UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
(Mark One)
☒ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended: March 31, 2016
or
☐ TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from__________ to _________
Commission File Number 333-139045
ENIGMA-BULWARK, LTD.
(Exact name of registrant as specified in its charter)
Nevada | 46-4733512 |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
|
|
3415 South Sepulveda Blvd., Suite 1100-#1234, Los Angeles, CA | 90034 |
(Address of principal executive offices) | (Zip Code) |
|
|
Registrant's telephone number, including area code: | (888) 287-9994 |
PearTrack Security Systems, Inc.
(Former Name)
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the last 90 days. | Yes ☐ No ☒ |
|
|
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files) | Yes ☐ No ☒ |
| |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. |
Large accelerated filer | □ |
| Accelerated filer | □ |
Non-accelerated filer | □ |
| Smaller reporting company | ☒ |
|
|
| 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. | ☐ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). | ☐ |
|
|
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.
136,591,547 common shares issued and outstanding as of May 31, 2023
1
PART 1 – FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
The Company’s unaudited interim consolidated financial statements for the three months ended March 31, 2016, form part of this quarterly report. They are stated in United States Dollars (US$), and are prepared in accordance with United States generally accepted accounting principles.
These consolidated financial statements should be read in conjunction with the audited consolidated financial statements and notes included thereto for the year ended December 31, 2015, on Form 10-K, as filed with the Securities and Exchange Commission on June 7, 2016.
2
ENIGMA-BULWARK, LTD.
CONSOLIDATED BALANCE SHEETS
March 31, 2016 |
| December 31, 2015 |
| |||
| (Unaudited) |
| (As restated) |
| ||
ASSETS |
|
|
|
| ||
Current assets |
|
|
|
|
|
|
Cash and cash equivalents | $ | 4,140 |
| $ | 14,769 |
|
Accounts receivable |
| 1,104 |
|
| 296 |
|
Other receivables |
| 2,795 |
|
| -- |
|
Prepaid expenses |
| 504 |
|
| 806 |
|
Total current assets |
| 8,543 |
|
| 15,871 |
|
|
|
|
|
|
|
|
Non-current assets |
|
|
|
|
|
|
Investment in securities |
| 1,326,804 |
|
| 1,206,185 |
|
Property and equipment, net |
| 2,008 |
|
| 2,126 |
|
Intangible assets, unencumbered, net |
| -- |
|
| 1,988,875 |
|
Intangible assets, pledged to creditors, net |
| -- |
|
| 1,351,152 |
|
Other assets |
| 6,447 |
|
| 6,447 |
|
Total non-current assets |
| 1,335,259 |
|
| 4,554,785 |
|
|
|
|
|
|
|
|
TOTAL ASSETS | $ | 1,343,802 |
| $ | 4,570,656 |
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS' DEFICIT |
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities |
|
|
|
|
|
|
Accounts payable and accrued expenses | $ | 1,096,223 |
| $ | 1,240,470 |
|
Deferred revenue |
| -- |
|
| 225,000 |
|
Notes and loans payable |
| 169,605 |
|
| 169,605 |
|
Notes payable, convertible |
| 688,755 |
|
| 688,755 |
|
Notes payable, convertible, related party |
| 500,230 |
|
| 500,230 |
|
Related party payables |
| 305,266 |
|
| 262,627 |
|
Total current liabilities |
| 2,760,079 |
|
| 3,086,687 |
|
|
|
|
|
|
|
|
Long-term liabilities |
|
|
|
|
|
|
Notes and convertible notes payable, related party, net of unamortized discount |
| 2,931,806 |
|
| 2,753,530 |
|
Total long-term liabilities |
| 2,931,806 |
|
| 2,753,530 |
|
Total liabilities |
| 5,691,885 |
|
| 5,840,217 |
|
|
|
|
|
|
|
|
Stockholders’ deficit |
|
|
|
|
|
|
Preferred stock, $0.001 par value, 25,000,000 shares authorized, none issued and outstanding |
| -- |
|
| -- |
|
Common stock, $0.001 par value, 250,000,000 shares authorized, 69,382,753 and 69,516,089 issued and outstanding as of March 31, 2016, and December 31, 2015, respectively |
| 69,382 |
|
| 69,516 |
|
Additional paid in capital |
| 10,924,718 |
|
| 10,920,448 |
|
Subscriptions receivable |
| -- |
|
| (100 | ) |
Accumulated deficit |
| (16,664,004 | ) |
| (13,460,627 | ) |
Accumulated comprehensive income |
| 1,321,821 |
|
| 1,201,202 |
|
Total stockholders' deficit |
| (4,348,083 | ) |
| (1,269,561 | ) |
|
|
|
|
|
|
|
TOTAL LIABILITIES AND STOCKHOLDERS' DEFICIT | $ | 1,343,802 |
| $ | 4,570,656 |
|
The accompanying notes are an integral part of these quarterly consolidated financial statements.
3
ENIGMA-BULWARK, LTD.
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
| For the three months ended |
| ||||
March 31, 2016 |
| March 31, 2015 |
| |||
Revenue |
|
|
|
|
|
|
Service fees | $ | 225,000 |
| $ | -- |
|
Product sales |
| 863 |
|
| 2,387 |
|
Total revenue |
| 225,863 |
|
| 2,387 |
|
Cost of sales |
| 4,380 |
|
| 4,012 |
|
Gross profit (loss) |
| 221,483 |
|
| (1,625 | ) |
|
|
|
|
|
|
|
Operating expenses |
|
|
|
|
|
|
General and administrative expenses |
| 202,418 |
|
| 457,975 |
|
Impairment losses |
| 3,340,027 |
|
| -- |
|
Total operating expenses |
| 3,542,445 |
|
| 457,975 |
|
|
|
|
|
|
|
|
Operating loss |
| (3,320,962 | ) |
| (459,600 | ) |
|
|
|
|
|
|
|
Other income (expenses) |
|
|
|
|
|
|
Gain on write-off of accrued payroll taxes |
| 145,711 |
|
| -- |
|
Gain on settlement of accounts payable |
| 33,075 |
|
| -- |
|
Gain on reduction in promissory note and accrued interest |
| -- |
|
| 305,576 |
|
Interest expense |
| (36,266 | ) |
| (27,224 | ) |
Discount amortization |
| (25,025 | ) |
| (21,330 | ) |
Realized gain on currency translation |
| 90 |
|
| 567 |
|
Total other income (expenses) |
| 117,585 |
|
| 257,589 |
|
|
|
|
|
|
|
|
Net loss |
| (3,203,377 | ) |
| (202,011 | ) |
|
|
|
|
|
|
|
Comprehensive income (loss) |
|
|
|
|
|
|
Unrealized gain on currency translation |
| -- |
|
| 4,541 |
|
Unrealized gain (loss) on securities |
| 120,619 |
|
| (16,887 | ) |
|
|
|
|
|
|
|
Net comprehensive income (loss) |
| 120,619 |
|
| (12,346 | ) |
|
|
|
|
|
|
|
Net loss and comprehensive income (loss) | $ | (3,082,758 | ) | $ | (214,357 | ) |
|
|
|
|
|
|
|
Net loss per share - basic and diluted | $ | (0.046 | ) | $ | (0.003 | ) |
|
|
|
|
|
|
|
Weighted average common shares outstanding - basic and diluted |
| 69,382,753 |
|
| 61,930,877 |
|
The accompanying notes are an integral part of these quarterly consolidated financial statements.
4
ENIGMA-BULWARK, LTD.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' DEFICIT
(UNAUDITED)
|
|
| ||||||||||||||||||
| For the three months ended March 31, 2015 |
| ||||||||||||||||||
| Common Stock |
| Additional |
| Subscriptions |
| Accumulated |
| Accumulated Other Comprehensive |
|
|
| ||||||||
Shares |
| Amount |
| Paid In Capital |
| Receivable |
| Deficit |
| Income (Loss) |
| Total |
| |||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity Balance, December 31, 2014 | 59,965,061 |
| $ | 59,965 |
| $ | 8,126,703 |
| $ | (1,600 | ) | $ | (11,695,730 | ) | $ | 8,967 |
| $ | (3,501,695 | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of common stock for services | 250,000 |
|
| 250 |
|
|
|
|
| (250 | ) |
|
|
|
|
|
|
| -- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of common stock for cash | 1,883,147 |
|
| 1,883 |
|
| 35,780 |
|
| (37,663 | ) |
|
|
|
|
|
|
| -- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of common stock for intellectual property | 5,706,506 |
|
| 5,707 |
|
| 1,706,245 |
|
| (5,707 | ) |
|
|
|
|
|
|
| 1,706,245 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||
Subscriptions received |
|
|
|
|
|
|
|
|
| 43,370 |
|
|
|
|
|
|
|
| 43,370 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of restricted stock awards |
|
|
|
|
|
| 178,450 |
|
|
|
|
|
|
|
|
|
|
| 178,450 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
|
|
|
|
|
|
|
|
|
|
| (202,011 | ) |
| (12,346 | ) |
| (214,357 | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity Balance, March 31, 2015 | 67,804,714 |
| $ | 67,805 |
| $ | 10,047,178 |
| $ | (1,850 | ) | $ | (11,897,741 | ) | $ | (3,379 | ) | $ | (1,787,987 | ) |
| For the three months ended March 31, 2016 |
| ||||||||||||||||||
| Common Stock |
| Additional |
| Subscriptions |
| Accumulated |
| Accumulated Other Comprehensive |
|
|
|
| |||||||
Shares |
| Amount |
| Paid In Capital |
| Receivable |
| Deficit |
| Income (Loss) |
| Total |
| |||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity Balance, December 31, 2015, as restated | 69,516,089 |
| $ | 69,516 |
| $ | 10,920,448 |
| $ | (100 | ) | $ | (13,460,627 | ) | $ | 1,201,202 |
| $ | (1,269,561 | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cancellation of common stock for services | (133,336 | ) |
| (134 | ) |
| 134 |
|
|
|
|
|
|
|
|
|
|
| -- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subscription canceled |
|
|
|
|
|
| (100 | ) |
| 100 |
|
|
|
|
|
|
|
| -- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of restricted stock awards |
|
|
|
|
|
| 4,236 |
|
|
|
|
|
|
|
|
|
|
| 4,236 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) |
|
|
|
|
|
|
|
|
|
|
|
| (3,203,377 | ) |
| 120,619 |
|
| (3,082,758 | ) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity Balance, March 31, 2016 | 69,382,753 |
| $ | 69,382 |
| $ | 10,924,718 |
| $ | -- |
| $ | (16,664,004 | ) | $ | 1,321,821 |
| $ | (4,348,083 | ) |
The accompanying notes are an integral part of these quarterly consolidated financial statements.
5
ENIGMA-BULWARK, LTD.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
The accompanying notes are an integral part of these quarterly consolidated financial statements.
6
ENIGMA-BULWARK, LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2016, AND DECEMBER 31, 2015
NOTE 1. OVERVIEW AND NATURE OF BUSINESS
The accompanying unaudited consolidated financial statements of Enigma-Bulwark, Ltd., (the “Company” or “Enigma”) have been prepared in accordance with generally accepted accounting principles. The preparation of consolidated financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and that effect the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
These interim consolidated financial statements should be read in conjunction with the audited consolidated financial statements and notes for the year ended December 31, 2015. Notes to the consolidated financial statements that would substantially duplicate the disclosures contained in the audited consolidated financial statements have been omitted.
The Company was incorporated in Nevada on September 30, 2005, and is headquartered in Los Angeles, California. Formerly PearTrack Security Systems, Inc., the Company’s name was changed to Enigma-Bulwark, Ltd., on October 9, 2019, pursuant to a majority of the Company’s shareholders and unanimous resolution of the board of directors.
Enigma-Bulwark, Ltd. (“Enigma” or “Company”) is a security and risk management company that provides physical security, technology-systems integration, and risk management advisory services. Services offered to assess and mitigate risk include security guards, risk management analysis, and proprietary and third-party technology and software. Target markets include corporations, governments and individuals across the globe.
As of March 31, 2016, the Company was structured with three wholly-owned subsidiaries: PearTrack Systems Group, Ltd. (“PTSG”), Ecologic Products, Inc. (“EPI”), and Ecologic Car Rentals, Inc. (“ECR”), all Nevada corporations. The Company’s current business activities are diversified into two specific markets: security and risk management, and remote/mobile asset tracking products.
The Company intends to provide a unique solution to security issues in the intermodal shipping container marketplace, with its patented container tracking and locking system, EnigmaLok (formerly PearLoxx), the rights of which were licensed to the Company in perpetuity in 2015.
Through the subsidiaries, Ecologic Car Rentals, Inc. and Ecologic Products, Inc., the Company continues its pursuits for strategic opportunities for its shareholders, as management believes that the brands have value for companies with environmentally-friendly consumer-related products and services.
Going Concern
The Company has incurred losses since inception resulting in a current period net loss of $3,082,758, an accumulated deficit of $16,664,004, and a working capital deficit of $2,751,536 as of March 31, 2016, and further losses are anticipated. The Company’s ability to continue as a going concern is dependent upon its ability to generate profitable operations in the future and/or to obtain the necessary financing to meet its obligations and repay its liabilities arising from normal business operations when they come due, which may not be available at commercially reasonable terms. There can be no assurance that the Company will be able to continue to raise funds, in which case the Company may be unable to meet its obligations and the Company may cease operations. These factors, among others, raise substantial doubt about the Company’s ability to continue as a going concern.
The consolidated financial statements reflect all adjustments consisting of normal recurring adjustments, which, in the opinion of management, are necessary for a fair presentation of the results for the periods shown. The consolidated financial statements do not include any adjustments relating to the recoverability and classification of recorded assets, or the amounts of and classification of liabilities that might be necessary in the event the Company cannot continue as a going concern.
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
This summary of significant accounting policies is presented to assist in understanding the Company’s consolidated financial statements. These accounting policies conform to accounting principles, generally accepted in the United States of America, and have been consistently applied in the preparation of the consolidated financial statements.
The Company’s fiscal year end is December 31.
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All intercompany balances and transactions have been eliminated.
7
ENIGMA-BULWARK, LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2016, AND DECEMBER 31, 2015
Use of Estimates
The preparation of consolidated financial statements in conformity with US GAAP requires management to make estimates and assumptions that affect the reported amount of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Management routinely makes judgments and estimates about the effects of matters that are inherently uncertain. Estimates that are critical to the accompanying consolidated financial statements include the estimates related to asset impairments of long-lived assets and investments, classification of expenditures as either an asset or an expense, valuation of deferred tax assets, and the likelihood of loss contingencies. Management bases its estimates and judgments on historical experience and on various other factors that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Estimates and assumptions are revised periodically, and the effects of revisions are reflected in the consolidated financial statements in the period it is determined to be necessary. Actual results could differ from these estimates.
Fair Value Hierarchy
The Company utilizes the three-level valuation hierarchy for the recognition and disclosure of fair value measurements. The categorization of assets and liabilities within this hierarchy is based upon the lowest level of input that is significant to the measurement of fair value. The three levels of the hierarchy consist of the following:
Level 1: Inputs to the valuation methodology are unadjusted quoted prices in active markets for identical assets or liabilities that the Company has the ability to access at the measurement date.
Level 2: Inputs to the valuation methodology are quoted prices for similar assets and liabilities in active markets, quoted prices in markets that are not active or inputs that are observable for the asset or liability, either directly or indirectly, for substantially the full term of the instrument.
Level 3: Inputs to the valuation methodology are unobservable inputs based upon management’s best estimate of inputs market participants could use in pricing the asset or liability at the measurement date, including assumptions about risk.
The Company’s investment in securities are classified as Level 1 assets, and were valued using the quoted prices in the active market (Note 3).
Fair Value of Financial Instruments
As of March 31, 2016, and December 31, 2015, respectively, the carrying values of Company’s Level 1 financial instruments including cash and cash equivalents, investments in securities, accounts receivable, accounts payable, and short-term debt approximate fair value. The fair value of Level 3 instruments is calculated as the net present value of expected cash flows based on externally provided or obtained inputs. Certain Level 3 instruments may also be based on sales prices of similar assets. The Company’s fair value calculations take into consideration the credit risk of both the Company and its counterparties as of the date of valuation.
Cash and Cash Equivalents
The Company considers cash in banks, deposits in transit, and highly-liquid debt instruments purchased with original maturities of three months or less to be cash and cash equivalents. As of March 31, 2016, and December 31, 2015, the Company had no cash equivalents.
Foreign Currency Translation
Items included in the financial statements of the Company’s subsidiary are measured using the currency of the primary economic environment in which the entity operates (‘the functional currency’). The consolidated financial statements are presented in US Dollars, which is the Company’s reporting currency.
The results and financial position of PearTrack Systems Group, Ltd., the Company’s wholly owned subsidiary, has a functional currency different from the reporting currency, the British Pound, and is translated into the reporting currency as follows:
(i)assets and liabilities for each balance sheet presented are translated at the closing rate at the date of that balance sheet;
(ii)income and expenses for each statement of operations are translated at average exchange rates on a monthly basis; and
(iii)all resulting exchange differences are recognized as a separate component of equity.
Foreign exchange gains and losses resulting from the settlement of such transactions and from the translation at year-end exchange rates of monetary assets and liabilities denominated in foreign currencies are recognized in the consolidated statements of operations as other comprehensive income. On consolidation, exchange differences arising from the translation of the net investment in foreign entities are taken to stockholders’ equity. During the three months ended March 31, 2016 and 2015, respectively, exchange differences of $0 and $4,541 were recognized. As of March 31, 2016 and 2015, respectively, exchange differences of $7,079 and $8,683 have been accumulated.
8
ENIGMA-BULWARK, LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2016, AND DECEMBER 31, 2015
The following represents the accumulated unrealized exchange differences, which are excluded from earnings and reflected as a component of other comprehensive income:
Unrealized Foreign Currency Exchange | ||
Balance, December 31, 2014 | $ | 4,142 |
Unrealized exchange differences during period |
| 4,541 |
Balance, March 31, 2015 | $ | 8,683 |
|
|
|
Balance, December 31, 2015 | $ | 7,079 |
Unrealized exchange differences during period |
| -- |
Balance, March 31, 2016 | $ | 7,079 |
Investments in Securities
Investments in securities are accounted for using the equity method if the investment provides the Company the ability to exercise significant influence, but not control, over an investee. Significant influence is generally deemed to exist if the Company has an ownership interest in the voting stock of the investee between 20% and 50%, although other factors, such as representation on the investee's board of directors, are considered in determining whether the equity method is appropriate. All other equity investments, which consist of investments for which the Company does not possess the ability to exercise significant influence, are accounted for under the mark to market method. Under the mark to market method of accounting, investments are marked to market, with unrealized gains and losses being excluded from earnings and reflected as a component of other comprehensive income.
Property and Equipment
Property and equipment is carried at the cost of acquisition or construction and depreciated over the estimated useful lives of the assets. Costs associated with repairs and maintenance are expensed as incurred. Costs associated with improvements which extend the life, increase the capacity or improve the efficiency of the Company’s property and equipment are capitalized and depreciated over the remaining life of the related asset. Gains and losses on dispositions of equipment are reflected in operations. Depreciation is provided using the straight-line method over the estimated useful lives of the assets, which are 5 to 7 years.
Intangible Assets
Product processes, patents and customer lists are amortized on a straight-line basis over their estimated useful lives of 4 to 20 years. Application development stage costs for significant internally developed software projects are capitalized and amortized on a straight-line basis over the useful life of 2 to 5 years. Costs to extend and maintain patents and trademarks are charged directly to expense as incurred.
Impairment of Long-Lived Assets
The Company evaluates long-lived assets for impairment whenever events or changes in circumstances indicate that their net book value may not be recoverable. When such factors and circumstances exist, the Company compares the projected undiscounted future cash flows associated with the related asset or group of assets over their estimated useful lives against their respective carrying amount. Impairment, if any, is based on the excess of the carrying amount over the fair value, based on market value when available, or discounted expected cash flows, of those assets and is recorded in the period in which the determination is made.
Due to the Company’s recurring losses and lack of revenue from its intellectual properties, its intellectual properties were evaluated for impairment, and it was determined that its intellectual property, with a carrying value of $3,340,027, was impaired. As a result, an impairment loss of $3,340,027 was recognized for the period ended March 31, 2016.
Convertible Debt
The Company recognizes the advantageous value of conversion rights attached to convertible debt. Such rights give the debt holder the ability to convert debt into common stock at a price per share that is less than the trading price to the public on the date of the debt. The beneficial value is calculated as the intrinsic value (the market price of the stock at the commitment date in excess of the conversion rate) of the beneficial conversion feature of the debt, and is recorded as a discount to the related debt and an addition to additional paid in capital. The discount is amortized over the remaining outstanding period of related debt using the interest method.
Revenue Recognition
Revenue is recognized only when the price is fixed or determinable, persuasive evidence of an arrangement exists, the service has been provided, and collectability is reasonably assured.
The Company has continuing revenue from limited customer contracts for its tracking units and system. In addition, the Company provides consulting services as an additional revenue source. As of March 31, 2016, the Company has not commenced its principal operations, generating limited test sales of its security product line.
9
ENIGMA-BULWARK, LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2016, AND DECEMBER 31, 2015
Income Taxes
Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to temporary differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. These assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which the temporary differences are expected to reverse.
The Company has net operating loss carryforwards available to reduce future taxable income. Future tax benefits for these net operating loss carryforwards are recognized to the extent that realization of these benefits is considered more likely than not. To the extent that the Company will not realize a future tax benefit, a valuation allowance is established.
As of March 31, 2016, the Company had not yet filed its 2013 through 2015 annual corporate income tax returns, which were filed in April 2022. Due to the Company’s recurring losses, no corporate income taxes are due for these periods.
Net Income (Loss) Per Common Share
Basic earnings (loss) per share is calculated by dividing net income (loss) by the weighted average number of common shares outstanding for the period. Diluted earnings (loss) per share is calculated by dividing net income (loss) by the weighted average number of common shares and dilutive common stock equivalents outstanding. During the periods when anti-dilutive, common stock equivalents, if any, are not considered in the computation.
Other Comprehensive Income (Loss)
Other comprehensive income includes unrealized gains and losses on securities available for sale, and unrealized gains and losses resulting from foreign exchange differences. During the three months ended March 31, 2016 and 2015, respectively, other comprehensive income (losses) of $120,619 and ($12,346) have been recognized. As of March 31, 2016 and 2015, respectively, other comprehensive income (loss) of $1,321,821 and ($3,379) has been accumulated. The following represents the accumulated comprehensive income activity:
Unrealized Foreign Currency Exchange |
| Unrealized Securities Gains (Losses) |
| Total Accumulated Other Comprehensive Income (Loss) |
| |||||
Balance, December 31, 2014 | $ | 4,142 |
| $ | 4,825 |
| $ | 8,967 |
| |
Gain (loss) |
| 4,541 |
|
| (16,887 | ) |
| (12,346 | ) | |
Balance, March 31, 2015 | $ | 8,683 |
| $ | (12,062 | ) | $ | (3,379 | ) | |
|
|
|
|
|
|
|
|
|
| |
Balance, December 31, 2015 | $ | 7,079 |
| $ | 1,194,123 |
| $ | 1,201,202 |
| |
Gain (loss) |
| -- |
|
| 120,619 |
|
| 120,619 |
| |
Balance, March 31, 2016 | $ | 7,079 |
| $ | 1,314,712 |
| $ | 1,321,821 |
|
Stock Based Compensation
The Company records stock-based compensation using the fair value method. All transactions in which goods or services are the consideration received for the issuance of equity instruments are accounted for based on the fair value of the consideration received or the fair value of the equity instrument issued, whichever is more reliably measurable. Equity instruments issued to employees and the cost of the services received as consideration are measured and recognized based on the fair value of the equity instruments issued.
Recent Accounting Pronouncements
The Company evaluates the pronouncements of various authoritative accounting organizations, primarily the Financial Accounting Standards Board (“FASB”), the US Securities and Exchange Commission (“SEC”), and the Emerging Issues Task Force (“EITF”), to determine the impact of new pronouncements on US GAAP and the impact on the Company. The Company has recently adopted the following new accounting standards:
Adopted:
In January 2015, the FASB issued ASU 2015-01 Income Statement—Extraordinary and Unusual Items (Subtopic 225-20): Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items. This Update eliminates from GAAP the concept of extraordinary items. The amendments in this Update are effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2015. A reporting entity may apply the amendments prospectively. A reporting entity also may apply the amendments retrospectively to all prior periods presented in the financial statements. Early adoption is permitted provided that the guidance is applied from the beginning of the fiscal year of adoption. The effective date is the same for both public business entities and all other entities.
In April 2015, the FASB issued ASU 2015-03 Interest-Imputation of Interest (Subtopic 835-30: Simplifying the Presentation of Debt Issuance Costs. ASU 2015-03 is part of the Simplification Initiative, and its objective of to simplify the presentation of debt issuance costs. This Update requires that debt issuance costs related to a recognized debt liability be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, consistent with debt discounts. The recognition and measurement guidance for debt issuance costs are not affected by the amendments in this Update. The amendments in this Update are effective for the Company’s consolidated financial statements issued for fiscal years beginning after December 15, 2015, and interim periods within those fiscal years. Early adoption is permitted for financial statements that have not been previously issued.
10
ENIGMA-BULWARK, LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2016, AND DECEMBER 31, 2015
In July 2015, the FASB issued ASU 2015-11 Inventory (Topic 330): Simplifying the Measurement of Inventory. ASU 2015-11 is part of the Simplification Initiative, and its objective is to simplify the measurement of inventory. This Update applies to inventory that is measured using FIFO or average cost, and requires an entity measure inventory at the lower of cost and net realizable value. The amendments in this Update are effective for the Company’s consolidated financial statements issued for fiscal years beginning after December 15, 2016, and interim periods within those fiscal years. The amendments in this Update should be applied prospectively with earlier application permitted as of the beginning of an interim or annual reporting period.
In September 2015, the FASB issued ASU 2015-16 Business Combinations (Topic 805): Simplifying the Accounting for Measurement Period Adjustments. ASU 2015-16 is part of the Simplification Initiative, and eliminates the requirement to restate prior period financial statements for measurement period adjustments. The new guidance requires that the cumulative impact of a measurement period adjustment (including the impact on prior periods) be recognized in the reporting period in which the adjustment is identified. The amendments in this Update are effective for fiscal years beginning after December 15, 2015, including interim periods within those fiscal years. The amendments in this Update should be applied prospectively to adjustments to provisional amounts that occur after the effective date of this Update with earlier application permitted for financial statements that have not been issued.
Not Yet Adopted:
In January 2016, the FASB issued ASU No. 2016-01, Financial Instruments-Overall (Subtopic 825-10: Recognition and Measurement of Financial Assets and Financial Liabilities. The new guidance is intended to improve the recognition, measurement, presentation and disclosure of financial instruments. Among other changes, there will no longer be an available-for-sale classification for which changes in fair value are currently reported in other comprehensive income for equity securities with readily determinable fair values. Equity investments with readily determinable fair values will be measured at fair value with changes in fair value recognized in net income. ASU 2016-01 will be effective for the Company beginning January 1, 2018, with early adoption not permitted. The Company is currently evaluating the impact of the application of this accounting standard update on its consolidated financial statements and related disclosures.
In February 2016, the FASB issued ASU No. 2016-02, Leases. Under the new guidance, lessees will be required to recognize the following for all leases (with the exception of short-term leases) at the commencement date: (a) a lease liability, which is a lessee’s obligation to make lease payments arising from a lease, measured on a discounted basis; and (b) a right-of-use asset, which is an asset that represents the lessee’s right to use, or control the use of, a specified asset for the lease term. The ASU will be effective for the Company beginning January 1, 2019, with early adoption permitted. The Company is currently evaluating the impact of the application of this accounting standard update on its consolidated financial statements and related disclosures.
Recently Issued Accounting Standards Updates:
There were various updates recently issued, most of which represented technical corrections to the accounting literature or application to specific industries. None of the updates are expected to have a material impact on the Company's consolidated financial position, results of operations or cash flows.
NOTE 3. INVESTMENT IN SECURITIES
As of March 31, 2016, and December 31, 2015, the Company held 12,061,854 shares of Amazonas Florestal, Ltd. (OTC:AZFL) common stock. The securities are classified as Level 1 investments (Note 2, Fair Value Hierarchy), and are valued using the quoted market prices. During the three months ended March 31, 2016 and 2015, respectively, $120,619 and ($16,887) in unrealized gains (losses) were recognized and included as part of comprehensive income (loss). As of March 31, 2016, and December 31, 2015, respectively, $1,314,742 and $1,194,123 in cumulative unrealized gains were recognized, and the securities held a fair value of $1,326,804 and $1,206,185.
NOTE 4. PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
March 31, 2016 |
| December 31, 2015 |
| |||
Office equipment | $ | 2,362 |
| $ | 2,362 |
|
Accumulated depreciation |
| (354 | ) |
| (236 | ) |
Property and equipment, net | $ | 2,008 |
| $ | 2,126 |
|
During the three months ended March 31, 2016 and 2015, respectively, $118 and $0 in depreciation was expensed.
11
ENIGMA-BULWARK, LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2016, AND DECEMBER 31, 2015
NOTE 5. INTANGIBLE ASSETS
Intangible assets consists of the following:
March 31, 2016 |
| December 31, 2015 |
| |||
Intellectual property, unencumbered | $ | 2,156,245 |
| $ | 2,156,245 |
|
Accumulated amortization |
| (167,370 | ) |
| (167,370 | ) |
Impairment losses |
| (1,988,875 | ) |
| -- |
|
Intellectual property, unencumbered, net |
| -- |
|
| 1,988,875 |
|
|
|
|
|
|
|
|
Intellectual property, pledged to creditors |
| 1,567,060 |
|
| 1,567,060 |
|
Accumulated amortization |
| (215,908 | ) |
| (215,908 | ) |
Impairment losses |
| (1,351,152 | ) |
| -- |
|
Intellectual property, pledged to creditors, net | $ | -- |
| $ | 1,351,152 |
|
During the three months ended March 31, 2016 and 2015, respectively, the Company recognized $1,988,875 and $0 in impairment losses related to its unencumbered intellectual property, and $1,351,152 and $0 in impairment losses related to its intellectual property pledged to creditors, for a total of $3,340,027 and $0 in impairment losses.
During the three months ended March 31, 2016 and 2015, respectively, $0 and $45,855 in amortization was expensed.
NOTE 6. ACCOUNTS PAYABLE AND ACCRUED EXPENSES
Accounts payable and accrued expenses consist of:
March 31, 2016 |
| December 31, 2015 |
| |||
Accounts payable-vendors | $ | 666,052 |
| $ | 745,094 |
|
Accrued payroll and taxes |
| 44,995 |
|
| 146,466 |
|
Accrued interest |
| 385,176 |
|
| 348,910 |
|
|
|
|
|
|
|
|
Total accounts payable and accrued expenses | $ | 1,096,223 |
| $ | 1,240,470 |
|
During the three months ended March 31, 2016, management determined that there is no future sacrifice of economic benefit arising from certain debt previously recognized by the Company to transfer assets or provide services in the future. As a result, certain vendor accounts payable in the amount of $33,075, and previously accrued payroll taxes in the amount of $145,711, was extinguished, and a gain of $178,786 was recognized.
NOTE 7. DEFERRED REVENUE
In connection with a certain Service Agreement dated June 30, 2014 (the “Service Agreement”), revenue received in the amount of $450,000 was deferred, to be recognized over the term of the agreement, or twelve (12) months. During the year ended December 31, 2014, the Company recognized a total of $225,000 as revenues earned. Due to certain events beyond the Company’s control, the customer was unable to meet the terms of the Service Agreement, and the contract expired. There was no refund clause within the Service Agreement, and the remaining $225,000 in deferred revenues have been recognized during the three months ended March 31, 2016.
NOTE 8. NOTES AND LOANS PAYABLE
Notes and loans payable consists of the following:
March 31, 2016 |
| December 31, 2015 |
| |||
Loans payable | $ | 44,605 |
| $ | 44,605 |
|
Notes payable, short term |
| 125,000 |
|
| 125,000 |
|
Total notes and loans payable |
| 169,605 |
|
| 169,605 |
|
|
|
|
|
|
|
|
Notes payable, short-term, convertible |
| 688,755 |
|
| 688,755 |
|
Total | $ | 858,360 |
| $ | 858,360 |
|
Notes payable includes the following convertible promissory notes at March 31, 2016, and December 31, 2015:
Description | Principal |
| Interest Rate (%) | Conversion Rate | Maturity Date |
| |
|
|
| |||||
Kasper Group, Ltd. | $ | 188,755 |
| 7 | $0.05 | 1 year from demand | [1] |
Matrix Advisors, Inc. |
| 500,000 |
| 5 | $0.25 | 12/31/2015 | [2] |
|
|
|
|
|
|
|
|
Total convertible notes payable | $ | 688,755 |
|
|
|
|
|
[1] No demand has been made
[2] No change in terms of promissory note due to breach. The debt was converted in November 2021.
During the three months ended March 31, 2016, and the year ended December 31, 2015, respectively, interest in the amount of $16,259 and $65,213 was expensed. As of March 31, 2016, and December 31, 2015, respectively, interest in the amount of $244,649 and $228,390 has been accrued and is included as part of accrued expenses on the accompanying consolidated balance sheets.
12
ENIGMA-BULWARK, LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2016, AND DECEMBER 31, 2015
NOTE 9. RELATED PARTY TRANSACTIONS
Related party transactions consists of the following:
March 31, 2016 |
| December 31, 2015 |
| |||
|
|
|
|
|
|
|
Notes payable, convertible, short-term | $ | 500,230 |
| $ | 500,230 |
|
|
|
|
|
|
|
|
Notes payable, long-term, secured |
| 2,000,000 |
|
| 2,000,000 |
|
Less: unamortized discount |
| (233,149 | ) |
| (254,716 | ) |
Total long-term notes payable, secured, net of discount |
| 1,766,851 |
|
| 1,745,284 |
|
|
|
|
|
|
|
|
Notes payable, convertible, long-term, subordinate |
| 1,175,330 |
|
| 1,022,079 |
|
Less: unamortized discount |
| (10,375 | ) |
| (13,833 | ) |
Total long-term convertible notes payable, unsecured, net of discount |
| 1,164,955 |
|
| 1,008,246 |
|
Total long-term notes payable |
| 2,931,806 |
|
| 2,753,530 |
|
Total notes payable |
| 3,432,036 |
|
| 3,253,760 |
|
|
|
|
|
|
|
|
Accrued compensation |
| 236,550 |
|
| 206,550 |
|
Reimbursable expenses/cash advances payable |
| 68,716 |
|
| 56,077 |
|
Total related party payable |
| 305,266 |
|
| 262,627 |
|
|
|
|
|
|
|
|
Total related party transactions | $ | 3,737,302 |
| $ | 3,516,387 |
|
Related party notes payable consists of the following convertible notes payable at March 31, 2016, and December 31, 2015:
Description | Principal |
| Interest Rate (%) | Conversion Rate | Maturity Date |
| |
|
|
| |||||
Short-term: |
|
|
|
|
|
|
|
Huntington Chase Financial Group | $ | 313,913 |
| 7 | $0.05 | 1 year from demand | [1] |
Adrian Pegler |
| 100,000 |
| 7 | $0.07 | 1 year from demand | [1] |
William Nesbitt |
| 86,317 |
| 5 | $0.05 | Funding | [2] |
Total short-term |
| 500,230 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term: |
|
|
|
|
|
|
|
Huntington Chase Financial Group |
| 503,000 |
| 5 | $0.05 | 12/31/2021 |
|
E. William Withrow Jr. |
| 408,330 |
| 5 | $0.05 | 12/31/2021 |
|
John Macey |
| 264,000 |
| 4 | $0.25 | 12/31/2023 |
|
Total |
| 1,175,330 |
|
|
|
|
|
Less: unamortized discount |
| (10,375 | ) |
|
|
|
|
Total long-term |
| 1,164,955 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total convertible notes payable | $ | 1,665,185 |
|
|
|
|
|
[1] No demand has been made.
[2] The requisite funding goals for repayment have not been met.
All outstanding promissory notes to related parties bear interest at a rate of 5 to 7 percent per annum, are due and payable within between one (1) year of written demand to December 31, 2023, or upon certain equity funding, and are convertible into the Company’s common stock at a price of between $0.05 to $0.25 per share.
As of March 31, 2016, and December 31, 2015, respectively, affiliates and related parties are due a total of $3,737,302 and $3,516,387, which is comprised of promissory notes to related parties, net of unamortized discounts of $243,524 and $268,549, in the amount of $3,423,036 and $3,253,760; accrued compensation in the amount of $236,550 and $206,550; and reimbursable expenses/cash advances to the Company in the amount of $68,716 and $56,077; for a net increase of $220,915 and $322,607. During the three months ended March 31, 2016, and the year ended December 31, 2015, respectively, promissory notes to related parties increased by $153,251 and $284,889, unamortized discounts decreased by $25,025 and $72,672, accrued compensation increased by $30,000 and $88,050, and reimbursable expenses/cash advances increased (decreased) by $12,639 and ($123,004).
13
ENIGMA-BULWARK, LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2016, AND DECEMBER 31, 2015
During the three months ended March 31, 2016, and the year ended December 31, 2015, respectively, promissory notes to related parties, net of unamortized discounts, increased by $178,276 and $645,168 as a result of an increase in accrued compensation owed to related parties in the amount of $153,251 and $572,496 converted to convertible promissory notes; an increase in discounts resulting from beneficial conversion features in the amount of $0 and $20,750; and a decrease in unamortized discount in the amount of $25,025 and $93,422.
During the three months ended March 31, 2016, and the year ended December 31, 2015, respectively, $183,251 and $722,946 in related party compensation was accrued, of which $153,251 and $572,496 was converted into convertible promissory notes, and $0 and $62,400 in payments to related parties were made, for a net increase in accrued compensation in the amount of $30,000 and $88,050.
During the three months ended March 31, 2016, and the year ended December 31, 2015, respectively, reimbursable expenses/cash advances owed to related parties increased (decreased) by $12,639 and ($123,004) as a result of an increase in cash loans to the Company and expenses paid by related parties on behalf of the Company in the amount of $12,639 and $17,582; and repayments to related parties in the amount of $0 and $140,586.
