costs and attorney’s fees from the non-prevailing party. As used in this Agreement, costs and attorney’s fees include any costs and attorney’s fees in any appellate proceeding.
17. Miscellaneous. The rights and duties of the parties are personal and may not be assigned or delegated without the express written consent of all other parties to this Agreement. The captions used in this Agreement are solely for the convenience of the parties and are not used in construing this Agreement. Time is of the essence of this Agreement. The use of any gender shall be applicable to all genders.
18. Typewritten or Handwritten Provisions. Handwritten provisions inserted into this Agreement and typewritten provisions initialed by both parties shall control over any and all conflicting typewritten provisions.
19. Complete Agreement. This Agreement constitutes the complete agreement between the parties and incorporates all prior discussions, agreements and representations made in regard to the matters set forth here. This Agreement may not be amended, modified or changed except by a writing signed by the party to be charged by the amendment, change or modification.
IN WITNESS, the parties have executed this Agreement as of the date first above written.
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AS TO EMPLOYER:
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HIGHCOM SECURITY, INC.
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Witness
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By:
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/s/ Michael L. Bundy
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Witness
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Its COO and President
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AS TO EMPLOYEE:
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Witness
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/s/ Michael J. Gordon
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Michael J. Gordon
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EXHIBIT A
Salary Schedule: $125,000 annual plus 1.2% quarterly bonus on HighCom sales
Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the “Agreement”) made as of this 1st day of September, 2015, by and between HIGHCOM SECURITY, INC., a California corporation authorized to do business in the state of Florida, at 2451McMullen Booth Road, Suite 212, Clearwater, FL 33759 (referred to here as “Employer”), and Michael L. Bundy (referred to here as “Employee”).
RECITALS:
A. The Employer desires to retain the services of and employ the Employee pursuant to the terms and conditions of this Agreement.
B. Employee desires to render services to the Employer pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and of the covenants and agreements contained here, the Employer and Employee covenant and agree as follows:
1. Duties. Employee is being employed as the President & Chief Operating Officer and as such will render to Employer those skills necessary to efficiently accomplish his employment. The Employee agrees to devote such amount of time to the discharge of his responsibilities and duties under this Agreement as may be reasonably necessary. In discharging such duties, Employee agrees that Employee will at all times faithfully and to the best of his ability, experience and talents, perform all of the duties that may be required of and from Employee pursuant to the express and implicit terms of this Agreement, to the satisfaction of the Employer. The Employee shall have the responsibilities, duties and title(s) as may be set forth by the Employer.
2. Term. The term of this Agreement shall be for a period of One (1) year, commencing on the date set forth in the initial paragraph hereof and expiring (unless sooner terminated as otherwise provided in this Agreement or unless otherwise renewed as set forth here) One (1) year following the date of this Agreement. After the expiration of the initial term of this Agreement, the term of employment shall be automatically extended for periods equal to the initial term of this Agreement. This Agreement will survive each renewal period, unless either party gives the other written notice, at least ninety (90) days prior to the end of the then existing term, that the employment is to terminate. Any and all prior written or oral agreements which are or purport to be Employment Agreements between or among the parties are superseded by the instant Agreement and are therefore deemed null and void as of the date of execution of this Agreement.
3. Compensation. During the period of employment, the Employer agrees to compensate the Employee for services rendered under this Agreement, in accordance with the Salary Schedule attached to and incorporated in this Agreement as Exhibit “A”. Additionally, Employee is eligible for the awarding of a discretionary annual bonus at the sole determination of the Board of Directors. No representations or promises are made as to the amount of said bonus or the awarding of a bonus.
4. Vacation or Paid Time Off (“PTO”). The Employee shall take vacation time or PTO in such amounts during each year as is designated by the Employer on Exhibit “A”. The Employee shall be entitled to full compensation during the vacation period. Employee shall give Employer notice as a condition of Employee taking vacation time or PTO.
5. Policies and Procedures. The Employer shall have the authority to establish from time to time policies and procedures to be followed by the Employee in fulfilling and discharging Employee’s duties under this Agreement. The Employee agrees to comply with such policies and procedures as the Employer may promulgate from time to time.
6. Limitations on Authority. Without the express written consent of the Employer, the Employee shall have no express, apparent or implied authority to:
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(a)
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sign documents on behalf of Employer, under any circumstances;
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(b)
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make verbal or written representations on behalf of Employer, unless otherwise set forth in this Agreement; or
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(c)
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enter into any other contracts or agreements of any nature on behalf of Employer. |
7. Termination. The Employer may terminate this Agreement as follows:
(a) Subject to the terms and conditions of this Agreement including the Term as set forth in paragraph 2, in the Employer’s sole and absolute discretion and WITHOUT CAUSE, Employee can be immediately discharged. Such discharge WITHOUT CAUSE must occur consistent with the notice provisions of paragraph 2 herein and cannot occur during either the initial term or any automatic renewal term other than with the giving of ninety (90) days notice as provided in paragraph 2. If for any reason Employer terminates Employee WITHOUT CAUSE during a term of this Agreement as provided in paragraph 2, Employee is entitled to full compensation during the instant, pending Term.
