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

 

August 13, 2013

Date of Report (Date of earliest event reported)

 

TSS, INC.

(Exact name of registrant as specified in its charter)

 

Delaware 000-51426 20-2027651

(State or other jurisdiction of

incorporation)

(Commission File Number)

(I.R.S. Employer

Identification No.)

 

7226 Lee DeForest Drive, Suite 104  
Columbia, Maryland   21046
(Address of principal executive offices)   (Zip Code)

 

(410) 423-7438
(Registrant’s telephone number, including area code)

 

Not Applicable

(Former name, former address, and former fiscal year, if changed since last report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 
 

 

Item 2.02. Results of Operations and Financial Condition.

 

On Wednesday, August 14, 2013, TSS, Inc. (the “Company”), issued a press release reporting certain financial results of the Company for the three and six months ended June 30, 2013.

 

A copy of the press release is being furnished herewith as Exhibit 99.1.

 

The Company’s financial results contain non-GAAP financial measures. Pursuant to the requirements of Regulation G, the Company has provided reconciliations within the press release of the non-GAAP financial measures to the most directly comparable GAAP financial measures. Disclosure regarding definitions of these measures used by the Company and why the Company’s management believes the measures provide useful information to investors is also included in the press release.

 

The Company will conduct a conference call to discuss its financial results on Wednesday, August 14, 2013, at 4:30 p.m., Eastern Daylight Time.

 

The information in this Report, including Exhibit 99.1 attached hereto, is furnished pursuant to Item 2.02 of this Current Report on Form 8-K. Such information shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, nor shall it be deemed incorporated by reference into any filing under the Securities Act of 1933, except as shall be expressly set forth by specific reference in such filing.

 

Statements contained in this report contain “forward-looking statements,” within the meaning of the Private Securities Litigation Reform Act of 1995. In this context, forward-looking statements may address matters such as our expected future business and financial performance, and often contain words such as “guidance,” “prospects,” “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “should,” or “will.” Forward-looking statements by their nature address matters that are, to different degrees, uncertain. Particular uncertainties that could adversely or positively affect the Company's future results include: the Company's reliance on a significant portion of its revenues from a limited number of customers; risks relating to operating in a highly competitive industry; actual or potential conflicts of interest between the Company and members of the Company’s senior management; risk relating to rapid technological, structural, and competitive changes affecting the industries the Company serves; the uncertainty as to whether the Company can replace its backlog; risks involved in properly managing complex projects; risks relating to the possible cancellation of customer contracts on short notice; risks relating to our ability to continue to implement our strategy, including having sufficient financial resources to carry out that strategy; risks relating to our ability to meet all of the terms and conditions of our debt obligations or maintain sufficient availability under our revolving credit facility; risks relating to the acquisition of businesses; uncertainty related to current economic conditions and the related impact on demand for our services; and other risks and uncertainties disclosed in the Company's filings with the Securities and Exchange Commission, including the Annual Report on Form 10-K for the fiscal year ended December 31, 2012. These uncertainties may cause the Company's actual future results to be materially different than those expressed in the Company’s forward-looking statements. The Company does not undertake to update its forward-looking statements .

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

    

On August 13, 2013, the Company entered into an Amendment to an Executive Employment Agreement (the “Amendment”) with Gerard J. Gallagher, the President and Chief Operating Officer of the Company, amending that certain Executive Employment Agreement, effective January 19, 2007, as amended by Amendment No. 1, dated August 26, 2008, further amended by the Amendment to Executive Agreement, effective February 28, 2010, further amended by the Amendment to Executive Employment Agreement, effective January 3, 2012, further amended by the Amendment to Executive Employment Agreement, effective March 14, 2012, and further amended by the Amendment to Executive Agreement, effective May 21, 2013 (collectively, the “Employment Agreement”).

 

 
 

 

The Amendment provides that either Mr. Gallagher or the Company can terminate Mr. Gallagher’s employment with the Company upon thirty (30) days’ written notice. Additionally, Mr. Gallagher’s position changes from President and Chief Operating Officer of the Company to Chief Technical Officer of the Company, reporting to the Company’s Chief Executive Officer. If the Company terminates Mr. Gallagher’s employment other than for “Cause” or Mr. Gallagher terminates his employment for “Good Reason” (as those terms are defined in the Employment Agreement), the Company will pay Mr. Gallagher his base salary and a portion of any elected COBRA coverage through December 31, 2013. Mr. Gallagher would only be entitled to receive his base salary through the date of termination upon a termination of his employment after December 31, 2013. A copy of the Amendment is filed as Exhibit 99.2 to this Form 8-K and is incorporated herein by reference.

