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
Date of Report (Date of earliest event reported): November 22, 2023
| SIGNING DAY SPORTS, INC. |
| (Exact name of registrant as specified in its charter) |
| Delaware | 001-41863 | 87-2792157 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
| 8355 East Hartford Rd., Suite 100, Scottsdale, AZ | 85255 | |
| (Address of principal executive offices) | (Zip Code) |
| (480) 220-6814 | ||
| (Registrant’s telephone number, including area code) |
| (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:
| ☐ | 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:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Common Stock, $0.0001 par value per share | SGN | NYSE American LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
Emerging Growth Company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Appointment of President and Chief Technology Officer
On November 22, 2023, the board of directors of Signing Day Sports, Inc. (the “Company”) approved the appointment of Richard Symington as President and Chief Technology Officer of the Company. Mr. Symington will hold office until his successor has been duly appointed and qualified or his earlier removal or resignation.
Mr. Symington, 44, previously served as the Company’s President and Chief Marketing Officer and a member of the Company’s board of directors from April 2023 to May 2023. From May 2015 to February 2020, Mr. Symington was the Manager of Blacklight Technologies LLC. From January 2015 to September 2019, Mr. Symington was also the founder, Chief Executive Officer, and Manager of Island Marketing Consultants LLC (formerly A20 Media LLC). From 2002 to 2014, Mr. Symington founded or managed a number of other businesses. Mr. Symington obtained a B.A. in International Relations from the University of San Diego in 2002 and a Diploma in Culinary Arts/Restaurant Management from Arizona Culinary Institute in 2003. Management believes that Mr. Symington is qualified to serve as a director due to his experience in technology and marketing-driven businesses.
There are no family relationships among Mr. Symington and any of our executive officers or directors.
On April 10, 2023, the Company issued Mr. Symington an 8% unsecured promissory note (the “8% Note”) in the amount of $250,000 and a warrant to purchase 100,000 shares of common stock at an exercise price of $2.50 per share (the “Automatic Warrant”) in a private placement in exchange for a payment from Mr. Symington of $250,000. The 8% Note carried interest at 8% annually and was to mature on the earlier to occur of March 17, 2025 or the closing of an initial public offering of the Company’s common stock and listing of the common stock for trading on NYSE American LLC (“NYSE American”) or one of certain other securities markets (a “Liquidity Event”). If a Liquidity Event occurred before March 17, 2025, the Automatic Warrant would be automatically exercised as to the unexercised portion of the Automatic Warrant, the outstanding balance due under the 8% Note would be deemed repaid in the amount of the unexercised portion of the Automatic Warrant from the automatic exercise of the unexercised portion of the Automatic Warrant, and any remaining balance outstanding under the 8% Note would be due in cash within three business days. Mr. Symington also entered into a subscription agreement which provided certain registration rights with respect to the shares underlying the Automatic Warrant.
As previously reported in its Current Report on Form 8-K filed on November 17, 2023 (the “Prior Report”), on November 13, 2023, the Company entered into an underwriting agreement (the “Underwriting Agreement”) with Boustead Securities, LLC, as representative of the underwriters named on Schedule 1 thereto (the “Representative”), relating to the Company’s initial public offering (the “Offering”) of 1,200,000 shares of the Company’s common stock (the “IPO Shares”). Pursuant to the Underwriting Agreement, in exchange for the underwriters’ firm commitment to purchase the IPO Shares, the Company agreed, among other things, to sell the IPO Shares to the underwriters at a purchase price (the “Offering Price”) of $4.65 (93% of the public offering price per share of $5.00, after deducting underwriting discounts and commissions and before deducting a 1% non-accountable expense allowance). On November 14, 2023, the Company’s common stock was listed on NYSE American. On November 16, 2023, the closing of the Offering occurred. At the closing, the Company sold the Shares for total gross proceeds of $6,000,000. After deducting underwriting discounts and commissions, the non-accountable expense allowance, and other expenses from the Offering, the Company received net proceeds of approximately $4.8 million. Further information regarding the Underwriting Agreement, the Offering and related matters is included in the Prior Report.
The closing of the Offering and the listing of the common stock on NYSE American constituted a Liquidity Event with respect to the 8% Note and Automatic Warrant. As a result, on November 16, 2023, the balance under the 8% Note became due, the Automatic Warrant was automatically exercised in full for 100,000 shares of common stock, and the outstanding principal under the 8% Note was deemed repaid. All of the 100,000 shares issued pursuant to the automatic exercise of the Automatic Warrant were registered for resale upon issuance pursuant to the Registration Statement on Form S-1 (File No. 333-271951), as amended, initially filed with the Securities and Exchange Commission (the “SEC”) on May 15, 2023, and declared effective by the SEC on November 13, 2023, and by means of the final prospectus, dated November 13, 2023, filed with the SEC on November 15, 2023 pursuant to Rule 424(b)(3) of the Securities Act of 1933, as amended. A total of $11,836 in accrued unpaid interest was due and payable on the 8% Note as of November 16, 2023.
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Under an Executive Employment Agreement with Mr. Symington, dated as of April 5, 2023 (the “Former Executive Agreement”), the Company agreed to employ Mr. Symington as its President and Chief Marketing Officer. Mr. Symington was also appointed as a director. Mr. Symington’s base salary was $200,000 per year. The Former Executive Agreement provided that Mr. Symington was entitled to receive any comprehensive benefits plans offered by the Company, including medical, dental and life insurance options. In addition, pursuant to the Former Executive Agreement, Mr. Symington was granted a stock option to purchase 100,000 shares of common stock of the Company under the Signing Day Sports, Inc. 2022 Equity Incentive Plan (the “Plan”) and the form of Stock Option Agreement approved for grants under the Plan (a “Plan Stock Option Agreement”). One-third of the option will vest on each of the six-month anniversary, the 18-month anniversary, and the 30-month anniversary of the date of the consummation of the Company’s initial public offering, provided that Mr. Symington remains in continuous service with the Company. The option has an exercise price of $2.50 per share. The Former Executive Agreement provided that Mr. Symington’s employment is on an at-will basis, and was terminable by the board of directors of the Company at any time for any or no reason, upon written notice to Mr. Symington. On May 26, 2023, Mr. Symington resigned from his positions as President and Chief Marketing Officer and a director, and terminated the Former Executive Agreement. Accrued and unpaid compensation to Mr. Symington as of the date of termination was $5,000.
On June 7, 2023, the Company entered into an engagement letter with Mr. Symington to provide certain services on a consulting basis beginning 14 days after the closing of the Company’s initial public offering. The engagement letter was terminable at any time before or after that point in time upon five days’ notice. On November 22, 2023, the Company gave notice of termination of the engagement letter effective November 27, 2023, prior to the beginning of the service term under the engagement letter, which, under its terms, would have been November 30, 2023. No compensation was owed under the engagement letter upon termination.
Mr. Symington previously executed an Indemnification Agreement with the Company, dated May 10, 2023 (the “Former Indemnification Agreement”), prior to his resignation from all officer and director positions with the Company as of May 22, 2023. On November 22, 2023, in connection with Mr. Symington’s appointment as President and Chief Technology Officer, Mr. Symington executed the form of Indemnification Agreement entered into between the Company and each officer or director (the “Indemnification Agreement”). The Indemnification Agreement supersedes the Former Indemnification Agreement and provides certain indemnification and reimbursement rights. The foregoing description of the Indemnification Agreement is qualified in its entirety by reference to the full text of the form of such agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 10.1.
President and Chief Technology Officer Employment Agreement
On November 22, 2023, the Compensation Committee of the board of directors of the Company (the “Compensation Committee”) approved an Executive Employment Agreement with Richard Symington, which was dated and entered into by the Company and Mr. Symington on the same date (the “CTO Employment Agreement”). Under the CTO Employment Agreement, Mr. Symington will be employed in his current capacity as the Company’s President and Chief Technology Officer. The following is a summary of the terms of the CTO Employment Agreement.
Mr. Symington’s annual base salary will be $375,000, subject to modification upon execution of an amendment or addendum to the CTO Employment Agreement. The Company will pay or reimburse Mr. Symington for all reasonable and necessary expenses actually incurred or paid by Mr. Symington during his employment in the performance of his duties under the CTO Employment Agreement.
Mr. Symington will be eligible to participate in comprehensive benefits plans of the Company, including medical, dental and life insurance options, and will be entitled to paid time off and holiday pay in accordance with the Company’s policies in effect from time to time.
Pursuant to the CTO Employment Agreement, on November 22, 2023, Mr. Symington was granted a stock option pursuant to the Plan and execution of a Plan Stock Option Agreement. The stock option provides Mr. Symington the right to purchase 50,000 shares of common stock of the Company at an exercise price of $2.25 per share, which was the closing price of the common stock on NYSE American on November 22, 2023. One-third of the option will vest and become exercisable on each of the six-month anniversary, the 18-month anniversary, and the 30-month anniversary of November 16, 2023, the date of the consummation of the Company’s initial public offering, provided that Mr. Symington remains in continuous service with the Company.
Mr. Symington’s employment is at-will. If the Company terminates Mr. Symington without cause after one year of employment from November 22, 2023, Mr. Symington will be entitled to the following severance payments: (i) cash in the amount of base salary in effect on the date of such termination payable in 12 monthly installments; and (ii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans. The payment of severance may be conditioned on receiving a release of any and all claims that Mr. Symington may have against the Company.