During the three months ended March 31, 2016, and the year ended December 31, 2015, respectively, $20,007 and $57,467 in interest on related party loans was expensed. As of March 31, 2016, and December 31, 2015, respectively, $140,527 and $120,520 in interest on related party loans has been accrued, and is included as part of accrued expenses on the accompanying consolidated balance sheets.
NOTE 10. CAPITAL STOCK
The total number of authorized shares of common stock that may be issued by the Company is 250,000,000 shares with a par value of $0.001; and the total number of authorized preferred stock is 25,000,000 shares with a par value of $0.001.
During the three months ended March 31, 2016, 133,336 shares of the Company’s restricted common stockwere canceled in connection with consulting services not provided pursuant to consulting agreements. As a result, $134 was recorded to additional paid in capital.
During the three months ended March 31, 2016, subscriptions receivable in the amount of $100 were canceled. As a result, $100 was recorded to additional paid in capital.
During the three months ended March 31, 2016, and the year ended December 31, 2015, respectively, a total of $4,236 and $595,482 in deferred stock compensation was expensed. Deferred stock compensation of $99,836 and $104,072 remained at March 31, 2016, and December 31, 2015, respectively, to be amortized over the next nine (9) months.
As of March 31, 2016, and December 31, 2015, respectively, the Company had 69,382,753 and 69,516,089 shares of common stock issued and outstanding.
NOTE 11. STOCK OPTIONS AND AWARDS
Stock Options
As of March 31, 2016, and December 31, 2015, the Company had 327,500 stock options issued and outstanding.
Outstanding and Exercisable Options |
|
|
|
|
|
|
| ||||
|
|
|
| Remaining |
| Exercise Price |
|
|
| ||
|
| Number of |
| Contractual Life |
| times Number |
| Weighted Average |
| ||
Exercise Price |
| Shares |
| (in years) |
| of Shares |
| Exercise Price |
| ||
|
|
|
|
|
|
| |||||
$3.20 |
| 75,000 |
| 0.05 |
| $ | 240,000 |
|
| $3.20 |
|
$3.20 |
| 102,500 |
| 5.05 |
|
| 328,000 |
|
| $3.20 |
|
$2.00 |
| 150,000 |
| 0.60 |
|
| 300,000 |
|
| $2.65 |
|
| 327,500 |
|
|
| $ | 868,000 |
|
| $2.65 |
|
Options Activity | Number |
| Weighted Average |
| |
of Shares |
| Exercise Price |
| ||
Outstanding at December 31, 2015 | 327,500 |
|
| $2.65 |
|
Granted | -- |
|
| -- |
|
Exercised | -- |
|
| -- |
|
Expired / Cancelled | -- |
|
| -- |
|
Outstanding at March 31, 2016 | 327,500 |
|
| $2.65 |
|
During the three months ended March 31, 2016, and the year ended December 31, 2015, respectively, the Company expensed no stock option compensation. There remained no deferred stock option compensation at March 31, 2016, and December 31, 2015.
14
ENIGMA-BULWARK, LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2016, AND DECEMBER 31, 2015
Restricted Stock Awards
During the three months and the year ended March 31, 2016, and December 31, 2015, respectively, 0 and 250,000 restricted stock awards were granted, valued at $0 and $57,250; and 156,252 and 2,433,331 restricted stock awards vested, for which $4,236 and $595,482 in deferred stock compensation was expensed. As of March 31, 2016, and December 31, 2015, respectively, there remained 416,669 and 572,921 shares to be vested, and $99,836 and $104,072 in deferred stock compensation to be expensed over the next nine (9) months.
Restricted Stock Awards Activity | Number of |
| Deferred |
| |
Shares |
| Compensation |
| ||
Outstanding at December 31, 2014 | 2,756,252 |
| $ | 642,304 |
|
Granted | 250,000 |
|
| 57,250 |
|
Vested | (2,433,331 | ) |
| (595,482 | ) |
Forfeited/Canceled | -- |
|
| -- |
|
Outstanding at December 31, 2015 | 572,921 |
|
| 104,072 |
|
Granted | -- |
|
| -- |
|
Vested | (156,252 | ) |
| (4,236 | ) |
Forfeited/Canceled | -- |
|
| -- |
|
Outstanding at March 31, 2016 | 416,669 |
| $ | 99,836 |
|
NOTE 14. CORRECTION OF ERROR
During 2023, the Company discovered that the Convertible Promissory Note dated December 31, 2011, as modified through December 31, 2014, issued to Mr. William B. Nesbitt was overstated. The overstatement was the result of an error made in the accrual of compensation in connection with Mr. Nesbitt’s underlying Employment Agreement. The error resulted in overstatements of general and administrative expense for the years ended December 31, 2012 through 2014, and interest expense for the years ended December 31, 2012 through 2015. The errors have been corrected by restating each of the affected financial statement line items for the year ended December 31, 2015, and recognizing a gain on extinguished debt for the cumulative effect on the consolidated statements of operations. The following tables summarize the impacts on the Company’s consolidated financial statements:
As previously reported December 31, 2015 |
| Adjustments |
|
| As restated December 31, 2015 |
| ||||
CONSOLIDATED BALANCE SHEETS |
|
|
|
|
|
|
|
|
| |
Assets |
|
|
|
|
|
|
|
|
|
|
Current assets | $ | 15,871 |
| $ | -- |
|
| $ | 15,871 |
|
Non-current assets |
| 4,554,785 |
|
| -- |
|
|
| 4,554,785 |
|
Total assets | $ | 4,570,656 |
| $ | -- |
|
| $ | 4,570,656 |
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities |
|
|
|
|
|
|
|
|
|
|
Current liabilities |
|
|
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses | $ | 1,272,819 |
| $ | (32,349 | ) | [1] | $ | 1,240,470 |
|
Notes payable-short term convertible-related party |
| 787,837 |
|
| (287,607 | ) | [2] |
| 500,230 |
|
Other current liabilities |
| 1,345,987 |
|
| -- |
|
|
| 1,345,987 |
|
Total current liabilities |
| 3,406,643 |
|
| (319,956 | ) |
|
| 3,086,687 |
|
Long-term liabilities |
| 2,753,530 |
|
| -- |
|
|
| 2,753,530 |
|
Total liabilities |
| 6,160,173 |
|
| (319,956 | ) |
|
| 5,840,217 |
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders' deficit |
|
|
|
|
|
|
|
|
|
|
Accumulated deficit |
| (13,780,583 | ) |
| 319,956 |
| [3] [4] |
| (13,460,627 | ) |
Other equity |
| 12,191,066 |
|
| -- |
|
|
| 12,191,066 |
|
Total stockholders' deficit |
| (1,589,517 | ) |
| 319,956 |
|
|
| (1,269,561 | ) |
Total liabilities and stockholders' deficit | $ | 4,570,656 |
| $ | -- |
|
| $ | 4,570,656 |
|
|
|
|
|
|
|
|
|
|
|
|
CONSOLIDATED STATEMENTS OF OPERATIONS |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating loss | $ | (1,850,012 | ) | $ | -- |
|
| $ | (1,850,012 | ) |
Other income (expenses) |
|
|
|
|
|
|
|
|
|
|
Gain on extinguished debt |
| -- |
|
| 305,576 |
| [3] |
| 305,576 |
|
Interest expense |
| (141,500 | ) |
| 14,380 |
| [4] |
| (127,120 | ) |
Other income (expenses) |
| (93,341 | ) |
| -- |
|
|
| (93,341 | ) |
Total other income (expenses) |
| (234,841 | ) |
| 319,956 |
|
|
| 85,115 |
|
Net loss |
| (2,084,853 | ) |
| 319,956 |
|
|
| (1,764,897 | ) |
Net comprehensive loss |
| 1,192,235 |
|
| -- |
|
|
| 1,192,235 |
|
Net loss and comprehensive loss | $ | (892,618 | ) | $ | 319,956 |
|
| $ | (572,662 | ) |
Net loss per share - basic and diluted | $ | (0.03 | ) | $ | -- |
|
| $ | (0.03 | ) |
[1] | Cumulative correction to accrued interest |
|
[2] | Cumulative correction to principal portion of promissory note |
|
[3] | Cumulative correction to principal portion of promissory note [2] and changes to interest expense through 2014 of $17,968 |
|
[4] | Correction for changes to 2015 interest expense |
|
15
ENIGMA-BULWARK, LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2016, AND DECEMBER 31, 2015
NOTE 12. SUBSEQUENT EVENTS
The Company has evaluated the events and transactions for recognition or disclosure subsequent to March 31, 2016, and has determined that there have been no events that would require disclosure, with the exception of the following:
During the period April 1, 2016 to December 31, 2022, the Company increased its loans from related parties by $2,392,163, from a total of $3,737,302 at March 31, 2016, to $6,004,868 at December 31, 2022. The increase represents (a) an increase in promissory notes in the amount of $2,057,135, as a result of (i) $299,750 reclassified from non-related party transactions, (ii) $426,464 reclassified to non-related party transactions, (iii) $5,278,235 converted from accrued compensation, (iv) an increase in discounts resulting from beneficial conversion features of $1,052,494, (v) a decrease in long-term secured promissory notes in the amount of $2,000,000 resulting from the cancellation of debt, (vi) a decrease in unamortized discount of $985,140, (vii) payments to the Company in the amount of $5,500 for stock award payments, (viii) $521,557 converted to common stock, and (ix) payments to related parties in the amount of $499,975; (b) an increase in accrued compensation of $242,173 as a result of (i) $5,637,880 in accrued compensation, of which $5,278,235 was converted into promissory notes, (ii) $55,000 in accrued compensation reclassified to non-related party transactions, (iii) payments to the Company in the amount of $6,500 for related party stock awards, and (iv) payments to related parties in the amount of $55,972; and (c) a decrease in reimbursable expenses/cash advances to the Company of $31,472. All outstanding related party promissory notes bear interest at a rate of 5 to 7 percent per annum, are due and payable between one (1) year of written demand and December 31, 2024, or upon certain equity funding, and are convertible into the Company’s common stock at a price of between $0.05 to $0.25 per share, or the 20-day average trading price.
On October 1, 2018, the Company entered into an Employment Agreement with Mr. Kyle W. Withrow to serve as the Company’s Chief Executive Officer. The agreement replaces any other written agreement with the Company or its subsidiaries, is for an initial term of three (3) years, and provides a base compensation of $150,000 per year, as well as customary bonuses and employee benefits. In addition, the agreement includes a grant to purchase 1,000,000 shares of the Company’s restricted common stock, valued at $10,000, for $0.001 per share.
On October 1, 2018, in connection with the Employment Agreement, the Company issued 1,000,000 shares of its restricted common stock at $0.001 per share, for cash in the amount of $1,000.
On October 11, 2018, the Company executed an Intellectual Property Agreement (the “Safer Agreement”) with Safer, Inc., a Florida corporation (the “Seller”), for the acquisition of certain intellectual property, as defined within the Safer Agreement, in the area of security and risk management (“Intellectual Property”). Pursuant to the Safer Agreement, in exchange for all rights, title and interest in the Intellectual Property, among other things, the Company shall deliver to Seller:
1.Common Stock Purchase Agreement providing for the Seller the right to purchase 3,500,000 shares of the Company’s restricted common stock at a price of $0.001 per share, for $3,500 cash; and
2.Revenue Sharing Agreement providing for a cash earn-out of 3% to be paid to the Seller, up to $1,000,000 paid to Seller, derived from the Adjusted Gross Revenue generated by the Company in connection with the Intellectual Property; and
3.Royalty Agreement providing for a royalty of 1.5% of the Adjusted Gross Revenue generated by the Company in connection with the Intellectual Property.
On October 11, 2018, in connection with the Safer Agreement, the Company issued 3,500,000 shares of its restricted common stock at $0.001 per share, for cash in the amount of $3,500.
On November 1, 2018, the Company entered into a consulting agreement with MJ Management Services, Inc., for the services of Ms. Calli R. Bucci to serve as the Company’s Chief Financial Officer. The agreement replaces any other written agreement with the Company or its subsidiaries, is for an initial term of three (3) years, and provides a base compensation of $150,000 per year, to be deferred until the Company reaches certain funding goals. In addition, the agreement includes a grant of 500,000 options to purchase shares of the Company’s common stock at an exercise price of $0.10 per share. The options are exercisable for a period of five (5) years, vest quarterly over a period of twenty-four (24) months, and were valued at $0 using the Black-Scholes method. The assumptions used in valuing the options were: expected term 4.75 years, expected volatility 35.59%, risk free interest rate 2.96%, and dividend yield 0%.
On November 1, 2018, the Company entered into a Consulting Agreement with Huntington Chase LLC for the services of Mr. Edward W. Withrow III. The agreement replaces any other written agreement with the Company or its subsidiaries, is for an initial term of three (3) years, and provides a base compensation of $240,000 per year.
On December 31, 2018, in connection with the Company’s inability to successfully commercialize the intellectual property acquired from PearTrack Systems Group in 2013 (collectively, the “PearTrack IP”), all rights, title and interest in the PearTrack IP reverted to the former licensees and, pursuant to the terms of the collateralized agreement, the related Senior Secured Convertible Note (the “Note”) issued to the former licensees (the “Note Holders”) is canceled. In addition, all rights to future royalties collectible under any sub-license previously issued by the Company for the PearTrack IP reverts to the Note Holders. As a result, in 2018, the Company has recognized a gain on the extinguishment of debt of $2,000,000.
16
ENIGMA-BULWARK, LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2016, AND DECEMBER 31, 2015
On May 1, 2019, the Company entered into Consulting Agreement with Mr. David Rocke. The agreement is for an initial term of three (3) years, and provides a base compensation of $150,000 per year, to be deferred until the Company reaches certain funding goals, as well as 12.5% of Enigma-Bulwark Security, Inc. adjusted gross earnings, as defined within the agreement. In addition, the agreement includes a grant of 6,875,093 options to purchase shares of the Company’s common stock, valued at $39,875 using the Black-Scholes method, at an exercise price of $0.005 per share. The options are exercisable for a period of five (5) years, of which 50% vest when certain performance goals are met, and the remainder vest when certain funding goals are met. The assumptions used in valuing the options were: expected term 4.00 years, expected volatility 38.58%, risk free interest rate 2.15%, and dividend yield 0%.
On May 1, 2019, the Company, through its wholly-owned subsidiary, Enigma-Bulwark Risk Management, Inc., entered into Consulting Agreement with Mr. Michael Gabriele, to serve as its President, and the President of its subsidiary, Enigma-Bulwark Security, Inc. The agreement is for an initial term of three (3) years, and provides a base compensation of $175,000 per year, to be deferred until the Company reaches certain funding goals, as well as 12.5% of Enigma-Bulwark Security, Inc. adjusted gross earnings, as defined within the agreement. In addition, the agreement includes a grant of 2,750,040 options to purchase shares of the Company’s common stock, valued at $15,950 using the Black-Scholes method, at an exercise price of $0.005 per share. The options are exercisable for a period of five (5) years, of which 50% vest when certain performance goals are met, and the remainder vest when certain funding goals are met. The assumptions used in valuing the options were: expected term 4.00 years, expected volatility 38.58%, risk free interest rate 2.15%, and dividend yield 0%.
On August 29, 2019, the Company entered into a Non-Compete, Non-Dilution and Registration Rights Agreement (“NC Agreement”) with Mr. David Rocke. The agreement is for an initial term of five (5) years, and provides as compensation a grant to purchase 6,667,000 shares of the Company’s restricted common stock, valued at $66,670, for $0.001 per share, plus the issuance of shares of the Company’s restricted common stock equal to seven percent (7%) of any issuance of common stock through May 15, 2019, originating from any financial instrument issued by the Company or its subsidiaries, in exchange for certain restrictions placed upon Mr. Rocke’s business activities.
On August 29, 2019, the Company entered into a Non-Compete, Non-Dilution and Registration Rights Agreement (“NC Agreement”) with Mr. Michael Gabriele, the President of the Company’s subsidiary, Enigma-Bulwark Risk Management, Inc. The agreement is for an initial term of five (5) years, and provides as compensation a grant to purchase 6,667,000 shares of the Company’s restricted common stock, valued at $66,670, for $0.001 per share, plus the issuance of shares of the Company’s restricted common stock equal to seven percent (7%) of any issuance of common stock through May 15, 2019, originating from any financial instrument issued by the Company or its subsidiaries, in exchange for certain restrictions placed upon Mr. Gabriele’s business activities.
On August 29, 2019, in connection with the Rocke and Gabriele NC Agreement, the Company issued 13,334,000 shares of its restricted common stock at $0.001 per share for cash in the amount of $13,334, plus 210,000 shares under the non-dilution provision at $0.001 per share for cash in the amount of $210.
On August 30, 2019, the Company formed Enigma-Bulwark Risk Management, Inc., a Delaware corporation and wholly-owned subsidiary, and acquired 100% of the common stock of Enigma-Bulwark Security, Inc., a Delaware corporation also formed by the Company.
On September 1, 2019, the Company, through its wholly-owned subsidiary, Enigma-Bulwark Risk Management, Inc., entered into Consulting Agreement with Mr. Clive Oosthuizen to serve as its Chief Executive Officer. The agreement is for an initial term of three (3) years, and provides a base compensation of $180,000 year one, $210,000 year two, and $240,000 year three, to be deferred until the Company reaches certain funding goals. In addition, the agreement includes a $25,000 signing bonus, and a grant of 1,250,000 options to purchase shares of the Company’s common stock, valued at $625 using the Black-Scholes method, at an exercise price of $0.05 per share. The options are exercisable for a period of five (5) years, and vest periodically over a period of thirty-six (36) months. The assumptions used in valuing the options were: expected term 5.75 years, expected volatility 41.3%, risk free interest rate 1.84%, and dividend yield 0%.
On September 20, 2019, in connection with the exercise of certain stock options, the Company issued 4,010,470 shares of its restricted common stock to related parties at an exercise price of $0.005, for cash in the amount of $20,052.
On October 1, 2019, the Company entered into a Consulting Agreement with Ms. Yinuo Jiang to serve as the Company’s Corporate Secretary effective October 8, 2019, among other duties. The agreement is for an initial term of three (3) years, and provides a base compensation of $100,000 per year, to be deferred until the Company reaches certain funding goals. In addition, the agreement includes a grant to purchase 1,000,000 shares of the Company’s restricted common stock, valued at $10,000, for $0.001 per share.
On October 1, 2019, in connection with the Consulting Agreement, the Company issued 1,000,000 shares of its restricted common stock at $0.001 per share, for cash in the amount of $1,000.
On October 6, 2019, pursuant to a resolution of the board of directors, the Company issued an aggregate of 6,000,000 shares of its restricted common stock, valued at $60,000, to its officers and directors at $0.001 per share, for cash in the amount of $6,000.
17
ENIGMA-BULWARK, LTD.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2016, AND DECEMBER 31, 2015
On October 10, 2019, the Company entered into a Non-Compete, Non-Dilution and Registration Rights Agreement (“NC Agreement”) with Mr. Clive Oosthuizen, the Chief Executive Officer of the Company’s subsidiary, Enigma-Bulwark Risk Management, Inc. The agreement is for an initial term of five (5) years, and provides as compensation a grant to purchase 4,000,000 shares of the Company’s restricted common stock, valued at $360,000, for $0.001 per share, plus the issuance of shares of the Company’s restricted common stock equal to four and one-half percent (4.5%) of any issuance of common stock originating from any financial instrument issued by the Company or its subsidiaries during the term, in exchange for certain restrictions placed upon Mr. Oosthuizen’s business activities.
On October 10, 2019, in connection with the Oosthuizen NC Agreement, the Company issued 4,000,000 shares of its restricted common stock at $0.001 per share for cash in the amount of $4,000.
On December 20, 2019, in connection with the exercise of certain stock options, the Company issued 802,094 shares of its restricted common stock to related parties at an exercise price of $0.005 for cash in the amount of $4,010.
On September 8, 2020, the Company, through its wholly-owned subsidiary, Enigma-Bulwark Risk Management, Inc., entered into a Joint Venture Agreement (the “JV Agreement”) with Prime African Security, Ltd., a South African corporation (“Prime”), to provide security and risk management services in South Africa. The joint venture formed Prime Enigma Africa (Pty) Ltd., a South African corporation (the “Joint Venture”), for which Prime owns 51% of the common stock and the Company owns 49%. The JV Agreement is for an initial term of three (3) years, and automatically renews unless canceled in writing by either party.
On August 31, 2021, in connection with the conversion of related party debt in the amount of $1,238,251, the Company issued an aggregate of 23,066,991 shares of its restricted Common Stock to six (6) related parties, including three (3) officers, of which $941,096 was at a conversion price of $0.05 per share, and $297,155 was at a conversion price of $0.07 per share.
On November 5, 2021, in connection with the conversion of debt in the amount of $696,301, the Company issued 2,785,205 shares of its restricted Common Stock at a conversion price of $0.25 per share.
On January 1, 2022, in connection with a consulting agreement, the Company issued 2,500,000 shares of restricted common stock at $0.001 per share for cash in the amount of $2,500.
Management Changes:
On June 23, 2016, Mr. David M. Engert was appointed as a Board member, to serve until the next annual meeting of the shareholders and/or until his successor is duly appointed.
On January 20, 2017, Mr. David M. Engert resigned as a member of the board of directors. This resignation did not involve any disagreement with the Company.
On September 19, 2018, Mr. E. William Withrow Jr. resigned as President and Chief Executive Officer. This resignation did not involve any disagreement with the Company. Mr. Kyle W. Withrow, succeeded him to serve as President and Chief Executive Officer until the next annual meeting of the shareholders and/or until he, or his successor is duly appointed.
On September 20, 2019, during a meeting of the board of directors, Mr. John D. Macy was not re-elected to the board of directors.
On October 4, 2019, Mr. Clive Oosthuizen, Mr. David M. Rocke and Ms. Calli R. Bucci were appointed to the Board, to serve until the next annual meeting of the shareholders.
On October 8, 2019, Ms. Calli R. Bucci resigned as Corporate Secretary. This resignation did not involve any disagreement with the Company. Ms. Yinuo “Rachel” Jiang succeeded her to serve as Corporate Secretary until the next annual meeting of the shareholders and/or until she, or her successor is duly appointed.
On January 12, 2021, Mr. John L. Ogden resigned as a Board member. This resignation did not involve any disagreement with the Company. Mr. Kyle W. Withrow, the Company’s President and Chief Executive Officer, succeeded him as a director until the next annual meeting of the shareholders and/or until he, or his successor is duly appointed.
On April 6, 2021, Mr. E. William Withrow Jr. resigned as Executive Chairman of the Board. His resignation did not involve any disagreement with the Company. Mr. Clive Oosthuizen, a Board member, and the President of the Company’s subsidiary, Enigma-Bulwark Risk Management, Inc., succeeded him.
On April 6, 2021, Mr. Kyle W. Withrow resigned as the Company President and Chief Executive Officer, and as a Board member. His resignation did not involve any disagreement with the Company. Mr. Oosthuizen succeeded him as President and Chief Executive Officer until the next annual meeting of the shareholders and/or until he, or his successor, is duly appointed. The vacant Board member seat resulting from Mr. Withrow’s resignation will remain open until a new member is elected at the next annual meeting of the shareholders, or is duly appointed by the Board.
On April 12, 2021, Mr. David Rocke resigned as a Board member and consultant. His resignation was preceded by the Company’s inquiry into Mr. Rocke’s performance in connection with his Consulting Agreement dated May 1, 2019. The vacant Board member seat resulting from Mr. Rocke’s resignation will remain open until a new member is elected at the next annual meeting of the shareholders, or is duly appointed by the Board.
On April 12, 2021, Mr. Michael Gabriele resigned as President of Enigma-Bulwark Risk Management, Inc. and its subsidiaries. His resignation did not involve any disagreement with the Company.
* * * * *
18
ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Forward-Looking Statements
This quarterly report contains forward-looking statements. These statements relate to future events or the Company’s future financial performance. In some cases, you can identify forward-looking statements by terminology such as "may", "should", "expects", "plans", "anticipates", "believes", "estimates", "predicts", "potential" or "continue" or the negative of these terms or other comparable terminology. These statements are only predictions and involve known and unknown risks, uncertainties and other factors that may cause the Company’s or the Company’s industry's actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. Although the Company believes that the expectations reflected in the forward-looking statements are reasonable, the Company cannot guarantee future results, levels of activity, performance or achievements. Except as required by applicable law, including the securities laws of the United States, the Company does not intend to update any of the forward-looking statements to conform these statements to actual results.
The Company’s unaudited consolidated financial statements are stated in United States Dollars (US$), and are prepared in accordance with United States Generally Accepted Accounting Principles. The following discussion should be read in conjunction with the Company’s unaudited consolidated financial statements and the related notes that appear elsewhere in this quarterly report.
As used in this quarterly report and unless otherwise indicated, the terms “we”, “us”, “our”, “our company” and “Enigma” refer to Enigma-Bulwark, Ltd., and its subsidiaries, unless otherwise indicated.
Corporate History
The Company was incorporated in Nevada on September 30, 2005, and is headquartered in Los Angeles, California. Formerly PearTrack Security Systems, Inc., the Company’s name was changed to Enigma-Bulwark, Ltd., on October 9, 2019, pursuant to a majority of the Company’s shareholders and unanimous resolution of the board of directors.
Enigma-Bulwark, Ltd. (“Enigma” or “Company”) is a security and risk management company that provides physical security, technology-systems integration, and risk management advisory services. Services offered to assess and mitigate risk include security guards, risk management analysis, and proprietary and third-party technology and software. Target markets include corporations, governments and individuals across the globe.
During 2014 through 2016, the Company, operating as PearTrack Security Systems, Inc., initiated a test deployment of its platform and system globally, and managed clients seeking to track their assets in motion and in remote locations.
During 2016 through 2018, the Company sought financing for the finalization of the PearLoxx container locking and tracking prototype. In addition, strategic acquisitions were pursued to expand the Company’s intellectual property portfolio.
Due to the Company’s inability to successfully commercialize the PearTrack IP tracking platform acquired in 2013, all rights, title and interest in the PearTrack IP reverted to the former licensees on December 31, 2018, and, pursuant to the terms of the collateralized agreement, the related Note issued to the licensors (the “Note Holders”) was canceled. In addition, all rights to future royalties collectible under any sub-license previously issued by the Company for the PearTrack IP reverted to the Note Holders. As a result, in 2018, the Company recognized a gain on the extinguishment of debt of $2,000,000.
Although the PearTrack IP commercialization was unsuccessful, the Company continued to focus on security and risk management, and acquired intellectual property that is based on a patent-pending 2 interactive spontaneous video security technology (the “Safer IP”). On October 11, 2018, the Company executed an Intellectual Property Purchase Agreement (the “Safer Agreement”) with Safer, Inc., a Florida corporation (the “Seller”), for the acquisition of the Safer IP. Pursuant to the Safer Agreement, in exchange for all rights, title and interest in the Safer IP, among other things, the Company delivered to Seller:
1.Common Stock Purchase Agreement providing for the Seller the right to purchase 3,500,000 shares of the Company’s restricted common stock at a price of $0.001 per share, for $3,500 cash; and
2.Revenue Sharing Agreement providing for a cash earn-out of 3% to be paid to the Seller, up to $1,000,000 paid to Seller, derived from the Adjusted Gross Revenue generated by the Company in connection with the Safer IP; and
3.Royalty Agreement providing for a royalty of 1.5% of the Adjusted Gross Revenue generated by the Company in connection with the Safer IP.
In 2019, the Company was presented with an opportunity to start a security and risk management business headquartered in Cape Town, South Africa, and identified key management to operate the business unit. On August 30, 2019, the Company formed Enigma-Bulwark Risk Management, Inc., a Delaware corporation and wholly-owned subsidiary (“EBRM”), to maintain the Company’s security and risk management operations and assets.
2 On July 21, 2021, the Company received a Notice of Allowance from the United States Patent and Trademark Office that its Patent Application 16/618,038 “Network Based Video Surveillance and Logistics for Multiple Users” was granted and would be issued to the Company.
19
In addition, EBRM acquired 100% of the shares of Enigma-Bulwark Security, Inc., a Delaware corporation formed by the Company in May 2019 (“EBS”). The Company attracted key senior management talent with backgrounds in structured finance, insurance, management, and M&A. On August 8, 2019, EBS received its license to provide physical security officers from the Florida Department of Agriculture and Consumer Services, and commenced its security protection operations in southern Florida, providing security services to the hospitality industry, as well as large events and VIPs/celebrities.
As part of the development of the South African business unit, the Company, through EBRM, entered into a Joint Venture Agreement (the “JV Agreement”) on September 8, 2020, with Prime African Security, Ltd., a South African corporation (“Prime”), to provide security and risk management services in South Africa. The joint venture formed Prime Enigma Africa (Pty) Ltd., a South African corporation (the “Joint Venture”), for which Prime owns 51% of the common stock and the Company owns 49%. The JV Agreement is for an initial term of three (3) years, and automatically renews unless canceled in writing by either party.
COVID-19 Pandemic
In December 2019, an outbreak of the COVID-19 virus was reported in Wuhan, China. On March 11, 2020, the World Health Organization (“WHO”) declared the COVID-19 virus a global pandemic, and on March 13, 2020, former President Donald J. Trump declared the virus a national emergency in the United States. As of the date of the filing of this Quarterly Report, the WHO reports over 757 million confirmed COVID-19 cases and over 6.8 million deaths worldwide, including over 1.1 million in the U.S. This highly contagious disease has spread to most of the countries in the world and throughout the United States, creating a serious impact on customers, workforces and suppliers, disrupting economies and financial markets, and potentially leading to a world-wide economic downturn. It has caused a disruption of the normal operations of many businesses, including the temporary closure or scale-back of business operations and/or the imposition of either quarantine or remote work or meeting requirements for employees, either by government order or on a voluntary basis.
The COVID-19 pandemic may adversely affect the Company’s clients’ operations, its employees and its employee productivity. It may also impact the ability of the Company’s subcontractors, partners, and suppliers to operate and fulfill their contractual obligations, and result in an increase in costs, delays or disruptions in performance. These effects, and the direct effect of the virus and the disruption on the Company’s employees and operations, may negatively impact both the Company’s ability to meet customer demand and its revenue and profit margins. The Company’s employees, in many cases, are working remotely and using various technologies to perform their functions. The Company might experience delays or changes in customer demand, particularly if customer funding priorities change. Further, in reaction to the spread of COVID-19 in the United States, many businesses have instituted social distancing policies, including the closure of offices and worksites and deferring planned business activity. Additionally, the disruption and volatility in the global and domestic capital markets may increase the cost of capital and limit the Company’s ability to access capital. Both the health and economic aspects of the COVID-19 virus are highly fluid and the future course of each is uncertain. For these reasons and other reasons that may come to light if the coronavirus pandemic and associated protective or preventative measures expand, the Company may experience a material adverse effect on its business operations, revenues and financial condition; however, its ultimate impact is highly uncertain and subject to change.
Current Business
The Company is currently structured with four wholly-owned subsidiaries: Enigma-Bulwark Risk Management, Inc., a Delaware corporation (“EBRM”), and PearTrack Systems Group, Ltd. (“PTSG”), Ecologic Products, Inc. (“EPI”), and Ecologic Car Rentals, Inc. (“ECR”), all Nevada corporations. The Company’s current business activities are diversified into two specific markets: security and risk management, and remote/mobile asset tracking products.
Through its wholly-owned subsidiary, EBRM, the Company is operating a security and risk management business, and developing its proprietary, patent-pending and patented technology. EBRM is focused on providing security guards, both armed and unarmed, as well as security consulting and systems integration of security technology and software through the development of its patent-pending intellectual property, along with third-party Plug-N-Play products.
20
In August 2019, the Company, through EBRM’s subsidiary, Enigma-Bulwark Security, Inc. (“EBS”), a Delaware corporation, established and operates a full-service security business targeting hospitality, corporate/executives, and petroleum assets. In Miami, Florida. EBS services include security guards, both armed and unarmed, as well as CCTV and video capture technology and security consulting services. As of October 2022, EBS maintains a staff of approximately forty-five (45) employees, including over forty (40) fully licensed security personnel, serving eleven (11) luxury and boutique hotels, restaurants and resorts in the greater Miami Beach, Florida, area.
In August 2020, EBRM formed a joint venture with Prime African Security, Ltd. Pty, a Pretoria, South Africa based full-service security company, accredited under the Private Security Industry Regulation Act 56 of 2001 (PSIRA), called Prime-Enigma Africa Ltd. Pty (“Prime-Enigma”) headquartered in Pretoria, South Africa. Prime-Enigma is currently bidding on security tenders from large international corporations operating in South Africa.
The Company also intends to provide a unique solution to security issues in the intermodal shipping container marketplace, with its patented container tracking and locking system, EnigmaLok (formerly PearLoxx), the rights of which were licensed to the Company in perpetuity in 2015.
Through the subsidiaries, Ecologic Car Rentals, Inc. and Ecologic Products, Inc., the Company continues its pursuits for strategic opportunities for its shareholders, as management believes that the brands have value for companies with environmentally-friendly consumer-related products and services.
Management
Management experience and insight translates into best practices and proven strategies that will help anticipate and respond to myriad facility, operational, and safety challenges with confidence. Enigma’s management has extensive knowledge and experience in many fields requiring security and risk management protocols, such as multinational corporations, mining houses, telecommunication providers, transportation and energy companies.
Enigma’s team is at the core of its value, with decades of intelligence and military experience, as well as technology expertise and specialized experience in:
·advanced training techniques
·new and innovative technology applications
·intelligence and reconnaissance
·risk assessment and threat identification.
The Enigma team includes individuals with backgrounds from U.S. and South African Special Forces and military intelligence, and applies its experience to deliver measured and effective security management, regardless of adversary or operating environment. Additionally, Enigma is sensitive and experienced at managing low-profile, security operations in challenging environments.
The Company works with a core management team to remain flexible during times of non-engagement. With over forty years of professional military service, the Enigma team has established a large network of security professionals that can be deployed on a global basis. The Company will continue to identify diverse and skilled security personnel, and develop innovative solutions across the full spectrum of security needs.
The following summary of the Company’s financial condition and results of operations should be read in conjunction with the Company’s unaudited consolidated financial statements for the three months ending March 31, 2016, which are included herein. The financial information of Enigma-Bulwark, Ltd., and its wholly-owned subsidiaries as of March 31, 2016, PearTrack Systems Group, Ltd., Ecologic Car Rentals, Inc. and Ecologic Products, Inc. is provided below on a consolidated basis, unless otherwise indicated. All significant intercompany accounts and transactions have been eliminated.
Balance Sheet
As of March 31, 2016, the Company had total assets of $1,343,802 compared with total assets of $4,570,656 at December 31, 2015. The decrease in total assets of $3,226,854 is attributable to a decrease in cash of $10,629, an increase in accounts receivable of $808, an increase in other receivables of $2,795, a decrease in prepaid expenses of $302, an increase in investment in securities of $120,619, depreciation of $118, and impairment of intangible assets of $3,340,027.
As of March 31, 2016, the Company had total liabilities of $5,691,885 compared with total liabilities of $5,840,217 at December 31, 2015. The decrease in total liabilities of $148,332 is attributable to a decrease in accounts payable and accrued expenses of $144,247, a decrease in deferred revenue of $225,000, an increase in related party payables of $42,639, and an increase in related party convertible notes payable, net of unamortized discount, of $178,276.
21
Results of Operations
Three months ended March 31, 2016, compared to three months ended March 31, 2015.
| For the three months ended |
| |||||
| March 31, 2016 |
| March 31, 2015 |
| |||
Revenue | $ | 225,863 |
| $ | 2,387 |
| |
|
|
|
|
|
|
| |
Cost of sales | $ | 4,380 |
| $ | 4,012 |
| |
|
|
|
|
|
|
| |
Gross profit (loss) | $ | 221,483 |
| $ | (1,625 | ) | |
|
|
|
|
|
|
| |
General and administrative expenses | $ | 202,418 |
| $ | 457,975 |
| |
|
|
|
|
|
|
| |
Impairment losses | $ | 3,340,027 |
| $ | –– |
| |
|
|
|
|
|
|
| |
Operating loss | $ | (3,320,962 | ) | $ | (459,600 | ) | |
|
|
|
|
|
|
| |
Gain on extinguished debt | $ | 178,786 |
| $ | 305,576 |
| |
|
|
|
|
|
|
| |
Interest expense | $ | (36,266 | ) | $ | (27,224 | ) | |
|
|
|
|
|
|
| |
Discount amortization | $ | (25,025 | ) | $ | (21,330 | ) | |
|
|
|
|
|
|
| |
Realized gain on currency translation | $ | 90 |
| $ | 567 |
| |
|
|
|
|
|
|
| |
Net loss | $ | (3,203,377 | ) | $ | (202,011 | ) | |
|
|
|
|
|
|
| |
Net comprehensive income (loss) | $ | 120,619 |
| $ | (12,346 | ) | |
|
|
|
|
|
|
| |
Net loss and comprehensive income (loss) | $ | (3,082,758 | ) | $ | (214,357 | ) |
Revenue
For the three months ended March 31, 2016, revenue in the amount of $225,863 consisted of $225,000 in consulting services fees and $863 in limited sales resulting from test marketing of PearTrack tracking products.
For the three months ended March 31, 2015, revenue in the amount of $2,387 consisted of limited sales resulting from test marketing of PearTrack tracking products.
At March 31, 2016, the Company had not yet begun full operations, generating limited test market sales.
Cost of sales
For the three months ended March 31, 2016 and 2015, cost of sales in the amount of $4,380 and $4,012 consisted of limited product and system costs related to the PearTrack product line.
At March 31, 2016, the Company had not yet begun full operations, generating limited test market sales.
