Airwa Inc 8-K, filed May 27, 2020
Airwa Inc. (YYAI)
About this 8-K
Airwa Inc filed this 8-K on May 27, 2020, reporting on events of April 30, 2020.
Items reported
- Item 1.01: Entered into a material agreement
- Item 5.02: Director or officer change, or executive pay
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
April 30, 2020
Date of Report (Date of earliest event reported)
SLINGER BAG INC.
(Exact Name of Registrant as Specified in Charter)
| Nevada | 333-214463 | 61-1789640 | ||
| (State or other jurisdiction | (Commission | (IRS Employer | ||
| of incorporation) | File Number) | Identification No.) |
2709
N. Rolling Road, Suite 138
Windsor Mill
Baltimore,
MD
21244
(Address of Principal Executive Offices)
(443) – 407 7564
(Registrant’s telephone number, including area code)
N/A
(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 (see General Instruction A.2. below):
| [ ] | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| [ ] | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| [ ] | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| [ ] | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act: Not Applicable
Emerging growth company [X]
| Item 1.01 | Entry into a Material Definitive Agreement |
Effective May 20, 2020, Slinger Bag Americas Inc., a wholly-owned subsidiary of Slinger Bag Inc. (the “Company”), entered into a distribution agreement (the “Agreement”) with Ace Distribution (“Ace”) that makes Ace the Company’s exclusive distributor in Switzerland of Slinger Bag’s line of products, including, but not limited to, tennis ball launcher devices, tennis ball launcher accessories, sports bags, tennis balls tennis court accessories and other tennis related products to be marketed by the Company through May 20, 2025. Pursuant to the Agreement, Framework has committed to purchase for distribution a minimum of 3,000 Slinger Bag Tennis Ball Launchers through the end of May 2025.
The foregoing description of the Agreement is only a summary and is qualified in its entirety by the terms of the Agreement attached as an exhibit hereto.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers |
Effective April 30, 2020, the Company entered into the following amended and restated service agreements and service agreements with its executive officers and consultant:
Mike Ballardie
Mike Ballardie, the current operating President and Chief Executive Officer of Slinger Bag Inc. (the “Company”), signed an amended and restated service agreement with the Company on April 30, 2020 (the “MB Service Agreement”).
Mr. Ballardie joined an affiliate of the Company in July 2019 and has served as operating President and Chief Executive Officer of such company since such time and, since September 16, 2019, the operating President and Chief Executive Officer of the Company, albeit without having a formal agreement in place with the Company until April 6, 2020.
The MB Service Agreement was amended and restated from the previous version of the MB Service Agreement that was disclosed on the Company’s current report on Form 8-K/A on April 13, 2020 to permit the Company to issue Mr. Ballardie warrants to purchase 5,000,000 shares of the Company’s common stock (the “Warrants”) instead of shares of common stock equal to equal to ten percent (10%) of the outstanding shares of its common stock on a fully issued, converted and diluted basis. The Warrants are valid for a term of 10 years and have an exercise price of $0.001 per share. Mr. Ballardie and the Company entered into a separate warrant agreement dated April 30, 2020 in respect of the Warrants.
Mr. Ballardie also agreed to relinquish the right to convert amounts owed to him under the MB Service Agreement that have not been paid in a timely manner into shares of the Company at the average trading price of the 10 days prior to the date of the request by Mr. Ballardie to exercise this option.
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Paul McKeown
Paul McKeown, the current Chief Financial Officer of the Company, signed a service agreement with the Company on April 30, 2020 (the “PM Service Agreement”).
Mr. McKeown began consulting for an affiliate of the Company in July 2019 and has served as operating Chief Financial Officer of such company since such time and, since September 16, 2019, the operating Chief Financial Officer of the Company, albeit without having a formal agreement in place with the Company until April 30, 2020.
Pursuant to the PM Service Agreement, Mr. McKeown will receive a base salary of $100 per hour up to a maximum of $5,000 per calendar month unless otherwise agreed in advance by the Company’s Chief Executive Officer (the “PM Base Salary”). The PM Base Salary will be reviewed annually by the Company’s board of directors (the “Board”) The MB Base Salary may be increased by the Board from time to time during the Term, but shall be reviewed by the Board at least annually. Starting in the second year of the PM Service Agreement, the PM Base Salary shall be increased in accordance with industry standard compensation for chief financial officers so long as the Company has completed a capital raise or has the cash flow available to do so.
The Company has also agreed to issue Mr. McKeown as soon as reasonably practicable warrants to purchase 1,250,000 shares of the Company’s common stock (the “Warrants”). The Warrants are valid for a term of 10 years and have an exercise price of $0.001 per share. Mr. McKeown and the Company entered into a separate warrant agreement dated April 30, 2020 in respect of the Warrants. Mr. McKeown is also entitled to receive up to a one-time bonus of 1,500,000 shares of common stock of the Company promptly after the value of the Company’s outstanding stock equals $100 million dollars.
Mr. McKeown is entitled to participate in any bonus plan or incentive compensation plans (including, without limitation, equity or option plans, cash bonuses and/or a combination thereof) for its directors, officers or employees to be adopted by the Company. The Company also agreed Mr. McKeown’s participation any such plans will be retroactive to April 30, 2020. Mr McKeown’s bonus payment level will be set at a minimum of 25% of his annual gross base salary.
Mr. McKeown also has the right to receive additional compensation in the form of cash or shares in cases of extraordinary contribution by him to the benefit of the Company as the Board will decide.
Mr. McKeown’s employment may be terminated by the Company upon 30 days’ notice for breach of agreement, gross negligence and crimes and dishonesty or at any time by giving Mr. McKeown 90 days prior written notice of the termination. In the latter case, 100% of Mr. McKeown’s unvested stock and option compensation of any nature will vest.
Mr. McKeown may terminate his employment with the Company for breach of agreement, non-payment change of responsibilities or compensation or change of location or at any time by giving the Company 90 days prior written notice of the termination.
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In the event of termination of the PM Service Agreement without cause or by Mr. McKeown for good reason, then Mr. McKeown shall be entitled to receive, and the Company shall pay Mr. McKeown one (1) year of the PM Base Salary plus any unpaid salary and/or bonuses. Further, Mr. McKeown shall be entitled to all vested common shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable an amount in lieu of the PM Base Salary and benefits that would have accrued to Mr. McKeown for the greater of (a) the unexpired portion of the term of the PM Service Agreement or (b) two (2) years. Further, Mr. McKeown shall be entitled to all vested common or preferred shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable.
Tom Dye
Tom Dye, the current Chief Operating Officer of the Company, signed a service agreement with the Company on April 30, 2020 (the “TD Service Agreement”).
Mr. Dye began working for the Company in January 2020 and has served since then as Chief Operating Officer of the Company, albeit without having a formal agreement in place with the Company until April 30, 2020.
Pursuant to the TD Service Agreement, Mr. Dye will receive a base salary of $120,000 per annum (the “TD Base Salary”). The TD Base Salary will be reviewed annually by the Company’s Board. The TD Base Salary may be increased by the Board from time to time during the Term, but shall be reviewed by the Board at least annually.
The Company has also agreed to issue Mr. Dye as soon as reasonably practicable warrants to purchase 1,250,000 shares of the Company’s common stock (the “Warrants”). The Warrants are valid for a term of 10 years and have an exercise price of $0.001 per share. Mr. Dye and the Company entered into a separate warrant agreement dated April 30, 2020 in respect of the Warrants. Mr. Dye is also entitled to receive up to a one-time bonus of 1,500,000 shares of common stock of the Company promptly after the value of the Company’s outstanding stock equals $100 million dollars.
Mr. Dye is entitled to participate in any bonus plan or incentive compensation plans (including, without limitation, equity or option plans, cash bonuses and/or a combination thereof) for its directors, officers or employees to be adopted by the Company. The Company also agreed Mr. Dye’s participation any such plans will be retroactive to April 30, 2020. Mr. Dye’s bonus payment level will be set at a minimum of 25% of his annual gross base salary.
Mr. Dye also has the right to receive additional compensation in the form of cash or shares in cases of extraordinary contribution by him to the benefit of the Company as the Board will decide.
Mr. Dye’s employment may be terminated by the Company upon 30 days’ notice for breach of agreement, gross negligence and crimes and dishonesty or at any time by giving Mr. Dye 90 days prior written notice of the termination. In the latter case, 100% of Mr. Dye’s unvested stock and option compensation of any nature will vest.
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Mr. Dye may terminate his employment with the Company for breach of agreement, non-payment change of responsibilities or compensation or change of location or at any time by giving the Company 90 days prior written notice of the termination.
In the event of termination of the TD Service Agreement without cause or by Mr. Dye for good reason, then Mr. Dye shall be entitled to receive, and the Company shall pay Mr. Dye one (1) year of the TD Base Salary plus any unpaid salary and/or bonuses. Further, Mr. Dye shall be entitled to all vested common shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable an amount in lieu of the TD Base Salary and benefits that would have accrued to Mr. Dye for the greater of (a) the unexpired portion of the term of the TD Service Agreement or (b) two (2) years. Further, Mr. Dye shall be entitled to all vested common or preferred shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable.
Juda Honickman
Juda Honickman, the current Chief Marketing Officer of the Company, signed a service agreement with the Company on April 30, 2020 (the “JH Service Agreement”).
Mr. Honickman began working for an affiliate of the Company in July 2020 and has served since then as Chief Marketing Officer of such company since such time and, since September 16, 2019, the operating Chief Marketing Officer of the Company, albeit without having a formal agreement in place with the Company until April 30, 2020.
Pursuant to the JH Service Agreement, Mr. Honickman will receive a base salary of $102,000 per annum (the “JH Base Salary”). The JH Base Salary will be reviewed annually by the Company’s Board. The JH Base Salary may be increased by the Board from time to time during the Term, but shall be reviewed by the Board at least annually.
The Company has also agreed to issue Mr. Honickman as soon as reasonably practicable warrants to purchase 2,500,000 shares of the Company’s common stock (the “Warrants”). The Warrants are valid for a term of 10 years and have an exercise price of $0.001 per share. Mr. Honickman and the Company entered into a separate warrant agreement dated April 30, 2020 in respect of the Warrants.
Mr. Honickman is entitled to participate in any bonus plan or incentive compensation plans (including, without limitation, equity or option plans, cash bonuses and/or a combination thereof) for its directors, officers or employees to be adopted by the Company. The Company also agreed Mr. Honickman’s participation any such plans will be retroactive to April 30, 2020. Mr. Honickman’s bonus payment level will be set at a minimum of 50% of his annual gross base salary.
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Mr. Honickman also has the right to receive additional compensation in the form of cash or shares in cases of extraordinary contribution by him to the benefit of the Company as the Board will decide.
Mr. Honickman’s employment may be terminated by the Company upon 30 days’ notice for breach of agreement, gross negligence and crimes and dishonesty or at any time by giving Mr. Honickman 90 days prior written notice of the termination. In the latter case, 100% of Mr. Honickman’s unvested stock and option compensation of any nature will vest.
Mr. Dye may terminate his employment with the Company for breach of agreement, non-payment change of responsibilities or compensation or change of location or at any time by giving the Company 90 days prior written notice of the termination.
In the event of termination of the JH Service Agreement without cause or by Mr. Honickman for good reason, then Mr. Honickman shall be entitled to receive, and the Company shall pay Mr. Honickman one (1) year of the JH Base Salary plus any unpaid salary and/or bonuses. Further, Mr. Honickman shall be entitled to all vested common shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable an amount in lieu of the JH Base Salary and benefits that would have accrued to Mr. Honickman for the greater of (a) the unexpired portion of the term of the JH Service Agreement or (b) two (2) years. Further, Mr. Honickman shall be entitled to all vested common or preferred shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable.
Mark Radom
Mark Radom, the current General Counsel of the Company, signed an amended and restated service agreement with the Company on April 30, 2020 (the “MR Service Agreement”).
The MR Service Agreement was amended and restated from the previous version of the MR Service Agreement that was disclosed on the Company’s current report on Form 8-K on September 19, 2019 to permit the Company to issue Mr. Radom warrants to purchase 1,250,000 shares of the Company’s common stock (the “Warrants”) instead of shares of common stock equal to equal to two and one half percent (2.5%) of the outstanding shares of its common stock on a fully issued, converted and diluted basis. The Warrants are valid for a term of 10 years and have an exercise price of $0.001 per share. Mr. Radom and the Company entered into a separate warrant agreement dated April 30, 2020 in respect of the Warrants.
Mr. Radom also agreed to relinquish the right to convert amounts owed to him under the MR Service Agreement that have not been paid in a timely manner into shares of the Company at the average trading price of the 10 days prior to the date of the request by Mr. Radom to exercise this option.
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Pursuant to the MR Service Agreement, Mr. Radom will receive a base salary of $4,000 per calendar month through August 19, 2020 after which Mr. Radom will receive $8,500 per calendar month (the “MR Base Salary”). The MR Base Salary will be reviewed annually by the Company’s Board. The MR Base Salary may be increased by the Board from time to time during the Term, but shall be reviewed by the Board at least annually.
Mr. Radom is also entitled to receive up to a one-time bonus of 1,500,000 shares of common stock of the Company promptly after the value of the Company’s outstanding stock equals $100 million dollars.
Mr. Radom is entitled to participate in any bonus plan or incentive compensation plans (including, without limitation, equity or option plans, cash bonuses and/or a combination thereof) for its directors, officers or employees to be adopted by the Company. The Company also agreed Mr. Radom’s participation any such plans will be retroactive to April 30, 2020. Mr. Radom’s bonus payment level will be set at a minimum of 25% of his annual gross base salary.
Mr. Radom also has the right to receive additional compensation in the form of cash or shares in cases of extraordinary contribution by him to the benefit of the Company as the Board will decide.
Mr. Radom’s employment may be terminated by the Company upon 30 days’ notice for breach of agreement, gross negligence and crimes and dishonesty or at any time by giving Mr. Radom 90 days prior written notice of the termination. In the latter case, 100% of Mr. Radom’s unvested stock and option compensation of any nature will vest.
Mr. Radom may terminate his employment with the Company for breach of agreement, non-payment change of responsibilities or compensation or change of location or at any time by giving the Company 90 days prior written notice of the termination.
In the event of termination of the MR Service Agreement without cause or by Mr. Radom for good reason, then Mr. Radom shall be entitled to receive, and the Company shall pay Mr. Radom one (1) year of the MR Base Salary plus any unpaid salary and/or bonuses. Further, Mr. Radom shall be entitled to all vested common shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable an amount in lieu of the MR Base Salary and benefits that would have accrued to Mr. Radom for the greater of (a) the unexpired portion of the term of the MR Service Agreement or (b) two (2) years. Further, Mr. Radom shall be entitled to all vested common or preferred shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable.
Aitan Zacharin
Aitan Zacharin, currently providing consulting services to the Company in respect of investor relations and financial structuring, signed an amended and restated consulting agreement with the Company on April 30, 2020 (the “AZ Consulting Agreement”).
The AZ Consulting Agreement was amended and restated from the previous version of the AZ Consulting Agreement that was disclosed on the Company’s current report on Form 8-K on September 19, 2019 to permit the Company to issue Mr. Zacharin warrants to purchase 1,250,000 shares of the Company’s common stock (the “Warrants”) instead of shares of common stock equal to equal to two and one half percent (2.5%) of the outstanding shares of its common stock on a fully issued, converted and diluted basis. The Warrants are valid for a term of 10 years and have an exercise price of $0.001 per share. Mr. Zacharin and the Company entered into a separate warrant agreement dated April 30, 2020 in respect of the Warrants.
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Mr. Zacharin also agreed to relinquish the right to convert amounts owed to him under the AZ Consulting Agreement that have not been paid in a timely manner into shares of the Company at the average trading price of the 10 days prior to the date of the request by Mr. Zacharin to exercise this option.
Pursuant to the AZ Consulting Agreement, Mr. Zacharin will receive a base salary of $3,250 per calendar month through August 19, 2020 after which Mr. Zacharin will receive $8,500 per calendar month (the “AZ Base Salary”). The AZ Base Salary will be reviewed annually by the Company’s Board. The AZ Base Salary may be increased by the Board from time to time during the Term, but shall be reviewed by the Board at least annually.
Mr. Zacharin is also entitled to receive up to a one-time bonus of 1,500,000 shares of common stock of the Company promptly after the value of the Company’s outstanding stock equals $100 million dollars.
Mr. Zacharin is entitled to participate in any bonus plan or incentive compensation plans (including, without limitation, equity or option plans, cash bonuses and/or a combination thereof) for its directors, officers or employees to be adopted by the Company. The Company also agreed Mr. Zacharin’s participation any such plans will be retroactive to April 30, 2020. Mr. Zacharin’s bonus payment level will be set at a minimum of 25% of his annual gross base salary.
Mr. Zacharin also has the right to receive additional compensation in the form of cash or shares in cases of extraordinary contribution by him to the benefit of the Company as the Board will decide.
Mr. Zacharin’s engagement may be terminated by the Company upon 30 days’ notice for breach of agreement, gross negligence and crimes and dishonesty or at any time by giving Mr. Zacharin 90 days prior written notice of the termination. In the latter case, 100% of Mr. Zacharin’s unvested stock and option compensation of any nature will vest.
Mr. Zacharin may terminate his engagement with the Company for breach of agreement, non-payment change of responsibilities or compensation or change of location or at any time by giving the Company 90 days prior written notice of the termination.
In the event of termination of the AZ Consulting Agreement without cause or by Mr. Zacharin for good reason, then Mr. Zacharin shall be entitled to receive, and the Company shall pay Mr. Zacharin one (1) year of the AZ Base Salary plus any unpaid salary and/or bonuses. Further, Mr. Zacharin shall be entitled to all vested common shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable an amount in lieu of the AZ Base Salary and benefits that would have accrued to Mr. Zacharin for the greater of (a) the unexpired portion of the term of the AZ Service Agreement or (b) two (2) years. Further, Mr. Zacharin shall be entitled to all vested common or preferred shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable.
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The foregoing descriptions of the service agreements, warrants and consulting agreements are only a summary and are qualified in their entirety by the terms of such agreements attached as exhibits hereto.
| Item 9.01 | Financial Statements and Exhibits. |
(c) Exhibits. The following documents are filed as exhibits to this report.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Slinger Bag inc. a Nevada corporation | ||
| Dated: May 27, 2020 | By: | /s/Mike Ballardie |
Chief Executive Officer and Sole Director | ||
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Exhibit 10.1
Exhibit 10.2
AMENDED
AND
RESTATED SERVICE
AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT made this 30th day of April 2020 (the “Effective Date”).
BETWEEN:
Slinger Bag Inc., a Nevada company
(the “Company”)
AND:
Mike Ballardie, an individual residing in the United Kingdom
(the “Executive”)
A. The Company and the Executive entered into a service agreement on 6 April 2020 (the “Original Agreement”) and now wish to amend certain terms of the Original Agreement with respect to the Executive’s compensation arrangements.
B. The Company has offered the Executive and the Executive has been serving in the position of Chief Executive Officer of the Company.
C. The Company and the Executive wish to formally record the terms and conditions upon which the Executive is engaged by and serves as chief executive officer of the Company.
D. Each of the Company and the Executive has agreed to the terms and conditions set forth in this Agreement, as evidenced by their respective execution hereof.
