Netcapital Inc 8-K, filed Jun 28, 2022
Netcapital Inc. (NCPL)
About this 8-K
Netcapital Inc filed this 8-K on June 28, 2022, reporting on events of April 18, 2022.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.02: Financial results
- Item 2.03: New debt or off-balance-sheet obligation
- Item 5.02: Director or officer change, or executive pay
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
| UNITED STATES | ||
| SECURITIES AND EXCHANGE COMMISSION | ||
| Washington, D.C. 20549 | ||
| FORM
| ||
| CURRENT REPORT | ||
| PURSUANT TO SECTION 13 OR 15(d) OF | ||
| THE SECURITIES EXCHANGE ACT OF 1934 | ||
| Date
of Report (Date of earliest event reported): | ||
| (Exact name of registrant as specified in its charter) | ||
| (State or other jurisdiction of incorporation) | (Commission File No.) | (I.R.S. Employer Identification No.) |
| (Address of principal executive offices) (Zip Code) | ||
| (Registrant's telephone number, including area code) | ||
| Not Applicable | ||
| (Former name or former address, 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: | ||
Indicate by check
mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [ ]
Item 1.01. Entry into a Material Definitive Agreement
License Agreement
On June 24, 2022, Netcapital Funding Portal Inc. (“NFP”), an indirect wholly-owned subsidiary of Netcapital Inc. (the “Company,” “we,” “us” or “our”), entered into a license agreement with Netcapital Systems, LLC pursuant to which NFP licensed the software and technology to operate our funding portal, for an annual license fee of $380,000, paid in quarterly installments.
The terms and conditions of the License Agreement are attached hereto as Exhibit 10.1 and incorporated by reference herein.
Item2.02. Results of Operation and Financial Condition.
The Company is reporting our expectations with respect to certain of our unaudited results for the year ended April 30, 2022 based upon management estimates.
Preliminary Results for our Fiscal Year Ended April 30, 2022
Our audited consolidated financial statements for the fiscal year ended April 30, 2022, or fiscal year 2022, are not yet available. We have presented preliminary estimated ranges of certain of our financial results below for fiscal year 2022, based on information currently available to management. We have provided ranges, rather than specific amounts, for certain financial results below, primarily because our financial closing procedures for the three months and year ended April 30, 2022 are not yet complete. As a result, our actual results may vary materially from the estimated preliminary results included herein. Accordingly, you should not place undue reliance on these estimates. The preliminary financial data included herein has been prepared by, and is the responsibility of, management. Our independent registered public accounting firm has not audited, reviewed, compiled, or performed any procedures with respect to the preliminary estimated financial data below and does not express an opinion or any other form of assurance with respect thereto. See “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Special Note Regarding Forward-Looking Statements” for additional information regarding factors that could result in differences between the preliminary estimated ranges of certain financial results presented below and the financial results we will ultimately report for fiscal year 2022.
For the fiscal year 2022, we estimate that our net sales will range from $5.3 million to $5.5 million, an increase of approximately $700,000, or 14.9%, using the mid-point of the estimated net sales range when compared with net sales of $4.7 million for the fiscal year ended April 30, 2021, or fiscal year 2021. The increase in sales was driven primarily by growth in dollars invested through our funding portal and an increase in consulting fees.
For the fiscal year 2022, we estimate that our net income will range from $3.3 million to $3.5 million which includes loan forgiveness of approximately $1.9 million, an increase of 126.7%, using the mid-point of the estimated range when compared with net income of $1.5 million for fiscal year 2021.
Item 2.03 Creation of a Direct Financial Obligation or a Obligation under an Off-Balance Sheet Arrangement of a Registration
On April 18, 2022, the Company borrowed $400,000 from Vaxstar LLC as an additional advance under that certain Loan and Security Agreement dated July 24, 2014 between the Company and Vaxstar LLC. Following this advance, we owe Vaxstar LLC an aggrege of $1.4 million in principal under this loan facility. All advances under this facility accrue interest at a rate of 8% per annum and have a maturity date of April 30, 2023. In addition, all borrowings with Vaxstar LLC are secured by a continuing security interest and first lien on all of our assets.
Item 5.02. Departure of Directors or Certain Officers, Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On June 23, 2022, the Company appointed Cecilia Lenk to the position of President to serve until her successor is appointed. Ms. Lenk currently serves as Chief Executive Officer of the Company.
On June 23, 2022, the Company entered into employment agreements with each of Cecilia Lenk, Coreen Kraysler and Jason Frishman, as further described below.
Employment Agreement with Cecilia Lenk
We entered into an employment agreement with Cecilia Lenk on June 23, 2022 pursuant to which we employ Ms. Lenk as our President and Chief Executive Officer. The term of her agreement ends on June 23, 2025. The agreement provides for an annual base salary during the term of the agreement of $96,000, which will be increased to $150,000 upon completion of a subsequent public offering of the Company and listing of our common stock on a national securities exchange. Ms. Lenk is eligible for periodic bonuses or for additional salary in addition to her base salary, as may be determined by our board of directors or the compensation committee.
The agreement also contains the following material provisions: eligible to participate in all employee fringe benefits and any pension and/or profit share plans; eligible to participate in any medical and health plans; entitled to sick leave, sick pay and disability benefits; and entitled to reimbursement for all reasonable and necessary business expenses. Ms. Lenk agreed to non-compete and non-solicit terms under her agreement.
Employment Agreement with Coreen Kraysler
We entered into an employment agreement with Coreen Kraysler on June 23, 2022 pursuant to which we employ Ms. Kraysler as our Chief Financial Officer. The term of her agreement ends on June 23, 2025. The agreement provides for an annual base salary during the term of the agreement of $96,000, which will be increased to $150,000 upon completion of a subsequent public offering of the Company and listing of our common stock on a national securities exchange. Ms. Kraysler is eligible for periodic bonuses or for additional salary in addition to her base salary, as may be determined by our board of directors or the compensation committee.
The agreement also contains the following material provisions: eligible to participate in all employee fringe benefits and any pension and/or profit share plans; eligible to participate in any medical and health plans;; entitled to sick leave, sick pay and disability benefits; and entitled to reimbursement for all reasonable and necessary business expenses. Ms. Kraysler agreed to non-compete and non-solicit terms under her agreement.
Employment Agreement with Jason Frishman
We entered into an employment agreement with Jason Frishman on June 23 2022 pursuant to which we employ Mr. Frishman as Chief Executive Officer of NFP. The term of his agreement ends on June 23, 2025. The agreement provides for an annual base salary during the term of the agreement of $96,000, which will be increased to $150,000 upon completion of a subsequent public offering of the Company and listing of our common stock on a national securities exchange. Mr. Frishman is eligible for periodic bonuses or for additional salary in addition to his base salary, as may be determined by our board of directors or the compensation committee.
The agreement also contains the following material provisions: eligible to participate in all employee fringe benefits and any pension and/or profit share plans; eligible to participate in any medical and health plans; entitled to sick leave, sick pay and disability benefits; and entitled to reimbursement for all reasonable and necessary business expenses. Mr. Frishman agreed to non-compete and non-solicit terms under his agreement.
The respective employment agreements with Cecilia Lenk, Coreen Kraysler and Jason Frishman are subject to the terms and conditions of their respective employment agreements attached hereto as Exhibits 10.2, 10.3 and 10.4 and incorporated by reference herein.
| Item 7.01. | Regulation FD Disclosure. |
On June 28, 2022, the Company reported our expectations with respect to certain of our unaudited results for the year ended April 30, 2022.
The information furnished pursuant to this Current Report on Form 8-K, shall not be considered “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be incorporated by reference into future filings by the Company under the Securities Act of 1933, as amended, or under the Exchange Act, unless the Company expressly sets forth in such future filing that such information is to be considered “filed” or incorporated by reference therein.
On June 28, 2022, the Company posted the attached investor presentation in the investor relations section of the Company’s web site at www.netcapitalinc.com. A copy of the investor presentation is attached as Exhibit 99.1 to this report and is incorporated herein by reference.
The information in this Current Report on Form 8-K is being furnished under Item 7.01 and shall not deemed to be "filed" for the purposes of Section 18 of the Securities and Exchange Act of 1934 (the "Exchange Act"), or otherwise subject to the liabilities of such section, nor shall such information be deemed incorporated by reference in any filing under the Securities Act of 1933 or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
SIGNATURE
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 thereunto duly authorized.
| Netcapital Inc. | |
| Date: June 28, 2022 | /s/ Coreen Kraysler |
| Coreen Kraysler | |
| Chief Financial Officer | |
| Principal Accounting Officer | |
Exhibit 10.1
Technology License Agreement
This Technology License Agreement (this “Agreement”) is made as of June 24, 2022 (the “Execution Date”), by and between NetCapital Systems LLC, a Delaware limited liability company (“Licensor”), and Netcapital Funding Portal Inc., a Delaware corporation (“Licensee”), (hereinafter referred to collectively as the “Parties” and individually as a “Party”).
Recitals
Whereas, Licensor is a software development company that has developed and owns all the right, title and interest in and to the Jobs Software (defined below), but is neither a funding portal nor a broker-dealer, and operates the website at netcapital.com (“Website”) other than the Funding Portal.
WHEREAS, Licensee operates sections of the Website to conduct securities offerings under applicable exceptions of the Securities Act of 1933, as amended as a funding portal (“Funding Portal”);
Whereas, the Parties wish to confirm the terms under which Licensee is licensed to use the Jobs Software to operate the Funding Portal.
Now, Therefore, in consideration of the foregoing and the mutual covenants and obligations of the Parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
Agreement
| 1. | Definitions. |
For the purposes of this Agreement, the following terms will have the meanings ascribed to them as follows
1.1. “JOBS Software” means the software used on the Website to enable issuers and investors to transact via the Funding Portal and the associated Third Party Tools.
1.2. “Third Party Tools” means the third party tools and services (e.g., payment services, cloud hosting, etc.) used with the JOBS Software to enable the functionality of the Funding Portal.
| 2. | Limited License to Licensee. |
2.1. License. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee, effective beginning the Execution Date, a worldwide, perpetual, personal license to use the JOBS Software to operate the Funding Portal.
2.2. Use Restrictions. Licensee will not, and will not permit any person to, (i) except as permitted under this Agreement, distribute, disclose, or otherwise transfer any JOBS Software (whether in object code or source code) to any third party; (ii) remove or alter any copyright, patent, trademark, trade name or other proprietary notices, legends, symbols or labels appearing on or in copies of any JOBS Software; or (iii) incorporate the JOBS Software or any portion thereof into any other program or product offered outside of the Funding Portal, except as expressly permitted under this Agreement.