(b) At any time and immediately upon written notice to the Employee if the discharge is FOR CAUSE. In the notice of termination furnished to the Employee under this subparagraph (b), the reason or reasons for the termination shall be given. By way of illustration and not limitation, any one or more of the following conditions shall be deemed to be grounds for discharge of the Employee for cause under this subparagraph (b):
(i) In the event the Employee shall expressly fail or refuse to comply with the policies, standards and regulations of the Employer from time to time established;
(ii) In the event the Employee shall expressly fail or refuse to report for work (unless otherwise excused) for a period in excess of one (1) day;
(iii) In the event that the Employee behaves in an unprofessional, immoral, or fraudulent manner, or should the Employee’s conduct discredit the Employer or be detrimental to the reputation, character and standing of the Employer.
(iv) In the event that the Employee breaches any of the mutually agreed upon covenants in this Agreement.
(c) Death of Employee: Upon the death of the Employee, this Agreement shall automatically terminate, if it has not previously expired or otherwise been terminated by any party to this Agreement.
(d) This Agreement shall terminate automatically upon the filing by either party of a petition in Bankruptcy, insolvency or like proceedings, readjustment or rearrangement of the business, any adjustment for the benefit of creditors, and filing against such party of any petition in Bankruptcy, insolvency or like proceedings, or the appointment of a receiver for the property or assets of such party.
8. Notice. Any notice required or permitted under this Agreement shall be deemed properly given at the time it is personally delivered or mailed, properly addressed and post-paid, to the following addresses:
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1.
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Employer:
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HighCom Security, Inc.
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2451 McMullen Booth Road, Suite 212
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Clearwater, FL 33759
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2.
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Employee:
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Michael L. Bundy
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4454 Palmer Ridge Drive
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Parker, CO 80134
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9. Confidential Matters. The Employee agrees that during Employee’s employment by the Employer and subsequent to the termination of Employee’s employment by the Employer for any reason whatsoever and with or without cause, Employee will not release or divulge any information relating to the Employer to any other person or persons without the prior express written consent of the Employer. The Employee is aware and acknowledges that the Employee shall have access to confidential information by virtue of his employment and Employee agrees to keep that information confidential at all times. The type of confidential information covered by this paragraph shall include, but is not limited to, any information obtained in transcribing any and all reports, any and all information contained in such reports, list(s) of clients of Employer, computer programs and/or software as amended by Employer’s trade secrets utilized by Employer and any information acquired by Employee during the course of training by Employer relating to methods and procedures to be applied while rendering services on Employer’s behalf to the Employer’s clients. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
10. Non-Compete.
(a) The Employee agrees that during Employee’s employment by the Employer and for an additional period of one (1) year from and after the expiration of this Agreement or the earlier termination of employment, subject to the provisions of paragraph 11 below, Employee will not compete directly or indirectly with the Employer and shall not either directly or indirectly have any ownership interest in, become a shareholder, director, officer or employee of or otherwise provide services to other clients Employer is now providing services for (a list of which can be obtained by requesting the same of Employer), pursuant to contract or otherwise. In addition, Employee shall not solicit business from any of the above-referenced clients of Employer.
(b) The prohibition contained in paragraph 10(a) is throughout the United States of America. The parties agree that due to their executive capacities with Employer and due to the fact that Employer conducts business throughout the United States, such geographical limitation is appropriate.
(c) If, at any time, a court of competent jurisdiction determines that either the time or area restrictions of this paragraph are invalid, the parties agree that the court may establish valid time and area restrictions and the parties agree to comply with these restrictions as established by the court of competent jurisdiction. THESE PROVISIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
11. Terms and Conditions of Non-Compete.
(a) Employer and Employee agree that the Non-Compete contained in paragraph 10 (a), (b), and (c) above shall become null and void upon the occurrence of either of the following:
(i) If the Employer files for protection under the Bankruptcy Code;
(ii) If the Employer ceases conducting active business operations or lacks the operating capital to meet monthly payroll;
(iii) If the Employer dissolves; or
(iv) If a sale of the Employer’s common stock or equity is effected such that the current majority shareholder, namely 8464081 Canada Inc., or any affiliated entity or designee of 8464081 Canada Inc., ceases to be the largest single Shareholder of Employer.
(b) In the case of a voluntary resignation by Employee, the provisions of paragraph 10 (a), (b) and (c) shall remain in full force and effect.
(c) In the case of a non-causal termination of Employee by Employer as that term is defined in paragraph 7 (a) above, Employer agrees to compensate Employee with up to one (1) year of total compensation as that term is defined below in this sub-section, within thirty (30) days from the date of termination. The term compensation as used in this sub-section means the total compensation paid during the immediately preceding calendar year of the date of non-causal termination or the total compensation paid during the calendar year immediately preceding the past calendar year, whichever total compensation amount is greater. Therefore, in a non-causal involuntary termination of Employee by Employer, the non-compete as provided for in paragraph 10 (a), (b), and (c), is null and void.