 

Effective August 13, 2013, the Company’s board of directors elected Anthony Angelini, the Chief Executive Officer of the Company, President of the Company.

 

Item 9.01. Financial Statements and Exhibits.

 

99.1   Press Release, dated August 14, 2013.
99.2   Amendment to Executive Employment Agreement, effective August 13, 2013, between the Company and Gerard J. Gallagher.

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  TSS, INC.
     
  By: /s/ Maura McNerney
    Maura McNerney
    Chief Financial Officer

 

Date: August 14, 2013

 

 

 

 

7226 Lee DeForest Dr.
Suite 104
Columbia, MD. 21046

 

Company Contact:

TSS, Inc.

Maura McNerney, Chief Financial Officer

Phone: (410) 423-7300

 

TSS, INC. REPORTS SECOND QUARTER 2013 FINANCIAL RESULTS

 

GALLAGHER ASSUMES ROLE AS CHIEF TECHNICAL OFFICER, ANGELINI AS PRESIDENT

 

COLUMBIA, MD – August 14, 2013 – TSS, Inc. (Other OTC: TSSI) , a mission critical data center and technology services company, today announced financial results for the second quarter ended June 30, 2013.

 

Commenting on the quarterly results, Anthony Angelini, Chief Executive Officer of TSS, stated, “The strategy we have articulated is to focus on higher margin and recurring business, and to continue to develop but not rely on large construction projects. The second quarter was a slow period for both new construction projects and modular data center installations. Despite slower activity we were able to grow our facilities management business. The resulting shift in the mix of our sales yielded strong gross margin levels in the quarter. We expect increased levels of activity during the second half of the year.”

 

Angelini continued, “We accomplished a key strategic goal of the quarter in the May acquisition of a systems integration business. We continue to execute on our strategic plan to provide a full range of data center services for both traditional and modular centers. The integration of this business is on plan and we are excited about its growth potential.”

 

Angelini added, “As we continue to evolve the organization, Jerry Gallagher will assume the role as CTO and I will assume his role as President in addition to CEO. This transition will allow Jerry to focus on technology and further develop our leadership at the forefront of rapidly evolving data center technologies as well as improve visibility of our technical capabilities.”

 

Second Quarter 2013 Financial Highlights:

 

· Revenue of $7.0 million, compared with $15.5 million in the second quarter of 2012.
· Gross profit of $2.0 million, compared with $2.3 million in the second quarter of 2012.
· Normalized Adjusted EBITDA loss of $0.4 million, compared with Normalized Adjusted EBITDA income of $0.2 million in the second quarter of 2012.
· Net loss of $1.0, or $0.07 per basic and diluted share, compared with net loss of $2.3 million or $0.16 per basic and diluted share, in the second quarter of 2012.
· Closing of $6.0 million revolving line of credit with Bridge Bank



1
 

 

Quarterly Conference Call Details

 

The Company has scheduled a conference call to discuss the second quarter 2013 financial results and its strategic vision for today at 4:30PM Eastern today.

 

To participate on the conference call, please dial 1-877-941-8418 toll free from the U.S., or 1-480-629-9809 for international callers. Investors may also access a live audio web cast of this conference call under the “events” tab on the investor relations section of the Company's website at http://ir.totalsitesolutions.com/events.cfm .

 

An audio replay of the conference call will be available approximately one hour after the conclusion of the call and will be made available until Wednesday, August 21, 2013. The audio replay can be accessed by dialing 1 303 590 3030 locally or 1-800-406-7325 toll free then enter access ID number 4635629. Additionally, a replay of the webcast will be available approximately two hours after the conclusion of the call, and will remain available for 90 calendar days.

 

About Non-GAAP Financial Measures

 

Adjusted EBITDA and Normalized Adjusted EBITDA are supplemental financial measures not defined under Generally Accepted Accounting Principles (GAAP). We define Adjusted EBITDA as net income (loss) before interest expense, income taxes, depreciation and amortization, impairment loss on goodwill and other intangibles, stock-based compensation, and provision for bad debts. We present Adjusted EBITDA because we believe this supplemental measure of operating performance is helpful in comparing our operating results across reporting periods on a consistent basis by excluding non-cash items that may, or could, have a disproportionate positive or negative impact on our results of operations in any particular period. We also use Adjusted EBITDA as a factor in evaluating the performance of certain management personnel when determining incentive compensation.