2.3. Ownership. As between the Parties, Licensor owns and will retain all right, title and interest, including all intellectual property rights, in and to the JOBS Software and any portion thereof, including, without limitation, any copy of the JOBS Software (or any portion thereof) and any updates, modifications, or enhancements thereto, except as otherwise provided below. Licensee agrees to take any action reasonably requested by Licensor to assign, evidence, maintain, enforce or defend the foregoing. Licensee will not take any action to jeopardize, limit or interfere in any manner with Licensor’s ownership of and rights with respect to the JOBS Software. Licensee will have only those rights in or to the JOBS Software expressly granted to it in Section 2, and no other rights or licenses are granted to Licensee, by implication or otherwise, under this Agreement.
2.4. Exclusivity. Licensor agrees, represents and warrants that it will not, and has not effected the grant of any license or other right to any third party that would allow use of the JOBS Software or Funding Portal in a manner that could reasonably be expected to compete with Licensee’s intended use of the JOBS Software and Funding Portal as contemplated herein. Licensor also agrees, represents and warrants that it will not use, or permit the use of, the JOBS Software or Funding Portal in a manner that could reasonably be expected to compete with Licensee’s intended use of the JOBS Software or Funding Portal as contemplated herein.
| 3. | Support, Updates And Fees. |
3.1. The annual fee will be $380,000 per year payable quarterly beginning on August 15, 2022 and on the 15th day of each subsequent quarter (November 15, February 15,May 15 and August 15). The Parties acknowledge and agree that all fees due to Licensor prior to the Execution Date hereof, including for use of the JOBS Software and Third Party Tools, have been fully paid by Licensee. The annual fee includes the license fee, Licensee’s share of fees for any Third Party Tools arranged by Licensor and technical support. The annual fee may be adjusted on the mutual agreement of the Parties in connection with the renewal of this Agreement to take into account any change in annual fees for necessary Third Party Tools.
3.2. Licensor shall provide technical support sufficient to ensure the operability of the Website and Funding Portal for their intended purpose. In the event that the Website or Funding Portal are not operable on any day due to an issue with either the Website, the JOBS Software or the Third Party Tools, Licensee shall not be required to pay for such days and shall be entitled to a refund of any fee paid to Licensor, calculated on a prorated daily basis.
3.3. To the extent that Licensee may request additional technical support or software development work, such will be provided by Licensor subject to the parties executing a mutually agreeable agreement, including a statement of work ("SOW").
| 4. | Confidentiality. |
“Confidential Information” means all technical, business, client or proprietary information disclosed by a Party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, but is not limited to, information regarding the Disclosing Party’s business strategies and practices, methodologies, trade secrets, know-how, technology, software, product plans, services, relationships with any third party, client lists and information regarding the Disclosing Party’s employees, clients, vendors, consultants and affiliates. Confidential Information shall not, however, include any portion of information which the Receiving Party can demonstrate by documented evidence is: (i) or becomes known or available by publication, commercial use or otherwise, through no fault of the Receiving Party; (ii) known and has been reduced to tangible form by the Receiving Party at the time of disclosure by the Disclosing Party and is not subject to restriction; (iii) independently developed by an employee of the Receiving Party who neither had access to nor in any manner benefited from the Disclosing Party’s Confidential Information; (iv) lawfully obtained by the Receiving Party from a third party who has the right to make such disclosure to the Receiving Party; or (v) released, in writing, for public disclosure by the owner of the Confidential Information. The Receiving Party shall have the right to disclose Confidential Information of the other Party only pursuant to the order or requirement of a court, administrative agency, or other governmental body and only provided that the Receiving Party provides prompt, advance written notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure. In the event such a protective order is not obtained by the Disclosing Party, the Receiving Party shall disclose only that portion of the Confidential Information which its legal counsel advises that it is legally required to disclose. Confidential Information so disclosed shall continue to be deemed Confidential Information. If a Party breaches any of its obligations with respect to confidentiality or use or disclosure of Confidential Information hereunder, the other Party is entitled to obtain equitable and injunctive relief in addition to all other remedies that may be available to protect its interest. Upon the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy, at the Disclosing Party’s option, all tangible copies of the Disclosing Party’s Confidential Information.
Receiving Party will secure and protect the Confidential Information with at least the same degree of care that Receiving Party uses to protect its own confidential information of similar importance (and, in any event, with no less than a reasonable degree of care) to prevent the unauthorized use, dissemination or disclosure of such Confidential Information. Receiving Party will not disclose Confidential Information to any third party other than to its employees who have a bona fide “need to know” and have executed confidentiality agreements no less restrictive than the terms herein. Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations or exercise its rights under this Agreement.
| 5. | Indemnification. |
5.1. General Indemnification. Licensee and Licensor (“Indemnifying Party”) each agrees to and will, at its own cost and expense, indemnify, reimburse, defend and hold the other Party, its Affiliates, and their officers, directors, employees, agents and representatives (“Indemnified Parties”), harmless from and against any and all claims, demands, actions, damages (i.e., expenses, losses, personal injuries (including death), property damage of any kind by whomsoever owned and/or loss of or damage to data, information and other such intangibles), and other liabilities of any nature whatsoever including, without limitation, litigation expenses and reasonable attorney’s fees (“General Claims”) arising from, connected with or otherwise stemming directly or indirectly, from (i) any material breach by the Indemnifying Party of any representation, warranty or obligations under this Agreement or any SOW (including a breach of this Agreement’s Confidentiality Provision); (ii) the death of or injury to any individual or damage to property due to the gross negligence of the Indemnifying Party; or (iii) gross negligence and/or willful acts or omissions of the Indemnifying Party.
5.2. Infringement Indemnification. Licensor agrees to and will, at its own cost and expense, indemnify, reimburse, defend and hold Licensee and the Indemnified Parties harmless from and against any and all losses, liabilities, costs, expenses or damages, including reasonable attorneys’ fees, incurred by reason of any claim, allegation, demand, lawsuit, action or proceeding by a third party (“IP Claims”) alleging that the JOBS Software or any deliverables or services pursuant to an SOW; or the creation, reproduction, deployment or use of the JOBS Software or any deliverables or services based on an SOW, Licensor IP or any third party IP included therein (including use thereof in combination with other products that is either contemplated or intended by the parties or reasonably foreseeable based on the functionality of the JOBS Software, any deliverables or services pursuant to an SOW, Licensor IP or Third Party IP), infringes, violates or misappropriates the patent, copyright, trade secret, intellectual property or other protected or legal rights of any third party (each an “Infringing Deliverable” or an “Infringing Service” as appropriate.)
5.3. Disposition of Claims. The Indemnified Parties will notify the Indemnifying Party of General Claims and IP Claims (collectively, “Claims”) in a timely manner after receiving notice thereof. At the Indemnifying Party’s expense, the Indemnified Parties will exercise commercially reasonable efforts to cooperate with the Indemnifying Party in the defense or settlement of Claims. the Indemnifying Party will have the sole authority, at its expense, to defend, compromise, negotiate, settle or otherwise dispose of Claims; provided that it may not dispose of any such Claim in any manner, or enter into any settlement, in connection with which an admission, affirmative obligation (including without limitation any duty of performance or payment), or other adverse effect is imposed on/required of the Indemnified Parties, without the Indemnified Parties’ prior written consent.
5.4. Infringing Service or Deliverable. Without abrogating or otherwise limiting Licensor’s indemnity obligations set forth in this Section 5, or any other obligations of Licensor set forth in this Agreement, if an IP Claim has been or may be asserted against Licensor and/or Licensee due to an Infringing Service or Infringing Deliverable, Licensor must, at Licensor’s expense:
| 5.4.1. | procure the right for Licensee to continue using the Infringing Services and/or Infringing Deliverable; or |
| 5.4.2. | replace or modify the Infringing Deliverable to eliminate the alleged infringement while providing substantially equivalent quality and functionality; or |
| 5.4.3. | if the performance under subsections (5.4.1) and (5.4.2) are not possible, terminate that part of the agreement or any SOW specifically dependent on the Infringing Deliverables and/or Infringing Services and refund any prepaid fees on a pro rata basis. |
| 6. | Disclaimer of Warranties; Limitations of Liability. |
6.1. Disclaimer of Warranties. The JOBS Software is provided “as is,” with no warranties, express, statutory or implied, including warranties of merchantability, fitness for a particular purpose, title or non-infringement, and any warranties that may arise from usage of trade or course of dealing.
6.2. Limitation of Liability. To the fullest extent allowed by applicable law and notwithstanding any failure of essential purpose of any limited remedy or limitation of liability: (a) in no event will either party be liable for any lost profits, lost savings, business interruption, lost business information, or other special, indirect, incidental, exemplary, punitive or consequential damages arising out of or relating to this Agreement, even if the party has been advised of the possibility of such damages and (b) notwithstanding anything in this Agreement to the contrary, except for claims arising out of a party’s indemnification obligations under section 5 or confidentiality obligations under section 4, each party’s entire liability arising from or relating to this agreement or the subject hereof, under any legal theory (whether in contract, tort or otherwise), if any, will not exceed the fees paid by licensee under this agreement in the past 12 months.
| 7. | Termination. |
7.1. Term. Unless sooner terminated in accordance the termination provisions of this Agreement, the term of this Agreement will extend one year from the Execution Date and will renew for successive one year terms unless Licensee provides Licensor ninety day written notice prior to the end of the term of any extension thereof (“Term”).
7.2. Termination.
| 7.2.1. | Licensor may terminate this Agreement upon thirty days written notice in the event that Licensee fails to pay the license fee pursuant to the terms of this Agreement and such breach is not cured within thirty days. |
| 7.2.2. | Licensee may terminate this Agreement with thirty days written notice in the event that Licensor breaches any of the provisions of this Agreement and such breach is not cured within thirty days. |
7.3. Effect of Termination. Upon expiration or termination of this Agreement (i) all licenses granted to Licensee will immediately terminate and Licensee will immediately cease all use of and access to the JOBS Software, and (ii) each Party will return to the other Party or destroy (as directed by a Party), any Confidential Information. Sections 1, Definitions, 2.4, Use Restrictions, 2.5, Ownership, 2.6, Work Product, 4, Confidentiality, 5, Indemnification, 6.2, Limitation of Liability, 7.3, Effect of Termination, 8, Source Code Escrow, and 9, General, will survive any expiration or termination of this Agreement.