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Article 1
CONTRACT FOR SERVICES
| 1.1 | Engagement the Executive as Chief Executive Officer. (a) The Company hereby agrees to hire the Executive as Chief Executive Officer in accordance with the terms and provisions hereof. |
| (i) | Term. Unless terminated earlier in accordance with the provisions hereof, this Agreement will commence on the Effective Date and will continue for a period of five (5) years from the date of the Original Agreement (the “Term”). |
|
(b) |
Service. The Executive agrees to faithfully, honestly and diligently serve the Company and to devote the time, attention efforts to further the business and legal interests of the Company and utilize his professional skills and care during the Term. |
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| 1.2 | Duties: The Executive’s services hereunder will be provided on the basis of the following terms and conditions: |
| (a) | Reporting directly to the Board of Directors (the “Board”) of the Company, the Executive will serve as the Company’s Chief Executive Officer and President; | |
| (b) | The Executive’s primary responsibilities include providing the strategic vision for the company, implementing the appropriate company structure, defining the core business objectives, making major corporate decisions, directing and managing the overall operations and resources of the Company, acting as the main point of communication between the Board and corporate operations and being the public face of the Company, in each case subject to, and in accordance with, applicable laws and regulations. | |
| (c) | The Executive will faithfully, honestly and diligently serve the Company, cooperate with the Company and utilize maximum professional skill and care to ensure that all services rendered hereunder are to the satisfaction of the Company, acting reasonably. The Executive will provide any other services not specifically mentioned herein, but, which by reason of the Executive’s capability, the Executive knows or ought to know to be necessary to ensure that the best interests of the Company are maintained at all times. | |
| (d) | The Executive will assume, obey, implement and execute such duties, directions, responsibilities, procedures, policies and lawful orders as may be determined or given from time to time by the Board. | |
| (e) | The Executive will report the results of his duties hereunder to the Board as it may request from time to time. |
Article 2
COMPENSATION
| 2.1 | Remuneration. |
| (a) | The Executive’s monthly gross base salary shall be US $30,000 (together with any increases thereto as hereinafter provided, the “Base Salary”). The Base Salary shall be payable in accordance with the Company’s normal payroll procedures in effect from time to time. All monthly payments of Base Salary shall be paid in arrears within the last five days of each calendar month. | |
| (b) | The Executive agrees to defer $10,000 per month of his base salary (the “Deferred Amount”) until the latter of the business reaching $10 million in cumulative revenues or the end of 2020. On either of the above options being reached, the Company will promptly transfer the Deferred Amount to the Executive in full. |
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| The Base Salary may be increased by the Board from time to time during the Term, but shall be reviewed by the Board at least annually. Starting in the second year of this Agreement, Executive’s monthly base salary shall be increased in accordance with industry standard compensation for chief executive officers so long as the Company has completed a capital raise or has the cash flow available to do so. | ||
| (c) | The Company shall also issue Executive as soon as reasonably practicable warrants to purchase 5,000,000 shares of common stock in the form attached hereto as Annex A. The Company agrees to bear all costs and fees to be charged by the Company’s transfer agent in respect of such shares. | |
| (d) | The Executive shall be eligible to participate in employee benefit plans currently and hereafter maintained by the Company of general applicability to other senior executives of the Company, including, without limitation, group medical, dental and vision cover, life and permanent disability insurance, monthly car allowance, pension contributions of a minimum of 10% of the gross monthly salary and flexible-spending account plans (whether in existence as at the date hereof or to be established in the future). In the alternative the Company, at its sole discretion, having considered the suitability of Company benefits for the Executive, will provide the employee with a cash benefits allowance of not less than $7,500 gross per month to procure his own benefits, including without limitation private medical, dental and vision cover, life and permanent disability insurance, car allowance and pension provision. |
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| (e) | On the earlier of the Company’s cumulative revenues reaching $10 million (including, for the avoidance of doubt, revenue to be received by the Company in respect of orders for the Company’s products) or on 31 March 2021, the Executive will receive a one-time payment of $385,000 in cash or, at Executive’s option, $385,000 in shares of the Company with the shares to be valued at their fair market value at the date of issuance. | |
| (f) | Holidays: The Executive is eligible to take 25 holiday days per year exclusive of all UK public holidays. The company’s’ Holiday year will run from 1 January to 31 December and Holidays not used in any given year cannot be carried over to the following year without express permission of the Board. | |
| (g) | In addition to the foregoing, the Company will grant the Executive additional compensation in the form of cash or shares in cases of extraordinary contribution by him to the benefit of the Company as the Board of Directors of the Company will decide. | |
| (h) | The Executive’s position with the Company requires a special degree of personal trust, and the Company is not able to supervise the number of working hours of the Executive. Therefore, the Executive will not be entitled to any additional remuneration whatsoever for his work with the exception of that specifically set out in this Agreement. The Executive has other business interests and, as such, shall be permitted to spend such time as the Executive deems necessary or expedient on such interests, so long as there is no adverse material impact on the Executive’s performance of his obligations hereunder. |
| 2.2 | Incentive Plans. The Executive will be entitled to participate in any bonus plan or incentive compensation plans as approved by the company from time-to-time. The Executives bonus payment level will be set at a minimum of 50% of the annual gross base salary. It is agreed that any such plans will be retroactive to the Effective Date. |
| 2.3 | Company equity or option plans. The Executive will be entitled to participate in any equity or option plan adopted for its directors, officers or employees by the Company. |
| 2.4 | Expenses. The Executive will be reimbursed by the Company for all reasonable business expenses incurred by the Executive in connection with his duties. This includes, but is not limited to, payments of expenses incurred when traveling abroad and others. |
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Article 3
INSURANCE AND BENEFITS
| 3.1 | Liability Insurance Indemnification. The Company will insure the Executive (including his heirs, executors and administrators) with coverage under a standard directors’ and officers’ liability insurance policy at the Company’s expense. |
Article 4
CONFIDENTIALITY AND NON-COMPETITION
| 4.1 | Maintenance of Confidential Information. |
| (a) | The Executive acknowledges that, in the course of performing his obligations hereunder, the Executive will, either directly or indirectly, have access to and be entrusted with confidential information (whether oral, written or by inspection) relating to the Company or its respective affiliates, associates or customers (the “Confidential Information”). | |
| (b) | The Executive acknowledges that the Company’s Confidential Information constitutes a proprietary right, which the Company is entitled to protect. Accordingly, the Executive covenants and agrees that, as long as he works for the Company, the Executive will keep in strict confidence the Company’s Confidential Information and will not, without prior written consent of the Company, disclose, use or otherwise disseminate the Company’s Confidential Information, directly or indirectly, to any third party. | |
| (c) | The Executive agrees that, upon termination of his services for the Company, he will immediately surrender to the Company all Company Confidential Information then in his possession or under his control. |
| 4.2 | Exceptions. The general prohibition contained in Section 4.1 against the unauthorized disclosure, use or dissemination of the Company’s Confidential Information will not apply in respect of any Company Confidential Information that: |
| (a) | is available to the public generally; | |
| (b) | becomes part of the public domain through no fault of the Executive; | |
| (c) | is already in the lawful possession of the Executive at the time of receipt of the Company’s Confidential Information; or | |
| (d) | is compelled by applicable law or regulation to be disclosed, provided that the Executive gives the Company prompt written notice of such requirement prior to such disclosure and provides commercially reasonable assistance at the request and expense of the Company, in obtaining an order protecting the Company’s Confidential Information from public disclosure |
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Article 5
TERMINATION
| 5.1 | Termination of Employment. The Executive’s employment may be terminated only as follows: |
| (a) | Termination by the Company |
| (i) | For Cause: The Company may terminate the Executive’s employment for Cause. | |
| (ii) | Without Cause: The Company may terminate Executive’s employment at any time by giving Executive 180 days prior written Notice of the termination. In such a case,100% of the Executive’s unvested stock and option compensation of any nature will vest without any further action required on the part of the Executive or the Company and the Company will deliver to the order of the Executive promptly, upon receipt of a written demand of the Executive, such shares of common stock, warrants or options at its sole expense as become due to Executive hereunder. The Executive’s right to receive compensation whether in cash or securities shall survive any termination of this Agreement Without Cause. |
| (b) | Termination by the Executive |
| (i) | For Good Reason. The Executive may terminate the Executive’s employment with the Company for Good Reason. | |
| (ii) | Without Good Reason. The Executive may voluntarily terminate the Executive’s employment with the Company at any time by giving the Company 180 days prior written Notice of the termination. |
| (c) | Termination Upon Death or Disability |
| (i) | Death. The Executive’s employment shall terminate upon the Executive’s death. | |
| (ii) | Disability. The Company may terminate the Executive’s employment upon the Executive’s Disability by giving not less than 180 days’ prior written Notice of the termination to the Executive. |
| (d) | For the purpose of this Article 5, “Cause” means: |
| (i) | Breach of Agreement. Executive’s material breach of Executive’s obligations of this Agreement, not cured after 30 days’ Notice from the Company. |
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| (ii) | Gross Negligence. Executive’s gross negligence in the performance of Executive’s duties. | |
| (iii) | Crimes and Dishonesty. Executive’s conviction of or plea guilty to any crime involving, dishonesty, fraud or moral turpitude. | |
| (iv) | In the event of termination of this agreement for Cause, the Company may terminate the Executive’s employment after 30 days’ Notice. |
| (e) | For the purpose of this Article 5, “Good Reason” means: |
| (i) | Breach of Agreement. The Company’s material breach of this Agreement , which breach has not been cured by the Company within 30 days after receipt of written notice specifying, in reasonable detail, the nature of such breach or failure from Executive. | |
| (ii) | Non-Payment. The failure of the Company to pay any amount due to Executive hereunder, which failure persists for 30 days after written notice of such failure has been received by the Company. | |
| (iii) | Change of Responsibilities/Compensation. Any material reduction in Executive’s title or a material reduction in Executive’s duties or responsibilities or any material adverse change in Executive’s Base Salary or any material adverse change in Executive’s benefits. | |
| (iv) | Change of Location. Any relocation of the premises at which Executive works to a location more than 20 kilometers from such location, without Executive’s consent. |
| (f) | It is agreed that in the event of termination of this agreement if the Company decides that the Executive’s services are not needed during the termination period, the Company will continue to be responsible for paying Base Salary, providing his benefits (or a cash allowance in lieu) and equity compensation as defined in Article 2 of this Agreement for the entire termination period. Neither the Company, nor the Executive will be entitled to any notice, or payment in excess of that specified in this Article 5. | |
| (g) | Upon the termination (whether for cause, disability, death, without cause, for good reason or without good reason), the Company shall pay to Executive within 30 days of the termination date (i) any accrued but unpaid Base Salary for services rendered as of the date of termination, (ii) (if applicable) any accrued but unpaid vacation pay, (iii) the business expenses reasonably incurred by the Executive up to the date of termination or resignation and properly reimbursable, and (iv) payment of any cash allowance for benefits, in each case less any applicable deductions or withholdings required by law. |
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Section 5.2 Termination for Cause, Disability or Death
In the event that this Agreement and the Executive’s employment with the Company is terminated for Cause, the Company shall provide the Executive written notice thereof and Executive shall be entitled only to the amounts specified in Section 5.1plus all vested common shares and, if applicable options and warrants.
Section 5.3 Termination without Cause or For Good Reason
In the event this Agreement and the Executive’s employment with the Company is terminated by the Company without Cause (other than for death or Disability) or by the Executive For Good Reason, then in addition to the amounts specified in Section 5.1 and subject to the Executive’s execution and non-revocation of a separation agreement containing a general release and waiver of liability against the Company and anyone connected with it in form acceptable to the Company, the Executive shall be entitled to receive, and the Company shall pay the Executive an amount in lieu of Base Salary and benefits (less statutory deductions and withholdings) that would have accrued to the Executive for the greater of (a) the unexpired portion of the Term of this Agreement or (b) two (2) years, in a single lump sum, paid in full within 30 days of the termination date. Further, Executive shall be entitled to all vested common shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable.
Article 6
MUTUAL REPRESENTATIONS
| 6.1 | The Executive represents and warrants to the Company that the execution and delivery of this Agreement and the fulfilment of the terms hereof |
| (a) | will not constitute a default under or conflict with any agreement or other instrument to which he is a party or by which he is bound; and | |
| (b) | do not require the consent of any person or entity. |
| 6.2 | The Company represents and warrants to the Executive that this Agreement has been duly authorized, executed and delivered by the Company and that the fulfilment of the terms hereof |
| (a) | will not constitute a default under or conflict with any agreement of other instrument to which it is a party or by which it is bound; and |
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| (b) | do not require the consent of any person of entity. |
| 6.3 | Each party hereto warrants and represents to the other that this Agreement constitutes the valid and binding obligation of such party enforceable against such party in accordance with its terms subject to applicable bankruptcy, insolvency, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless if enforcement is sought in proceeding in equity or at law). |
Article 7
NOTICES
| 7.1 | Notices. All notices required or allowed to be given under this Agreement must be made either personally by delivery to or by facsimile transmission to the address as hereinafter set forth or to such other address as may be designated from time to time by such party in writing: |
| (a) | in the case of the Company, to: | |
| Slinger Bag Inc. | ||
| To be provided under separate cover within three days after the date hereof; in the event that Executive does not receive notice of address within such period, then Executive shall be entitled to send any notice to any email address of the Company known to Executive and the sending of any such notice shall constitute receipt of notice whether the Company receives such notice or not. | ||
| (b) | and in the case of the Executive, to the Executive’s last residence address known to the Company or mike.ballardie@slingerbag.com and his personal email address made known by the Executive to the Company from time to time. |
| 7.2 | Change of Address. Any party may, from time to time, change its address for service hereunder by written notice to the other party in the manner aforesaid. |
Article 8
GENERAL
| 8.1 | Further Assurances. Each party hereto will promptly and duly execute and deliver to the other party such further documents and assurances and take such further action as such other party may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created hereby. |
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| 8.2 | Waiver. No provision hereof will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is made in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of this Agreement will not be construed as a waiver of a further breach of the same provision. |
| 8.3 | Amendments in Writing. No amendment, modification or rescission of this Agreement will be effective unless set forth in writing and signed by the parties hereto. |
| 8.4 | Assignment. Except as herein expressly provided, the respective rights and obligations of the Executive and the Company under this Agreement will not be assignable by either party without the written consent of the other party and will, subject to the foregoing, inure to the benefit of and be binding upon the Executive and the Company and their permitted successors or assigns. Nothing herein expressed or implied is intended to confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement. For the avoidance of doubt, it is agreed that in the event that the Company participates in a merger, acquisition, restructuring, reorganization or other transaction in which the Company is merged into, sold to or otherwise becomes part of or owned by another company or entity, this Agreement will remain in force and be binding on any such successor, surviving or acquiring company or entity. |
| 8.5 | The Company acknowledges and agrees that the Executive may submit to the Company invoices from a company that employs him in lieu of invoices on his name. The Executive confirms that any such invoice will replace his own invoice and he agrees that his fees will be paid by the Company to third parties provided that it is done as per his instructions to the Company. |
| 8.6 | Severability. In the event that any provision contained in this Agreement is declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, such provision will be deemed not to affect or impair the validity or enforceability of any other provision of this Agreement, which will continue to have full force and effect. |
| 8.7 | Headings. The headings in this Agreement are inserted for convenience of reference only and will not affect the construction or interpretation of this Agreement. |
| 8.8 | Number and Gender. Wherever the singular or masculine or neuter is used in this Agreement, the same will be construed as meaning the plural or feminine or a body politic or corporate and vice versa where the context so requires. |
| 8.9 | Time. Time is of the essence in this Agreement. |
| 8.10 | Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of New York without reference to its conflicts of laws principles or the conflicts of laws principles of any other jurisdiction, and each of the parties hereto expressly attorns to the jurisdiction of the courts of the State of New York. The sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement will be the applicable New York state or federal court.
|
| 8.11 | This Agreement (including all Annexes thereto) constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to this matter. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date and year first above written.
Slinger Bag Inc.
Agreed and accepted:
Executive
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Annex A
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 4 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE COMMON STOCK
Company: Slinger Bag Inc.
Holder: Mike Ballardie
Shares: 5,000,000 shares of the Company’s common stock.
Class of Stock: common shares of stock of the Company
Exercise Price per share: par value on a cashless basis (as described in more detail below)
Issue Date: 30 April 2020
Term: See Section 4.1
THIS WARRANT CERTIFIES THAT, for value received as consideration pursuant to that certain amended and restated service agreement dated 30 April 2020 (the “Service Agreement”) and for other good and valuable consideration the sufficiency of which is hereby acknowledged, Holder is entitled to receive the Shares in the form of fully paid and nonassessable shares of the Company at the Exercise Price, all as set forth herein, subject to the provisions and upon the terms and conditions set forth in this Warrant.
ARTICLE 1. EXERCISE.
1.1 Method of Exercise. Payment.
(a) Cash Exercise. The purchase rights represented by this Warrant may be exercised by the Holder, in whole or in part, by the surrender of this Warrant (with the notice of exercise form attached hereto as Appendix 1 duly executed) at the principal office of the Company, and by the payment to the Company, by certified, cashier’s or other check acceptable to the Company or by wire transfer to an account designated by the Company, of an amount equal to the aggregate Exercise Price of the Shares being purchased.
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(b) Net Issue Exercise. In lieu of exercising this Warrant, the Holder may elect to receive Shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with notice of such election, in which event the Company shall issue to the Holder a number of Warrant Shares computed using the following formula:
Y (A-B) X = ——————— A |
| Where: | X | = | the number of Shares to be issued to the Holder. | |||
| Y | = | the number of the Shares being exercised on the date of determination. | ||||
| A | = | the fair market value of one Share on the date of determination. | ||||
| B | = | the per share Exercise Price (as adjusted to the date of such calculation). | ||||
(c) Fair Market Value. For purposes of this Article 1, the per share fair market value of the Warrant Shares shall mean:
(i) If the Company’s Common Stock is publicly traded, the per share fair market value of the Warrant Shares shall be the average of the closing prices of the Common Stock as quoted on the Over-the-Counter Bulletin Board, or the principal exchange on which the Common Stock is listed, in each case for the fifteen trading days ending five trading days prior to the date of determination of fair market value;
(ii) If the Company’s Common Stock is not so publicly traded, the per share fair market value of the Warrant Shares shall be such fair market value as is determined in good faith by the Board of Directors of the Company after taking into consideration factors it deems appropriate, including, without limitation, recent sale and offer prices of the capital stock of the Company in private transactions negotiated at arm’s length.
1.2 Delivery of Certificate and New Warrant. Promptly after Holder first exercises this Warrant, the Company shall deliver to Holder certificates for or other evidence (reasonably acceptable to the Holder) of the Shares received and, if this Warrant has not been fully exercised and has not expired, a new Warrant representing the Shares not so received.
1.3 Replacement of Warrants. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 Stock Dividends, Splits, Combinations, Etc. If the Company declares or pays a dividend on the Shares payable in Common Stock, or other securities, then upon exercise of this Warrant, for each Share acquired, Holder shall receive, without cost to Holder, the total number and kind of securities to which Holder would have been entitled had Holder owned the Shares of record as of the date the dividend occurred. If the Company subdivides the Shares by reclassification or otherwise into a greater number of shares or takes any other action which increases the amount of stock into which the Shares are convertible, the number of shares purchasable hereunder shall be proportionately increased and the Exercise Price shall remain the same. If the outstanding shares of the Company are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Exercise Price shall be proportionately increased and the number of Shares shall be proportionately decreased.
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2.2 Reclassification, Exchange or Substitution, Etc. Upon any reclassification, exchange, substitution, or other event that results in a change of the number and/or class of the securities issuable upon exercise or net exercise of this Warrant, Holder shall be entitled to receive, upon exercise or net exercise of this Warrant, the number and kind of securities and property that Holder would have received for the Shares if this Warrant had been exercised immediately before such reclassification, exchange, substitution, or other event. The Company or its successor shall promptly issue to Holder an amendment to this Warrant setting forth the number and kind of such new securities or other property issuable upon exercise or net exercise of this Warrant as a result of such reclassification, exchange, substitution or other event that results in a change of the number and/or class of securities issuable upon exercise or net exercise of this Warrant.
2.3 Merger or Consolidation. Upon any capital reorganization of the Company’s capital stock (other than a subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Section 2) or a merger or consolidation of the Company with or into another corporation, then as a part of such reorganization, merger or consolidation, provision shall be made so that the Holder shall thereafter be entitled to receive upon the exercise of this Warrant, the number and kind of securities and property of the Company, or of the successor corporation resulting from such reorganization, merger or consolidation, to which that Holder would have received for the Shares if this Warrant had been exercised immediately before such reorganization, merger or consolidation.
2.4 Fractional Shares. No fractional Shares shall be issuable upon exercise or net exercise of this Warrant and the number of Shares to be issued shall be rounded up to the nearest whole Share.
ARTICLE 3. COVENANTS OF THE COMPANY.
3.1 Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon any of its stock, whether in cash, property, stock, or other securities and whether or not a regular cash dividend; (b) to effect any reclassification or recapitalization of any of its stock; or (c) to merge or consolidate with or into any other corporation, or sell, lease, license, or convey all or substantially all of its assets, or to liquidate, dissolve or wind up, then, in connection with each such event, the Company shall give Holder: (1) at least three (3) days prior written notice of the date on which a record will be taken for such dividend, distribution, or subscription rights (and specifying the date on which the holders of Common Stock will be entitled thereto) or for determining rights to vote, if any, in respect of the matters referred to in (a) above; and (2) in the case of the matters referred to in (b) and (c) above at least three (3) days prior written notice of the date when the same will take place (and specifying the date on which the holders of Common Stock will be entitled to exchange their Common Stock for securities or other property deliverable upon the occurrence of such event).
