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 5, 2017

Date of Report (Date of earliest event reported)

 

 

 

TSS, INC.

(Exact name of registrant as specified in its charter)

 

 

Delaware 000-33627 20-2027651

(State or other jurisdiction of

incorporation)

(Commission File Number)

(I.R.S. Employer

Identification No.)

 

     
110 E. Old Settlers Blvd.    
Round Rock, Texas   78664
(Address of principal executive offices)   (Zip Code)

 

(512) 310-1000

(Registrant’s telephone number, including area code)

 

Not Applicable

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

 

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

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
   
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
   
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
   
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

 

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

 

On April 5, 2017, the Company entered into an Amendment to Executive Employment Agreement (the “Amendment”) with Gerard J. Gallagher, Chief Technical 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 Employment 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, further amended by the Amendment to Executive Employment Agreement, effective May 21, 2013, and further amended by the Amendment to Executive Employment Agreement, effective August 13, 2013. The Amendment provides that Mr. Gallagher’s position changes from Chief Technical Officer of the Company to Senior Technical Advisor and Founder of the Company. Additionally, the Amendment decreases Mr. Gallagher’s annual base salary to $35,000, effective April 5, 2017. A copy of the Amendment is filed as Exhibit 99.1 to this Form 8-K and is incorporated herein by reference.

 

On April 30, 2012, the Company granted Anthony Angelini, the President and Chief Executive Officer of the Company, options to purchase 750,000 shares of the Company’s common stock. The exercise price per share for these stock options is equal to the average of the high and low bid prices for the Company’s common stock reported daily on the OTCQB Marketplace during the 20 trading days following April 30, 2012, which was $0.44. These stock options became exercisable in installments as follows: (a) with respect to 125,000 shares, when the fair market value of the Company’s common stock is $1.50 for 20 consecutive business days; (b) with respect to 125,000 shares, when the fair market value of the Company’s common stock is $2.00 for 20 consecutive business days; (c) with respect to 125,000 shares, when the fair market value of the Company’s common stock is $2.50 for 20 consecutive business days; (d) with respect to 125,000 shares, when the fair market value of the Company’s common stock is $3.00 for 20 consecutive business days; (e) with respect to 125,000 shares, when the fair market value of the Company’s common stock is $3.50 for 20 consecutive business days; and (f) with respect to 125,000 shares, when the fair market value of the Company’s common stock is $4.00 for 20 consecutive business days.

 

On April 10, 2017, the Company and Mr. Angelini agreed to amend the exercise price and vesting schedule applicable to these stock options. In accordance with amendments to the stock option agreements governing these stock options, the revised exercise price per share is $0.10. As amended, the stock options become exercisable (a) with respect to 375,000 shares, on April 10, 2018, and (b) with respect to 375,000 shares, on April 10, 2019. Except as otherwise described herein, the other terms and conditions of these stock options remain in full force and effect. Copies of the amendments to the stock option agreements are filed as Exhibit 99.2 and 99.3 to this Form 8-K and are incorporated herein by reference.

 

On January 14, 2014, the Company granted Martin T. Olsen, the Executive Vice President, Sales & Marketing of the Company, options to purchase 200,000 shares of the Company’s common stock. The exercise price per share for these stock options is equal to the average of the high and low bid prices for the Company’s common stock reported daily on the OTCQB Marketplace during the 20 trading days following January 14, 2014, which was $0.49. On August 29, 2014, the Company granted John K. Penver, the Chief Financial Officer of the Company, options to purchase 200,000 shares of the Company’s common stock. The exercise price per share for these stock options is equal to the average of the high and low bid prices for the Company’s common stock reported daily on the OTCQB Marketplace during the 20 trading days following August 29, 2014, which was $0.20. The stock options granted to each of Messrs. Olsen and Penver became exercisable in installments as follows: (a) with respect to 100,000 shares, when the fair market value of the Company’s common stock is $2.00 for 20 consecutive business days; and (b) when the fair market value of the Company’s common stock is $3.00 for 20 consecutive business days.