(d) In the case of a causal termination (due to productivity, policy or personality differences and not due to conduct which would otherwise constitute larceny or the unauthorized taking of tangible or personal property of the Company) of Employee by Employer as that term is defined in paragraph 7 (b) above, the non-compete as provided for in paragraphs 10 (a), (b), and (c), shall be deemed null and void; however, there shall be two (2) month’s salary compensation paid following termination by Employer to Employee plus any wages which may be due, owing and vested during the period of employment.
12. Injunction Without Bond. Due to the nature of this Agreement and the services provided hereunder, the parties acknowledge that a breach of the covenants contained in Paragraphs 9, 10 and 11 of this Agreement will result in irreparable injury to Employer and the only appropriate remedy for such breach would be an injunction. Thus, in the event there is a breach or threatened breach by the Employee of the provisions of Paragraphs 9, 10 and 11, the Employer shall be entitled to seek and obtain injunctive relief without the posting of a bond to restrain the Employee from disclosing in whole or in part any confidential matters or from rendering service to any person, firm, corporation, association or other entity, and the Employer will be entitled to reimbursement for all costs and expenses, including reasonable attorneys fees (both at the trial and appellate levels) in connection therewith. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
13. Developments by Employee. The Employee is aware and understands that during the terms of his employment by the Employer as set forth in this Agreement, that the Employee with the financial and other assistance which may be provided by the Employer may develop and improve certain valuable property such as, but not limited to, patents, trademarks, inventions, and other trade secrets and formulas. The Employee agrees that all such matters which may be developed or produced by Employee during his employment by the Employer is and will be the property of the Employer and that the Employee further agrees that Employee will, at the request of the Employer, execute such documents as the Employer may request to assign and transfer all of that property to the Employer. The Employee will, at all times, fully advise and inform the Employer on all matters which the Employee may be developing or working on while employed by the Employer. The Employee further agrees that upon the expiration or earlier termination of Employee’s employment for any reason whatsoever (whether with or without cause) that Employee will immediately deliver and surrender to the Employer all materials of any nature, relating to the Employer in Employee’s possession including, but not limited to, all customer lists, price lists, manuals and all other material whatsoever furnished by Employee by the Employer or produced by Employee during his employment with the Employer. THIS CLAUSE SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
14. Severability. If any provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by or in favor of any party or substantially increase the burden of any party to this Agreement, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement.
15. Governing Law, Jurisdiction and Venue. This Agreement shall be construed in accordance with and shall be governed by the laws of the State of Florida, and venue of any action hereunder shall lie solely with the courts in and for Pinellas County, Florida, to which jurisdiction each of the parties agrees to submit for the purposes of any litigation involving this Agreement.
16. Attorneys Fees and Costs. In the event a dispute arises between the parties under this Agreement, other than under Paragraphs 9 and 10, and suit is instituted, the prevailing party shall be entitled to recover costs and attorney’s fees from the non-prevailing party. As used in this Agreement, costs and attorney’s fees include any costs and attorney’s fees in any appellate proceeding.
17. Miscellaneous. The rights and duties of the parties are personal and may not be assigned or delegated without the express written consent of all other parties to this Agreement. The captions used in this Agreement are solely for the convenience of the parties and are not used in construing this Agreement. Time is of the essence of this Agreement. The use of any gender shall be applicable to all genders.
18. Typewritten or Handwritten Provisions. Handwritten provisions inserted into this Agreement and typewritten provisions initialed by both parties shall control over any and all conflicting typewritten provisions.
19. Complete Agreement. This Agreement constitutes the complete agreement between the parties and incorporates all prior discussions, agreements and representations made in regard to the matters set forth here. This Agreement may not be amended, modified or changed except by a writing signed by the party to be charged by the amendment, change or modification.
IN WITNESS, the parties have executed this Agreement as of the date first above written.
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AS TO EMPLOYER:
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HIGHCOM SECURITY, INC.
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Witness
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By:
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/s/ Michael J. Gordon
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Witness
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Its CEO
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AS TO EMPLOYEE:
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Witness
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/s/ Michael L. Bundy
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Witness
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Michael L. Bundy
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EXHIBIT A
Salary Schedule: $125,000 annual plus 1.2% quarterly bonus on HighCom sales
Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the “Agreement”) made as of this 1st day of September, 2015, by and between HIGHCOM SECURITY, INC., a California corporation authorized to do business in the state of Florida, at 2451McMullen Booth Road, Suite 212, Clearwater, FL 33759 (referred to here as “Employer”), and Chad Wright (referred to here as “Employee”).
RECITALS:
A. The Employer desires to retain the services of and employ the Employee pursuant to the terms and conditions of this Agreement.