8. Deposit and License Modification
| 8.1. | Licensor Responsibilities |
| 8.1.1. | Licensor represents, warrants and covenants that: (i) it has previously deposited all proprietary technology, including the JOBS Software, related documentation, technical tools and other materials covered under this Agreement (“Deposit Material”) to Licensee’s account with GitHub; (ii) it will make any required updates to the Deposit Material solely on GitHub; (iii) it will ensure that a minimum of one (1) copy of Deposit Material is deposited in Licensee’s account with GitHub at all times; (iv) the Deposit Material is complete and includes all software and other necessary tools and documentation to build the JOBS Software and for Licensee to continue to operate the JOBS Software in its normal business operations; (v) Licensee will not modify or attempt to modify the Deposit Material in a manner that negates the value or operation thereof; (vi) Licensee will not disturb or attempt to disturb Licensee’s access to the Deposit Material. |
| 8.1.2. | To the extent that Licensor creates updates or modifications to the Jobs Software outside of Licensee’s account with GitHub, Licensor shall submit those updates to Licensee’s account with GitHub within thirty (30) days and simultaneously notify Licensee of this submission. |
| 8.1.3. | Licensor represents that it lawfully possesses all Deposit Material provided to Licensee under this Agreement and that any current or future Deposit Material liens or encumbrances will not prohibit, limit, or alter the rights and obligations of Licensee under this Agreement. Licensor warrants that with respect to the Deposit Material, Licensee’s proper administration of this Agreement, including the maintenance of the Deposit Material in Licensee’s account with GitHub, will not violate the rights of any third parties. |
| 8.1.4. | Upon request by Licensee for verification of the Deposit Material, Licensor shall promptly complete and return any questionnaire from Licensee and reasonably cooperate with Licensee by providing reasonable access to its technical personnel. |
| 8.1.5. | Upon request by Licensee, Licensor will perform an Entry Level Verification (“ELV”) of source code and other material that Licensor has submitted as Deposit Material. During the ELV, Licensor will demonstrate the completeness and functionality of the source code by compiling the code while being observed by Licensee at a mutually agreeable time. The ELV consists of three phases. Phase One – Licensee reviews the requirements for the build including hardware and tools, examination of the structure and attributes of the source code and relevant associated files submitted as Deposit Material. Phase Two - the Licensor will compile the source code into a working application while under observation by Licensee. Phase Three – Licensor and Licensee will verify that the build is successful and working as expected. If Licensee determines that the build was unsuccessful the test shall have been failed. Licensor’s inability to correct the failure within ten days shall be considered a breach of this Agreement. |
| 8.2. | License Modification |
| 8.2.1. | Modification Conditions. Licensor and Licensee agree that the modification of the license shall be based solely on one or more of the following conditions (defined as “Modification Conditions”): |
| 8.2.2. | (i) Licensor’s breach of this Agreement or other agreement between the Licensor and Licensee regulating the use of the Deposit Material covered under this Agreement; |
| 8.2.3. | (ii) Failure of the Licensor or any of its successors or assigns to function as a going concern or operate in the ordinary course; |
| 8.2.4. | (iii) Licensor or any of its successors or assigns makes a general assignment for the benefit of creditors, or admits in writing that it is unable to pay its debts as they mature; |
| 8.2.5. | (iv) Licensor is or becomes subject to voluntary or involuntary bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation, or similar proceedings are instituted by or against Licensor or all or any substantial part of Licensor’s property under any federal or state law; |
| 8.2.6. | (v) Licensor ceases to offer support and maintenance as set forth in Section 3 hereof for the version of the JOBS Software then in use by Licensee; and/or |
| 8.2.7. | (vi) Licensor otherwise refuses to or is unable to maintain the Website for any reason. |
| 8.2.8. | Upon occurrence of a Modification Condition, Licensor shall automatically grant and shall be deemed to have granted Licensee an irrevocable, worldwide, perpetual, royalty free, fully-transferable, fully paid-up license to use, access, copy, modify, install, enhance, compile, execute, publicly perform, distribute, display, and create derivative works of the Deposit Material in connection with the operation of the Funding Portal including the development of updates, patches, upgrades, enhancements and other modifications thereto including, without limitation, its permitted use and exploitation of the JOBS Software, and to authorize others to do any of the foregoing. Licensee shall be obligated to maintain the confidentiality of the Deposit Material in accordance with Section 4 of this Agreement. The foregoing license will survive termination or expiration of this Agreement for any reason. |
| 8.2.9. | Access to Depositor Personnel. Following the modification condition, Licensor will provide Licensee, at no cost, with access to Licensor’s technical personnel and programmers with sufficient skill to enable Licensee to exercise its rights hereunder, so that Licensee can use, modify or support the JOBS Software without any adverse consequences to its normal operations. |
9. General.
9.1. Submission to Jurisdiction. Each Party to this Agreement: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of New York, State of New York (and each appellate court located in the County of New York, State of New York) in connection with any such Legal Proceeding; (ii) agrees that each state and federal court located in the County of New York, State of New York shall be deemed to be a convenient forum; and (iii) agrees not to assert (by way of motion, as a defense or otherwise), in any such Legal Proceeding commenced in any state or federal court located in the County of New York, State of New York, any claim that such Party is not subject personally to the jurisdiction of such court, that such Legal Proceeding has been brought in an inconvenient forum, that the venue of such proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court. Each of the Parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient.
9.2. Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (i) on the date of delivery if delivered personally, (ii) if by facsimile, upon electronic confirmation of receipt by facsimile, provided that a copy of such notice or other communication is promptly mailed by registered or certified mail, return receipt requested, postage prepaid, following the transmission of such facsimile, and sent by email, with the subject line “Funding Portal Technology License Notice,” (iii) on the first (1st) business day following the date of dispatch if delivered utilizing a next-day service by a nationally recognized next-day courier or (iv) on the earlier of confirmed receipt or the fifth (5th) business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below:
If to Licensor:
Jason Frishman, President
jason@netcapital.com
If to Licensee:
Paul Riss, Chief Compliance Officer
paul@netcapital.com
with a copy (which shall not constitute notice) to:
Cecilia Lenk, CEO Netcapital Inc.
cecilia.lenk@netcapital.com
or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
9.3. Amendments and Modification; Waivers.
| 9.3.1. | This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed by each of the Parties. |
| 9.3.2. | No failure or delay of a Party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder. Any agreement on the part of any Party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by such Party. |
9.4. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect, so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible, in a mutually acceptable manner, in order that the transactions contemplated by this Agreement shall be consummated as originally contemplated to the fullest extent possible.
9.5. Entire Agreement; Assignment; Successors. This Agreement (i) constitutes the entire agreement among the Parties hereto with respect to the subject matter hereof and supersedes all other prior and contemporaneous agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and (ii) may not be assigned by operation of law or otherwise without the written consent of the other Party; provided, however, that either Party may assign any or all of its rights and obligations under this Agreement to (1) any direct or indirect wholly owned subsidiary of the Party, and (2) any successor of the assets or business to which this Agreement relates, but no such assignment shall relieve a Party of its obligations hereunder if such assignee does not perform such obligations. Any purported assignment of this Agreement in contravention of this Section shall be null and void and of no force or effect. Subject to the preceding sentences of this Section, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns.
9.6. No Third-Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of each Party hereto and its successors and permitted assigns and nothing in this Agreement is intended to or shall confer upon any other Person any legal or equitable rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement.
9.7. Attorneys’ Fees. In the event a Legal Proceeding is brought to enforce or interpret any provision of this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees and costs in an amount to be fixed by the court.
9.8. Governing Law. This Agreement shall be deemed to be made and in all respects shall be interpreted, construed and governed by and in accordance with the laws of the State of New York without regard to the conflicts of laws principles thereof.
9.9. Interpretation; Article and Section References. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. All references in this Agreement to Articles, Sections and Exhibits are references to Articles, Sections and Exhibits, respectively, in and to this Agreement, unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. The words “include” or “including” mean “include, without limitation,” or “including, without limitation,” as the case may be, and the language following “include” or “including” shall not be deemed to set forth an exhaustive list. The word “or” shall not be limiting or exclusive. References to days are to calendar days; provided that any action otherwise required to be taken on a day that is not a business day shall instead be take on the next business day. Unless otherwise specifically provided or the context otherwise requires, all references in this Agreement to Licensee mean and shall refer to Licensee and its successors, assigns and (if applicable) predecessors-in-interest. As used in this Agreement, the singular or plural number shall be deemed to include the other whenever the context so requires. Any capitalized terms used in any Exhibit but not otherwise defined therein shall have the meaning as defined in this Agreement. All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth herein.
9.10. Counterparts; Electronic Signature. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement. This Agreement may be executed by facsimile or electronic (.pdf) signature and a facsimile or electronic (.pdf) signature shall constitute an original for all purposes.
9.11. Captions. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.
9.12. Specific Performance. Each Party hereby acknowledges and agrees that it may cause irreparable injury to the other Party if any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached, for which damages, even if available, may not be an adequate remedy. Accordingly, each Party agrees that the other Party shall have the right to seek injunctive relief by any court of competent jurisdiction to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any Legal Proceeding, in addition to any other remedy to which it may be entitled, at law or in equity.
9.13. Fees and Expenses. Except as otherwise provided herein, all fees and expenses incurred in connection with or related to this Agreement shall be paid by the Party incurring such fees or expenses; provided, that in the event of termination of this Agreement, the obligation of each Party to pay its own expenses will be subject to any rights of such Party arising from a breach of this Agreement by any other Party.
9.14. No Presumption Against Drafting Party. The Parties agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any laws or rule of construction providing that ambiguities in an agreement or other document will be construed against the Party drafting such agreement or document.
9.15. No Partnership. The relationship between the Parties is that of independent contractors and nothing in this Agreement shall constitute a partnership between Licensor and Licensee.
Signatures on the following page
IN WITNESS WHEREOF, Licensor and Licensee have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.
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Netcapital systems llc a Delaware limited liability company
By: /s/ Jason Frishman Name: Jason Frishman Title: President
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Netcapital Funding Portal Inc. a Delaware corporation
By: /s/Paul Riss Name: Paul Riss Title: CCO
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Exhibit 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of June 23, 2022 (the “Effective Date”) by and between NETCAPITAL INC., a Utah corporation (the “Company”), and CECILIA LENK, an individual having an address at 81 Boyd Street, Watertown, MA 02472 (the “Employee”).
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee as President and Chief Executive Officer of the Company and wishes to acquire and be assured of Employee’s services on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee desires to be employed by the Company and to perform and to serve the Company on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual terms, covenants, agreements and conditions hereinafter set forth, the Company and the Employee hereby agree as follows:
1. Employment. (a) The Company hereby employs the Employee to serve as a full-time employee of the Company, and the Employee hereby accepts such employment with the Company, for the period set forth in Section 2 hereof. The Employee’s principal place of employment shall be at the offices at 1 Lincoln Street, Boston MA, 02111, or such other location as determined by the Company, provided however, that the Employee’s principal place of employment shall not be relocated more than 25 miles from its current location without the prior written consent of the Employee.