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Mr. Symington was required to sign an Employee Confidential Information and Inventions Assignment Agreement, dated as of November 27, 2023 (the “Symington Confidentiality Agreement”), which prohibits unauthorized use or disclosure of the Company’s proprietary information, contains a general assignment of rights to inventions and intellectual property rights, non-competition provisions that apply during the term of employment, non-solicitation provisions that apply during the term of employment and for one year after the term of employment, and non-disparagement provisions that apply during and after the term of employment.
The foregoing description of the CTO Employment Agreement, the respective Plan Stock Option Agreement, and the Symington Confidentiality Agreement is qualified in its entirety by reference to the full text of each agreement or form of agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 10.2, Exhibit 10.4, and Exhibit 10.5, respectively.
Chief Executive Officer Employment Agreement
On November 22, 2023, the Compensation Committee approved an Executive Employment Agreement with Daniel Nelson, the Company’s Chief Executive Officer, Chairman, and a director, which was dated and entered into by the Company and Mr. Nelson on the same date (the “CEO Employment Agreement”). Under the CEO Employment Agreement, Mr. Nelson will be employed in his current capacity as the Company’s Chief Executive Officer. The following is a summary of the terms of the CEO Employment Agreement.
Mr. Nelson’s annual base salary will be $425,000, subject to modification upon execution of an amendment or addendum to the CEO Employment Agreement. The Company will pay or reimburse Mr. Nelson for all reasonable and necessary expenses actually incurred or paid by Mr. Nelson during his employment in the performance of his duties under the CEO Employment Agreement.
Mr. Nelson will be eligible to participate in comprehensive benefits plans of the Company, including medical, dental and life insurance options, and will be entitled to paid time off and holiday pay in accordance with the Company’s policies in effect from time to time.
Pursuant to the CEO Employment Agreement, on November 22, 2023, Mr. Nelson was granted a stock option pursuant to the Plan and execution of a Plan Stock Option Agreement. The stock option provides Mr. Nelson the right to purchase 100,000 shares of common stock of the Company at an exercise price of $2.25 per share, which was the closing price of the common stock on NYSE American on November 22, 2023. The option vests and becomes exercisable as to half the shares immediately upon the date of grant and as to the remaining half in six equal monthly portions after the grant date subject to continuous service.
Mr. Nelson’s employment is at-will. If the Company terminates Mr. Nelson without cause, Mr. Nelson will be entitled to the following severance payments: (i) cash in the amount of base salary in effect on the date of such termination payable in 12 monthly installments; and (ii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans. The payment of severance may be conditioned on receiving a release of any and all claims that Mr. Nelson may have against the Company.
Mr. Nelson was required to sign an Employee Confidential Information and Inventions Assignment Agreement, dated as of November 22, 2023 (the “Nelson Confidentiality Agreement”), which prohibits unauthorized use or disclosure of the Company’s proprietary information, contains a general assignment of rights to inventions and intellectual property rights, non-competition provisions that apply during the term of employment, non-solicitation provisions that apply during the term of employment and for one year after the term of employment, and non-disparagement provisions that apply during and after the term of employment.
The foregoing description of the CEO Employment Agreement, the respective Plan Stock Option Agreement, and the Nelson Confidentiality Agreement is qualified in its entirety by reference to the full text of each agreement or form of agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 10.6, Exhibit 10.4, and Exhibit 10.7, respectively.
Chief Operating Officer Employment Agreement
On November 22, 2023, the Compensation Committee approved an Executive Employment Agreement with David O’Hara, the Company’s Chief Operating Officer and Secretary, which was dated and entered into by the Company and Mr. O’Hara on the same date (the “COO Employment Agreement”). The COO Employment Agreement amends, restates and supersedes the Amended and Restated Employment Offer Letter, dated March 14, 2023, between Mr. O’Hara and the Company. Under the COO Employment Agreement, Mr. O’Hara will be employed in his current capacity as the Company’s Chief Operating Officer and Secretary. The following is a summary of the terms of the COO Employment Agreement.
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Mr. O’Hara’s annual base salary will be $275,000, subject to modification upon execution of an amendment or addendum to the COO Employment Agreement. Mr. O’Hara is also entitled to a one-time cash bonus payment on the date of the COO Employment Agreement. The Company will pay or reimburse Mr. O’Hara for all reasonable and necessary expenses actually incurred or paid by Mr. O’Hara during his employment in the performance of his duties under the COO Employment Agreement.
Pursuant to the COO Employment Agreement, on November 22, 2023, Mr. O’Hara was granted a stock option pursuant to the Plan and execution of a Plan Stock Option Agreement. The stock option provides Mr. O’Hara the right to purchase 100,000 shares of common stock of the Company at an exercise price of $2.25 per share, which was the closing price of the common stock on NYSE American on November 22, 2023. The option vests and becomes exercisable as to half the shares immediately upon the date of grant and as to the remaining half in six equal monthly portions after the grant date subject to continuous service.
Mr. O’Hara will be eligible to participate in comprehensive benefits plans of the Company, including medical, dental and life insurance options. The Company will cover 100% of the health insurance premium costs for Mr. O’Hara’s spouse and dependent children. Mr. O’Hara will also be entitled to paid time off and holiday pay in accordance with the Company’s policies in effect from time to time.
Mr. O’Hara’s employment is at-will. If the Company terminates Mr. O’Hara without cause, Mr. O’Hara will be entitled to the following severance payments: (i) cash in the amount of base salary in effect on the date of such termination payable in 12 monthly installments; (ii) benefits under group health and life insurance plans in which Mr. O’Hara participated prior to termination for 12 months following the date of termination; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any accrued but unused paid time off. There will be no waiting period for the commencement of these payments. The payment of severance may be conditioned on receiving a release of any and all claims that Mr. O’Hara may have against the Company.
Mr. O’Hara was previously required to sign an Employee Confidential Information and Inventions Assignment Agreement, dated as of April 3, 2023 (the “O’Hara Confidentiality Agreement”), which prohibits unauthorized use or disclosure of the Company’s proprietary information, contains a general assignment of rights to inventions and intellectual property rights, non-competition provisions that apply during the term of employment, non-solicitation provisions that apply during the term of employment and for one year after the term of employment, and non-disparagement provisions that apply during and after the term of employment.
The foregoing description of the COO Employment Agreement, the respective Stock Option Agreement, and the O’Hara Confidentiality Agreement is qualified in its entirety by reference to the full text of each agreement or form of agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 10.8, Exhibit 10.4, and Exhibit 10.9, respectively.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
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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.
| Date: November 29, 2023 | SIGNING DAY SPORTS, INC. |
| /s/ Daniel D. Nelson | |
| Name: Daniel D. Nelson | |
| Title: Chief Executive Officer |
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Exhibit 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
This executive employment agreement (the “Agreement”) is made and entered into as of November 22, 2023 (the “Effective Date”) by and between Signing Day Sports, Inc., a Delaware corporation with an office at 8355 East Hartford Drive, Suite 100, Scottsdale, AZ 85255 (“SDS” or the “Company”), and Richard Symington, an individual (“Executive”). SDS and Executive are referred to herein from time to time on a collective basis as the “Parties” and each on an individual basis as a “Party.”
Recitals:
SDS wishes to secure the services of Executive as the President and Chief Technology Officer of SDS (with such other duties and/or offices in SDS or its affiliates as may be assigned by SDS’s Board of Directors (the “Board”)) upon the terms and conditions hereinafter set forth, and Executive wishes to render such services to SDS upon the terms and conditions hereinafter set forth.
Agreement:
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows:
1. Employment by SDS. Subject to approval by the Board or its Compensation Committee, and reasonable pre-employment background screens, SDS agrees to employ Executive during the employment in the position of President and Chief Technology Officer in which Executive will have such duties and responsibilities to SDS as are customary for such a position in companies comparable to SDS, and as are reasonably assigned, delegated, and determined with notice from time to time by the Board to the Executive, and Executive accepts such employment and agrees to perform such duties and responsibilities. Executive shall devote his full business time and attention exclusively to SDS and shall use Executive’s best efforts to faithfully carry out Executive’s duties and responsibilities hereunder, provided, however, that during the employment, Executive may serve on charitable and civic boards, subject to the prior approval of the Board, which approval shall not be unreasonably withheld, and so long as such position(s) do not limit or interfere with Executive’s duties to SDS hereunder or breach any agreement between Executive and SDS.
2. Principal Place of Work. Subject to the need for Executive to undertake reasonable business travel to carry out his duties and responsibilities to SDS, Executive’s principal place of work for SDS during the employment shall be at SDS’s office at 8355 East Hartford Drive, Suite 100, Scottsdale, AZ 85255. Executive may work remotely from Executive’s residence, unless notified otherwise by a decision of the Board in accordance with the Company’s Amended and Restated Bylaws.
3. At-Will Employment. The Company and Executive acknowledge that Executive’s employment is and shall continue to be at-will, as defined under applicable law, and that Executive’s employment with the Company may be terminated by the Board at any time for any or no reason, upon written notice to Executive.