 

We define Normalized Adjusted EBITDA as Adjusted EBITDA before restructuring charges, certain other non-recurring costs and acquisition expenses. We present Normalized Adjusted EBITDA because we believe it is helpful in comparing our operating results across reporting periods on a consistent basis by excluding from Adjusted EBITDA certain non-recurring items that do not directly correlate to our business and may, or could, have a disproportionate positive or negative impact on our performance during a particular period. Similar to Adjusted EBITDA, we also use Normalized Adjusted EBITDA as a factor in evaluating the performance of certain management personnel when determining incentive compensation.

 

Adjusted EBITDA and Normalized Adjusted EBITDA may not be comparable to similarly titled measures reported by other companies. Adjusted EBITDA and Normalized Adjusted EBITDA , while providing useful information, should not be considered in isolation or as an alternative to net income or cash flows as determined under GAAP. Consistent with Regulation G under the U.S. federal securities laws, Adjusted EBITDA and Normalized Adjusted EBITDA have been reconciled to the nearest GAAP measure, and this reconciliation is located under the heading "Normalized Adjusted EBITDA Reconciliation" following the Consolidated Statements of Operations included in this press release.

 

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About TSS, Inc.

 

TSS is a trusted single source provider of mission-critical planning, design, system integration, deployment, maintenance and evolution of data center facilities and information infrastructure. TSS specializes in customizable end to end solutions powered by industry experts and innovative services that include technology consulting, engineering, design, construction, operations, facilities management, technology system installation and integration, as well as maintenance for traditional and modular data centers. TSS is headquartered in Columbia, Md. For more information contact us at www.totalsitesolutions.com or call 888-321-4877.

 

Forward Looking Statements

 

This press release may contain "forward-looking statements" — that is, statements related to future — not past — events, plans, and prospects. In this context, forward-looking statements may address matters such as our expected future business and financial performance, and often contain words such as "guidance," "expects," "anticipates," "intends," "plans," "believes," "seeks," "should," or "will." Forward-looking statements by their nature address matters that are, to different degrees, uncertain. Particular uncertainties that could adversely or positively affect the Company's future results include: the Company's reliance on a significant portion of its revenues from a limited number of customers; risks relating to operating in a highly competitive industry; actual or potential conflicts of interest between the Company and members of the Company’s senior management; risks relating to rapid technological, structural, and competitive changes affecting the industries the Company serves; the uncertainty as to whether the Company can replace its backlog; risks involved in properly managing complex projects; risks relating the possible cancellation of customer contracts on short notice; risks relating our ability to continue to implement our strategy, including having sufficient financial resources to carry out that strategy; risks relating to our ability to meet all of the terms and conditions of our debt obligations or maintain sufficient availability under our revolving credit facility; risks relating to the acquisition of businesses; uncertainty related to current economic conditions and the related impact on demand for our services; and other risks and uncertainties disclosed in the Company's filings with the Securities and Exchange Commission, including the Annual Report on Form 10-K for the fiscal year ended December 31, 2012. These uncertainties may cause the Company's actual future results to be materially different than those expressed in the Company's forward-looking statements. The Company does not undertake to update its forward-looking statements.

 

3
 

 

TSS, Inc.

Condensed Consolidated Balance Sheets

 

    (Unaudited)        
    June 30,     December 31,  
    2013     2012  
             
Current Assets:                
Cash and cash equivalents   $ 3,088,122     $ 5,608,322  
Contract and other receivables, net     6,104,714       7,525,340  
Costs and estimated earnings in excess of billings on uncompleted contracts     700,816       813,348  
Inventories     314,735       -  
Prepaid expenses and other current assets     779,525       429,089  
Total current assets     10,987,912       14,376,099  
Fixed assets, net     320,682       273,451  
Goodwill     1,830,316       1,768,861  
Intangible assets, net     1,109,913       60,000  
Other assets     205,487       19,358  
                 