(b) The Employee affirms and represents that (i) the Employee is under no obligation to any former employer or other party that is in any way inconsistent with, or that imposes any restriction upon, the Employee’s acceptance of employment hereunder with the Company, the employment of the Employee by the Company, or the Employee’s undertakings under this Agreement and (ii) her performance of all the terms of this Agreement and her employment by the Company does not and will not breach any agreement to keep in confidence proprietary information acquired by her in confidence or in trust prior to her employment by the Company.
2. Term. Unless earlier terminated as provided in this Agreement, the term of the Employee’s employment under this Agreement shall be for a three year period beginning on the date hereof and ending on the three year anniversary of the Effective Date (the “Employment Term”).
3. Duties.
(a) The Employee shall be employed as President and Chief Executive Officer and shall perform such employment duties as are usual and customary for such position. The Employee shall faithfully and competently perform such duties at such times and places and in such manner as the Company may from time to time reasonably direct or such other duties appropriate to a senior executive managerial position as the Board of Directors of the Company shall from time to time determine.
(b) The Employee shall use her best efforts, judgment and energy to improve and advance the business and interests of the Company and its Affiliates in a manner consistent with the duties of Employee’s position.
4. Salary and Bonus.
(a) Base Salary. In consideration for the services of the Employee rendered hereunder, the Company shall pay the Employee a base salary (the “Base Salary”) at an annual rate of $96,000 during the Employment Term, plus additional compensation of $54,000 per annum upon the completion of the Company’s next public offering.
(b) Bonus. Employee shall be eligible for periodic bonuses throughout the year, or for additional salary in excess of the Base Salary, in each case, as may be granted by the Board of Directors or its Compensation Committee.
(c) Withholding, Etc. The payment of any salary or bonus hereunder shall be subject to income tax, social security and other applicable withholdings, as well as such deductions as may be required under the Company’s employee benefit plans.
5. Benefits. (a) During the Employment Term, the Employee shall be:
(i) eligible to participate in all employee fringe benefits and any pension and/or profit sharing plans that may be provided by the Company for its key executive employees in accordance with the provisions of any such plans, as the same may be in effect on and after the date hereof;
(ii) eligible to participate in any medical and health plans or other employee welfare benefit plans that may be provided by the Company for its key executive employees in accordance with the provisions of any such plans, as the same may be in effect on and after the date hereof;
(iii) entitled to sick leave, sick pay and disability benefits in accordance with any Company policy that may be applicable on and after the date hereof to key executive employees; and
(iv) entitled to reimbursement for all reasonable and necessary out-of-pocket business expenses incurred by the Employee in the performance of the Employee’s duties hereunder in accordance with the Company’s policies applicable (on and after the date hereof) thereto.
(b) Employee shall cooperate with the Company in the event the Company wishes to obtain key-woman insurance on the Employee. Such cooperation shall include, but not be limited to taking any physical examinations that may be requested by the insurance company.
6. Inventions and Confidential Information. The Employee hereby covenants, agrees and acknowledges as follows:
(a) The Company is engaged in a continuous program of research, design, development, production, marketing and servicing with respect to its businesses.
(b) The Employee’s employment hereunder creates a relationship of confidence and trust between the Employee and the Company with respect to certain information pertaining to the business of the Company and its Affiliates (as hereinafter defined) or pertaining to the business of any client or customer of the Company or its Affiliates which may be made known to the Employee by the Company or any of its Affiliates or by any client or customer of the Company or any of its Affiliates or learned by the Employee during the period of Employee’s employment by the Company.
(c) The Company possesses and will continue to possess information that has been created, discovered or developed by, or otherwise become known to it (including, without limitation, information created, discovered or developed by, or made known to, the Employee during the period of Employee’s employment or arising out of Employee’s employment) or in which property rights have been or may be assigned or otherwise conveyed to the Company, which information has commercial value in the business in which the Company is engaged and is treated by the Company as confidential.
(d) Any and all inventions, products, discoveries, improvements, processes, manufacturing, marketing and services methods or techniques, formulae, designs, styles, specifications, data bases, computer programs (whether in source code or object code), know-how, strategies and data, whether or not patentable or registrable under copyright or similar statutes, made, developed or created by the Employee (whether at the request or suggestion of the Company, any of its Affiliates, or otherwise, whether alone or in conjunction with others, and whether during regular hours of work or otherwise) during the period of Employee’s employment by the Company which may pertain to the business, products, or processes of the Company or any of its Affiliates (collectively hereinafter referred to as “Inventions”), will be promptly and fully disclosed by the Employee to an appropriate executive officer of the Company (other than the Employee) without any additional compensation therefor, all papers, drawings, models, data, documents and other material pertaining to or in any way relating to any Inventions made, developed or created by Employee as aforesaid. For the purposes of this Agreement, the term “Affiliate” or “Affiliates” shall mean any person, corporation or other entity directly or indirectly controlling or controlled by or under direct or indirect common control with the Company. For the purposes of this definition, “control” when used with respect to any person, corporation or other entity means the power to direct the management and policies of such person or entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
(e) The Employee will keep confidential and will hold for the Company’s sole benefit any Invention which is to be the exclusive property of the Company under this Section 6 for which no patent, copyright, trademark or other right or protection is issued.
(f) The Employee also agrees that the Employee will not without the prior written consent of the Board of Directors of the Company (i) use for Employee’s benefit or disclose at any time during Employee’s employment by the Company, or thereafter, except to the extent required by the performance by the Employee of the Employee’s duties as an employee of the Company, any information obtained or developed by Employee while in the employ of the Company with respect to any Inventions or with respect to any customers, clients, suppliers, products, employees, financial affairs, or methods of design, distribution, marketing, service, procurement or manufacture of the Company or any of its Affiliates, or any confidential matter, except information which at the time is generally known to the public other than as a result of disclosure by the Employee not permitted hereunder, or (ii) take with the Employee upon leaving the employ of the Company any document or paper relating to any of the foregoing or any physical property of the Company or any of its Affiliates.
(g) The Employee acknowledges and agrees that a remedy at law for any breach or threatened breach of the provisions of this Section 6 would be inadequate and, therefore, agrees that the Company and its Affiliates shall be entitled to injunctive relief in addition to any other available rights and remedies in case of any such breach or threatened breach; provided, however, that nothing contained herein shall be construed as prohibiting the Company or any of its Affiliates from pursuing any other rights and remedies available for any such breach or threatened breach.
(h) The Employee agrees that upon termination of Employee’s employment by the Company for any reason, the Employee shall immediately return to the Company all documents, records and other property in Employee’s possession belonging to the Company or any of its Affiliates.
(i) Without limiting the generality of Section 9 hereof, the Employee hereby expressly agrees that the foregoing provisions of this Section 6 shall be binding upon the Employee’s heirs, successors and legal representatives.
7. Termination. (a) The Employee’s employment hereunder shall be terminated upon the occurrence of any of the following:
(i) death of the Employee;
(ii) termination of the Employee’s employment hereunder by the Employee at any time for any reason whatsoever (including, without limitation, resignation or retirement) other than for “good reason” as contemplated by clause (v)(B) below;
(iii) termination of the Employee’s employment hereunder by the Company because of the Employee’s inability to perform Employee’s duties on account of disability or incapacity for a period of ninety (90) or more days, whether or not consecutive, occurring within any period of twelve (12) consecutive months;
(iv) termination of the Employee’s employment hereunder by the Company at any time for “cause” (as hereinafter defined), such termination to take effect immediately upon written notice from the Company to the Employee; and
(v) termination of the Employee’s employment hereunder (A) by the Company at any time, other than termination by reason of disability or incapacity as contemplated by clause (iii) above or termination by the Company for “cause” as contemplated by clause (iv) above and (B) by the Employee for “good reason” (as hereinafter defined).
The following actions, failures or events shall constitute “cause” for termination within the meaning of clause (iv) above: (i) the Employee’s conviction of, admission of guilt to or plea of nolo contendere or similar plea (which, through lapse of time or otherwise, is not subject to appeal) with respect to any crime or offense that constitutes a felony in the jurisdiction involved; (2) acts of dishonesty or moral turpitude which are materially detrimental to the Company and/or its Affiliates; (3) failure by the Employee to obey the reasonable and lawful orders of the Board of Directors of the Company following written notice of such failure from the Board of Directors of the Company; (4) any act by the Employee in violation of Section 8 hereof, any statement or disclosure by the Employee in violation of Section 6 hereof, or any material breach by the Employee of a representation or warranty contained in Section 1(b) hereof; (5) following written notice from the Board of Directors of the Company of prior similar actions by Employee, excessive absenteeism (other than by reason of disability); (6) following written notice from the Board or Directors of the Company of prior similar actions by Employee, excessive alcoholism or addiction to drugs not prescribed by a qualified physician or (7) gross negligence by the Employee in the performance of, or willful disregard by the Employee of, the Employee’s obligations hereunder.
The following actions, failures or events shall constitute “good reason” within the meaning of clause (V)(B) above: a material breach by the Company of its obligations under this Agreement or a Change of Control. For purposes of this Agreement, “Change of Control” means (i) a transaction or series of related transactions in which any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of more than 50% of the outstanding voting securities of the Company having the right to vote for the election of members of the Company’s board of directors, (ii) any reorganization, merger or consolidation of the Company, other than a transaction or series of related transactions in which the holders of the voting securities of the Company outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Company or such other surviving or resulting entity or (iii) a sale, lease or other disposition of all or substantially all of the assets of the Company
(a) In the event that the Employee’s employment is terminated by the Company for any reason other than “cause” or by Employee for “good reason,” then the Company shall have no claims to the 20,000 shares of common stock underlying the stock option grant (and all unvested options under such grant shall immediately and fully vest) issued to the Employee in February 2022 (the “Stock Option Grant”), and the Company agrees to not hinder and to cooperate with the Employee in exercising the Stock Option Grant and depositing those shares in a brokerage account, or selling those shares to a third party.
(b) In the event Employee resigns, without “good reason,” or retires before all of the stock options from the Stock Option Grant are fully vested, the vested portion of the Stock Option Grant shall remain vested and may be exercised for shares of the company’s common stock in accordance with its terms and unvested portion shares shall not vest and will be immediately forfeited effective as of the date of such resignation or retirement.
(c) No interest shall accrue on or be paid with respect to any portion of any payments hereunder.