General and Administrative Expenses
| For the three months ended |
|
|
| |||||
| March 31, 2016 |
| March 31, 2015 |
| Variances |
| |||
Legal and accounting fees | $ | –– |
| $ | 2,500 |
| $ | (2,500 | ) |
Management fees |
| 183,251 |
|
| 183,249 |
|
| 2 |
|
Other outside services |
| 250 |
|
| 3,750 |
|
| (3,500 | ) |
Amortization of stock options/stock compensation |
| 4,235 |
|
| 178,450 |
|
| (174,215 | ) |
Depreciation and amortization |
| 118 |
|
| 45,855 |
|
| (45,737 | ) |
Rent expense |
| 1,314 |
|
| 18,741 |
|
| (17,427 | ) |
Office supplies and miscellaneous expenses |
| 13,250 |
|
| 25,430 |
|
| (12,180 | ) |
Total general and administrative expenses | $ | 202,418 |
| $ | 457,975 |
| $ | (255,557 | ) |
General and administrative expenses in the amount of $202,418 for the three months ended March 31, 2016, were comprised of $183,251 of management fees, $250 of other consulting fees, $4,235 of amortization of stock compensation, $118 of depreciation and amortization, $1,314 of rent expense, and $13,250 of office overhead and other general and administrative expenses.
22
General and administrative expenses in the amount of $457,975 for the three months ended March 31, 2015, were comprised of $2,500 of legal and accounting fees, $183,249 of management fees, $3,750 of other consulting fees, $178,450 of amortization of stock compensation, $45,855 of depreciation and amortization, $18,741 of rent expense, and $25,430 of office overhead and other general and administrative expenses.
General and administrative expenses of $202,418 for the three months ended March 31, 2016, as compared to $457,975 for the three-month period ended March 31, 2015, resulted in a decrease in general and administrative expenses for the current period of $255,557. The decrease in general and administrative expenses of $255,557 was attributable to the following items:
·a decrease in legal, accounting and professional fees of $2,500, due to no expenses incurred in the current period;
·an increase in management of $2 due rounding differences; and
·a decrease in other consulting fees of $3,500 due to the expiration of a consulting agreement, resulting in no fees paid in the current period; and
·a decrease in amortization of stock options/stock compensation of $174,215, due to fully amortized deferred stock compensation in the prior year, resulting in a decrease of $141,015, and the cancellation of previously expensed stock compensation resulting in a decrease of $33,200 in the current period; and
·a decrease in depreciation and amortization expense of $45,737, due to the impairment of intellectual property, resulting in a decrease in amortization expense in the current period of $45,855, and the acquisition of office equipment, resulting an increase in depreciation expense of $118 in the current period, compared to no expense for the same period in the prior year; and
·a decrease in rent expense of $17,427, primarily due to the sub-lease of office space; and
·a decrease in other general and administrative expenses of $12,180, due to increases in research and development of $6,616 and taxes, licenses and permits of $1,243, and decreases in meals, entertainment and promotion of $2,340, office expense of $2,833, telephone of $3,493, travel of $10,396 and other office supplies and miscellaneous expenses of $977.
General and administrative expenses for the three months ended March 31, 2016 and 2015, were incurred primarily for the purpose of advancing the Company closer to its financing and operating goals.
Net Loss
During the three months ended March 31, 2016, the Company incurred a net operating loss of $3,203,377, compared with a net operating loss of $202,011 for the three months ended March 31, 2015. The increase in net loss of $3,001,366 is attributable to an increase in revenue of $223,476, an increase in cost of goods sold of $368, a decrease in general and administrative expenses of $255,557, an increase in impairment losses of $3,340,027, a decrease in gain on extinguishment of debt of $126,790, an increase in interest expense of $9,042, an increase in discount amortization of $3,695, and a decrease in realized gains on foreign currency changes of $477.
During the three months ended March 31, 2016, the Company generated net comprehensive income of $120,619, compared with a net comprehensive loss of $12,346 for the three months ended March 31, 2015. The increase in net comprehensive income of $132,965 is attributable to a decrease in unrealized gain on currency translation of $4,541, and an increase in unrealized gain on securities of $137,506.
Liquidity and Capital Resources
Working Capital Deficit |
|
|
|
|
|
| ||||
| March 31, 2016 |
| December 31, 2015 |
| Increase (decrease) |
| ||||
Current assets | $ | 8,543 |
| $ | 15,871 |
| $ | (7,328 | ) | |
Current liabilities |
| 2,760,079 |
|
| 3,086,687 |
|
| (326,608 | ) | |
Working capital (deficit) | $ | (2,751,536 | ) | $ | (3,070,816 | ) | $ | (319,280 | ) |
As of March 31, 2016, and December 31, 2015, respectively, the Company had $4,140 and $14,679 in cash.
The Company had a working capital deficit of $2,751,536 as of March 31, 2016, compared to a working capital deficit of $3,070,816 at December 31, 2015. The decrease in working capital deficit of $319,280 is primarily attributable to a decrease in cash of $10,629, an increase in accounts receivable of $808, an increase in other receivables of $2,795, a decrease in prepaid insurance of $302, a decrease in accounts payable and accrued expenses of $144,247, a decrease in deferred revenue of $225,000, and an increase in related party payable of $42,639.
Cash Flows | For the three months ended |
|
|
|
| ||||
| March 31, 2016 |
| March 31, 2015 |
| Increase (decrease) |
| |||
Net cash used by operating activities | $ | (10,629 | ) | $ | (67,057 | ) | $ | 56,428 |
|
Net cash provided by investing activities |
| –– |
|
| –– |
|
| –– |
|
Net cash provided by financing activities |
| –– |
|
| 35,034 |
|
| (35,034 | ) |
Net decrease in cash | $ | (10,629 | ) | $ | (32,023 | ) | $ | 21,394 |
|
23
Cash Flows from Operating Activities
During the three months ended March 31, 2016, the Company used $10,629 of cash flow from operating activities, compared with $67,057 for the three months ended March 31, 2015. The decrease in cash used by operating activities of $56,428 is primarily attributable to an increase in the net loss from operations of $3,001,366; increases in accruals converted to related party loans of $49,502, discount amortization of $3,695, and impairment losses of $3,340,027; decreases in stock compensation/stock option amortization of $174,214, depreciation and amortization of $45,737, gain on extinguished debt of $126,790, and foreign exchange gains of $477; increases in the changes in accounts receivable of $41, prepaid expenses of $34, and accounts payable and accrued expenses of $3,341; and decreases in the changes in refunds and claims receivable of $9,120, other receivables of $2,795, deferred revenue of $225,000, and related party payables of $9,247.
Cash Flows from Investing Activities
During the three months ended March 31, 2016 and 2015, the Company was provided with/used no cash flows from investing activities.
Cash Flows from Financing Activities
During the three months ended March 31, 2016, the Company was provided with no cash flows from financing activities, compared with $35,034 during the three months ended March 31, 2015. The decrease in cash flows provided by financing activities of $35,034 is attributable to decreases in repayments of related party loans of $8,336 and proceeds from the issuance of common stock of $43,370.
As of March 31, 2016, affiliates and related parties are due a total of $3,737,302, which is comprised of promissory notes to related parties, net of unamortized discounts of $243,524, in the amount of $3,432,036; accrued compensation in the amount of $236,550; and reimbursable expenses/cash advances to the Company in the amount of $68,716; for a net increase of $220,915. During the three months ended March 31, 2016, promissory notes to related parties, net of unamortized discounts, increased by $178,276, accrued compensation increased by $30,000, and reimbursable expenses/cash advances owed to related parties increased by $12,639. All outstanding promissory notes to related parties bear interest at a rate of 5 to 7 percent per annum, are due and payable within between one (1) year of written demand and by December 31, 2023, or upon certain equity funding, and are convertible into the Company’s common stock at a price of between $0.05 and $0.25 per share.
The Company’s principal sources of funds have been from sales of the Company’s common stock and loans from related parties.
Contractual Obligations
The Company is a smaller reporting company as defined by Rule 12b-2 of the Securities Exchange Act of 1934 and is not required to provide the information under this item.
Going Concern
The Company has incurred losses since inception resulting in a current period net loss of $3,082,758, an accumulated deficit of $16,664,004, and a working capital deficit of $2,751,536, and further losses are anticipated. The Company’s ability to continue as a going concern is dependent upon its ability to generate profitable operations in the future and/or to obtain the necessary financing to meet its obligations and repay its liabilities arising from normal business operations when they come due, which may not be available at commercially reasonable terms. There can be no assurance that the Company will be able to continue to raise funds, in which case the Company may be unable to meet its obligations and the Company may cease operations. These factors, among others, raise substantial doubt about the Company’s ability to continue as a going concern.
The unaudited consolidated financial statements included with this quarterly report have been prepared on the going concern basis which assumes that adequate sources of financing will be obtained as required and that the Company’s assets will be realized, and liabilities settled in the ordinary course of business. Accordingly, the unaudited consolidated financial statements do not include any adjustments related to the recoverability of assets and classification of assets and liabilities that might be necessary should the Company be unable to continue as a going concern.
Off-Balance Sheet Arrangements
The Company has no off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on the Company’s financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material to stockholders.
24
Critical Accounting Policies
The discussion and analysis of the Company’s financial condition and results of operations are based upon the Company’s audited consolidated financial statements, which have been prepared in accordance with the accounting principles generally accepted in the United States of America. Preparing consolidated financial statements requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenue, and expenses. These estimates and assumptions are affected by management’s application of accounting policies. The Company believes that understanding the basis and nature of the estimates and assumptions involved with the following aspects of the Company’s consolidated financial statements is critical to an understanding of its consolidated financial statements. The following should be read in conjunction with Note 2 to the Company’s consolidated financial statements, “Summary of Significant Accounting Policies”:
Impairment reviews
Management is required to perform tests annually, or more often if necessary, for impairment of its finite lived and indefinite lived assets, to determine if events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable.
Impairment testing is an area involving management judgement, requiring assessment as to whether the carrying value of assets can be supported by the net present value of future cash flows derived from such assets using cash flow projections which have been discounted at an appropriate rate. In calculating the net present value of the future cash flows, certain assumptions are required to be made in respect of highly uncertain matters, including management’s expectations of:
·growth in EBITDA, calculated as adjusted operating profit before depreciation and amortization;
·long term growth rates; and
·the selection of discount rates to reflect the risks involved.
The Company prepares five-year projections and uses these as the basis for its impairment reviews. Changing the assumptions selected by management, in particular the discount rate and growth rate assumptions used in the projections, could significantly affect the Company’s impairment evaluation and, hence, results.
The Company’s review for impairment also includes the evaluation of key assumptions related to sensitivity in the projections. Included are estimates for varying levels of growth, including aggressive, median, and conservative. In the Company’s evaluation, the conservative level of growth is utilized. For additional information, see Impairment of Long-Lived Assets under Note 2, Summary of Significant Accounting Policies, in the Notes to the Consolidated Financial Statements contained within this Quarterly Report.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is a smaller reporting company as defined by Rule 12b-2 of the Securities Exchange Act of 1934 and is not required to provide the information under this item.
ITEM 4. CONTROLS AND PROCEDURES
Management’s Report on Disclosure Controls and Procedures
The Company maintains disclosure controls and procedures that are designed to ensure that information required to be disclosed in the Company’s reports filed under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission's rules and forms, and that such information is accumulated and communicated to the Company’s management, including the Company’s president, chief executive officer and chief financial officer to allow for timely decisions regarding required disclosure. In designing and evaluating the Company’s disclosure controls and procedures, the Company’s management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and the Company’s management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
As of March 31, 2016, the end of the Company’s period covered by this quarterly report, the Company carried out an evaluation, under the supervision and with the participation of the Company’s president, chief executive officer and chief financial officer, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures. Based on the foregoing, the Company’s president, chief executive officer and chief financial officer concluded that the Company’s disclosure controls and procedures were effective as of the end of the period covered by this quarterly report.
Changes in Internal Control over Financial Reporting
There have been no changes in the Company’s internal controls over financial reporting that occurred during the three months ended March 31, 2016, that have materially or are reasonably likely to materially affect, the Company’s internal controls over financial reporting.
25
PART II
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company knows of no material existing or pending legal proceedings against it, nor is the Company involved as a plaintiff in any material proceeding or pending litigation. There are no proceedings in which any of the Company’s directors, officers or affiliates, or any registered or beneficial shareholder, is an adverse party or has a material interest adverse to the Company.
ITEM 1A. RISK FACTORS
The Company is a smaller reporting company as defined by Rule 12b-2 of the Securities Exchange Act of 1934 and is not required to provide the information under this item.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
There were no unregistered securities issued by the Registrant during the current period, including sales of reacquired securities, as well as new issues, securities issued in exchange for property, services, or other securities, and new securities resulting from the modification of outstanding securities.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. MINE SAFETY STANDARDS
Not Applicable
ITEM 5. OTHER INFORMATION
None.
26
ITEM 6. EXHIBITS
*Filed herewith.
**Pursuant to Rule 406T of Regulation S-T, these interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, is deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise is not subject to liability under these sections.
27
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| ENIGMA-BULWARK, LTD. |
|
|
|
|
Dated: June 6, 2023 | /s/ Clive Oosthuizen |
| Clive Oosthuizen |
| President and CEO |
|
|
|
|
Dated: June 6, 2023 | /s/ Calli Bucci |
| Calli Bucci |
| Chief Financial Officer |
28
ARTICLES OF INCORPORATION
OF
ENIGMA-BULWARK, LTD.
(A Nevada Corporation)
Enigma-Bulwark, Ltd. (the “Corporation”), a corporation incorporated under the laws of the state of Nevada on September 30, 2005 under the name Heritage Explorations, Inc., hereby amends and restates its Articles of Incorporation, to embody in one document its original articles and the subsequent amendments thereto, pursuant to Sections 78.390 and 78.403 of the Nevada Revised Statutes (“NRS”).
Amended and Restated Articles of Incorporation were approved and adopted by the Board of Directors (the “Board of Directors”) of the Corporation on September 30, 2019. Upon the recommendation of the Board of Directors, the stockholders of the Corporation holding a majority of the voting power approved and adopted these Amended and Restated Articles of Incorporation by an action by written consent of at least 31,805,126 shares of common stock, representing 51.45% of the Corporation’s outstanding common stock on September 30, 2019. As a result, these Amended and Restated Articles of Incorporation were authorized and adopted in accordance with the Nevada Revised Statutes.
These Amended and Restated Articles of Incorporation correctly set forth the text of the Corporation’s Articles of Incorporation as amended up to and by these Amended and Restated Articles of Incorporation.
ARTICLE 1.NAME OF CORPORATION
1.1.The name of the Corporation is Enigma-Bulwark, Limited.
2.1.The name and address of its registered agent is Parasec, 318 North Carson Street, Suite 208, Carson City, Nevada.
2.2.The Corporation may also maintain offices at such other places within or without the State of Nevada as it may from time to time determine. Corporate business of every kind and nature may be conducted, and meetings of directors and shareholders may be held outside the State of Nevada with the same effect as if in the State of Nevada.
ARTICLE 3.PURPOSE AND DURATION
3.1.The purpose for which the Corporation is to engage in any lawful activity within or without the State of Nevada.
3.2.The Corporation shall continue in existence perpetually unless sooner dissolved according to law.
ARTICLE 4.CAPITAL STOCK
4.1.Authorized Capital Stock. The aggregate number of shares which this Corporation shall have authority to issue is two hundred seventy five million (275,000,000) shares, consisting of (a) two hundred fifty million (250,000,000) shares of Common Stock, par value $0.001 per share (the “Common Stock”) and (b) twenty five million (25,000,000) shares of preferred stock, par value $0.001 per share (the “{Preferred Stock”), issuable in one or more series as hereinafter provided. A description of the classes of shares and a statement of the number of shares in each class and the relative rights, voting power, and preferences granted to them, and restrictions imposed upon them, shares of each class are as set forth in this Article 6.
4.2.Common stock. Each share of Common Stock shall have, for all purposes one (1) vote per share. Subject to the preferences applicable to Preferred Stock outstanding at any time, the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions in cash, property or shares of stock of the Corporation as may be declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefrom. The holders of Common Stock issued and outstanding have and possess the right to receive notice of shareholders’ meetings and to vote upon the election of directors or upon any other matter as to which approval of the outstanding shares of Common Stock or approval of the common shareholders is required or requested.
4.3.Preferred Stock. The shares of Preferred Stock may be issued from time to time in or more series. The Board of Directors is authorized, by resolution adopted and filled in accordance with law, to provide for the issue of each series of shares of Preferred Stock. Each series of shares of Preferred Stock:
(a)may have such voting powers, full or limited or may be without voting powers;
(b)may be subject to redemption at such time or times and at such prices as determined by the Board of Directors;
(c)may be entitled to receive dividends (which may be cumulative or non-cumulative) at such rate or rates, on such conditions and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or series of stock;
(d)may have such rights upon the dissolution of, or upon any distribution of the assets of, the Corporation;
(e)may be made convertible into, or exchangeable for, shares of any other class or classes or of any other series of the same or any other class or classes of stock of the Corporation or such other corporation or other entity at such price or prices or at such rates of exchange and with such adjustments;
(f)may be entitled for the benefit of a sinking fund to be applied to the purchase or redemption of shares of such series in such amount or amounts;
(g)may be entitled to the benefit of conditions and restrictions upon the creation of indebtedness of the Corporation or any subsidiary, upon the issue of any additional shares (including additional shares of such series or of any other series) and upon the payment of dividends or the making of other distributions on, and the purchase, redemption or other acquisition by the Corporation or any subsidiary of, any outstanding shares of the Corporation; and
(h)may have such other relative, participating, optional or other special rights, qualifications, limitations or restrictions thereof, in each case as shall be stated in said resolution or resolutions providing for the issue of such shares of Preferred Stock. Shares of Preferred Stock of any series that have been redeemed or repurchased by the Corporation (whether through the operation of a sinking fund or otherwise) or that, if convertible or exchangeable, have been converted or exchanged in accordance with their terms, shall be retired and have the status of authorized and uninsured shares of Preferred Stock of the same series and may be reissued as a part of the series of which they were originally a part or may, upon the filing of an appropriate certificate with the Secretary of State of the State of Nevada, be reissued as part of a new series of shares of Preferred Stock to be created by resolution or resolutions of the Board of Directors or as part of any other series of shares of Preferred Stock, all subject to the conditions or restrictions on issuance set forth in the resolution or resolutions adopted by the Board of Directors providing for the issue of any series of shares of Preferred Stock.
ARTICLE 5.BOARD OF DIRECTORS
5.1.Number. The Board of Directors of the Corporation shall consist of such number of persons, not less than one and not to exceed 9, as shall be determined in accordance with the bylaws from time to time.
ARTICLE 6.NO FURTHER ASSESSMENTS
6.1.The capital stock, after the amount of the subscription price determine by the Board of Directors and paid in money, property, or services, as the Board of Directors shall determine, shall be subject to no further assessment to pay the debts of the Corporation, and no stock issued as fully paid up shall ever be assessable or assessed, and these Articles of Incorporation shall not and cannot be amended, regardless of the vote therefore, so as to amend, modify or rescind this Article 6.
ARTICLE 7.NO PREEMPTIVE RIGHTS
7.1.Except as otherwise set forth herein, none of the shares of the Corporation shall carry with them any preemptive right to acquire additional or other shares of the Corporation and no holder of any stock of the Corporation shall be entitled, as of right, to purchase or subscribe for any part of any unissued shares of stock of the Corporation or for any additional shares of stock, of any class or series, which may at any time be issued, whether now or hereafter authorized, or for any rights options, or warrants to purchase or receive shares of stock or for any bonds, certificates of indebtedness, debentures, or other securities.
ARTICLE 8.NO CUMULATIVE VOTING
8.1.There shall be no cumulative voting of shares.
ARTICLE 9.ELECTION NOT TO BE GOVERNED
BY PROVISIONS OF NRS 78.411 TO 78.444
9.1.The Corporation, pursuant to NRS 78.434, hereby elects not to be governed by the provisions of NRS 78.411 to 78.444, inclusive.
ARTICLE 10.INDEMNIFICATION OF OFFICERS AND DIRECTORS
10.1.The Corporation shall indemnify its directors, officers, employees, fiduciaries and agents to the fullest extend permitted under the Nevada Revised Statutes.
10.2.Every person who was or is a party or is threatened to be made a party to or is involved in any action, suit or proceedings, whether civil, criminal, administrative or investigative, by reason of the fact that he or a person for whom he is the legal representative is or was a director officer of the corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless to the fullest extent legally permissible under the law of the State of Nevada from time to time against all expenses, liability and loss (including attorney’s fees, judgements, fines and amounts paid or to be paid in settlement) reasonably incurred or suffered by him in connection therewith. Such right of indemnification shall be a contract right that may be enforced in any manner desired by such person. Such right of indemnification shall not be exclusive of any other right which such directors, officers or representatives may have or hereafter acquire and, without limiting the generality of such statement, they shall be entitled to their respective rights of indemnification under any By-Law, agreement vote of stockholders, provision of law or otherwise, as well as their rights under this Article.
10.3.Without limiting the application of the foregoing, the Board of Directors may adopt By-Laws from time to time with respect to indemnification to provide at all times the fullest indemnifications permitted by the laws of the State of Nevada and may cause the Corporation to purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred in any such capacity or arising out of such status, whether or not the Corporation would have the power to indemnify such person.
10.4.The private property of the stockholders, directors and officers shall not be subject to the payment of corporate debt to any extent whatsoever.
10.5.No director, officer or shareholder shall have any personal liability to the Corporation or its stockholders for damages for breech of fiduciary duty as a director or officer, except that this provision does not eliminate nor limit in any way the liability of a director or officer for:
(a)acts or omissions which involve intentional misconduct, fraud or knowing violation of law;
(b)the payment of dividends in violation of Nevada Revised Statutes 78.300.
IN WITNESS WHEREOF, we have hereunto set our hands this 30th day of September 2019, hereby declaring and certifying that the facts stated hereinabove are true.
/s/ Kyle W. Withrow
By:Kyle W. Withrow
Its:Chief Executive Officer and President
LICENSE AGREEMENT
This License Agreement (this “Agreement”) is made this 30th day of June 2014 (the
“Effective Date”), by and between AudioEye, Inc., a Delaware corporation (“Licensor”), and
PearTrack Systems Group Limited, a Nevada corporation (“Licensee”) (each a “Party” and
together, the “Parties”).
RECITALS
R1
Licensor is a for-profit corporation in the business of developing Internet content
publication and distribution software that enables conversion of any media into accessible
formats and allows for real time distribution to end users on any Internet-connected device.
R2
Licensor’s relevant consuming public consists of private companies and public
organizations seeking to enable easy-to-navigate Internet accessibility for their online content to
seniors, learning disabled, visually impaired, print impaired, dyslexic, non-English speaking and
a host of other website visitors.
R3
Licensor provides services throughout the United States.
R4
Licensor is the owner of certain proprietary materials (the “Proprietary
Materials”) defined in Section 1.15 and described in more detail in Appendix A, incorporated
herein by reference.
R5
Licensor wishes to license certain of the Proprietary Materials to Licensee for
Licensee’s use in the Territory.
R6
Licensee wishes to license the Proprietary Materials and use them in the Territory
to develop and sell products and services throughout the Territory to the Targeted Market.
1
R7
Licensee agrees and acknowledges that the Proprietary Materials are Licensor’s
valuable property and that Licensor is the sole owner of the Proprietary Materials.
NOW THEREFORE, in consideration of the mutual promises, covenants, and
agreements herein, the Parties, intending to be legally bound, agree as follows:
SUBSTANTIVE PROVISIONS
1.
DEFINITIONS
The following terms shall have the indicated meanings when used in this Agreement:
1.1
Affiliate. With respect to any specified Person, any other Person directly or
indirectly Controlling or Controlled by, or under direct or indirect common Control with, such
specified Person.
1.2
Confidential Information. Confidential Information shall be information
disclosed by one Party to the other Party (i) in writing or in other tangible form, or (ii) orally or
in other intangible form, as described and defined herein. Confidential Information, with respect
to the recipient Party, shall include, but is not limited to, information, business methods, business
practices, marketing plans, operations information, employee information, customer lists,
financial information, business records, trade secrets, source code, documents or materials
provided by the disclosing Party or on behalf of the disclosing Party to the recipient Party,
together with any notes, e-mails, analyses, memoranda, computer records or other materials
prepared by the recipient Party which contain or reflect such documents, information or
materials, but shall exclude any such information, documents or materials which: (i) are lawfully,
to the recipient Party’s knowledge, in the possession of the recipient Party prior to the date of
2
this Agreement; (ii) were available in the public domain other than through a violation of the
recipient Party’s obligations under this Agreement; (iii) the recipient Party developed
independently without reference to the Confidential Information; or (iv) is furnished to the
recipient Party by a third party not under an obligation of confidentiality to the disclosing Party
known to the recipient Party.
1.3
Control. With respect to any specific Person, the power to direct the management
and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “Controlling” and “Controlled” have
correlative meanings.
1.4
End User. Any customer within the United States that obtains Product from
Licensee for use, installation and/or application.
1.5
Goodwill. The reputation, quality, commercial recognition and public perception
of any Mark and/or the content included in the Proprietary Materials and/or their use. All
Goodwill arising solely from Licensee’s use of the Proprietary Materials shall inure solely to the
benefit of Licensor. Neither during the Term of this Agreement nor at any time thereafter shall
Licensee assert any claim or ownership right to the Goodwill.
1.6
Including. As used in this Agreement, the word “including” shall mean
“including by way of illustration only and not as a limitation.”
1.7
Intellectual Property. All intellectual property associated with the Proprietary
Materials, all materials associated with the implementation thereof, and all Marks and Goodwill.
Intellectual Property includes: (a) any idea, formula or formulation, design, concept, technique,
technology, invention, discovery, or improvement regardless of patentability, patents, patent
3
applications, trade secrets, Know How, trade names, trademarks, and service marks; (b) any
work of authorship, regardless of copyrightability, manuals, copyrights and any moral rights
recognized by law; (c) any other similar intellectual property including those defined under the
Patent Act (35 U.S.C. §§ 101 et seq.), the Copyright Act (17 U.S.C. §§ 101 et seq.), the Lanham
Act (15 U.S.C. §§ 1051 et seq.), and the Uniform and Arizona Trade Secrets Acts (A.R.S. §§ 44-
401 et seq.); (d) all Goodwill including the Goodwill associated with the preceding; and (e) the
Marks. Licensor is the sole owner of all Intellectual Property and it is Licensor’s valuable asset.
1.8
Intellectual Property Rights. Licensor’s legal rights to and/or interests in the
Intellectual Property including those rights defined under the Patent Act (35 U.S.C. §§ 101 et
seq.), the Copyright Act (17 U.S.C. §§ 101 et seq.), the Lanham Act (15 U.S.C. §§ 1051 et seq.),
and the Uniform and Arizona Trade Secrets Acts (A.R.S. §§ 44-401 et seq.).
1.9
Know How. Expert skill, information or body of knowledge that (a) imparts an
ability to cause a desired result, (b) is not readily available and (c) is outside the public domain.
1.10 Loss. All dues, penalties, fines, costs, amounts paid in settlement, liabilities,
obligations, taxes, liens, losses, expenses and fees, including court costs and reasonable attorney
fees and expenses arising out of any actions, suits, proceedings, hearings, investigations, charges,
complaints, claims, demands, injunctions, judgments, orders, decrees and rulings.
1.11 Mark; Marks. Trademarks and/or service marks whether or not registered; logos;
logotypes; and/or symbols indicating, representing or evidencing a source of origin in Licensor
and/or Licensor’s endorsement, approval or sponsorship; including any Goodwill incorporated
therein.
4
1.12 Material Breach. Any violation of this Agreement which excuses the non-
breaching Party from further performance and permits the non-breaching Party to commence
legal proceedings to seek equitable relief and/or damages.
1.13 Person. Any individual, corporation, limited liability company, partnership, firm,
joint venture, association, joint-stock company, trust or other entity, or any government or
agency or political subdivision, department or instrumentality thereof.
1.14 Product. Any one or more of the products and services created by Licensee that
specifically incorporate, or make use of in the course of development, the Proprietary Materials,
including all published and/or printed versions of same in any medium, directed toward the
Targeted Market.
1.15 Proprietary Materials. Materials over which Licensor has title or ownership
rights including: (a) Confidential Information of Licensor; (b) all content in the materials
developed by Licensor; (c) all source code, software, hardware, manuals, texts, sounds, visual
aides, demonstrations, photographs, designs, and the Know How and training necessary to
implement them; and (d) the Intellectual Property. A more specific description of the Proprietary
Materials is provided in Appendix A to this Agreement, incorporated herein by reference. The
Proprietary Materials are a valuable asset of Licensor.
1.16 Targeted Market. The private sector corporate and enterprise markets for mobile
asset monitoring, GPS tracking and mobile communications within logistics, transportation,
maritime shipping, trucking & rail, vending machine, intermodal containers, and other
applications.
5
1.17 Technology. The creation and/or application and/or installation and/or and use of
Product and the information and Know How necessary to do so.
1.18 Term. The term of this Agreement as set forth in Section 3.1 of this Agreement.
1.19 Territory. Worldwide.
2.
LICENSE OF PROPRIETARY MATERIALS
2.1
Grant of Right. Licensor hereby grants to Licensee a non-exclusive, non-
transferable license during the Term and within the Territory, subject to all of the terms and
conditions contained in this Agreement, to: (1) use the Proprietary Materials to create, promote
and advertise Product in the Territory; and (2) use the Proprietary Materials to market, sell and
distribute Product in the Territory.
2.2
Right of Licensor to Use Proprietary Materials. Subject to the limitations set
forth herein, nothing in this Agreement shall be construed to limit the right of Licensor or any of
its agents or representatives, or any third parties licensed or otherwise authorized by Licensor, to
use the Proprietary Materials including the Marks or reproductions of same for any activity
within the Territory.
2.3
Limitation of Appointment. Licensee shall have no right to market or sell
Product to customers other than in the Targeted Market.
2.4
No Transfer of Ownership. No ownership interest in the Proprietary Materials
and Goodwill is transferred to Licensee hereunder nor shall anything in this Agreement be
construed as a transfer to Licensee of any rights to or interests in the Proprietary Materials and
Goodwill. Subject to the provisions of Section 6.3, any and all improvements, enhancements,
6
adaptations, derivatives, build offs, and modifications of the Proprietary Materials created by
Licensee during the Term of this Agreement and at any time thereafter shall be the exclusive
property of Licensor.
2.5
Licensee Pricing. Licensee may determine and fix its own pricing for Product.
3.
TERM; RENEWAL; TERMINATION
3.1
Term. This Agreement shall commence on the Effective Date and continue in
perpetuity (“Term”).
3.2
Termination Events. The Parties jointly may terminate this Agreement at any
time by mutual agreement in a writing signed by both of them. Further, either Party may
immediately terminate this Agreement upon written notice to the other Party if the other Party:
3.2.1 (a) ceases to exist or elects to dissolve; (b) becomes insolvent, makes or
attempts a general assignment for the benefit of its creditors; (c) suffers or permits the
appointment of a receiver for its business assets; or (d) avails itself of or becomes subject to any
proceeding under any federal Bankruptcy Act or other federal or state statute relating to
reorganization, insolvency or the protection of the rights of creditors; or
3.2.2 commits a material breach of this Agreement and the breaching Party of
written notice of the breach does not cure the breach within thirty (30) days after receipt.
3.3
Termination by Licensor. Notwithstanding the foregoing Section 3.2, Licensor
may immediately terminate this Agreement upon written notice to Licensee if Licensee:
7
3.3.1 fails to make any required payment in full to Licensor on the date due as
required by this Agreement and fails to cure the default within fifteen (15) days after receiving
written notice of the default; or
3.3.2 without the prior written consent of Licensor, attempts to distribute,
exchange or offer or promise to distribute or exchange to a third party one or more copies of the
Proprietary Materials, whether by sale, license, lease or otherwise; provided, however, that this
Section 3.3.2 shall not apply to the sale, lease or licensing of Product, which may include
elements of the Proprietary Materials and for which a fee is paid to Licensor as provided herein;
or
3.3.3 attempts an assignment of its rights under this Agreement except as
provided for in this Agreement, unless otherwise agreed by Licensor in writing; or
3.3.4 any entity acquires all or substantially all of the Controlling shares of
Licensee or any other change of Control of Licensee occurs.
3.4
Termination by Licensee. Licensee may terminate this Agreement upon written
notice to Licensor if a court of competent jurisdiction enters a final judgment that any portion of
the Proprietary Materials violates the intellectual property rights of a third party and the
judgment is not under appeal, and Licensor fails to cure the infringement within ninety (90) days
of entry of the judgment. During the ninety (90) days Licensor may, at its option and expense,
procure for Licensee the right to continue to distribute Product subject to the judgment.
3.5
Rights Cumulative. The Parties’ rights as set forth in this Section 3 are
cumulative in addition to any other rights the parties may have at law or in equity.
8
3.6
Fulfillment of Obligations. The termination of this Agreement shall not
otherwise release either Party from its obligation to pay any sum that may be then or thereafter
owing to the other Party, nor operate to discharge any liability that had been incurred by either
Party prior to termination. All payments due Licensor prior to the date of termination shall be
paid to Licensor within thirty (30) days of the date of termination. Except as provided in the
preceding sentence, either Party shall not, by reason of the termination of this Agreement, be
liable to the other Party for any damages (whether direct, consequential or incidental to and
including loss of profit or prospective profits of any kind) sustained or arising out of any such
termination.
3.7
Effect of Termination. Upon termination of this Agreement, Licensee may
continue to dispose of its existing inventory of Product with the prior written consent of
Licensor, but Licensee shall immediately cease to use the Proprietary Materials including the
Marks and shall cease to market, advertise, sell, lease and/or license Product so long as it
contains any Proprietary Materials; provided, however, that Licensee shall have the right to meet
and complete, and the foregoing shall not restrict or preclude in any way Licensee from meeting
or completing, all of its existing contractual obligations to End Users with respect to sales, leases
or licenses for Product entered into prior to termination of this Agreement; provided, further, that
this provision shall not restrict Licensee from marketing, advertising, selling, leasing and/or
licensing Product so long as it no longer contains any Proprietary Materials. All new orders for
Product that Licensee is not contractually obligated to End Users to fulfill and which remain
unshipped as of the date of termination may be cancelled by Licensor if delivery is required
thirty (30) or more days after the date of termination.
9
3.8
Return of Property. Within fifteen (15) days of termination of this Agreement
Licensee shall return to Licensor or destroy all of the Proprietary Materials in Licensee’s
possession or control including all advertising, marketing and promotional materials.
3.9
Post-termination Disclosure of Confidential Information. No Confidential
Information of either Party may be disclosed by the other Party following termination of this
Agreement, except as provided herein.
3.10 Survival. The following Sections of this Agreement shall survive the termination
of this Agreement: 1, 3.8, 3.9, 3.10, 3.111, 4.9, 4.10, 5.2, 7, 8, 9, 10.2, 11, 12.1 and 13. Certain
other provisions may survive as indicated within their respective sections of this Agreement.
3.11 Remedies Upon Termination. Licensee acknowledges that its failure to cease
marketing and distribution of Product containing Proprietary Materials upon the termination of
this Agreement, except as herein permitted, may result in immediate irreparable damage to
Licensor. Licensee further acknowledges that Licensor will have no adequate remedy at law for
such failure and in the event of any such failure Licensor shall be entitled to seek equitable relief
by way of temporary and permanent injunctions and such other and further relief as any court of
competent jurisdiction may deem just and proper.
4.
OBLIGATIONS OF LICENSEE
4.1
Sub-Licensees. Licensee shall not appoint any sub-Licensee or agent to promote
and/or distribute Product without Licensor’s prior written consent; provided, however, that this
provision shall not apply to appointments of Affiliates of Licensee in such capacity.
Notwithstanding Licensor’s consent to Licensee’s appointment of sub-Licensees or agents,
Licensee shall remain liable for the performance of such sub-Licensees and agents.
10
4.2
Employees. Absent Licensee’s prior written notice to Licensor, all tasks
performed by Licensee related to Product including marketing, sales, customer support and
technical advising shall be carried out solely by Licensee’s employees or Affiliates.
4.3
Marketing. Without limiting the generality of Section 4.1 of this Agreement,
Licensee shall use commercially reasonable efforts to further the advertising, promotion,
marketing, sales and distribution of Product within the Territory.
4.4
Press Releases and Publicity. Either Party shall not issue or permit the issuance
of any press releases or publicity regarding Product or this Agreement, or grant any interview, or
make any public statements whatsoever concerning Product or this Agreement without the prior
written consent of the other Party, which consent shall not be unreasonably withheld.
4.5
Records. Licensee shall keep complete and accurate records of its sales and
service of Product. Licensee shall keep all records current and, upon reasonable notice, shall
make them available for inspection by Licensor’s representatives.
4.6
Annual Reports. On or before February 1 of each calendar year, Licensee shall
provide to Licensor a financial report detailing Licensee’s results related to Product during the
previous calendar year.
4.7
Customer Support. Licensee agrees to provide all End Users with reasonable, as
determined by Licensee in its sole discretion, service and technical support, including:
4.7.1 technical information; and
4.7.2 availability of personnel to ensure that Product is timely and effectively
supported and that appropriate and necessary training is provided; and
11
4.7.3 customer support personnel available at reasonable times during business
hours to respond to inquiries and complaints from customers and End Users.
4.8
Litigation. Licensee shall not take any legal action relating to the protection or
defense of any Intellectual Property Rights except as provided in this Agreement.
4.9
Non-Compete. The Parties acknowledge that: (a) the Technology is a unique
body of knowledge; (b) the Technology is Internet-based which gives it a worldwide reach; (c)
Product is specialized; (d) Product, like the Technology, also is Internet-based and similarly has
a worldwide reach; (e) the market for Product is nationwide, technologically sophisticated and
specialized; and (f) the marketplace for Product is competitive. Licensee also acknowledges that
Licensor has a legitimate and protectable interest in the Proprietary Materials, which include
Confidential Information of Licensor and trade secrets such as data formulations, source codes,
object codes, program development strategies and projections.
4.9.1 Licensee further acknowledges that during the term of this Agreement it
will have access to the Proprietary Materials, including the Confidential Information of Licensor,
that by their nature are applicable not only to Targeted Market but potentially also to other
markets and industries within the Territory. Licensee further acknowledges that any disclosure or
unauthorized use of the Confidential Information of Licensor will cause irreparable harm and
loss to Licensor for which monetary damages would be inadequate compensation.