Total assets   $ 14,454,310     $ 16,497,769  
                 
Current Liabilities:                
Convertible notes payable, current portion, net   $ 129,000     $ 500,000  
Borrowings under credit facility     2,000,000       -  
Accounts payable and accrued expenses     4,705,109       5,753,347  
Billings in excess of costs and estimated earnings on uncompleted contracts     1,959,265       3,028,627  
Total current liabilities     8,793,374       9,281,974  
Convertible notes, less current portion, net     742,343       1,957,301  
Other liabilities     37,275       52,626  
Total liabilities     9,572,992       11,291,901  
                 
Commitments and Contingencies                
                 
Stockholders’ Equity:                
                 
Preferred stock, $.0001 par value; 1,000,000 shares authorized at June 30, 2013 and December 31, 2012, respectively; none issued                
Common stock, $.0001 par value, 49,000,000 and 100,000,000 shares authorized at June 30, 2013 and December 31, 2012, respectively; 15,269,193 and 15,087,526 issued at June 30, 2013 and December 31, 2012, respectively     1,527       1,509  
Additional paid-in capital     66,975,637       66,305,764  
Accumulated deficit     (60,585,740 )     (59,597,909 )
Treasury stock 820,759 and 808,754 shares at cost at June 30, 2013 and December 31, 2012, respectively     (1,510,106 )     (1,503,496 )
Total stockholders' equity     4,881,318       5,205,868  
Total liabilities and stockholders’ equity   $ 14,454,310     $ 16,497,769  

 

4
 

 

TSS, Inc.

Condensed Consolidated Statements of Operations

 

    (Unaudited)     (Unaudited)  
    Three Months Ended     Six Months Ended  
    June 30, 2013     June 30, 2012     June 30, 2013     June 30, 2012  
Revenue   $ 6,951,819     $ 15,540,852     $ 21,070,446     $ 29,850,714  
Cost of revenue     4,980,786       13,209,463       16,339,762       25,464,820  
Gross profit     1,971,033       2,331,389       4,730,684       4,385,894  
Selling, general and administrative expenses     2,881,229       2,480,857       5,640,201       5,465,397  
Restructuring and other charges     -       -               279,286  
Impairment loss on goodwill     -       2,071,000       -       2,071,000  
Loss from operations     (910,196 )     (2,220,468 )     (909,517 )     (3,429,789 )
Other income (expense):                                
Interest expense, net     (39,483 )     (48,446 )     (63,314 )     (91,214 )
Other expense     (15,000 )     -       (15,000 )     -  
Loss from operations before income taxes     (964,679 )     (2,268,914 )     (987,831 )     (3,521,003 )
Income tax provision     -       -       -       -  
Net loss   $ (964,679 )   $ (2,268,914 )   $ (987,831 )   $ (3,521,003 )
                                 
Basic loss per share:                                
Loss per common share   $ (0.07 )   $ (0.16 )   $ (0.07 )   $ (0.25 )
Weighted average common shares outstanding     14,385,713       14,147,049       14,368,354       14,124,380  
                                 
Diluted loss per share:                                
Loss per common share   $ (0.07 )   $ (0.16 )   $ (0.07 )   $ (0.25 )
Weighted average common shares outstanding     14,385,713       14,147,049       14,368,354       14,124,380  

 

5
 

 

TSS, Inc.

Normalized Adjusted EBITDA Reconciliation

 

    (Unaudited)     (Unaudited)  
    For the Three Months Ended     For the Six Months Ended  
    June 30, 2013     June 30, 2012     June 30, 2013     June 30, 2012  
Net income (loss)   $ (964,679 )   $ (2,268,914 )   $ (987,831 )   $ (3,521,003 )
Interest (income) expense, net     39,483       48,446       63,314       91,214  
Depreciation and amortization     61,541       81,356       111,675       158,261  
EBITDA   $ (863,655 )   $ (2,139,112 )   $ (812,842 )   $ (3,271,528 )
Stock based compensation     117,242       67,388       224,855       164,754  
Impairment loss on goodwill     -       2,071,000       -       2,071,000  
Provision for bad debts     2,705       55,290       2,705       55,290  
Adjusted EBITDA   $ (743,708 )   $ 54,566     $ (585,282 )   $ (980,484 )
Restructuring charnges     -       -       -       279,286  
Other one-time (income) expense, net     69,375       95,916       69,375       340,525  
Acquisition expenses     243,733       -       243,733       -  
Normalized adjusted EBITDA   $ (430,600 )   $ 150,482     $ (272,174 )   $ (360,673 )

 

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AMENDMENT

TO

EXECUTIVE EMPLOYMENT AGREEMENT

 

This AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this “ Amendment ”), is effective as of the 13th day of August 2013, by and between TSS, INC., a Delaware corporation (f/k/a Fortress International Group, Inc.) (the “ Company ”), and Gerard J. Gallagher (the “ Executive ”). Each of the Company and Executive are hereinafter individually referred to as a “ Party ,” and collectively as the “ Parties ”.