8. Non-Competition. (a) The term “Non-Compete Term” shall mean the period during which Employee is employed hereunder and the six month period following the termination of Employee’s employment for any or no reason whatsoever, with or without cause.
During the Non-Compete Term:
(i) the Employee will not make any statement or perform any act intended to advance an interest of any existing or prospective competitor of the Company or any of its Affiliates in any way that will or may injure an interest of the Company or any of its Affiliates in its relationship and dealings with existing or potential customers or clients, or solicit or encourage any other employee of the Company or any of its Affiliates to do any act that is disloyal to the Company or any of its Affiliates or inconsistent with the interest of the Company or any of its Affiliate’s interests or in violation of any provision of this Agreement;
(ii) the Employee will not discuss with any existing or potential customers or clients of the Company or any of its Affiliates the present or future availability of services or products of a business, if the Employee has or expects to acquire a proprietary interest in such business or is or expects to be an employee, officer or director of such business, where such services or products are competitive with services or products which the Company or any of its Affiliates provides;
(iii) the Employee will not make any statement or do any act intended to cause any existing or potential customers or clients of the Company or any of its Affiliates to make use of the services or purchase the products of any competitive business in which the Employee has or expects to acquire a proprietary interest or in which the Employee is or expects to be made an employee, officer or director, if such services or products in any way compete with the services or products sold or provided or expected to be sold or provided by the Company or any of its Affiliates to any existing or potential customer or client; and
(iv) the Employee will not directly or indirectly (as a director, officer, employee, manager, consultant, independent contractor, advisor or otherwise) engage in competition with, or own any interest in, perform any services for, participate in or be connected with (i) any business or organization which engages in competition with the Company or any of its Affiliates in any geographical area where any business is presently carried on by the Company or any of its Affiliates, or (ii) any business or organization which engages in competition with the Company or any of its Affiliates in any geographical area where any business shall be hereafter, during the period of the Employee’s employment by the Company, carried on by the Company or any of its Affiliates, if such business is then being carried on by the Company or any of its Affiliates in such geographical area; provided, however, that the provisions of this Section 8(a) shall not be deemed to prohibit the Employee’s ownership of not more than one percent (1%) of the total shares of all classes of stock outstanding of any publicly held company.
(b) During the Non-Compete Term, the Employee will not directly or indirectly hire, engage, send any work to, place orders with, or in any manner be associated with any supplier, contractor, subcontractor or other person or firm which rendered manufacturing or other services, or sold any products, to the Company or any of its Affiliates if such action by Employee would have a material adverse effect on the business, assets or financial condition of the Company or any of its Affiliates.
(c) In connection with the foregoing provisions of this Section 8, the Employee represents that Employee’s experience, capabilities and circumstances are such that such provisions will not prevent Employee from earning a livelihood. The Employee further agrees that the limitations set forth in this Section 8 (including, without limitation, any time or territorial limitations) are reasonable and properly required for the adequate protection of the businesses of the Company and its Affiliates. It is understood and agreed that the covenants made by the Employee in this Section 8 (and in Section 6 hereof) shall survive the expiration or termination of this Agreement.
(d) For purposes of this Section 8, proprietary interest in a business is ownership, whether through direct or indirect stock holdings or otherwise, of one percent (1%) or more of such business. The Employee shall be deemed to expect to acquire a proprietary interest in a business or to be made an officer or director of such business if such possibility has been discussed with any officer, director, employee, agent, or promoter of such business.
(e) The Employee acknowledges and agrees that a remedy at law for any breach or threatened breach of the provisions of this Section 8 would be inadequate and, therefore, agrees that the Company and any of its Affiliates shall be entitled to injunctive relief in addition to any other available rights and remedies in cases of any such breach or threatened breach; provided, however, that nothing contained herein shall be construed as prohibiting the Company or any of its Affiliates from pursuing any other rights and remedies available for any such breach or threatened breach.
9. Non-Assignability. (a) Neither this Agreement nor any right or interest hereunder shall be assignable by the Employee, Employee’s beneficiaries, or legal representatives without the Company’s prior written consent; provided, however, that nothing in this Section 9(a) shall preclude the Employee from designating a beneficiary to receive any benefit payable hereunder upon Employee’s death or incapacity.
(b) Except as required by law, no right to receive payments under this Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or to exclusion, attachment, levy or similar process or assignment by operation of law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void and of no effect.
10. Binding Effect. Without limiting or diminishing the effect of Section 9 hereof, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, legal representatives and assigns.
11. Notice. Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and either delivered in person or sent by first class certified or registered mail, postage prepaid, if to the Company, at the Company’s principal place of business, and if to the Employee, at Employee’s home address, or, in the case of either party, to such other address or addresses as such party shall have designated in writing to the other party hereto.
12. Severability. The Employee agrees that in the event that any court of competent jurisdiction shall finally hold that any provision of Section 6 or 8 hereof is void or constitutes an unreasonable restriction against the Employee, such provision shall not be rendered void but shall apply with respect to such extent as such court may judicially determine constitutes a reasonable restriction under the circumstances. If any part of this Agreement other than Section 6 or 8 is held by a court of competent jurisdiction to be invalid, illegible or incapable of being enforced in whole or in part by reason of any rule of law or public policy, such part shall be deemed to be severed from the remainder of this Agreement for the purpose only of the particular legal proceedings in question and all other covenants and provisions of this Agreement shall in every other respect continue in full force and effect and no covenant or provision shall be deemed dependent upon any other covenant or provision.
13. Waiver. Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.
14. Entire Agreement; Modifications. This Agreement constitutes the entire and final expression of the agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, between the parties hereto with respect to the subject matter hereof. This Agreement may be modified or amended only by an instrument in writing signed by both parties hereto.
15. Relevant Law. This Agreement shall be construed and enforced in accordance with the internal laws of the Commonwealthof Massachusetts without regard to the conflicts of law principles thereof.
16. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
17. Survival. The termination of Employee’s employment hereunder shall not affect the enforceability of Sections 6 or 8.
18. Further Assurances. The parties agree to execute and deliver all such further instruments and take such other and further action as may be reasonably necessary or appropriate to carry out the provisions of this Agreement.
19. Headings. The Section headings appearing in this Agreement are for purposes of easy reference and shall not be considered a part of this Agreement or in any way modify, amend or affect its provisions.
IN WITNESS WHEREOF, the Company and the Employee have duly executed and delivered this Agreement as of the day and year first above written.
NETCAPITAL INC.
By_/s/ Coreen Kraysler_
Name: COREEN KRAYSLER
Title: Chief Financial Officer
CECILIA LENK
/s/ Cecilia Lenk
Exhibit 10.3
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of June 23, 2022 (the “Effective Date”) by and between NETCAPITAL INC., a Utah corporation (the “Company”), and COREEN KRAYSLER, an individual having an address at 2 Summit Ave. Hull, MA 02045. (the “Employee”).
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee as Chief Financial Officer of the Company and wishes to acquire and be assured of Employee’s services on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee desires to be employed by the Company and to perform and to serve the Company on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual terms, covenants, agreements and conditions hereinafter set forth, the Company and the Employee hereby agree as follows:
1. Employment. (a) The Company hereby employs the Employee to serve as a full-time employee of the Company, and the Employee hereby accepts such employment with the Company, for the period set forth in Section 2 hereof. The Employee’s principal place of employment shall be at the offices at 1 Lincoln Street, Boston MA, 02111, or such other location as determined by the Company, provided however, that the Employee’s principal place of employment shall not be relocated more than 25 miles from its current location without the prior written consent of the Employee.
(b) The Employee affirms and represents that (i) the Employee is under no obligation to any former employer or other party that is in any way inconsistent with, or that imposes any restriction upon, the Employee’s acceptance of employment hereunder with the Company, the employment of the Employee by the Company, or the Employee’s undertakings under this Agreement and (ii) her performance of all the terms of this Agreement and her employment by the Company does not and will not breach any agreement to keep in confidence proprietary information acquired by her in confidence or in trust prior to her employment by the Company.
2. Term. Unless earlier terminated as provided in this Agreement, the term of the Employee’s employment under this Agreement shall be for a three year period beginning on the date hereof and ending on the three year anniversary of the Effective Date (the “Employment Term”).
3. Duties.
(a) The Employee shall be employed as Chief Financial Officer and shall perform such employment duties as are usual and customary for such position. The Employee shall faithfully and competently perform such duties at such times and places and in such manner as the Company may from time to time reasonably direct or such other duties appropriate to a senior executive managerial position as the Board of Directors of the Company shall from time to time determine.
(b) The Employee shall use her best efforts, judgment and energy to improve and advance the business and interests of the Company and its Affiliates in a manner consistent with the duties of Employee’s position.
4. Salary and Bonus.
(a) Base Salary. In consideration for the services of the Employee rendered hereunder, the Company shall pay the Employee a base salary (the “Base Salary”) at an annual rate of $96,000 during the Employment Term, plus additional compensation of $54,000 per annum upon the completion of the Company’s next public offering.
(b) Bonus. Employee shall be eligible for periodic bonuses throughout the year, or for additional salary in excess of the Base Salary, in each case, as may be granted by the Board of Directors or its Compensation Committee.
(c) Withholding, Etc. The payment of any salary or bonus hereunder shall be subject to income tax, social security and other applicable withholdings, as well as such deductions as may be required under the Company’s employee benefit plans.
5. Benefits. (a) During the Employment Term, the Employee shall be:
(i) eligible to participate in all employee fringe benefits and any pension and/or profit sharing plans that may be provided by the Company for its key executive employees in accordance with the provisions of any such plans, as the same may be in effect on and after the date hereof;
(ii) eligible to participate in any medical and health plans or other employee welfare benefit plans that may be provided by the Company for its key executive employees in accordance with the provisions of any such plans, as the same may be in effect on and after the date hereof;
(iii) entitled to sick leave, sick pay and disability benefits in accordance with any Company policy that may be applicable on and after the date hereof to key executive employees; and
(iv) entitled to reimbursement for all reasonable and necessary out-of-pocket business expenses incurred by the Employee in the performance of the Employee’s duties hereunder in accordance with the Company’s policies applicable (on and after the date hereof) thereto.
(b) Employee shall cooperate with the Company in the event the Company wishes to obtain key-woman insurance on the Employee. Such cooperation shall include, but not be limited to taking any physical examinations that may be requested by the insurance company.
6. Inventions and Confidential Information. The Employee hereby covenants, agrees and acknowledges as follows:
(a) The Company is engaged in a continuous program of research, design, development, production, marketing and servicing with respect to its businesses.