4.9.2 During the Term of this Agreement (the “Non-compete Period”), Licensee
agrees that it will not purchase, sell, advertise, market, endorse or distribute any product that is
substantially similar with Product.
12
4.9.3 Licensee further agrees that during the Non-compete Period it will not
associate or affiliate with or assist any person or entity that competes with Licensor if such
association or affiliation or assistance may require Licensee to rely upon or disclose any of the
Proprietary Materials.
4.9.4 Licensee agrees that the geographic scope of this covenant not to compete
shall be nationwide.
4.10 Non-solicitation. Licensee covenants and agrees that during the Term of this
Agreement and for a period of one (1) year thereafter Licensee shall not directly or indirectly (a)
induce or attempt to persuade any customer or client of Licensor to terminate his, her or its
business relationship with Licensor, or (b) induce, attempt to persuade or solicit any other
affiliate, associate, employee, agent, vendor, supplier, consultant, distributor or representative of
Licensor to terminate his, her or its business relationship with Licensor; provided, however, that
this restriction shall not apply to any such Person who as of the date hereof has already entered
into discussions with Licensee or contacted Licensee with respect to entering into a commercial
or employment relationship, or contacts Licensee of such Person’s own accord, and without
solicitation by Licensee, to initiate such discussions; provided, further, that generalized
advertisement of commercial or employment opportunities including in trade or industry
publications (not focused specifically on or directed in any way at such Persons) shall not be
deemed to cause a breach of this restriction.
5.
FEES; ROYALTIES; PAYMENT
5.1
Payment; Pricing; Cancellation.
5.1.1 Licensee agrees to pay Licensor a non-refundable licensing fee as set forth
13
in Appendix B to this Agreement, to be paid upon execution of this Agreement.
5.1.2. Licensee will determine in its sole discretion, as it deems appropriate, the
pricing of Product and any fees to be charged in relation therewith. Licensee may from time to
time and in its sole discretion, as it deems appropriate, revise such Product pricing and/or fees.
Licensee will give Licensor, upon Licensor’s request, a current schedule of Product pricing and
associated fees.
5.1.3 Licensee agrees to pay Licensor a fee equal to twelve percent (12%) of the
gross revenue from the sale, lease or licensing of Product. Licensee agrees to pay Licensor on a
quarterly basis for all fees due for the previous calendar quarter’s payments processed by
Licensee, with such fees to be calculated and paid by Licensee within forty-five (45) days after
the end of the applicable quarter.
5.1.4 In addition to the twelve percent (12%) fee set forth in Section 5.1.3, if
Licensee requests Licensor to provide additional services and assistance in connection with
Licensee’s development and sale of Product, Licensee and Licensor shall negotiate in good faith
with respect to additional separate compensation to Licensor for the provision of such services
and assistance to Licensee.
5.1.5 In addition to any other remedy available to Licensor, if any payment due
under this Section 5 is delayed for any reason, interest shall accrue and be payable, to the extent
legally enforceable, on such unpaid principal amount from and after the date on which the same
became due, at one point five percent (1.5%) per month.
14
5.2
Accounting; Books and Records.
5.2.1 Licensee shall, at its sole cost and expense, maintain complete and
accurate books and records (specifically including, without limitation, the original or copies of
documents supporting entries in the books of account) covering all transactions arising out of or
relating to this Agreement.
5.2.2 Upon reasonable advance notice of not less than forty-eight (48) hours,
Licensor and its duly authorized representatives shall have the right during normal business
hours during the Term and for one (1) year thereafter, to examine said books and records and all
other documents and materials in the possession or control of Licensee and its agents with
respect to the subject matter and terms of this Agreement. Within a reasonable period (which
shall not exceed thirty (30) days) following the completion of any audit, any Person performing
such audit on Licensor’s behalf shall provide Licensee with a certified written report containing
such Person’s conclusions, including the amount of any underpayment owed or overpayment
made, if any, by Licensee hereunder.
5.2.3 The exercise by Licensor of any right to audit at any time or the
acceptance by Licensor of any statement or payment shall be without prejudice to any of
Licensor’s rights and remedies and shall not bar Licensor from thereafter disputing the accuracy
of any payment or statement. Licensee shall remain fully liable for any balance due under this
Agreement.
6.
QUALITY; STANDARDS; PROTECTION AND PRESERVATION OF RIGHTS
6.1
Licensor’s Intellectual Property; Validity of Marks. Licensee acknowledges
that Licensor is the owner of all right, title and interest in and to the Intellectual Property and
15
Intellectual Property Rights as described in the foregoing Recitals and Definitions, including
rights and interests in the Marks. Licensee agrees that it will not at any time during the Term of
this Agreement or at any time thereafter contest the validity or ownership of the Intellectual
Property or directly or indirectly assist others in contesting the validity or ownership of the
Intellectual Property.
6.2
Licensor Goodwill, Image, and Reputation. Licensee shall use commercially
reasonable efforts to conduct its business in a manner that preserves the good name, image and
reputation of Licensor. Licensee agrees that Licensor’s Goodwill and reputation are valuable
commercial assets of Licensor. Licensee agrees that it will not intentionally do anything to
damage Licensor’s Goodwill and reputation. Licensee acknowledges that the Intellectual
Property represents the valuable Goodwill of Licensor. Any unauthorized use of any of the
Intellectual Property by Licensee will constitute a material breach of this Agreement and an
infringement.
6.3
Improvements. Licensor acknowledges that Product and the Technology, and all
improvements, extensions, modifications, derivatives, and build-offs (the “Improvements”) of or
to any of Product or the Technology developed in whole or in part by Licensee shall belong
exclusively to Licensee. Licensor shall promptly execute any documents required by Licensee to
record ownership in Product and/or the Technology, and any Improvements thereon. If requested
by Licensee, Licensor shall cause its employees and agents to cooperate with Licensee, at
Licensee’s expense, to obtain intellectual property protection, including trademark, patent or
copyright protection, on any Product or Technology, or Improvement thereon; provided that such
cost shall be fully borne by Licensor where Licensor’s willful misconduct or gross negligence
have in any way endangered or threatened to endanger such rights of Licensee.
16
7.
INFRINGEMENT
7.1
Notification of Infringement Actions. Licensee will notify Licensor in writing
of any third-party use or registration or attempted use or registration of any of the Intellectual
Property that infringes or is likely to infringe Licensor’s rights in the Intellectual Property within
three (3) calendar days of becoming aware of the same. Licensee also shall notify Licensor in
writing of any action, claim or demand against Licensee relating to the Intellectual Property
within three (3) calendar days of receipt of notice of such action, claim or demand. Upon notice
of an infringement or potential infringement or an action, claim, or demand against Licensee
relating to the Intellectual Property, Licensor shall in its sole discretion: (a) determine whether to
bring an action to stop the infringement, or (b) determine whether to defend against any such
action, claim or demand, if such action, claim or demand is due solely to Licensee’s use of any
of the Intellectual Property.
7.2
Licensor Litigation Responsibilities. If Licensor brings any action or defends
against any such action, claim or demand, Licensor shall (1) select counsel to handle the action
or defense, (2) be responsible for the costs of the action or defense, including reasonable
attorneys’ fees, (3) be entitled to any recovery, and (4) in its sole discretion, agree upon
settlement terms. Licensee shall reasonably cooperate in all respects with Licensor in connection
with any such action or defense. Such cooperation shall include Licensee’s production of
relevant information, including without limitation documents and things, and giving testimony at
deposition and trial without being subpoenaed. If Licensee desires to retain its own counsel in
connection with any such action or defense, it shall be responsible for its own attorneys’ fees and
costs.
17
8.
CONFIDENTIAL INFORMATION
8.1
Confidential Obligations. The recipient Party shall hold and treat, and direct its
potential and existing partners, officers, directors, employees, agents, representatives, consultants
and advisors, including, without limitation, attorneys, accountants and financial advisors
(collectively, “Related Persons”), to hold and treat, in confidence, the Confidential Information
of the disclosing Party. Without the disclosing Party’s prior written consent, the recipient Party
and its Related Persons shall not, except as hereinafter provided, disclose such Confidential
Information to any other Person or use such Confidential Information other than in connection
with the recipient Party’s duties and obligations pursuant to this Agreement. The recipient Party
further agrees to disclose such Confidential Information only to those of its Related Persons who
need to know such Confidential Information in connection with this Agreement, and who the
recipient Party directs to keep such information confidential and to abide by the terms of this
Agreement with respect to, and only with respect to, Confidential Information to the same extent
as if they were parties hereto.
8.2
Permitted Disclosure. Notwithstanding the foregoing, the recipient Party or any
Related Person of the recipient Party may disclose such Confidential Information: (a) pursuant to
any lawful subpoena of any governmental or regulatory authority regulating or overseeing any
part of the business or activities of the recipient Party or such Related Person, or in connection
with any examination of the recipient Party or such Related Person by such authority; or (b)
pursuant to any order of any court of competent jurisdiction. To the extent disclosure is required
by any court order or pursuant to any subpoena or other legal process, the recipient Party or such
Related Person will, if lawfully able to do so, promptly notify the disclosing Party of such
requirement or request so that the disclosing Party may seek a protective order or other
18
appropriate remedy or waive compliance with the confidentiality provisions of this Agreement.
In the event that such protective order or other remedy is not obtained, or that the disclosing
Party waives compliance with the confidentiality provisions of this Agreement, the party
requested or compelled to disclose such Confidential Information will furnish only that portion
of such Confidential Information which is legally required and will exercise its commercially
reasonable efforts to obtain reliable assurance that the confidential treatment will be accorded
that portion of the Confidential Information so furnished.
9.
REPRESENTATIONS & WARRANTIES
Each Party represents and warrants that it has full power and authority to enter into this
Agreement and to carry out all actions required of it by this Agreement. And further:
9.1
By Licensor. Licensor represents and warrants:
9.1.1 that neither the Intellectual Property, the Proprietary Materials nor this
Agreement infringes the rights of third parties, including rights in any U.S. patent, trademark,
trade dress, copyright or other proprietary or property right, nor misappropriates or discloses any
third party trade secrets; and
9.1.2 that it will work with Licensee in good faith and will use commercially
reasonable efforts to assist Licensee in marketing Product during the Term of this Agreement.
9.2
Licensor’s Limitation of Liability and Disclaimer. Licensor’s representations
and warranties set forth in this Section 9 shall be and are subject to and limited by the limitations
of liability set forth more fully in Sections 10 and 11 of this Agreement.
9.3
By Licensee. Licensee represents and warrants:
19
9.3.1 that its entry into this Agreement does not violate any of its agreements
with any third party; and
9.3.2 that it will not grant any rights to any third party that conflict with its
obligations to or the rights of Licensor as set forth in this Agreement.
10.
LIMITATIONS OF LIABILITY AND DISCLAIMERS
10.1 LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, RELATED TO THE INTELLECTUAL PROPERTY OR THE
PROPRIETARY MATERIALS INCLUDING WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A SPECIFIC PURPOSE.
10.2 LICENSOR SHALL NOT BE LIABLE TO LICENSEE FOR LOSS OF
PROFITS OF BUSINESS, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES, WHETHER BASED IN CONTRACT OR IN TORT (INCLUDING
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, BUT NOT INCLUDING GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT), WARRANTY OR INDEMNITY,
WHETHER OR NOT LICENSOR AND/OR LICENSEE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
11.
INDEMNIFICATION
11.1 Indemnification. Each Party shall not have recourse against the other Party in
respect to, and shall indemnify and hold the other Party harmless against, any Loss, liability or
cost arising from any suit or proceeding brought by a third party based upon any claim, whether
in contract or tort, including negligence or fault but not including gross negligence or willful
20
misconduct, to the extent that such claim arises from or results from the alleged acts or omissions
of such Party in the performance of this Agreement, including claims in connection with the
advertising, distribution, marketing, sale and/or use of the Intellectual Property.
11.2 Sub-Licensees and Agents. Licensee agrees to indemnify Licensor and hold
Licensor harmless from all damages, Losses, liabilities or expenses arising in any manner from
any act or omission on the part of any sub-Licensee or agent appointed by Licensee. The
provisions of Article 11 and Licensee’s obligations thereunder shall survive any termination
and/or rescission of this Agreement.
11.3 Insurance. Each Party shall maintain at its own expense in full force and effect
commencing from the initial sale of Product into the market and at all times thereafter during
which the Proprietary Materials are licensed pursuant to this Agreement at least a $1,000,000
general liability insurance policy with an insurance carrier reasonably acceptable to the other
Party. This insurance shall be for the benefit of each Party and shall name the other as a named
insured. Each Party shall carry any workers compensation insurance required by law. Each Party
shall provide the other with certificates of insurance upon request from the other Party and shall
provide written notice to the other Party of the cancellation or any substantial modification of
any policy.
12.
ASSIGNMENT
12.1 No Assignment Without Consent. This Agreement shall inure to the benefit of
and be binding upon the Parties hereto, their successors and assigns. The rights granted to each
Party hereunder are personal in nature and each Party shall not sell, transfer, lease, sub-license or
assign this Agreement or rights and interests hereunder or any part thereof to any Person, by
21
operation of law or otherwise, without the prior written consent of the other Party or except as set
forth in Section 12.2. Any attempted assignment, sub-license or transfer of this Agreement by a
Party in derogation of the terms and conditions of this Agreement shall be null and void and shall
subject the Agreement to immediate termination by the other Party.
12.2 Affiliates; Change of Control. Either Party may assign this Agreement to an
Affiliate. Licensor may assign this Agreement to any entity that acquires all or substantially all
of the controlling shares of Licensor. Any change of control of Licensor shall be deemed a valid
assignment of this Agreement. Except in connection with an assignment to an Affiliate, Licensee
may not assign this Agreement without the written consent of Licensor.
13.
MISCELLANEOUS
13.1 Recitals; Definitions. The Parties warrant to each other that, to the best of their
knowledge, the foregoing Recitals and Definitions are true and correct. No facts have come to
the attention of any Party suggesting any other state of affairs or any incorrect statements in the
Recitals and/or Definitions. The Parties agree that the statements in the Recitals and Definitions
form a material part of this Agreement and are incorporated herein by reference.
13.2 Independent Contractors. The Parties are independent contractors. Neither Party
is an agent, representative or partner of the other Party. Neither Party shall have any right, power
or authority to enter into any agreement, either express or implied, for or on behalf of, or to incur
any obligation or liability for, or to otherwise bind, the other Party. This Agreement shall not be
construed to create an association, joint venture, co-ownership, franchiser/franchisee
relationship, or partnership between the Parties or to impose any partnership obligation or
liability upon either Party.
22
13.3 Costs. Except as otherwise expressly provided in writing, each Party assumes full
responsibility for all costs and expenses which it incurs in carrying out its obligations under this
Agreement, including, but not limited to, all rentals, salaries, commissions, advertising,
demonstration, travel and accommodation expenses without the right to reimbursement for any
portion thereof from the other Party.
13.4 Captions; Headings. The captions and headings used in this Agreement are for
convenience only and shall not be construed to have any legal significance.
13.5 Governing Law; Jurisdiction; Venue; Attorney Fees. This Agreement shall be
interpreted and enforced in accordance with the laws of the State of Arizona, without regard to
the principles of conflict of laws. The Parties submit to the exclusive personal jurisdiction of the
State of Arizona. Venue for the adjudication of any dispute arising under or related to this
Agreement shall be only in Pima County, Arizona, and not elsewhere. Objections to the venue
are hereby waived. In the event that either Party shall be required by the actions of the other
Party to retain an attorney to enforce or protect its legal rights hereunder, and if judicial
proceedings shall thereafter ensue, the prevailing Party shall be entitled to its reasonable
attorney’s fees and costs.
13.6 Counterparts. This Agreement may be executed in any number of identical
counterparts with the same effect as if all Parties had signed the same document. All counterparts
shall be construed as, and shall constitute, one and the same agreement.
13.7 Invalidity; Severability. If any provisions of this Agreement should be or
become invalid or unenforceable, the validity of the remaining provisions shall not be affected.
The invalid or unenforceable provision shall be converted by mutual consent of the Parties, to the
23
extent possible, to a valid and enforceable provision which comes as close as possible to the
intention of the original provision.
13.8 Entire Agreement; Changes in Writing. This Agreement constitutes the entire
agreement of the Parties with respect to the subject matter of this Agreement. This Agreement
may not be amended or modified except in a writing signed by the Parties.
13.9 No Waiver. Under this Agreement, a waiver by a Party of any default in
performance by the other Party shall not constitute a waiver of any subsequent default in
performance. A waiver by a Party to exercise any right or option or to enforce any term,
condition or provision of this Agreement shall operate as a waiver only for the specific occasion
that the waiver is given and this Agreement shall otherwise continue to be fully effective and
operable as to all other occasions.
13.10 Notices. All notices by the parties must be in writing, served by registered mail or
by facsimile which must be confirmed by a letter, or by hand-delivery against receipt. Notices
shall be delivered to the following addresses:
To Licensor:
AudioEye, Inc.
Attn: Nathaniel T. Bradley, CEO
5210 E. Williams Circle, Suite 500
Tucson, AZ 85711
To Licensee:
PearTrack Systems Group Ltd.
Attn: E. William Withrow Jr.
1139-E Ballena Blvd, Suite 6
Alameda, CA 94501
24
13.11 Computation of Time. Any obligation or the exercise of any right that must be
performed within a specified number of days includes weekends and holidays in such
computation unless otherwise indicated.
13.12 Interpretation. This Agreement was reached as a result of negotiations between
competent parties. This Agreement shall be construed without regard to any presumption or other
rule requiring construction against the party drafting a document. It shall be construed neither for
nor against Licensor or Licensee, but shall be given a reasonable interpretation in accordance
with the plain meaning of its terms and the intent of the parties.
13.13 Conflict with Appendices. In the event of any conflict between this Agreement
and any attached Appendix, the terms and conditions of this Agreement shall control.
13.14 Time. Time is of the essence under this Agreement.
13.15 Cooperation and Other Documents and Actions. The Parties agree to
cooperate and fully execute any and all supplemental documents and take all further actions
which may be necessary and appropriate to give full force and effect to this Agreement.
13.16 Binding Agreement. This Agreement is binding upon and shall inure to the
benefit of the heirs, executors, personal representatives, successors and assigns of the Parties.
13.17 Effective Date. This Agreement shall be deemed effective as of the date first
stated above and may be specifically enforced.
25
The undersigned Parties have carefully reviewed this Agreement and accept its terms and
conditions. The Parties execute this Agreement as of its Effective Date.
LICENSOR:
LICENSEE:
AUDIOEYE, INC.
PEARTRACK SYSTEMS GROUP LIMITED
By:
By:
Printed Name:
Printed Name:
Title:
Title:
26
Appendix A
Licensor Proprietary Materials
Proprietary Materials consist of the following Licensor-produced intellectual property used in the
development of the Technology and implementation of Product:
U.S. patents numbered US7966184, US7653544, US8260616, US8046229, US8296150 and
US8589169.
27
Appendix B
License Fee
Licensee agrees to pay Licensor a non-refundable licensing fee equal to two hundred twenty-five
thousand dollars ($225,000) payable, at Licensee’s discretion, in the form of cash or Licensee’s
services at Licensee’s current rate. The parties agree that the Licensing Fee is due and payable
upon execution of this Agreement.
28
LICENSE AGREEMENT
This License Agreement (this “Agreement”) is made this 30th day of June 2014 (the
“Effective Date”), by and between AudioEye, Inc., a Delaware corporation (“Licensor”), and
PearTrack Systems Group Limited, a Nevada corporation (“Licensee”) (each a “Party” and
together, the “Parties”).
RECITALS
R1
Licensor is a for-profit corporation in the business of developing Internet content
publication and distribution software that enables conversion of any media into accessible
formats and allows for real time distribution to end users on any Internet-connected device.
R2
Licensor’s relevant consuming public consists of private companies and public
organizations seeking to enable easy-to-navigate Internet accessibility for their online content to
seniors, learning disabled, visually impaired, print impaired, dyslexic, non-English speaking and
a host of other website visitors.
R3
Licensor provides services throughout the United States.
R4
Licensor is the owner of certain proprietary materials (the “Proprietary
Materials”) defined in Section 1.15 and described in more detail in Appendix A, incorporated
herein by reference.
R5
Licensor wishes to license certain of the Proprietary Materials to Licensee for
Licensee’s use in the Territory.
1
R6
Licensee wishes to license the Proprietary Materials and use them in the Territory
to develop and sell products and services throughout the Territory to the Targeted Market.
R7
Licensee agrees and acknowledges that the Proprietary Materials are Licensor’s
valuable property and that Licensor is the sole owner of the Proprietary Materials.
NOW THEREFORE, in consideration of the mutual promises, covenants, and
agreements herein, the Parties, intending to be legally bound, agree as follows:
SUBSTANTIVE PROVISIONS
1.
DEFINITIONS
The following terms shall have the indicated meanings when used in this Agreement:
1.1
Affiliate. With respect to any specified Person, any other Person directly or
indirectly Controlling or Controlled by, or under direct or indirect common Control with, such
specified Person.
1.2
Confidential Information. Confidential Information shall be information
disclosed by one Party to the other Party (i) in writing or in other tangible form, or (ii) orally or
in other intangible form, as described and defined herein. Confidential Information, with respect
to the recipient Party, shall include, but is not limited to, information, business methods, business
practices, marketing plans, operations information, employee information, customer lists,
financial information, business records, trade secrets, source code, documents or materials
provided by the disclosing Party or on behalf of the disclosing Party to the recipient Party,
together with any notes, e-mails, analyses, memoranda, computer records or other materials
prepared by the recipient Party which contain or reflect such documents, information or
2
materials, but shall exclude any such information, documents or materials which: (i) are lawfully,
to the recipient Party’s knowledge, in the possession of the recipient Party prior to the date of
this Agreement; (ii) were available in the public domain other than through a violation of the
recipient Party’s obligations under this Agreement; (iii) the recipient Party developed
independently without reference to the Confidential Information; or (iv) is furnished to the
recipient Party by a third party not under an obligation of confidentiality to the disclosing Party
known to the recipient Party.
1.3
Control. With respect to any specific Person, the power to direct the management
and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “Controlling” and “Controlled” have
correlative meanings.
1.4
End User. Any customer within the United States that obtains Product from
Licensee for use, installation and/or application.
1.5
Goodwill. The reputation, quality, commercial recognition and public perception
of any Mark and/or the content included in the Proprietary Materials and/or their use. All
Goodwill arising solely from Licensee’s use of the Proprietary Materials shall inure solely to the
benefit of Licensor. Neither during the Term of this Agreement nor at any time thereafter shall
Licensee assert any claim or ownership right to the Goodwill.
1.6
Including. As used in this Agreement, the word “including” shall mean
“including by way of illustration only and not as a limitation.”
1.7
Intellectual Property. All intellectual property associated with the Proprietary
Materials, all materials associated with the implementation thereof, and all Marks and Goodwill.
3
Intellectual Property includes: (a) any idea, formula or formulation, design, concept, technique,
technology, invention, discovery, or improvement regardless of patentability, patents, patent
applications, trade secrets, Know How, trade names, trademarks, and service marks; (b) any
work of authorship, regardless of copyrightability, manuals, copyrights and any moral rights
recognized by law; (c) any other similar intellectual property including those defined under the
Patent Act (35 U.S.C. §§ 101 et seq.), the Copyright Act (17 U.S.C. §§ 101 et seq.), the Lanham
Act (15 U.S.C. §§ 1051 et seq.), and the Uniform and Arizona Trade Secrets Acts (A.R.S. §§ 44-
401 et seq.); (d) all Goodwill including the Goodwill associated with the preceding; and (e) the
Marks. Licensor is the sole owner of all Intellectual Property and it is Licensor’s valuable asset.
1.8
Intellectual Property Rights. Licensor’s legal rights to and/or interests in the
Intellectual Property including those rights defined under the Patent Act (35 U.S.C. §§ 101 et
seq.), the Copyright Act (17 U.S.C. §§ 101 et seq.), the Lanham Act (15 U.S.C. §§ 1051 et seq.),
and the Uniform and Arizona Trade Secrets Acts (A.R.S. §§ 44-401 et seq.).
1.9
Know How. Expert skill, information or body of knowledge that (a) imparts an
ability to cause a desired result, (b) is not readily available and (c) is outside the public domain.
1.10 Loss. All dues, penalties, fines, costs, amounts paid in settlement, liabilities,
obligations, taxes, liens, losses, expenses and fees, including court costs and reasonable attorney
fees and expenses arising out of any actions, suits, proceedings, hearings, investigations, charges,
complaints, claims, demands, injunctions, judgments, orders, decrees and rulings.
1.11 Mark; Marks. Trademarks and/or service marks whether or not registered; logos;
logotypes; and/or symbols indicating, representing or evidencing a source of origin in Licensor
4
and/or Licensor’s endorsement, approval or sponsorship; including any Goodwill incorporated
therein.
1.12 Material Breach. Any violation of this Agreement which excuses the non-
breaching Party from further performance and permits the non-breaching Party to commence
legal proceedings to seek equitable relief and/or damages.
1.13 Person. Any individual, corporation, limited liability company, partnership, firm,
joint venture, association, joint-stock company, trust or other entity, or any government or
agency or political subdivision, department or instrumentality thereof.
1.14 Product. Any one or more of the products and services created by Licensee that
specifically incorporate, or make use of in the course of development, the Proprietary Materials,
including all published and/or printed versions of same in any medium, directed toward the
Targeted Market.
1.15 Proprietary Materials. Materials over which Licensor has title or ownership
rights including: (a) Confidential Information of Licensor; (b) all content in the materials
developed by Licensor; (c) all source code, software, hardware, manuals, texts, sounds, visual
aides, demonstrations, photographs, designs, and the Know How and training necessary to
implement them; and (d) the Intellectual Property. A more specific description of the Proprietary
Materials is provided in Appendix A to this Agreement, incorporated herein by reference. The
Proprietary Materials are a valuable asset of Licensor.
1.16 Targeted Market. The public sector government markets for mobile asset
monitoring, GPS tracking and mobile communications within logistics, transportation, maritime
shipping, trucking & rail, vending machine, intermodal containers, and other applications.
5
1.17 Technology. The creation and/or application and/or installation and/or and use of
Product and the information and Know How necessary to do so.
1.18 Term. The term of this Agreement as set forth in Section 3.1 of this Agreement.
1.19 Territory. Worldwide.
2.
LICENSE OF PROPRIETARY MATERIALS
2.1
Grant of Right. Licensor hereby grants to Licensee a non-exclusive, non-
transferable license during the Term and within the Territory, subject to all of the terms and
conditions contained in this Agreement, to: (1) use the Proprietary Materials to create, promote
and advertise Product in the Territory; and (2) use the Proprietary Materials to market, sell and
distribute Product in the Territory.
2.2
Right of Licensor to Use Proprietary Materials. Subject to the limitations set
forth herein, nothing in this Agreement shall be construed to limit the right of Licensor or any of
its agents or representatives, or any third parties licensed or otherwise authorized by Licensor, to
use the Proprietary Materials including the Marks or reproductions of same for any activity
within the Territory.
2.3
Limitation of Appointment. Licensee shall have no right to market or sell
Product to customers other than in the Targeted Market.
2.4
No Transfer of Ownership. No ownership interest in the Proprietary Materials
and Goodwill is transferred to Licensee hereunder nor shall anything in this Agreement be
construed as a transfer to Licensee of any rights to or interests in the Proprietary Materials and
Goodwill. Subject to the provisions of Section 6.3, any and all improvements, enhancements,
6
adaptations, derivatives, build offs, and modifications of the Proprietary Materials created by
Licensee during the Term of this Agreement and at any time thereafter shall be the exclusive
property of Licensor.
2.5
Licensee Pricing. Licensee may determine and fix its own pricing for Product.
3.
TERM; RENEWAL; TERMINATION
3.1
Term. This Agreement shall commence on the Effective Date and continue in
perpetuity (“Term”).
3.2
Termination Events. The Parties jointly may terminate this Agreement at any
time by mutual agreement in a writing signed by both of them. Further, either Party may
immediately terminate this Agreement upon written notice to the other Party if the other Party:
3.2.1 (a) ceases to exist or elects to dissolve; (b) becomes insolvent, makes or
attempts a general assignment for the benefit of its creditors; (c) suffers or permits the
appointment of a receiver for its business assets; or (d) avails itself of or becomes subject to any
proceeding under any federal Bankruptcy Act or other federal or state statute relating to
reorganization, insolvency or the protection of the rights of creditors; or
3.2.2 commits a material breach of this Agreement and the breaching Party of
written notice of the breach does not cure the breach within thirty (30) days after receipt.
3.3
Termination by Licensor. Notwithstanding the foregoing Section 3.2, Licensor
may immediately terminate this Agreement upon written notice to Licensee if Licensee:
7
3.3.1 fails to make any required payment in full to Licensor on the date due as
required by this Agreement and fails to cure the default within fifteen (15) days after receiving
written notice of the default; or
3.3.2 without the prior written consent of Licensor, attempts to distribute,
exchange or offer or promise to distribute or exchange to a third party one or more copies of the
Proprietary Materials, whether by sale, license, lease or otherwise; provided, however, that this
Section 3.3.2 shall not apply to the sale, lease or licensing of Product, which may include
elements of the Proprietary Materials and for which a fee is paid to Licensor as provided herein;
or
3.3.3 attempts an assignment of its rights under this Agreement except as
provided for in this Agreement, unless otherwise agreed by Licensor in writing; or
3.3.4 any entity acquires all or substantially all of the Controlling shares of
Licensee or any other change of Control of Licensee occurs.
3.4
Termination by Licensee. Licensee may terminate this Agreement upon written
notice to Licensor if a court of competent jurisdiction enters a final judgment that any portion of
the Proprietary Materials violates the intellectual property rights of a third party and the
judgment is not under appeal, and Licensor fails to cure the infringement within ninety (90) days
of entry of the judgment. During the ninety (90) days Licensor may, at its option and expense,
procure for Licensee the right to continue to distribute Product subject to the judgment.
3.5
Rights Cumulative. The Parties’ rights as set forth in this Section 3 are
cumulative in addition to any other rights the parties may have at law or in equity.
8
3.6
Fulfillment of Obligations. The termination of this Agreement shall not
otherwise release either Party from its obligation to pay any sum that may be then or thereafter
owing to the other Party, nor operate to discharge any liability that had been incurred by either
Party prior to termination. All payments due Licensor prior to the date of termination shall be
paid to Licensor within thirty (30) days of the date of termination. Except as provided in the
preceding sentence, either Party shall not, by reason of the termination of this Agreement, be
liable to the other Party for any damages (whether direct, consequential or incidental to and
including loss of profit or prospective profits of any kind) sustained or arising out of any such
termination.
3.7
Effect of Termination. Upon termination of this Agreement, Licensee may
continue to dispose of its existing inventory of Product with the prior written consent of
Licensor, but Licensee shall immediately cease to use the Proprietary Materials including the
Marks and shall cease to market, advertise, sell, lease and/or license Product so long as it
contains any Proprietary Materials; provided, however, that Licensee shall have the right to meet
and complete, and the foregoing shall not restrict or preclude in any way Licensee from meeting
or completing, all of its existing contractual obligations to End Users with respect to sales, leases
or licenses for Product entered into prior to termination of this Agreement; provided, further, that
this provision shall not restrict Licensee from marketing, advertising, selling, leasing and/or
licensing Product so long as it no longer contains any Proprietary Materials. All new orders for
Product that Licensee is not contractually obligated to End Users to fulfill and which remain
unshipped as of the date of termination may be cancelled by Licensor if delivery is required
thirty (30) or more days after the date of termination.
9
3.8
Return of Property. Within fifteen (15) days of termination of this Agreement
Licensee shall return to Licensor or destroy all of the Proprietary Materials in Licensee’s
possession or control including all advertising, marketing and promotional materials.
3.9
Post-termination Disclosure of Confidential Information. No Confidential
Information of either Party may be disclosed by the other Party following termination of this
Agreement, except as provided herein.
3.10 Survival. The following Sections of this Agreement shall survive the termination
of this Agreement: 1, 3.8, 3.9, 3.10, 3.111, 4.9, 4.10, 5.2, 7, 8, 9, 10.2, 11, 12.1 and 13. Certain
other provisions may survive as indicated within their respective sections of this Agreement.
3.11 Remedies Upon Termination. Licensee acknowledges that its failure to cease
marketing and distribution of Product containing Proprietary Materials upon the termination of
this Agreement, except as herein permitted, may result in immediate irreparable damage to
Licensor. Licensee further acknowledges that Licensor will have no adequate remedy at law for
such failure and in the event of any such failure Licensor shall be entitled to seek equitable relief
by way of temporary and permanent injunctions and such other and further relief as any court of
competent jurisdiction may deem just and proper.
4.
OBLIGATIONS OF LICENSEE
4.1
Sub-Licensees. Licensee shall not appoint any sub-Licensee or agent to promote
and/or distribute Product without Licensor’s prior written consent; provided, however, that this
provision shall not apply to appointments of Affiliates of Licensee in such capacity.
Notwithstanding Licensor’s consent to Licensee’s appointment of sub-Licensees or agents,
Licensee shall remain liable for the performance of such sub-Licensees and agents.
10
4.2
Employees. Absent Licensee’s prior written notice to Licensor, all tasks
performed by Licensee related to Product including marketing, sales, customer support and
technical advising shall be carried out solely by Licensee’s employees or Affiliates.
4.3
Marketing. Without limiting the generality of Section 4.1 of this Agreement,
Licensee shall use commercially reasonable efforts to further the advertising, promotion,
marketing, sales and distribution of Product within the Territory.
4.4
Press Releases and Publicity. Either Party shall not issue or permit the issuance
of any press releases or publicity regarding Product or this Agreement, or grant any interview, or
make any public statements whatsoever concerning Product or this Agreement without the prior
written consent of the other Party, which consent shall not be unreasonably withheld.
4.5
Records. Licensee shall keep complete and accurate records of its sales and
service of Product. Licensee shall keep all records current and, upon reasonable notice, shall
make them available for inspection by Licensor’s representatives.
4.6
Annual Reports. On or before February 1 of each calendar year, Licensee shall
provide to Licensor a financial report detailing Licensee’s results related to Product during the
previous calendar year.
4.7
Customer Support. Licensee agrees to provide all End Users with reasonable, as
determined by Licensee in its sole discretion, service and technical support, including:
4.7.1 technical information; and
4.7.2 availability of personnel to ensure that Product is timely and effectively
supported and that appropriate and necessary training is provided; and
11
4.7.3 customer support personnel available at reasonable times during business
hours to respond to inquiries and complaints from customers and End Users.
4.8
Litigation. Licensee shall not take any legal action relating to the protection or
defense of any Intellectual Property Rights except as provided in this Agreement.
4.9
Non-Compete. The Parties acknowledge that: (a) the Technology is a unique
body of knowledge; (b) the Technology is Internet-based which gives it a worldwide reach; (c)
Product is specialized; (d) Product, like the Technology, also is Internet-based and similarly has
a worldwide reach; (e) the market for Product is nationwide, technologically sophisticated and
specialized; and (f) the marketplace for Product is competitive. Licensee also acknowledges that
Licensor has a legitimate and protectable interest in the Proprietary Materials, which include
Confidential Information of Licensor and trade secrets such as data formulations, source codes,
object codes, program development strategies and projections.
4.9.1 Licensee further acknowledges that during the term of this Agreement it
will have access to the Proprietary Materials, including the Confidential Information of Licensor,
that by their nature are applicable not only to Targeted Market but potentially also to other
markets and industries within the Territory. Licensee further acknowledges that any disclosure or
unauthorized use of the Confidential Information of Licensor will cause irreparable harm and
loss to Licensor for which monetary damages would be inadequate compensation.
4.9.2 During the Term of this Agreement (the “Non-compete Period”), Licensee
agrees that it will not purchase, sell, advertise, market, endorse or distribute any product that is
substantially similar with Product.
12
4.9.3 Licensee further agrees that during the Non-compete Period it will not
associate or affiliate with or assist any person or entity that competes with Licensor if such
association or affiliation or assistance may require Licensee to rely upon or disclose any of the
Proprietary Materials.
4.9.4 Licensee agrees that the geographic scope of this covenant not to compete
shall be nationwide.
4.10 Non-solicitation. Licensee covenants and agrees that during the Term of this
Agreement and for a period of one (1) year thereafter Licensee shall not directly or indirectly (a)
induce or attempt to persuade any customer or client of Licensor to terminate his, her or its
business relationship with Licensor, or (b) induce, attempt to persuade or solicit any other
affiliate, associate, employee, agent, vendor, supplier, consultant, distributor or representative of
Licensor to terminate his, her or its business relationship with Licensor; provided, however, that
this restriction shall not apply to any such Person who as of the date hereof has already entered
into discussions with Licensee or contacted Licensee with respect to entering into a commercial
or employment relationship, or contacts Licensee of such Person’s own accord, and without
solicitation by Licensee, to initiate such discussions; provided, further, that generalized
advertisement of commercial or employment opportunities including in trade or industry
publications (not focused specifically on or directed in any way at such Persons) shall not be
deemed to cause a breach of this restriction.
5.
FEES; ROYALTIES; PAYMENT
5.1
Payment; Pricing; Cancellation.
5.1.1 Licensee agrees to pay Licensor a non-refundable licensing fee as set forth
13
in Appendix B to this Agreement, to be paid upon execution of this Agreement.
5.1.2. Licensee will determine in its sole discretion, as it deems appropriate, the
pricing of Product and any fees to be charged in relation therewith. Licensee may from time to
time and in its sole discretion, as it deems appropriate, revise such Product pricing and/or fees.
Licensee will give Licensor, upon Licensor’s request, a current schedule of Product pricing and
associated fees.
5.1.3 Licensee agrees to pay Licensor a fee equal to twelve percent (12%) of the
gross revenue from the sale, lease or licensing of Product. Licensee agrees to pay Licensor on a
quarterly basis for all fees due for the previous calendar quarter’s payments processed by
Licensee, with such fees to be calculated and paid by Licensee within forty-five (45) days after
the end of the applicable quarter.