3.2 No Stockholder Rights or Liabilities. Except as provided in this Warrant, the Holder will not have any rights as a stockholder of the Company until the exercise of this Warrant. Absent an affirmative action by the Holder to purchase the Shares, the Holder shall not have any liability as a stockholder of the Company.
3.3 Closing of Books. The Company will at no time close its transfer books against the transfer of this Warrant or of any Shares issued or issuable upon the exercise of this Warrant in any manner which interferes with the timely exercise of this Warrant.
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ARTICLE 4. MISCELLANEOUS.
4.1 Term. This Warrant is exercisable in whole or in part at any time and from time to time on or before the earlier of 5:00 pm GMT on the tenth (10th) anniversary of the Issue Date.
4.2 Legends. This Warrant and the Shares (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) shall be imprinted with a legend in substantially the following form:
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
4.3 Transfers. This Warrant and the Shares issuable upon exercise of this Warrant (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) may not be transferred or assigned in whole or in part without compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably requested by the Company). After compliance with all restrictions on transfer set forth in this Section 4.3, and within a reasonable time after the Company’s receipt of an executed assignment agreement, the transfer shall be recorded on the books of the Company upon the surrender of this Warrant, properly endorsed, to the Company at its principal offices, and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer. In the event of a partial transfer, the Company shall issue to the new holders one or more appropriate new warrants.
4.4 Notices. All notices and other communications from the Company to the Holder, or vice versa, shall be deemed delivered and effective when given personally or mailed by first-class registered or certified mail, postage prepaid, at such address as may have been furnished to the Company or the Holder, as the case may (or on the first business day after transmission by facsimile) be, in writing by the Company or such Holder from time to time. Effective upon receipt of the fully executed Warrant, all notices to the Holder shall be addressed as set forth on the signature page hereto until the Company receives notice of a change of address in connection with a transfer or otherwise. Notice to the Company shall be addressed as set forth on the signature page hereto until the Holder receives notice of a change in address.
4.5 Waiver. This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought.
4.6 Counterparts. This Warrant may be executed in counterparts, all of which together shall constitute one and the same agreement.
4.7 Governing Law. This Warrant shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its principles regarding conflicts of law.
Please indicate your acceptance of these terms by countersigning where indicated below.
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| Slinger Bag Inc. | |
| Name: | |
| Title: | |
| Agreed and accepted: | |
| Mike Ballardie |
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Appendix 1
SLINGER BAG INC.
EXERCISE NOTICE
Reference is made to the Warrant dated 30 April 2020 between Slinger Bag Inc. (the “Company”) and Mike Ballardie (the “Warrant”). In accordance with and pursuant to the Warrant, the undersigned hereby elects to exercise the Warrant to purchase shares of common stock of the Company as set forth below. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Warrant.
| Date of Exercise: |
Number of shares of ordinary/common (or its equivalent) stock to be purchased: |
Please issue shares of common stock in the following name and to the following address:
| Issue to: | |||
| Address: | |||
| Telephone Number: | |||
| Email address: | |||
| Holder: | |||
| By: | |||
| Title: | |||
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Exhibit 10.3
SERVICE AGREEMENT
THIS AGREEMENT made this 30th day of April 2020 (the “Effective Date”).
BETWEEN:
Slinger Bag Inc., a Nevada company
(the “Company”)
AND:
Paul McKeown, an individual residing in Canada
(the “Executive”)
A. The Company has offered the Executive the position of Chief Financial Officer of the Company.
B. The Company and the Executive wish to formally record the terms and conditions upon which the Executive will be hired by and serve as Chief Financial Officer of the Company.
C. Each of the Company and the Executive has agreed to the terms and conditions set forth in this Agreement, as evidenced by their respective execution hereof.
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Article 1
CONTRACT FOR SERVICES
| 1.1 | Engagement the Executive as Chief Financial Officer. (a) The Company hereby agrees to hire the Executive as Chief Financial Officer in accordance with the terms and provisions hereof. |
| (i) | Term. Unless terminated earlier in accordance with the provisions hereof, this Agreement will commence on the Effective Date and will continue for a period of three (3) years therefrom (the “Term”). |
| (b) | Service. The Executive agrees to faithfully, honestly and diligently serve the Company and to devote the time, attention efforts to further the business and legal interests of the Company and utilize his professional skills and care during the Term. |
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| 1.2 | Duties: The Executive’s services hereunder will be provided on the basis of the following terms and conditions: |
| (a) | Reporting directly to the Chief Executive Officer of the Company, the Executive will serve as Chief Financial Officer; | |
| (b) | The Executive will be responsible for setting and managing the Company’s financial processes and actions (including but not limited to, working with the Company’s General Counsel in managing the Company’s SEC filing process), managing relationship with the Company’s auditors & taxation experts, managing the Financial side of the Company’s contracted IT service provider, tracking cash flow and all aspects of financial planning and reporting, analyzing the Company’s financial strengths and weaknesses and proposing corrective actions, in each case, subject to any applicable law and to instructions provided by the Chief Executive Officer &/or the General Counsel of the Company from time to time. Further the Executive will be responsible (jointly with COO) for managing the Company’s “service center” (and employees) located in Belleville, Ontario, Canada. | |
| (c) | The Executive will faithfully, honestly and diligently serve the Company and co-operate with the Company and utilize maximum professional skill and care to ensure that all services rendered hereunder are to the satisfaction of the Company, acting reasonably, and the Executive will provide any other services not specifically mentioned herein, but which by reason of the Executive’s capability, the Executive knows or ought to know to be necessary to ensure that the best interests of the Company are maintained. | |
| (d) | The Executive will assume, obey, implement and execute such duties, directions, responsibilities, procedures, policies and lawful orders as may be determined or given from time to time by the Company. | |
| (e) | The Executive will report the results of his duties hereunder to the Company as it may request from time to time. |
Article 2
COMPENSATION
2.1 Remuneration.
(a) Executive shall be paid based on an hourly rate of U.S. $100 per hour up to a maximum of five thousand United States dollars per month unless otherwise agreed, in advance, by the Chief Executive Officer ($5,000 together with any increases thereto as hereinafter provided, the “Base Salary”). The executive will submit a detailed invoice documenting hours worked each month. The Base Salary shall be payable from the date hereof in accordance with the Company’s normal payroll procedures in effect from time to time. All monthly payments of Base Salary shall be paid within the first ten days of the following calendar month. The Base Salary may be increased by the Board from time to time during the Term, but shall be reviewed by the Board at least annually. Starting in the second year of this Agreement, Executive’s monthly base salary shall be increased in accordance with industry standard compensation for chief financial officers so long as the Company has completed a capital raise or has the cash flow available to do so. At any time at which the Executive wishes to move to a full-time role, the Executive’s monthly base salary shall be increased in accordance with industry standard compensation for chief financial officers so long as the Company has completed a sufficient (in the discretion of the Company) capital raise or otherwise has sufficient revenue from operations available for such purpose.
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(b) The Company shall also issue Executive as soon as reasonably practicable warrants to purchase 1,250,000 shares of common stock in the form attached hereto as Annex A. The Company agrees to bear all costs and fees to be charged by the Company’s transfer agent in respect of such shares. The Executive is entitled to receive up to a one-time bonus of 1,500,000 shares of common stock of the Company promptly after the value of the Company’s outstanding stock equals $100 million dollars.
(c) In addition to the foregoing, the Company will grant the Executive additional compensation in the form of cash or shares in cases of extraordinary contribution by him to the benefit of the Company as the Board of Directors of the Company will decide.
(f) The Executive’s position with the Company requires a special degree of personal trust, and the Company is not able to supervise the number of working hours of the Executive. Therefore, the Executive will not be entitled to any additional remuneration whatsoever for his work with the exception of that specifically set out in this Agreement. The Executive has other business interests and, as such, shall be permitted to spend such time as the Executive deems necessary or expedient on such interests, so long as there is no adverse material impact on the Executive’s performance of his obligations hereunder.
2.2 Incentive Plans. The Executive will be entitled to participate in any bonus plan or incentive compensation plans (including, without limitation, equity or option plans, cash bonuses and/or a combination thereof) for its directors, officers or employees adopted by the Company. The Executive’s bonus payment level will be set at a minimum of 25% of the annual gross base salary. It is agreed that any such plans will be retroactive to the Effective Date.
2.3 Expenses. The Executive will be reimbursed by the Company for all reasonable business expenses incurred by the Executive in connection with his duties. This includes, but is not limited to, payments of expenses incurred when traveling abroad and others. In this connection, the Executive will be issued, as soon as practicable, a Company credit card that the Executive will use to pay for any and all expenses that pertain to the Company. In the event a Company credit card is not available to the Executive, the Executive is granted permission to use his personal credit card and submit a report of such expenses to the Company for immediate re-imbursement (subject to CEO approval).
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3
Insurance and Personal Liability limitations to Executive
3.1 Liability Insurance Indemnification. The Company will insure the Executive (including his heirs, executors and administrators) with coverage under a standard directors’ and officers’ liability insurance policy at the Company’s expense at the same time the Company so insures its other executives.
3.2 Personal Liability Indemnification. In addition to the above noted “D&O Insurance” coverage, the Company shall provide to the Executive a personal liability indemnification, in mutually agreed upon language. The purpose of such indemnification is to protect the Executive against personal liability arising from any or all claims, suits, actions, whatsover associated with the execution of his duties to the company in good faith.
4
CONFIDENTIALITY AND NON-COMPETITION
4.1 Maintenance of Confidential Information.
| (a) The Executive acknowledges that, in the course of performing his obligations hereunder, the Executive will, either directly or indirectly, have access to and be entrusted with confidential information (whether oral, written or by inspection) relating to the Company or its respective affiliates, associates or customers (the “Confidential Information”). |
| (a) | (b) The Executive acknowledges that the Company’s Confidential Information constitutes a proprietary right, which the Company is entitled to protect. Accordingly, the Executive covenants and agrees that, as long as he works for the Company, the Executive will keep in strict confidence the Company’s Confidential Information and will not, without prior written consent of the Company, disclose, use or otherwise disseminate the Company’s Confidential Information, directly or indirectly, to any third party. |
| (c)The Executive agrees that, upon termination of his services for the Company, he will immediately surrender to the Company all Company Confidential Information then in his possession or under his control. |
4.2 Exceptions. The general prohibition contained in Section 4.1 against the unauthorized disclosure, use or dissemination of the Company’s Confidential Information will not apply in respect of any Company Confidential Information that:
| (a) is available to the public generally; | |
| (b) becomes part of the public domain through no fault of the Executive; | |
| (c) is already in the lawful possession of the Executive at the time of receipt of the Company’s Confidential Information; or | |
| (d) is compelled by applicable law or regulation to be disclosed, provided that the Executive gives the Company prompt written notice of such requirement prior to such disclosure and provides commercially reasonable assistance at the request and expense of the Company, in obtaining an order protecting the Company’s Confidential Information from public disclosure. |
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5
termination
5.1 Termination of Employment. The Executive’s employment may be terminated only as follows:
| (a)Termination by the Company |
| (i) | For Cause. The Company may terminate the Executive’s employment for Cause. | |
| (ii) | Without Cause. The Company may terminate Executive’s employment at any time by giving Executive 90 days prior written Notice of the termination. In such case, 100% of the Executive’s unvested stock, warrant and option compensation of any nature will vest without any further action required on the part of the Executive or the Company and the Company will deliver to the order of the Executive promptly upon receipt of a written demand of the Executive such shares of common stock or options at its sole expense as become due to Executive hereunder. The Executive’s right to receive compensation whether in cash or securities shall survive any termination of this Agreement Without Cause. |
| (b) | (b) Termination by the Executive |
| (i) | For Good Reason. The Executive may terminate the Executive’s employment with the Company for Good Reason. | |
| (ii) | Without Good Reason. The Executive may voluntarily terminate the Executive’s employment with the Company at any time by giving the Company 90 days prior written Notice of the termination. |
| (c) Termination Upon Death or Disability |
| (iii) | Death. The Executive’s employment shall terminate upon the Executive’s death. | |
| (iv) | Disability. The Company may terminate the Executive’s employment upon the Executive’s Disability. |
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| (c) | (d) For the purpose of this Article 5”Cause” means: |
| (i) | Breach of Agreement. Executive’s material breach of Executive’s obligations of this Agreement, not cured after 30 days’ Notice from the Company. | |
| (ii) | Gross Negligence. Executive’s gross negligence in the performance of Executive’s duties. | |
| (iii) | Crimes and Dishonesty. Executive’s conviction of or a plea of guilty to any crime involving, dishonesty, fraud or moral turpitude. | |
| (iv) | In the event of termination of this agreement for Cause, the Company may terminate the Executive’s employment after 30 days’ Notice. |
| (d) | (e) For the purpose of this Article 5, “Good Reason” means: |
| (i) | Breach of Agreement. The Company’s material breach of this Agreement, which breach has not been cured by the Company within 30 days after receipt of written notice specifying, in reasonable detail, the nature of such breach or failure from Executive. | |
| (ii) | Non-Payment. The failure of the Company to pay any amount due to Executive hereunder, which failure persists for 30 days after written notice of such failure has been received by the Company. | |
| (iii) | Change of Responsibilities/Compensation. Any material reduction in Executive’s title or a material reduction in Executive’s duties or responsibilities or any material adverse change in Executive’s Base Salary or any material adverse change in Executive’s benefits. | |
| (iv) | Change of Location. Any relocation of the premises at which Executive works to a location more than 20 kilometers from such location, without Executive’s consent. |
| (e) | (f) It is agreed that in the event of termination of this agreement if the Company decides that the Executive’s services are not needed during the termination period, the Company will continue to be responsible for paying cash and equity compensation as defined in Article 2 of this Agreement for the entire termination period. Neither the Company, nor the Executive will be entitled to any notice, or payment in excess of that specified in this Article 5 |
| (g) Upon the termination (whether for cause, disability, death, without cause, or by way of change of control), the Company shall pay to Executive on the date required under applicable law: (i) any accrued but unpaid Base Salary for services rendered as of the date of termination, (ii) (if applicable) any accrued but unpaid vacation pay, and (iii) the business expenses reasonably incurred by the Executive up to the date of termination or resignation and properly reimbursable, in each case less any applicable deductions or withholdings required by law. |
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Section 5.2 Termination for Cause, Disability or Death
| In the event that this Agreement and the Executive’s employment with the Company is terminated for Cause, the Company shall provide the Executive written notice thereof and Executive shall be entitled only to the amounts specified in Section 5.1 plus all vested common shares and, if applicable options and warrants. |
Section 5.3 Termination without Cause
| In the event this Agreement and the Executive’s employment with the | |
| Company is terminated by the Company without Cause (other than for death or Disability or in connection with a change of control), then in addition to the amounts specified in Section 5.1 and subject to the Executive’s execution and non-revocation of a separation agreement containing a general release and waiver of liability against the Company and anyone connected with it in form acceptable to the Company, the Executive shall be entitled to receive, and the Company shall pay the Executive, one (1) years’ Base Salary plus any unpaid salary & or bonuses, (less statutory deductions and withholdings), plus any outstanding expenses the Executive incurred on his personal credit card in a single lump sum, paid in full within 30 days of termination. Further, Executive shall be entitled to all vested common shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable. |
6
Mutual Representations
6.1 The Executive represents and warrants to the Company that the execution and delivery of this Agreement and the fulfilment of the terms hereof
| (a) will not constitute a default under or conflict with any agreement or other instrument to which he is a party or by which he is bound; and | |
| (b) do not require the consent of any person or entity. |
6.2 The Company represents and warrants to the Executive that this Agreement has been duly authorized, executed and delivered by the Company and that the fulfilment of the terms hereof
| (f) | (a) will not constitute a default under or conflict with any agreement of other instrument to which it is a party or by which it is bound; and | |
| (g) | (b) do not require the consent of any person of entity. |
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6.3 Each party hereto warrants and represents to the other that this Agreement constitutes the valid and binding obligation of such party enforceable against such party in accordance with its terms subject to applicable bankruptcy, insolvency, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless if enforcement is sought in proceeding in equity or at law).
7
notices
7.1 Notices. All notices required or allowed to be given under this Agreement must be made either personally by delivery to or by facsimile transmission to the address as hereinafter set forth or to such other address as may be designated from time to time by such party in writing:
| (h) | (a) in the case of the Company, to: | |
| Slinger Bag Inc. | ||
| To be provided under separate cover within three days after the date hereof; in the event that Executive does not receive notice of address within such period, then Executive shall be entitled to send any notice to any email address of the Company known to Executive and the sending of any such notice shall constitute receipt of notice whether the Company receives such notice or not. |
| (b) and in the case of the Executive, to the Executive’s last residence address known to the Company or the executives personal email address held by the company. |
6.2
Change of Address. Any party may, from time to time, change its address for service hereunder by written notice to the other
party in the manner aforesaid.
8
GENERAL
8.1 Further Assurances. Each party hereto will promptly and duly execute and deliver to the other party such further documents and assurances and take such further action as such other party may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created hereby.
8.2 Waiver. No provision hereof will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is made in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of this Agreement will not be construed as a waiver of a further breach of the same provision.
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8.3 Amendments in Writing. No amendment, modification or rescission of this Agreement will be effective unless set forth in writing and signed by the parties hereto.
8.4 Assignment. Except as herein expressly provided, the respective rights and obligations of the Executive and the Company under this Agreement will not be assignable by either party without the written consent of the other party and will, subject to the foregoing, inure to the benefit of and be binding upon the Executive and the Company and their permitted successors or assigns. Nothing herein expressed or implied is intended to confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement. For the avoidance of doubt, it is agreed that in the event that the Company participates in a merger, acquisition, restructuring, reorganization or other transaction in which the Company is merged into, sold to or otherwise becomes part of or owned by another company or entity, this Agreement will remain in force and be binding on any such successor, surviving or acquiring company or entity.
8.5 The Company acknowledges and agrees that the Executive may submit to the Company invoices from a company that employs him in lieu of invoices on his name. The Executive confirms that any such invoice will replace his own invoice and he agrees that his fees will be paid by the Company to third parties provided that it is done as per his instructions to the Company.
8.6 Severability. In the event that any provision contained in this Agreement is declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, such provision will be deemed not to affect or impair the validity or enforceability of any other provision of this Agreement, which will continue to have full force and effect.
8.7 Headings. The headings in this Agreement are inserted for convenience of reference only and will not affect the construction or interpretation of this Agreement.
8.8 Number and Gender. Wherever the singular or masculine or neuter is used in this Agreement, the same will be construed as meaning the plural or feminine or a body politic or corporate and vice versa where the context so requires.
8.9 Time. Time is of the essence in this Agreement.
8.10 Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of New York without reference to its conflicts of laws principles or the conflicts of laws principles of any other jurisdiction, and each of the parties hereto expressly attorns to the jurisdiction of the courts of the State of New York The sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement will be the applicable New York state or federal court.
8.11 This Agreement (including all Annexes thereto) constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to this matter.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date and year first above written.
| Slinger Bag Inc. | |
| Title: Chief Executive Officer | |
| Agreed and accepted: | |
| Paul McKeown |
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Annex A
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 4 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE COMMON STOCK
Company: Slinger Bag Inc.
Holder: Paul McKeown
Shares: 1,250,000 shares of the Company’s common stock.
Class of Stock: common shares of stock of the Company
Exercise Price per share: par value on a cashless basis (as described in more detail below)
Issue Date: 30 April 2020
Term: See Section 4.1
THIS WARRANT CERTIFIES THAT, for value received as consideration pursuant to that certain amended and restated service agreement dated 30 April 2020 (the “Service Agreement”) and for other good and valuable consideration the sufficiency of which is hereby acknowledged, Holder is entitled to receive the Shares in the form of fully paid and nonassessable shares of the Company at the Exercise Price, all as set forth herein, subject to the provisions and upon the terms and conditions set forth in this Warrant.
ARTICLE 1. EXERCISE.