B. Employee desires to render services to the Employer pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and of the covenants and agreements contained here, the Employer and Employee covenant and agree as follows:
1. Duties. Employee is being employed as the Vice-President of Manufacturing and Distribution and as such will render to Employer those skills necessary to efficiently accomplish his employment. The Employee agrees to devote such amount of time to the discharge of his responsibilities and duties under this Agreement as may be reasonably necessary. In discharging such duties, Employee agrees that Employee will at all times faithfully and to the best of his ability, experience and talents, perform all of the duties that may be required of and from Employee pursuant to the express and implicit terms of this Agreement, to the satisfaction of the Employer. The Employee shall have the responsibilities, duties and title(s) as may be set forth by the Employer.
2. Term. The term of this Agreement shall be for a period of One (1) year, commencing on the date set forth in the initial paragraph hereof and expiring (unless sooner terminated as otherwise provided in this Agreement or unless otherwise renewed as set forth here) One (1) year following the date of this Agreement. After the expiration of the initial term of this Agreement, the term of employment shall be automatically extended for periods equal to the initial term of this Agreement. This Agreement will survive each renewal period, unless either party gives the other written notice, at least ninety (90) days prior to the end of the then existing term, that the employment is to terminate. Any and all prior written or oral agreements which are or purport to be Employment Agreements between or among the parties are superseded by the instant Agreement and are therefore deemed null and void as of the date of execution of this Agreement.
3. Compensation. During the period of employment, the Employer agrees to compensate the Employee for services rendered under this Agreement, in accordance with the Salary Schedule attached to and incorporated in this Agreement as Exhibit “A”. Additionally, Employee is eligible for the awarding of a discretionary annual bonus at the sole determination of the Board of Directors. No representations or promises are made as to the amount of said bonus or the awarding of a bonus.
4. Vacation or Paid Time Off (“PTO”). The Employee shall take vacation time or PTO in such amounts during each year as is designated by the Employer on Exhibit “A”. The Employee shall be entitled to full compensation during the vacation period. Employee shall give Employer notice as a condition of Employee taking vacation time or PTO.
5. Policies and Procedures. The Employer shall have the authority to establish from time to time policies and procedures to be followed by the Employee in fulfilling and discharging Employee’s duties under this Agreement. The Employee agrees to comply with such policies and procedures as the Employer may promulgate from time to time.
6. Limitations on Authority. Without the express written consent of the Employer, the Employee shall have no express, apparent or implied authority to :
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sign documents on behalf of Employer, under any circumstances;
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make verbal or written representations on behalf of Employer, unless otherwise set forth in this Agreement; or
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enter into any other contracts or agreements of any nature on behalf of Employer.
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7. Termination. The Employer may terminate this Agreement as follows:
(a) Subject to the terms and conditions of this Agreement including the Term as set forth in paragraph 2, in the Employer’s sole and absolute discretion and WITHOUT CAUSE, Employee can be immediately discharged. Such discharge WITHOUT CAUSE must occur consistent with the notice provisions of paragraph 2 herein and cannot occur during either the initial term or any automatic renewal term other than with the giving of ninety (90) days notice as provided in paragraph 2. If for any reason Employer terminates Employee WITHOUT CAUSE during a term of this Agreement as provided in paragraph 2, Employee is entitled to full compensation during the instant, pending Term.
(b) At any time and immediately upon written notice to the Employee if the discharge is FOR CAUSE. In the notice of termination furnished to the Employee under this subparagraph (b), the reason or reasons for the termination shall be given. By way of illustration and not limitation, any one or more of the following conditions shall be deemed to be grounds for discharge of the Employee for cause under this subparagraph (b):
(i) In the event the Employee shall expressly fail or refuse to comply with the policies, standards and regulations of the Employer from time to time established;
(ii) In the event the Employee shall expressly fail or refuse to report for work (unless otherwise excused) for a period in excess of one (1) day;
(iii) In the event that the Employee behaves in an unprofessional, immoral, or fraudulent manner, or should the Employee’s conduct discredit the Employer or be detrimental to the reputation, character and standing of the Employer.
(iv) In the event that the Employee breaches any of the mutually agreed upon covenants in this Agreement.
(c) Death of Employee: Upon the death of the Employee, this Agreement shall automatically terminate, if it has not previously expired or otherwise been terminated by any party to this Agreement.
(d) This Agreement shall terminate automatically upon the filing by either party of a petition in Bankruptcy, insolvency or like proceedings, readjustment or rearrangement of the business, any adjustment for the benefit of creditors, and filing against such party of any petition in Bankruptcy, insolvency or like proceedings, or the appointment of a receiver for the property or assets of such party.
8. Notice. Any notice required or permitted under this Agreement shall be deemed properly given at the time it is personally delivered or mailed, properly addressed and post-paid, to the following addresses:
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1.
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Employer:
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HighCom Security, Inc.
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2451 McMullen Booth Road, Suite 212
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Clearwater, FL 33759
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2.