5.1.4 In addition to the twelve percent (12%) fee set forth in Section 5.1.3, if
Licensee requests Licensor to provide additional services and assistance in connection with
Licensee’s development and sale of Product, Licensee and Licensor shall negotiate in good faith
with respect to additional separate compensation to Licensor for the provision of such services
and assistance to Licensee.
5.1.5 In addition to any other remedy available to Licensor, if any payment due
under this Section 5 is delayed for any reason, interest shall accrue and be payable, to the extent
legally enforceable, on such unpaid principal amount from and after the date on which the same
became due, at one point five percent (1.5%) per month.
14
5.2
Accounting; Books and Records.
5.2.1 Licensee shall, at its sole cost and expense, maintain complete and
accurate books and records (specifically including, without limitation, the original or copies of
documents supporting entries in the books of account) covering all transactions arising out of or
relating to this Agreement.
5.2.2 Upon reasonable advance notice of not less than forty-eight (48) hours,
Licensor and its duly authorized representatives shall have the right during normal business
hours during the Term and for one (1) year thereafter, to examine said books and records and all
other documents and materials in the possession or control of Licensee and its agents with
respect to the subject matter and terms of this Agreement. Within a reasonable period (which
shall not exceed thirty (30) days) following the completion of any audit, any Person performing
such audit on Licensor’s behalf shall provide Licensee with a certified written report containing
such Person’s conclusions, including the amount of any underpayment owed or overpayment
made, if any, by Licensee hereunder.
5.2.3 The exercise by Licensor of any right to audit at any time or the
acceptance by Licensor of any statement or payment shall be without prejudice to any of
Licensor’s rights and remedies and shall not bar Licensor from thereafter disputing the accuracy
of any payment or statement. Licensee shall remain fully liable for any balance due under this
Agreement.
6.
QUALITY; STANDARDS; PROTECTION AND PRESERVATION OF RIGHTS
6.1
Licensor’s Intellectual Property; Validity of Marks. Licensee acknowledges
that Licensor is the owner of all right, title and interest in and to the Intellectual Property and
15
Intellectual Property Rights as described in the foregoing Recitals and Definitions, including
rights and interests in the Marks. Licensee agrees that it will not at any time during the Term of
this Agreement or at any time thereafter contest the validity or ownership of the Intellectual
Property or directly or indirectly assist others in contesting the validity or ownership of the
Intellectual Property.
6.2
Licensor Goodwill, Image, and Reputation. Licensee shall use commercially
reasonable efforts to conduct its business in a manner that preserves the good name, image and
reputation of Licensor. Licensee agrees that Licensor’s Goodwill and reputation are valuable
commercial assets of Licensor. Licensee agrees that it will not intentionally do anything to
damage Licensor’s Goodwill and reputation. Licensee acknowledges that the Intellectual
Property represents the valuable Goodwill of Licensor. Any unauthorized use of any of the
Intellectual Property by Licensee will constitute a material breach of this Agreement and an
infringement.
6.3
Improvements. Licensor acknowledges that Product and the Technology, and all
improvements, extensions, modifications, derivatives, and build-offs (the “Improvements”) of or
to any of Product or the Technology developed in whole or in part by Licensee shall belong
exclusively to Licensee. Licensor shall promptly execute any documents required by Licensee to
record ownership in Product and/or the Technology, and any Improvements thereon. If requested
by Licensee, Licensor shall cause its employees and agents to cooperate with Licensee, at
Licensee’s expense, to obtain intellectual property protection, including trademark, patent or
copyright protection, on any Product or Technology, or Improvement thereon; provided that such
cost shall be fully borne by Licensor where Licensor’s willful misconduct or gross negligence
have in any way endangered or threatened to endanger such rights of Licensee.
16
7.
INFRINGEMENT
7.1
Notification of Infringement Actions. Licensee will notify Licensor in writing
of any third-party use or registration or attempted use or registration of any of the Intellectual
Property that infringes or is likely to infringe Licensor’s rights in the Intellectual Property within
three (3) calendar days of becoming aware of the same. Licensee also shall notify Licensor in
writing of any action, claim or demand against Licensee relating to the Intellectual Property
within three (3) calendar days of receipt of notice of such action, claim or demand. Upon notice
of an infringement or potential infringement or an action, claim, or demand against Licensee
relating to the Intellectual Property, Licensor shall in its sole discretion: (a) determine whether to
bring an action to stop the infringement, or (b) determine whether to defend against any such
action, claim or demand, if such action, claim or demand is due solely to Licensee’s use of any
of the Intellectual Property.
7.2
Licensor Litigation Responsibilities. If Licensor brings any action or defends
against any such action, claim or demand, Licensor shall (1) select counsel to handle the action
or defense, (2) be responsible for the costs of the action or defense, including reasonable
attorneys’ fees, (3) be entitled to any recovery, and (4) in its sole discretion, agree upon
settlement terms. Licensee shall reasonably cooperate in all respects with Licensor in connection
with any such action or defense. Such cooperation shall include Licensee’s production of
relevant information, including without limitation documents and things, and giving testimony at
deposition and trial without being subpoenaed. If Licensee desires to retain its own counsel in
connection with any such action or defense, it shall be responsible for its own attorneys’ fees and
costs.
17
8.
CONFIDENTIAL INFORMATION
8.1
Confidential Obligations. The recipient Party shall hold and treat, and direct its
potential and existing partners, officers, directors, employees, agents, representatives, consultants
and advisors, including, without limitation, attorneys, accountants and financial advisors
(collectively, “Related Persons”), to hold and treat, in confidence, the Confidential Information
of the disclosing Party. Without the disclosing Party’s prior written consent, the recipient Party
and its Related Persons shall not, except as hereinafter provided, disclose such Confidential
Information to any other Person or use such Confidential Information other than in connection
with the recipient Party’s duties and obligations pursuant to this Agreement. The recipient Party
further agrees to disclose such Confidential Information only to those of its Related Persons who
need to know such Confidential Information in connection with this Agreement, and who the
recipient Party directs to keep such information confidential and to abide by the terms of this
Agreement with respect to, and only with respect to, Confidential Information to the same extent
as if they were parties hereto.
8.2
Permitted Disclosure. Notwithstanding the foregoing, the recipient Party or any
Related Person of the recipient Party may disclose such Confidential Information: (a) pursuant to
any lawful subpoena of any governmental or regulatory authority regulating or overseeing any
part of the business or activities of the recipient Party or such Related Person, or in connection
with any examination of the recipient Party or such Related Person by such authority; or (b)
pursuant to any order of any court of competent jurisdiction. To the extent disclosure is required
by any court order or pursuant to any subpoena or other legal process, the recipient Party or such
Related Person will, if lawfully able to do so, promptly notify the disclosing Party of such
requirement or request so that the disclosing Party may seek a protective order or other
18
appropriate remedy or waive compliance with the confidentiality provisions of this Agreement.
In the event that such protective order or other remedy is not obtained, or that the disclosing
Party waives compliance with the confidentiality provisions of this Agreement, the party
requested or compelled to disclose such Confidential Information will furnish only that portion
of such Confidential Information which is legally required and will exercise its commercially
reasonable efforts to obtain reliable assurance that the confidential treatment will be accorded
that portion of the Confidential Information so furnished.
9.
REPRESENTATIONS & WARRANTIES
Each Party represents and warrants that it has full power and authority to enter into this
Agreement and to carry out all actions required of it by this Agreement. And further:
9.1
By Licensor. Licensor represents and warrants:
9.1.1 that neither the Intellectual Property, the Proprietary Materials nor this
Agreement infringes the rights of third parties, including rights in any U.S. patent, trademark,
trade dress, copyright or other proprietary or property right, nor misappropriates or discloses any
third party trade secrets; and
9.1.2 that it will work with Licensee in good faith and will use commercially
reasonable efforts to assist Licensee in marketing Product during the Term of this Agreement.
9.2
Licensor’s Limitation of Liability and Disclaimer. Licensor’s representations
and warranties set forth in this Section 9 shall be and are subject to and limited by the limitations
of liability set forth more fully in Sections 10 and 11 of this Agreement.
9.3
By Licensee. Licensee represents and warrants:
19
9.3.1 that its entry into this Agreement does not violate any of its agreements
with any third party; and
9.3.2 that it will not grant any rights to any third party that conflict with its
obligations to or the rights of Licensor as set forth in this Agreement.
10.
LIMITATIONS OF LIABILITY AND DISCLAIMERS
10.1 LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, RELATED TO THE INTELLECTUAL PROPERTY OR THE
PROPRIETARY MATERIALS INCLUDING WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A SPECIFIC PURPOSE.
10.2 LICENSOR SHALL NOT BE LIABLE TO LICENSEE FOR LOSS OF
PROFITS OF BUSINESS, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES, WHETHER BASED IN CONTRACT OR IN TORT (INCLUDING
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, BUT NOT INCLUDING GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT), WARRANTY OR INDEMNITY,
WHETHER OR NOT LICENSOR AND/OR LICENSEE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
11.
INDEMNIFICATION
11.1 Indemnification. Each Party shall not have recourse against the other Party in
respect to, and shall indemnify and hold the other Party harmless against, any Loss, liability or
cost arising from any suit or proceeding brought by a third party based upon any claim, whether
in contract or tort, including negligence or fault but not including gross negligence or willful
20
misconduct, to the extent that such claim arises from or results from the alleged acts or omissions
of such Party in the performance of this Agreement, including claims in connection with the
advertising, distribution, marketing, sale and/or use of the Intellectual Property.
11.2 Sub-Licensees and Agents. Licensee agrees to indemnify Licensor and hold
Licensor harmless from all damages, Losses, liabilities or expenses arising in any manner from
any act or omission on the part of any sub-Licensee or agent appointed by Licensee. The
provisions of Article 11 and Licensee’s obligations thereunder shall survive any termination
and/or rescission of this Agreement.
11.3 Insurance. Each Party shall maintain at its own expense in full force and effect
commencing from the initial sale of Product into the market and at all times thereafter during
which the Proprietary Materials are licensed pursuant to this Agreement at least a $1,000,000
general liability insurance policy with an insurance carrier reasonably acceptable to the other
Party. This insurance shall be for the benefit of each Party and shall name the other as a named
insured. Each Party shall carry any workers compensation insurance required by law. Each Party
shall provide the other with certificates of insurance upon request from the other Party and shall
provide written notice to the other Party of the cancellation or any substantial modification of
any policy.
12.
ASSIGNMENT
12.1 No Assignment Without Consent. This Agreement shall inure to the benefit of
and be binding upon the Parties hereto, their successors and assigns. The rights granted to each
Party hereunder are personal in nature and each Party shall not sell, transfer, lease, sub-license or
assign this Agreement or rights and interests hereunder or any part thereof to any Person, by
21
operation of law or otherwise, without the prior written consent of the other Party or except as set
forth in Section 12.2. Any attempted assignment, sub-license or transfer of this Agreement by a
Party in derogation of the terms and conditions of this Agreement shall be null and void and shall
subject the Agreement to immediate termination by the other Party.
12.2 Affiliates; Change of Control. Either Party may assign this Agreement to an
Affiliate. Licensor may assign this Agreement to any entity that acquires all or substantially all
of the controlling shares of Licensor. Any change of control of Licensor shall be deemed a valid
assignment of this Agreement. Except in connection with an assignment to an Affiliate, Licensee
may not assign this Agreement without the written consent of Licensor.
13.
MISCELLANEOUS
13.1 Recitals; Definitions. The Parties warrant to each other that, to the best of their
knowledge, the foregoing Recitals and Definitions are true and correct. No facts have come to
the attention of any Party suggesting any other state of affairs or any incorrect statements in the
Recitals and/or Definitions. The Parties agree that the statements in the Recitals and Definitions
form a material part of this Agreement and are incorporated herein by reference.
13.2 Independent Contractors. The Parties are independent contractors. Neither Party
is an agent, representative or partner of the other Party. Neither Party shall have any right, power
or authority to enter into any agreement, either express or implied, for or on behalf of, or to incur
any obligation or liability for, or to otherwise bind, the other Party. This Agreement shall not be
construed to create an association, joint venture, co-ownership, franchiser/franchisee
relationship, or partnership between the Parties or to impose any partnership obligation or
liability upon either Party.
22
13.3 Costs. Except as otherwise expressly provided in writing, each Party assumes full
responsibility for all costs and expenses which it incurs in carrying out its obligations under this
Agreement, including, but not limited to, all rentals, salaries, commissions, advertising,
demonstration, travel and accommodation expenses without the right to reimbursement for any
portion thereof from the other Party.
13.4 Captions; Headings. The captions and headings used in this Agreement are for
convenience only and shall not be construed to have any legal significance.
13.5 Governing Law; Jurisdiction; Venue; Attorney Fees. This Agreement shall be
interpreted and enforced in accordance with the laws of the State of Arizona, without regard to
the principles of conflict of laws. The Parties submit to the exclusive personal jurisdiction of the
State of Arizona. Venue for the adjudication of any dispute arising under or related to this
Agreement shall be only in Pima County, Arizona, and not elsewhere. Objections to the venue
are hereby waived. In the event that either Party shall be required by the actions of the other
Party to retain an attorney to enforce or protect its legal rights hereunder, and if judicial
proceedings shall thereafter ensue, the prevailing Party shall be entitled to its reasonable
attorney’s fees and costs.
13.6 Counterparts. This Agreement may be executed in any number of identical
counterparts with the same effect as if all Parties had signed the same document. All counterparts
shall be construed as, and shall constitute, one and the same agreement.
13.7 Invalidity; Severability. If any provisions of this Agreement should be or
become invalid or unenforceable, the validity of the remaining provisions shall not be affected.
The invalid or unenforceable provision shall be converted by mutual consent of the Parties, to the
23
extent possible, to a valid and enforceable provision which comes as close as possible to the
intention of the original provision.
13.8 Entire Agreement; Changes in Writing. This Agreement constitutes the entire
agreement of the Parties with respect to the subject matter of this Agreement. This Agreement
may not be amended or modified except in a writing signed by the Parties.
13.9 No Waiver. Under this Agreement, a waiver by a Party of any default in
performance by the other Party shall not constitute a waiver of any subsequent default in
performance. A waiver by a Party to exercise any right or option or to enforce any term,
condition or provision of this Agreement shall operate as a waiver only for the specific occasion
that the waiver is given and this Agreement shall otherwise continue to be fully effective and
operable as to all other occasions.
13.10 Notices. All notices by the parties must be in writing, served by registered mail or
by facsimile which must be confirmed by a letter, or by hand-delivery against receipt. Notices
shall be delivered to the following addresses:
To Licensor:
AudioEye, Inc.
Attn: Nathaniel T. Bradley, CEO
5210 E. Williams Circle, Suite 500
Tucson, AZ 85711
To Licensee:
PearTrack Systems Group Ltd.
Attn: E. William Withrow Jr.
1139-E Ballena Blvd, Suite 6
Alameda, CA 94501
24
13.11 Computation of Time. Any obligation or the exercise of any right that must be
performed within a specified number of days includes weekends and holidays in such
computation unless otherwise indicated.
13.12 Interpretation. This Agreement was reached as a result of negotiations between
competent parties. This Agreement shall be construed without regard to any presumption or other
rule requiring construction against the party drafting a document. It shall be construed neither for
nor against Licensor or Licensee, but shall be given a reasonable interpretation in accordance
with the plain meaning of its terms and the intent of the parties.
13.13 Conflict with Appendices. In the event of any conflict between this Agreement
and any attached Appendix, the terms and conditions of this Agreement shall control.
13.14 Time. Time is of the essence under this Agreement.
13.15 Cooperation and Other Documents and Actions. The Parties agree to
cooperate and fully execute any and all supplemental documents and take all further actions
which may be necessary and appropriate to give full force and effect to this Agreement.
13.16 Binding Agreement. This Agreement is binding upon and shall inure to the
benefit of the heirs, executors, personal representatives, successors and assigns of the Parties.
13.17 Effective Date. This Agreement shall be deemed effective as of the date first
stated above and may be specifically enforced.
25
The undersigned Parties have carefully reviewed this Agreement and accept its terms and
conditions. The Parties execute this Agreement as of its Effective Date.
LICENSOR:
LICENSEE:
AUDIOEYE, INC.
PEARTRACK SYSTEMS GROUP LIMITED
By:
By:
Printed Name:
Printed Name:
Title:
Title:
26
Appendix A
Licensor Proprietary Materials
Proprietary Materials consist of the following Licensor-produced intellectual property used in the
development of the Technology and implementation of Product:
U.S. patents numbered US7966184, US7653544, US8260616, US8046229, US8296150 and
US8589169.
27
Appendix B
License Fee
Licensee agrees to pay Licensor a non-refundable licensing fee equal to two hundred twenty-five
thousand dollars ($225,000) payable, at Licensee’s discretion, in the form of cash or Licensee’s
services at Licensee’s current rate. The parties agree that the Licensing Fee is due and payable
upon execution of this Agreement.
28
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”), dated as of October 1, 2018 (the “Effective Date”), is made by and among Kyle W. Withrow (“Executive”) and PearTrack Security Systems, Inc. or its successor company, a Nevada corporation (the “Company”).
WHEREAS, Executive will be employed by the Company as its Chief Executive Officer (CEO) and
WHEREAS, the members of the Board of Directors of the Company desire to enter into an employment agreement with Executive, which employment agreement from October 1, 2018, through October 1, 2021; and
WHEREAS, the agreed upon terms and conditions of Executive’s continued employment are embodied in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Executive do hereby agree as follows:
Section 1. Employment and Duties. On the terms and subject to the conditions set forth in this Agreement, subject to the approval and ratification of Board of Directors, such approvals to be obtained prior to the Effective Date, the Company agrees to employ Executive as its Chief Executive Officer to render such services as would be customary and to render such other services and discharge such other responsibilities as the Board of Directors of the Company may, from time to time, stipulate and which shall not be inconsistent with the position listed above.
Section 2. Performance. (a) Executive accepts the employment as set forth in Section 1 herein and agrees to concentrate all of his/her professional time and efforts to the performance of the services described therein, including the performance of such other services and responsibilities as the Board of Directors of the Company may from time to time stipulate and which shall not be inconsistent with the position listed above.
(b) Without limiting the generality of the foregoing, Executive ordinarily shall devote not less than five (5) days per week (except for vacations and regular business holidays observed by the Company) on a full-time basis, during normal business hours Monday through Friday. Executive further agrees that when the performance of his/her duties reasonably requires, he/she shall be present on the Company’s premises or engaged in service to or on behalf of the Company at such times except during vacations, regular business holidays or weekends.
Section 3. Term/Termination.
3.1 Term. The term of employment under this Agreement (the “Employment Period”) shall commence on October 1 2018 and terminate on October 1 2021, unless earlier terminated pursuant to the termination provisions set forth herein. Notwithstanding anything to the contrary herein, the parties acknowledge and agree that Executive’s employment may be terminated by the Company only for Due Cause (as hereinafter defined). At the end of the Employment Period, the continuation of Executive’s employment with the Company shall be at the will of the Company and Executive on terms and conditions agreed to by the
PearTrack Security Systems, Inc.Employment Agreement
Kyle W. WithrowPage 1 of 9
Company and Executive and there shall be no obligation on the part of the Company or Executive to continue such employment, provided, however, that not later than November 1, 2020, the Company and Executive shall provide to each other reasonably specific notice of their respective intentions with regard to continuation of Executive’s employment subsequent to the Employment Period.
3.2 Termination for Due Cause. The Employment Period may be terminated for Due Cause only for the following reasons and upon the terms and conditions set forth in this Section 3.2. The Company, by a vote of a majority of the Board of Directors (a “Termination Vote”) may terminate the Employment Period, effective upon written notice of such termination to Executive, such notice made pursuant to Section 6 herein, in the event of (i) a material breach by Executive of his fiduciary duty or duty of loyalty to Company or of his covenants under this Agreement if such material breach is not remedied within fifteen (15) calendar days following written notice by the Company; (ii) the failure of Executive to comply with any material term of this Agreement which materially adversely affects the Company; (iii) commission by Executive of theft or embezzlement of property of the Company or other acts of dishonesty of a material nature and/or commission by Executive of a crime resulting in a material injury to the businesses, properties or reputations of the Company or any of its affiliates; (iv) commission of an act by Executive in the performance of his duties hereunder reasonably determined by a majority of the board of directors of the Company to constitute gross, willful or wanton negligence; (v) willful refusal to perform or substantial neglect of the duties assigned to Executive pursuant to Section 1 of this Agreement if such refusal or neglect is not remedied within fifteen (15) calendar days following written notice by the Company; or (vi) any significant violation of any statutory or common law duty of loyalty to the Company or its affiliates. All compensation paid to Executive shall immediately cease upon termination for Due Cause hereunder except accrued and unpaid compensation and all unvested Stock Options shall immediately expire.
3.3 Termination Due to Death. The Employment Period shall be terminated upon the death of Executive. All compensation paid to Executive shall immediately cease upon such termination except for accrued and unpaid compensation pursuant to Section 4.1 herein and earned but unpaid bonus payments pursuant to Section 4.2 herein. All unvested Stock Options shall immediately become vested.
3.4 Termination Due to Permanent Total Disability. The Employment Period shall be terminated upon the Permanent Total Disability (as defined in this Section 3.4) of Executive following written notice from the Company. Permanent Total Disability is defined as an inability by Executive to perform substantially all of the services required pursuant to this Agreement for a continuous period of ninety (90) days or for a period aggregating at ninety (90) days in any consecutive twelve (12) month period when such inability is caused by illness or a physical or mental disability. Such Permanent Total Disability shall be determined by a physician selected jointly by the parties hereto.
3.5 Termination Other Than Due Cause, Death, Disability or Resignation. In the event that Executive’s employment is terminated for reasons other than Due Cause, death, Permanent Total Disability or resignation, then all Stock Options scheduled to vest within one year of the date of such termination shall vest immediately and the Company shall pay as severance compensation to Executive six (6) months salary compensation at his then annual salary compensation rate, including bonus earned as of the termination date. Any severance compensation paid to Executive shall be paid ratably over the remaining payment period following termination. Any bonus compensation earned as of the termination date shall be paid to Executive pursuant to the bonus payment schedule set forth in Section 4.2 herein.
PearTrack Security Systems, Inc.Employment Agreement
Kyle W. WithrowPage 2 of 9
3.6 Termination by Executive. Executive may terminate the Employment Period (i) in the event the Company has breached a material term or condition of this Agreement which is not cured or remedied within thirty (30) days following written notice by Executive to Board of Directors of Company of such breach or (ii) at Executive’s convenience. In the event that Executive’s resignation is due to an uncured breach by the Company, such resignation shall be deemed a termination by the Company as without Due Cause for purposes of vesting of Stock Options pursuant to Section 4.3 herein and for payments of salary and bonus compensation as set forth in Sections 4.1 and 4.2, respectively, herein. In the event that the Employment Period is terminated by Executive at his convenience, then Executive will be due any earned but unpaid salary, vacation and bonus compensation as set forth in Sections 4.1 and 4.3, respectively, herein. All vested stock options not exercised by Executive within ninety (90) days following the termination date shall be cancelled. Any unvested Stock Options shall be cancelled as of this termination date.
3.7 Surrender of Position and Properties. Upon termination of Executive’s employment with the Company, regardless of the cause therefore, Executive shall promptly be deemed to have resigned from the Company’s Board of Directors and as an officer and director of any of the Company’s affiliates, if serving as such at that time, and shall surrender to the Company or its affiliates all property provided to him by the Company or its affiliates, as applicable, for use in relation to his employment and further, Executive shall surrender to the Company or its affiliates, as applicable, any and all sales materials, lists of customers and prospective customers, investment performance reports, files, patent applications, records, models or other materials and information of or pertaining to the Company or its affiliates or their customers or prospective customers or the products, businesses and operations of the Company or its affiliates.
3.8 Survival of Covenants. The covenants of Executive set forth in Section 5 herein shall survive the termination of the Employment Period or termination of this Agreement.
Section 4. Compensation/Expenses.
4.1 Salary. In exchange for the services to be rendered by Executive hereunder, the Company agrees to pay, during the Employment Period, a salary at an annual rate of one hundred and fifty thousand ($150,000) dollars at such intervals as may be consistent with the Company’s normal compensation schedule, but not less than once per month.
4.1.1 Salary Deferal. The Executive Agrees to defer twenty (20%) percent of the Executives salary until the the Company raises a minimum of one million five hundred thousand ($1,500,000) dollars.
4.1.2 Accrued Salary. The Company and Executive Agrees that any deferal or unpaid salary shall accrue monthly and be memorialized in the form of an interest baring corporate promissory note.
4.2 Bonus.
(a) The Company shall establish an annual bonus plan of which certain management employees of the Company shall be eligible to participate, which annual bonus plan shall comprise a calendar year (the “Plan Year”). Executive will be eligible to participate in such annual bonus plan during the term of this Agreement with goals (the “Annual Goals”) established and approved by the Board of Directors. Pursuant
PearTrack Security Systems, Inc.Employment Agreement
Kyle W. WithrowPage 3 of 9
to this annual bonus plan, Executive shall be eligible for discretionary performance and incentive bonuses if and as may be determined in the sole discretion of the Board of Directors of the Company. The goals that shall be tied to the Company’s Long Term Financial Pro orma (as adopted by the Company upon execution of this Agreement) and shall serve as the basis of evaluation for any payments awarded pursuant to the Company’s annual bonus plan shall be established and approved by the Board of Directors. At the conclusion of the Plan Year, the Board of Directors shall determine the level of success achieved by the Executive against the Annual Goals and recommend the amount of the annual bonus plan payment. If Executive’s employment is terminated for reasons other than Due Cause or his voluntary resignation, he will be entitled to receive any bonus earned up to the date of termination as reasonably determined by the Board of Directors. All payments related to the annual bonus plan are subject to the prior approval by the Board of Directors and the Company’s ability to make such payments when considering the cash position of the Company.
4.3 Stock. The Company hereby grants to Executive the right to purchase the following stock at par value $.001 in the Company. As of the Effective Date of this Agreement, the Company grants Executive one million (1,000,000) shares as of October 1, 2018. If the executive voluntarily resigns from office during the period of his employment he must return a proportionate amount of equity on a pro rata basis equal to 33% per year.
4.4 Insurance. Executive if he so elects and if permissible by the Company plans, will be entitled to participate in fringe benefit, health insurance, life insurance, and other programs which Company may adopt from time to time for executives of Company. Participation will be in accordance with any plans and any applicable policies adopted by Company.
4.5 Business Expenses. Executive shall be reimbursed for business-related expenses that he incurs pursuant to his employment with the Company, such expenses to be timely submitted and reasonable, and subject to the Company’s then standing Expense Reimbursement Policy and the review and approval of the Board of Directors or its authorized designate. Executive shall provide the Company with expense reports detailing business-related expenses and supporting documentation and other substantiation of such expenses that conform to the reporting requirements of the Company and requirements of the Internal Revenue Service. Executive is located in the state of California and Executive will not have to relocate.
4.7 Vacation.Executive shall be entitled to vacations in accordance with Company policy in effect from time to time. Until written policies are adopted, Executive will accrue three (3) weeks vacation during the Initial Term and four (4) weeks vacation during each Additional Term.
Section 5. Covenants of Executive.
5.1 Confidentiality. During the Employment Period and following the termination thereof for any reason, Executive shall not disclose or make any use of, for his own benefit or for the benefit of a business or entity other than the Company or its affiliates, any secret or confidential information, lists of customers and prospective customers or any other information of or pertaining to the Company or its affiliates that is not generally known within the trade of the Company or its affiliates or which is not publicly available.
5.2 Inventions and Secrecy. Except as otherwise provided in this Section 5.2, Executive (i) shall hold in a fiduciary capacity for the benefit of the Company and its affiliates, all secret and confidential information,
PearTrack Security Systems, Inc.Employment Agreement
Kyle W. WithrowPage 4 of 9
knowledge, or data of the Company and its affiliates obtained by Executive during his employment by the Company, which is not generally know to the public or recognized as standard practice (whether or not developed by Executive) and shall not, during his employment by the Company and following the termination of such employment for any reason, communicate or divulge any such information, knowledge or data to any person or entity other than the Company or its affiliates or persons or entities designated by the Company; (ii) shall promptly disclose to the Company all inventions, ideas, devices and processes made or conceived by him along or jointly with others, from the time of entering the Company’s employ and until such employment is terminated and for a one (1) year period following such termination, relevant or pertinent in any way, whether directly or indirectly, to the Company or its affiliates or resulting from or suggested by any work which he may have done for or at the request of the Company or its affiliates; (iii) shall at all times during his employment with the Company, assist the Company and its affiliates in every proper way (at the expense of the Company) to obtain and develop for the benefit of the Company inventions, ideas, devices and processes, whether or not patented; and (iv) shall perform all such acts and execute, acknowledge and deliver all such instruments as may be necessary or desirable in the opinion of the Company to vest in the Company, the entire interest in such inventions, ideas, devices and processes referred to in this Section 5.2. Executive and Company each agree that all documents, reports, files, analyses, drawings, designs, tools, equipment, plans (including, without limitation, marketing and sales plans), proposals, customer lists, computer software or hardware, and similar materials that are made by Executive or come into his or its possession by reason of and during the term of Executive’s engagement with Company are the property of Company and will not be used by his in any way adverse to Company’s interests. Executive also agrees not to allow any such documents or things, or any copies, reproductions or summaries to be delivered to or used by any third party without the specific consent of Company. Executive agrees to deliver to the Company, upon demand, and in any event upon the termination of Executive’s engagement, all of such documents and things which are in Executive’s possession or under his or its control. Executive expressly agrees that all of his work product shall be and remain the sole and exclusive property of the Company. Accordingly, all work products eligible for any form of copyright protection shall be deemed a “work made for hire” under the copyright laws and shall be owned by the Company.
5.3 Competition Following Termination. For a two (2) year period following termination, for any reason, of Executive’s employment with the Company, Executive shall not, without the prior written consent of the Company, which consent may be withheld at the sole discretion of the Company, (i) engage directly or indirectly, whether as an officer, director, stockholder (of 10% or more of such entity), partner, majority owner, managerial employee, creditor, or otherwise with the operation, management or conduct of any business that competes with the businesses of the Company or its affiliates being conducted at the time of such termination; (ii) solicit, contact, interfere with, or divert any customer served by the Company or its affiliates, or any prospective customer identified by or on behalf of the Company or its affiliates (such customers and prospective customers existing or identified by the Company as of the date of Executive’s termination) if such intention is to divert business from or compete with the Company; or (iii) solicit any person then or previously employed by the Company or its affiliates to join Executive, whether as a partner, agent, employee or otherwise, in any enterprise engaged in a business similar to the businesses of the Company or its affiliates being conducted at the time of such termination.
5.4 Acknowledgement. Executive acknowledges that the restrictions set forth in this Section 5 are reasonable in scope and essential to the preservation of the businesses and proprietary properties of the Company and its affiliates and that the enforcement thereof will not in any manner preclude Executive, in
PearTrack Security Systems, Inc.Employment Agreement
Kyle W. WithrowPage 5 of 9
the event of his termination of employment with the Company, from becoming gainfully employed in such manner and to such extent as to provide a reasonable standard of living for himself, the members of his family and those dependent upon him of at least the sort and fashion to which he and they have become accustomed and may expect.
5.5 Severability - Covenants. The covenants of Executive contained in this Section 5 shall each be construed as any agreement independent of any other provision in this Agreement and the existence of any claim or cause of action of Executive against the Company or its affiliates, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company or its affiliates of such covenants. The parties hereto expressly agree and contract that it is not the intention of any party to violate any public policy, statutory or common law, and that if any sentence, paragraph, clause or combination of the same of this Agreement is in violation of the law of any state where applicable, such sentence, paragraph, clause or combination of the same shall be void in the jurisdictions where it is unlawful and the remainder of such provision and this Agreement shall remain binding on the parties to make the covenants of this Agreement binding only to the extent that it may be lawfully done under existing applicable laws. In the event that any part of any covenant of this Agreement is determined by a court of law to be overly broad thereby making the covenant unenforceable, the parties hereto agree, and it is their desire, that such court shall substitute a judicially enforceable limitation in its place, and that as so modified the covenant shall be binding upon the parties as if originally set forth herein.
Section 6. Indemnification. In addition to any rights Executive may have under the Company's charter or by-laws, the Company agrees to indemnify Executive and hold Executive harmless, both during the Term and thereafter, against all costs, expenses (including, without limitation, fines, excise taxes and attorneys' and accountants’ fees) and liabilities (other than settlements to which the Company does not consent, which consent shall not be unreasonably withheld) (collectively, "Losses") reasonably incurred by Executive in connection with any claim, action, proceeding or investigation brought against or involving Executive with respect to, arising out of or in any way relating to Executive's employment with the Company or Executive's service as a director of the Company; provided, however, that the Company shall not be required to indemnify Executive for Losses incurred as a result of Executive's intentional misconduct or gross negligence (other than matters where Executive acted in good faith and in a manner he reasonably believed to be in and not opposed to the Company's best interests). Executive shall promptly notify the Company of any claim, action, proceeding or investigation under this paragraph and the Company shall be entitled to participate in the defense of any such claim, action, proceeding or investigation and, if it so chooses, to assume the defense with counsel selected by the Company; provided that Executive shall have the right to employ counsel to represent him (at the Company's expense) if Company counsel would have a "conflict of interest" in representing both the Company and Executive. The Company shall not settle or compromise any claim, action, proceeding or investigation without Executive's consent, which consent shall not be unreasonably withheld; provided, however, that such consent shall not be required if the settlement entails only the payment of money and the Company fully indemnifies Executive in connection therewith. The Company further agrees to advance any and all expenses (including, without limitation, the fees and expenses of counsel) reasonably incurred by the Executive in connection with any such claim, action, proceeding or investigation. The Company currently maintains a policy of directors' and officers' liability insurance covering Executive and, notwithstanding the expiration or earlier termination of this Agreement, the Company shall maintain a directors' and officers' liability insurance policy covering Executive for a period of time following such expiration or earlier termination equal to the statute of limitations for any claim that may be asserted against Executive
PearTrack Security Systems, Inc.Employment Agreement
Kyle W. WithrowPage 6 of 9
for which coverage is available under such directors' and officers' liability insurance policy. The provisions of this paragraph shall survive the termination of this Agreement for any reason.
Section 7. Notice. Any notice required or permitted hereunder shall be made in writing (i) either by actual delivery of the notice into the hands of the party hereunder entitled, or (ii) by the mailing of the notice in the United States mail, certified mail, return receipt requested, all postage prepaid and addressed to the party to whom the notice is to be given at the party’s respective address set forth below, or such other address as the parties may from time to time designate by written notice as provided herein and (iii) via facsimile to the fax number provided by the Parties below with a confirmation receipt. Notice will hereby be deemed to be satisfied via the delivery of any of the methods listed above.
If to the Company:
Attn:Calli R. Bucci
Address: 1327 Ocean Avenue, Suite B
Santa Monica, CA 90401
Emailcallib@peartracksecuritysystems.com
Facsimile:
If to Executive:
Attn:Kyle W. Withrow
Address:1722 Mirasol Loop
Round Rock, TX 78681
Email: kylew@kaspergroupltd.com
Facsimile:
The notice shall be deemed to be received in case (i) on the date of actual receipt by the party and in case (ii) three days following the date of the mailing.
Section 8. Amendment and Waiver. No amendment or modification of this Agreement shall be valid or binding upon: (i) the Company unless made in writing and signed by an officer of the Company, duly authorized by the Board of Directors of the Company or; (ii) Executive unless made in writing and signed by him. The waiver by the Company or Executive of the breach of any Provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach of such party.
Section 9. Governing Law/Waiver of Claims/Arbitration. (a) The validity and effect of this Agreement and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with, the laws of the State of Nevada without giving effect to the principles of conflicts of laws thereof.
(b) Each Party to this Agreement hereby waives any claim it may have on such other Party due to any past business dealings between the Parties prior to the Effective Date of this Agreement. Additionally, the parties hereto agree that in the event of any and all disagreements and controversies arising from this Agreement or any other agreements between the Company and Executive the breach, termination or validity thereof or the present and future dealings between the parties, such disagreements and controversies shall be subject to a two step mediation and binding arbitration process. The first step will first to a one time mediations session to be held in accordance with the Nevada Bar Associations Mediation guidelines and to be heard in front of a Mediation expert that has been practicing for a period of at least 5 years. If the Parties fail to resolve their
PearTrack Security Systems, Inc.Employment Agreement
Kyle W. WithrowPage 7 of 9
dispute via Mediation, the Parties agree to a second step of binding arbitration as arbitrated in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) to be held in Las Vegas, Nevada before one neutral arbitrator. Such arbitrator shall be selected by mutual agreement of the parties within thirty (30) days of written notice of a continuing dispute following mediation of said disagreement or controversy. If the parties cannot mutually agree to an arbitrator within thirty (30) days, then the AAA shall designate the arbitrator. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Without waiving any remedy under this Agreement, either party may also seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). In the event of any such disagreement or controversy, neither party shall directly or indirectly reveal, report, publish or disclose any information relating to such disagreement or controversy to any person, firm or corporation not expressly authorized by the other party to receive such information or use such information or assist any other person in doing so, except to comply with actual legal obligations of such party or unless such disclosure is directly related to an arbitration proceeding as provided herein, including, but not limited to, the prosecution or defense of any claim in such arbitration. The costs and expenses of the arbitration (excluding attorneys’ fees) shall be paid by the non-prevailing Party or as determined by the arbitrator. This paragraph shall survive the termination of this Agreement.
Section 10. Entire Agreement. This Agreement contains all of the terms agreed upon by the parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications between the parties dealing with such subject matter, whether oral or written, but limited to the Employment Period.
Section 11. Reservation of Right. Notwithstanding any other provision of this Agreement, Company reserves the right to modify, suspend or discontinue any and all benefit plans, practices, policies and programs at any time whether before or after termination of this Agreement without advance notice to or recourse by Executive.
Section 12. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the transferees, successors and assigns of the Company, including any company or entity with which the Company may merge or consolidate.