4. Compensation and Benefits.
| (a) | Base Salary. The Company shall pay to Executive a base salary for all services to be rendered by Executive under this Employment Agreement at the rate of $375,000.00 per year (the “Base Salary”), which Base Salary shall be paid in approximately equal installments (less applicable payroll deductions and taxes) in accordance with the Company’s normal payroll schedule, procedures and policies (which schedules, procedures and policies may be modified from time to time in the Company’s sole discretion), but not less frequently than monthly. The Company shall have no obligation to pay the Executive’s Base Salary following the date of the expiration or termination of this Agreement, whichever is earlier. |
| (b) | Modification of Executive’s Base Salary. The Board may, from time to time, or upon favorable consideration of a reasonable request from the Executive, modify the Executive’s Base Salary by executing an amendment or addendum to this Employment Agreement, by and between Executive and the Board. |
| (c) | Expenses. SDS shall pay or reimburse Executive for all reasonable and necessary expenses actually incurred or paid by Executive during the employment in the performance of Executive’s duties under this Agreement, upon submission and approval of expense statements, vouchers, or other supporting information in accordance with the then customary practices of SDS and tax law, regulations or rules. |
| (d) | Vacation and Sick Leave; Holidays. Executive shall be entitled to: (i) ten (10) public holidays observed by the United States federal government per year and (ii) ten (10) vacation days and five (5) sick days per year, subject to SDS’s leave policies (which SDS may amend from time to time in its sole discretion). Vacation accruals are available for use in the pay period following the completion of 30 days of employment of Executive. |
| (e) | Benefits. Whether and to what extent Executive is entitled to receive benefits, if any, from the Company is set forth on Schedule 1 hereto. |
| (f) | Equity Grants. Whether and to what extent Executive is entitled to receive equity grants (e.g., stock or stock options), if any, from the Company is set forth on Schedule 2 hereto. |
| (g) | Severance. Whether and to what extent Executive is entitled to receive a severance payment, if any, from the Company upon the Executive’s termination of employment with the Company, whether by the Executive or the Company, is set forth on Schedule 3 hereto. |
| (h) | Bonus(es). Whether and to what extent Executive is entitled to receive bonuses, if any, from the Company is set forth on Schedule 4 hereto. |
| (i) | Withholding of Taxes. SDS may withhold from any Base Salary, benefits and equity grants payable or deliverable under this Agreement all federal, state, city and other taxes as shall be required pursuant to any law or governmental regulation or ruling. |
5. [Reserved]
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6. Payments Upon Termination. All compensation (including, without limitation, Base Salary) payable to Executive under Section 4 hereof shall cease as of the date of termination specified in the notice of termination from the Company or the Executive, subject to any severance compensation set forth on Schedule 3 hereto. The Company shall pay to Executive (or if Executive has died, to Executive’s estate) all previously earned, accrued, and unpaid Base Salary and benefits from the Company’s employee benefit plans in which Executive participated and is entitled to receive under the terms of those plans.
7. [Reserved]
8. Conditions to Agreement Becoming Effective. In addition to any other conditions to this Agreement becoming effective set forth in this Agreement, this Agreement shall not become effective until: (a) Executive executes and returns to the Company the Employee Confidential Information and Inventions Assignment Agreement appended hereto as Attachment A, unless previously executed and still in effect on the date hereof, and (b) Executive provides requisite verification of the Executive’s right to work in the United States, as demonstrated by Executive’s completion of an I-9 form upon hire and submission of acceptable documentation (as noted on the I-9 form).
9. Other Provisions.
| (a) | Notices. Any notice or other communication required or which may be given hereunder shall be in writing and shall be delivered personally, emailed, telecopied, telegraphed or telexed, or sent by certified, registered or express mail, postage prepaid, to the Parties at the addresses specified on the signature page hereto, or at such other addresses as shall be specified by the Parties by like notice, and shall be deemed given so long as such provides a receipt of delivery, when so delivered personally, emailed, telecopied, telegraphed or telexed, or mailed. |
| (b) | Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter contained herein and supersedes all prior contracts and other agreements, written or oral, with respect to such subject matter. |
| (c) | Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, and the terms and conditions hereof may be waived, only by a written instrument signed by the Parties or, in the case of a waiver, by the Party waiving compliance. No delay on the part of any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any right, power, or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder. |
| (d) | Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware without regard to the choice of law principles thereof. |
| (e) | Dispute Resolution. |
| i. | Unless otherwise provided in this Agreement, the Parties agree that the exclusive forum and venue for the resolution of any controversy or claim between them arising out of or relating to this Agreement, or breach thereof (a “Dispute”), shall be the state and federal courts whose jurisdictional territory includes the county in which Company’s principal place of business is located. Each Party consents to personal jurisdiction and venue in those courts for litigation of a Dispute, and each Party waives any forum non conveniens objection to litigating a Dispute in those courts. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO HAVE A TRIAL BY JURY FOR ANY LEGAL OR OTHER COURT PROCEEDING ADDRESSING A DISPUTE. |
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| ii. | As a condition precedent to a Party’s ability to commence litigation for a Dispute, the Party shall first give written notice to the other Party of the Dispute, and, no later than twenty-one (21) days after such notice is delivered, each Party (or a representative of each Party with authority to settle the Dispute for each Party) shall confer in good faith in an effort to resolve the Dispute. The notice of the Dispute shall include a reasonable description of the basis of the Dispute. Only after the Parties have conferred, or made a good faith effort to confer, in accord with this Section 9(e)(ii) may a Party commence litigation for the Dispute. |
| (f) | Binding Effect; Benefit. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and any successors and assigns permitted or required by Section 9(g) hereof. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the Parties hereto or such successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement. |
| (g) | Assignment. This Agreement, and Executive’s rights and obligations hereunder, may not be assigned by Executive. SDS may assign this Agreement and its rights, together with its obligations, hereunder in connection with any sale, transfer, or other disposition of all or substantially all of its assets or business, whether by merger, consolidation or otherwise. |
| (h) | Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. This Agreement may be executed manually or by facsimile, scan, or other electronic means (e.g., DocuSign). |
| (i) | Severability. If a court or other tribunal of competent jurisdiction or any foreign, federal, state, county, or local government or other governmental, regulatory, or administrative agency or authority holds that any term or provision of this Agreement is invalid, illegal, or unenforceable, such term or provision shall be considered severed from this Agreement and not affect the validity, legality, or enforceability of the remaining terms or provisions of this Agreement. Upon a holding that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify, or the court, tribunal, or regulatory or administrative agency or authority may modify, this Agreement to give effect to the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. |
| (j) | Drafting. Should any provision of this Agreement require interpretation or construction, it is agreed by Executive and SDS that the person interpreting or construing this Agreement shall not apply a presumption against one Party by reason of the rule of construction that a document is to be construed more strictly against the party who prepared the document. |
| (k) | Headings. The headings and subheadings in this Agreement (e.g., “Drafting”) are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. |
[The remainder of this page is purposefully blank; the signature page follows.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| COMPANY: | ||
| Signing Day Sports, Inc. | ||
| /s/ Daniel Nelson | ||
| Name: | Daniel Nelson | |
| Title: | Chief Executive Officer | |
| EXECUTIVE: | ||
| Richard Symington | ||
| /s/ Richard Symington | ||
| Address: | 6100 e Huntress Drive paradise valley az 85253 | |
| Email: | rich@signingdaysports.com | |
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Schedule 1
Benefits
During the employment, Executive shall be eligible to participate in the comprehensive benefits plans of the Company from time to time, which includes medical, dental and life insurance options subject to plan terms and generally applicable Company policies. A full description of these benefits is available upon request. The Company may change compensation and benefits from time to time in its discretion.
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Schedule 2
Equity Grants
Pursuant to that certain Stock Option Agreement (the “Stock Option Agreement”) between Executive and the Company, dated April 5, 2023 (the “Grant Date”), the Board granted the Option (as defined therein) to Executive to purchase up to 100,000 shares (on a post-split basis) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”) at the exercise price and subject to the terms and conditions stated therein. As consideration for Executive’s employment, the Company hereby confirms and agrees that the Option (as defined below) shall remain eligible to continue to vest uninterrupted in accordance with its terms from the Grant Date and continuing throughout the employment. For the avoidance of doubt, this Agreement shall constitute the Company’s confirmation that the Continuous Service (as defined in the Signing Day Sports, Inc. 2022 Equity Incentive Plan (the “Plan”)) conditions stated in the Stock Option Agreement have been continuously satisfied since the Grant Date, and such Continuous Service (as defined therein) conditions shall continue to be continuously satisfied from the Effective Date and continuing throughout the employment. Notwithstanding the foregoing, the Company makes no representations or undertakings regarding the treatment of the Option for purposes of Section 409A of the U.S. Internal Revenue Code (the “Code”) or any rule or regulation promulgated thereunder or any other section of the Code or any rule or regulation promulgated thereunder.
Subject to the approval of the Board or its Compensation Committee, Executive will be granted a stock option award (the “Option”) to purchase 50,000 shares of the Common Stock under the Plan. The Option will be subject to the terms and conditions applicable to stock options granted under the Plan, as described in the Plan and the applicable Stock Option Agreement (the “Option Agreement”). The Option shall: (1) have an exercise price equal to the fair market value of a share of common stock as the date of grant or as near such grant date as may be considered reasonably representative of the fair market value of a share of the Common Stock as of such grant date (the “Fair Market Value”); (2) 1/3 of the Option shall vest on the six-month anniversary of November 16, 2023 (the “IPO Date”), 1/3 of the Option shall vest on the 18-month anniversary of the IPO Date, and the 1/3 of the Option shall vest on 30-month anniversary of the IPO Date provided Executive remains in continuous service with the Company; (3) a term of ten years (subject to earlier termination upon the termination of Employee); and (4) such other terms and conditions as shall be set forth in the Option Agreement and in accordance with applicable law.
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Schedule 3
Severance
If after one year of employment from the Effective Date, the Company terminates this Agreement without cause, the Company shall pay to Executive the following sums: (i) cash in the amount of the Base Salary in effect on the date of such termination payable in twelve (12) monthly install- ments; and (ii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans. The payment of severance as required by this Schedule 3 may be conditioned by the Company on the delivery by Executive of a release of any and all claims that Executive may have against the Company which release shall be in form and substance satisfactory to the Company.