1.1 Method of Exercise. Payment.
(a) Cash Exercise. The purchase rights represented by this Warrant may be exercised by the Holder, in whole or in part, by the surrender of this Warrant (with the notice of exercise form attached hereto as Appendix 1 duly executed) at the principal office of the Company, and by the payment to the Company, by certified, cashier’s or other check acceptable to the Company or by wire transfer to an account designated by the Company, of an amount equal to the aggregate Exercise Price of the Shares being purchased.
(b) Net Issue Exercise. In lieu of exercising this Warrant, the Holder may elect to receive Shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with notice of such election, in which event the Company shall issue to the Holder a number of Warrant Shares computed using the following formula:
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Y (A-B)
X = ———————
A
| Where: | X | = | the number of Shares to be issued to the Holder. | |||
| Y | = | the number of the Shares being exercised on the date of determination. | ||||
| A | = | the fair market value of one Share on the date of determination. | ||||
| B | = | the per share Exercise Price (as adjusted to the date of such calculation). |
(c) Fair Market Value. For purposes of this Article 1, the per share fair market value of the Warrant Shares shall mean:
(i) If the Company’s Common Stock is publicly traded, the per share fair market value of the Warrant Shares shall be the average of the closing prices of the Common Stock as quoted on the Over-the-Counter Bulletin Board, or the principal exchange on which the Common Stock is listed, in each case for the fifteen trading days ending five trading days prior to the date of determination of fair market value;
(ii) If the Company’s Common Stock is not so publicly traded, the per share fair market value of the Warrant Shares shall be such fair market value as is determined in good faith by the Board of Directors of the Company after taking into consideration factors it deems appropriate, including, without limitation, recent sale and offer prices of the capital stock of the Company in private transactions negotiated at arm’s length.
1.2 Delivery of Certificate and New Warrant. Promptly after Holder first exercises this Warrant, the Company shall deliver to Holder certificates for or other evidence (reasonably acceptable to the Holder) of the Shares received and, if this Warrant has not been fully exercised and has not expired, a new Warrant representing the Shares not so received.
1.3 Replacement of Warrants. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 Stock Dividends, Splits, Combinations, Etc. If the Company declares or pays a dividend on the Shares payable in Common Stock, or other securities, then upon exercise of this Warrant, for each Share acquired, Holder shall receive, without cost to Holder, the total number and kind of securities to which Holder would have been entitled had Holder owned the Shares of record as of the date the dividend occurred. If the Company subdivides the Shares by reclassification or otherwise into a greater number of shares or takes any other action which increases the amount of stock into which the Shares are convertible, the number of shares purchasable hereunder shall be proportionately increased and the Exercise Price shall remain the same. If the outstanding shares of the Company are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Exercise Price shall be proportionately increased and the number of Shares shall be proportionately decreased.
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2.2 Reclassification, Exchange or Substitution, Etc. Upon any reclassification, exchange, substitution, or other event that results in a change of the number and/or class of the securities issuable upon exercise or net exercise of this Warrant, Holder shall be entitled to receive, upon exercise or net exercise of this Warrant, the number and kind of securities and property that Holder would have received for the Shares if this Warrant had been exercised immediately before such reclassification, exchange, substitution, or other event. The Company or its successor shall promptly issue to Holder an amendment to this Warrant setting forth the number and kind of such new securities or other property issuable upon exercise or net exercise of this Warrant as a result of such reclassification, exchange, substitution or other event that results in a change of the number and/or class of securities issuable upon exercise or net exercise of this Warrant.
2.3 Merger or Consolidation. Upon any capital reorganization of the Company’s capital stock (other than a subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Section 2) or a merger or consolidation of the Company with or into another corporation, then as a part of such reorganization, merger or consolidation, provision shall be made so that the Holder shall thereafter be entitled to receive upon the exercise of this Warrant, the number and kind of securities and property of the Company, or of the successor corporation resulting from such reorganization, merger or consolidation, to which that Holder would have received for the Shares if this Warrant had been exercised immediately before such reorganization, merger or consolidation.
2.4 Fractional Shares. No fractional Shares shall be issuable upon exercise or net exercise of this Warrant and the number of Shares to be issued shall be rounded up to the nearest whole Share.
ARTICLE 3. COVENANTS OF THE COMPANY.
3.1 Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon any of its stock, whether in cash, property, stock, or other securities and whether or not a regular cash dividend; (b) to effect any reclassification or recapitalization of any of its stock; or (c) to merge or consolidate with or into any other corporation, or sell, lease, license, or convey all or substantially all of its assets, or to liquidate, dissolve or wind up, then, in connection with each such event, the Company shall give Holder: (1) at least three (3) days prior written notice of the date on which a record will be taken for such dividend, distribution, or subscription rights (and specifying the date on which the holders of Common Stock will be entitled thereto) or for determining rights to vote, if any, in respect of the matters referred to in (a) above; and (2) in the case of the matters referred to in (b) and (c) above at least three (3) days prior written notice of the date when the same will take place (and specifying the date on which the holders of Common Stock will be entitled to exchange their Common Stock for securities or other property deliverable upon the occurrence of such event).
3.2 No Stockholder Rights or Liabilities. Except as provided in this Warrant, the Holder will not have any rights as a stockholder of the Company until the exercise of this Warrant. Absent an affirmative action by the Holder to purchase the Shares, the Holder shall not have any liability as a stockholder of the Company.
3.3 Closing of Books. The Company will at no time close its transfer books against the transfer of this Warrant or of any Shares issued or issuable upon the exercise of this Warrant in any manner which interferes with the timely exercise of this Warrant.
ARTICLE 4. MISCELLANEOUS.
4.1 Term. This Warrant is exercisable in whole or in part at any time and from time to time on or before the earlier of 5:00 pm GMT on the tenth (10th) anniversary of the Issue Date.
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4.2 Legends. This Warrant and the Shares (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) shall be imprinted with a legend in substantially the following form:
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
4.3 Transfers. This Warrant and the Shares issuable upon exercise of this Warrant (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) may not be transferred or assigned in whole or in part without compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably requested by the Company). After compliance with all restrictions on transfer set forth in this Section 4.3, and within a reasonable time after the Company’s receipt of an executed assignment agreement, the transfer shall be recorded on the books of the Company upon the surrender of this Warrant, properly endorsed, to the Company at its principal offices, and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer. In the event of a partial transfer, the Company shall issue to the new holders one or more appropriate new warrants.
4.4 Notices. All notices and other communications from the Company to the Holder, or vice versa, shall be deemed delivered and effective when given personally or mailed by first-class registered or certified mail, postage prepaid, at such address as may have been furnished to the Company or the Holder, as the case may (or on the first business day after transmission by facsimile) be, in writing by the Company or such Holder from time to time. Effective upon receipt of the fully executed Warrant, all notices to the Holder shall be addressed as set forth on the signature page hereto until the Company receives notice of a change of address in connection with a transfer or otherwise. Notice to the Company shall be addressed as set forth on the signature page hereto until the Holder receives notice of a change in address.
4.5 Waiver. This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought.
4.6 Counterparts. This Warrant may be executed in counterparts, all of which together shall constitute one and the same agreement.
4.7 Governing Law. This Warrant shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its principles regarding conflicts of law.
Please indicate your acceptance of these terms by countersigning where indicated below.
| Slinger Bag Inc. | ||
| Name: | ||
| Title: | ||
| Agreed and accepted: | ||
| Paul McKeown | ||
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Appendix 1
SLINGER BAG INC.
EXERCISE NOTICE
Reference is made to the Warrant dated 30 April 2020 between Slinger Bag Inc. (the “Company”) and Paul McKeown (the “Warrant”). In accordance with and pursuant to the Warrant, the undersigned hereby elects to exercise the Warrant to purchase shares of common stock of the Company as set forth below. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Warrant.
| Date of Exercise: |
| Number of shares of ordinary/common (or its equivalent) stock to be purchased: |
Please issue shares of common stock in the following name and to the following address:
Issue to: _________________________________________
_________________________________________
Address: _________________________________________
Telephone Number: ________________________________
Email address: _________________________________
Holder: __________________________________________
| By: | |
| Title: |
| 15 |
Exhibit 10.4
SERVICE AGREEMENT
THIS AGREEMENT made this 30th day of April 2020 (the “Effective Date”).
BETWEEN:
Slinger Bag Inc., a Nevada company (the “Company”)
AND:
Tom Dye, an individual residing in the State of Pennsylvania (the “Executive”)
A. The Company has offered the Executive the position of Chief Operating Officer of the Company.
B. The Company and the Executive wish to formally record the terms and conditions upon which the Executive will be hired by and serve as chief operating officer of the Company.
C. Each of the Company and the Executive has agreed to the terms and conditions set forth in this Agreement, as evidenced by their respective execution hereof.
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Article 1
CONTRACT FOR SERVICES
| 1.1 | Engagement the Executive as Chief Operating Officer. (a) The Company hereby agrees to hire the Executive as Chief Operating Officer in accordance with the terms and provisions hereof. |
| (i) | Term. Unless terminated earlier in accordance with the provisions hereof, this Agreement will commence on the Effective Date and will continue for a period of three (3) years therefrom (the “Term”). |
| (b) | Service. The Executive agrees to faithfully, honestly and diligently serve the Company and to devote the time, attention efforts to further the business interests of the Company and utilize his professional skills and care during the Term. |
| 1 |
| 1.2 | Duties: The Executive’s services hereunder will be provided on the basis of the following terms and conditions: |
| (a) | Reporting directly to the Chief Executive Officer of the Company, the Executive will serve as the Company’s Chief Operating Officer; | |
| (b) | The Executive will be responsible for setting and managing the Company’s operations, in each case, subject to any applicable law and to instructions provided by the chief executive officer of the Company from time to time. | |
| (c) | The Executive will faithfully, honestly and diligently serve the Company and cooperate with the Company and utilize maximum professional skill and care to ensure that all services rendered hereunder are to the satisfaction of the Company, acting reasonably, and the Executive will provide any other services not specifically mentioned herein, but which by reason of the Executive’s capability, the Executive knows or ought to know to be necessary to ensure that the best interests of the Company are maintained. | |
| (d) | The Executive will assume, obey, implement and execute such duties, directions, responsibilities, procedures, policies and lawful orders as may be determined or given from time to time by the Company. | |
| (e) | The Executive will report the results of his duties hereunder to the Company as it may request from time to time. |
Article 2
COMPENSATION
| 2.1 | Remuneration. |
| (a) | The Executive’s annual base salary shall be one hundred twenty thousand United States dollars ($120,000 (together with any increases thereto as hereinafter provided, the “Base Salary”). The Base Salary shall be payable on a monthly basis in 12 installments in accordance with the Company’s normal payroll procedures in effect from time to time. The Base Salary may be increased by the Board from time to time during the Term, but shall be reviewed by the Board at least annually. | |
| (b) | The Company shall also issue Executive as soon as reasonably practicable warrants to purchase 1,250,000 shares of common stock in the form attached hereto as Annex A. The Company agrees to bear all costs and fees to be charged by the Company’s transfer agent in respect of such shares. The Executive is entitled to receive up to a one-time bonus of 1,500,000 shares of common stock of the Company promptly after the value of the Company’s outstanding stock equals $100 million dollars. |
| 2 |
| (c) | In addition to the foregoing, the Company will grant the Executive additional compensation in the form of cash or shares in cases of extraordinary contribution by him to the benefit of the Company as the Board of Directors of the Company will decide. | |
| (d) | The Executive’s position with the Company requires a special degree of personal trust, and the Company is not able to supervise the number of working hours of the Executive. Therefore, the Executive will not be entitled to any additional remuneration whatsoever for his work with the exception of that specifically set out in this Agreement. The Executive has other business interests and, as such, shall be permitted to spend such time as the Executive deems necessary or expedient on such interests, so long as there is no adverse material impact on the Executive’s performance of his obligations hereunder. |
| 2.2 | Incentive Plans. The Executive will be entitled to participate in any bonus plan or incentive compensation plans (including, without limitation, equity or option plans) for its directors, officers or employees adopted by the Company. The Executive’s bonus payment level will be set at a minimum of 25% of the annual gross base salary. It is agreed that any such plans will be retroactive to the Effective Date. |
| 2.3 | Expenses. The Executive will be reimbursed by the Company for all reasonable business expenses incurred by the Executive in connection with his duties. This includes, but is not limited to, payments of expenses incurred when traveling abroad and others. In this connection, the Executive will be issued, as soon as practicable, a Company credit card that the Executive will use to pay for any and all expenses that pertain to the Company. |
Article 3
Insurance and Benefits
| 3.1 | Liability Insurance Indemnification. The Company will insure the Executive (including his heirs, executors and administrators) with coverage under a standard directors’ and officers’ liability insurance policy at the Company’s expense. |
Article 4
CONFIDENTIALITY AND NON-COMPETITION
| 4.1 | Maintenance of Confidential Information. |
| (a) | The Executive acknowledges that, in the course of performing his obligations hereunder, the Executive will, either directly or indirectly, have access to and be entrusted with confidential information (whether oral, written or by inspection) relating to the Company or its respective affiliates, associates or customers (the “Confidential Information”). | |
| (b) | The Executive acknowledges that the Company’s Confidential Information constitutes a proprietary right, which the Company is entitled to protect. Accordingly, the Executive covenants and agrees that, as long as he works for the Company, the Executive will keep in strict confidence the Company’s Confidential Information and will not, without prior written consent of the Company, disclose, use or otherwise disseminate the Company’s Confidential Information, directly or indirectly, to any third party. |
| 3 |
| (c) | The Executive agrees that, upon termination of his services for the Company, he will immediately surrender to the Company all Company Confidential Information then in his possession or under his control. |
| 4.2 | Exceptions. The general prohibition contained in Section 4.1 against the unauthorized disclosure, use or dissemination of the Company’s Confidential Information will not apply in respect of any Company Confidential Information that: |
| (a) | is available to the public generally; | |
| (b) | becomes part of the public domain through no fault of the Executive; | |
| (c) | is already in the lawful possession of the Executive at the time of receipt of the Company’s Confidential Information; or | |
| (d) | is compelled by applicable law or regulation to be disclosed, provided that the Executive gives the Company prompt written notice of such requirement prior to such disclosure and provides commercially reasonable assistance at the request and expense of the Company, in obtaining an order protecting the Company’s Confidential Information from public disclosure. |
Article 5
termination
| 5.1 | Termination of Employment. The Executive’s employment may be terminated only as follows: |
| (a) | Termination by the Company |
| (i) | For Cause. The Company may terminate the Executive’s employment for Cause. | |
| (ii) | Without Cause. The Company may terminate Executive’s employment at any time by giving Executive 60 days prior written Notice of the termination. In such case, 100% of the Executive’s unvested stock, warrant and option compensation of any nature will vest without any further action required on the part of the Executive or the Company and the Company will deliver to the order of the Executive promptly upon receipt of a written demand of the Executive such shares of common stock or options at its sole expense as become due to Executive hereunder. The Executive’s right to receive compensation whether in cash or securities shall survive any termination of this Agreement Without Cause. |
| 4 |
| (b) | Termination by the Executive |
| (i) | For Good Reason. The Executive may terminate the Executive’s employment with the Company for Good Reason. | |
| (ii) | Without Good Reason. The Executive may voluntarily terminate the Executive’s employment with the Company at any time by giving the Company 30 days prior written Notice of the termination. |
| (c) | Termination Upon Death or Disability |
| (i) | Death. The Executive’s employment shall terminate upon the Executive’s death. | |
| (ii) | Disability. The Company may terminate the Executive’s employment upon the Executive’s Disability. |
| (d) | For the purpose of this Article 5, “Cause” means: |
| (i) | Breach of Agreement. Executive’s material breach of Executive’s obligations of this Agreement, not cured after 30 days’ Notice from the Company. | |
| (ii) | Gross Negligence. Executive’s gross negligence in the performance of Executive’s duties. | |
| (iii) | Crimes and Dishonesty. Executive’s conviction of or plea guilty to any crime involving, dishonesty, fraud or moral turpitude. | |
| (iv) | In the event of termination of this agreement for Cause, the Company may terminate the Executive’s employment after 30 days’ Notice. |
| (e) | For the purpose of this Article 5, “Good Reason” means: |
| (i) | Breach of Agreement. The Company’s material breach of this Agreement, which breach has not been cured by the Company within 30 days after receipt of written notice specifying, in reasonable detail, the nature of such breach or failure from Executive. | |
| (ii) | Non-Payment. The failure of the Company to pay any amount due to Executive hereunder, which failure persists for 30 days after written notice of such failure has been received by the Company. | |
| (iii) | Change of Responsibilities/Compensation. Any material reduction in Executive’s title or a material reduction in Executive’s duties or responsibilities or any material adverse change in Executive’s Base Salary or any material adverse change in Executive’s benefits. |
| 5 |
| (iv) | Change of Location. Any relocation of the premises at which Executive works to a location more than 20 kilometers from such location, without Executive’s consent. |
| (f) | It is agreed that in the event of termination of this agreement if the Company decides that the Executive’s services are not needed during the termination period, the Company will continue to be responsible for paying cash and equity compensation as defined in Article 2 of this Agreement for the entire termination period. Neither the Company, nor the Executive will be entitled to any notice, or payment in excess of that specified in this Article 5. | |
| (g) | Upon the termination (whether for cause, disability, death, without cause, or by way of change of control), the Company shall pay to Executive on the date required under applicable law: (i) any accrued but unpaid Base Salary for services rendered as of the date of termination, (ii) (if applicable) any accrued but unpaid vacation pay, and (iii) the business expenses reasonably incurred by the Executive up to the date of termination or resignation and properly reimbursable, in each case less any applicable deductions or withholdings required by law. |
Section 5.2 Termination for Cause, Disability or Death
In the event that this Agreement and the Executive’s employment with the Company is terminated for Cause, the Company shall provide the Executive written notice thereof and Executive shall be entitled only to the amounts specified in Section 5.1 plus all vested common or preferred shares and, if applicable options and warrants.
Section 5.3 Termination without Cause
In the event this Agreement and the Executive’s employment with the Company is terminated by the Company without Cause (other than for death or Disability or in connection with a change of control), then in addition to the amounts specified in Section 5.1 and subject to the Executive’s execution and non-revocation of a separation agreement containing a general release and waiver of liability against the Company and anyone connected with it in form acceptable to the Company, the Executive shall be entitled to receive, and the Company shall pay the Executive, two (2) years Base Salary (less statutory deductions and withholdings) in a single lump sum, paid in full within 30 days of termination. Further, Executive shall be entitled to all vested common or preferred shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable.
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Article 6
Mutual Representations
| 6.1 | The Executive represents and warrants to the Company that the execution and delivery of this Agreement and the fulfilment of the terms hereof |
| (a) | will not constitute a default under or conflict with any agreement or other instrument to which he is a party or by which he is bound; and | |
| (b) | do not require the consent of any person or entity. |
| 6.2 | The Company represents and warrants to the Executive that this Agreement has been duly authorized, executed and delivered by the Company and that the fulfilment of the terms hereof |
| (a) | will not constitute a default under or conflict with any agreement of other instrument to which it is a party or by which it is bound; and | |
| (b) | do not require the consent of any person of entity. |
| 6.3 | Each party hereto warrants and represents to the other that this Agreement constitutes the valid and binding obligation of such party enforceable against such party in accordance with its terms subject to applicable bankruptcy, insolvency, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless if enforcement is sought in proceeding in equity or at law). |
Article 7
notices
| 7.1 | Notices. All notices required or allowed to be given under this Agreement must be made either personally by delivery to or by facsimile transmission to the address as hereinafter set forth or to such other address as may be designated from time to time by such party in writing: |
| (a) | in the case of the Company, to: |
Slinger Bag Inc.
To be provided under separate cover within three days after the date hereof; in the event that Executive does not receive notice of address within such period, then Executive shall be entitled to send any notice to any email address of the Company known to Executive and the sending of any such notice shall constitute receipt of notice whether the Company receives such notice or not.