Section 13. Remedies for Breach. Executive acknowledges that his services pursuant to this Agreement are unique and extraordinary and that irreparable injury will result to the Company and its businesses and properties in the event of a material breach of the terms and conditions of this Agreement to be performed by him, the Company shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either at law or in equity, to enjoin him from performing services for any other person or entity in violation of any of the terms of this Agreement, and to obtain damages for any breach of this Agreement. In the event of a material breach by the Company of any of the terms and conditions of this Agreement to be performed by it, Executive shall have all remedies, legal or equitable, available to him under the laws of the State of Nevada. The remedies provided herein shall be cumulative and in addition to any and all other remedies which either party may have at law or in equity.
Section 14. Costs of Enforcement. In the event of any suit or proceeding seeking to enforce the terms, covenants or conditions of this Agreement, the prevailing party shall, in addition to all other remedies and
PearTrack Security Systems, Inc.Employment Agreement
Kyle W. WithrowPage 8 of 9
relief that may be available pursuant to this Agreement or applicable law, recover his or its reasonable attorneys’ fees and costs as shall be determined and awarded by an arbitrator or court, as the case may be.
Section 15. Headings. Numbers and titles to paragraphs hereof are for information purposes only and, where inconsistent with the text, are to be disregarded.
Section 16. Severability – General. If any provision of this Agreement or the application of any such provision to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof
Section 17. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first set forth above.
PEARTRACK SYSTEMS GROUP, LTD.
By: /s/ Calli R. Bucci
Printed: Calli R. Bucci
Title:Chief Financial Officer, Director
Date: September 24, 2018
EXECUTIVE
By: /s/ Kyle W. Withrow
Printed: Kyle W. Withrow
Date: September 24, 2018
PearTrack Security Systems, Inc.Employment Agreement
Kyle W. WithrowPage 9 of 9
INTELLECTUAL PROPERTY PURCHASE AGREEMENT
This INTELLECTUAL PROPERTY PURCHASE AGREEMENT, dated as of October 11, 2018 (this “Agreement”), by and among Intellectual Property Network, Inc., a Delaware corporation (“Seller”), on the one hand, and PearTrack Security Systems, Inc., a Nevada corporation (“Buyer”). Buyer, and Seller are referred to collectively herein as the “Parties.”
WHEREAS, Buyer is a technology company involved in security and risk management solutions (the “Business”); and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, the Purchased Assets (as defined below) upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, he mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
Section 1.1 Purchase and Sale of Assets.
On, and subject to, the terms and conditions of this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase and acquire from Seller, free and clear of all Encumbrances (other than Permitted Encumbrances), all of Seller’s right, title and interest, as of the Closing, in and to the following assets, properties and rights (collectively, the “Purchased Assets”):
a)The USPTO Patent Application No. 62/518,788, filed June 13, 2017 and published internationally under PCT/US 18/37370 (the “International Patent Application”);
b)The Patent applications set forth in Exhibit “A” to this Agreement.
Section 1.2 Excluded Liabilities and Assets.
Seller is not selling any of its assets to Buyer other than the Purchased Assets. Buyer does not assume any liability or obligation of Seller, in connection with the Purchased Assets pursuant to Buyer’s purchase of such assets in connection with this Agreement.
Section 1.3 Purchase Consideration.
a)Revenue Sharing Agreement. In partial consideration for the sale by Seller of the Purchased Assets to Buyer, at the Closing, PearTrack shall enter a Revenue Sharing Agreement (“Revenue Sharing”) with Seller in the form attached as Exhibit “B” to this Agreement providing for payment of up to five hundred thousand ($1,000,000) dollars from three (3%) percent of the Adjusted Gross Revenue generated by the Company on the terms and conditions set forth therein.
b)Equity.In partial consideration for the sale by Seller of the Purchased Assets to Buyer, at the Closing, PearTrack shall grant Seller the option to purchase, at par value $.001 per share, three million five hundred thousand (3,500,000) shares of PearTrack common stock and will enter a Common Stock Purchase Agreement (“Stock Purchase”) in the form attached as Exhibit “C” to this Agreement.
Page 1 of 17
c)Royalty Agreement. In partial consideration for the sale by Seller of the Purchased Assets to Buyer, at the Closing, Buyer shall enter into a Royalty Agreement (“Seller Royalty”) with Seller in the form attached as Exhibit “D” to this Agreement providing for payment of one and a half percent (1.5%) of the adjusted gross revenue collected by Buyer on the terms and conditions set forth therein.
d)Patent Assignment. In partial consideration for the sale by Seller of the Purchased Assets to Buyer, at the Closing, Seller shall enter a Patent Assignment Agreement (“Patent Assignment”) in the form attached hereto as Exhibit “E,” providing a recordable assignment of the US Patent Application to Buyer.
Section 1.4 Closing Transactions.
(a) Closing. Unless this Agreement shall have been terminated in accordance with Section 8.1, and subject to the satisfaction or, if permissible, waiver of the conditions set forth in Article VII, the closing of the Transactions (the “Closing”) will take place at 12:00 noon, Los Angeles, California time, on a date to be specified by the Parties (the “Closing Date”), which shall be not later than the second Business Day after the satisfaction or, if permissible, waiver of the conditions set forth in Article VII (other than those that by their terms are to be satisfied or waived at the Closing), at the offices of PearTrack Security Systems, Inc. at 1327 Ocean Avenue, Suite B, Santa Monica, CA 90401, unless another time, date or place is agreed to in writing by the Parties; provided, however, that the Parties shall use reasonable efforts to conduct the Closing by mail and overnight delivery so as not to require the personal attendance of the parties at the Closing. If the parties agree in writing, the Closing may be telephonic.
(b) Actions and Deliveries by Seller. At the Closing, Seller shall deliver to Buyer:
(i) the Patent Assignment in the form of Exhibit D dated the Closing Date and duly executed by Seller;
(ii) the certificates and documents required to be delivered by Seller pursuant to Sections 7.1 and 7.2;
(iii) all such other instruments of assignment and transfer as are reasonably required to effect the transfer to Buyer of all of Seller’s right, title and interest in and to the Purchased Assets in accordance with this Agreement, in form and substance reasonably satisfactory to Buyer and Seller; and
(iv) Duly executed copies of all the agreements referred to in this Agreement.
(c) Actions and Deliveries by Buyer (as required). At the Closing, Buyer (as required) shall deliver to Seller:
(i) US and International Patent Applications and Patent Assignment
(ii) the Revenue Sharing Agreement in the form of Exhibit B dated the Closing Date and duly executed by Buyer;
(iii) the Stock Purchase Agreement’s in the form of Exhibit C dated the Closing Date and duly executed by Buyer;
(iv) the Seller Royalty Agreement in the form of Exhibit D dated the Closing Date and duly executed by Buyer;
(v) the certificates and documents required to be delivered by Buyer pursuant to Sections 7.1 and 7.3.
Page 2 of 17
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer that, to the best of “Seller’s Knowledge” (as hereinafter defined) and except as set forth in the disclosure schedule delivered by Seller to Buyer and attached hereto and made a part hereof (the “Seller Disclosure Schedule”). Such warranties and representation shall be true as of the date of execution and the date of Closing:
Section 2.1 Organization.
Seller is duly incorporated, validly existing and in good standing under the Laws of the state of Florida and has the requisite corporate power and authority to own, operate or lease the properties that it purports to own, operate or lease and to carry on its business as it is now being conducted.
Section 2.2 Authority Relative to this Agreement and Related Matters.
Seller has all necessary corporate power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated hereby (the “Transactions”) have been duly authorized by all necessary corporate action on the part of Seller. This Agreement has been duly executed and delivered by Seller and, assuming the due authorization, execution and delivery hereof by Buyer, no further action or approval, corporate or otherwise, is required in order to constitute this Agreement as a valid and binding obligation of Seller enforceable in accordance with its terms.
Section 2.3 No Conflict; Required Filings and Consents.
The execution and delivery of this Agreement by Seller do not, and the consummation by Seller of the Transactions will not, (a) conflict with or violate the certificate of incorporation or bylaws, each as amended to date, of Seller, (b) conflict with or violate any Law or Order applicable to Seller or by which Seller or any of its properties is bound, (c) result in a breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give rise to any right of termination, acceleration or cancellation under, or result in the creation of an Encumbrance on any of the Purchased Assets pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license or other instrument or obligation to which Seller is a party or by which Seller or any of its properties is bound, or (d) require Seller to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Governmental Authority, except (i) as set forth in Section 2.3 of the Seller Disclosure Schedule, or (ii) for any filings required pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”).
Section 2.4 Absence of Litigation.
Except as disclosed in Section 2.4 of the Seller Disclosure Schedule, as of the date hereof, (a) there is no private or governmental action, suit, proceeding, litigation, arbitration or investigation (“Action”) pending or, to the knowledge of Seller, threatened against Seller before any Governmental Authority that, if adversely determined, would prohibit, prevent, enjoin, restrict or materially impair or delay any of the Transactions, and (b) there is no legally binding judgment, decree, order, injunction, decision or award of any Governmental Authority (“Order”) against Seller that would prohibit, prevent, enjoin, restrict or materially impair or delay any of the Transactions.
Section 2.5 Purchased Assets.
Section 2.5 of the Seller Disclosure Schedule sets forth a list of all registrations and applications for registration in respect of the Purchased Assets. Except as set forth in Section 2.5 of the Seller Disclosure Schedule, Seller owns (beneficially and of record) all right, title and interest in and to all Purchased Assets, free and clear of
Page 3 of 17
all Encumbrances, other than Permitted Encumbrances. Except as set forth in Section 2.5 of the Seller Disclosure Schedule, the Pending Patent Applications in the US and WO, and all of the trademark applications (if any) Purchased Assets related to the Purchased Assets have been duly filed in the jurisdiction named in each such application, are being actively prosecuted and have not been abandoned or allowed to lapse. Except as set forth in Section 2.5 of the Seller Disclosure Schedule, there is no Action that is pending or, to the knowledge of Seller, threatened that challenges the rights of Seller in respect of any Purchased Assets or the validity, enforceability or effectiveness thereof. Seller has not received any written communication alleging that it has infringed the Intellectual Property rights of any third party and there are no Actions that are pending or, to the knowledge of Seller, threatened against Seller with respect thereto. Except as set forth in Section 2.5 of the Seller Disclosure Schedule, to the knowledge of Seller, there is no unauthorized use, infringement or misappropriation of the Purchased Assets by any third party and there is no Action that is pending or threatened by Seller with respect thereto. Notwithstanding anything to the contrary, this representation shall not limit or restrict the transfer to Buyer pursuant to this Agreement of all right, title and interest in and to the Purchased Assets owned by Seller throughout the world; provided, however, that Seller does not represent, warrant or covenant that any rights in or to the Purchased Assets exist anywhere outside of the United States of America.
Section 2.6 Seller’s Knowledge.
The term "Seller's Knowledge" as used herein means the actual knowledge (and not the implied or constructive knowledge) without any duty of investigation or inquiry of the following person: Nathaniel T. Bradley, Managing Member of Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer and PearTrack hereby represent and warrants to Seller that, except as set forth in the disclosure schedule delivered by Buyer and Buyer’s Shareholder to Seller and attached hereto and made a part hereof (the “Buyer Disclosure Schedule”). Such warranties and representation shall be true as of the date of execution and the date of Closing:
Section 3.1 Organization.
Buyer and PearTrack are each duly incorporated, validly existing and in good standing under the Laws of each of their respective jurisdictions of organization and each has the requisite corporate power and authority to own, operate or lease the properties that it purports to own, operate or lease and to carry on its business as it is now being conducted.
Section 3.2 Authority Relative to this Agreement and Related Matters.
Buyer and PearTrack have all necessary corporate power and authority, as the case may be, to enter into this Agreement and to carry out each of their respective obligations hereunder. The execution and delivery by Buyer and Buyer’s Shareholder of this Agreement and the consummation by the Buyer and Buyer’s Shareholder of the Transactions have been duly authorized by all necessary corporate action on the part of the Buyer and PearTrack. This Agreement has been duly executed and delivered by the Buyer and PearTrack, and, assuming the due authorization, execution and delivery hereof by Seller, constitutes the legal, valid and binding obligation of the Buyer and PearTrack, enforceable against each the Buyer and Buyer’s Shareholder in accordance with its terms.
Section 3.3 No Conflict; Required Filings and Consents.
The execution and delivery of this Agreement by Buyer and PearTrack does not, and the consummation of the Transactions will not, (a) conflict with or violate the organizational or governing documents of Buyer and/or PearTrack, (b) conflict with or violate any Law or Order applicable to Buyer or Buyer’s Shareholder or by which
Page 4 of 17
Buyer or Buyer’s Shareholder or any of their respective properties is bound, (c) result in a breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give rise to any right of termination, acceleration or cancellation under, any note, bond, mortgage, indenture, contract, agreement, lease, license or other instrument or obligation to which Buyer or PearTrack is a party or by which Buyer or PearTrack or any of their respective properties is bound, or (d) require Buyer or PearTrack to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Governmental Authority, except (i) as set forth in Section 3.3 of the Buyer Disclosure Schedule, or (ii) for any filings required pursuant to the Exchange Act.
Section 3.4 Absence of Litigation.
Except as disclosed in Section 3.4 of the Buyer Disclosure Schedule, as of the date hereof, (a) there is no Action pending or, to the knowledge of Buyer or Buyer’s Shareholder, threatened against Buyer or PearTrack before any Governmental Authority that, if adversely determined, would prohibit, prevent, enjoin, restrict or materially impair or delay any of the Transactions, and (b) there is no Order against Buyer or PearTrack that would prohibit, prevent, enjoin, restrict or materially impair or delay any of the Transactions contemplate hereby.
Section 2.6 Data.
Buyer and PearTrack agree that it shall not, nor permit others to, use any data or information relating to “personal health information: as that term is defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended, or any other Data (as defined in Article XI of this Agreement) obtained through the acquisition of the Purchased Assets, and Buyer and PearTrack agree it shall not, nor permit others to, disclose or disseminate such information to any Person without the prior written consent of the Seller, and, in all such cases, subject to applicable Law.
ARTICLE IV
COVENANTS OF SELLER
Section 4.1 Conduct of Seller Pending the Closing.
Seller shall not, between the date of this Agreement and the Closing Date or the earlier termination of this Agreement, do or agree to do any of the following without the prior written consent of Buyer:
(a) take or fail to take, or agree to take or fail to take, any action which would make any representation or warranty made by Seller herein untrue or incorrect in any material respect as of the date of this Agreement or the date of the Closing;
(b) sell, lease, license, encumber, transfer or otherwise dispose of any Purchased Assets; and
(c) agree to do any of the foregoing.
Section 4.2 Notification of Certain Events.
Seller shall give prompt notice to Buyer if any of the following occurs after the date of this Agreement: (i) there has been a material failure of Seller to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; (ii) receipt by Seller of any material notice or other communication from any Governmental Authority in connection with the Transactions; (iii) the occurrence of an event which would cause a condition in Section 7.2 not to be satisfied; or (iv) the commencement or threat, in writing, of any Action against Seller, or any of its properties, with respect to the Transactions and/or any of the Purchased Assets. No such notice to Buyer shall have any effect on the determination of whether or not any of the conditions to Closing or to
Page 5 of 17
the consummation of the Transactions have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
ARTICLE V
COVENANTS OF BUYER
Section 5.1 Representations and Warranties.
Buyer covenants and agrees that, except as otherwise contemplated by this Agreement or unless Seller shall give its prior written consent, Buyer shall not, between the date of this Agreement and the Closing Date or the earlier termination of this Agreement, take or fail to take, or agree to take or fail to take, any action which would make any representation or warranty made by Buyer herein untrue or incorrect in any material respect.
Section 5.2 Notification of Certain Events.
Buyer shall give prompt notice to Seller if any of the following occurs after the date of this Agreement: (i) there has been a material failure of Buyer to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; (ii) receipt by Buyer of any material notice or other communication from any Governmental Authority in connection with the Transactions; (iii) the occurrence of an event which would cause a condition in Section 7.3 not to be satisfied; or (iv) the commencement or threat, in writing, of any Action against Buyer, or any of its properties, with respect to the Transactions. No such notice to Seller shall have any effect on the determination of whether or not any of the conditions to Closing or to the consummation of the Transactions have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
Section 5.3 Condition of Purchased Assets.
BUYER ACKNOWLEDGES THAT IT IS A SOPHISTICATED INVESTOR IN ASSET PURCHASES OF THE TYPE CONTEMPLATED BY THIS AGREEMENT AND THAT ITS VALUATION OF AND DECISION TO PURCHASE THE PURCHASED ASSETS IS BASED UPON ITS OWN INDEPENDENT EXPERT EVALUATIONS OF SUCH FACTS AND MATERIALS DEEMED RELEVANT BY BUYER. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 2 ABOVE, SELLER HAS NOT MADE, AND SELLER HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATION, WARRANTY, GUARANTY, PROMISE, COVENANT OR AGREEMENT, IN EACH CASE WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING, OR WITH RESPECT TO THE PURCHASED ASSETS. BUYER ACKNOWLEDGES AND AGREES THAT, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PURCHASED ASSETS, BUYER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PURCHASED ASSETS, AND NOT ON ANY MATERIALS AND OTHER INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER EXCEPT FOR THE REPRESENTATIONS SET FORTH IN THIS AGREEMENT. BUYER FURTHER ACKNOWLEDGES THAT ANY INFORMATION PROVIDED AND TO BE PROVIDED WITH RESPECT TO THE PURCHASED ASSETS WAS OBTAINED FROM A VARIETY OF SOURCES AND SELLER (i) HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION; AND (ii) MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED HEREIN, BUYER AGREES TO ACCEPT THE PURCHASED ASSETS AND ACKNOWLEDGES THAT THE SALE OF THE PURCHASED ASSETS AS PROVIDED FOR HEREIN IS CONDITIONED ON THE FACT THAT THE PROPERTY IS "AS IS, WHERE IS AND WITH ALL FAULTS". WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE,
Page 6 of 17
QUALITY OR CONDITION OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (B) THE INCOME TO BE DERIVED FROM THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (C) THE SUITABILITY OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF) FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREWITH, (D) THE COMPLIANCE OF OR BY THE PURCHASED ASSETS (OR ANY PORTION THEREOF) OR ITS USE WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (F) THE MANNER OR QUALITY OF THE OPERATIONSENABLED BY THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (G) THE MANNER, QUALITY, OR STATE OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (H) THE PAST, PRESENT OR FUTURE USE OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), (I) THE RELIABILITY, ACCURACY OR COMPLETENESS OF ANY OF THE PURCHASED ASSETS FOR THE USES INTENDED BY BUYER; AND BUYER HEREBY WAIVES ANY RIGHT TO MAKE ANY CLAIM BASED ON ANY OF THE FOREGOING.
ARTICLE VI
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 6.1 Commercially Reasonable Efforts.
(a) Upon the terms and subject to the conditions hereof, each of the Parties agrees to use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective as promptly as practicable the Transactions and to vest in Buyer (and any transferee of Buyer) good and marketable title to the Purchased Assets, including obtaining all consents, waivers, authorizations and approvals from Governmental Authorities and other third parties required for the consummation of the Transactions.
(b) From time to time after the Closing, at the request of Buyer (or any transferee of Buyer) and at such requesting party’s expense, and without further consideration, Seller agrees on its own behalf, as well as on behalf of its subsidiaries, affiliates, successors, assigns and legal representatives, to execute and deliver to Buyer any further documents or instruments and perform any further acts that may reasonably be deemed necessary to vest, record, perfect, support and/or confirm the rights herein conveyed, or intended so to be, to Buyer (and any transferee of Buyer) with respect to the Purchased Assets, including without limitation such assignments, agreements and limited powers of attorney as may be needed for recording or effectuating the transfer of the Purchased Assets in the United States. Nothing herein shall be deemed a waiver by Buyer of its right to receive at the Closing an effective assignment of such rights by Seller as otherwise set forth in this Agreement. Without limiting the generality of the foregoing, Seller shall execute and deliver to Buyer or obtain for delivery to Buyer, at the request of Buyer and at Buyer’s expense, and without further consideration, any documents required to update record title to the owned Purchased Assets to reflect Buyer (and any transferee of Buyer) as the record owner in each jurisdiction in which such Purchased Assets exists. At the request of Buyer and at Buyer’s expense, and without further consideration, Seller shall reasonably cooperate with Buyer (and any transferee of Buyer) in connection with the registration of the Purchased Assets in jurisdictions outside of the United States.
(c) From time to time after the Closing, at the request of Buyer and at Buyer’s expense, and without further consideration, Seller shall assist Buyer (and any transferee of Buyer) to the extent reasonably necessary for the defense or prosecution of any claim by or against any third party with respect to the ownership, validity, enforceability, infringement or other violation of or by the Purchased Assets, so long as Seller is not named as a party adverse to the Buyer in any such proceeding.
Section 6.2 Public Announcements.
Page 7 of 17
Each of the Parties agrees that no press release or announcement concerning this Agreement or the Transactions shall be issued by it or any of its Affiliates without the prior written consent of the other Party (which consent shall not be unreasonably withheld or delayed), except as such release or announcement may be required by applicable Law or the rules or regulations of any securities exchange, in which case such Party shall use its commercially reasonable efforts to allow the other Party reasonable time to comment on such release or announcement in advance of such issuance.
ARTICLE VII
CONDITIONS TO THE CLOSING
Section 7.1 Conditions to Obligations of Each Party.
The respective obligations of each Party to consummate the Transactions shall be subject to the condition that no Governmental Authority shall have enacted, issued, promulgated, enforced, initiated, or entered any Law or Order (whether temporary, preliminary or permanent) that is then in effect and has the effect of making the Transactions illegal or otherwise preventing or prohibiting consummation of the Transactions.
Section 7.2 Additional Conditions to Obligations of Buyer.
The obligation of Buyer to consummate the Transactions shall also be subject to the satisfaction or waiver (where permissible), on or prior to the Closing Date, of each of the following conditions:
(a) The representations and warranties of Seller set forth in Article II of this Agreement (i) that are qualified by the words “material” or “material adverse effect” shall be true and correct in all respects on and as of the Closing Date as if made on and as of such date and (ii) that are not so qualified shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except in any such case (x) for changes contemplated by this Agreement and by the Seller Disclosure Schedule, and (y) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall remain true and correct (in all material respects, as the case may be) as of such date.
(b) Seller shall in all material respects have performed or complied with each obligation and covenant to be performed or complied with by Seller hereunder on or prior to the Closing Date, including the deliveries under Section 1.4(b).
(c) Buyer shall have received a certificate of Seller, dated the Closing Date, signed by an officer of Seller, to the effect that the conditions specified in Sections 7.2(a) and (b) have been satisfied.
Section 7.3 Additional Conditions to Obligations of Seller.
The obligation of Seller to consummate the Transactions shall also be subject to the satisfaction or waiver (where permissible), on or prior to the Closing Date, of each of the following conditions:
(a) The representations and warranties of Buyer set forth in Article III of this Agreement shall be true and correct in all material respects on and as of the Closing Date as if made on and as of such date, except in any such case (x) for changes contemplated by this Agreement and by the Buyer Disclosure Schedule, and (y) to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall remain true and correct (in all material respects, as the case may be) as of such date.
(b) Buyer shall in all material respects have performed or complied with each obligation and covenant to be performed or complied with by it hereunder on or prior to the Closing Date, including the deliveries under Section 1.4(c).
Page 8 of 17
(c) Seller shall have received a certificate of Buyer, dated the Closing Date, signed by an executive officer of Buyer, to the effect that the conditions specified in Sections 7.3(a) and (b) have been satisfied.
ARTICLE VIII
TERMINATION
Section 8.1 Termination.
This Agreement may not be terminated at any time prior to the Closing Date except:
(a) By mutual written consent of Buyer and Seller;
(b) by either Seller or Buyer, if the Closing shall not have occurred on or before June 15, 2017 (the “Outside Date”); provided, however, that the right to terminate this Agreement under this Section 8.1(b) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Transactions to be consummated on or before the Outside Date;
(c) by either Seller or Buyer if any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or Order that is, in each case, then in effect and is final and non-appealable and has the effect of making the Transactions illegal or otherwise preventing or prohibiting consummation of the Transactions; provided, however, that the right to terminate this Agreement under this Section 8.1(c) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, any such Law or Order to have been enacted, issued, promulgated, enforced or entered;
(d) by Buyer (if Buyer is not in material breach of any of the terms or conditions of this Agreement), if there has been a material breach by Seller of any terms or conditions of this Agreement, or if any representation or warranty of Seller shall have become inaccurate, in either case that would result in a failure of a condition set forth in Section 7.2(a) or 7.2(b) (a “Terminating Seller Breach”); provided, that if such Terminating Seller Breach is reasonably curable by Seller, within 30 days after Seller has received written notice from Buyer of such Terminating Seller Breach, through the exercise of its commercially reasonable efforts and for as long as Seller continues to exercise such commercially reasonable efforts, Buyer may not terminate this Agreement under this Section 8.1(d) until the earlier of the expiration of such 30-day period and the Outside Date; and
(e) by Seller (if Seller is not in material breach of any of its representations, warranties, covenants or agreements under this Agreement), if there has been a material breach by Buyer of any of terms or conditions of this Agreement, or if any representation or warranty of Buyer shall have become inaccurate, in either case that would result in a failure of a condition set forth in Section 7.3(a) or 7.3(b) (a “Terminating Buyer Breach”); provided, that if such Terminating Buyer Breach is reasonably curable by Buyer, within 30 days after Buyer has received written notice from Seller of such Terminating Buyer Breach, through the exercise of its commercially reasonable efforts and for as long as Buyer continues to exercise such commercially reasonable efforts, Seller may not terminate this Agreement under this Section 8.1(e) until the earlier of the expiration of such 30-day period and the Outside Date.
Section 8.2 Effect of Termination.
In the event of the termination of this Agreement pursuant to Section 8.1, this Agreement shall forthwith become void, and there shall be no liability on the part of any Party hereto or any of their respective Affiliates or the directors, officers, partners, members, managers, employees, agents or other representatives of any of them, and all rights and obligations of each Party hereto shall cease, except that nothing herein shall relieve any Party from liability for any breach of this Agreement committed before such termination. Without limiting the foregoing, Section 6.2, this Section 8.2 and Article X shall survive the termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, nothing shall limit or prevent any Party from exercising any
Page 9 of 17
rights or remedies it may have under Section 10.9 hereof in lieu of terminating this Agreement pursuant to Section 8.1. Notwithstanding anything to the contrary contained in this Agreement, nothing shall limit or prevent any Party from exercising any rights or remedies it may have under any of the agreements attached as Exhibits to this Agreement, whether or not this Agreement has been terminated.
ARTICLE IX
INDEMNIFICATION PROVISIONS
Section 9.1 Seller’s Indemnification Obligation.
Seller agrees that, from and after the Closing, it shall indemnify, defend and hold harmless Buyer and PearTrack and their respective officers, directors, Affiliates, partners, members, managers, employees, agents and other representatives (“Buyer Indemnified Parties”) from and against any damages, claims, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) (each, a “Liability” and, collectively, “Liabilities”) incurred by any of the foregoing Persons arising out of (a) any misrepresentation in or breach of any representation or warranty of Seller contained in Article II of this Agreement and/or (b) any breach of any covenant or agreement of Seller contained in this Agreement, and/or (c) any action, suit, litigation, proceeding at law or in equity, arbitration or governmental investigation against, or threatened against, Buyer relating to any pre-Closing matter regarding the Purchased Assets, except in all cases to the extent any Liabilities arise out of any breach of the Buyer's representations, warranties, covenants or agreements set forth in this Agreement.
Section 9.2 Buyer’s Indemnification Obligation.
Buyer agrees that, from and after the Closing, it shall indemnify, defend and hold harmless Seller and its officers, directors, Affiliates, partners, members, managers, employees, agents and other representatives (“Seller Indemnified Parties”) from and against any Liabilities incurred by any of the foregoing Persons arising out of (a) any misrepresentation in or breach of any representation or warranty of Buyer contained in Article III of this Agreement, (b) any breach of any covenant or agreement of Buyer contained in this Agreement, or (c) any action, suit, litigation, proceeding at law or in equity, arbitration or governmental investigation against, or threatened against, Seller relating to any post-Closing matter regarding the Purchased Assets, except in all cases to the extent any Liabilities arise out of any breach of the Seller's representations, warranties, covenants or agreements set forth in this Agreement.
Section 9.3 Procedures for Indemnification for Third Party Claims.
For purposes of this Article IX, any Party entitled to be indemnified under Article IX is referred to herein as an “Indemnified Party,” and any Party obligated to provide indemnification under Article IX is referred to herein as an “Indemnifying Party.” The obligations and liabilities of the Parties under this Article IX with respect to, relating to or arising out of claims of third parties (individually, a “Third Party Claim” and, collectively, the “Third Party Claims”) shall be subject to the following terms and conditions:
(a) The Indemnified Party shall give the Indemnifying Party prompt written notice of any Liability regarding which it seeks indemnification. In the event a Liability is the result of a Liability asserted against the Indemnified Party by a third-party to this Agreement (a “Third Party Claim”), the Indemnifying Party may undertake the defense of that claim by representatives chosen by it with the written consent of the Indemnified Party, which consent may not be unreasonably withheld, conditioned or delayed, provided, that, in such event, the Indemnified Party will have the right to participate in such defense through counsel of its own choice. Any such notice of a Liability shall identify with reasonable specificity the basis for the indemnification claimed, the facts giving rise to the Liability and the amount of the Liability (or, if such amount is not yet known, a reasonable estimate of the amount of the Liability). The Indemnified Party shall make available to the Indemnifying Party copies of all relevant documents and records in its possession at the expense of the Indemnifying Party. Failure of an Indemnified Party to give prompt notice shall not relieve the Indemnifying Party of its obligation to indemnify, except to the
Page 10 of 17
extent that the failure to so notify materially prejudices the Indemnifying Party’s ability to defend such claim against a third party.
(b) If the Indemnifying Party, within ten (10) days after notice from the Indemnified Party of any such Liability, notifies the Indemnified Party in writing of its election not to, or fails to, assume the defense thereof in accordance with Section 9.3(a) of this Agreement, the Indemnified Party shall have the right (but not the obligation) to undertake the defense of the Liability. Any failure on the part of the Indemnifying Party to notify the Indemnified Party within the time period provided above regarding its election shall be deemed an election by the Indemnifying Party not to assume and control the defense of the Liability.
(c) Anything in this Section 9.3 to the contrary notwithstanding, the Indemnifying Party shall not, and does not have any authority to, without the prior written consent of the Indemnified Party, settle or compromise any Liability or consent to the entry of judgment which does not include as an unconditional term thereof the unconditional release of the Indemnified Party, or consent to the entry of judgment with respect thereto, any Liability regarding which it has delivered notice of a claim for indemnification to the Indemnifying Party, without first obtaining the written consent of the Indemnifying Party (which shall not be unreasonably withheld or delayed). An Indemnifying Party shall be deemed to have consented to a settlement, compromise, payment or judgment by the Indemnified Party if it does not respond to written notice from the Indemnified Party seeking such consent within ten (10) days after delivery of such notice to the Indemnifying Party.
Section 9.4 Indemnification Limitations.
(a) Time Limits On Indemnification. No claim on account of a breach or inaccuracy of a representation or warranty shall be made after the expiration of the survival periods referred to in Section 10.1 of this Agreement. Notwithstanding the foregoing, if a written claim or written notice is given under Article IX with respect to any representation or warranty prior to the expiration of its survival period, the claim with respect to such representation or warranty shall continue until such claim is finally resolved.
(b) Limitations on Damages.
(i) In no event shall Seller be liable for indemnification pursuant to Section 9.1(a) unless and until the aggregate of all Liabilities which are incurred or suffered by the Buyer Indemnified Parties exceeds $50,000 (the “Basket”), in which case the Buyer Indemnified Parties shall be entitled to indemnification for all such Liabilities including the Basket (subject to Section 9.4(b)(ii)). In no event shall Buyer be liable for indemnification pursuant to Section 9.2(a) unless and until the aggregate of all Liabilities which are incurred or suffered by the Seller Indemnified Parties exceeds the Basket, in which case the Seller Indemnified Parties shall be entitled to indemnification for all such Liabilities including the Basket (subject to Section 9.4(b)(ii)).
(ii) Notwithstanding anything to the contrary in this Agreement, the maximum aggregate liability of Seller pursuant to Section 9.1(a) shall not exceed (1) the amount of money actually paid to and received by the Seller from the Buyer or their Affiliates pursuant to the terms of this Agreement and any of the Agreements attached as Exhibits hereto as of the date the notice of requested indemnification is delivered to the Seller, less (2) any amounts of money currently due the Seller from the Buyer or their Affiliates pursuant to the terms of this Agreement and any of the Agreements attached as Exhibits hereto. For purposes of this provision, the right to purchase PearTrack common stock at its par value or the shares, if purchased, shall be valued at the greater of its book value or its then current market price.
The maximum aggregate liability of Buyer pursuant to Section 9.2(a) shall not exceed $7,500,000.
(iii) Notwithstanding anything to the contrary contained in this Agreement or otherwise, no Party to this Agreement shall be liable to any Indemnified Party for any special, incidental, punitive, consequential or similar damagesexcept, in the event a Third Party Claim results in a judgment against an Indemnified Party by the third-party claimant, then such damages shall be included in the amount of indemnification due the Indemnified Party.
Page 11 of 17
Section 9.5 Exclusive Remedy.
The remedies provided in this Article IX shall be the sole and exclusive remedies of the Parties with respect to the matters arising from or related to this Agreement or the Transactions, except that nothing herein shall prevent a Party from seeking specific performance pursuant to Section 10.9, subject to the provisions thereof, including with respect to the obligations in Section 6.1.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Survival of Representations and Warranties.
The representations and warranties made by Seller in Article II of this Agreement shall survive until the ate that is fifteen(15) months after the Closing Date. The representations and warranties made by Buyer in Article III of this Agreement shall survive until the date that is fifteen (15) months after the Closing Date.
Section 10.2 Notices.
All notices and other communications under this Agreement shall be in writing and shall be deemed given (a) when delivered personally by hand (with written confirmation of receipt) or (b) one Business Day following the day sent by nationally-recognized overnight courier (with written confirmation of receipt), in each case at the following addresses (or to such other address as a Party may have specified by notice given to the other Party pursuant to this provision)
(a)if to Buyer:
PearTrack Security Systems, Inc.
1327 Ocean Ave, Suite B
Santa Monica, CA 90401
Attention: Kyle W. Withrow, CEO
with a copy to:
PearTrack Security Systems, Inc.
1327 Ocean Ave, Suite B
Santa Monica, CA 90401
Attention: Calli R. Bucci, CFO
(b)If to Seller:
Intellectual Property Network, Inc.
4200 South Saguaro Path Court
Tucson, AZ 85730
Attention: Nathaniel T. Bradley
with a copy to:
Intellectual Property Network, Inc.
333 Hudson Street, Suite 601
New York, NY 10013
Attention: Constantine Potamianos, Corporate Counsel
Page 12 of 17
Any notice or other communication that has been given or made as of a date that is not a Business Day shall be deemed to have been given or made on the next succeeding day that is a Business Day.
Section 10.3 Headings.
The headings contained in this Agreement and the disclosure schedules are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or the disclosure schedules. Unless the context of this Agreement otherwise requires, words of any gender are deemed to include each other gender and words using the singular or plural number also include the plural or singular number, respectively.
Section 10.4 Entire Agreement.
This Agreement, together with the exhibits and schedules attached hereto, constitutes the entire agreement, and supersede all prior agreements and undertakings, both written and oral, between the Parties with respect to the subject matter hereof. There are no agreements, commitments, promises, or representations that are not contained herein.
Section 10.5 Assignment: Parties in Interest.
Neither this Agreement nor any rights or obligations hereunder shall be assigned by any Party without the prior written consent of the other Party. This Agreement shall be binding upon and inure solely to the benefit of each Party hereto and its successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under this Agreement, other than Article IX hereof (which is intended to be for the benefit of the Persons covered thereby and may be enforced by such Persons). There are no third-party beneficiaries to this Agreement.
Section 10.6 Governing Law; Consent to Jurisdiction.
This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Nevada applicable to contracts executed in and to be performed entirely in that State, without regard to conflicts of Laws principles thereof to the extent that the general application of the Laws of another jurisdiction would be required thereby.
Section 10.7 Counterparts.
This Agreement may be executed and delivered (including by facsimile transmission or .pdf) in one or more counterparts, and by the Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
Section 10.8 Severability.
In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction.
Section 10.9 Specific Performance.
The Parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Parties further agree that each Party shall be entitled to seek an injunction or restraining order to prevent breaches
Page 13 of 17
of this Agreement and to seek to enforce specifically the terms and provisions hereof, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity.
Section 10.10 Fees and Expenses.
All fees, costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the Party incurring the same, regardless of the termination, if any, of this Agreement pursuant to Section 8.1. Notwithstanding the foregoing, in the event the Parties engage in litigation relating to or arising out of this Agreement or the performance thereof, the Parties agree that the Court shall be asked to determine which Party is the prevailing Party to the proceeding or proceedings, and the non-prevailing Party or Parties shall, jointly and severally, be liable to the prevailing Party in the amount of all reasonable attorney’s fees, court costs, and all other expenses, incurred by the prevailing Party to the proceeding in addition to any other relief to which the prevailing Party may be entitled.
Section 10.11 Amendment.
This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by Buyer, PearTrack, and Seller.
Section 10.12 Waiver.
At any time prior to the Closing Date, any Party hereto may (a) extend the time for the performance of any of the obligations or other acts of the other Party hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions contained herein. Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the Parties hereto. The failure of any Party hereto to assert any of its rights hereunder shall not constitute a waiver of such rights.
ARTICLE XI
CERTAIN DEFINITIONS
For purposes of this Agreement, the term:
“Action” shall have the meaning ascribed to it in Section 2.4.
“Affiliate” of a Person means a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified. “Agreement” shall have the meaning ascribed to it in the preamble.
“Business Day” means any calendar day which is not a Saturday, Sunday or federal holiday.
“Buyer” shall have the meaning ascribed to it in the Preamble.