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Schedule 4
Bonuses
None.
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ATTACHMENT A
(Employee Confidential Information and Inventions Assignment Agreement)
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Exhibit 10.5
EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTIONS ASSIGNMENT AGREEMENT
In consideration of my employment or continued employment by Signing Day Sports, Inc., a Delaware corporation (“Company”), and the compensation being paid or to be paid to me during my employment with Company, I agree to the terms of this Agreement as follows:
1. Confidential Information Protections.
1.1 Nondisclosure; Recognition of Company’s Rights. At all times during and after my employment, I will hold in confidence and will not disclose, use, lecture upon, or publish any of Company’s Confidential Information (defined below), except (i) as may be required in connection with my work for Company, (ii) as expressly authorized by an authorized officer of Company at the direction of the Board of Directors of Company; or (iii) as required or permitted to be disclosed pursuant to Rule 21F-17(a) under the Securities Exchange Act of 1934, as amended, or other applicable law, legal process or government regulation, provided, however, that prior to any disclosure of confidential information as required by such applicable law, I shall, to the extent such applicable law so permits, use my best efforts to advise Company in advance of my making any such permitted or required disclosure and cooperate with Company in order to afford Company a reasonable opportunity to take any legally-permissible actions to contest, limit, remove the basis for, or otherwise address such disclosure in connection with my work for Company. Except as provided above, I will obtain the written approval of an authorized officer of Company before publishing or submitting for publication any material (written, oral, or otherwise) that relates to my work at Company and/or incorporates any Confidential Information. Except as otherwise provided by applicable law I hereby assign to Company any rights I may have or acquire in any and all Confidential Information and recognize that all Confidential Information shall be the sole and exclusive property of Company and its assigns.
1.2 Confidential Information. The term “Confidential Information” shall mean any and all confidential knowledge, data or information related to Company’s business or its actual or demonstrably anticipated research or development, including without limitation (a) trade secrets, inventions, ideas, processes, computer source and object code, data, formulae, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (b) information regarding products, services, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; (c) information regarding the skills and compensation of Company’s employees, contractors, and any other service providers of Company; and (d) the existence of any business discussions, negotiations, or agreements between Company and any third party.
1.3 Third Party Information. I understand that Company has received and in the future will receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty on Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. During and after the term of my employment, I will hold Third Party Information in strict confidence and will not disclose to anyone (other than Company personnel who need to know such information in connection with their work for Company) or use, Third Party Information, except in connection with my work for Company or unless expressly authorized by an officer of Company in writing.
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1.4 No Improper Use of Information of Prior Employers and Others. I represent that my employment by Company does not and will not breach any agreement with any former employer, including any noncompete agreement or any agreement to keep in confidence or refrain from using information acquired by me prior to my employment by Company. I further represent that I have not entered into, and will not enter into, any agreement, either written or oral, in conflict with my obligations under this Agreement. During my employment by Company, I will not improperly make use of, or disclose, any information or trade secrets of any former employer or other third party, nor will I bring onto the premises of Company or use any unpublished documents or any property belonging to any former employer or other third party, in violation of any lawful agreements with that former employer or third party. I will use in the performance of my duties only information that is generally known and used by persons with training and experience comparable to my own, is common knowledge in the industry or otherwise legally in the public domain, or is otherwise provided or developed by Company.
2. Inventions.
2.1 Definitions. As used in this Agreement, the term “Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights in any of the items listed above. The term “Intellectual Property Rights” means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any jurisdiction or country. The term “Moral Rights” means all paternity, integrity, disclosure, withdrawal, special and any other similar rights recognized by the laws of any jurisdiction or country.
2.2 Prior Inventions. I have disclosed on Exhibit A a complete list of all Inventions that (a) I have, or I have caused to be, alone or jointly with others, conceived, developed, or reduced to practice prior to the commencement of my employment by Company; (b) in which I have an ownership interest or which I have a license to use; (c) and that I wish to have excluded from the scope of this Agreement (collectively referred to as “Prior Inventions”). If no Prior Inventions are listed in Exhibit A or if I have not completed Exhibit A, I warrant that there are no Prior Inventions. I agree that I will not incorporate, or permit to be incorporated, Prior Inventions in any Company Inventions (defined below) without Company’s prior written consent. If, in the course of my employment with Company, I incorporate a Prior Invention into a Company process, machine or other work, I hereby grant Company a non- exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in, such Prior Invention.
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2.3 Assignment of Company Inventions. Inventions assigned to Company or to a third party as directed by Company pursuant to the subsection titled Government or Third Party are referred to in this Agreement as “Company Inventions.” Subject to the subsection titled Government or Third Party and except for Inventions that I can prove qualify fully under the provisions of California Labor Code section 2870 and I have set forth in Exhibit A, I hereby assign and agree to assign in the future (when any such Inventions or Intellectual Property Rights are first reduced to practice or first fixed in a tangible medium, as applicable) to Company all my right, title, and interest in and to any and all Inventions (and all Intellectual Property Rights with respect thereto) made, conceived, reduced to practice, or learned by me, either alone or with others, during the period of my employment by Company. Any assignment of Inventions (and all Intellectual Property Rights with respect thereto) hereunder includes an assignment of all Moral Rights. To the extent such Moral Rights cannot be assigned to Company and to the extent the following is allowed by the laws in any country where Moral Rights exist, I hereby unconditionally and irrevocably waive the enforcement of such Moral Rights, and all claims and causes of action of any kind against Company or related to Company’s customers, with respect to such rights. I further acknowledge and agree that neither my successors-in- interest nor legal heirs retain any Moral Rights in any Inventions (and any Intellectual Property Rights with respect thereto).
2.4 Obligation to Keep Company Informed. During the period of my employment and for one (1) year after my employment ends, I will promptly and fully disclose to Company in writing (a) all Inventions authored, conceived, or reduced to practice by me, either alone or with others, including any that might be covered under California Labor Code section 2870, and (b) all patent applications filed by me or in which I am named as an inventor or co-inventor.
2.5 Government or Third Party. I agree that, as directed by Company, I will assign to a third party, including without limitation the United States, all my right, title, and interest in and to any particular Company Invention.
2.6 Enforcement of Intellectual Property Rights and Assistance. During and after the period of my employment and at Company’s request and expense, I will assist Company in every proper way, including consenting to and joining in any action, to obtain and enforce United States and foreign Intellectual Property Rights and Moral Rights relating to Company Inventions in all countries. I will execute any documents that Company may reasonably request for use in obtaining or enforcing such Intellectual Property Rights and Moral Rights. If Company is unable to secure my signature on any document needed in connection with such purposes, I hereby irrevocably designate and appoint Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled with an interest, to act on my behalf to execute and file any such documents and to do all other lawfully permitted acts to further such purposes with the same legal force and effect as if executed by me. My obligations under this paragraph will continue beyond the termination of my employment with Company, provided that Company will compensate me at a reasonable rate after such termination for time or expenses actually spent by me at Company’s request on such assistance.
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2.7 Incorporation of Software Code. I agree that I will not incorporate into any Company software or otherwise deliver to Company any software code licensed under the GNU General Public License or Lesser General Public License or any other license that, by its terms, requires or conditions the use or distribution of such code on the disclosure, licensing, or distribution of any source code owned or licensed by Company except as expressly authorized by Company or in strict compliance with Company’s policies regarding the use of such software.
3. Records. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that is required by Company) of all Inventions made by me during the period of my employment by Company, which records shall be available to, and remain the sole property of, Company at all times.
4. Additional activities. I agree that I will not (a) during the term of my employment by Company, without Company’s express written consent, engage in any employment or business activity that is competitive with, or would otherwise conflict with my employment by, Company; and (b) during the term of my employment by Company and for one (1) year thereafter, I will not either directly or indirectly, solicit or attempt to solicit any employee, independent contractor, or consultant of Company to terminate his, her or its relationship with Company in order to become an employee, consultant, or independent contractor to or for any other person or entity. Furthermore, I agree that during the term of my employment by Company and thereafter, I shall not disparage Company, any officer or director of Company or any affiliate or agent of Company.
5. Return Of Company Property. Upon termination of my employment or upon Company’s request at any other time, I will deliver to Company all of Company’s property, equipment, and documents, together with all copies thereof, and any other material containing or disclosing any Inventions, Third Party Information or Confidential Information and certify in writing that I have fully complied with the foregoing obligation. I agree that I will not copy, delete, or alter any information contained upon my Company computer or Company equipment before I return it to Company. In addition, if I have used any personal computer, server, or e-mail system to receive, store, review, prepare or transmit any Company information, including but not limited to, Confidential Information, I agree to provide Company with a computer-useable copy of all such Confidential Information and then permanently delete and expunge such Confidential Information from those systems; and I agree to provide Company access to my system as reasonably requested to verify that the necessary copying and/or deletion is completed. I further agree that any property situated on Company’s premises and owned by Company is subject to inspection by Company’s personnel at any time with or without notice. Prior to the termination of my employment or promptly after termination of my employment, I will cooperate with Company in attending an exit interview and certify in writing that I have complied with the requirements of this section.
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6. Notification of New Employer. If I leave the employ of Company, I consent to the notification of my new employer of my rights and obligations under this Agreement, by Company providing a copy of this Agreement or otherwise.
7. General Provisions.
7.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different state. I expressly consent to personal jurisdiction and venue in the state and federal courts for the county in which Company’s principal place of business is located for any lawsuit filed there against me by Company arising from or related to this Agreement.