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Employee:
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Chad Wright
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199 Linden Avenue
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Newark, NJ 43055
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9. Confidential Matters. The Employee agrees that during Employee’s employment by the Employer and subsequent to the termination of Employee’s employment by the Employer for any reason whatsoever and with or without cause, Employee will not release or divulge any information relating to the Employer to any other person or persons without the prior express written consent of the Employer. The Employee is aware and acknowledges that the Employee shall have access to confidential information by virtue of his employment and Employee agrees to keep that information confidential at all times. The type of confidential information covered by this paragraph shall include, but is not limited to, any information obtained in transcribing any and all reports, any and all information contained in such reports, list(s) of clients of Employer, computer programs and/or software as amended by Employer’s trade secrets utilized by Employer and any information acquired by Employee during the course of training by Employer relating to methods and procedures to be applied while rendering services on Employer’s behalf to the Employer’s clients. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
10. Non-Compete.
(a) The Employee agrees that during Employee’s employment by the Employer and for an additional period of one (1) year from and after the expiration of this Agreement or the earlier termination of employment, subject to the provisions of paragraph 11 below, Employee will not compete directly or indirectly with the Employer and shall not either directly or indirectly have any ownership interest in, become a shareholder, director, officer or employee of or otherwise provide services to other clients Employer is now providing services for (a list of which can be obtained by requesting the same of Employer), pursuant to contract or otherwise. In addition, Employee shall not solicit business from any of the above-referenced clients of Employer.
(b) The prohibition contained in paragraph 10(a) is throughout the United States of America. The parties agree that due to their executive capacities with Employer and due to the fact that Employer conducts business throughout the United States, such geographical limitation is appropriate.
(c) If, at any time, a court of competent jurisdiction determines that either the time or area restrictions of this paragraph are invalid, the parties agree that the court may establish valid time and area restrictions and the parties agree to comply with these restrictions as established by the court of competent jurisdiction. THESE PROVISIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
11. Terms and Conditions of Non-Compete.
(a) Employer and Employee agree that the Non-Compete contained in paragraph 10 (a), (b), and (c) above shall become null and void upon the occurrence of either of the following:
(i) If the Employer files for protection under the Bankruptcy Code;
(ii) If the Employer ceases conducting active business operations or lacks the operating capital to meet monthly payroll;
(iii) If the Employer dissolves; or
(iv) If a sale of the Employer’s common stock or equity is effected such that the current majority shareholder, namely 8464081 Canada Inc., or any affiliated entity or designee of 8464081 Canada Inc., ceases to be the largest single Shareholder of Employer.
(b) In the case of a voluntary resignation by Employee, the provisions of paragraph 10 (a), (b) and (c) shall remain in full force and effect.
(c) In the case of a non-causal termination of Employee by Employer as that term is defined in paragraph 7 (a) above, Employer agrees to compensate Employee with up to one (1) year of total compensation as that term is defined below in this sub-section, within thirty (30) days from the date of termination. The term compensation as used in this sub-section means the total compensation paid during the immediately preceding calendar year of the date of non-causal termination or the total compensation paid during the calendar year immediately preceding the past calendar year, whichever total compensation amount is greater. Therefore, in a non-causal involuntary termination of Employee by Employer, the non-compete as provided for in paragraph 10 (a), (b), and (c), is null and void.
(d) In the case of a causal termination (due to productivity, policy or personality differences and not due to conduct which would otherwise constitute larceny or the unauthorized taking of tangible or personal property of the Company) of Employee by Employer as that term is defined in paragraph 7 (b) above, the non-compete as provided for in paragraphs 10 (a), (b), and (c), shall be deemed null and void; however, there shall be two (2) month’s salary compensation paid following termination by Employer to Employee plus any wages which may be due, owing and vested during the period of employment.
12. Injunction Without Bond. Due to the nature of this Agreement and the services provided hereunder, the parties acknowledge that a breach of the covenants contained in Paragraphs 9, 10 and 11 of this Agreement will result in irreparable injury to Employer and the only appropriate remedy for such breach would be an injunction. Thus, in the event there is a breach or threatened breach by the Employee of the provisions of Paragraphs 9, 10 and 11, the Employer shall be entitled to seek and obtain injunctive relief without the posting of a bond to restrain the Employee from disclosing in whole or in part any confidential matters or from rendering service to any person, firm, corporation, association or other entity, and the Employer will be entitled to reimbursement for all costs and expenses, including reasonable attorneys fees (both at the trial and appellate levels) in connection therewith. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
13. Developments by Employee. The Employee is aware and understands that during the terms of his employment by the Employer as set forth in this Agreement, that the Employee with the financial and other assistance which may be provided by the Employer may develop and improve certain valuable property such as, but not limited to, patents, trademarks, inventions, and other trade secrets and formulas. The Employee agrees that all such matters which may be developed or produced by Employee during his employment by the Employer is and will be the property of the Employer and that the Employee further agrees that Employee will, at the request of the Employer, execute such documents as the Employer may request to assign and transfer all of that property to the Employer. The Employee will, at all times, fully advise and inform the Employer on all matters which the Employee may be developing or working on while employed by the Employer. The Employee further agrees that upon the expiration or earlier termination of Employee’s employment for any reason whatsoever (whether with or without cause) that Employee will immediately deliver and surrender to the Employer all materials of any nature, relating to the Employer in Employee’s possession including, but not limited to, all customer lists, price lists, manuals and all other material whatsoever furnished by Employee by the Employer or produced by Employee during his employment with the Employer. THIS CLAUSE SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
14. Severability. If any provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by or in favor of any party or substantially increase the burden of any party to this Agreement, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement.