“Buyer Disclosure Schedule” shall have the meaning ascribed to it in the preamble to Article III.
“Closing” shall have the meaning ascribed to it in Section 1.4(a).
“Closing Date” shall have the meaning ascribed to it in Section 1.4(a).
“Control” (including the terms “Controlled by” and “under common Control with”) means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management
Page 14 of 17
and policies of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or credit arrangement or otherwise.
“Data” means all information gathered in the use or operation of any of the Purchased Assets that identifies or describes an individual or an individual’s record of behavior or action, including without limitation, name, telephone, postal address, phone number, email, date of birth, gender, or any other information identifiable to a specific person, as amended, to the extent such information exists as of the Closing Date.
“Encumbrance” means any charge, claim, community property interest, condition, easement, covenant, warrant, demand, encumbrance, equitable interest, lien, mortgage, option, purchase right, pledge, security interest, right of first refusal or other right of third parties or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.
“Exchange Act” shall have the meaning ascribed to it in Section 2.3.
“Governmental Authority” means any United States federal, state or local government, governmental, regulatory or administrative authority, agency, self-regulatory body, instrumentality or commission, and any court, tribunal or judicial or arbitral body (including private bodies) and any political or other subdivision, department or branch of any of the foregoing.
“Indemnified Party” shall have the meaning ascribed to it in Section 9.3.
“Indemnifying Party” shall have the meaning ascribed to it in Section 9.3.
“Intellectual Property” means all United States and foreign intellectual property and all other similar proprietary rights, including all (i) patents and patent applications, including divisionals, continuations, continuations-in-part, reissues, reexaminations and extensions thereof and counterparts claiming priority therefrom; utility models; invention disclosures; and statutory invention registrations and certificates; (ii) registered, pending and unregistered trademarks, service marks, trade dress, logos, trade names, corporate names and other source identifiers, domain names, Internet sites and web pages; and registrations and applications for registration for any of the foregoing, together with all of the goodwill associated therewith; (iii) registered copyrights, and registrations and applications for registration thereof; rights of publicity; and copyrightable works; (iv) all inventions and design rights (whether patentable or unpatentable) and all categories of trade secrets as defined in the Uniform Trade Secrets Act, including business, technical and financial information; and (v) confidential and proprietary information, including know-how.
“Seller’s Knowledge” shall have the meaning ascribed to it in Section 2.6.
“Laws” means any federal, state or local statute, law, rule, ordinance, code or regulation of any Governmental Authority.
“Liability” and, collectively, “Liabilities” shall have the meaning ascribed to it in Section 9.1.
“Order” shall have the meaning ascribed to it in Section 2.4.
“Outside Date” shall have the meaning ascribed to it in Section 8.1(b).
“Parties” shall have the meaning ascribed to it in the preamble.
“Patent Application” means: Patent Application, filed June 13, under No. 62/518,788 and filed internationally on June 13, 2018 under PCT/US 18,3737.
Page 15 of 17
“Patent Assignment” means the Patent Assignment Agreement whereby, as part of this Agreement, Seller assigns US Patent Application No. 62/518,788 and International Application filed under No. PCT/US 18,37370.
“Permitted Encumbrance” means: (i) statutory liens for Taxes, assessments and governmental charges or levies not yet due and payable or that are being contested in good faith by appropriate proceedings; (ii) mechanics’, materialmen’s, carriers’, warehousemen’s or similar statutory liens for amounts not yet due or being diligently contested in good faith in appropriate proceedings; and (iii) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations.
“Person” means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization or other entity.
“Purchase Price” shall have the meaning ascribed to it in Section 1.3.
“Purchased Assets” shall have the meaning ascribed to it in Section 1.1.
“Seller” shall have the meaning ascribed to it in the Preamble.
“Seller Disclosure Schedule” shall have the meaning ascribed to it in the preamble to Article II.
“Subsidiary” means any Person with respect to which a specified Person directly or indirectly (A) owns a majority of the equity interests, (B) has the power to elect a majority of that Person’s board of directors or similar governing body, or (C) otherwise has the power, directly or indirectly, to direct the business and policies of that Person.
“Tax” or “Taxes” means any and all taxes, fees, levies, duties, tariffs, imposts and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Authority, including: taxes or other charges on or with respect to income, franchise, windfall or other profits, gross receipts, property, sales, use, equity interests, payroll, employment, social security, workers’ compensation, unemployment compensation or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value-added or gains taxes; license, registration and documentation fees; and customers’ duties, tariffs and similar charges.
“Terminating Buyer Breach” shall have the meaning ascribed to it in Section 8.1(e).
“Terminating Seller Breach” shall have the meaning ascribed to it in Section 8.1(d).
“Third Party Claim” and, collectively, “Third Party Claims” shall have the meaning ascribed to it in Section 9.3.
“Transactions” shall have the meaning ascribed to it in Section 2.2.
Page 16 of 17
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of the date first written above.
SELLER:
INTELLECTUAL PROPERTY NETWORK, INC.
By: /s/ Nathaniel T. Bradley
Name: Nathaniel T. Bradley
Title: President/CEO
BUYER:
PEARTRACK SECURITY SYSTEMS, INC.
By: /s/ Kyle W. Withrow
Name: Kyle W. Withrow
Title: President/CEO
Page 17 of 17
SCHEDULE FOR EXHIBITS
EXHIBIT “A”US & International Patents & Patent Applications
EXHIBIT “B”“Revenue Sharing Agreement”
EXHIBIT “C”“Common Stock Purchase Agreement”
EXHIBIT “D”“Royalty Agreement”
EXHIBIT “E”“Patent Assignment Agreement”
EXHIBIT “A”
US & INTERNATIONAL PATENT AND PATENT APPLICATIONS
1.US Patent Application
EXHIBIT “B”
REVENUE SHARING AGREEMENT
EXHIBIT “C”
COMMON STOCK PURCHASE AGREEMENT
EXHIBIT “D”
ROYALTY AGREEMENT
REVENUE SHARING AGREEMENT
THIS REVENUE SHARING AGREEMENT (this “Agreement”) is made and entered into as of October 11, 2018, by and between PearTrack Security Systems, Inc., a Nevada corporation at 1327 Ocean Avenue Suite B Santa Monica, CA 90401 (the “Company”), and Intellectual Property Network, Inc. a Delaware corporation with its principal address at 4200 South Saguaro Path Court, Tucson AZ 85730 (“IPN” or “Revenue Share Recipient ”), and signed into (“Revenue Sharing Agreement”) individually a “Party” and collectively they are “Parties” to this Agreement.
WHEREAS, the Company has entered that certain Intellectual Property Purchase Agreement for the Sale and Purchase of certain from IPN (the “Purchase Agreement”); and
WHEREAS, as part of the Purchase Agreement’s consideration, the Company agreed to enter a Revenue Sharing Agreement (“Revenue Agreement”) with IPN, Inc. whereby the Company will pay IPN up to One Million Dollars ($1,000,000) from the Adjusted Gross Revenue generated by the Company on terms and conditions more particularly set forth herein; and
WHEREAS, the Company has been authorized its Board of Directors to enter a Revenue Agreement with IPN on the terms and conditions set forth herein below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, and to consummate the terms of the Purchase Agreement, which the Parties hereby acknowledge this Agreement to be an integral part thereof, it is hereby agreed as follows:
1.Definitions.
1.1.In this Agreement the following words and phrases shall have the following meanings unless the context requires otherwise:
1.1.1.“Agreement” means this Agreement, and all the exhibits, Schedules and other documents attached to or referred to in this Agreement, and all amendments and supplements, if any, to this Agreement.
1.1.2.“Adjusted Gross Revenue” means for this Agreement all revenue accounted to the Company from the Defined Revenue Sources, as defined in Section 1.1.6 below, less Cost of Goods Sold, as defined herein in Section 1.1.5.
PearTrack Security Systems, Inc. Revenue Sharing Agreement
Intellectual Property Network, Inc.October 11, 2018
Page 1 of 4
1.1.3.“Adjusted Gross Revenue Sharing Percentage” shall mean an amount equal to three percent (3%) of the Adjusted Gross Revenue.
1.1.4.“Business Day” shall mean a day other than a day, which is a Saturday, Sunday, or Public or bank holiday in Los Angeles, California.
1.1.5.“Cost of Goods Sold” (COGS) is defined herein as the direct costs attributable to the production of the goods sold by each Defined Revenue Source company. This amount includes the cost of the materials used in creating the good and excludes direct labor costs used to produce the good. In addition, “COGS” will include the direct costs associated with commission from sales representatives, sales agents and sales partnerships, if applicable.
2.Revenue Sharing. During the Term of this Agreement, the Company shall pay to IPN, the Adjusted Gross Revenue Sharing Percentage, in cash or by wire transfer as directed by IPN, calculated based on the Adjusted Gross Revenue accounted by the Company and its subsidiaries during each calendar quarter (January through March being the First Quarter, April through June being the Second Quarter, July through September being the Third Quarter and October through December being the Fourth Quarter) commencing with the end of the first calendar quarter after the date of this Agreement. All payments of the Adjusted Gross Revenue Sharing Percentage shall be paid within thirty (30) days of the last day of the calendar quarter during which revenues are accounted, time being of the essence of this provision. At the time of payment, the Company shall also deliver IPN an accurate and complete written statement setting forth the Company’s calculations of the Adjusted Gross Revenue Sharing Percentage, including the basis of the gross revenues from the Defined Revenue Sources, the Cost of Goods Sold and the Adjusted Gross Revenues during the quarter, certified as to accuracy by an appropriate representative of the Company.
3.Term. This Agreement shall continue to be in force until the earliest to occur of (i) the date on which IPN has received aggregate payments of the Adjusted Gross Revenue Sharing Percentage in an amount totaling One Million Dollars ($1,000,000), or (ii) the date on which IPN receives payment resulting from a sale as provided in Section 4 below, or (iii) the date on which the Parties, by mutual written consent, agree to terminate this Agreement.
4.Payment on Sale of Purchased Assets. In the event the Company (or any affiliate or subsidiary of the Company which acquires the Purchased Assets under the terms of the Purchase Agreement) sells or otherwise transfers (i) any of the “Purchased Assets” (as that term is defined in the terms of the Purchase Agreement) or (ii) all or substantially all of its operating assets to a third party for valuable consideration and the aggregate payments of the Adjusted Gross Revenue Sharing Percentage paid by Company to IPN at the time of such sale
PearTrack Security Systems, Inc. Revenue Sharing Agreement
Intellectual Property Network, Inc.October 11, 2018
Page 2 of 4
or transfer total less than One Million Dollars ($1,000,000) in the aggregate, then the Company agrees pay IPN the difference between the total, aggregate amount of all Adjusted Gross Revenue Sharing Percentage payments made by the Company at such time and One Million Dollars ($1,000,000). Such amount due under this Section 4 shall be payable by the Company to IPN in cash or wired funds (as directed by IPN) within thirty (30) days of the last day of the calendar quarter during which the sale or transfer occurs, time being of the essence of this provision.
5.Waiver. The waiver of the breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach of the same or other provision hereof.
6.Notices. All notices and other communications under this Agreement will be in writing and will be given by personal or courier delivery, facsimile or first class mail, certified or registered with return receipt requested, and will be deemed to have been duly given upon receipt if personally delivered or delivered by courier, on the date of transmission if transmitted by facsimile, or three business days after mailing if mailed, to the addresses of the Company and IPN contained in the records of the Company at the time of such notice.
To PearTrack Security Systems, Inc.:
In care of:Kyle W. Withrow
Address:1327 Ocean Avenue, Suite B
Santa Monica, CA 90401
Tel:(310) 899-4442
Fax:(888) 899-3402
Email:billw@peartracksecuritysystems.com
To Intellectual Property Network, Inc.:
In care of:Nathaniel T. Bradley
Address:4200 South Saguaro Path Court
Tucson, AZ 85730
Tel:(520) 631.9595
Fax:(520)
Email:bradley.nate@theipn.com
7.Headings. The section headings used in this Agreement are intended for convenience of reference and will not by themselves determine the construction or interpretation of any provision of this Agreement.
PearTrack Security Systems, Inc. Revenue Sharing Agreement
Intellectual Property Network, Inc.October 11, 2018
Page 3 of 4
8.Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state of Nevada, excluding those laws that direct the application of the laws of another jurisdiction.
9.Counterparts and Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may be executed by facsimile signature (including signatures in Adobe PDF or similar format).
10.Enforcement. If any portion of this Agreement is determined to be invalid or unenforceable, such portion will be adjusted, rather than voided, to achieve the intent of the parties to the extent possible, and the remainder will be enforced to the maximum extent possible. In the event the parties engage in litigation relating to or arising out of this Agreement or the performance thereof, the parties agree that the Court shall be asked to determine which party is the prevailing party to the proceeding or proceedings, and the non-prevailing party or parties shall, jointly and severally, be liable to the prevailing party in the amount of all reasonable attorney’s fees, court costs, and all other expenses, incurred by the prevailing party to the proceeding in addition to any other relief to which the prevailing party may be entitled.
IN WITNESS, WHEREOF, the parties hereto have executed this Revenue Sharing Agreement as of the date set forth in the preamble hereto.
PEARTRACK SECURITY SYSTEMS, INC.
By: /s/ Kyle W. Withrow
Name:Kyle W. Withrow
Title:President/CEO
INTELLECTUAL PROPERTY NETWORK, INC.
By: /s/ Nathaniel T. Bradley
Name:Nathaniel T. Bradley
Title:President/CEO
PearTrack Security Systems, Inc. Revenue Sharing Agreement
Intellectual Property Network, Inc.October 11, 2018
Page 4 of 4
ROYALTY AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of October 11, 2018, by and between PearTrack Security Systems, Inc. a corporation organized under the laws of the State of Nevada, (“PTSS”) and Intellectual Property Network, Inc., a Delaware corporation ("IPN"). PTSS and IPN are hereinafter referred to as the "Parties."
WHEREAS, the Parties have entered into an Intellectual Property Purchase Agreement and other related agreements pursuant to which PTSS is purchasing certain intellectual property and related assets from IPN as set forth therein (the "Acquisition Agreement"); and
WHEREAS, as part of the consideration of the Acquisition Agreement, IPN shall assign, and PTSS shall acquire, all right, title, and interest in and to a patent application that is owned by IPN pursuant to that certain “Patent Application Assignment” (defined herein below) in exchange for payment of certain royalties to IPN, among other consideration.
NOW, THEREFORE, for and in consideration of the Parties’ Acquisition Agreement, Patent Application Assignment and the mutual covenants contained herein, and for other good and valuable consideration receipt of which each party hereby acknowledges, the Parties, intending to be legally bound hereby, agree as follows:
1.DEFINITIONS
1.1"AFFILIATE" shall mean any entity in which PTSS or IPN (as the case may be), directly or indirectly, or through one or more intermediaries, holds the beneficial ownership of more than ten percent (10%) or the equity securities or interests, and only so long as such ownership continues.
1.2"PATENT APPLICATION" shall mean the Patent Application, filed June 13, 2017 “USPTO Patent Application No. 62/518,788”, and filed internationally under No. PCT/US 18,3737” a copy of which is attached as Exhibit “A” to this Agreement.
1.3“PATENT APPLICATION ASSIGNMENT” shall mean the Patent Application Assignment Agreement whereby, as part of this Agreement, Seller assigns US Patent Application No. 62/518,788 and International Application filed under No. PCT/US 18,3737 attached as Exhibit “B” to this Agreement.
2.GRANT OF RIGHTS.
2.1IPN shall assign all of IPN's right, title and interest in the Assigned Patent Application, subject to the conditions set forth in Section 2.3 of this Agreement and pursuant to the terms of the Patent Application Assignment. In order to affect such ownership transfer, contemporaneously with the execution of this Agreement, IPN has executed that certain separate assignment document, to be recorded with the United States Patent and Trademark Office in a form
PearTrack Security Systems, Inc. Royalty Agreement
Intellectual Property Network, Inc.October 11, 2018
Page 1 of 5
determined by PTSS to be appropriate. IPN shall reasonably cooperate with PTSS, at PTSS’s sole expense, in the filing and prosecution of the Assigned Patent Application.
2.2IPN promptly shall deliver to PTSS (or provide access to) all documentation in its possession or control pertaining to the Assigned Patent Application, including, to the extent possessed, copies of all correspondence to or from examining authorities regarding such Assigned Patent Application, patents and prior art searches pertaining to such Assigned Patent Application, and all correspondence with any attorney involved in the preparation and/or prosecution of the Assigned Patent Application.
2.3Contemporaneously with the execution of this Agreement, PTSS shall delver that certain Limited License Agreement attached as Exhibit “E” to the Acquisition Agreement which grants IPN a non-exclusive, non-transferable, worldwide, irrevocable, perpetual, royalty-free, fully paid-up, license under the Assigned Patent Application to reproduce, make, have made, use, import, offer for sale, and sell any products or services.
3.ROYALTY
3.1PTSS shall pay IPN an amount equal to one percent (1%) of all adjusted gross revenues accounted by PTSS from any sale, use, derivation, license, grant or transfer of any rights in, to or regarding the Assigned Patent Application, any subsequently issued patent resulting from the Assigned Patent Application (as may be modified or amended from time to time by PTSS), the commercial exploitation of the Assigned Patent Application, and any technological applications or processes enable by use of the information contained in the same (the “Royalty”).
3.2During each calendar quarter this Agreement is in effect (January through March being the First Quarter, April through June being the Second Quarter, July through September being the Third Quarter and October through December being the Fourth Quarter) commencing with the end of the first calendar quarter after the date of this Agreement, PTSS shall deliver to IPN, within thirty (30) days from the last day of the calendar quarter, an accurate and complete written statement setting forth PTSS’s calculations of all Royalty payments due IPN from gross revenues accounted during such calendar quarter, including all amounts of gross revenues accounted from whatever sources related to the Royalty during the quarter, certified as to accuracy by an appropriate representative of PTSS. Time is of the essence of this provision. PTSS hereby grants IPN the complete right to audit and inspect PTSS’s records and operations (including the right to access PTSS’s proprietary or confidential business information to the extent reasonably necessary, provided that IPN agrees to keep all such information confidential when identified as such by PTSS), at any time, upon reasonable notice, to insure the amount of the Royalty paid to IPN under the terms of this Agreement is accurate and appropriate. In the event IPN determines that the Royalty amount is less than the amount due under the terms of this Agreement and the difference between the amount due and the amount paid exceed two percent (2%) of the amount paid by PTSS, then PTSS agrees to reimburse IPN for all costs and expenses reasonably incurred by IPN to discovery such discrepancy.
PearTrack Security Systems, Inc. Royalty Agreement
Intellectual Property Network, Inc.October 11, 2018
Page 2 of 5
3.3All payments of Royalty amounts shall be paid within thirty-days (30) of the last day of the calendar quarter during which revenues are accounted, time being of the essence of this provision. Payments shall commence. IPN shall be entitled to Royalty payment commencing on the date of this Agreement and ending at such time PTSS is no longer able to generate revenues from the sale, use, derivation, license, grant or transfer of any rights in, to or regarding the Assigned Patent Application, any subsequently issued patent resulting from the Assigned Patent Application (as may be modified or amended from time to time by PTSS), the commercial exploitation of the Assigned Patent Application or any subsequently issued patent resulting therefrom, and any technological applications or processes enable by use of the information contained in the same. Notwithstanding anything in the foregoing to the contrary, PTSS’s obligation to pay Royalty to IPN shall expire with the termination of any subsequently issued patent resulting from the Assigned Patent Application, (as may be amended).
4.WARRANTIES AND LIMITATION OF LIABILITY
4.1WARRANTIES.
4.1.1IPN represents and warrants that: (a) it is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) immediately prior to the execution of this Agreement (and subject to such licenses as have been disclosed to PTSS in writing), IPN owns all right, title and interest in and to the Assigned Patent Applications; and (c) it has the legal right to grant all the rights it purports to grant and to convey all the rights it purports to convey pursuant to Section 2.1 above.
4.1.2PTSS represents and warrants that: (a) PTSS Security Systems, Inc. it is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada; it is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada, (c) PTSS has full power and authority to enter into this Agreement and perform its obligations hereunder, and (d) provided the grants, conveyances and assignments made under Section 2.1 above are effective, it has the legal right to grant all the rights it purports to grant pursuant to Section 2.3 above.
4.1.3EXCEPT AS PROVIDED IN THIS SECTION 4.1 AND UNDER THE TERMS OF THE ACQUISITION AGREEMENT AND ANY AGREEMENTS ATACHED THERETO AS EXHIBITS, EACH PARTY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY (IF ANY) IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE CONDUCT OR EFFORT. ALL PATENT APPLICATIONS ASSIGNED UNDER THIS AGREEMENT ARE PROVIDED AS IS WITH ALL FAULTS, AND NO WARRANTIES OR PROMISES ARE MADE THAT THE SAME WILL WORK OR WORK FOR ANY PARTICULAR PURPOSE. EXCEPT AS PROVIDED IN THIS SECTION 4.1, THERE IS NO WARRANTY OF TITLE, AUTHORITY OR NON-INFRINGEMENT IN ANY SUCH PATENT APPLICATIONS.
PearTrack Security Systems, Inc. Royalty Agreement
Intellectual Property Network, Inc.October 11, 2018
Page 3 of 5
4.2LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE IMMEDIATELY PRECEDING SENTENCE SHALL HAVE NO APPLICABILITY TO ANY LEGAL CAUSE OF ACTION ARISING FROM ANY PARTY'S ACTIVITIES OUTSIDE THE SCOPE OF THIS AGREEMENT.
5.GENERAL
5.1ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and to the extent that this agreement is inconsistent with any other agreement(s) between the Parties, the terms of this agreement are to control.
5.2AMENDMENT. This Agreement shall not be amended or otherwise modified except by a written agreement dated after the date of this Agreement and signed on behalf of PTSS and IPN by their respective duly authorized representatives.
5.3GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada.
5.4ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the parties hereto and there respective successors and assigns.
5.5NO WAIVER. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
5.6SAVINGS CLAUSE. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
5.7FURTHER ASSURANCES. Each party agrees to take such further action and execute, deliver and/or file such documents or instruments as are reasonably necessary to carry out the terms and purposes of this Agreement.
5.8SECTION HEADINGS. The section headings used in this Agreement are intended for convenience only and shall not be deemed to supersede or modify any provisions.
5.9FEES AND EXPENSES. The Party incurring the same shall pay all fees, costs and expenses incurred in connection with this Agreement. Notwithstanding the foregoing, in the event the Parties engage in litigation relating to or arising out of this Agreement or the performance thereof, the Parties agree that the Court shall be asked to determine which Party is the prevailing Party to the proceeding or proceedings, and the non-prevailing Party or Parties shall,
PearTrack Security Systems, Inc. Royalty Agreement
Intellectual Property Network, Inc.October 11, 2018
Page 4 of 5
jointly and severally, be liable to the prevailing Party in the amount of all reasonable attorney’s fees, court costs, and all other expenses, incurred by the prevailing Party to the proceeding in addition to any other relief to which the prevailing Party may be entitled.
IN WITNESS, WHEREOF, the parties have executed this Agreement as of the Effective Date.
PEARTRACK SECURITY SYSTEMS, INC.
By: /s/ Kyle W. Withrow
Name:Kyle W. Withrow
Title:President/CEO
Date:10/11/2018
INTELLECTUAL PROPERTY NETWORK, INC.
By: /s/ Nathaniel T. Bradley
Name:Nathaniel T. Bradley
Title:President/CEO
Date:10/11/2018
PearTrack Security Systems, Inc. Royalty Agreement
Intellectual Property Network, Inc.October 11, 2018
Page 5 of 5
EXHIBIT “A”
US PATENT APPLICATION
EXHIBIT “B”
ASSIGNMENT OF PATENT APPLICATION
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of this 1st day of November 2018 (the "Effective Date"), by and between PearTrack Security Systems, Inc. a Nevada corporation with offices at 1327 Ocean Avenue, Suite B, Santa Monica, CA 90401 (or the "Company") and MJ Management Services, Inc., a Delaware corporation with offices at 1702 Delaware Avenue, Santa Monica, CA 90401, for the services of Calli R. Bucci ("Consultant") (together the "Parties").
WHEREAS, Consultant possesses certain skills and expertise in the area of finance, accounting and public company compliance; and
WHEREAS, Company wishes to retain the services of Consultant on the terms and conditions set forth below, and
WHEREAS, Consultant is willing to provide services to the Company, on the terms and conditions set forth below.
NOW, THEREFORE, the parties agree as follows:
1.Services. Consultant will perform the services set forth on Exhibit “A”, or as amended by mutual written agreement. It is agreed and understood that the nature and manner of services provided hereunder shall be within Consultant’s area of professional expertise and/or historical experience.
(a)Direction. Consultant shall be directed by and shall report to Kyle W. Withrow or his successor and the Audit Committee of the Board of Directors.
(b)Start Date. Consultant's consulting obligations to Company shall begin on November 1, 2018.
(c)Term. This Agreement shall commence on the Start Date and, unless earlier terminated in accordance with Section 15, shall continue up to and including November 1, 2021 (the "Term"). The Parties can automatically extend the Term in three-month increments upon mutual agreement. Any extension shall be in writing.
2.Method of Performance. The Consultant shall determine the method, details, and means of performing and fulfilling his or her duties hereunder.
3.Other Employment. The Company acknowledges and agrees that Consultant may assume other commitments, and has ongoing or intends to obtain engagements outside of Consultant's work for Company during the Term ("Other Engagements"); provided that Consultant fully complies with the confidentiality obligations contained in Section 9. Consultant shall reasonably notify Company of any Other Engagements, which may pose a conflict of interest, it being understood that such notice shall allow Company sufficient basis to proceed in accordance with Section 15(b)(2), below.
PearTrack Security Systems, Inc.Consulting Agreement
MJ Management Services Inc.Page 1 of 9
4.Status as Independent Contractor; Nature of Relationship. It is agreed and understood that the Consultant is an independent contractor and will not act as an agent nor shall he or she be deemed an employee of Consultant for the purposes of any employee benefit programs, income tax withholding, FICA taxes, unemployment benefits, and worker’s compensation insurance, or otherwise. Consultant shall not enter into any agreement or incur any obligations on Company’s behalf, or commit Company in any manner without Company’s prior written consent.
5.Resources. Consultant shall provide such tools and facilities, as Consultant may deem necessary in the performance of Consultant's duties hereunder. Upon Consultant's reasonable request, the Company shall provide such incidental resources to Consultant as the Company in its discretion believes may be warranted.
6.Compensation. It is agreed and understood, that subject to the Term and performance and under Section 1, the Consultant shall be paid as set forth in Exhibit A. Consultant shall be solely responsible for and agrees that he or she will in a timely fashion pay all federal, state and other taxes on the amounts set forth in this Section. Company will pay Consultant a fee of US $12,500 to be paid to Consultant on a monthly basis. The Consultant will receive, as part of his compensation; 500 hundred thousand (500,000) options with a ten (US $.10) cent strike price vesting quarterly over 24 months.
a)Deferred Cash Compensation. Consultant agrees that it will defer its right to six thousand ($12,500) of her cash compensation portion of her Consulting Agreement until the Company has secured a minimum of US $250,000; and
b)Partial Deferred Cash Compensation. Consultant agrees that it will defer five thousand ($5,000) representing the balance of the cash compensation deferral portion of her Consulting Agreement until the Company has secured a minimum of US $750,000; and
c)Cash Payment Terms. The Consultant can elect to participate in one or more of the following options to his deferred Cash Compensation as outlined below;
a.Consultant may elect to accrue the cash component of her Consulting Fees in a Corporate Promissory Note that has a 5% coupon attached to it. The Note will be amended each quarter that it has continued to accumulate until it is paid in full; and or
b.Consultant may convert their Consulting Fees into the Company’s common stock with a conversion strike price equal to the average trading price of the Common Stock for the twenty (20) trading day immediately preceding, up to and including, the date of the Notice of Conversion.
c.Expenses. Consultant will be reimbursed for the reasonable expenses Consultant incurs directly in connection with services provided under the Agreement, following the submission of documentation evidencing and confirming such expenses.
PearTrack Security Systems, Inc.Consulting Agreement
MJ Management Services Inc.Page 2 of 9
7.Compliance with all Laws. Consultant agrees that in the course of providing her services to the Company, he or she will not engage in any practice or commit any acts in violation of any federal, state or local law or ordinance.
(a)Definition of "Information." “Information” shall mean materials, data, or information in any form, whether written, oral, digital, or otherwise, provided by or obtained from Company, Company's agents, or Company's contractors in connection with the Consultant's engagement by Company. Technical or business information of a third person furnished or disclosed to the Consultant under this Agreement shall constitute Information of Company unless otherwise specifically indicated in writing.
(b)Confidential Information. For purposes of this Agreement, the term "Confidential Information" shall mean Information regarding Company's business including, but not limited to, Information regarding diagnostic and medical device products, processing and manufacturing capabilities, copyrighted or patentable subject matter, research, development, innovations, inventions, designs, technology, improvements, trade secrets, business affairs and finances, customers, employees, operations, facilities, consumer markets, products, capacities, systems, procedures, security practices, data formats, and business methodologies.
(c)Consultant's Obligations. The Consultant shall maintain all Confidential Information relating to or obtained from Company by the Consultant in confidence, and the Consultant shall use best efforts to protect and safeguard the Confidential Information.
(d)Use of Confidential Information. Without Company's prior written approval, the Consultant: (a) shall not use Confidential Information directly or indirectly for any purpose except in connection with the services the Consultant performs on behalf of Company; and (b) shall not disclose, sell, assign, transfer, share or lease Confidential Information of Company, or make such Confidential Information available to, or make it available for the use or benefit of, any third party.
(e)Exceptions to Confidentiality Obligations. The obligations of this Agreement shall not apply to Confidential Information which the Consultant shall demonstrate, by clear and convincing evidence:
1.is or becomes publicly available (other than through unauthorized disclosure under this Agreement);
2.is already known by the Consultant without an obligation of confidentiality prior to the disclosure thereof by Company, as evidenced by the Consultant's written records, maintained in the ordinary course, existing before the first date of Consultant's engagement with Company; or
PearTrack Security Systems, Inc.Consulting Agreement
MJ Management Services Inc.Page 3 of 9
3.is rightfully received by the Consultant from a third party free of any obligation of confidentiality.
9.Former Engagement Information. The Consultant shall not, during the Consultant's engagement with the Company, improperly use or disclose any proprietary information or trade secrets of any former employer, hiring party, or other person or entity with which the Consultant has an agreement or duty to keep in confidence, if any, and shall not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person, hiring party, or entity.
10.Court or Agency Order. In the event the Consultant receives a subpoena or order of a court or administrative body requesting disclosure of Company’s Confidential Information, the Consultant agrees (a) that, as promptly as possible after learning of such disclosure obligation and before making such disclosure, the Consultant shall notify Company of such obligation to make such disclosure, to allow Company an opportunity to object to such disclosure or to obtain a protective order or other appropriate relief; (b) that the Consultant shall provide such cooperation and assistance, at Company's expense, as Company may reasonably request in any effort by Company to obtain such relief; and (c) that the Consultant shall take all appropriate steps to limit the amount and scope of Confidential Information so disclosed and to protect its confidentiality.
11.Non-Solicitation. The Consultant agrees not to solicit or encourage employees of Consultant to work for a Competitor during the Term, and for a period of one year after expiration of the Term. "Competitor" means any person or organization, including the Consultant him or herself, engaged in, or about to become engaged in, research on or the acquisition, development, production, distribution, marketing or providing of a Competing Product. "Competing Product" means any product, process, or service of any person or organization other than the Company, in existence or under development, which both (A) is identical to, substantially the same as, or an adequate substitute for any product, process, or service of the Company, in existence or under development, on which the Consultant works during the Term or about which the Consultant acquires Confidential Information, and (B) is (or could reasonably be anticipated to be) marketed or distributed in such a manner and in such a geographic area as to actually compete with such product, process or service of the Company.
12.Inventions. For purposes of this Agreement, the term "Inventions" shall mean any and all inventions, original works of authorship, developments, concepts, improvements, or trade secrets (whether or not patentable or registrable under copyright or similar laws) which relate to the business of the Company and which the Consultant either (i) solely or jointly conceives, develops, or reduces to practice during Company time, at the Company's direction, or using Company equipment or resources; or (ii) solely or jointly conceives, develops, or reduces to practice based on Company Confidential Information. The Consultant will promptly make full written disclosure of Inventions to the Company and will hold such Inventions in trust for the sole right and benefit of the Company. The Consultant hereby assigns to the Company all the Consultant's right, title and interest in and to Inventions. Without limiting the foregoing, the Consultant further acknowledges that all Inventions (x) which are original works of authorship; (y) which are made
PearTrack Security Systems, Inc.Consulting Agreement
MJ Management Services Inc.Page 4 of 9
by the Consultant (solely or jointly with others) within the scope of the Consultant's engagement hereunder; and (z) which are protectable by copyright, shall be deemed, to the extent applicable, “works made for hire,” as that term is defined in the United States Copyright Act. It is agreed and understood that Consultant inventions, original works of authorship, developments, concepts, improvements, or trade secrets (whether or not patentable or registrable under copyright or similar laws), which do not qualify as “Inventions” hereunder, shall not be subject to this Section 13.
13.Patent and Copyright Registration. The Consultant agrees to assist the Company, or its designee, at the Company’s expense, in every reasonable way to secure the Company’s rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto and the execution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to apply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns and nominees the sole and exclusive rights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto.
14.Termination. This Agreement may be terminated without liability as follows:
(a)For Cause. If either Party is in material breach, the non-breaching party may terminate this Agreement upon providing the breaching party (a) with written notice, specifying the breach, and (b) with a ten (10) day opportunity to cure, commencing upon the effective date of such notice.
15.Survival. The following provisions shall survive the expiration or termination of this Agreement: Sections the applicable part of 6 (success fee) 9, 11, 12, 14, and 17.
16.Return of Property. Consultant expressly agrees that upon completion of this or her consulting services under this Agreement, or at any time prior to that time upon request of the Company, Consultant will return to the Company all property of the Company obtained or received by Consultant during the Term of this Agreement including, but not limited to, any and all files, computers, computer equipment, software, diskettes or other storage media, documents, papers, records, notes, agenda, memoranda, plans, calendars and other books and records of any kind and nature whatsoever containing information concerning the Company or its customers or operations.
17.No Oral Modification. This Agreement may not be changed orally, and no modification, amendment, or waiver of any provision contained in this Agreement, or any future representation, promise, or condition in connection with the subject matter of this Agreement shall be binding upon any party hereto, unless made in writing and signed by such party.
18.Entire Agreement. This Agreement contains the entire agreement between the Parties and supersedes any and all previous agreements of any kind whatsoever between them, whether written or oral, and all prior and contemporaneous discussions and negotiations have been and are merged and integrated into, and are superseded by, this Agreement. This is an integrated document.
PearTrack Security Systems, Inc.Consulting Agreement
MJ Management Services Inc.Page 5 of 9
19.Severability. In the event that any provision of this Agreement or the application thereof should be held to be void, voidable, unlawful or, for any reason, unenforceable, the remaining portion and application shall remain in full force and effect, and to that end the provisions of this Agreement are declared to be severable.
20.Governing Law. This Agreement is made and entered into, and shall be subject to, governed by, and interpreted in accordance with the laws of the State of California and shall be fully enforceable in the courts of that state, without regard to principles of conflict of laws. The Parties (i) agree that any suit, action or other legal proceeding arising out of this Agreement may be brought in the United States District Court for the District of California, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in Alameda County, California; (ii) consent to the jurisdiction of any such court; and (iii) waive any objection which they may have to the laying of venue in any such court. The Parties also consent to the service of process, pleadings, notices or other papers by regular mail, addressed to the party to be served, postage prepaid, and registered or certified with return receipt requested.
21.Arbitration. By execution hereof, the parties hereto expressly agree that upon the request of any party, whether made before or after the institution of any legal proceeding, any action, dispute, claim or controversy of any kind, whether in contract or in tort, statutory or common law, legal or equitable, arising between the parties in any way arising out of any of the provisions contained in this Agreement shall be resolved by binding arbitration administered by the American Arbitration Association (the “AAA”) and in Los Angeles, California. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the AAA and, to the maximum extent applicable, the Federal Arbitration Act (Title 9 of the United States Code) except as otherwise specified herein. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction. The arbitrator shall resolve all disputes in accordance with the applicable substantive law. A single arbitrator shall be chosen and shall decide the dispute, unless the amount sought in the dispute exceeds $100,000, in which case a panel of three arbitrators shall decide the dispute. In all arbitration proceedings in which the amount of any award exceeds $100,000, in the aggregate, the arbitrator(s) shall make specific, written findings of fact and conclusions of law. In all arbitration proceedings in which the amount of any award exceeds $100,000, in the aggregate, the parties shall have, in addition to the limited statutory right to seek a vacation or modification of an award pursuant to applicable law, the right to vacation or modification of any award that is based, in whole or in part, on an incorrect or erroneous ruling of law by appeal to an appropriate court having jurisdiction; provided, however, that any such application for a vacation or modification of such an award based on an incorrect ruling of law must be filed in a court having jurisdiction over the dispute within 15 days from the date the award is rendered. The findings of fact of the arbitrator(s) shall be binding on all parties and shall not be subject to further review except as otherwise allowed by applicable law. No provision of this Agreement nor the exercise of any rights hereunder shall limit the right of any party, and any party shall have the right during any dispute, to seek, use, and employ ancillary or preliminary remedies, such as injunctive relief (including, without limitation, specific performance), from a court having jurisdiction before, during, or after the pendency of any arbitration. The institution and maintenance of any action for judicial relief or pursuit of provisional or ancillary remedies shall
PearTrack Security Systems, Inc.Consulting Agreement
MJ Management Services Inc.Page 6 of 9
not constitute a waiver of the right of any party to submit any dispute to arbitration nor render inapplicable the compulsory arbitration provisions hereof.
22.Remedies. The parties agree that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may, in its discretion, apply to any court of law or equity of competent jurisdiction for specific performance and injunctive relief in order to enforce or prevent any violations this Agreement, and any party against whom such proceeding is brought hereby waives the claim or defense that such party has an adequate remedy at law and agrees not to raise the defense that the other party has an adequate remedy at law.