7.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
7.3 Survival. This Agreement shall survive the termination of my employment and the assignment of this Agreement by Company to any successor or other assignee and shall be binding upon my heirs and legal representatives.
7.4 Employment. I agree and understand that nothing in this Agreement shall give me any right to continued employment by Company, and it will not interfere in any way with my right or Company’s right to terminate my employment at any time, with or without cause and with or without advance notice.
7.5 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the signature page, by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally- recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, notice will be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of the change to the other party.
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7.6 Injunctive Relief. I acknowledge that, because my services are personal and unique and because I will have access to the Confidential Information of Company, any breach of this Agreement by me would cause irreparable injury to Company for which monetary damages would not be an adequate remedy and, therefore, will entitle Company to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
7.7 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of that provision or any other provision on any other occasion.
7.8 Export. I agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company or any products utilizing such data, in violation of the United States export laws or regulations.
7.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
7.10 Entire Agreement. If no other agreement governs nondisclosure and assignment of inventions during any period in which I was previously employed or am in the future employed by Company as an independent contractor, the obligations pursuant to sections of this Agreement titled Confidential Information Protections and Inventions shall apply. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior communications between us with respect to such matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by me and an authorized officer of Company. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.
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This Agreement shall be effective as of the first day of my employment with Company.
| COMPANY: | |||
| Signing Day Sports, Inc. | |||
| By: | /s/ Daniel D. Nelson | ||
| Name: | Daniel D. Nelson | ||
| Title: | Chief Executive Officer | ||
| Address: | 8355 East Hartford Rd., Suite 100 | ||
| Scottsdale, AZ 85260 | |||
| EMPLOYEE: | ||
| I have read, understand, and accept this agreement and have been given the opportunity to review it with independent legal counsel. | ||
| /s/ Richard Symington | ||
| (Signature) | ||
| Richard Symington | ||
| Name (Please Print) | ||
| November 27, 2023 | ||
| Date | ||
| Address: | 6100 E Huntress Drive | |
| Paradise Valley AZ 85253 | ||
EXHIBIT A
INVENTIONS
1. Prior Inventions Disclosure. The following is a complete list of all Prior Inventions (as provided in Subsection 2.2 of the attached Employee Confidential Information and Inventions Assignment Agreement):
| ☒ | None |
| ☐ | See immediately below: |
A-1
Exhibit 10.6
EXECUTIVE EMPLOYMENT AGREEMENT
This executive employment agreement (the “Agreement”) is made and entered into as of November 22, 2023 (the “Effective Date”) by and between Signing Day Sports, Inc., a Delaware corporation with an office at 8355 East Hartford Drive, Suite 100, Scottsdale, AZ 85255 (“SDS” or the “Company”), and Daniel D. Nelson, an individual (“Executive”). SDS and Executive are referred to herein from time to time on a collective basis as the “Parties” and each on an individual basis as a “Party.”
Recitals:
SDS wishes to secure the services of Executive as the Chief Executive Officer of SDS (with such other duties and/or offices in SDS or its affiliates as may be assigned by SDS’s Board of Directors (the “Board”)) upon the terms and conditions hereinafter set forth, and Executive wishes to render such services to SDS upon the terms and conditions hereinafter set forth.
Agreement:
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows:
1. Employment by SDS. Subject to approval by the Board or its Compensation Committee, and reasonable pre-employment background screens, SDS agrees to employ Executive during the employment in the position of Chief Executive Officer in which Executive will have such duties and responsibilities to SDS as are customary for such a position in companies comparable to SDS, and as are reasonably assigned, delegated, and determined with notice from time to time by the Board to the Executive, and Executive accepts such employment and agrees to perform such duties and responsibilities. Executive shall devote his full business time and attention exclusively to SDS and shall use Executive’s best efforts to faithfully carry out Executive’s duties and responsibilities hereunder, provided, however, that during the employment, Executive may serve on charitable and civic boards, subject to the prior approval of the Board, which approval shall not be unreasonably withheld, and so long as such position(s) do not limit or interfere with Executive’s duties to SDS hereunder or breach any agreement between Executive and SDS.
2. Principal Place of Work. Subject to the need for Executive to undertake reasonable business travel to carry out his duties and responsibilities to SDS, Executive’s principal place of work for SDS during the employment shall be at SDS’s office at 8355 East Hartford Drive, Suite 100, Scottsdale, AZ 85255. Executive may work remotely from Executive’s residence, unless notified otherwise by a decision of the Board in accordance with the Company’s Amended and Restated Bylaws.
3. At-Will Employment. The Company and Executive acknowledge that Executive’s employment is and shall continue to be at-will, as defined under applicable law, and that Executive’s employment with the Company may be terminated by the Board at any time for any or no reason, upon written notice to Executive.
4. Compensation and Benefits.
| (a) | Base Salary. The Company shall pay to Executive a base salary for all services to be rendered by Executive under this Employment Agreement at the rate of $425,000.00 per year (the “Base Salary”), which Base Salary shall be paid in approximately equal installments (less applicable payroll deductions and taxes) in accordance with the Company’s normal payroll schedule, procedures and policies (which schedules, procedures and policies may be modified from time to time in the Company’s sole discretion), but not less frequently than monthly. The Company shall have no obligation to pay the Executive’s Base Salary following the date of the expiration or termination of this Agreement, whichever is earlier. |
| (b) | Modification of Executive’s Base Salary. The Board may, from time to time, or upon favorable consideration of a reasonable request from the Executive, modify the Executive’s Base Salary by executing an amendment or addendum to this Employment Agreement, by and between Executive and the Board. |
| (c) | Expenses. SDS shall pay or reimburse Executive for all reasonable and necessary expenses actually incurred or paid by Executive during the employment in the performance of Executive’s duties under this Agreement, upon submission and approval of expense statements, vouchers, or other supporting information in accordance with the then customary practices of SDS and tax law, regulations or rules. |
| (d) | Vacation and Sick Leave; Holidays. Executive shall be entitled to: (i) ten (10) public holidays observed by the United States federal government per year and (ii) ten (10) vacation days and five (5) sick days per year, subject to SDS’s leave policies (which SDS may amend from time to time in its sole discretion). Vacation accruals are available for use in the pay period following the completion of 30 days of employment of Executive. |
| (e) | Benefits. Whether and to what extent Executive is entitled to receive benefits, if any, from the Company is set forth on Schedule 1 hereto. |
| (f) | Equity Grants. Whether and to what extent Executive is entitled to receive equity grants (e.g., stock or stock options), if any, from the Company is set forth on Schedule 2 hereto. |
| (g) | Severance. Whether and to what extent Executive is entitled to receive a severance payment, if any, from the Company upon the Executive’s termination of employment with the Company, whether by the Executive or the Company, is set forth on Schedule 3 hereto. |
| (h) | Bonus(es). Whether and to what extent Executive is entitled to receive bonuses, if any, from the Company is set forth on Schedule 4 hereto. |
| (i) | Withholding of Taxes. SDS may withhold from any Base Salary, benefits and equity grants payable or deliverable under this Agreement all federal, state, city and other taxes as shall be required pursuant to any law or governmental regulation or ruling. |
5. [Reserved]
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6. Payments Upon Termination. All compensation (including, without limitation, Base Salary) payable to Executive under Section 4 hereof shall cease as of the date of termination specified in the notice of termination from the Company or the Executive, subject to any severance compensation set forth on Schedule 3 hereto. The Company shall pay to Executive (or if Executive has died, to Executive’s estate) all previously earned, accrued, and unpaid Base Salary and benefits from the Company’s employee benefit plans in which Executive participated and is entitled to receive under the terms of those plans.
7. [Reserved]
8. Conditions to Agreement Becoming Effective. In addition to any other conditions to this Agreement becoming effective set forth in this Agreement, this Agreement shall not become effective until: (a) Executive executes and returns to the Company the Employee Confidential Information and Inventions Assignment Agreement appended hereto as Attachment A, unless previously executed and still in effect on the date hereof, and (b) Executive provides requisite verification of the Executive’s right to work in the United States, as demonstrated by Executive’s completion of an I-9 form upon hire and submission of acceptable documentation (as noted on the I-9 form).
9. Other Provisions.
| (a) | Notices. Any notice or other communication required or which may be given hereunder shall be in writing and shall be delivered personally, emailed, telecopied, telegraphed or telexed, or sent by certified, registered or express mail, postage prepaid, to the Parties at the addresses specified on the signature page hereto, or at such other addresses as shall be specified by the Parties by like notice, and shall be deemed given so long as such provides a receipt of delivery, when so delivered personally, emailed, telecopied, telegraphed or telexed, or mailed. |
| (b) | Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter contained herein and supersedes all prior contracts and other agreements, written or oral, with respect to such subject matter. |
| (c) | Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, and the terms and conditions hereof may be waived, only by a written instrument signed by the Parties or, in the case of a waiver, by the Party waiving compliance. No delay on the part of any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any right, power, or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder. |
| (d) | Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware without regard to the choice of law principles thereof. |
| (e) | Dispute Resolution. |
| i. | Unless otherwise provided in this Agreement, the Parties agree that the exclusive forum and venue for the resolution of any controversy or claim between them arising out of or relating to this Agreement, or breach thereof (a “Dispute”), shall be the state and federal courts whose jurisdictional territory includes the county in which Company’s principal place of business is located. |
Each Party consents to personal jurisdiction and venue in those courts for litigation of a Dispute, and each Party waives any forum non conveniens objection to litigating a Dispute in those courts. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO HAVE A TRIAL BY JURY FOR ANY LEGAL OR OTHER COURT PROCEEDING ADDRESSING A DISPUTE.