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| (b) | and in the case of the Executive, to the Executive’s last residence address known to the Company or juda@slingerbag.com. |
| 7.2 | Change of Address. Any party may, from time to time, change its address for service hereunder by written notice to the other party in the manner aforesaid. |
Article 8
GENERAL
| 8.1 | Further Assurances. Each party hereto will promptly and duly execute and deliver to the other party such further documents and assurances and take such further action as such other party may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created hereby. |
| 8.2 | Waiver. No provision hereof will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is made in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of this Agreement will not be construed as a waiver of a further breach of the same provision. |
| 8.3 | Amendments in Writing. No amendment, modification or rescission of this Agreement will be effective unless set forth in writing and signed by the parties hereto. |
| 8.4 | Assignment. Except as herein expressly provided, the respective rights and obligations of the Executive and the Company under this Agreement will not be assignable by either party without the written consent of the other party and will, subject to the foregoing, inure to the benefit of and be binding upon the Executive and the Company and their permitted successors or assigns. Nothing herein expressed or implied is intended to confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement. For the avoidance of doubt, it is agreed that in the event that the Company participates in a merger, acquisition, restructuring, regoranization or other transaction in which the Company is merged into, sold to or otherwise becomes part of or owned by another company or entity, this Agreement will remain in force and be binding on any such successor, surviving or acquiring company or entity. |
| 8.5 | The Company acknowledges and agrees that the Executive may submit to the Company invoices from a company that employs him in lieu of invoices on his name. The Executive confirms that any such invoice will replace his own invoice and he agrees that his fees will be paid by the Company to third parties provided that it is done as per his instructions to the Company. |
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| 8.6 | Severability. In the event that any provision contained in this Agreement is declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, such provision will be deemed not to affect or impair the validity or enforceability of any other provision of this Agreement, which will continue to have full force and effect. |
| 8.7 | Headings. The headings in this Agreement are inserted for convenience of reference only and will not affect the construction or interpretation of this Agreement. |
| 8.8 | Number and Gender. Wherever the singular or masculine or neuter is used in this Agreement, the same will be construed as meaning the plural or feminine or a body politic or corporate and vice versa where the context so requires. |
| 8.9 | Time. Time is of the essence in this Agreement. |
| 8.10 | Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of New York without reference to its conflicts of laws principles or the conflicts of laws principles of any other jurisdiction, and each of the parties hereto expressly attorns to the jurisdiction of the courts of the State of New York. The sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement will be the applicable New York state or federal court. |
| 8.11 | This Agreement (including all Annexes thereto) constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to this matter. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date and year first above written.
| Slinger Bag Inc. | ||
| Name: | Mike Ballardie | |
| Title: | CEO | |
| Agreed and accepted | ||
| Tom Dye | ||
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Annex A
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 4 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE COMMON STOCK
Company: Slinger Bag Inc.
Holder: Tom Dye
Shares: 1,250,000 shares of the Company’s common stock.
Class of Stock: common shares of stock of the Company
Exercise Price per share: par value on a cashless basis (as described in more detail below)
Issue Date: 30 April 2020
Term: See Section 4.1
THIS WARRANT CERTIFIES THAT, for value received as consideration pursuant to that certain amended and restated service agreement dated 30 April 2020 (the “Service Agreement”) and for other good and valuable consideration the sufficiency of which is hereby acknowledged, Holder is entitled to receive the Shares in the form of fully paid and nonassessable shares of the Company at the Exercise Price, all as set forth herein, subject to the provisions and upon the terms and conditions set forth in this Warrant.
ARTICLE 1. EXERCISE.
1.1 Method of Exercise. Payment.
(a) Cash Exercise. The purchase rights represented by this Warrant may be exercised by the Holder, in whole or in part, by the surrender of this Warrant (with the notice of exercise form attached hereto as Appendix 1 duly executed) at the principal office of the Company, and by the payment to the Company, by certified, cashier’s or other check acceptable to the Company or by wire transfer to an account designated by the Company, of an amount equal to the aggregate Exercise Price of the Shares being purchased.
(b) Net Issue Exercise. In lieu of exercising this Warrant, the Holder may elect to receive Shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with notice of such election, in which event the Company shall issue to the Holder a number of Warrant Shares computed using the following formula:
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Y (A-B) X = ——————— A |
| Where: | X | = | the number of Shares to be issued to the Holder. | |||
| Y | = | the number of the Shares being exercised on the date of determination. | ||||
| A | = | the fair market value of one Share on the date of determination. | ||||
| B | = | the per share Exercise Price (as adjusted to the date of such calculation). | ||||
(c) Fair Market Value. For purposes of this Article 1, the per share fair market value of the Warrant Shares shall mean:
(i) If the Company’s Common Stock is publicly traded, the per share fair market value of the Warrant Shares shall be the average of the closing prices of the Common Stock as quoted on the Over-the-Counter Bulletin Board, or the principal exchange on which the Common Stock is listed, in each case for the fifteen trading days ending five trading days prior to the date of determination of fair market value;
(ii) If the Company’s Common Stock is not so publicly traded, the per share fair market value of the Warrant Shares shall be such fair market value as is determined in good faith by the Board of Directors of the Company after taking into consideration factors it deems appropriate, including, without limitation, recent sale and offer prices of the capital stock of the Company in private transactions negotiated at arm’s length.
1.2 Delivery of Certificate and New Warrant. Promptly after Holder first exercises this Warrant, the Company shall deliver to Holder certificates for or other evidence (reasonably acceptable to the Holder) of the Shares received and, if this Warrant has not been fully exercised and has not expired, a new Warrant representing the Shares not so received.
1.3 Replacement of Warrants. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 Stock Dividends, Splits, Combinations, Etc. If the Company declares or pays a dividend on the Shares payable in Common Stock, or other securities, then upon exercise of this Warrant, for each Share acquired, Holder shall receive, without cost to Holder, the total number and kind of securities to which Holder would have been entitled had Holder owned the Shares of record as of the date the dividend occurred. If the Company subdivides the Shares by reclassification or otherwise into a greater number of shares or takes any other action which increases the amount of stock into which the Shares are convertible, the number of shares purchasable hereunder shall be proportionately increased and the Exercise Price shall remain the same. If the outstanding shares of the Company are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Exercise Price shall be proportionately increased and the number of Shares shall be proportionately decreased.
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2.2 Reclassification, Exchange or Substitution, Etc. Upon any reclassification, exchange, substitution, or other event that results in a change of the number and/or class of the securities issuable upon exercise or net exercise of this Warrant, Holder shall be entitled to receive, upon exercise or net exercise of this Warrant, the number and kind of securities and property that Holder would have received for the Shares if this Warrant had been exercised immediately before such reclassification, exchange, substitution, or other event. The Company or its successor shall promptly issue to Holder an amendment to this Warrant setting forth the number and kind of such new securities or other property issuable upon exercise or net exercise of this Warrant as a result of such reclassification, exchange, substitution or other event that results in a change of the number and/or class of securities issuable upon exercise or net exercise of this Warrant.
2.3 Merger or Consolidation. Upon any capital reorganization of the Company’s capital stock (other than a subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Section 2) or a merger or consolidation of the Company with or into another corporation, then as a part of such reorganization, merger or consolidation, provision shall be made so that the Holder shall thereafter be entitled to receive upon the exercise of this Warrant, the number and kind of securities and property of the Company, or of the successor corporation resulting from such reorganization, merger or consolidation, to which that Holder would have received for the Shares if this Warrant had been exercised immediately before such reorganization, merger or consolidation.
2.4 Fractional Shares. No fractional Shares shall be issuable upon exercise or net exercise of this Warrant and the number of Shares to be issued shall be rounded up to the nearest whole Share.
ARTICLE 3. COVENANTS OF THE COMPANY.
3.1 Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon any of its stock, whether in cash, property, stock, or other securities and whether or not a regular cash dividend; (b) to effect any reclassification or recapitalization of any of its stock; or (c) to merge or consolidate with or into any other corporation, or sell, lease, license, or convey all or substantially all of its assets, or to liquidate, dissolve or wind up, then, in connection with each such event, the Company shall give Holder: (1) at least three (3) days prior written notice of the date on which a record will be taken for such dividend, distribution, or subscription rights (and specifying the date on which the holders of Common Stock will be entitled thereto) or for determining rights to vote, if any, in respect of the matters referred to in (a) above; and (2) in the case of the matters referred to in (b) and (c) above at least three (3) days prior written notice of the date when the same will take place (and specifying the date on which the holders of Common Stock will be entitled to exchange their Common Stock for securities or other property deliverable upon the occurrence of such event).
3.2 No Stockholder Rights or Liabilities. Except as provided in this Warrant, the Holder will not have any rights as a stockholder of the Company until the exercise of this Warrant. Absent an affirmative action by the Holder to purchase the Shares, the Holder shall not have any liability as a stockholder of the Company.
3.3 Closing of Books. The Company will at no time close its transfer books against the transfer of this Warrant or of any Shares issued or issuable upon the exercise of this Warrant in any manner which interferes with the timely exercise of this Warrant.
ARTICLE 4. MISCELLANEOUS.
4.1 Term. This Warrant is exercisable in whole or in part at any time and from time to time on or before the earlier of 5:00 pm GMT on the tenth (10th) anniversary of the Issue Date.
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4.2 Legends. This Warrant and the Shares (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) shall be imprinted with a legend in substantially the following form:
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
4.3 Transfers. This Warrant and the Shares issuable upon exercise of this Warrant (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) may not be transferred or assigned in whole or in part without compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably requested by the Company). After compliance with all restrictions on transfer set forth in this Section 4.3, and within a reasonable time after the Company’s receipt of an executed assignment agreement, the transfer shall be recorded on the books of the Company upon the surrender of this Warrant, properly endorsed, to the Company at its principal offices, and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer. In the event of a partial transfer, the Company shall issue to the new holders one or more appropriate new warrants.
4.4 Notices. All notices and other communications from the Company to the Holder, or vice versa, shall be deemed delivered and effective when given personally or mailed by first-class registered or certified mail, postage prepaid, at such address as may have been furnished to the Company or the Holder, as the case may (or on the first business day after transmission by facsimile) be, in writing by the Company or such Holder from time to time. Effective upon receipt of the fully executed Warrant, all notices to the Holder shall be addressed as set forth on the signature page hereto until the Company receives notice of a change of address in connection with a transfer or otherwise. Notice to the Company shall be addressed as set forth on the signature page hereto until the Holder receives notice of a change in address.
4.5 Waiver. This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought.
4.6 Counterparts. This Warrant may be executed in counterparts, all of which together shall constitute one and the same agreement.
4.7 Governing Law. This Warrant shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its principles regarding conflicts of law.
Please indicate your acceptance of these terms by countersigning where indicated below.
| Slinger Bag Inc. | ||
| Name: | ||
| Title: | ||
|
Agreed and accepted: | ||
| Tom Dye | ||
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Appendix 1
SLINGER BAG INC.
EXERCISE NOTICE
Reference is made to the Warrant dated 30 April 2020 between Slinger Bag Inc. (the “Company”) and Tom Dye (the “Warrant”). In accordance with and pursuant to the Warrant, the undersigned hereby elects to exercise the Warrant to purchase shares of common stock of the Company as set forth below. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Warrant.
Date of Exercise: ______________________________________________
Number of shares of ordinary/common (or
its equivalent) stock to be purchased: _______________________________
Please issue shares of common stock in the following name and to the following address:
Issue to: _________________________________________
_________________________________________
Address: _________________________________________
Telephone Number: ________________________________
Email address: _________________________________
Holder:__________________________________________
| By: | |
| Title: |
| 14 |
Exhibit 10.5
SERVICE AGREEMENT
THIS AGREEMENT made this 30th day of April 2020 (the “Effective Date”).
BETWEEN:
Slinger Bag Inc., a Nevada corporation
(the “Company”)
AND:
Nest Consulting Inc., a Delaware corporation acting through Juda Honickman (the “Executive”)
A. The Company has offered the Executive the position of Chief Marketing Officer of the Company.
B. The Company and the Executive wish to formally record the terms and conditions upon which the Executive will be hired by and serve as chief marketing officer of the Company.
C. Each of the Company and the Executive has agreed to the terms and conditions set forth in this Agreement, as evidenced by their respective execution hereof.
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Article 1
CONTRACT FOR SERVICES
| 1.1 | Engagement the Executive as Chief Marketing Officer. (a) The Company hereby agrees to hire the Executive as Chief Marketing Officer in accordance with the terms and provisions hereof. |
| (i) | Term. Unless terminated earlier in accordance with the provisions hereof, this Agreement will commence on the Effective Date and will continue for a period of three (3) years therefrom (the “Term”). |
| (b) | Service. The Executive agrees to faithfully, honestly and diligently serve the Company and to devote the time, attention efforts to further the business interests of the Company and utilize his professional skills and care during the Term. |
| 1 |
| 1.2 | Duties: The Executive’s services hereunder will be provided on the basis of the following terms and conditions: |
| (a) | Reporting directly to the Chief Executive Officer of the Company, the Executive will serve as the Company’s Chief Marketing Officer; | |
| (b) | The Executive will be responsible for setting and managing the Company’s marketing and promotion activities, operations and campaigns, liaising and instructing outside service providers, in each case, subject to any applicable law and to instructions provided by the chief executive officer of the Company from time to time. | |
| (c) | The Executive will faithfully, honestly and diligently serve the Company and cooperate with the Company and utilize maximum professional skill and care to ensure that all services rendered hereunder are to the satisfaction of the Company, acting reasonably, and the Executive will provide any other services not specifically mentioned herein, but which by reason of the Executive’s capability, the Executive knows or ought to know to be necessary to ensure that the best interests of the Company are maintained. | |
| (d) | The Executive will assume, obey, implement and execute such duties, directions, responsibilities, procedures, policies and lawful orders as may be determined or given from time to time by the Company. | |
| (e) | The Executive will report the results of his duties hereunder to the Company as it may request from time to time. |
Article 2
COMPENSATION
| 2.1 | Remuneration. |
| (a) | The Executive’s annual base salary shall be one hundred thousand United States dollars ($102,000 (together with any increases thereto as hereinafter provided, the “Base Salary”). The Base Salary shall be payable on a monthly basis in 12 installments in accordance with the Company’s normal payroll procedures in effect from time to time. The Base Salary may be increased by the Board from time to time during the Term, but shall be reviewed by the Board at least annually. | |
| (b) | The Company shall also issue Executive as soon as reasonably practicable warrants to purchase 2,500,000 shares of common stock in the form attached hereto as Annex A. The Company agrees to bear all costs and fees to be charged by the Company’s transfer agent in respect of such shares. |
| 2 |
| (c) | In addition to the foregoing, the Company will grant the Executive additional compensation in the form of cash or shares in cases of extraordinary contribution by him to the benefit of the Company as the Board of Directors of the Company will decide. | |
| (d) | The Executive’s position with the Company requires a special degree of personal trust, and the Company is not able to supervise the number of working hours of the Executive. Therefore, the Executive will not be entitled to any additional remuneration whatsoever for his work with the exception of that specifically set out in this Agreement. The Executive has other business interests and, as such, shall be permitted to spend such time as the Executive deems necessary or expedient on such interests, so long as there is no adverse material impact on the Executive’s performance of his obligations hereunder. |
| 2.2 | Incentive Plans. The Executive will be entitled to participate in any bonus plan or incentive compensation plans (including, without limitation, equity or option plans) for its directors, officers or employees adopted by the Company. The Executives bonus payment level will be set at a minimum of 50% of the annual gross base salary. It is agreed that any such plans will be retroactive to the Effective Date. |
| 2.3 | Expenses. The Executive will be reimbursed by the Company for all reasonable business expenses incurred by the Executive in connection with his duties. This includes, but is not limited to, payments of expenses incurred when traveling abroad and others. In this connection, the Executive will be issued, as soon as practicable, a Company credit card that the Executive will use to pay for any and all expenses that pertain to the Company. |
Article 3
Insurance and Benefits
| 3.1 | Liability Insurance Indemnification. The Company will insure the Executive (including his heirs, executors and administrators) with coverage under a standard directors’ and officers’ liability insurance policy at the Company’s expense. |
Article 4
CONFIDENTIALITY AND NON-COMPETITION
| 4.1 | Maintenance of Confidential Information. |
| (a) | The Executive acknowledges that, in the course of performing his obligations hereunder, the Executive will, either directly or indirectly, have access to and be entrusted with confidential information (whether oral, written or by inspection) relating to the Company or its respective affiliates, associates or customers (the “Confidential Information”). | |
| (b) | The Executive acknowledges that the Company’s Confidential Information constitutes a proprietary right, which the Company is entitled to protect. Accordingly, the Executive covenants and agrees that, as long as he works for the Company, the Executive will keep in strict confidence the Company’s Confidential Information and will not, without prior written consent of the Company, disclose, use or otherwise disseminate the Company’s Confidential Information, directly or indirectly, to any third party. |
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| (c) | The Executive agrees that, upon termination of his services for the Company, he will immediately surrender to the Company all Company Confidential Information then in his possession or under his control. |
| 4.2 | Exceptions. The general prohibition contained in Section 4.1 against the unauthorized disclosure, use or dissemination of the Company’s Confidential Information will not apply in respect of any Company Confidential Information that: |
| (a) | is available to the public generally; | |
| (b) | becomes part of the public domain through no fault of the Executive; | |
| (c) | is already in the lawful possession of the Executive at the time of receipt of the Company’s Confidential Information; or | |
| (d) | is compelled by applicable law or regulation to be disclosed, provided that the Executive gives the Company prompt written notice of such requirement prior to such disclosure and provides commercially reasonable assistance at the request and expense of the Company, in obtaining an order protecting the Company’s Confidential Information from public disclosure. |
Article 5
termination
| 5.1 | Termination of Employment. The Executive’s employment may be terminated only as follows: |
| (a) | Termination by the Company |
| (i) | For Cause. The Company may terminate the Executive’s employment for Cause. | |
| (ii) | Without Cause. The Company may terminate Executive’s employment at any time by giving Executive 60 days prior written Notice of the termination. In such case, 100% of the Executive’s unvested stock, warrant and option compensation of any nature will vest without any further action required on the part of the Executive or the Company and the Company will deliver to the order of the Executive promptly upon receipt of a written demand of the Executive such shares of common stock or options at its sole expense as become due to Executive hereunder. The Executive’s right to receive compensation whether in cash or securities shall survive any termination of this Agreement Without Cause. |
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| (b) | Termination by the Executive |
| (i) | For Good Reason. The Executive may terminate the Executive’s employment with the Company for Good Reason. | |
| (ii) | Without Good Reason. The Executive may voluntarily terminate the Executive’s employment with the Company at any time by giving the Company 30 days prior written Notice of the termination. |
| (c) | Termination Upon Death or Disability |
| (i) | Death. The Executive’s employment shall terminate upon the Executive’s death. | |
| (ii) | Disability. The Company may terminate the Executive’s employment upon the Executive’s Disability. |
| (d) | For the purpose of this Article 5, “Cause” means: |
| (i) | Breach of Agreement. Executive’s material breach of Executive’s obligations of this Agreement, not cured after 30 days’ Notice from the Company. | |
| (ii) | Gross Negligence. Executive’s gross negligence in the performance of Executive’s duties. | |
| (iii) | Crimes and Dishonesty. Executive’s conviction of or plea guilty to any crime involving, dishonesty, fraud or moral turpitude. | |
| (iv) | In the event of termination of this agreement for Cause, the Company may terminate the Executive’s employment after 30 days’ Notice. |
| (e) | For the purpose of this Article 5, “Good Reason” means: |
| (i) | Breach of Agreement. The Company’s material breach of this Agreement, which breach has not been cured by the Company within 30 days after receipt of written notice specifying, in reasonable detail, the nature of such breach or failure from Executive. | |
| (ii) | Non-Payment. The failure of the Company to pay any amount due to Executive hereunder, which failure persists for 30 days after written notice of such failure has been received by the Company. | |
| (iii) | Change of Responsibilities/Compensation. Any material reduction in Executive’s title or a material reduction in Executive’s duties or responsibilities or any material adverse change in Executive’s Base Salary or any material adverse change in Executive’s benefits. |
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| (iv) | Change of Location. Any relocation of the premises at which Executive works to a location more than 20 kilometers from such location, without Executive’s consent. |
| (f) | It is agreed that in the event of termination of this agreement if the Company decides that the Executive’s services are not needed during the termination period, the Company will continue to be responsible for paying cash and equity compensation as defined in Article 2 of this Agreement for the entire termination period. Neither the Company, nor the Executive will be entitled to any notice, or payment in excess of that specified in this Article 5. | |
| (g) | Upon the termination (whether for cause, disability, death, without cause, or by way of change of control), the Company shall pay to Executive on the date required under applicable law: (i) any accrued but unpaid Base Salary for services rendered as of the date of termination, (ii) (if applicable) any accrued but unpaid vacation pay, and (iii) the business expenses reasonably incurred by the Executive up to the date of termination or resignation and properly reimbursable, in each case less any applicable deductions or withholdings required by law. |
Section 5.2 Termination for Cause, Disability or Death
In the event that this Agreement and the Executive’s employment with the
Company is terminated for Cause, the Company shall provide the Executive written notice thereof and Executive shall be entitled only to the amounts specified in Section 5.1 plus all vested common shares and, if applicable options and warrants.