 

 

 

 

On April 10, 2017, the Company and each of Messrs. Olsen and Penver agreed to amend the number of shares underlying these stock options and the exercise price and the vesting schedule applicable to these stock options. In each case, the number of shares underlying these stock options was increased to 300,000 shares of the Company’s common stock. In accordance with amendments to the applicable award agreement governing these stock options, the revised exercise price per share is $0.10. As amended, the stock options become exercisable (a) with respect to 150,000 shares, on April 10, 2018, and (b) with respect to 150,000 shares, on April 10, 2019. Except as otherwise described herein, the other terms and conditions of these stock options remain in full force and effect. Copies of the amendments to the award agreements between the Company and Messrs. Olsen and Penver are filed as Exhibits 99.4 and 99.5, respectively, to this Form 8-K and are incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

99.1 Amendment to Executive Employment Agreement, effective April 5, 2017, between the Company and Gerard J. Gallagher.

 

99.2 Amendment to Stock Option Agreement, dated as of April 10, 2017, between the Company and Anthony Angelini with respect to options to purchase 250,000 shares of the Company’s common stock.

 

99.3 Amendment to Stock Option Agreement, dated as of April 10, 2017, between the Company and Anthony Angelini with respect to options to purchase 500,000 shares of the Company’s common stock.

 

99.4 Amendment to Award Agreement, dated as of April 10, 2017, between the Company and Martin T. Olsen.

 

99.5 Amendment to Award Agreement, dated as of April 10, 2017, between the Company and John K. Penver.

 

 

 

 

S I G N A T U R E S

 

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

 

  TSS, INC.  
       
       
  By: /s/ John K. Penver  
    John K. Penver  
    Chief Financial Officer  
       
Date: April 11, 2017      

 

 

 

 

 

Exhibit 99.1

 

AMENDMENT

TO

EXECUTIVE EMPLOYMENT AGREEMENT

 

This AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this “ Amendment ”), is effective as of the 5th day of April 2017, 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, further amended by the Amendment to Executive Employment Agreement effective as of May 21, 2013, and further amended by the Amendment to Executive Employment Agreement effective as of August 13, 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 sixty (60) days’ written notice to the Company or by the Company upon sixty (60) 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 Senior Technical Advisor and Founder 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 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.

 

 

 

 

(c) Base Salary . Section 3.1 is hereby deleted in its entirety and the following is substituted in lieu thereof:

 

3.1. Base Salary. Effective April 5, 2017, the Executive’s annual base salary is Thirty-Five Thousand Dollars ($35,000) (“ Base Salary ”), paid in approximately equal installments bi-weekly. In no event shall the Base Salary be reduced without the prior written consent of the Executive.

 

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 of 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.

 

    2  

 

 

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      

 

    3  

 

Exhibit 99.2

 

AMENDMENT TO

STOCK OPTION AGREEMENT

 

This Amendment to Stock Option Agreement (this “Amendment”) is made as of April 10, 2017, between TSS, Inc. (the “Company”) and Anthony Angelini (the “Executive”).

 

WHEREAS, the Company and the Executive are parties to that certain Stock Option Agreement, dated as of April 30, 2012 (the “Agreement”), relating to an option (the “Option”) to purchase 250,000 shares of the Company’s common stock (“Common Stock”) granted to the Executive; and

 

WHEREAS, the parties desire to amend the Agreement to revise the exercise price and vesting schedule applicable to the Option.

 

NOW, THEREFORE, in consideration of the premises, the mutual promises, covenants, and conditions herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

 

1. All capitalized terms not otherwise defined in this Amendment shall have the meanings attributed to them in the Agreement.

 

2. Paragraph 3 of the Agreement is hereby deleted in its entirety and the following is substituted in lieu thereof:

 

“The Company grants to the Option Holder, subject to the conditions of the Plan, an Option to purchase 250,000 shares of Common Stock (“Option Shares”) in installments as set forth in paragraph 4 of this Agreement at an exercise price per share equal $0.10 (the “Exercise Price”).”

 

3. Paragraph 4 of the Agreement is hereby deleted in its entirety and the following is substituted in lieu thereof:

 

“The Option shall become exercisable and may be exercised in installments in accordance with the following schedule: (a) with respect to 125,000 Option Shares, on April 10, 2018; and (b) with respect to 125,000 Option Shares, on April 10, 2019.”