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| ii. | As a condition precedent to a Party’s ability to commence litigation for a Dispute, the Party shall first give written notice to the other Party of the Dispute, and, no later than twenty-one (21) days after such notice is delivered, each Party (or a representative of each Party with authority to settle the Dispute for each Party) shall confer in good faith in an effort to resolve the Dispute. The notice of the Dispute shall include a reasonable description of the basis of the Dispute. Only after the Parties have conferred, or made a good faith effort to confer, in accord with this Section 9(e)(ii) may a Party commence litigation for the Dispute. |
| (f) | Binding Effect; Benefit. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and any successors and assigns permitted or required by Section 9(g) hereof. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the Parties hereto or such successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement. |
| (g) | Assignment. This Agreement, and Executive’s rights and obligations hereunder, may not be assigned by Executive. SDS may assign this Agreement and its rights, together with its obligations, hereunder in connection with any sale, transfer, or other disposition of all or substantially all of its assets or business, whether by merger, consolidation or otherwise. |
| (h) | Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. This Agreement may be executed manually or by facsimile, scan, or other electronic means (e.g., DocuSign). |
| (i) | Severability. If a court or other tribunal of competent jurisdiction or any foreign, federal, state, county, or local government or other governmental, regulatory, or administrative agency or authority holds that any term or provision of this Agreement is invalid, illegal, or unenforceable, such term or provision shall be considered severed from this Agreement and not affect the validity, legality, or enforceability of the remaining terms or provisions of this Agreement. Upon a holding that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify, or the court, tribunal, or regulatory or administrative agency or authority may modify, this Agreement to give effect to the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. |
| (j) | Drafting. Should any provision of this Agreement require interpretation or construction, it is agreed by Executive and SDS that the person interpreting or construing this Agreement shall not apply a presumption against one Party by reason of the rule of construction that a document is to be construed more strictly against the party who prepared the document. |
| (k) | Headings. The headings and subheadings in this Agreement (e.g., “Drafting”) are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. |
[The remainder of this page is purposefully blank; the signature page follows.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| COMPANY: | ||
| Signing Day Sports, Inc. | ||
| /s/ Damon Rich | ||
| Name: | Damon Rich | |
| Title: | Interim Chief Financial Officer | |
| EXECUTIVE: | ||
| Daniel D. Nelson | ||
| /s/ Daniel D. Nelson | ||
| Address: | 8355 E.Hartford Dr suite 100 Scottsdale, Az 85255 | |
| Email: | danny.nelson@signingdaysports.com | |
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Schedule 1
Benefits
During the employment, Executive shall be eligible to participate in the comprehensive benefits plans of the Company from time to time, which includes medical, dental and life insurance options subject to plan terms and generally applicable Company policies. A full description of these benefits is available upon request. The Company may change compensation and benefits from time to time in its discretion.
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Schedule 2
Equity Grants
Subject to the approval of the Board or its Compensation Committee, Executive will be granted a stock option award (the “Option”) to purchase 100,000 shares of the common stock of the Company, par value $0.0001 per share (the “Common Stock”) under the Signing Day Sports, Inc. 2022 Equity Incentive Plan (the “Plan”). The Option will be subject to the terms and conditions applicable to stock options granted under the Plan, as described in the Plan and the applicable Stock Option Agreement (the “Option Agreement”). The Option shall: (1) have an exercise price equal to the fair market value of a share of common stock as the date of grant or as near such grant date as may be considered reasonably representative of the fair market value of a share of the Common Stock as of such grant date (the “Fair Market Value”); (2) 1/2 of the Option shall vest and become exercisable immediately on the date of grant and the remaining 1/2 of the Option shall become vested and exercisable in 6 equal monthly installments after such grant date provided Executive remains in continuous service with the Company; (3) a term of ten years (subject to earlier termination upon the termination of Employee); and (4) such other terms and conditions as shall be set forth in the Option Agreement and in accordance with applicable law.
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Schedule 3
Severance
If during the employment, the Company terminates this Agreement without cause, the Company shall pay to Executive the following sums: (i) cash in the amount of the Base Salary in effect on the date of such termination payable in twelve (12) monthly installments; and (ii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans. The payment of severance as required by this Schedule 3 may be conditioned by the Company on the delivery by Executive of a release of any and all claims that Executive may have against the Company which release shall be in form and substance satisfactory to the Company.
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Schedule 4
Bonuses
None.
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ATTACHMENT A
(Employee Confidential Information and Inventions Assignment Agreement)
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Exhibit 10.7
EMPLOYEE CONFIDENTIAL INFORMATION AND INVENTIONS ASSIGNMENT AGREEMENT
In consideration of my employment or continued employment by Signing Day Sports, Inc., a Delaware corporation (“Company”), and the compensation being paid or to be paid to me during my employment with Company, I agree to the terms of this Agreement as follows:
1. Confidential Information Protections.
1.1 Nondisclosure; Recognition of Company’s Rights. At all times during and after my employment, I will hold in confidence and will not disclose, use, lecture upon, or publish any of Company’s Confidential Information (defined below), except (i) as may be required in connection with my work for Company, (ii) as expressly authorized by an authorized officer of Company at the direction of the Board of Directors of Company; or (iii) as required or permitted to be disclosed pursuant to Rule 21F-17(a) under the Securities Exchange Act of 1934, as amended, or other applicable law, legal process or government regulation, provided, however, that prior to any disclosure of confidential information as required by such applicable law, I shall, to the extent such applicable law so permits, use my best efforts to advise Company in advance of my making any such permitted or required disclosure and cooperate with Company in order to afford Company a reasonable opportunity to take any legally-permissible actions to contest, limit, remove the basis for, or otherwise address such disclosure in connection with my work for Company. Except as provided above, I will obtain the written approval of an authorized officer of Company before publishing or submitting for publication any material (written, oral, or otherwise) that relates to my work at Company and/or incorporates any Confidential Information. Except as otherwise provided by applicable law I hereby assign to Company any rights I may have or acquire in any and all Confidential Information and recognize that all Confidential Information shall be the sole and exclusive property of Company and its assigns.
1.2 Confidential Information. The term “Confidential Information” shall mean any and all confidential knowledge, data or information related to Company’s business or its actual or demonstrably anticipated research or development, including without limitation (a) trade secrets, inventions, ideas, processes, computer source and object code, data, formulae, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (b) information regarding products, services, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; (c) information regarding the skills and compensation of Company’s employees, contractors, and any other service providers of Company; and (d) the existence of any business discussions, negotiations, or agreements between Company and any third party.
1.3 Third Party Information. I understand that Company has received and in the future will receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty on Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. During and after the term of my employment, I will hold Third Party Information in strict confidence and will not disclose to anyone (other than Company personnel who need to know such information in connection with their work for Company) or use, Third Party Information, except in connection with my work for Company or unless expressly authorized by an officer of Company in writing.
1.4 No Improper Use of Information of Prior Employers and Others. I represent that my employment by Company does not and will not breach any agreement with any former employer, including any noncompete agreement or any agreement to keep in confidence or refrain from using information acquired by me prior to my employment by Company. I further represent that I have not entered into, and will not enter into, any agreement, either written or oral, in conflict with my obligations under this Agreement. During my employment by Company, I will not improperly make use of, or disclose, any information or trade secrets of any former employer or other third party, nor will I bring onto the premises of Company or use any unpublished documents or any property belonging to any former employer or other third party, in violation of any lawful agreements with that former employer or third party. I will use in the performance of my duties only information that is generally known and used by persons with training and experience comparable to my own, is common knowledge in the industry or otherwise legally in the public domain, or is otherwise provided or developed by Company.
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2. Inventions.
2.1 Definitions. As used in this Agreement, the term “Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights in any of the items listed above. The term “Intellectual Property Rights” means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any jurisdiction or country. The term “Moral Rights” means all paternity, integrity, disclosure, withdrawal, special and any other similar rights recognized by the laws of any jurisdiction or country.
2.2 Prior Inventions. I have disclosed on Exhibit A a complete list of all Inventions that (a) I have, or I have caused to be, alone or jointly with others, conceived, developed, or reduced to practice prior to the commencement of my employment by Company; (b) in which I have an ownership interest or which I have a license to use; (c) and that I wish to have excluded from the scope of this Agreement (collectively referred to as “Prior Inventions”). If no Prior Inventions are listed in Exhibit A or if I have not completed Exhibit A, I warrant that there are no Prior Inventions. I agree that I will not incorporate, or permit to be incorporated, Prior Inventions in any Company Inventions (defined below) without Company’s prior written consent. If, in the course of my employment with Company, I incorporate a Prior Invention into a Company process, machine or other work, I hereby grant Company a non- exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in, such Prior Invention.
2.3 Assignment of Company Inventions. Inventions assigned to Company or to a third party as directed by Company pursuant to the subsection titled Government or Third Party are referred to in this Agreement as “Company Inventions.” Subject to the subsection titled Government or Third Party and except for Inventions that I can prove qualify fully under the provisions of California Labor Code section 2870 and I have set forth in Exhibit A, I hereby assign and agree to assign in the future (when any such Inventions or Intellectual Property Rights are first reduced to practice or first fixed in a tangible medium, as applicable) to Company all my right, title, and interest in and to any and all Inventions (and all Intellectual Property Rights with respect thereto) made, conceived, reduced to practice, or learned by me, either alone or with others, during the period of my employment by Company. Any assignment of Inventions (and all Intellectual Property Rights with respect thereto) hereunder includes an assignment of all Moral Rights. To the extent such Moral Rights cannot be assigned to Company and to the extent the following is allowed by the laws in any country where Moral Rights exist, I hereby unconditionally and irrevocably waive the enforcement of such Moral Rights, and all claims and causes of action of any kind against Company or related to Company’s customers, with respect to such rights. I further acknowledge and agree that neither my successors-in- interest nor legal heirs retain any Moral Rights in any Inventions (and any Intellectual Property Rights with respect thereto).