Section 5.3 Termination without Cause
In the event this Agreement and the Executive’s employment with the
Company is terminated by the Company without Cause (other than for death or Disability or in connection with a change of control), then in addition to the amounts specified in Section 5.1 and subject to the Executive’s execution and non-revocation of a separation agreement containing a general release and waiver of liability against the Company and anyone connected with it in form acceptable to the Company, the Executive shall be entitled to receive, and the Company shall pay the Executive, two (2) years Base Salary (less statutory deductions and withholdings) in a single lump sum, paid in full within 30 days of termination. Further, Executive shall be entitled to all vested common and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable.
| 6 |
Article 6
Mutual Representations
| 6.1 | The Executive represents and warrants to the Company that the execution and delivery of this Agreement and the fulfilment of the terms hereof |
| (a) | will not constitute a default under or conflict with any agreement or other instrument to which he is a party or by which he is bound; and | |
| (b) | do not require the consent of any person or entity. |
| 6.2 | The Company represents and warrants to the Executive that this Agreement has been duly authorized, executed and delivered by the Company and that the fulfilment of the terms hereof |
| (a) | will not constitute a default under or conflict with any agreement of other instrument to which it is a party or by which it is bound; and | |
| (b) | do not require the consent of any person of entity. |
| 6.3 | Each party hereto warrants and represents to the other that this Agreement constitutes the valid and binding obligation of such party enforceable against such party in accordance with its terms subject to applicable bankruptcy, insolvency, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless if enforcement is sought in proceeding in equity or at law). |
Article 7
notices
| 7.1 | Notices. All notices required or allowed to be given under this Agreement must be made either personally by delivery to or by facsimile transmission to the address as hereinafter set forth or to such other address as may be designated from time to time by such party in writing: |
| (a) | in the case of the Company, to: |
Slinger Bag Inc.
To be provided under separate cover within three days after the date hereof; in the event that Executive does not receive notice of address within such period, then Executive shall be entitled to send any notice to any email address of the Company known to Executive and the sending of any such notice shall constitute receipt of notice whether the Company receives such notice or not.
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| (b) | and in the case of the Executive, to the Executive’s last residence address known to the Company or juda@slingerbag.com. |
| 7.2 | Change of Address. Any party may, from time to time, change its address for service hereunder by written notice to the other party in the manner aforesaid. |
Article 8
GENERAL
| 8.1 | Further Assurances. Each party hereto will promptly and duly execute and deliver to the other party such further documents and assurances and take such further action as such other party may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created hereby. |
| 8.2 | Waiver. No provision hereof will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is made in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of this Agreement will not be construed as a waiver of a further breach of the same provision. |
| 8.3 | Amendments in Writing. No amendment, modification or rescission of this Agreement will be effective unless set forth in writing and signed by the parties hereto. |
| 8.4 | Assignment. Except as herein expressly provided, the respective rights and obligations of the Executive and the Company under this Agreement will not be assignable by either party without the written consent of the other party and will, subject to the foregoing, inure to the benefit of and be binding upon the Executive and the Company and their permitted successors or assigns. Nothing herein expressed or implied is intended to confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement. For the avoidance of doubt, it is agreed that in the event that the Company participates in a merger, acquisition, restructuring, regoranization or other transaction in which the Company is merged into, sold to or otherwise becomes part of or owned by another company or entity, this Agreement will remain in force and be binding on any such successor, surviving or acquiring company or entity. |
| 8.5 | The Company acknowledges and agrees that the Executive may submit to the Company invoices from a company that employs him in lieu of invoices on his name. The Executive confirms that any such invoice will replace his own invoice and he agrees that his fees will be paid by the Company to third parties provided that it is done as per his instructions to the Company. |
| 8.6 | Severability. In the event that any provision contained in this Agreement is declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, such provision will be deemed not to affect or impair the validity or enforceability of any other provision of this Agreement, which will continue to have full force and effect. |
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| 8.7 | Headings. The headings in this Agreement are inserted for convenience of reference only and will not affect the construction or interpretation of this Agreement. |
| 8.8 | Number and Gender. Wherever the singular or masculine or neuter is used in this Agreement, the same will be construed as meaning the plural or feminine or a body politic or corporate and vice versa where the context so requires. |
| 8.9 | Time. Time is of the essence in this Agreement. |
| 8.10 | Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of New York without reference to its conflicts of laws principles or the conflicts of laws principles of any other jurisdiction, and each of the parties hereto expressly attorns to the jurisdiction of the courts of the State of New York. The sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement will be the applicable New York state or federal court. |
| 8.11 | This Agreement (including all Annexes thereto) constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to this matter. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date and year first above written.
| Slinger Bag Inc. | ||
| /s/Mike Ballardie | ||
| Name: | Mike Ballardie | |
| Title: | CEO | |
| Agreed and accepted: | ||
| Nest Consulting Inc. | ||
| Name: | Juda Honickman | |
| Title: | Authorized Signatory | |
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Annex A
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 4 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE COMMON STOCK
Company: Slinger Bag Inc.
Holder: Juda Honickman
Shares: 2,500,000 shares of the Company’s common stock.
Class of Stock: common shares of stock of the Company
Exercise Price per share: par value on a cashless basis (as described in more detail below)
Issue Date: 30 April 2020
Term: See Section 4.1
THIS WARRANT CERTIFIES THAT, for value received as consideration pursuant to that certain amended and restated service agreement dated 30 April 2020 (the “Service Agreement”) and for other good and valuable consideration the sufficiency of which is hereby acknowledged, Holder is entitled to receive the Shares in the form of fully paid and nonassessable shares of the Company at the Exercise Price, all as set forth herein, subject to the provisions and upon the terms and conditions set forth in this Warrant.
ARTICLE 1. EXERCISE.
1.1 Method of Exercise. Payment.
(a) Cash Exercise. The purchase rights represented by this Warrant may be exercised by the Holder, in whole or in part, by the surrender of this Warrant (with the notice of exercise form attached hereto as Appendix 1 duly executed) at the principal office of the Company, and by the payment to the Company, by certified, cashier’s or other check acceptable to the Company or by wire transfer to an account designated by the Company, of an amount equal to the aggregate Exercise Price of the Shares being purchased.
(b) Net Issue Exercise. In lieu of exercising this Warrant, the Holder may elect to receive Shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with notice of such election, in which event the Company shall issue to the Holder a number of Warrant Shares computed using the following formula:
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Y (A-B)
X = ———————
A
| Where: | X | = | the number of Shares to be issued to the Holder. | |||
| Y | = | the number of the Shares being exercised on the date of determination. | ||||
| A | = | the fair market value of one Share on the date of determination. | ||||
| B | = | the per share Exercise Price (as adjusted to the date of such calculation). | ||||
(c) Fair Market Value. For purposes of this Article 1, the per share fair market value of the Warrant Shares shall mean:
(i) If the Company’s Common Stock is publicly traded, the per share fair market value of the Warrant Shares shall be the average of the closing prices of the Common Stock as quoted on the Over-the-Counter Bulletin Board, or the principal exchange on which the Common Stock is listed, in each case for the fifteen trading days ending five trading days prior to the date of determination of fair market value;
(ii) If the Company’s Common Stock is not so publicly traded, the per share fair market value of the Warrant Shares shall be such fair market value as is determined in good faith by the Board of Directors of the Company after taking into consideration factors it deems appropriate, including, without limitation, recent sale and offer prices of the capital stock of the Company in private transactions negotiated at arm’s length.
1.2 Delivery of Certificate and New Warrant. Promptly after Holder first exercises this Warrant, the Company shall deliver to Holder certificates for or other evidence (reasonably acceptable to the Holder) of the Shares received and, if this Warrant has not been fully exercised and has not expired, a new Warrant representing the Shares not so received.
1.3 Replacement of Warrants. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 Stock Dividends, Splits, Combinations, Etc. If the Company declares or pays a dividend on the Shares payable in Common Stock, or other securities, then upon exercise of this Warrant, for each Share acquired, Holder shall receive, without cost to Holder, the total number and kind of securities to which Holder would have been entitled had Holder owned the Shares of record as of the date the dividend occurred. If the Company subdivides the Shares by reclassification or otherwise into a greater number of shares or takes any other action which increases the amount of stock into which the Shares are convertible, the number of shares purchasable hereunder shall be proportionately increased and the Exercise Price shall remain the same. If the outstanding shares of the Company are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Exercise Price shall be proportionately increased and the number of Shares shall be proportionately decreased.
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2.2 Reclassification, Exchange or Substitution, Etc. Upon any reclassification, exchange, substitution, or other event that results in a change of the number and/or class of the securities issuable upon exercise or net exercise of this Warrant, Holder shall be entitled to receive, upon exercise or net exercise of this Warrant, the number and kind of securities and property that Holder would have received for the Shares if this Warrant had been exercised immediately before such reclassification, exchange, substitution, or other event. The Company or its successor shall promptly issue to Holder an amendment to this Warrant setting forth the number and kind of such new securities or other property issuable upon exercise or net exercise of this Warrant as a result of such reclassification, exchange, substitution or other event that results in a change of the number and/or class of securities issuable upon exercise or net exercise of this Warrant.
2.3 Merger or Consolidation. Upon any capital reorganization of the Company’s capital stock (other than a subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Section 2) or a merger or consolidation of the Company with or into another corporation, then as a part of such reorganization, merger or consolidation, provision shall be made so that the Holder shall thereafter be entitled to receive upon the exercise of this Warrant, the number and kind of securities and property of the Company, or of the successor corporation resulting from such reorganization, merger or consolidation, to which that Holder would have received for the Shares if this Warrant had been exercised immediately before such reorganization, merger or consolidation.
2.4 Fractional Shares. No fractional Shares shall be issuable upon exercise or net exercise of this Warrant and the number of Shares to be issued shall be rounded up to the nearest whole Share.
ARTICLE 3. COVENANTS OF THE COMPANY.
3.1 Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon any of its stock, whether in cash, property, stock, or other securities and whether or not a regular cash dividend; (b) to effect any reclassification or recapitalization of any of its stock; or (c) to merge or consolidate with or into any other corporation, or sell, lease, license, or convey all or substantially all of its assets, or to liquidate, dissolve or wind up, then, in connection with each such event, the Company shall give Holder: (1) at least three (3) days prior written notice of the date on which a record will be taken for such dividend, distribution, or subscription rights (and specifying the date on which the holders of Common Stock will be entitled thereto) or for determining rights to vote, if any, in respect of the matters referred to in (a) above; and (2) in the case of the matters referred to in (b) and (c) above at least three (3) days prior written notice of the date when the same will take place (and specifying the date on which the holders of Common Stock will be entitled to exchange their Common Stock for securities or other property deliverable upon the occurrence of such event).
3.2 No Stockholder Rights or Liabilities. Except as provided in this Warrant, the Holder will not have any rights as a stockholder of the Company until the exercise of this Warrant. Absent an affirmative action by the Holder to purchase the Shares, the Holder shall not have any liability as a stockholder of the Company.
3.3 Closing of Books. The Company will at no time close its transfer books against the transfer of this Warrant or of any Shares issued or issuable upon the exercise of this Warrant in any manner which interferes with the timely exercise of this Warrant.
ARTICLE 4. MISCELLANEOUS.
4.1 Term. This Warrant is exercisable in whole or in part at any time and from time to time on or before the earlier of 5:00 pm GMT on the tenth (10th) anniversary of the Issue Date.
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4.2 Legends. This Warrant and the Shares (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) shall be imprinted with a legend in substantially the following form:
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
4.3 Transfers. This Warrant and the Shares issuable upon exercise of this Warrant (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) may not be transferred or assigned in whole or in part without compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably requested by the Company). After compliance with all restrictions on transfer set forth in this Section 4.3, and within a reasonable time after the Company’s receipt of an executed assignment agreement, the transfer shall be recorded on the books of the Company upon the surrender of this Warrant, properly endorsed, to the Company at its principal offices, and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer. In the event of a partial transfer, the Company shall issue to the new holders one or more appropriate new warrants.
4.4 Notices. All notices and other communications from the Company to the Holder, or vice versa, shall be deemed delivered and effective when given personally or mailed by first-class registered or certified mail, postage prepaid, at such address as may have been furnished to the Company or the Holder, as the case may (or on the first business day after transmission by facsimile) be, in writing by the Company or such Holder from time to time. Effective upon receipt of the fully executed Warrant, all notices to the Holder shall be addressed as set forth on the signature page hereto until the Company receives notice of a change of address in connection with a transfer or otherwise. Notice to the Company shall be addressed as set forth on the signature page hereto until the Holder receives notice of a change in address.
4.5 Waiver. This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought.
4.6 Counterparts. This Warrant may be executed in counterparts, all of which together shall constitute one and the same agreement.
4.7 Governing Law. This Warrant shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its principles regarding conflicts of law.
Please indicate your acceptance of these terms by countersigning where indicated below.
| Slinger Bag Inc. | |
| Name: | |
| Title: |
Agreed and accepted:
Juda Honickman
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Appendix 1
SLINGER BAG INC.
EXERCISE NOTICE
Reference is made to the Warrant dated 30 April 2020 between Slinger Bag Inc. (the “Company”) and Juda Honickman (the “Warrant”). In accordance with and pursuant to the Warrant, the undersigned hereby elects to exercise the Warrant to purchase shares of common stock of the Company as set forth below. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Warrant.
| Date of Exercise: |
| Number of shares of ordinary/common (or its equivalent) stock to be purchased: |
Please issue shares of common stock in the following name and to the following address:
Issue to: _________________________________________
_________________________________________
Address: _________________________________________
Telephone Number: ________________________________
Email address: _________________________________
Holder: __________________________________________
| By: | |
| Title: |
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Exhibit 10.6
AMENDED AND RESTATED SERVICE AGREEMENT
THIS AGREEMENT made this 30th day of April 2020 (the “Effective Date”).
BETWEEN:
Slinger Bag Inc., a Nevada company
(the “Company”)
AND:
Mark Radom, an individual residing in Bet Shemesh, Israel (the “Executive”)
| A. | The Company has offered the Executive the position of General Counsel of the Company. |
| B. | The Company and the Executive wish to formally record the terms and conditions upon which the Executive will be hired by and serve as chief legal officer of the Company. |
| C. | Each of the Company and the Executive has agreed to the terms and conditions set forth in this Agreement, as evidenced by their respective execution hereof. |
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: | |
Article 1
CONTRACT FOR SERVICES
| 1.1 | Engagement the Executive as General Counsel. (a) The Company hereby agrees to hire the Executive as General Counsel in accordance with the terms and provisions hereof. |
| (i) | Term. Unless terminated earlier in accordance with the provisions hereof, this Agreement will commence on the Effective Date and will continue for a period of three (3) years therefrom (the “Term”). |
| (b) | Service. The Executive agrees to faithfully, honestly and diligently serve the Company and to devote the time, attention efforts to further the business and legal interests of the Company and utilize his professional skills and care during the Term. |
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| 1.2 | Duties: The Executive’s services hereunder will be provided on the basis of the following terms and conditions: |
| (a) | Reporting directly to the chief executive officer of the Company, the Executive will serve as General Counsel; | |
| (b) | The Executive will be responsible for setting and managing the legal matters and affairs of the Company and supervising, liaising and instructing outside service providers, in each case, subject to any applicable law and to instructions provided by the chief executive officer of the Company from time to time. | |
| (c) | The Executive will faithfully, honestly and diligently serve the Company and cooperate with the Company and utilize maximum professional skill and care to ensure that all services rendered hereunder are to the satisfaction of the Company, acting reasonably, and the Executive will provide any other services not specifically mentioned herein, but which by reason of the Executive’s capability, the Executive knows or ought to know to be necessary to ensure that the best interests of the Company are maintained. | |
| (d) | The Executive will assume, obey, implement and execute such duties, directions, responsibilities, procedures, policies and lawful orders as may be determined or given from time to time by the Company. | |
| (e) | The Executive will report the results of his duties hereunder to the Company as it may request from time to time. |
Article 2
COMPENSATION
| 2.1 | Remuneration. |
| (a) | The Executive’s monthly base salary shall be four thousand United States dollars ($4,000 (together with any increases thereto as hereinafter provided, the “Base Salary”) through 19 August 2020. Commencing 20 August 2020, the Executive’s Base Salary shall be increased to $8,500 per calendar month. The Base Salary shall be payable 2019 in accordance with the Company’s normal payroll procedures in effect from time to time. The Base Salary may be increased by the Board from time to time during the Term, but shall be reviewed by the Board at least annually. | |
| (b) | The Company shall also issue Executive as soon as reasonably practicable warrants to purchase 1,250,000 shares of common stock in the form attached hereto as Annex A. The Company agrees to bear all costs and fees to be charged by the Company’s transfer agent in respect of such shares. The Executive is entitled to receive up to a one-time bonus of 1,500,000 shares of common stock of the Company promptly after the value of the Company’s outstanding stock equals $100 million dollars. |
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| (c) | In addition to the foregoing, the Company will grant the Executive additional compensation in the form of cash or shares in cases of extraordinary contribution by him to the benefit of the Company as the Board of Directors of the Company will decide. | |
| (d) | The Executive’s position with the Company requires a special degree of personal trust, and the Company is not able to supervise the number of working hours of the Executive. Therefore, the Executive will not be entitled to any additional remuneration whatsoever for his work with the exception of that specifically set out in this Agreement. The Executive has other business interests and, as such, shall be permitted to spend such time as the Executive deems necessary or expedient on such interests, so long as there is no adverse material impact on the Executive’s performance of his obligations hereunder. |
| 2.2 | Incentive Plans. The Executive will be entitled to participate in any bonus plan or incentive compensation plans (including, without limitation, equity or option plans) for its directors, officers or employees adopted by the Company. The Executive’s bonus payment level will be set at a minimum of 25% of the annual gross base salary. It is agreed that any such plans will be retroactive to the Effective Date. |
| 2.3 | Expenses. The Executive will be reimbursed by the Company for all reasonable business expenses incurred by the Executive in connection with his duties. This includes, but is not limited to, payments of expenses incurred when traveling abroad and others. In this connection, the Executive will be issued, as soon as practicable, a Company credit card that the Executive will use to pay for any and all expenses that pertain to the Company. |
Article 3
Insurance and Benefits
| 3.1 | Liability Insurance Indemnification. The Company will insure the Executive (including his heirs, executors and administrators) with coverage under a standard directors’ and officers’ liability insurance policy at the Company’s expense. |
Article 4
CONFIDENTIALITY AND NON-COMPETITION
| 4.1 | Maintenance of Confidential Information. |
| (a) | The Executive acknowledges that, in the course of performing his obligations hereunder, the Executive will, either directly or indirectly, have access to and be entrusted with confidential information (whether oral, written or by inspection) relating to the Company or its respective affiliates, associates or customers (the “Confidential Information”). | |
| (b) | The Executive acknowledges that the Company’s Confidential Information constitutes a proprietary right, which the Company is entitled to protect. Accordingly, the Executive covenants and agrees that, as long as he works for the Company, the Executive will keep in strict confidence the Company’s Confidential Information and will not, without prior written consent of the Company, disclose, use or otherwise disseminate the Company’s Confidential Information, directly or indirectly, to any third party. |
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| (c) | The Executive agrees that, upon termination of his services for the Company, he will immediately surrender to the Company all Company Confidential Information then in his possession or under his control. |
| 4.2 | Exceptions. The general prohibition contained in Section 4.1 against the unauthorized disclosure, use or dissemination of the Company’s Confidential Information will not apply in respect of any Company Confidential Information that: |
| (a) | is available to the public generally; | |
| (b) | becomes part of the public domain through no fault of the Executive; | |
| (c) | is already in the lawful possession of the Executive at the time of receipt of the Company’s Confidential Information; or | |
| (d) | is compelled by applicable law or regulation to be disclosed, provided that the Executive gives the Company prompt written notice of such requirement prior to such disclosure and provides commercially reasonable assistance at the request and expense of the Company, in obtaining an order protecting the Company’s Confidential Information from public disclosure. |
Article 5
termination
| 5.1 | Termination of Employment. The Executive’s employment may be terminated only as follows: |
| (a) | Termination by the Company |
| (i) | For Cause. The Company may terminate the Executive’s employment for Cause. | |
| (ii) | Without Cause. The Company may terminate Executive’s employment at any time by giving Executive 60 days prior written Notice of the termination. In such case, 100% of the Executive’s unvested stock and option compensation of any nature will vest without any further action required on the part of the Executive or the Company and the Company will deliver to the order of the Executive promptly upon receipt of a written demand of the Executive such shares of common stock or options at its sole expense as become due to Executive hereunder. The Executive’s right to receive compensation whether in cash or securities shall survive any termination of this Agreement Without Cause. |
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| (b) | Termination by the Executive |
| (i) | For Good Reason. The Executive may terminate the Executive’s employment with the Company for Good Reason. | |
| (ii) | Without Good Reason. The Executive may voluntarily terminate the Executive’s employment with the Company at any time by giving the Company 120 days prior written Notice of the termination. |
| (c) | Termination Upon Death or Disability |
| (i) | Death. The Executive’s employment shall terminate upon the Executive’s death. | |
| (ii) | Disability. The Company may terminate the Executive’s employment upon the Executive’s Disability. |
| (d) | For the purpose of this Article 5, “Cause” means: |
| (i) | Breach of Agreement. Executive’s material breach of Executive’s obligations of this Agreement, not cured after 30 days’ Notice from the Company. | |
| (ii) | Gross Negligence. Executive’s gross negligence in the performance of Executive’s duties. | |
| (iii) | Crimes and Dishonesty. Executive’s conviction of or plea guilty to any crime involving, dishonesty, fraud or moral turpitude. | |
| (iv) | In the event of termination of this agreement for Cause, the Company may terminate the Executive’s employment after 30 days’ Notice. |
| (e) | For the purpose of this Article 5, “Good Reason” means: |
| (i) | Breach of Agreement. The Company’s material breach of this Agreement, which breach has not been cured by the Company within 30 days after receipt of written notice specifying, in reasonable detail, the nature of such breach or failure from Executive. | |
| (ii) | Non-Payment. The failure of the Company to pay any amount due to Executive hereunder, which failure persists for 30 days after written notice of such failure has been received by the Company. | |
| (iii) | Change of Responsibilities/Compensation. Any material reduction in Executive’s title or a material reduction in Executive’s duties or responsibilities or any material adverse change in Executive’s Base Salary or any material adverse change in Executive’s benefits. |
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| (iv) | Change of Location. Any relocation of the premises at which Executive works to a location more than 20 kilometers from such location, without Executive’s consent. |
| (f) | It is agreed that in the event of termination of this agreement if the Company decides that the Executive’s services are not needed during the termination period, the Company will continue to be responsible for paying cash and equity compensation as defined in Article 2 of this Agreement for the entire termination period. Neither the Company, nor the Executive will be entitled to any notice, or payment in excess of that specified in this Article 5. | |
| (g) | Upon the termination (whether for cause, disability, death, without cause, or by way of change of control), the Company shall pay to Executive on the date required under applicable law: (i) any accrued but unpaid Base Salary for services rendered as of the date of termination, (ii) (if applicable) any accrued but unpaid vacation pay, and (iii) the business expenses reasonably incurred by the Executive up to the date of termination or resignation and properly reimbursable, in each case less any applicable deductions or withholdings required by law. |
Section 5.2 Termination for Cause, Disability or Death
In the event that this Agreement and the Executive’s employment with the
Company is terminated for Cause, the Company shall provide the Executive written notice thereof and Executive shall be entitled only to the amounts specified in Section 5.1 plus all vested common or preferred shares and, if applicable options and warrants.