 

4. Except as otherwise expressly provided in this Amendment, all provisions of the Agreement shall remain in full force and effect. This Amendment and the 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 or understandings with respect to the subject matter hereof and thereof. This Amendment is intended to modify the provisions of the Agreement; in the event that there is a conflict between the terms of this Amendment and the Agreement, the parties intend that the provisions of this Amendment should govern their respective rights and obligations.

 

5. 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.

 

 

 

 

The undersigned parties have executed this Agreement as of the day and year first above written.

 

  TSS, INC.  
       
  By: /s/ Peter H. Woodward  
    Peter H. Woodward  
    Chairman of the Board of Directors  
       
       
  EXECUTIVE  
       
       
  /s/ Anthony Angelini  
  Anthony Angelini  

 

    2  

 

Exhibit 99.3

 

AMENDMENT TO

STOCK OPTION AGREEMENT

 

This Amendment to Stock Option Agreement (this “Amendment”) is made as of April 10, 2017, between TSS, Inc. (the “Company”) and Anthony Angelini (the “Executive”).

 

WHEREAS, the Company and the Executive are parties to that certain Stock Option Agreement, dated as of April 30, 2012 (the “Agreement”), relating to an option (the “Option”) to purchase 500,000 shares of the Company’s common stock (“Common Stock”) granted to the Executive; and

 

WHEREAS, the parties desire to amend the Agreement to revise the exercise price and vesting schedule applicable to the Option.

 

NOW, THEREFORE, in consideration of the premises, the mutual promises, covenants, and conditions herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

 

1. All capitalized terms not otherwise defined in this Amendment shall have the meanings attributed to them in the Agreement.

 

2. Paragraph 3 of the Agreement is hereby deleted in its entirety and the following is substituted in lieu thereof:

 

“The Company grants to the Option Holder, subject to the conditions of the Plan, an Option to purchase 500,000 shares of Common Stock (“Option Shares”) in installments as set forth in paragraph 4 of this Agreement at an exercise price per share equal $0.10 (the “Exercise Price”).”

 

3. Paragraph 4 of the Agreement is hereby deleted in its entirety and the following is substituted in lieu thereof:

 

“The Option shall become exercisable and may be exercised in installments in accordance with the following schedule: (a) with respect to 250,000 Option Shares, on April 10, 2018; and (b) with respect to 250,000 Option Shares, on April 10, 2019.”

 

4. Except as otherwise expressly provided in this Amendment, all provisions of the Agreement shall remain in full force and effect. This Amendment and the 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 or understandings with respect to the subject matter hereof and thereof. This Amendment is intended to modify the provisions of the Agreement; in the event that there is a conflict between the terms of this Amendment and the Agreement, the parties intend that the provisions of this Amendment should govern their respective rights and obligations.

 

5. 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.

 

 

 

 

The undersigned parties have executed this Agreement as of the day and year first above written.

 

  TSS, INC.  
       
  By: /s/ Peter H. Woodward  
    Peter H. Woodward  
    Chairman of the Board of Directors  
       
       
  EXECUTIVE  
       
       
  /s/ Anthony Angelini  
  Anthony Angelini  

 

    2  

 

 

Exhibit 99.4

 

AMENDMENT TO

AWARD AGREEMENT

 

This Amendment to Award Agreement (this “Amendment”) is made as of April 10, 2017, between TSS, Inc. (the “Company”) and Martin T. Olsen (the “Executive”).

 

WHEREAS, the Company and the Executive are parties to that certain Award Agreement, dated as of January 14, 2014 (the “Agreement”), relating to an award of restricted shares of the Company’s common stock (“Common Stock”) and an option (the “Option”) to purchase shares of Common Stock granted to the Executive; and

 

WHEREAS, the parties desire to amend the Agreement to revise the exercise price and vesting schedule applicable to the Option.

 

NOW, THEREFORE, in consideration of the premises, the mutual promises, covenants, and conditions herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

 

1. All capitalized terms not otherwise defined in this Amendment shall have the meanings attributed to them in the Agreement.

