Current Report Filing (8-k)
July 03 2014 - 6:02AM
Edgar (US Regulatory)
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
July 2, 2014
Date of Report (Date of earliest event reported)
TSS, INC.
(Exact name of registrant as specified in
its charter)
Delaware |
001-33627 |
20-2027651 |
(State or other jurisdiction of
incorporation) |
(Commission File Number) |
(I.R.S. Employer
Identification No.) |
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7226 Lee DeForest Drive, Suite 104 |
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Columbia, Maryland |
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21046 |
(Address of principal executive offices) |
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(Zip Code) |
(410) 423-7438 |
(Registrant’s telephone number, including area code) |
Not Applicable
(Former name, former address, and former
fiscal year, if changed since last report.)
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:
¨ Written communications pursuant to
Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule
14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.02. |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
TSS, Inc. (the “Corporation”) has retained John
K. Penver to provide consulting services on a full-time basis as the Interim Chief Financial Officer of the Corporation. In connection
with that retention, the Corporation and Mr. Penver entered into a Consulting Agreement, dated as of July 2, 2014 (the “Consulting
Agreement”). Under the Consulting Agreement, the Corporation will pay Mr. Penver a fee of $22,500 per month to provide the
consulting services. A copy of the Consulting Agreement is filed as an exhibit to this Current Report and is incorporated herein
by reference.
Mr. Penver, age 51, was the Chief Financial Officer of Fallbrook
Technologies, Inc., a privately held manufacturer of mechanical transmission systems and technologies, from November 2012 until
February 2014. From February 2005 until October 2012, Mr. Penver was the Vice President of Finance, Chief Financial Officer and
Company Secretary of Active Power, Inc., a manufacturer of uninterruptible power systems and modular infrastructure solutions for
data centers.
Item 9.01. |
Financial Statements and Exhibits. |
99.1 Consulting Agreement, dated July 2, 2014, between the
Corporation and John K. Penver.
S I G N A T U R E S
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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TSS, INC. |
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By: |
/s/ Anthony Angelini |
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Anthony Angelini |
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President and Chief Executive Officer |
Date: July 2, 2014
CONSULTING AGREEMENT
This Consulting Agreement
(this “Agreement”) is made as of July 2, 2014, by and between TSS, Inc., a Delaware corporation (“TSS”),
and John K. Penver (the “Consultant”), hereinafter collectively known as the “Parties.”
WHEREAS, John K. Penver has previous experience
as a chief financial officer of a public company; and
WHEREAS, TSS desires to retain the Consultant
to provide consulting services to TSS for an initial period of one month;
THEREFORE, in consideration of the promises
and mutual agreements contained herein, the Parties agree as follows:
| 1. | DESCRIPTION OF SERVICES TO BE PROVIDED. Effective July 1, 2014, the Consultant shall provide consulting
services on a full-time basis as the Interim Chief Financial Officer of TSS. The Consultant shall provide TSS with financial, strategic,
business, other services and functions customarily performed by a chief financial officer of a public company and any services
as may be requested from time to time by the Chief Executive Officer of TSS (the “CEO”) or the Board of Directors of
TSS (the “Board”) during the term of this Agreement. The Consultant shall perform the consulting services under this
Agreement in a timely and professional manner in accordance with applicable professional standards. |
| 2. | TERM. The term of this agreement shall be from the date of this Agreement through August 3, 2014
or as extended month by month by mutual agreement thereafter. |
| 3. | FEES. TSS will pay the Consultant a fee of $22,500 per month for the consulting services provided
under this Agreement. TSS shall pay the Consultant within 10 days after the third day of each month during the term of this Agreement. |
| 4. | EXPENSE REIMBURSEMENT. The Consultant shall be entitled to reimbursement from TSS for any reasonable,
ordinary “out-of-pocket” expenses, including reasonable travel expenses, associated with the provision of the consulting
services under this Agreement and as approved by the CEO. |
| 5. | RELATIONSHIP OF PARTIES. It is understood by the parties that the Consultant is an independent
contractor with respect to TSS and not an employee of TSS. TSS will not provide fringe benefits, including health insurance benefits,
paid vacation, or any other employee benefit, for the benefit of the Consultant. Neither TSS nor Consultant will represent that
Consultant is an employee of TSS. In addition, as a result of this independent contractor relationship, Consultant understands
and agrees that TSS does not stand in the position as a statutory employer for the purposes of any prospective worker’s compensation
claims. |