15. Governing Law, Jurisdiction and Venue. This Agreement shall be construed in accordance with and shall be governed by the laws of the State of Florida, and venue of any action hereunder shall lie solely with the courts in and for Pinellas County, Florida, to which jurisdiction each of the parties agrees to submit for the purposes of any litigation involving this Agreement.
16. Attorneys Fees and Costs. In the event a dispute arises between the parties under this Agreement, other than under Paragraphs 9 and 10, and suit is instituted, the prevailing party shall be entitled to recover costs and attorney’s fees from the non-prevailing party. As used in this Agreement, costs and attorney’s fees include any costs and attorney’s fees in any appellate proceeding.
17. Miscellaneous. The rights and duties of the parties are personal and may not be assigned or delegated without the express written consent of all other parties to this Agreement. The captions used in this Agreement are solely for the convenience of the parties and are not used in construing this Agreement. Time is of the essence of this Agreement. The use of any gender shall be applicable to all genders.
18. Typewritten or Handwritten Provisions. Handwritten provisions inserted into this Agreement and typewritten provisions initialed by both parties shall control over any and all conflicting typewritten provisions.
19. Complete Agreement. This Agreement constitutes the complete agreement between the parties and incorporates all prior discussions, agreements and representations made in regard to the matters set forth here. This Agreement may not be amended, modified or changed except by a writing signed by the party to be charged by the amendment, change or modification.
IN WITNESS, the parties have executed this Agreement as of the date first above written.
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AS TO EMPLOYER:
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HIGHCOM SECURITY, INC.
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Witness
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By: |
/s/ Michael J. Gordon
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Witness
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Its CEO |
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AS TO EMPLOYEE:
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/s/ Chad Wright |
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Witness
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Chad Wright |
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Witness
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EXHIBIT A
Salary Schedule: $63,000 annual plus .6% quarterly bonus on HighCom sales
Exhibit 10.4
CONSULTING AND SERVICES AGREEMENT
This Consulting and Services Agreement (hereinafter "Agreement") is made and entered into this 1st day of September, 2015, by and between BlastGard International, Inc., a Foreign Corporation authorized to do business within the State of Florida including its wholly owned subsidiary, HighCom Security, Inc., with their principal place of business at 2451 McMullen Booth Road, Suite 212, Clearwater, Florida 33759, (hereinafter "Principal”) and Paul D. Sparkes, (hereinafter “Consultant").
WITNESSETH:
WHEREAS, Principal is in the business of manufacturing and marketing proprietary blast mitigation materials and designs and distributes a range of leading security products;
WHEREAS, Consultant is in the business of providing financial and business advisory and consulting services, and desires to provide such services to Principal pursuant to the terms and conditions of this Agreement; and
WHEREAS, Principal desires to engage the services of Consultant to perform such consulting and advisory services as set forth herein below, is in need of such services, and is able to pay for same.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other good and valid consideration, the adequacy and receipt of which is hereby acknowledged, the parties hereby agree as follows:
1. Engagement. Principal hereby engages Consultant to render the consulting and advisory services set forth within this Agreement. Consultant hereby accepts the engagement and agrees to use his best efforts to perform the duties and services on behalf of Principal.
2. Nature of Services and Duties. Consultant shall make himself available to consult with Principal concerning matters pertaining to the organization and administration of Principal's business activities, and, in general, on any issues of concern or import in the business affairs of the Principal as may be brought to the attention of Consultant by Principal. Consultant shall further provide financial and consulting advice with respect to the ongoing business of the Principal including any business opportunities as may be contemplated by Principal or as may arise in the course of this Agreement. Consultant shall remain available to consult with Principal for other and further business and financial matters involving the business affairs of the Principal, as the Principal deems necessary.
3. Compensation. Principal shall pay to Consultant, as compensation for all such services provided pursuant to paragraph 2 herein above, and for other services reasonably related to such matters as authorized by Principal, a fair and reasonable compensation as set forth below:
a. Compensation from Principal to Consultant shall be paid in common stock, warrants, options or such other securities of Principal as the parties may agree in writing. The composition of such securities including the number of securities and any applicable “strike price” shall be pre-determined in writing. The parties contemplate entering into a Stock Option Agreement contemporaneous with the execution of this Agreement. Appended hereto as Exhibit A is the/any Stock Option Agreement as referenced herein;
b. Additionally, the parties may agree that certain services may be provided by Consultant to Principal on an hourly basis, at a pre-determined hourly rate. Any such Agreement needs to be established in writing, executed by Principal and Consultant, describing the nature and extent of such services and the compensation details; and
c. Also, the parties may agree that certain services may be provided by Consultant to Principal on a flat fee or otherwise agreed-upon basis, reflecting reasonable fees for services relating to specific transactions in which Consultant participates in the interest of Principal.