(b) The Employee’s employment hereunder creates a relationship of confidence and trust between the Employee and the Company with respect to certain information pertaining to the business of the Company and its Affiliates (as hereinafter defined) or pertaining to the business of any client or customer of the Company or its Affiliates which may be made known to the Employee by the Company or any of its Affiliates or by any client or customer of the Company or any of its Affiliates or learned by the Employee during the period of Employee’s employment by the Company.
(c) The Company possesses and will continue to possess information that has been created, discovered or developed by, or otherwise become known to it (including, without limitation, information created, discovered or developed by, or made known to, the Employee during the period of Employee’s employment or arising out of Employee’s employment) or in which property rights have been or may be assigned or otherwise conveyed to the Company, which information has commercial value in the business in which the Company is engaged and is treated by the Company as confidential.
(d) Any and all inventions, products, discoveries, improvements, processes, manufacturing, marketing and services methods or techniques, formulae, designs, styles, specifications, data bases, computer programs (whether in source code or object code), know-how, strategies and data, whether or not patentable or registrable under copyright or similar statutes, made, developed or created by the Employee (whether at the request or suggestion of the Company, any of its Affiliates, or otherwise, whether alone or in conjunction with others, and whether during regular hours of work or otherwise) during the period of Employee’s employment by the Company which may pertain to the business, products, or processes of the Company or any of its Affiliates (collectively hereinafter referred to as “Inventions”), will be promptly and fully disclosed by the Employee to an appropriate executive officer of the Company (other than the Employee) without any additional compensation therefor, all papers, drawings, models, data, documents and other material pertaining to or in any way relating to any Inventions made, developed or created by Employee as aforesaid. For the purposes of this Agreement, the term “Affiliate” or “Affiliates” shall mean any person, corporation or other entity directly or indirectly controlling or controlled by or under direct or indirect common control with the Company. For the purposes of this definition, “control” when used with respect to any person, corporation or other entity means the power to direct the management and policies of such person or entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
(e) The Employee will keep confidential and will hold for the Company’s sole benefit any Invention which is to be the exclusive property of the Company under this Section 6 for which no patent, copyright, trademark or other right or protection is issued.
(f) The Employee also agrees that the Employee will not without the prior written consent of the Board of Directors of the Company (i) use for Employee’s benefit or disclose at any time during Employee’s employment by the Company, or thereafter, except to the extent required by the performance by the Employee of the Employee’s duties as an employee of the Company, any information obtained or developed by Employee while in the employ of the Company with respect to any Inventions or with respect to any customers, clients, suppliers, products, employees, financial affairs, or methods of design, distribution, marketing, service, procurement or manufacture of the Company or any of its Affiliates, or any confidential matter, except information which at the time is generally known to the public other than as a result of disclosure by the Employee not permitted hereunder, or (ii) take with the Employee upon leaving the employ of the Company any document or paper relating to any of the foregoing or any physical property of the Company or any of its Affiliates.
(g) The Employee acknowledges and agrees that a remedy at law for any breach or threatened breach of the provisions of this Section 6 would be inadequate and, therefore, agrees that the Company and its Affiliates shall be entitled to injunctive relief in addition to any other available rights and remedies in case of any such breach or threatened breach; provided, however, that nothing contained herein shall be construed as prohibiting the Company or any of its Affiliates from pursuing any other rights and remedies available for any such breach or threatened breach.
(h) The Employee agrees that upon termination of Employee’s employment by the Company for any reason, the Employee shall immediately return to the Company all documents, records and other property in Employee’s possession belonging to the Company or any of its Affiliates.
(i) Without limiting the generality of Section 9 hereof, the Employee hereby expressly agrees that the foregoing provisions of this Section 6 shall be binding upon the Employee’s heirs, successors and legal representatives.
7. Termination. (a) The Employee’s employment hereunder shall be terminated upon the occurrence of any of the following:
(i) death of the Employee;
(ii) termination of the Employee’s employment hereunder by the Employee at any time for any reason whatsoever (including, without limitation, resignation or retirement) other than for “good reason” as contemplated by clause (v)(B) below;
(iii) termination of the Employee’s employment hereunder by the Company because of the Employee’s inability to perform Employee’s duties on account of disability or incapacity for a period of ninety (90) or more days, whether or not consecutive, occurring within any period of twelve (12) consecutive months;
(iv) termination of the Employee’s employment hereunder by the Company at any time for “cause” (as hereinafter defined), such termination to take effect immediately upon written notice from the Company to the Employee; and
(v) termination of the Employee’s employment hereunder (A) by the Company at any time, other than termination by reason of disability or incapacity as contemplated by clause (iii) above or termination by the Company for “cause” as contemplated by clause (iv) above and (B) by the Employee for “good reason” (as hereinafter defined).
The following actions, failures or events shall constitute “cause” for termination within the meaning of clause (iv) above: (i) the Employee’s conviction of, admission of guilt to or plea of nolo contendere or similar plea (which, through lapse of time or otherwise, is not subject to appeal) with respect to any crime or offense that constitutes a felony in the jurisdiction involved; (2) acts of dishonesty or moral turpitude which are materially detrimental to the Company and/or its Affiliates; (3) failure by the Employee to obey the reasonable and lawful orders of the Board of Directors of the Company following written notice of such failure from the Board of Directors of the Company; (4) any act by the Employee in violation of Section 8 hereof, any statement or disclosure by the Employee in violation of Section 6 hereof, or any material breach by the Employee of a representation or warranty contained in Section 1(b) hereof; (5) following written notice from the Board of Directors of the Company of prior similar actions by Employee, excessive absenteeism (other than by reason of disability); (6) following written notice from the Board or Directors of the Company of prior similar actions by Employee, excessive alcoholism or addiction to drugs not prescribed by a qualified physician or (7) gross negligence by the Employee in the performance of, or willful disregard by the Employee of, the Employee’s obligations hereunder.
The following actions, failures or events shall constitute “good reason” within the meaning of clause (V)(B) above: a material breach by the Company of its obligations under this Agreement or a Change of Control. For purposes of this Agreement, “Change of Control” means (i) a transaction or series of related transactions in which any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of more than 50% of the outstanding voting securities of the Company having the right to vote for the election of members of the Company’s board of directors, (ii) any reorganization, merger or consolidation of the Company, other than a transaction or series of related transactions in which the holders of the voting securities of the Company outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Company or such other surviving or resulting entity or (iii) a sale, lease or other disposition of all or substantially all of the assets of the Company.
(a) In the event that the Employee’s employment is terminated by the Company for any reason other than “cause” or by Employee for “good reason,” then the Company shall have no claims to the 20,000 shares of common stock underlying the stock option grant (and all unvested options under such grant shall immediately and fully vest) issued to the Employee in February 2022 (the “Stock Option Grant”), and the Company agrees to not hinder and to cooperate with the Employee in exercising the Stock Option Grant and depositing those shares in a brokerage account, or selling those shares to a third party.
(b) In the event Employee resigns, without “good reason,” or retires before all of the stock options from the Stock Option Grant are fully vested, the vested portion of the Stock Option Grant shall remain vested and may be exercised for shares of the company’s common stock in accordance with its terms and unvested portion shall not vest and will be immediately forfeited effective as of the date of such resignation or retirement.
(c) No interest shall accrue on or be paid with respect to any portion of any payments hereunder.
8. Non-Competition. (a) The term “Non-Compete Term” shall mean the period during which Employee is employed hereunder and the six-month period following the termination of Employee’s employment for any or no reason whatsoever, with or without cause.
During the Non-Compete Term:
(i) the Employee will not make any statement or perform any act intended to advance an interest of any existing or prospective competitor of the Company or any of its Affiliates in any way that will or may injure an interest of the Company or any of its Affiliates in its relationship and dealings with existing or potential customers or clients, or solicit or encourage any other employee of the Company or any of its Affiliates to do any act that is disloyal to the Company or any of its Affiliates or inconsistent with the interest of the Company or any of its Affiliate’s interests or in violation of any provision of this Agreement;
(ii) the Employee will not discuss with any existing or potential customers or clients of the Company or any of its Affiliates the present or future availability of services or products of a business, if the Employee has or expects to acquire a proprietary interest in such business or is or expects to be an employee, officer or director of such business, where such services or products are competitive with services or products which the Company or any of its Affiliates provides;
(iii) the Employee will not make any statement or do any act intended to cause any existing or potential customers or clients of the Company or any of its Affiliates to make use of the services or purchase the products of any competitive business in which the Employee has or expects to acquire a proprietary interest or in which the Employee is or expects to be made an employee, officer or director, if such services or products in any way compete with the services or products sold or provided or expected to be sold or provided by the Company or any of its Affiliates to any existing or potential customer or client; and
(iv) the Employee will not directly or indirectly (as a director, officer, employee, manager, consultant, independent contractor, advisor or otherwise) engage in competition with, or own any interest in, perform any services for, participate in or be connected with (i) any business or organization which engages in competition with the Company or any of its Affiliates in any geographical area where any business is presently carried on by the Company or any of its Affiliates, or (ii) any business or organization which engages in competition with the Company or any of its Affiliates in any geographical area where any business shall be hereafter, during the period of the Employee’s employment by the Company, carried on by the Company or any of its Affiliates, if such business is then being carried on by the Company or any of its Affiliates in such geographical area; provided, however, that the provisions of this Section 8(a) shall not be deemed to prohibit the Employee’s ownership of not more than one percent (1%) of the total shares of all classes of stock outstanding of any publicly held company.
(b) During the Non-Compete Term, the Employee will not directly or indirectly hire, engage, send any work to, place orders with, or in any manner be associated with any supplier, contractor, subcontractor or other person or firm which rendered manufacturing or other services, or sold any products, to the Company or any of its Affiliates if such action by Employee would have a material adverse effect on the business, assets or financial condition of the Company or any of its Affiliates.
(c) In connection with the foregoing provisions of this Section 8, the Employee represents that Employee’s experience, capabilities and circumstances are such that such provisions will not prevent Employee from earning a livelihood. The Employee further agrees that the limitations set forth in this Section 8 (including, without limitation, any time or territorial limitations) are reasonable and properly required for the adequate protection of the businesses of the Company and its Affiliates. It is understood and agreed that the covenants made by the Employee in this Section 8 (and in Section 6 hereof) shall survive the expiration or termination of this Agreement.
(d) For purposes of this Section 8, proprietary interest in a business is ownership, whether through direct or indirect stock holdings or otherwise, of one percent (1%) or more of such business. The Employee shall be deemed to expect to acquire a proprietary interest in a business or to be made an officer or director of such business if such possibility has been discussed with any officer, director, employee, agent, or promoter of such business.