| 6. | ASSIGNMENT. The Consultant’s obligations under this Agreement may not be assigned or transferred
to any other person, firm, or corporation without the prior written consent of TSS. |
| 7. | CONFIDENTIALITY. The Consultant acknowledges that Consultant will have access to confidential information
of TSS (collectively, the “Information”), including without limitation the following information: products; prices;
apparatus; costs; discounts; future plans; business affairs; process information; trade secrets; technical information; customer
lists; product design information; copyrights; and other proprietary information. The Information is considered to be valuable,
special and unique assets of TSS. The Consultant agrees that the Consultant will not at any time or in any manner, either directly
or indirectly, use any Information for the Consultant’s own benefit, or divulge, disclose, or communicate in any manner any
Information to any third party without the prior written consent of TSS. The Consultant will protect the Information and treat
it as strictly confidential. Upon termination of this Agreement and as otherwise requested by TSS, the Consultant will promptly
return to TSS all items and copies containing or embodying any Information, except that Consultant may keep personal copies of
his compensation records and this Agreement. The Consultant acknowledges that any breach of this Section 7 will cause irreparable
harm to TSS for which damages would not be an adequate remedy, and TSS reserves the right to seek injunctive relief with respect
thereto in addition to any and all other remedies available in equity or at law. |
This section
shall not apply to information in whatever form that comes into the public domain not resulting from the breach of this Agreement,
nor shall it restrict the Consultant from giving notices required by law or complying with an order to provide information or data
when such order is issued by a court, administrative agency or other authority with proper jurisdiction, or if it is reasonably
necessary for the Consultant to defend itself from any suit or claim.
| 8. | TERMINATION. TSS may terminate this Agreement at any time without incurring liability to Consultant
for any costs other than the fees and expenses payable to the Consultant under Sections 3 and 4 of this Agreement. The confidentiality
provisions contained in Section 7 of this Agreement shall remain in full force and effect after the termination of this Agreement. |
| 9. | INDEMNIFICATION. TSS shall, in a manner as applied to the officers of TSS to the extent permitted
in the charter and bylaws of TSS, indemnify, protect, and hold the Consultant harmless from and against any expenses, including
reasonable attorneys’ fees and expenses, claims, judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding arising out of, or related to, the provision of the consulting services by the Consultant
under this Agreement. |
| 10. | NOTICES. All notices required or permitted under this Agreement shall be in writing and shall be
deemed delivered when delivered in person or deposited in the United States mail, postage prepaid, addressed to addresses set forth
on the signature page to this Agreement or via email to appropriate email address set forth on the signature page to this Agreement.
Either party may change such addresses from time to time by providing written notice to the other in the manner set forth above. |
| 11. | ENTIRE AGREEMENT; COUNTERPARTS. This Agreement contains the entire agreement of the parties and
there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written
or oral agreements between the parties. This Agreement may be executed in multiple counterparts that, when taken together, shall
constitute one and the same instrument. |
| 12. | AMENDMENT. This Agreement may be modified or amended if the amendment is made in writing and is
signed by both parties. |
| 13. | WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement
shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with
every provision of this Agreement. |
| 14. | APPLICABLE LAW. The laws of the State of Maryland shall govern in all matters or claims arising
under this Agreement. |
| 15. | NON-TRADING IN THE COMPANY’S SECURITIES. During the term of this Agreement and within 30
days after the termination of this Agreement, the Consultant shall not trade in the Company’s securities without first receiving
express permission in writing from the CEO. |
IN WITNESS
WHEREOF, the Parties have caused this Agreement to be duly executed on the date and year first written above.
TSS,
Inc.
By: |
/s/
Anthony Angelini |
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Anthony
Angelini, President & CEO. |
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7226
Lee DeForest Drive, Suite 104 |
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Columbia,
Maryland 21046 |
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aangelini@totalsitesolutions.com |
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/s/
John K. Penver |
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John
K. Penver |
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3709
Humble Cv. |
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Austin
TX 78730-1501 |
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jpenver@austin.rr.com |
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