 

EXPLANATORY STATEMENTS

 

The Parties are all of the parties to that certain Executive Employment Agreement effective as of January 19, 2007, as amended by Amendment No. 1, dated August 26, 2008, further amended by the Amendment to Executive Employment Agreement effective as of February 28, 2010, further amended by the Amendment to Executive Employment Agreement effective as of January 3, 2012, further amended by the Amendment to Executive Employment Agreement effective as of March 14, 2012, and further amended by the Amendment to Executive Employment Agreement effective as of May 21, 2013, (collectively, the “ Employment Agreement ”). The Parties desire to amend certain terms and conditions set forth in the Employment Agreement, all as further described and set forth in this Amendment.

 

AGREEMENT

 

NOW, THEREFORE , in consideration of the foregoing and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

 

1.           Amendments to the Employment Agreement .

 

(a)           Employment Period . Section 2.1 is hereby deleted in its entirety and the following is substituted in lieu thereof:

 

2.1            Employment Period . The Company hereby employs the Executive, and the Executive hereby accepts said employment and agrees to render services to the Company, on the terms and conditions set forth in this Agreement, for the period (the “ Employment Period ”) beginning on the date of the closing under the Purchase Agreement (the “ Closing Date ”) and ending when such period is terminated by the Executive upon thirty (30) days’ written notice to the Company or by the Company upon thirty (30) days’ written notice to the Executive.

 

(b)           Duties . Section 2.2 is hereby deleted in its entirety and the following is substituted in lieu thereof:

 

 
 

 

2.2.           Duties . During the Employment Period, the Executive’s title shall be Chief Technical Officer of the Company. During the Employment Period, the Executive shall report to the Chief Executive Officer of the Company. The Executive shall perform such services for the Company as is consistent with the Executive’s position and as lawfully directed, from time to time, by the Company’s Chief Executive Officer. The Executive shall not, during the Employment Period, be employed or involved in any other business activity for gain, profit or other pecuniary advantage. Notwithstanding the immediately foregoing sentence, the Executive may (a) volunteer services for or on behalf of such religious, educational, non-profit and/or charitable organizations as the Executive may wish to serve; (b) manage his personal, financial and legal affairs; and (c) participate as a director of, or own less than fifty percent (50%) of the equity interest or voting rights in, any other business entity that does not directly or indirectly compete with the business of the Company, so long as (1) the Executive provides the Audit Committee of the Board prior written notice of such activities that describes such activities in reasonable detail (provided, however, that such notice shall not be required for any investment by the Executive that would result in the Executive owning not more than five percent (5%) of the outstanding stock or voting power of a business entity listed on a national securities exchange); (2) such activities do not interfere, or could not reasonably be expected to interfere, with his duties and responsibilities to the Company as provided hereunder, (3) the Executive is not actively involved in the management of such business entity, except to the extent the Executive serves on such business entity’s board of directors or similar governing body; (4) such activities do not violate any of the terms of this Agreement or any other agreement entered into with the Company (including, but not limited to, Sections 2.4 and 7 hereof), and (5) such activities would not be the types of activities required, in the sole discretion of the Audit Committee, to be disclosed under Item 404 of Regulation S-K promulgated by the Securities and Exchange Commission regardless of whether the Company is subject to such disclosure requirements. The Executive acknowledges that the Executive may be required to travel on business in connection with the Executive’s performance of the Executive’s duties hereunder, but that the Executive’s base will be the location of the Company’s headquarters in Columbia, Maryland or such other location as determined by the Board.