Principal makes no warranties as to any minimum or maximum amount of compensation for Consultant's services, nor does Consultant intend this Agreement to contemplate any minimum or maximum number of hours for which Consultant's services may be utilized during the terms of this Agreement. All compensation due and owing hereunder shall be due and payable to Consultant each month within 30 days of the submission of Consultant's invoice to Principal.
4. Costs, Expenses and Assistants of Consultant. Consultant, subject to approval of the Principal, where necessary and reasonable, shall seek out and utilize the assistance and services of other persons, companies, or firms to properly perform the duties and obligations required under this Agreement, and Consultant shall by directly reimbursed by Principal for such assistance. Notwithstanding the above, all costs and expenses reasonably incurred by Consultant in pursuit of services provided to Principal hereunder shall be approved by Principal and shall be chargeable directly to Principal via monthly invoices of Consultant. No individual cost item in the amount of $100 or greater shall be incurred by Consultant without prior consent of Principal, and in no event shall Principal be required to reimburse Consultant for any such cost item that has not been pre-approved by Principal.
5. Term. This Agreement shall be for a term of One (1) year, commencing upon the date of execution by both parties hereto; provided, however, that any compensation which is vested under the provisions of Section 3 hereof are due and payable as provided herein. This Agreement shall automatically renew on an annual basis unless either party provides written notice of intent to terminate this Agreement no less than Thirty (30) days prior to the anniversary date of the execution of the Agreement. This Agreement may be terminated at any time by a mutual written agreement of the parties, and shall automatically terminate upon the dissolution or insolvency of either party hereto.
6. Relationship of Parties. The parties hereby acknowledge that Consultant is an independent contractor of Principal and is not authorized to act on behalf of Principal as its agent, except as may be specifically agreed otherwise. Consultant shall have reasonable control over the manner in which services are rendered hereunder. Nothing in this Agreement or in the course of conduct between the parties shall be deemed to constitute an employment, agency, joint venture, partnership or any other type of relationship between the parties other than the independent contractor status established hereby. Consultant shall not have the right or power to bind Principal to any contracts or agreements with any third party, nor shall Consultant have the right or power to direct any operations of the Principal not authorized specifically by Principal. The relationship created by this Agreement is that of a contract for consulting services.
7. Limited Liability; Indemnification.
a. With regard to services to be performed by Consultant pursuant to the terms of this Agreement, Consultant shall not be liable to the Principal, nor to anyone who may claim any right due to any relationship with the Principal, for any acts or omissions in the performance of services on the part of the Consultant or on the part of the agents or employees of the Consultant, except when said acts or omissions of the Consultant are due to his willfulness or intentional misconduct. Principal shall defend, indemnify and hold Consultant and its assigns, attorneys, accountants, employees, officers, and directors harmless from and against all losses, liabilities, judgments, damages, claims, demands, actions, proceedings, suits, costs, and expenses, presently or in the future, arising from or pertaining to the services rendered to the Principal pursuant to this Agreement, except when the same shall arise due to the willful misconduct of culpable negligence of Consultant.
8. Non-exclusivity of Agreement. Principal and Consultant acknowledge and agree that the instant Agreement is the rendering of consulting services. The parties further agree that Consultant may provide business consulting services to others during the effectiveness of this Agreement. However, the parties finally agree that Consultant will not, during the effective period of this Agreement, provide consulting services to any other entity which is engaged in the business of developing ballistic armor designs, specifications and producing final products.
9. Restrictive Covenant of Confidentiality, Non-Disclosure Information.
a. Definition of Confidential Information. For purposes of this Agreement, "confidential information" means that information disclosed by Principal to Consultant or otherwise obtained by Consultant as a result of activities undertaken pursuant to this Agreement, including but not limited to: the terms and conditions of this Agreement, any and all non-public financial, business and planning information relating to Principal's plans, research, concepts, product development, business relationships, marketing plans, business opportunities, business contacts, clientele, personnel, and all such other non-public technical or business information of Principal that Consultant comes to know or develop through Consultant's relationship with Principal. Confidential information further encompasses any such information Consultant reasonably should know Principal would like to treat as confidential for any purpose such as maintaining a competitive advantage, avoiding undesirable publicity, or maintaining potential business opportunities being developed by or for Principal and in which Consultant may participate. Confidential information, for purposes of this Agreement, does not include information that is now or subsequently becomes generally available for the public through no fault or breach of Consultant.
b. Non-Disclosure and Non-Use of Confidential Information. Consultant shall not disclose, publish or disseminate confidential information of Principal as defined hereinabove, to any persons other than those individuals or entities to whom disclosure of such information is authorized expressly by Principal. Consultant shall take reasonable precautions to prevent any unauthorized use, disclosure, publication or dissemination of such confidential information obtained as a result of Consultant's Agreement and relationship with Principal. Consultant shall not use such confidential information for its own or for any third party's benefit, including, but not limited to any business partners, employees, agents, directors, officers, affiliates or any individual or entity otherwise associated with or related to Consultant, without prior written approval of an authorized representative of Principal. Consultant shall only use such confidential information as part of the services contemplated to be provided to and for Principal in accordance with the terms of this Agreement.