2.4 Obligation to Keep Company Informed. During the period of my employment and for one (1) year after my employment ends, I will promptly and fully disclose to Company in writing (a) all Inventions authored, conceived, or reduced to practice by me, either alone or with others, including any that might be covered under California Labor Code section 2870, and (b) all patent applications filed by me or in which I am named as an inventor or co-inventor.
2.5 Government or Third Party. I agree that, as directed by Company, I will assign to a third party, including without limitation the United States, all my right, title, and interest in and to any particular Company Invention.
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2.6 Enforcement of Intellectual Property Rights and Assistance. During and after the period of my employment and at Company’s request and expense, I will assist Company in every proper way, including consenting to and joining in any action, to obtain and enforce United States and foreign Intellectual Property Rights and Moral Rights relating to Company Inventions in all countries. I will execute any documents that Company may reasonably request for use in obtaining or enforcing such Intellectual Property Rights and Moral Rights. If Company is unable to secure my signature on any document needed in connection with such purposes, I hereby irrevocably designate and appoint Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled with an interest, to act on my behalf to execute and file any such documents and to do all other lawfully permitted acts to further such purposes with the same legal force and effect as if executed by me. My obligations under this paragraph will continue beyond the termination of my employment with Company, provided that Company will compensate me at a reasonable rate after such termination for time or expenses actually spent by me at Company’s request on such assistance.
2.7 Incorporation of Software Code. I agree that I will not incorporate into any Company software or otherwise deliver to Company any software code licensed under the GNU General Public License or Lesser General Public License or any other license that, by its terms, requires or conditions the use or distribution of such code on the disclosure, licensing, or distribution of any source code owned or licensed by Company except as expressly authorized by Company or in strict compliance with Company’s policies regarding the use of such software.
3. Records. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that is required by Company) of all Inventions made by me during the period of my employment by Company, which records shall be available to, and remain the sole property of, Company at all times.
4. Additional Activities. I agree that I will not (a) during the term of my employment by Company, without Company’s express written consent, engage in any employment or business activity that is competitive with, or would otherwise conflict with my employment by, Company; and (b) during the term of my employment by Company and for one (1) year thereafter, I will not either directly or indirectly, solicit or attempt to solicit any employee, independent contractor, or consultant of Company to terminate his, her or its relationship with Company in order to become an employee, consultant, or independent contractor to or for any other person or entity. Furthermore, I agree that during the term of my employment by Company and thereafter, I shall not disparage Company, any officer or director of Company or any affiliate or agent of Company.
5. Return Of Company Property. Upon termination of my employment or upon Company’s request at any other time, I will deliver to Company all of Company’s property, equipment, and documents, together with all copies thereof, and any other material containing or disclosing any Inventions, Third Party Information or Confidential Information and certify in writing that I have fully complied with the foregoing obligation. I agree that I will not copy, delete, or alter any information contained upon my Company computer or Company equipment before I return it to Company. In addition, if I have used any personal computer, server, or e-mail system to receive, store, review, prepare or transmit any Company information, including but not limited to, Confidential Information, I agree to provide Company with a computer-useable copy of all such Confidential Information and then permanently delete and expunge such Confidential Information from those systems; and I agree to provide Company access to my system as reasonably requested to verify that the necessary copying and/or deletion is completed. I further agree that any property situated on Company’s premises and owned by Company is subject to inspection by Company’s personnel at any time with or without notice. Prior to the termination of my employment or promptly after termination of my employment, I will cooperate with Company in attending an exit interview and certify in writing that I have complied with the requirements of this section.
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6. Notification Of New Employer. If I leave the employ of Company, I consent to the notification of my new employer of my rights and obligations under this Agreement, by Company providing a copy of this Agreement or otherwise.
7. General Provisions.
7.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different state. I expressly consent to personal jurisdiction and venue in the state and federal courts for the county in which Company’s principal place of business is located for any lawsuit filed there against me by Company arising from or related to this Agreement.
7.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
7.3 Survival. This Agreement shall survive the termination of my employment and the assignment of this Agreement by Company to any successor or other assignee and shall be binding upon my heirs and legal representatives.
7.4 Employment. I agree and understand that nothing in this Agreement shall give me any right to continued employment by Company, and it will not interfere in any way with my right or Company’s right to terminate my employment at any time, with or without cause and with or without advance notice.
7.5 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the signature page, by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally- recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, notice will be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of the change to the other party.
7.6 Injunctive Relief. I acknowledge that, because my services are personal and unique and because I will have access to the Confidential Information of Company, any breach of this Agreement by me would cause irreparable injury to Company for which monetary damages would not be an adequate remedy and, therefore, will entitle Company to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
7.7 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of that provision or any other provision on any other occasion.
7.8 Export. I agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company or any products utilizing such data, in violation of the United States export laws or regulations.
7.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
7.10 Entire Agreement. If no other agreement governs nondisclosure and assignment of inventions during any period in which I was previously employed or am in the future employed by Company as an independent contractor, the obligations pursuant to sections of this Agreement titled Confidential Information Protections and Inventions shall apply. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior communications between us with respect to such matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by me and an authorized officer of Company. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.
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This Agreement shall be effective as of the first day of my employment with Company.
| COMPANY: | |||
| Signing Day Sports, Inc. | |||
| By: | /s/ Damon Rich | ||
| Name: | Damon Rich | ||
| Title: | Interim Chief Financial Officer | ||
| Address: | 8355 East Hartford Rd., Suite 100 | ||
| Scottsdale, AZ 85260 | |||
| EMPLOYEE: | ||
| I have read, understand, and accept this agreement and have been given the opportunity to review it with independent legal counsel. | ||
| /s/ Daniel D. Nelson | ||
| (Signature) | ||
| Daniel D. Nelson | ||
| Name (Please Print) | ||
| November 22, 2023 | ||
| Date | ||
| Address: | 8355 East Hartford Drive Suite | |
| 100. Scottsdale, AZ 85255 | ||
EXHIBIT A
INVENTIONS
1. Prior Inventions Disclosure. The following is a complete list of all Prior Inventions (as provided in Subsection 2.2 of the attached Employee Confidential Information and Inventions Assignment Agreement):
| ☒ | None |
| ☐ | See immediately below: |
A-1
Exhibit 10.8
EXECUTIVE EMPLOYMENT AGREEMENT
This executive employment agreement (the “Agreement”) is made and entered into as of November 22, 2023 (the “Effective Date”) by and between Signing Day Sports, Inc., a Delaware corporation with an office at 8355 East Hartford Drive, Suite 100, Scottsdale, AZ 85255 (“SDS” or the “Company”), and David O’Hara, an individual (“Executive”). SDS and Executive are referred to herein from time to time on a collective basis as the “Parties” and each on an individual basis as a “Party.” This Agreement amends, restates and supersedes the Amended and Restated Employment Offer Letter, dated March 14, 2023, between Executive and the Company (the “Original Agreement”).
Recitals:
The Original Agreement is hereby amended and restated in its entirety as of the Effective Date. SDS wishes to secure the services of Executive as the Chief Operating Officer and Secretary of SDS (with such other duties and/or offices in SDS or its affiliates as may be assigned by SDS’s Board of Directors (the “Board”)) upon the terms and conditions hereinafter set forth, and Executive wishes to render such services to SDS upon the terms and conditions hereinafter set forth.
Agreement:
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows:
1. Employment by SDS. Subject to approval by the Board or its Compensation Committee, and reasonable pre-employment background screens, SDS agrees to employ Executive during the employment in the position of Chief Operating Officer and Secretary in which Executive will have such duties and responsibilities to SDS as are customary for such a position in companies comparable to SDS, and as are reasonably assigned, delegated, and determined with notice from time to time by the Board to the Executive, and Executive accepts such employment and agrees to perform such duties and responsibilities. Executive shall devote his full business time and attention exclusively to SDS and shall use Executive’s best efforts to faithfully carry out Executive’s duties and responsibilities hereunder, provided, however, that during the employment, Executive may serve on charitable and civic boards, subject to the prior approval of the Board, which approval shall not be unreasonably withheld, and so long as such position(s) do not limit or interfere with Executive’s duties to SDS hereunder or breach any agreement between Executive and SDS.
2. Principal Place of Work. Subject to the need for Executive to undertake reasonable business travel to carry out his duties and responsibilities to SDS, Executive’s principal place of work for SDS during the employment shall be at SDS’s office at 8355 East Hartford Drive, Suite 100, Scottsdale, AZ 85255. Executive may work remotely from Executive’s residence, unless notified otherwise by a decision of the Board in accordance with the Company’s Amended and Restated Bylaws.
3. At-Will Employment. The Company and Executive acknowledge that Executive’s employment is and shall continue to be at-will, as defined under applicable law, and that Executive’s employment with the Company may be terminated by the Board at any time for any or no reason, upon written notice to Executive.