 

(c)           Termination . Section 5.2 is hereby deleted in its entirety and the following is substituted in lieu thereof:

 

5.2.           Termination by the Company Other Than for Death, Disability, or Cause or by Executive for a Good Reason . In addition to the payment to the Executive of the Executive’s Base Salary and reimbursement of any applicable expenses pursuant to Section 4.2 through the Date of Termination, if (a) the Employment Period is terminated prior to December 31, 2013, (i) by the Company for reasons other than death, Disability, or Cause, or (ii) by the Executive for a Good Reason, and (b) the Executive executes a general release in the form attached hereto as Exhibit C (the “ Release ”) on or before the effective Date of Termination, and (c) the Executive has not breached the terms of the “Assignment Agreement” (as defined below); then the Company shall pay the Executive an amount equal to the Executive’s Base Salary (at the rate in effect at the Date of Termination) as though the Executive continued to be employed by the Company until December 31, 2013. Such amount shall be payable in accordance with the Company’s normal payroll practices as though the Executive continued to be employed by the Company until December 31, 2013. If the Executive elects and remains eligible for health coverage pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended (“ COBRA ”) (and subject to withholding pursuant to Section 3.4 above), then commencing within fifteen (15) business days following the date on which the Release becomes effective pursuant to its terms, the Company will, for a period commencing on the Date of Termination and continuing through December 31, 2013, pay a percentage of the premium for such COBRA health coverage equal to the percentage of the premium for health insurance coverage paid by the Company on the Date of Termination. Notwithstanding the foregoing, if the Employment Period is terminated for any reason after December 31, 2013, the Executive shall only be entitled to receive the Executive’s Base Salary through the Date of Termination and the reimbursement of any applicable expenses pursuant to Section 4.2 through the Date of Termination, and the Executive shall have no right to any other compensation thereafter (other than pursuant to Section 5.3 ). The Executive shall not be entitled to any other salary or compensation after termination of the Employment Period (other than as set forth in this Section 5.2 and Section 5.3 ), and no Person shall be entitled hereunder to participate in any employee benefit plan after the Date of Termination if the Employment Period is terminated in connection with this Section 5.2 , except as otherwise specifically provided hereunder or as required by applicable law (i.e., COBRA) and provided that nothing herein shall be interpreted to limit the Executive’s conversion rights, if any, under any of the Company’s employee benefit plans. In furtherance of and not in limitation of the foregoing, the Executive may only be terminated by the affirmative vote of a majority of the whole Board (excluding the Executive if he is a member of the Board).

 

 
 

 

2.           Restrictive Covenants . Notwithstanding anything contrary set forth in the Employment Agreement, the Executive shall be subject to the covenants set forth in Section 7 of the Employment Agreement, including without limitation Sections 7.1, 7.2, and 7.3 of the Employment Agreement, for a Restrictive Period beginning on the Date of Termination through the first anniversary of the Date ot Termination.

 

3.           Effect of Amendment . Except as otherwise expressly provided herein, all provisions of the Employment Agreement shall remain in full force and effect. This Amendment and the Employment Agreement contain the entire understanding of the Parties with respect to the subject matter hereof and thereof, and supersede all prior oral or written communications, agreements and understandings between the Parties with respect to the subject matter hereof and thereof. This Amendment is intended to modify the provisions of the Employment Agreement; in the event that there is a conflict between the terms of this Amendment and the Employment Agreement, the Parties intend that the provisions of this Amendment should govern their respective rights and obligations.

 

4.           Miscellaneous . The Explanatory Statements form a material basis for this Amendment and are expressly incorporated herein and made a part hereof. All capitalized terms not otherwise defined in this Amendment shall have the meanings assigned to them in the Employment Agreement. All questions concerning the construction, validity, and interpretation of this Amendment and the performance of the obligations imposed by this Amendment will be governed by the laws of the State governing the Employment Agreement, without reference to any conflict of laws rules that would apply the laws of another jurisdiction. This Amendment may be executed simultaneously in multiple counterparts, each of which will be deemed to be an original copy of this Amendment and all of which together will be deemed to constitute one and the same agreement. The exchange of copies of this Amendment and of signature pages by facsimile transmission or e-mail delivery of a .pdf format data file shall constitute effective execution and delivery of this Amendment as to the Parties and may be used in lieu of the original Amendment and signature pages thereof for all purposes.

 

 
 

 

IN WITNESS WHEREOF , the Parties have executed this Amendment as of the day and year first written above.

 

COMPANY :   EXECUTIVE :
     
TSS, INC.    
     
By: /s/ Anthony Angelini   /s/ Gerard J. Gallagher
Name:  Anthony Angelini   Gerard J. Gallagher
Title:  Chief Executive Officer