(e) The Employee acknowledges and agrees that a remedy at law for any breach or threatened breach of the provisions of this Section 8 would be inadequate and, therefore, agrees that the Company and any of its Affiliates shall be entitled to injunctive relief in addition to any other available rights and remedies in cases of any such breach or threatened breach; provided, however, that nothing contained herein shall be construed as prohibiting the Company or any of its Affiliates from pursuing any other rights and remedies available for any such breach or threatened breach.
9. Non-Assignability. (a) Neither this Agreement nor any right or interest hereunder shall be assignable by the Employee, Employee’s beneficiaries, or legal representatives without the Company’s prior written consent; provided, however, that nothing in this Section 9(a) shall preclude the Employee from designating a beneficiary to receive any benefit payable hereunder upon Employee’s death or incapacity.
(b) Except as required by law, no right to receive payments under this Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or to exclusion, attachment, levy or similar process or assignment by operation of law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void and of no effect.
10. Binding Effect. Without limiting or diminishing the effect of Section 9 hereof, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, legal representatives and assigns.
11. Notice. Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and either delivered in person or sent by first class certified or registered mail, postage prepaid, if to the Company, at the Company’s principal place of business, and if to the Employee, at Employee’s home address, or, in the case of either party, to such other address or addresses as such party shall have designated in writing to the other party hereto.
12. Severability. The Employee agrees that in the event that any court of competent jurisdiction shall finally hold that any provision of Section 6 or 8 hereof is void or constitutes an unreasonable restriction against the Employee, such provision shall not be rendered void but shall apply with respect to such extent as such court may judicially determine constitutes a reasonable restriction under the circumstances. If any part of this Agreement other than Section 6 or 8 is held by a court of competent jurisdiction to be invalid, illegible or incapable of being enforced in whole or in part by reason of any rule of law or public policy, such part shall be deemed to be severed from the remainder of this Agreement for the purpose only of the particular legal proceedings in question and all other covenants and provisions of this Agreement shall in every other respect continue in full force and effect and no covenant or provision shall be deemed dependent upon any other covenant or provision.
13. Waiver. Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.
14. Entire Agreement; Modifications. This Agreement constitutes the entire and final expression of the agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, between the parties hereto with respect to the subject matter hereof. This Agreement may be modified or amended only by an instrument in writing signed by both parties hereto.
15. Relevant Law. This Agreement shall be construed and enforced in accordance with the internal laws of the Commonwealthof Massachusetts without regard to the conflicts of law principles thereof.
16. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
17. Survival. The termination of Employee’s employment hereunder shall not affect the enforceability of Sections 6 or 8.
18. Further Assurances. The parties agree to execute and deliver all such further instruments and take such other and further action as may be reasonably necessary or appropriate to carry out the provisions of this Agreement.
19. Headings. The Section headings appearing in this Agreement are for purposes of easy reference and shall not be considered a part of this Agreement or in any way modify, amend or affect its provisions.
IN WITNESS WHEREOF, the Company and the Employee have duly executed and delivered this Agreement as of the day and year first above written.
NETCAPITAL INC.
By: /s/ Cecilia Lenk
Name: CECILIA LENK
Title: Chief Executive Officer
COREEN KRAYSLER
/s/ Coreen Kraysler
Exhibit 10.4
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of June 23, 2022 (the “Effective Date”) by and between NETCAPITAL INC., a Delaware corporation (the “Company”), and JASON FRISHMAN, an individual having an address at 1 N Ocean Blvd Pompano Beach, FL 33062 (the “Employee”).
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee as Chief Executive Officer of the Company’s wholly-owned subsidiary, Netcapital Funding Portal Inc. and wishes to acquire and be assured of Employee’s services on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee desires to be employed by the Company and to perform and to serve the Company on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual terms, covenants, agreements and conditions hereinafter set forth, the Company and the Employee hereby agree as follows:
1. Employment. (a) The Company hereby employs the Employee to serve as a full-time employee of the Company, and the Employee hereby accepts such employment with the Company, for the period set forth in Section 2 hereof. The Employee’s principal place of employment shall be at the offices at 1 Lincoln Street, Boston MA, 02111, or such other location as determined by the Company, provided however, that the Employee’s principal place of employment shall not be relocated more than 25 miles from its current location without the prior written consent of the Employee.
(b) The Employee affirms and represents that (i) the Employee is under no obligation to any former employer or other party that is in any way inconsistent with, or that imposes any restriction upon, the Employee’s acceptance of employment hereunder with the Company, the employment of the Employee by the Company, or the Employee’s undertakings under this Agreement and (ii) his performance of all the terms of this Agreement and his employment by the Company does not and will not breach any agreement to keep in confidence proprietary information acquired by his in confidence or in trust prior to his employment by the Company.
2. Term. Unless earlier terminated as provided in this Agreement, the term of the Employee’s employment under this Agreement shall be for a three year period beginning on the date hereof and ending on the three year anniversary of the Effective Date (the “Employment Term”).
3. Duties.
(a) The Employee shall be employed as Chief Executive Officer of the Company’s wholly-owned subsidiary, Netcapital Funding Portal, Inc., and shall perform such employment duties as are usual and customary for such position. The Employee shall faithfully and competently perform such duties at such times and places and in such manner as the Company may from time to time reasonably direct or such other duties appropriate to a senior executive managerial position as the Board of Directors of the Company and Netcapital Inc., the Company’s indirect parent corporation, shall from time to time determine.
(b) The Employee shall use his best efforts, judgment and energy to improve and advance the business and interests of the Company and its Affiliates in a manner consistent with the duties of Employee’s position.
4. Salary and Bonus.
(a) Base Salary. In consideration for the services of the Employee rendered hereunder, the Company shall pay the Employee a base salary (the “Base Salary”) at an annual rate of $96,000 during the Employment Term, plus additional compensation of $54,000 per annum upon the completion of the Company’s next public offering.
(b) Bonus. Employee shall be eligible for periodic bonuses throughout the year, or for additional salary in excess of the Base Salary, in each case, as may be granted by the Board of Directors or its Compensation Committee.
(c) Withholding, Etc. The payment of any salary or bonus hereunder shall be subject to income tax, social security and other applicable withholdings, as well as such deductions as may be required under the Company’s employee benefit plans.
5. Benefits. (a) During the Employment Term, the Employee shall be:
(i) eligible to participate in all employee fringe benefits and any pension and/or profit sharing plans that may be provided by the Company for its key executive employees in accordance with the provisions of any such plans, as the same may be in effect on and after the date hereof;
(ii) eligible to participate in any medical and health plans or other employee welfare benefit plans that may be provided by the Company for its key executive employees in accordance with the provisions of any such plans, as the same may be in effect on and after the date hereof;
(iii) entitled to sick leave, sick pay and disability benefits in accordance with any Company policy that may be applicable on and after the date hereof to key executive employees; and
(iv) entitled to reimbursement for all reasonable and necessary out-of-pocket business expenses incurred by the Employee in the performance of the Employee’s duties hereunder in accordance with the Company’s policies applicable (on and after the date hereof) thereto.
(b) Employee shall cooperate with the Company in the event the Company wishes to obtain key-man insurance on the Employee. Such cooperation shall include, but not be limited to taking any physical examinations that may be requested by the insurance company.
6. Inventions and Confidential Information. The Employee hereby covenants, agrees and acknowledges as follows:
(a) The Company is engaged in a continuous program of research, design, development, production, marketing and servicing with respect to its businesses.
(b) The Employee’s employment hereunder creates a relationship of confidence and trust between the Employee and the Company with respect to certain information pertaining to the business of the Company and its Affiliates (as hereinafter defined) or pertaining to the business of any client or customer of the Company or its Affiliates which may be made known to the Employee by the Company or any of its Affiliates or by any client or customer of the Company or any of its Affiliates or learned by the Employee during the period of Employee’s employment by the Company.
(c) The Company possesses and will continue to possess information that has been created, discovered or developed by, or otherwise become known to it (including, without limitation, information created, discovered or developed by, or made known to, the Employee during the period of Employee’s employment or arising out of Employee’s employment) or in which property rights have been or may be assigned or otherwise conveyed to the Company, which information has commercial value in the business in which the Company is engaged and is treated by the Company as confidential.
(d) Any and all inventions, products, discoveries, improvements, processes, manufacturing, marketing and services methods or techniques, formulae, designs, styles, specifications, data bases, computer programs (whether in source code or object code), know-how, strategies and data, whether or not patentable or registrable under copyright or similar statutes, made, developed or created by the Employee (whether at the request or suggestion of the Company, any of its Affiliates, or otherwise, whether alone or in conjunction with others, and whether during regular hours of work or otherwise) during the period of Employee’s employment by the Company which may pertain to the business, products, or processes of the Company or any of its Affiliates (collectively hereinafter referred to as “Inventions”), will be promptly and fully disclosed by the Employee to an appropriate executive officer of the Company (other than the Employee) without any additional compensation therefor, all papers, drawings, models, data, documents and other material pertaining to or in any way relating to any Inventions made, developed or created by Employee as aforesaid. For the purposes of this Agreement, the term “Affiliate” or “Affiliates” shall mean any person, corporation or other entity directly or indirectly controlling or controlled by or under direct or indirect common control with the Company. For the purposes of this definition, “control” when used with respect to any person, corporation or other entity means the power to direct the management and policies of such person or entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
(e) The Employee will keep confidential and will hold for the Company’s sole benefit any Invention which is to be the exclusive property of the Company under this Section 6 for which no patent, copyright, trademark or other right or protection is issued.
(f) The Employee also agrees that the Employee will not without the prior written consent of the Board of Directors of the Company (i) use for Employee’s benefit or disclose at any time during Employee’s employment by the Company, or thereafter, except to the extent required by the performance by the Employee of the Employee’s duties as an employee of the Company, any information obtained or developed by Employee while in the employ of the Company with respect to any Inventions or with respect to any customers, clients, suppliers, products, employees, financial affairs, or methods of design, distribution, marketing, service, procurement or manufacture of the Company or any of its Affiliates, or any confidential matter, except information which at the time is generally known to the public other than as a result of disclosure by the Employee not permitted hereunder, or (ii) take with the Employee upon leaving the employ of the Company any document or paper relating to any of the foregoing or any physical property of the Company or any of its Affiliates.
(g) The Employee acknowledges and agrees that a remedy at law for any breach or threatened breach of the provisions of this Section 6 would be inadequate and, therefore, agrees that the Company and its Affiliates shall be entitled to injunctive relief in addition to any other available rights and remedies in case of any such breach or threatened breach; provided, however, that nothing contained herein shall be construed as prohibiting the Company or any of its Affiliates from pursuing any other rights and remedies available for any such breach or threatened breach.