10. Trade Secrets. Principal and Consultant agree that Principal has certain intellectual property and proprietary information consistent with this Agreement which shall and do constitute trade secrets with regard to ownership of the intellectual property by Consultant and/or its subsidiary, HighCom Security, Inc. All provisions of the Florida Uniform Trade Secrets Act, Chapter 688, Florida Statutes, shall and do apply to any such product(s) and all prohibitions and damages provided under Chapter 688, Florida Statutes, shall and do apply. Likewise, any and all trade secret acts of other states which may have concurrent jurisdiction over the acts and practices of the parties shall and do apply and all provisions of said acts of other states are considered as incorporated by reference into this Agreement.
11. Non-Compete and Non-Solicitation.
a. The Consultant agrees that during Consultant’s relationship with Principal under this Agreement and for an additional period of Three (3) years from and after the expiration of this Agreement or the earlier termination of this Agreement for any reason whatsoever (whether with or without cause), Consultant will not compete directly or indirectly with the Principal with respect to the development, marketing and sales of products involving the development of ballistic body armor designs, specifications and the producing of final product;
b. The prohibitions contained in this provision apply throughout the United States and any and all other countries which have international treaty provisions within the United States which render this non-compete enforceable; and
c. If, at any time, a court of competent jurisdiction determines that either the time or area restrictions of this paragraph are invalid, the parties agree that the court may establish valid time and area restrictions and the parties agree to comply with these restrictions as established by the court of competent jurisdiction. THESE PROVISIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
12. Injunction Without Bond. Due to the nature of this Agreement and the services provided hereunder, the parties acknowledge that a breach of the covenants contained in Paragraphs 9, 10 and 11 of this Agreement will result in irreparable injury to Principal and the only appropriate remedy for such breach would be an injunction. Thus, in the event there is a breach or threatened breach by the Consultant of the provisions of Paragraphs 9, 10 and 11, the Principal shall be entitled to seek and obtain injunctive relief without the posting of a bond to restrain the Consultant from disclosing any confidential matters or trade secret matters from rendering service to any person, firm, corporation, association or other entity, and the Principal will be entitled to reimbursement for all costs and expenses, including reasonable attorney’s fees (both at the trial and appellate levels) in connection therewith. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
13. Waiver, Modification and Cancellation, Writing Required. This Agreement may not be modified, amended or canceled except by a mutual agreement by an instrument in writing duly executed by the parties hereto. No waiver of compliance with any provision or condition hereof and no consent provided for herein shall be effective unless evidenced by an instrument in writing duly executed by the party hereto sought to be charged with such waiver or consent.
14. Severability. The invalidity or unenforceability of any particular provisions hereof shall not affect the remaining portions or provisions of this Agreement, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.
15. Attorney's Fees. In the event it becomes necessary for either party herein to seek legal means to interpret, enforce or make demand upon the terms of this Agreement, the breaching party shall be liable to the non-breaching party for all reasonable attorney fees incurred in furtherance of resolution of such breach, whether or not litigation is filed, as well as attorney fees on appeal, travel expenses, deposition costs, expert witness expenses and fees, and any other costs of whatever nature and reason necessarily incurred by the prevailing party incident to the prosecution or defense of any action arising from or related to the subject matter of this Agreement, plus costs in all proceedings, trials and appeals. Notwithstanding the preceding sentence, and in no way limiting the scope or application of same, Principal shall be liable to Consultant for any fees, Attorney fees, costs, and related expenses incurred as a result of Consultant's collection activities concerning compensation due and owing pursuant to the terms of this Agreement, whether or not litigation is initiated.
16. Venue. The parties hereto understand and agree that venue shall be had, and is mandatory, in Pinellas County, Florida, to the exclusion of all other places of venue, for all matters which may arise under this Agreement. In any dispute arising under this Agreement, there shall be concurrent jurisdiction between the Circuit Court of the State of Florida for the Sixth Judicial Circuit, Pinellas County, Florida and the American Arbitration Association (“AAA”) for purposes of temporary injunctive relief. For all disputes arising under this Agreement, other than those involving the seeking of temporary injunctive relief as set forth in the preceding sentence, these matters shall be decided under the Commercial Arbitration Rules of the AAA.
17. Governing Law. This Agreement is governed solely and exclusively by the laws of the State of Florida.
18. Entire Agreement. This Agreement contains the entire understanding between the parties hereto with respect to the matters contemplated hereby, and this Agreement supersedes any and all prior understandings and written and oral agreements between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above.
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WITNESSETH:
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"Principal"
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BLASTGARD INTERNATIONAL, INC.
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/s/ Michael Gordon
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By: Michael Gordon
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Its: Chief Executive Officer
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"Consultant"
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/s/ Paul D. Sparkes
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Paul D. Sparkes
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Highcom Global Security (CE) (USOTC:HCGS)
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Highcom Global Security (CE) (USOTC:HCGS)
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