 

2. Paragraph 2 of the Agreement is hereby deleted in its entirety and the following is substituted in lieu thereof:

 

“The Company grants to the Executive, subject to the terms and conditions of this Agreement, an Option to purchase 300,000 shares of Common Stock (“Option Shares”) in installments as set forth in the following sentence at an exercise per share equal to $0.10 (the “Exercise Price”). The Option shall become exercisable and may be exercised in installments in accordance with the following schedule: (a) with respect to 150,000 Option Shares, on April 10, 2018; and (b) with respect to 150,000 Option Shares, on April 10, 2019. Notwithstanding the foregoing, the Option shall become immediately exercisable upon the occurrence of a Change in Control of the Company that occurs on or after the first anniversary of the Effective Date. The Option may not be exercised after January 14, 2024.

 

For purposes of this Agreement, (x) “Fair Market Value” means the fair market value of a share of Common Stock as determined in good faith by the Company’s Board of Directors, and (y) “Business Day” means any day other than Saturday, Sunday, or a day on which commercial banks are authorized or required by law to close.”

 

3. Except as otherwise expressly provided in this Amendment, all provisions of the Agreement shall remain in full force and effect. This Amendment and the 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 or understandings with respect to the subject matter hereof and thereof. This Amendment is intended to modify the provisions of the Agreement; in the event that there is a conflict between the terms of this Amendment and the Agreement, the parties intend that the provisions of this Amendment should govern their respective rights and obligations.

 

4. 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.

 

 

 

 

The undersigned parties have executed this Agreement as of the day and year first above written.

 

  TSS, INC.  
       
  By: /s/ Anthony Angelini  
    Anthony Angelini  
    Chief Executive Officer  
       
  EXECUTIVE  
       
       
  /s/ Martin T. Olsen  
  Martin T. Olsen  

 

    2  

 

Exhibit 99.5

 

AMENDMENT TO

AWARD AGREEMENT

 

This Amendment to Award Agreement (this “Amendment”) is made as of April 10, 2017, between TSS, Inc. (the “Company”) and John K. Penver (the “Executive”).

 

WHEREAS, the Company and the Executive are parties to that certain Award Agreement, dated as of August 29, 2014 (the “Agreement”), relating to an award of restricted shares of the Company’s common stock (“Common Stock”) and an option (the “Option”) to purchase shares of Common Stock granted to the Executive; and

 

WHEREAS, the parties desire to amend the Agreement to revise the exercise price and vesting schedule applicable to the Option.

 

NOW, THEREFORE, in consideration of the premises, the mutual promises, covenants, and conditions herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

 

1. All capitalized terms not otherwise defined in this Amendment shall have the meanings attributed to them in the Agreement.

 

2. Paragraph 2 of the Agreement is hereby deleted in its entirety and the following is substituted in lieu thereof:

 

“The Company grants to the Executive, subject to the terms and conditions of this Agreement, an Option to purchase 300,000 shares of Common Stock (“Option Shares”) in installments as set forth in the following sentence at an exercise per share equal to $0.10 (the “Exercise Price”). The Option shall become exercisable and may be exercised in installments in accordance with the following schedule: (a) with respect to 150,000 Option Shares, on April 10, 2018; and (b) with respect to 150,000 Option Shares, on April 10, 2019. Notwithstanding the foregoing, the Option shall become immediately exercisable upon the occurrence of a Change in Control of the Company that occurs on or after the first anniversary of the Effective Date. The Option may not be exercised after August 29, 2024.

 

For purposes of this Agreement, (x) “Fair Market Value” means the fair market value of a share of Common Stock as determined in good faith by the Company’s Board of Directors, and (y) “Business Day” means any day other than Saturday, Sunday, or a day on which commercial banks are authorized or required by law to close.”

 

3. Except as otherwise expressly provided in this Amendment, all provisions of the Agreement shall remain in full force and effect. This Amendment and the 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 or understandings with respect to the subject matter hereof and thereof. This Amendment is intended to modify the provisions of the Agreement; in the event that there is a conflict between the terms of this Amendment and the Agreement, the parties intend that the provisions of this Amendment should govern their respective rights and obligations.

 

4. 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.

  

 

 

  

The undersigned parties have executed this Agreement as of the day and year first above written.

 

  TSS, INC.  
       
  By: /s/ Anthony Angelini  
    Anthony Angelini  
    Chief Executive Officer  
       
  EXECUTIVE  
       
       
  /s/ John K. Penver  
  John K. Penver  

 

    2