(h) The Employee agrees that upon termination of Employee’s employment by the Company for any reason, the Employee shall immediately return to the Company all documents, records and other property in Employee’s possession belonging to the Company or any of its Affiliates.
(i) Without limiting the generality of Section 9 hereof, the Employee hereby expressly agrees that the foregoing provisions of this Section 6 shall be binding upon the Employee’s heirs, successors and legal representatives.
7. Termination. (a) The Employee’s employment hereunder shall be terminated upon the occurrence of any of the following:
(i) death of the Employee;
(ii) termination of the Employee’s employment hereunder by the Employee at any time for any reason whatsoever (including, without limitation, resignation or retirement) other than for “good reason” as contemplated by clause (v)(B) below;
(iii) termination of the Employee’s employment hereunder by the Company because of the Employee’s inability to perform Employee’s duties on account of disability or incapacity for a period of ninety (90) or more days, whether or not consecutive, occurring within any period of twelve (12) consecutive months;
(iv) termination of the Employee’s employment hereunder by the Company at any time for “cause” (as hereinafter defined), such termination to take effect immediately upon written notice from the Company to the Employee; and
(v) termination of the Employee’s employment hereunder (A) by the Company at any time, other than termination by reason of disability or incapacity as contemplated by clause (iii) above or termination by the Company for “cause” as contemplated by clause (iv) above and (B) by the Employee for “good reason” (as hereinafter defined).
The following actions, failures or events shall constitute “cause” for termination within the meaning of clause (iv) above: (i) the Employee’s conviction of, admission of guilt to or plea of nolo contendere or similar plea (which, through lapse of time or otherwise, is not subject to appeal) with respect to any crime or offense that constitutes a felony in the jurisdiction involved; (2) acts of dishonesty or moral turpitude which are materially detrimental to the Company and/or its Affiliates; (3) failure by the Employee to obey the reasonable and lawful orders of the Board of Directors of the Company following written notice of such failure from the Board of Directors of the Company; (4) any act by the Employee in violation of Section 8 hereof, any statement or disclosure by the Employee in violation of Section 6 hereof, or any material breach by the Employee of a representation or warranty contained in Section 1(b) hereof; (5) following written notice from the Board of Directors of the Company of prior similar actions by Employee, excessive absenteeism (other than by reason of disability); (6) following written notice from the Board or Directors of the Company of prior similar actions by Employee, excessive alcoholism or addiction to drugs not prescribed by a qualified physician or (7) gross negligence by the Employee in the performance of, or willful disregard by the Employee of, the Employee’s duties and obligations hereunder.
The following actions, failures or events shall constitute “good reason” within the meaning of clause (V)(B) above: a material breach by the Company of its obligations under this Agreement or a Change of Control. For purposes of this Agreement, “Change of Control” means (i) a transaction or series of related transactions in which any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of more than 50% of the outstanding voting securities of the Company having the right to vote for the election of members of the Company’s board of directors, (ii) any reorganization, merger or consolidation of the Company, other than a transaction or series of related transactions in which the holders of the voting securities of the Company outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Company or such other surviving or resulting entity or (iii) a sale, lease or other disposition of all or substantially all of the assets of the Company.
(a) In the event that the Employee’s employment is terminated by the Company for any reason other than “cause” or by Employee for “good reason,” then the Company shall have no claims to the 20,000 shares of common stock underlying the stock option grant (and all unvested options under such grant shall immediately and fully vest) issued to the Employee in February 2022 (the “Stock Option Grant”), and the Company agrees to not hinder and to cooperate with the Employee in exercising the Stock Option Grant and depositing those shares in a brokerage account, or selling those shares to a third party.
(b) In the event Employee resigns, without “good reason,” or retires before all of the stock options from the Stock Option Grant are fully vested, the vested portion of the Stock Option Grant shall remain vested and may be exercised for shares of the company’s common stock in accordance with its terms and unvested portion shall not vest and will be immediately forfeited effective as of the date of such resignation or retirement.
(c) No interest shall accrue on or be paid with respect to any portion of any payments hereunder.
8. Non-Competition. (a) The term “Non-Compete Term” shall mean the period during which Employee is employed hereunder and the six month period following the termination of Employee’s employment for any or no reason whatsoever, with or without cause.
During the Non-Compete Term:
(i) the Employee will not make any statement or perform any act intended to advance an interest of any existing or prospective competitor of the Company or any of its Affiliates in any way that will or may injure an interest of the Company or any of its Affiliates in its relationship and dealings with existing or potential customers or clients, or solicit or encourage any other employee of the Company or any of its Affiliates to do any act that is disloyal to the Company or any of its Affiliates or inconsistent with the interest of the Company or any of its Affiliate’s interests or in violation of any provision of this Agreement;
(ii) the Employee will not discuss with any existing or potential customers or clients of the Company or any of its Affiliates the present or future availability of services or products of a business, if the Employee has or expects to acquire a proprietary interest in such business or is or expects to be an employee, officer or director of such business, where such services or products are competitive with services or products which the Company or any of its Affiliates provides;
(iii) the Employee will not make any statement or do any act intended to cause any existing or potential customers or clients of the Company or any of its Affiliates to make use of the services or purchase the products of any competitive business in which the Employee has or expects to acquire a proprietary interest or in which the Employee is or expects to be made an employee, officer or director, if such services or products in any way compete with the services or products sold or provided or expected to be sold or provided by the Company or any of its Affiliates to any existing or potential customer or client; and
(iv) the Employee will not directly or indirectly (as a director, officer, employee, manager, consultant, independent contractor, advisor or otherwise) engage in competition with, or own any interest in, perform any services for, participate in or be connected with (i) any business or organization which engages in competition with the Company or any of its Affiliates in any geographical area where any business is presently carried on by the Company or any of its Affiliates, or (ii) any business or organization which engages in competition with the Company or any of its Affiliates in any geographical area where any business shall be hereafter, during the period of the Employee’s employment by the Company, carried on by the Company or any of its Affiliates, if such business is then being carried on by the Company or any of its Affiliates in such geographical area; provided, however, that the provisions of this Section 8(a) shall not be deemed to prohibit the Employee’s ownership of not more than one percent (1%) of the total shares of all classes of stock outstanding of any publicly held company.
(b) During the Non-Compete Term, the Employee will not directly or indirectly hire, engage, send any work to, place orders with, or in any manner be associated with any supplier, contractor, subcontractor or other person or firm which rendered manufacturing or other services, or sold any products, to the Company or any of its Affiliates if such action by Employee would have a material adverse effect on the business, assets or financial condition of the Company or any of its Affiliates.
(c) In connection with the foregoing provisions of this Section 8, the Employee represents that Employee’s experience, capabilities and circumstances are such that such provisions will not prevent Employee from earning a livelihood. The Employee further agrees that the limitations set forth in this Section 8 (including, without limitation, any time or territorial limitations) are reasonable and properly required for the adequate protection of the businesses of the Company and its Affiliates. It is understood and agreed that the covenants made by the Employee in this Section 8 (and in Section 6 hereof) shall survive the expiration or termination of this Agreement.
(d) For purposes of this Section 8, proprietary interest in a business is ownership, whether through direct or indirect stock holdings or otherwise, of one percent (1%) or more of such business. The Employee shall be deemed to expect to acquire a proprietary interest in a business or to be made an officer or director of such business if such possibility has been discussed with any officer, director, employee, agent, or promoter of such business.
(e) The Employee acknowledges and agrees that a remedy at law for any breach or threatened breach of the provisions of this Section 8 would be inadequate and, therefore, agrees that the Company and any of its Affiliates shall be entitled to injunctive relief in addition to any other available rights and remedies in cases of any such breach or threatened breach; provided, however, that nothing contained herein shall be construed as prohibiting the Company or any of its Affiliates from pursuing any other rights and remedies available for any such breach or threatened breach.
9. Non-Assignability. (a) Neither this Agreement nor any right or interest hereunder shall be assignable by the Employee, Employee’s beneficiaries, or legal representatives without the Company’s prior written consent; provided, however, that nothing in this Section 9(a) shall preclude the Employee from designating a beneficiary to receive any benefit payable hereunder upon Employee’s death or incapacity.
(b) Except as required by law, no right to receive payments under this Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or to exclusion, attachment, levy or similar process or assignment by operation of law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void and of no effect.
10. Binding Effect. Without limiting or diminishing the effect of Section 9 hereof, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, legal representatives and assigns.
11. Notice. Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and either delivered in person or sent by first class certified or registered mail, postage prepaid, if to the Company, at the Company’s principal place of business, and if to the Employee, at Employee’s home address, or, in the case of either party, to such other address or addresses as such party shall have designated in writing to the other party hereto.
12. Severability. The Employee agrees that in the event that any court of competent jurisdiction shall finally hold that any provision of Section 6 or 8 hereof is void or constitutes an unreasonable restriction against the Employee, such provision shall not be rendered void but shall apply with respect to such extent as such court may judicially determine constitutes a reasonable restriction under the circumstances. If any part of this Agreement other than Section 6 or 8 is held by a court of competent jurisdiction to be invalid, illegible or incapable of being enforced in whole or in part by reason of any rule of law or public policy, such part shall be deemed to be severed from the remainder of this Agreement for the purpose only of the particular legal proceedings in question and all other covenants and provisions of this Agreement shall in every other respect continue in full force and effect and no covenant or provision shall be deemed dependent upon any other covenant or provision.
13. Waiver. Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.
14. Entire Agreement; Modifications. This Agreement constitutes the entire and final expression of the agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, between the parties hereto with respect to the subject matter hereof. This Agreement may be modified or amended only by an instrument in writing signed by both parties hereto.
15. Relevant Law. This Agreement shall be construed and enforced in accordance with the internal laws of the Commonwealth of Massachusetts without regard to the conflicts of law principles thereof.
16. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
17. Survival. The termination of Employee’s employment hereunder shall not affect the enforceability of Sections 6 or 8.
18. Further Assurances. The parties agree to execute and deliver all such further instruments and take such other and further action as may be reasonably necessary or appropriate to carry out the provisions of this Agreement.
19. Headings. The Section headings appearing in this Agreement are for purposes of easy reference and shall not be considered a part of this Agreement or in any way modify, amend or affect its provisions.
IN WITNESS WHEREOF, the Company and the Employee have duly executed and delivered this Agreement as of the day and year first above written.
NETCAPITAL INC.
By: /s/ Coreen Kraysler
Name: COREEN KRAYSLER
Title: Chief Financial Officer
JASON FRISHMAN
/s/ Jason Frishman
Exhibit 99.1