4. Compensation and Benefits.
| (a) | Base Salary. The Company shall pay to Executive a base salary for all services to be rendered by Executive under this Employment Agreement at the rate of $275,000.00 per year (the “Base Salary”), which Base Salary shall be paid in approximately equal installments (less applicable payroll deductions and taxes) in accordance with the Company’s normal payroll schedule, procedures and policies (which schedules, procedures and policies may be modified from time to time in the Company’s sole discretion), but not less frequently than monthly. The Company shall have no obligation to pay the Executive’s Base Salary following the date of the expiration or termination of this Agreement, whichever is earlier. |
| (b) | Modification of Executive’s Base Salary. The Board may, from time to time, or upon favorable consideration of a reasonable request from the Executive, modify the Executive’s Base Salary by executing an amendment or addendum to this Employment Agreement, by and between Executive and the Board. |
| (c) | Expenses. SDS shall pay or reimburse Executive for all reasonable and necessary expenses actually incurred or paid by Executive during the employment in the performance of Executive’s duties under this Agreement, upon submission and approval of expense statements, vouchers, or other supporting information in accordance with the then customary practices of SDS and tax law, regulations or rules. |
| (d) | Vacation and Sick Leave; Holidays. Executive shall be entitled to: (i) ten (10) public holidays observed by the United States federal government per year and (ii) ten (10) vacation days and five (5) sick days per year, subject to SDS’s leave policies (which SDS may amend from time to time in its sole discretion). Vacation accruals are available for use in the pay period following the completion of 30 days of employment of Executive. |
| (e) | Benefits. Whether and to what extent Executive is entitled to receive benefits, if any, from the Company is set forth on Schedule 1 hereto. |
| (f) | Equity Grants. Whether and to what extent Executive is entitled to receive equity grants (e.g., stock or stock options), if any, from the Company is set forth on Schedule 2 hereto. |
| (g) | Severance. Whether and to what extent Executive is entitled to receive a severance payment, if any, from the Company upon the Executive’s termination of employment with the Company, whether by the Executive or the Company, is set forth on Schedule 3 hereto. |
| (h) | Bonus(es). Whether and to what extent Executive is entitled to receive bonuses, if any, from the Company is set forth on Schedule 4 hereto. |
| (i) | Withholding of Taxes. SDS may withhold from any Base Salary, benefits and equity grants payable or deliverable under this Agreement all federal, state, city and other taxes as shall be required pursuant to any law or governmental regulation or ruling. |
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5. [Reserved]
6. Payments Upon Termination. All compensation (including, without limitation, Base Salary) payable to Executive under Section 4 hereof shall cease as of the date of termination specified in the notice of termination from the Company or the Executive, subject to any severance compensation set forth on Schedule 3 hereto. The Company shall pay to Executive (or if Executive has died, to Executive’s estate) all previously earned, accrued, and unpaid Base Salary and benefits from the Company’s employee benefit plans in which Executive participated and is entitled to receive under the terms of those plans.
7. [Reserved]
8. Conditions to Agreement Becoming Effective. In addition to any other conditions to this Agreement becoming effective set forth in this Agreement, this Agreement shall not become effective until: (a) Executive executes and returns to the Company the Employee Confidential Information and Inventions Assignment Agreement appended hereto as Attachment A, unless previously executed and still in effect on the date hereof, and (b) Executive provides requisite verification of the Executive’s right to work in the United States, as demonstrated by Executive’s completion of an I-9 form upon hire and submission of acceptable documentation (as noted on the I-9 form).
9. Other Provisions.
| (j) | Notices. Any notice or other communication required or which may be given hereunder shall be in writing and shall be delivered personally, emailed, telecopied, telegraphed or telexed, or sent by certified, registered or express mail, postage prepaid, to the Parties at the addresses specified on the signature page hereto, or at such other addresses as shall be specified by the Parties by like notice, and shall be deemed given so long as such provides a receipt of delivery, when so delivered personally, emailed, telecopied, telegraphed or telexed, or mailed. |
| (k) | Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter contained herein and supersedes all prior contracts and other agreements, written or oral, with respect to such subject matter. |
| (l) | Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, and the terms and conditions hereof may be waived, only by a written instrument signed by the Parties or, in the case of a waiver, by the Party waiving compliance. No delay on the part of any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any right, power, or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder. |
| (m) | Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware without regard to the choice of law principles thereof. |
| (n) | Dispute Resolution. |
| i. | Unless otherwise provided in this Agreement, the Parties agree that the exclusive forum and venue for the resolution of any controversy or claim between them arising out of or relating to this Agreement, or breach thereof (a “Dispute”), shall be the state and federal courts whose jurisdictional territory includes the county in which Company’s principal place of business is located. Each Party consents to personal jurisdiction and venue in those courts for litigation of a Dispute, and each Party waives any forum non conveniens objection to litigating a Dispute in those courts. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO HAVE A TRIAL BY JURY FOR ANY LEGAL OR OTHER COURT PROCEEDING ADDRESSING A DISPUTE. |
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| ii. | As a condition precedent to a Party’s ability to commence litigation for a Dispute, the Party shall first give written notice to the other Party of the Dispute, and, no later than twenty-one (21) days after such notice is delivered, each Party (or a representative of each Party with authority to settle the Dispute for each Party) shall confer in good faith in an effort to resolve the Dispute. The notice of the Dispute shall include a reasonable description of the basis of the Dispute. Only after the Parties have conferred, or made a good faith effort to confer, in accord with this Section 9(e)(ii) may a Party commence litigation for the Dispute. |
| (o) | Binding Effect; Benefit. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and any successors and assigns permitted or required by Section 9(g) hereof. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the Parties hereto or such successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement. |
| (p) | Assignment. This Agreement, and Executive’s rights and obligations hereunder, may not be assigned by Executive. SDS may assign this Agreement and its rights, together with its obligations, hereunder in connection with any sale, transfer, or other disposition of all or substantially all of its assets or business, whether by merger, consolidation or otherwise. |
| (q) | Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. This Agreement may be executed manually or by facsimile, scan, or other electronic means (e.g., DocuSign). |
| (r) | Severability. If a court or other tribunal of competent jurisdiction or any foreign, federal, state, county, or local government or other governmental, regulatory, or administrative agency or authority holds that any term or provision of this Agreement is invalid, illegal, or unenforceable, such term or provision shall be considered severed from this Agreement and not affect the validity, legality, or enforceability of the remaining terms or provisions of this Agreement. Upon a holding that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify, or the court, tribunal, or regulatory or administrative agency or authority may modify, this Agreement to give effect to the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. |
| (s) | Drafting. Should any provision of this Agreement require interpretation or construction, it is agreed by Executive and SDS that the person interpreting or construing this Agreement shall not apply a presumption against one Party by reason of the rule of construction that a document is to be construed more strictly against the party who prepared the document. | |
| (t) | Headings. The headings and subheadings in this Agreement (e.g., “Drafting”) are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. |
[The remainder of this page is purposefully blank; the signature page follows.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| COMPANY: | ||
| Signing Day Sports, Inc. | ||
| /s/ Daniel Nelson | ||
| Name: | Daniel Nelson | |
| Title: | Chief Executive Officer | |
| EXECUTIVE: | ||
| David O’Hara | ||
| /s/ David O’Hara | ||
| Address: | 15212 38th Place NE Lake Forest Park, WA 98155 | |
| Email: | david@signingdaysports.com | |
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Schedule 1
Benefits
During the employment, Executive shall be eligible to participate in the comprehensive benefits plans of the Company from time to time, which includes medical, dental and life insurance options subject to plan terms and generally applicable Company policies. The Company shall cover one hundred percent of the health insurance premium costs for Executive’s spouse and dependent children. A full description of these benefits is available upon request. The Company may change compensation and benefits from time to time in its discretion.
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Schedule 2
Equity Grants
Subject to the approval of the Board or its Compensation Committee, Executive will be granted a stock option award (the “Option”) to purchase 100,000 shares of the common stock of the Company, par value $0.0001 per share (the “Common Stock”) under the Signing Day Sports, Inc. 2022 Equity Incentive Plan (the “Plan”). The Option will be subject to the terms and conditions applicable to stock options granted under the Plan, as described in the Plan and the applicable Stock Option Agreement (the “Option Agreement”). The Option shall: (1) have an exercise price equal to the fair market value of a share of common stock as the date of grant or as near such grant date as may be considered reasonably representative of the fair market value of a share of the Common Stock as of such grant date (the “Fair Market Value”); (2) 1/2 of the Option shall vest and become exercisable immediately on the date of grant and the remaining 1/2 of the Option shall become vested and exercisable in 6 equal monthly installments after such grant date provided Executive remains in continuous service with the Company; (3) a term of ten years (subject to earlier termination upon the termination of Employee); and (4) such other terms and conditions as shall be set forth in the Option Agreement and in accordance with applicable law.
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Schedule 3
Severance
If during the employment, the Company terminates this Agreement without cause, the Company shall pay to Executive the following sums: (i) cash in the amount of the Base Salary in effect on the date of such termination payable in twelve (12) monthly installments; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination for twelve (12) months following the date of termination; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans including any accrued but unused Paid Time Off (“PTO”). There will be no waiting period for the commencement of the severance. The payment of severance as required by this Schedule 3 may be conditioned by the Company on the delivery by Executive of a release of any and all claims that Executive may have against the Company which release shall be in form and substance satisfactory to the Company.
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Schedule 4
Bonuses
In addition to the Base Salary, Executive shall be entitled to receive a one-time cash bonus payment of $100,000 on the Effective Date. The payment shall be made in a manner consistent with the Company’s standard payroll practices or as otherwise mutually agreed upon by the Parties.
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ATTACHMENT A
(Employee Confidential Information and Inventions Assignment Agreement)
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