Section 5.3 Termination without Cause
In the event this Agreement and the Executive’s employment with the
Company is terminated by the Company without Cause (other than for death or Disability or in connection with a change of control), then in addition to the amounts specified in Section 5.1 and subject to the Executive’s execution and non-revocation of a separation agreement containing a general release and waiver of liability against the Company and anyone connected with it in form acceptable to the Company, the Executive shall be entitled to receive, and the Company shall pay the Executive, two (2) years Base Salary (less statutory deductions and withholdings) in a single lump sum, paid in full within 30 days of termination. Further, Executive shall be entitled to all vested common or preferred shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable.
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Article 6
Mutual Representations
| 6.1 | The Executive represents and warrants to the Company that the execution and delivery of this Agreement and the fulfilment of the terms hereof |
| (a) | will not constitute a default under or conflict with any agreement or other instrument to which he is a party or by which he is bound; and | |
| (b) | do not require the consent of any person or entity. |
| 6.2 | The Company represents and warrants to the Executive that this Agreement has been duly authorized, executed and delivered by the Company and that the fulfilment of the terms hereof |
| (a) | will not constitute a default under or conflict with any agreement of other instrument to which it is a party or by which it is bound; and | |
| (b) | do not require the consent of any person of entity. |
| 6.3 | Each party hereto warrants and represents to the other that this Agreement constitutes the valid and binding obligation of such party enforceable against such party in accordance with its terms subject to applicable bankruptcy, insolvency, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless if enforcement is sought in proceeding in equity or at law). |
Article 7
notices
| 7.1 | Notices. All notices required or allowed to be given under this Agreement must be made either personally by delivery to or by facsimile transmission to the address as hereinafter set forth or to such other address as may be designated from time to time by such party in writing: |
| (a) | in the case of the Company, to: |
Slinger Bag Inc.
To be provided under separate cover within three days after the date hereof; in the event that Executive does not receive notice of address within such period, then Executive shall be entitled to send any notice to any email address of the Company known to Executive and the sending of any such notice shall constitute receipt of notice whether the Company receives such notice or not.
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| (b) | and in the case of the Executive, to the Executive’s last residence address known to the Company or mark@gcanrx.com. |
| 7.2 | Change of Address. Any party may, from time to time, change its address for service hereunder by written notice to the other party in the manner aforesaid. |
Article 8
GENERAL
| 8.1 | Further Assurances. Each party hereto will promptly and duly execute and deliver to the other party such further documents and assurances and take such further action as such other party may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created hereby. |
| 8.2 | Waiver. No provision hereof will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is made in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of this Agreement will not be construed as a waiver of a further breach of the same provision. |
| 8.3 | Amendments in Writing. No amendment, modification or rescission of this Agreement will be effective unless set forth in writing and signed by the parties hereto. |
| 8.4 | Assignment. Except as herein expressly provided, the respective rights and obligations of the Executive and the Company under this Agreement will not be assignable by either party without the written consent of the other party and will, subject to the foregoing, inure to the benefit of and be binding upon the Executive and the Company and their permitted successors or assigns. Nothing herein expressed or implied is intended to confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement. For the avoidance of doubt, it is agreed that in the event that the Company participates in a merger, acquisition, restructuring, regoranization or other transaction in which the Company is merged into, sold to or otherwise becomes part of or owned by another company or entity, this Agreement will remain in force and be binding on any such successor, surviving or acquiring company or entity. |
| 8.5 | The Company acknowledges and agrees that the Executive may submit to the Company invoices from a company that employs him in lieu of invoices on his name. The Executive confirms that any such invoice will replace his own invoice and he agrees that his fees will be paid by the Company to third parties provided that it is done as per his instructions to the Company. |
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| 8.6 | Severability. In the event that any provision contained in this Agreement is declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, such provision will be deemed not to affect or impair the validity or enforceability of any other provision of this Agreement, which will continue to have full force and effect. |
| 8.7 | Headings. The headings in this Agreement are inserted for convenience of reference only and will not affect the construction or interpretation of this Agreement. |
| 8.8 | Number and Gender. Wherever the singular or masculine or neuter is used in this Agreement, the same will be construed as meaning the plural or feminine or a body politic or corporate and vice versa where the context so requires. |
| 8.9 | Time. Time is of the essence in this Agreement. |
| 8.10 | Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of New York without reference to its conflicts of laws principles or the conflicts of laws principles of any other jurisdiction, and each of the parties hereto expressly attorns to the jurisdiction of the courts of the State of New York. The sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement will be the applicable New York state or federal court. |
| 8.11 | This Agreement (including all Annexes thereto) constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to this matter. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date and year first above written.
Slinger Bag Inc.
Title: CEO
Agreed and accepted:
Mark Radom
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Annex A
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 4 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE COMMON STOCK
Company: Slinger Bag Inc.
Holder: Mark Radom
Shares: 1,250,000 shares of the Company’s common stock.
Class of Stock: common shares of stock of the Company
Exercise Price per share: par value on a cashless basis (as described in more detail below)
Issue Date: 30 April 2020
Term: See Section 4.1
THIS WARRANT CERTIFIES THAT, for value received as consideration pursuant to that certain amended and restated service agreement dated 30 April 2020 (the “Service Agreement”) and for other good and valuable consideration the sufficiency of which is hereby acknowledged, Holder is entitled to receive the Shares in the form of fully paid and nonassessable shares of the Company at the Exercise Price, all as set forth herein, subject to the provisions and upon the terms and conditions set forth in this Warrant.
ARTICLE 1. EXERCISE.
1.1 Method of Exercise. Payment.
(a) Cash Exercise. The purchase rights represented by this Warrant may be exercised by the Holder, in whole or in part, by the surrender of this Warrant (with the notice of exercise form attached hereto as Appendix 1 duly executed) at the principal office of the Company, and by the payment to the Company, by certified, cashier’s or other check acceptable to the Company or by wire transfer to an account designated by the Company, of an amount equal to the aggregate Exercise Price of the Shares being purchased.
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(b) Net Issue Exercise. In lieu of exercising this Warrant, the Holder may elect to receive Shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with notice of such election, in which event the Company shall issue to the Holder a number of Warrant Shares computed using the following formula:
Y (A-B)
X = ———————
A
| Where: | X | = | the number of Shares to be issued to the Holder. |
| Y | = | the number of the Shares being exercised on the date of determination. | |
| A | = | the fair market value of one Share on the date of determination. | |
| B | = | the per share Exercise Price (as adjusted to the date of such calculation). |
(c) Fair Market Value. For purposes of this Article 1, the per share fair market value of the Warrant Shares shall mean:
(i) If the Company’s Common Stock is publicly traded, the per share fair market value of the Warrant Shares shall be the average of the closing prices of the Common Stock as quoted on the Over-the-Counter Bulletin Board, or the principal exchange on which the Common Stock is listed, in each case for the fifteen trading days ending five trading days prior to the date of determination of fair market value;
(ii) If the Company’s Common Stock is not so publicly traded, the per share fair market value of the Warrant Shares shall be such fair market value as is determined in good faith by the Board of Directors of the Company after taking into consideration factors it deems appropriate, including, without limitation, recent sale and offer prices of the capital stock of the Company in private transactions negotiated at arm’s length.
1.2 Delivery of Certificate and New Warrant. Promptly after Holder first exercises this Warrant, the Company shall deliver to Holder certificates for or other evidence (reasonably acceptable to the Holder) of the Shares received and, if this Warrant has not been fully exercised and has not expired, a new Warrant representing the Shares not so received.
1.3 Replacement of Warrants. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.
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ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 Stock Dividends, Splits, Combinations, Etc. If the Company declares or pays a dividend on the Shares payable in Common Stock, or other securities, then upon exercise of this Warrant, for each Share acquired, Holder shall receive, without cost to Holder, the total number and kind of securities to which Holder would have been entitled had Holder owned the Shares of record as of the date the dividend occurred. If the Company subdivides the Shares by reclassification or otherwise into a greater number of shares or takes any other action which increases the amount of stock into which the Shares are convertible, the number of shares purchasable hereunder shall be proportionately increased and the Exercise Price shall remain the same. If the outstanding shares of the Company are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Exercise Price shall be proportionately increased and the number of Shares shall be proportionately decreased.
2.2 Reclassification, Exchange or Substitution, Etc. Upon any reclassification, exchange, substitution, or other event that results in a change of the number and/or class of the securities issuable upon exercise or net exercise of this Warrant, Holder shall be entitled to receive, upon exercise or net exercise of this Warrant, the number and kind of securities and property that Holder would have received for the Shares if this Warrant had been exercised immediately before such reclassification, exchange, substitution, or other event. The Company or its successor shall promptly issue to Holder an amendment to this Warrant setting forth the number and kind of such new securities or other property issuable upon exercise or net exercise of this Warrant as a result of such reclassification, exchange, substitution or other event that results in a change of the number and/or class of securities issuable upon exercise or net exercise of this Warrant.
2.3 Merger or Consolidation. Upon any capital reorganization of the Company’s capital stock (other than a subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Section 2) or a merger or consolidation of the Company with or into another corporation, then as a part of such reorganization, merger or consolidation, provision shall be made so that the Holder shall thereafter be entitled to receive upon the exercise of this Warrant, the number and kind of securities and property of the Company, or of the successor corporation resulting from such reorganization, merger or consolidation, to which that Holder would have received for the Shares if this Warrant had been exercised immediately before such reorganization, merger or consolidation.
2.4 Fractional Shares. No fractional Shares shall be issuable upon exercise or net exercise of this Warrant and the number of Shares to be issued shall be rounded up to the nearest whole Share.
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ARTICLE 3. COVENANTS OF THE COMPANY.
3.1 Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon any of its stock, whether in cash, property, stock, or other securities and whether or not a regular cash dividend; (b) to effect any reclassification or recapitalization of any of its stock; or (c) to merge or consolidate with or into any other corporation, or sell, lease, license, or convey all or substantially all of its assets, or to liquidate, dissolve or wind up, then, in connection with each such event, the Company shall give Holder: (1) at least three (3) days prior written notice of the date on which a record will be taken for such dividend, distribution, or subscription rights (and specifying the date on which the holders of Common Stock will be entitled thereto) or for determining rights to vote, if any, in respect of the matters referred to in (a) above; and (2) in the case of the matters referred to in (b) and (c) above at least three (3) days prior written notice of the date when the same will take place (and specifying the date on which the holders of Common Stock will be entitled to exchange their Common Stock for securities or other property deliverable upon the occurrence of such event).
3.2 No Stockholder Rights or Liabilities. Except as provided in this Warrant, the Holder will not have any rights as a stockholder of the Company until the exercise of this Warrant. Absent an affirmative action by the Holder to purchase the Shares, the Holder shall not have any liability as a stockholder of the Company.
3.3 Closing of Books. The Company will at no time close its transfer books against the transfer of this Warrant or of any Shares issued or issuable upon the exercise of this Warrant in any manner which interferes with the timely exercise of this Warrant.
ARTICLE 4. MISCELLANEOUS.
4.1 Term. This Warrant is exercisable in whole or in part at any time and from time to time on or before the earlier of 5:00 pm GMT on the tenth (10th) anniversary of the Issue Date.
4.2 Legends. This Warrant and the Shares (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) shall be imprinted with a legend in substantially the following form:
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
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4.3 Transfers. This Warrant and the Shares issuable upon exercise of this Warrant (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) may not be transferred or assigned in whole or in part without compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably requested by the Company). After compliance with all restrictions on transfer set forth in this Section 4.3, and within a reasonable time after the Company’s receipt of an executed assignment agreement, the transfer shall be recorded on the books of the Company upon the surrender of this Warrant, properly endorsed, to the Company at its principal offices, and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer. In the event of a partial transfer, the Company shall issue to the new holders one or more appropriate new warrants.
4.4 Notices. All notices and other communications from the Company to the Holder, or vice versa, shall be deemed delivered and effective when given personally or mailed by first-class registered or certified mail, postage prepaid, at such address as may have been furnished to the Company or the Holder, as the case may (or on the first business day after transmission by facsimile) be, in writing by the Company or such Holder from time to time. Effective upon receipt of the fully executed Warrant, all notices to the Holder shall be addressed as set forth on the signature page hereto until the Company receives notice of a change of address in connection with a transfer or otherwise. Notice to the Company shall be addressed as set forth on the signature page hereto until the Holder receives notice of a change in address.
4.5 Waiver. This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought.
4.6 Counterparts. This Warrant may be executed in counterparts, all of which together shall constitute one and the same agreement.
4.7 Governing Law. This Warrant shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its principles regarding conflicts of law.
Please indicate your acceptance of these terms by countersigning where indicated below.
| Slinger Bag Inc. | |
| Name: | |
| Title: |
Agreed and accepted:
Mark Radom
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Appendix 1
SLINGER BAG INC.
EXERCISE NOTICE
Reference is made to the Warrant dated 30 April 2020 between Slinger Bag Inc. (the “Company”) and Mark Radom (the “Warrant”). In accordance with and pursuant to the Warrant, the undersigned hereby elects to exercise the Warrant to purchase shares of common stock of the Company as set forth below. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Warrant.
| Date of Exercise: |
| Number
of shares of ordinary/common (or its equivalent) stock to be purchased: |
Please issue shares of common stock in the following name and to the following address:
Issue to: _________________________________________
_________________________________________
Address: _________________________________________
Telephone Number: ________________________________
Email address: _________________________________
Holder: __________________________________________
| By: | |
| Title: |
Exhibit 10.7
CONSULTING AGREEMENT
THIS AGREEMENT made this 30th day of April (the “Effective Date”) between Slinger Bag Inc., a Nevada company (the “Company”) and Aitan Zacharin, an individual residing in Bet Shemesh, Israel (the “Consultant”)
A. The Company is engaging Consultant as a consultant in respect of investor relations, corporate structure, public relations and commercial development.
B. The Company and the Consultant wish to formally record the terms and conditions of such engagement.
C. Each of the Company and the Consultant has agreed to the terms and conditions set forth in this Agreement, as evidenced by their respective execution hereof.
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE 1
CONTRACT FOR SERVICES
1.1 Engagement of Consultant. The Company hereby agrees to engage the Consultant in accordance with the terms and provisions hereof.
| (a) | Term. Unless terminated earlier in accordance with the provisions hereof, this Agreement will commence on the Effective Date and will continue for a period of three (3) years therefrom (the “Term”). | |
| (b) | Service. The Consultant agrees to faithfully, honestly and diligently serve the Company and to devote the time, attention efforts to further the business interests of the Company and utilize his professional skills and care during the Term. |
1.2 Duties : The Consultant’s services hereunder will be provided on the basis of the following terms and conditions:
| (a) | The Consultant will report directly to the chief executive officer and/or other officers of the Company; | |
| (b) | The Consultant will be responsible for advising on and facilitating the Company’s investor relations, corporate structure and governance, public relations and commercial development activities and supervising, liaising and instructing outside service providers, in each case, subject to any applicable law and to instructions provided by the officers of the Company from time to time. |
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| (c) | The Consultant will faithfully, honestly and diligently serve the Company and cooperate with the Company and utilize maximum professional skill and care to ensure that all services rendered hereunder are to the satisfaction of the Company, acting reasonably, and the Consultant will provide any other services not specifically mentioned herein, but which by reason of the Consultant’s capability, the Consultant knows or ought to know to be necessary to ensure that the best interests of the Company are maintained. | |
| (d) | The Consultant will assume, obey, implement and execute such duties, directions, responsibilities, procedures, policies and lawful orders as may be determined or given from time to time by the Company. | |
| (e) | The Consultant will report the results of his duties hereunder to the Company as it may request from time to time. |
Article 2 COMPENSATION
2.1 Remuneration.
| (a) | The Consultant’s monthly base consulting fee shall be three thousand two hundred fifty United States dollars ($3,250 (together with any increases thereto as hereinafter provided, the “Base Consulting Fee”) through 19 August 2020. Commencing on 20 August 2020, Consultant’s Base Consulting Fee shall be increased to $8,500 per calendar month. The Base Consulting Fee shall be payable in accordance with the Company’s normal payroll procedures in effect from time to time. All subsequent monthly payments of Base Consulting Fee shall be paid within the first five days of the following calendar month. The Base Consulting Fee may be increased by the Board from time to time during the Term, but shall be reviewed by the Board at least annually | |
| (b) | The Company shall also issue Consultant as soon as reasonably practicable warrants to purchase 1,250,000 shares of common stock in the form attached hereto as Annex A. The Company agrees to bear all costs and fees to be charged by the Company’s transfer agent in respect of such shares. | |
| (c) | The Consultant shall be eligible to participate in benefit plans currently and hereafter maintained by the Company of general applicability to other consultants of the Company. Subject to the following sentence, the Consultant will be entitled to receive up to a one-time bonus of 1,500,000 shares of common stock of the Company promptly after the value of the Company’s outstanding stock equals $100 million dollars. | |
| (d) | In addition to the foregoing, the Company will grant the Consultant additional compensation in the form of cash or shares in cases of extraordinary contribution by him to the benefit of the Company as the Board of Directors of the Company will decide. |
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2.2 Incentive Plans. The Consultant will be entitled to participate in any bonus plan or incentive compensation plans (including, without limitation, equity or option plans) for consultants or outside service-providers adopted by the Company. The Consultant’s bonus payment level will be set at a minimum of 25% of the annual gross Base Consulting Fee. It is agreed that any such plans will be retroactive to the Effective Date.
2.3 Expenses. The Consultant will be reimbursed by the Company for all reasonable business expenses incurred by the Consultant in connection with his duties. This includes, but is not limited to, payments of expenses incurred when traveling abroad and others. In this connection, the Consultant will be issued, as soon as practicable, a Company credit card that the Consultant will use to pay for any and all expenses that pertain to the Company.
ARTICLE 3
CONFIDENTIALITY AND NON-COMPETITION
3.1 Maintenance of Confidential Information.
| (a) | The Consultant acknowledges that, in the course of performing his obligations hereunder, the Consultant will, either directly or indirectly, have access to and be entrusted with confidential information (whether oral, written or by inspection) relating to the Company or its respective affiliates, associates or customers (the “Confidential Information”). | |
| (b) | The Consultant acknowledges that the Company’s Confidential Information constitutes a proprietary right, which the Company is entitled to protect. Accordingly, the Consultant covenants and agrees that, as long as he works for the Company, the Consultant will keep in strict confidence the Company’s Confidential Information and will not, without prior written consent of the Company, disclose, use or otherwise disseminate the Company’s Confidential Information, directly or indirectly, to any third party. | |
| (c) | The Consultant agrees that, upon termination of his services for the Company, he will immediately surrender to the Company all Company Confidential Information then in his possession or under his control. |
3.2 Exceptions. The general prohibition contained in Section 4.1 against the unauthorized disclosure, use or dissemination of the Company’s Confidential Information will not apply in respect of any Company Confidential Information that:
| (a) | is available to the public generally; | |
| (b) | becomes part of the public domain through no fault of the Consultant; | |
| (c) | is already in the lawful possession of the Consultant at the time of receipt of the Company’s Confidential Information; or | |
| (d) | is compelled by applicable law or regulation to be disclosed, provided that the Consultant gives the Company prompt written notice of such requirement prior to such disclosure and provides commercially reasonable assistance at the request and expense of the Company, in obtaining an order protecting the Company’s Confidential Information from public disclosure. |
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ARTICLE 4 TERMINATION
4.1 Termination of Engagement. The Consultant’s engagement may be terminated only as follows:
| (a) | Termination by the Company |
| (i) | For Cause. The Company may terminate the Consultant’s engagement for Cause. | |
| (ii) | Without Cause. The Company may terminate Consultant’s engagement at any time by giving Consultant 60 days prior written Notice of the termination. In such case, 100% of the Consultant’s unvested stock and, if applicable, option or warrant compensation of any nature will vest without any further action required on the part of the Consultant or the Company and the Company will deliver to the order of the Consultant promptly upon receipt of a written demand of the Consultant such shares of common stock or options at its sole expense as become due to Consultant hereunder. The Consultant’s right to receive compensation whether in cash or securities shall survive any termination of this Agreement Without Cause. |
| (b) | Termination by the Consultant |
| (i) | For Good Reason. The Consultant may terminate the Consultant’s engagement with the Company for Good Reason. | |
| (ii) | Without Good Reason. The Consultant may voluntarily terminate the Consultant’s engagement with the Company at any time by giving the Company 120 days prior written Notice of the termination. |
| (c) | Termination Upon Death or Disability |
| (i) | Death. The Consultant’s engagement shall terminate upon the Consultant’s death. | |
| (ii) | Disability. The Company may terminate the Consultant’s engagement upon the Consultant’s Disability. |
| (d) | For the purpose of this Article 3, “Cause” means: |
| (i) | Breach of Agreement. Consultant’s material breach of Consultant’s obligations of this Agreement, not cured after 30 days’ Notice from the Company. |
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| (ii) | Gross Negligence. Consultant’s gross negligence in the performance of Consultant’s duties. | |
| (iii) | Crimes and Dishonesty. Consultant’s conviction of or plea guilty to any crime involving, dishonesty, fraud or moral turpitude. | |
| (iv) | In the event of termination of this agreement for Cause, the Company may terminate the Consultant’s engagement after 30 days’ Notice. |
| (e) | For the purpose of this Article 5, “Good Reason” means: |
| (i) | Breach of Agreement. The Company’s material breach of this Agreement, which breach has not been cured by the Company within 30 days after receipt of written notice specifying, in reasonable detail, the nature of such breach or failure from Consultant. | |
| (ii) | Non Payment. The failure of the Company to pay any amount due to Consultant hereunder, which failure persists for 30 days after written notice of such failure has been received by the Company. | |
| (iii) | Change of Responsibilities/Compensation. Any material reduction in Consultant’s title or a material reduction in Consultant’s duties or responsibilities or any material adverse change in Consultant’s Base Consulting Fee or any material adverse change in Consultant’s benefits. |
| (f) | It is agreed that in the event of termination of this agreement if the Company decides that the Consultant’s services are not needed during the termination period, the Company will continue to be responsible for paying cash and equity compensation as defined in Article 2 of this Agreement for the entire termination period. Neither the Company, nor the Consultant will be entitled to any notice or payment in excess of that specified in this Article 5. | |
| (g) | Upon the termination (whether for cause, disability, death, without cause, or by way of change of control), the Company shall pay to Consultant on the date required under applicable law: (i) any accrued but unpaid Base Consulting Fee for services rendered as of the date of termination, (ii) (if applicable) any accrued but unpaid vacation pay, and (iii) the business expenses reasonably incurred by the Consultant up to the date of termination or resignation and properly reimbursable, in each case less any applicable deductions or withholdings required by law. |
Section 4.2 Termination for Cause, Disability or Death
| (a) | In the event that this Agreement and the Consultant’s engagement with the Company is terminated for Cause, the Company shall provide the Consultant written notice thereof and Consultant or Consultants surviving next of kin shall be entitled only to the amounts specified in Section 3.1. plus all vested common shares and, if applicable options and warrants. |
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| (b) | In the event of the Consultants service terminates by reason of the Consultants disability or death, the accrued salary may be paid, and options and warrants may be exercised by the by the Consultant or the Consultant’s legal representatives, executors or assigns, as the case may be, for a period of one (1) year from the date of death or disability. |
Section 4.3 Termination without Cause
In the event this Agreement and the Consultant’s engagement with the Company is terminated by the Company without Cause (other than for death or Disability or in connection with a change of control), then in addition to the amounts specified in Section 4.1 and subject to the Consultant’s execution and non-revocation of a separation agreement containing a general release and waiver of liability against the Company and anyone connected with it in form acceptable to the Company, the Consultant shall be entitled to receive, and the Company shall pay the Consultant, two (2) years Base Consulting Fee (less statutory deductions and withholdings) in a single lump sum, paid in full within 30 days of termination. Further, Consultant shall be entitled to all vested common shares and, if applicable, options and warrants with vesting continuing for 12 months following termination as applicable.
ARTICLE 5 MUTUAL REPRESENTATIONS
5.1 The Consultant represents and warrants to the Company that the execution and delivery of this Agreement and the fulfilment of the terms hereof
(a) will not constitute a default under or conflict with any agreement or other instrument to which he is a party or by which he is bound; and (b) do not require the consent of any person or entity.
5.2 The Company represents and warrants to the Consultant that this Agreement has been duly authorized, executed and delivered by the Company and that the fulfilment of the terms hereof
(a) will not constitute a default under or conflict with any agreement of other instrument to which it is a party or by which it is bound; and (b) do not require the consent of any person of entity.
5.3 Each party hereto warrants and represents to the other that this Agreement constitutes the valid and binding obligation of such party enforceable against such party in accordance with its terms subject to applicable bankruptcy, insolvency, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless if enforcement is sought in proceeding in equity or at law).
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ARTICLE 6 NOTICES
6.1 Notices. All notices required or allowed to be given under this Agreement must be made either personally by delivery to or by facsimile transmission to the address as hereinafter set forth or to such other address as may be designated from time to time by such party in writing:
| (a) | in the case of the Company, to: | |
| Slinger Bag Inc. | ||
| To be provided under separate cover within three days after the date hereof; in the event that Consultant does not receive notice of address within such period, then Consultant shall be entitled to send any notice to any email address of the Company known to Consultant and the sending of any such notice shall constitute receipt of notice whether the Company receives such notice or not. |
| (b) | and in the case of the Consultant, to the Consultant’s last residence address known to the Company or aitan@gcanrx.com. |
6.2 Change of Address. Any party may, from time to time, change its address for service hereunder by written notice to the other party in the manner aforesaid.
ARTICLE 7 GENERAL
| 7.1 | Further Assurances. Each party hereto will promptly and duly execute and deliver to the other party such further documents and assurances and take such further action as such other party may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created hereby. |
| 7.2 | Waiver. No provision hereof will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is made in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of this Agreement will not be construed as a waiver of a further breach of the same provision. |
| 7.3 | Amendments in Writing. No amendment, modification or rescission of this Agreement will be effective unless set forth in writing and signed by the parties hereto. |
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| 7.4 | Assignment. Except as herein expressly provided, the respective rights and obligations of the Consultant and the Company under this Agreement will not be assignable by either party without the written consent of the other party and will, subject to the foregoing, inure to the benefit of and be binding upon the Consultant and the Company and their permitted successors or assigns. Nothing herein expressed or implied is intended to confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement. For the avoidance of doubt, it is agreed that in the event that the Company participates in a merger, acquisition, restructuring, reorganization or other transaction in which the Company is merged into, sold to or otherwise becomes part of or owned by another company or entity, this Agreement will remain in force and be binding on any such successor, surviving or acquiring company or entity. |
| 7.5 | The Company acknowledges and agrees that the Consultant may submit to the Company invoices from a company that employs him in lieu of invoices on his name. The Consultant confirms that any such invoice will replace his own invoice and he agrees that his fees will be paid by the Company to third parties provided that it is done as per his instructions to the Company. |
| 7.6 | Severability. In the event that any provision contained in this Agreement is declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, such provision will be deemed not to affect or impair the validity or enforceability of any other provision of this Agreement, which will continue to have full force and effect. |
| 7.7 | Headings. The headings in this Agreement are inserted for convenience of reference only and will not affect the construction or interpretation of this Agreement. |
| 7.8 | Number and Gender. Wherever the singular or masculine or neuter is used in this Agreement, the same will be construed as meaning the plural or feminine or a body politic or corporate and vice versa where the context so requires. |
| 7.9 | Time. Time is of the essence in this Agreement. |
| 7.10 | Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of New York without reference to its conflicts of laws principles or the conflicts of laws principles of any other jurisdiction, and each of the parties hereto expressly attorns to the jurisdiction of the courts of the State of New York. The sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement will be the applicable New York state or federal court. |
| 7.11 | This Agreement (including all Annexes thereto) constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to this matter. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date and year first above written.
| Slinger Bag Inc. | ||
| By: | ||
| Title: | ||
Agreed and accepted:
Aitan Zacharin
| 9 |
Annex A
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 4 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE COMMON STOCK
Company: Slinger Bag Inc.
Holder: Aitan Zacharin
Shares: 1,250,000 shares of the Company’s common stock.
Class of Stock: common shares of stock of the Company
Exercise Price per share: par value
Issue Date: 30 April 2020
Term: See Section 4.1
THIS WARRANT CERTIFIES THAT, for value received as consideration pursuant to that certain amended and restated service agreement dated 30 April 2020 (the “Service Agreement”) and for other good and valuable consideration the sufficiency of which is hereby acknowledged, Holder is entitled to receive the Shares in the form of fully paid and nonassessable shares of the Company at the Exercise Price, all as set forth herein, subject to the provisions and upon the terms and conditions set forth in this Warrant.
ARTICLE 1. EXERCISE.
1.1 Method of Exercise. Payment.
(a) Cash Exercise. The purchase rights represented by this Warrant may be exercised by the Holder, in whole or in part, by the surrender of this Warrant (with the notice of exercise form attached hereto as Appendix 1 duly executed) at the principal office of the Company, and by the payment to the Company, by certified, cashier’s or other check acceptable to the Company or by wire transfer to an account designated by the Company, of an amount equal to the aggregate Exercise Price of the Shares being purchased.
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(b) Net Issue Exercise. In lieu of exercising this Warrant, the Holder may elect to receive Shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with notice of such election, in which event the Company shall issue to the Holder a number of Warrant Shares computed using the following formula:
Y (A-B) X = ——————— |
||||||
| A |
| Where: | X | = | the number of Shares to be issued to the Holder. | |||
| Y | = | the number of the Shares being exercised on the date of determination. | ||||
| A | = | the fair market value of one Share on the date of determination. | ||||
| B | = | the per share Exercise Price (as adjusted to the date of such calculation). |
(c) Fair Market Value. For purposes of this Article 1, the per share fair market value of the Warrant Shares shall mean:
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(i) If the Company’s Common Stock is publicly traded, the per share fair market value of the Warrant Shares shall be the average of the closing prices of the Common Stock as quoted on the Over-the-Counter Bulletin Board, or the principal exchange on which the Common Stock is listed, in each case for the fifteen trading days ending five trading days prior to the date of determination of fair market value;
(ii) If the Company’s Common Stock is not so publicly traded, the per share fair market value of the Warrant Shares shall be such fair market value as is determined in good faith by the Board of Directors of the Company after taking into consideration factors it deems appropriate, including, without limitation, recent sale and offer prices of the capital stock of the Company in private transactions negotiated at arm’s length.
1.2 Delivery of Certificate and New Warrant. Promptly after Holder first exercises this Warrant, the Company shall deliver to Holder certificates for or other evidence (reasonably acceptable to the Holder) of the Shares received and, if this Warrant has not been fully exercised and has not expired, a new Warrant representing the Shares not so received.
1.3 Replacement of Warrants. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 Stock Dividends, Splits, Combinations, Etc. If the Company declares or pays a dividend on the Shares payable in Common Stock, or other securities, then upon exercise of this Warrant, for each Share acquired, Holder shall receive, without cost to Holder, the total number and kind of securities to which Holder would have been entitled had Holder owned the Shares of record as of the date the dividend occurred. If the Company subdivides the Shares by reclassification or otherwise into a greater number of shares or takes any other action which increases the amount of stock into which the Shares are convertible, the number of shares purchasable hereunder shall be proportionately increased and the Exercise Price shall remain the same. If the outstanding shares of the Company are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Exercise Price shall be proportionately increased and the number of Shares shall be proportionately decreased.
2.2 Reclassification, Exchange or Substitution, Etc. Upon any reclassification, exchange, substitution, or other event that results in a change of the number and/or class of the securities issuable upon exercise or net exercise of this Warrant, Holder shall be entitled to receive, upon exercise or net exercise of this Warrant, the number and kind of securities and property that Holder would have received for the Shares if this Warrant had been exercised immediately before such reclassification, exchange, substitution, or other event. The Company or its successor shall promptly issue to Holder an amendment to this Warrant setting forth the number and kind of such new securities or other property issuable upon exercise or net exercise of this Warrant as a result of such reclassification, exchange, substitution or other event that results in a change of the number and/or class of securities issuable upon exercise or net exercise of this Warrant.
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2.3 Merger or Consolidation. Upon any capital reorganization of the Company’s capital stock (other than a subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Section 2) or a merger or consolidation of the Company with or into another corporation, then as a part of such reorganization, merger or consolidation, provision shall be made so that the Holder shall thereafter be entitled to receive upon the exercise of this Warrant, the number and kind of securities and property of the Company, or of the successor corporation resulting from such reorganization, merger or consolidation, to which that Holder would have received for the Shares if this Warrant had been exercised immediately before such reorganization, merger or consolidation.
2.4 Fractional Shares. No fractional Shares shall be issuable upon exercise or net exercise of this Warrant and the number of Shares to be issued shall be rounded up to the nearest whole Share.
ARTICLE 3. COVENANTS OF THE COMPANY.
3.1 Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon any of its stock, whether in cash, property, stock, or other securities and whether or not a regular cash dividend; (b) to effect any reclassification or recapitalization of any of its stock; or (c) to merge or consolidate with or into any other corporation, or sell, lease, license, or convey all or substantially all of its assets, or to liquidate, dissolve or wind up, then, in connection with each such event, the Company shall give Holder: (1) at least three (3) days prior written notice of the date on which a record will be taken for such dividend, distribution, or subscription rights (and specifying the date on which the holders of Common Stock will be entitled thereto) or for determining rights to vote, if any, in respect of the matters referred to in (a) above; and (2) in the case of the matters referred to in (b) and (c) above at least three (3) days prior written notice of the date when the same will take place (and specifying the date on which the holders of Common Stock will be entitled to exchange their Common Stock for securities or other property deliverable upon the occurrence of such event).
3.2 No Stockholder Rights or Liabilities. Except as provided in this Warrant, the Holder will not have any rights as a stockholder of the Company until the exercise of this Warrant. Absent an affirmative action by the Holder to purchase the Shares, the Holder shall not have any liability as a stockholder of the Company.
3.3 Closing of Books. The Company will at no time close its transfer books against the transfer of this Warrant or of any Shares issued or issuable upon the exercise of this Warrant in any manner which interferes with the timely exercise of this Warrant.
ARTICLE 4. MISCELLANEOUS.
4.1 Term. This Warrant is exercisable in whole or in part at any time and from time to time on or before the earlier of 5:00 pm GMT on the tenth (10th) anniversary of the Issue Date.
4.2 Legends. This Warrant and the Shares (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) shall be imprinted with a legend in substantially the following form:
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
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4.3 Transfers. This Warrant and the Shares issuable upon exercise of this Warrant (and the securities issuable, directly or indirectly, upon conversion of the Shares, if any) may not be transferred or assigned in whole or in part without compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably requested by the Company). After compliance with all restrictions on transfer set forth in this Section 4.3, and within a reasonable time after the Company’s receipt of an executed assignment agreement, the transfer shall be recorded on the books of the Company upon the surrender of this Warrant, properly endorsed, to the Company at its principal offices, and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer. In the event of a partial transfer, the Company shall issue to the new holders one or more appropriate new warrants.
4.4 Notices. All notices and other communications from the Company to the Holder, or vice versa, shall be deemed delivered and effective when given personally or mailed by first-class registered or certified mail, postage prepaid, at such address as may have been furnished to the Company or the Holder, as the case may (or on the first business day after transmission by facsimile) be, in writing by the Company or such Holder from time to time. Effective upon receipt of the fully executed Warrant, all notices to the Holder shall be addressed as set forth on the signature page hereto until the Company receives notice of a change of address in connection with a transfer or otherwise. Notice to the Company shall be addressed as set forth on the signature page hereto until the Holder receives notice of a change in address.
4.5 Waiver. This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought.
4.6 Counterparts. This Warrant may be executed in counterparts, all of which together shall constitute one and the same agreement.
4.7 Governing Law. This Warrant shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its principles regarding conflicts of law.
Please indicate your acceptance of these terms by countersigning where indicated below.
| Slinger Bag Inc. | ||
| Name: | ||
| Title: | ||
| Agreed and accepted: | ||
| Aitan Zacharin | ||
| 14 |
Appendix 1
SLINGER BAG INC.
EXERCISE NOTICE
Reference is made to the Warrant Agreement dated 30 April 2020 between Slinger Bag Inc. (the “Company”) and Aitan Zacharin (the “Warrant Agreement”). In accordance with and pursuant to the Warrant Agreement, the undersigned hereby elects to exercise the Warrant to purchase shares of common stock of the Company as set forth below. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Warrant Agreement.
Date of
Exercise: __________________________________________________
Number of shares of ordinary/common
(or its equivalent) stock to be purchased:________________________________
Please issue shares of common stock in the following name and to the following address:
Issue to: _________________________________________
Address: _________________________________________
Telephone Number: ________________________________
Email address: _________________________________
Holder: __________________________________________
| By: | ||
| Title: |