23.Notices. All notices, requests, consents, approvals and other communications required or permitted under this Agreement ("Notices") shall be in writing and shall be delivered to the addresses listed above, by mail, by hand, or by facsimile transmission, unless otherwise provided in this Agreement. Such Notices shall be effective (i) if sent by mail, three business days after mailing; (ii) if sent by hand, on the date of delivery; and (iii) if sent by facsimile, on the date indicated on the facsimile confirmation. Any party may change its address or facsimile number for notification purposes by giving all of the individuals and entities noted above notice, in accordance with the notice provisions set forth in this Section, of the new address or facsimile number and the date upon which it will become effective.
24.No Assignment. Neither this Agreement nor any portion hereof is assignable.
25.Counterparts. This Agreement may be executed in counterparts, and each counterpart, when executed, shall have the effect of a signed original.
(Page left intentionally blank)
PearTrack Security Systems, Inc.Consulting Agreement
MJ Management Services Inc.Page 7 of 9
IN WITNESS, WHEREOF, the Parties hereto have caused this Agreement to be executed by the undersigned duly authorized persons as of the day and year above stated.
PEARTRACK SECURITY SYSTEMS, INC.
By: /s/ Kyle W. Withrow
Name: Kyle W. Withrow
Title: Chief Executive Officer
CONSULTANT
By: /s/ Calli R. Bucci
Name: Calli R. Bucci
Title: Chief Financial Officer
PearTrack Security Systems, Inc.Consulting Agreement
MJ Management Services Inc.Page 8 of 9
EXHIBIT “A”
CONSULTANT SERVICES
AND
PAYMENT SCHEDULE
PAYMENT SHEDULE
1.Monthly Cash Compensation. The Consultant shall receive US $12,500.00 per month for 30 days of services per month, apart from the deferrals outlined in Section 6 a), 6 b) & 6 c) of this Agreement. Payment shall be made on the fifth (5th) of each month for a period of thirty-six (36) months.
2.Stock Compensation.The Consultant shall receive Options to purchase common shares of the Company as part of the Company’s Employee Stock Option Plan. The Consultant shall receive a total of five hundred thousand (500,000) options with a strike price of ten cents ($.10) per share. The options will vest quarterly over a period of twenty (24) months.
PearTrack Security Systems, Inc.Consulting Agreement
MJ Management Services Inc.Page 9 of 9
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of this 1st day of November, 2018 (the "Effective Date"), by and between PearTrack Security Systems, Inc. a Nevada corporation at 1327 Ocean Avenue, Suite B, Santa Monica, CA 90401 (the "Company") and Huntington Chase, LLC, a Delaware limited liability company ("Consultant") at 1327 Ocean Avenue, Suite M, Santa Monica, CA 90401 (together the "Parties").
WHEREAS, Consultant possesses certain skills and expertise in the area of strategic planning, technology, corporate finance and business development; and
WHEREAS, Company wishes to retain the services of Consultant on the terms and conditions set forth below, and
WHEREAS, Consultant is willing to provide services to the Company, on the terms and conditions set forth below.
NOW, THEREFORE, the parties agree as follows:
1.Services. Consultant will perform the services set forth on Exhibit “A”, or as amended by mutual written agreement. It is agreed and understood that the nature and manner of services provided hereunder shall be within Consultant’s area of professional expertise and/or historical experience.
a)Direction. Consultant shall be directed by and shall report to the and the Board of Directors and Kyle W. Withrow or his successor.
b)Start Date. Consultant's consulting obligations to Company shall begin on November 1, 2018.
c)Term. This Agreement shall commence on the Start Date and, unless earlier terminated in accordance with Section 15, shall continue up to and including November 1, 2021 (the "Term"). The Parties can automatically extend the Term in three-month increments upon mutual agreement. Any extension shall be in writing.
2.Method of Performance. The Consultant shall determine the method, details, and means of performing and fulfilling his or her duties hereunder.
3.Other Employment. The Company acknowledges and agrees that Consultant may assume other commitments, and has ongoing or intends to obtain engagements outside of Consultant's work for Company during the Term ("Other Engagements"); provided that Consultant fully complies with the confidentiality obligations contained in Section 9. Consultant shall reasonably notify Company of any Other Engagements, which may pose a conflict of interest, it being understood that such notice shall allow Company sufficient basis to proceed in accordance with Section 15(b)(2), below.
4.Status as Independent Contractor; Nature of Relationship. It is agreed and understood that the Consultant is an independent contractor and will not act as an agent nor shall he or she be deemed an employee of Consultant for the purposes of any employee benefit programs, income tax withholding, FICA taxes, unemployment benefits, and worker’s compensation insurance, or otherwise. Consultant shall not enter into any agreement or incur any obligations on Company’s behalf, or commit Company in any manner without Company’s prior written consent.
5.Resources. Consultant shall provide such tools and facilities, as Consultant may deem necessary in the performance of Consultant's duties hereunder. Upon Consultant's reasonable request, the Company shall provide such incidental resources to Consultant as the Company in its discretion believes may be warranted.
6.Compensation. It is agreed and understood, that subject to the Term and performance and under Section 1, the Consultant shall be paid a fee of US $20,000 on a monthly basis. Consultant shall be solely responsible for and agrees that he or she will in a timely fashion pay all federal, state and other taxes on the amounts set forth in this Section. Company will pay Consultant.
a)Deferred Cash Compensation. Consultant agrees that it will defer his cash compensation portion of his Consulting Agreement until the Company has secured a minimum of US $250,000; and
b)Cash Payment Terms. The Consultant can elect to participate in one or more of the following options to his deferred Cash Compensation as outlined below;
1)Consultant may elect to accrue the cash component of his Consulting Fees in a Corporate Promissory Note that has a 5% coupon attached to it. The Note will be amended each quarter that it has continued to accumulate until it is paid in full; and or
2)Consultant may convert his Consulting Fees into the Company’s common stock with a conversion strike price equal to the average trading price of the Common Stock for the twenty (20) trading day immediately preceding, up to and including, the date of the Notice of Conversion.
7.Expenses. Consultant will be reimbursed for the reasonable expenses Consultant incurs directly in connection with services provided under the Agreement, following the submission of documentation evidencing and confirming such expenses.
8.Compliance with all Laws. Consultant agrees that in the course of providing his services to the Company, he will not engage in any practice or commit any acts in violation of any federal, state or local law or ordinance.
a)Definition of "Information." “Information” shall mean materials, data, or information in any form, whether written, oral, digital, or otherwise, provided by or obtained from Company, Company's agents, or Company's contractors in connection with the Consultant's engagement by Company. Technical or business information of a third person furnished or disclosed to the Consultant under this Agreement shall constitute Information of Company unless otherwise specifically indicated in writing.
b)Confidential Information. For purposes of this Agreement, the term "Confidential Information" shall mean Information regarding Company's business including, but not limited to, Information regarding diagnostic and medical device products, processing and manufacturing capabilities, copyrighted or patentable subject matter, research, development, innovations, inventions, designs, technology, improvements, trade secrets, business affairs and finances, customers, employees, operations, facilities, consumer markets, products, capacities, systems, procedures, security practices, data formats, and business methodologies.
PearTrack Security Systems, Inc.Consulting Agreement
Huntington Chase LLCPage 2 of 8
c)Consultant's Obligations. The Consultant shall maintain all Confidential Information relating to or obtained from Company by the Consultant in confidence, and the Consultant shall use best efforts to protect and safeguard the Confidential Information.
d)Use of Confidential Information. Without Company's prior written approval, the Consultant: (a) shall not use Confidential Information directly or indirectly for any purpose except in connection with the services the Consultant performs on behalf of Company; and (b) shall not disclose, sell, assign, transfer, share or lease Confidential Information of Company, or make such Confidential Information available to, or make it available for the use or benefit of, any third party.
e)Exceptions to Confidentiality Obligations. The obligations of this Agreement shall not apply to Confidential Information which the Consultant shall demonstrate, by clear and convincing evidence:
1)is or becomes publicly available (other than through unauthorized disclosure under this Agreement);
2)is already known by the Consultant without an obligation of confidentiality prior to the disclosure thereof by Company, as evidenced by the Consultant's written records, maintained in the ordinary course, existing before the first date of Consultant's engagement with Company; or
3)is rightfully received by the Consultant from a third party free of any obligation of confidentiality.
10.Former Engagement Information. The Consultant shall not, during the Consultant's engagement with the Company, improperly use or disclose any proprietary information or trade secrets of any former employer, hiring party, or other person or entity with which the Consultant has an agreement or duty to keep in confidence, if any, and shall not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person, hiring party, or entity.
11.Court or Agency Order. In the event the Consultant receives a subpoena or order of a court or administrative body requesting disclosure of Company’s Confidential Information, the Consultant agrees (a) that, as promptly as possible after learning of such disclosure obligation and before making such disclosure, the Consultant shall notify Company of such obligation to make such disclosure, to allow Company an opportunity to object to such disclosure or to obtain a protective order or other appropriate relief; (b) that the Consultant shall provide such cooperation and assistance, at Company's expense, as Company may reasonably request in any effort by Company to obtain such relief; and (c) that the Consultant shall take all appropriate steps to limit the amount and scope of Confidential Information so disclosed and to protect its confidentiality.
12.Non-Solicitation. The Consultant agrees not to solicit or encourage employees of Consultant to work for a Competitor during the Term, and for a period of one year after expiration of the Term. "Competitor" means any person or organization, including the Consultant him or herself, engaged in, or about to become engaged in, research on or the acquisition, development, production, distribution, marketing or providing of a Competing Product. "Competing Product" means any product, process, or service of any person or organization other than the Company, in existence or under development, which both (A) is identical to, substantially the same as, or an adequate substitute for any product, process, or service of the Company, in existence or under development,
PearTrack Security Systems, Inc.Consulting Agreement
Huntington Chase LLCPage 3 of 8
on which the Consultant works during the Term or about which the Consultant acquires Confidential Information, and (B) is (or could reasonably be anticipated to be) marketed or distributed in such a manner and in such a geographic area as to actually compete with such product, process or service of the Company.
13.Inventions. For purposes of this Agreement, the term "Inventions" shall mean any and all inventions, original works of authorship, developments, concepts, improvements, or trade secrets (whether or not patentable or registrable under copyright or similar laws) which relate to the business of the Company and which the Consultant either (i) solely or jointly conceives, develops, or reduces to practice during Company time, at the Company's direction, or using Company equipment or resources; or (ii) solely or jointly conceives, develops, or reduces to practice based on Company Confidential Information. The Consultant will promptly make full written disclosure of Inventions to the Company and will hold such Inventions in trust for the sole right and benefit of the Company. The Consultant hereby assigns to the Company all the Consultant's right, title and interest in and to Inventions. Without limiting the foregoing, the Consultant further acknowledges that all Inventions (x) which are original works of authorship; (y) which are made by the Consultant (solely or jointly with others) within the scope of the Consultant's engagement hereunder; and (z) which are protectable by copyright, shall be deemed, to the extent applicable, “works made for hire,” as that term is defined in the United States Copyright Act. It is agreed and understood that Consultant inventions, original works of authorship, developments, concepts, improvements, or trade secrets (whether or not patentable or registrable under copyright or similar laws), which do not qualify as “Inventions” hereunder, shall not be subject to this Section 13.
14.Patent and Copyright Registration. The Consultant agrees to assist the Company, or its designee, at the Company’s expense, in every reasonable way to secure the Company’s rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto and the execution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to apply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns and nominees the sole and exclusive rights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto.
15.Termination. This Agreement may be terminated without liability as follows:
a)For Cause. If either Party is in material breach, the non-breaching party may terminate this Agreement upon providing the breaching party (a) with written notice, specifying the breach, and (b) with a ten (10) day opportunity to cure, commencing upon the effective date of such notice.
16.Survival. The following provisions shall survive the expiration or termination of this Agreement: Sections the applicable part of 6 (success fee) 9, 11, 12, 14, and 17.
17.Return of Property. Consultant expressly agrees that upon completion of this or her consulting services under this Agreement, or at any time prior to that time upon request of the Company, Consultant will return to the Company all property of the Company obtained or received by Consultant during the Term of this Agreement including, but not limited to, any and all files, computers, computer equipment, software, diskettes or other storage media, documents, papers, records, notes, agenda, memoranda, plans, calendars and other books and records of any kind and nature whatsoever containing information concerning the Company or its customers or operations.
PearTrack Security Systems, Inc.Consulting Agreement
Huntington Chase LLCPage 4 of 8
18.No Oral Modification. This Agreement may not be changed orally, and no modification, amendment, or waiver of any provision contained in this Agreement, or any future representation, promise, or condition in connection with the subject matter of this Agreement shall be binding upon any party hereto, unless made in writing and signed by such party.
19.Entire Agreement. This Agreement contains the entire agreement between the Parties and supersedes any and all previous agreements of any kind whatsoever between them, whether written or oral, and all prior and contemporaneous discussions and negotiations have been and are merged and integrated into, and are superseded by, this Agreement. This is an integrated document.
20.Severability. In the event that any provision of this Agreement or the application thereof should be held to be void, voidable, unlawful or, for any reason, unenforceable, the remaining portion and application shall remain in full force and effect, and to that end the provisions of this Agreement are declared to be severable.
21.Governing Law. This Agreement is made and entered into, and shall be subject to, governed by, and interpreted in accordance with the laws of the State of California and shall be fully enforceable in the courts of that state, without regard to principles of conflict of laws. The Parties (i) agree that any suit, action or other legal proceeding arising out of this Agreement may be brought in the United States District Court for the District of California, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in Alameda County, California; (ii) consent to the jurisdiction of any such court; and (iii) waive any objection which they may have to the laying of venue in any such court. The Parties also consent to the service of process, pleadings, notices or other papers by regular mail, addressed to the party to be served, postage prepaid, and registered or certified with return receipt requested.
22.Arbitration. By execution hereof, the parties hereto expressly agree that upon the request of any party, whether made before or after the institution of any legal proceeding, any action, dispute, claim or controversy of any kind, whether in contract or in tort, statutory or common law, legal or equitable, arising between the parties in any way arising out of any of the provisions contained in this Agreement shall be resolved by binding arbitration administered by the American Arbitration Association (the “AAA”) and in Los Angeles, California. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the AAA and, to the maximum extent applicable, the Federal Arbitration Act (Title 9 of the United States Code) except as otherwise specified herein. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction. The arbitrator shall resolve all disputes in accordance with the applicable substantive law. A single arbitrator shall be chosen and shall decide the dispute, unless the amount sought in the dispute exceeds $100,000, in which case a panel of three arbitrators shall decide the dispute. In all arbitration proceedings in which the amount of any award exceeds $100,000, in the aggregate, the arbitrator(s) shall make specific, written findings of fact and conclusions of law. In all arbitration proceedings in which the amount of any award exceeds $100,000, in the aggregate, the parties shall have, in addition to the limited statutory right to seek a vacation or modification of an award pursuant to applicable law, the right to vacation or modification of any award that is based, in whole or in part, on an incorrect or erroneous ruling of law by appeal to an appropriate court having jurisdiction; provided, however, that any such application for a vacation or modification of such an award based on an incorrect ruling of law must be filed in a court having jurisdiction over the dispute within 15 days from the date the award is rendered. The findings of fact of the arbitrator(s) shall be binding on all parties and shall not be subject to further review except as otherwise allowed by applicable law. No provision of this Agreement nor the exercise of any rights hereunder shall limit the right of any party, and any party shall have the right during any dispute, to seek, use, and employ ancillary or preliminary remedies,
PearTrack Security Systems, Inc.Consulting Agreement
Huntington Chase LLCPage 5 of 8
such as injunctive relief (including, without limitation, specific performance), from a court having jurisdiction before, during, or after the pendency of any arbitration. The institution and maintenance of any action for judicial relief or pursuit of provisional or ancillary remedies shall not constitute a waiver of the right of any party to submit any dispute to arbitration nor render inapplicable the compulsory arbitration provisions hereof.
23.Remedies. The parties agree that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may, in its discretion, apply to any court of law or equity of competent jurisdiction for specific performance and injunctive relief in order to enforce or prevent any violations this Agreement, and any party against whom such proceeding is brought hereby waives the claim or defense that such party has an adequate remedy at law and agrees not to raise the defense that the other party has an adequate remedy at law.
24.Notices. All notices, requests, consents, approvals and other communications required or permitted under this Agreement ("Notices") shall be in writing and shall be delivered to the addresses listed above, by mail, by hand, or by facsimile transmission, unless otherwise provided in this Agreement. Such Notices shall be effective (i) if sent by mail, three business days after mailing; (ii) if sent by hand, on the date of delivery; and (iii) if sent by facsimile, on the date indicated on the facsimile confirmation. Any party may change its address or facsimile number for notification purposes by giving all of the individuals and entities noted above notice, in accordance with the notice provisions set forth in this Section, of the new address or facsimile number and the date upon which it will become effective.
25.No Assignment. Neither this Agreement nor any portion hereof is assignable.
26.Counterparts. This Agreement may be executed in counterparts, and each counterpart, when executed, shall have the effect of a signed original.
(Signature Page Immediately Following)
PearTrack Security Systems, Inc.Consulting Agreement
Huntington Chase LLCPage 6 of 8
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by the undersigned duly authorized persons as of the day and year above stated.
PEARTRACK SECURITY SYSTEMS, INC.
By: /s/ Kyle W. Withrow
Kyle W. Withrow
President
HUNTINGTON CHASE LLC
By:/s/ Edward W. Withrow III
Edward W. Withrow III
Managing Member
PearTrack Security Systems, Inc.Consulting Agreement
Huntington Chase LLCPage 7 of 8
EXHIBIT “A”
CONSULTANT SERVICES
Consultant shall provide the following services:
PearTrack Security Systems, Inc.Consulting Agreement
Huntington Chase LLCPage 8 of 8
CONSULTING AGREEMENT
CONSULTING AGREEMENT (this “Agreement”) effective the 1st day of May 2019, is entered into May 15th, 2019 by and between the PearTrack Security Systems, Inc., a Nevada corporation at 1327 Ocean Avenue, Suite B, Santa Monica, CA 90401 (the “Company”), and David Rocke of 36 South Road, Southampton, SN01, Bermuda (the “Consultant”).
WHEREAS, the Company desires to retain Consultant to render consulting, capital formation, merger and acquisition and strategic advisory services as outlined in the Scope of Work in Exhibit “A” of this Agreement on the terms and conditions set forth in this Agreement, and Consultant desires to be retained by the Company on such terms and conditions.
NOW, THEREFORE, in consideration of the premises, the mutual agreements herein set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1.Engagement of Consultant; Services to be performed.
1.1.The Company hereby retains Consultant to render such consulting, capital formation, merger and acquisition, and advisory services as the Company may request. Consultant hereby accepts such engagement and agrees to perform such services for the Company upon the terms and conditions set forth in this Agreement.
1.2.Consultant shall be provided with an invitation to join the Company’s Board of Directors as a Director.
1.3.During the Term (as defined in Section 2), Consultant shall devote such time, attention, skill and energy as may be reasonably required to perform the services required by this Agreement up to a maximum time commitment of 80 hours in any calendar month, and shall assume and perform to the best of his ability such reasonable responsibilities and duties as the Company shall assign to Consultant from time to time.
1.4.Consultant shall perform the services hereunder at locations of his choosing, but he shall, at the Company’s expense, also be required to render the services at such other locations as the Company may reasonably specify from time to time.
1.5.In rendering services hereunder, Consultant shall be acting as an independent contractor and not as a employee or agent of the Company. As an independent contractor, Consultant shall have no authority, express or implied, to commit or obligate the Company in any manner whatsoever, except as specifically authorized from time to time in writing by an authorized representative of the Company, which authorization may be general or specific. Nothing contained in this Agreement shall be construed or applied to create a partnership. Consultant shall be responsible for the payment of all federal, state, provincial or local taxes payable with respect to all amounts paid to Consultant under this Agreement; provided, however, that if the Company is determined to be liable for collection and/or remittance of any such taxes, Consultant shall immediately reimburse the Company for all such payments made by the Company.
PearTrack Security Systems, Inc.Consulting Agreement
David RockePage 1 of 12
2.Term. Unless terminated at an earlier date in accordance with Section 5 or Section 6, this Agreement shall commence as of the Effective Date and shall continue for a continuous period of three (3) years (the “Term”).
3.Directors & Officers Insurance. The Company shall continuously maintain from the Effective Date of Closing of five hundred thousand ($500,000) dollars of capitalization, insurance coverage for its directors and officers and those of its subsidiaries in the form as is customary for an SEC Registrant and in a scope satisfactory to Consultant. Company acknowledges that its anticipated fund raising activities will impact the form and the scope of such coverage.
4.Compensation
4.1.Cash: As compensation for Consultant’s services hereunder, the Company shall pay to Consultant a consulting fee of one hundred and fifty thousand ($150,000) dollars a year (“Base Fee”).
4.2.Payment of Cash Compensation: Until such time as the Minimum Capital Investment has been secured, the Company and Consultant agree that the Base Fee shall accrue monthly but be deferred and memorialized in the form of an interest bearing corporate convertible promissory note. After such time, Base Fee shall be paid monthly by wire transfer to an account nominated by Consultant and any amount outstanding on any note issued under this section 4.2 shall be paid in four equal monthly installments until such time it is converted or fully paid.
(a) “Minimum Capital Investment” is defined as one million (US $1,000,000) dollars, secured by the company, in the aggregate, in either debt or equity financing.
(b)Interest Bearing Convertible Note. The interest bearing convertible note will have the following key terms:
(i) Interest at five percent (5%) per annum;
(ii)convert into shares of the Company’s Common stock at a twenty (20) trading day average price of the Common Stock; and
(iii)The total aggregate amount of shares that can be converted shall not exceed one (1%) percent of the issued and outstanding capital stock at the time of conversion.
(c)Termination of Cash Deferment. After a period of twelve (12) months, the Company has not secured the aggregate investment of one million ($1,000,000) dollars, the Company will not continue to defer the Consultant’s fee and may choose to terminate the Consultants Agreement under Section 5.1
4.3.Stock:
(a)Stock Options. Consultant or his nominee shall receive options during the Term of this Agreement as determined by the Company’s Board of Directors from time to time.
PearTrack Security Systems, Inc.Consulting Agreement
David RockePage 2 of 12
(b)Initial Stock Option Grant. Upon execution of this Agreement, Leafy Lane Limited, a company incorporated under the laws of the British Virgin Islands under number 1574755 (“Leafy Lane”) shall be granted an aggregate of six million eight hundred and seventy five thousand and ninety three (6,875,093) stock options at an exercise price of fifty one hundredths of one cent ($0.005) per share (which exercise price is not less than the closing price on the date of Board approval) for a five-year period, pursuant to the Company’s standard Employee Stock Option Plan (“Initial Grant”). The Initial Grant shall vest as set out in Exhibit B unless the provisions of Sections 7.3 or 7.4 apply.
4.4.Profit Share. Consultant shall be entitled to 12.5% of the Adjusted Gross Earnings of GX9 Security, Inc for each calendar year during any part of which this Agreement is in force (“Profit Share”), “Adjusted Gross Earnings” is defined in Exhibit C, Profit Share shall be paid in cash within fifteen days of the completion of the audit of GX9 Security, Inc for each calendar year, or March 31 of the following calendar year if earlier.
5.Termination By the Company
5.1.For Cause or upon death or Disability or non securing of Minimum Captial Investment. Company will have the right to immediately terminate Consultant's services and this Agreement for Cause, death or Disability or if the Company has not secured the Minimum Capital Investment within twelve months heereof.
"Cause" means: any material breach of this Agreement by Consultant, including, without limitation, willful breach of Consultant’s covenants; conviction of a felony or failure to contest prosecution for a felony, other than what has been disclosed to the Company’s Board of Directors as of the signing of this Agreement, by Consultant; violation of any statute, rule or regulation, any of which in the reasonable judgment of Company has a material adverse effect on the business of the Company or to Company’s reputation; unethical practices; dishonesty; or disloyalty.
“Disability” means the incapacity or inability of Consultant, whether due to accident, sickness or otherwise, as determined by a medical doctor reasonably acceptable to the Board of Directors of Company and confirmed in writing by such doctor, to perform the essential functions of Consultant’s position under this Agreement, with or without reasonable accommodation (provided that no accommodation that imposes undue hardship on Company will be required) for an aggregate of ninety (90) days during any period of one hundred eighty (180) consecutive days.
5.2.Without Cause. Company may terminate Consultant's engagement under this Agreement without cause and without advance notice.
6.Termination By Consultant.
6.1.Without reason. Consultant may terminate Consultant’s engagement under this Agreement for any reason provided that Consultant gives Company at least thirty-days’ notice in writing. Company may, at its option, relieve Consultant of all duties and authority after notice of termination has been provided.
PearTrack Security Systems, Inc.Consulting Agreement
David RockePage 3 of 12
6.2.With Good Reason. Consultant may immediately terminate Consultant’s engagement under this Agreement for any Good Reason.
“Good Reason” means: a material breach of this agreement by Company; the non-purchase, lapse, cancellation or non-renewal of the Directors & Officer insurance set out in Section 3, the non-issuance of an invitation to join the Board as set out in Section 1.2, non securing of the Minimum Capital Investment within twelve months hereof; or the removal from the Board of Consultant for any reason or none.
7.Effect of Termination
7.1.By Company for Cause. Upon termination of Consultant's engagement by Company for Cause Consultant shall have no rights to any unvested benefits or any other compensation or payments after the termination date.
7.2.By Company on death or Disability. Upon termination of Consultant's engagement by Company upon the death or Disability of Consultant, Consultant will have no rights to any unvested benefits or any other compensation or payments after the last day of the month in which Consultant’s death or Disability occurred.
7.3.By Company Without Cause. Upon termination of Consultant’s engagement by Company Without Cause, Company will continue to pay, including health benefits, Consultant’s Base Fee for the remainder of the period ended three years after the date hereof and Profit Share for all calendar years ended December 31, 2024, Such payments will be at usual and customary pay intervals of Company or annually in line with Section 4.4 as applicable. All unvested options within Initial Grant shall immediately vest.
7.4.By Consultant for Good Reason. Upon termination of Consultant’s engagement by Consultant for Good Reason, Company will continue to pay, including health benefits, Consultant’s Base Fee for the remainder of the period ended three years after the date hereof and Profit Share for all calendar years ended December 31, 2024, such payments will be at usual and customary pay intervals of Company. All unvested options within Initial Grant shall immediately vest.
7.5.By Consultant for without reason. All compensation, payments will cease on the termination date.
8.Expenses. In addition to the payment of consulting fees set forth above, the Company shall reimburse Consultant all actual out-of-pocket costs for long-distance telephone services, facsimile transmissions, photocopying, courier services and postage, and all reasonable travel, lodging and per diem expenses, that he shall incur in connection with the rendering of Consultant’s services; provided that the Company shall have no obligation to reimburse any of such expenses except upon provision by Consultant of adequate documentation thereof in such form as the Company shall reasonably request; and provided further, that the Company shall have no such obligation in respect of any travel, lodging or per diem expenses unless the travel to which such expenses relate shall have been authorized in advance by the Company.
PearTrack Security Systems, Inc.Consulting Agreement
David RockePage 4 of 12
9.Insurance. Consultant if he so elects and if permissible by the Company plans, will be entitled to participate in fringe benefit, health insurance, life insurance, and other programs which Company may adopt from time to time for employees and executives of Company. Consultant may elect to be reimbursed for insurance he and his dependents currently are covered under. Participation will be in accordance with any plans and any applicable policies adopted by Company.
10.Vacation.Consultant shall be entitled to vacations in accordance with Company policy in effect from time to time. Until written policies are adopted, Consultant will accrue two (2) weeks vacation during the Initial Term of his engagement by the Company.
11.Protection of Trade Secrets, Know-How and/or Other Confidential Information of the Company.
11.1.Confidential Information. Except as permitted or directed by the Company, during the Term or at any time thereafter Consultant shall not divulge, furnish or make accessible to anyone or use in any way (other than in the ordinary course of the business of the Company) any confidential or secret knowledge or information of the Company that Consultant has acquired or become acquainted with or will acquire or become acquainted with during the Term or during engagement by the Company prior to the Term, whether developed by Consultant or by others, concerning any trade secrets, confidential or secret designs, processes, formulae, products or future products, plans, devices or material (whether or not patented or patentable) directly or indirectly useful in any aspect of the business of the Company, any customer or supplier lists of the Company, any confidential or secret development or research work of the Company, or any other confidential information or secret aspects of the business of the Company. Consultant acknowledges that the above-described knowledge or information constitutes a unique and valuable asset of the Company acquired at great time and expense by the Company and its predecessors, and that any disclosure or other use of such knowledge or information other than for the sole benefit of the Company would be wrongful and would cause irreparable harm to the Company. Both during and after the Term, Consultant will refrain from any acts or omissions that would intentionally reduce the value of such knowledge or information to the Company. The foregoing obligations of confidentiality, however, shall not apply to any knowledge or information which is now published or which subsequently becomes generally publicly known in the form in which it was obtained from the Company, other than as a direct or indirect result of the breach of this Agreement by Consultant.
11.2.Know-How and Trade Secrets. All know-how and trade secret information conceived or originated by Consultant, which arises out of the performance of the services hereunder, or any related material or information shall be the property of the Company, and all rights therein are hereby assigned to the Company.
11.3.Return of Records. Upon termination of this Agreement, Consultant shall deliver to the Company all property that is in his possession and that is the Company’s property or relates to the Company’s business, including, but not limited to records, notes, data, memoranda, software, electronic information, models, equipment, and any copies of the same.
12.Miscellaneous.
PearTrack Security Systems, Inc.Consulting Agreement
David RockePage 5 of 12
12.1.Entire Agreement. This Agreement (including any exhibits, schedules and other documents referred to herein) contains the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes any prior understandings, agreements or representations, written or oral, relating to the subject matter hereof.
12.2.Counterparts. This Agreement may be executed in separate counterparts, each of which will be an original and all of which taken together shall constitute one and the same agreement, and any party hereto may execute this Agreement by signing any such counterpart.
12.3.Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but if any provision of this Agreement is held to be invalid, illegal or unenforceable under any applicable law or rule, the validity, legality and enforceability of the other provision of this Agreement will not be affected or impaired thereby.
12.4.Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives and, to the extent permitted by Section 12.5, successors and assigns.
12.5.Assignment. This Agreement and the rights and obligations of the parties hereunder shall not be assignable, in whole or in part, by either party without the prior written consent of the other party.
12.6.Modification, Amendment, Waiver or Termination. No provision of this Agreement may be modified, amended, waived or terminated except by an instrument in writing signed by the parties to this Agreement. No course of dealing between the parties will modify, amend, waive or terminate any provision of this Agreement or any rights or obligations of any party under or by reason of this Agreement.
12.7.Notices. All notices, consents, requests, instructions, approvals or other communications provided for herein shall be in writing and delivered by personal delivery, overnight courier, mail, electronic facsimile or e-mail addressed to the receiving party at the address set forth herein. All such communications shall be effective when received.
Any party may change the address set forth above by notice to each other party given as provided herein.
To: David Rocke
36 South Road
Southampton SN01
Bermuda
To:PearTrack Security Services, Inc.
Kyle W. Withrow, CEO
1327 Ocean Ave, Suite B
Santa Monica, CA 90401
PearTrack Security Systems, Inc.Consulting Agreement
David RockePage 6 of 12
12.8.Headings. The headings and any table of contents contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
12.9.Governing Law/Waiver of Claims/Arbitration.
(a)ALL MATTERS RELATING TO THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISIONS THEREOF.
(b) The parties hereto agree that in the event of any and all disagreements and controversies arising from this Agreement or any other agreements between the Company and Executive the breach, termination or validity thereof or the present and future dealings between the parties, such disagreements and controversies shall be subject to a two step mediation and binding arbitration process. The first step will first to a one time mediations session to be held in accordance with the California Bar Associations Mediation guidelines and to be heard in front of a Mediation expert that has been practicing for a period of at least 5 years. If the Parties fail to resolve their dispute via Mediation, the Parties agree to a second step of binding arbitration as arbitrated in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) to be held in the city of Santa Monica, California, in Los Angeles County, California before one neutral arbitrator. Such arbitrator shall be selected by mutual agreement of the parties within thirty (30) days of written notice of a continuing dispute following mediation of said disagreement or controversy. If the parties cannot mutually agree to an arbitrator within thirty (30) days, then the AAA shall designate the arbitrator. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Without waiving any remedy under this Agreement, either party may also seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). In the event of any such disagreement or controversy, neither party shall directly or indirectly reveal, report, publish or disclose any information relating to such disagreement or controversy to any person, firm or corporation not expressly authorized by the other party to receive such information or use such information or assist any other person in doing so, except to comply with actual legal obligations of such party or unless such disclosure is directly related to an arbitration proceeding as provided herein, including, but not limited to, the prosecution or defense of any claim in such arbitration. The costs and expenses of the arbitration (excluding attorneys’ fees) shall be paid by the non-prevailing Party or as determined by the arbitrator. This paragraph shall survive the termination of this Agreement.
12.10.Third-Party Benefit. Other than the rights of Leafy Lane under Sections 4.3, 7.3, 7.4 and Exhibit B, which are hereby explicitly enforceable, nothing in this Agreement, express or implied, is intended to confer upon any other person any rights, remedies, obligations or liabilities of any nature whatsoever.
PearTrack Security Systems, Inc.Consulting Agreement
David RockePage 7 of 12
12.11.No Waiver. No delay on the part of the Company in exercising any right hereunder shall operate as a waiver of such right. No waiver, express or implied, by the Company of any right or any breach by Consultant shall constitute a waiver of any other right or breach by Consultant.
12.12.Remedies. The parties agree that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may, in its discretion, apply to any court of law or equity of competent jurisdiction for specific performance and injunctive relief in order to enforce or prevent any violations this Agreement, and any party against whom such proceeding is brought hereby waives the claim or defense that such party has an adequate remedy at law and agrees not to raise the defense that the other party has an adequate remedy at law.
*** The rest of this page left intentionally blank ***
PearTrack Security Systems, Inc.Consulting Agreement
David RockePage 8 of 12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
Company: |
| Consultant: | ||
|
|
| ||
PEARTRACK SECURITY SYSTEMS, INC. |
| DAVID ROCKE | ||
|
|
| ||
|
|
| ||
|
|
| ||
By: | /s/ Kyle W. Withrow |
| By: | /s/ David Rocke |
Kyle W. Withrow |
| David Rocke | ||
Its: Chief Executive Officer |
|
|
PearTrack Security Systems, Inc.Consulting Agreement
David RockePage 9 of 12
EXHIBIT “A”
Scope of Work by Consultant for PearTrack Security Systems, Inc , and its subsidiaries:
1.Act as the lead point person responsible all capitalization matters defined in the Agreement and interface with the outside investors and financial professionals as well as the CFO of the Company.
2.Become a member of the Company’s Board of Directors and Chair the Audit Committee.
3.Advise on Mergers and Acquisition, Business Development, Governance & Strategic Planning.
a.Advise on matters pertaining to prospective merger and acquisition candidates
b.Advise on economic and business models
c.Contribute to the development of a Strategic Plan for the Company.
PearTrack Security Systems, Inc.Consulting Agreement
David RockePage 10 of 12
EXHIBIT “B”
Vesting of Initial Grant
The Initial Grant shall vest as follows:
(i)Two hundred and eighty-six thousand four hundred and sixty-two (286,462) stock options immediately; and
(ii)Two hundred and eighty-six thousand four hundred and sixty-two (286,462) stock options every ninety (90) days from the date hereof; and
(iii)One million one hundred and sixty-eight thousand seven hundred and sixty-nine (1,168,769) stock options upon receipt by the Company of five hundred thousand ($500,000) dollars in an equity or bridge financing; and
(iv)Two million two hundred and sixty-eight thousand seven hundred and eighty (2,268,780) of these stock options upon receipt by the Company of three million ($3,000,000) (or such lesser sum as the Consultant and Company may agree) in an equity or bridge financing.
PearTrack Security Systems, Inc.Consulting Agreement
David RockePage 11 of 12
EXHIBIT “C”
CALCULATION OF ADJUSTED GROSS EARNINGS
“Adjusted Gross Earnings” means all revenue accounted to GX9 Security, Incu from the Defined Revenue Sources less Cost of Goods Sold.
“Defined Revenue Source” means all revenues accounted by GX9 Security, Inc from its services including, but not limited to, revenues from the sale of products and/or services that incorporate the Enigma-Bulwark technology into the service or product offerings.
“Cost of Goods Sold” (COGS) means the direct labour costs of GX9 Security, Inc employees engaged in providing the services which generate the Defined Revenue Sources.
PearTrack Security Systems, Inc.Consulting Agreement
David RockePage 12 of 12
CONSULTING AGREEMENT
CONSULTING AGREEMENT (this “Agreement”) effective the 1st day of May 2019, is entered into December 30, 2019 by and between the Enigma-Bulwark Risk Management, Inc., a Delaware corporation at 1327 Ocean Avenue, Suite B, Santa Monica, CA 90401 (the “Company”), and Michael Gabriele of 4753 Rafi Road, Easton, PA 18405 (the “Consultant”).
WHEREAS, the Company is wholly owned subsidiary of Enigma-Bulwark, Limited (“Enigma-Bulwark”); and
WHEREAS, the Company desires to retain Consultant to render consulting and advisory services as outlined in the Scope of Work in Exhibit “A” of this Agreement on the terms and conditions set forth in this Agreement, and Consultant desires to be retained by the Company on such terms and conditions.
NOW, THEREFORE, in consideration of the premises, the mutual agreements herein set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1.Engagement of Consultant; Services to be performed.
1.1.The Company hereby retains Consultant to render such consulting services as set out in Exhibit “A” or such other services as the Company may reasonably request. Consultant hereby accepts such engagement and agrees to perform such services for the Company upon the terms and conditions set forth in this Agreement.
1.2.Consultant shall be appointed President of the Company and President and Chief Executive Officer of GX9 Security Inc, a wholly owned subsidiary of the Company’s parent Enigma-Bulwark Limited.
1.3.During the Term (as defined in Section 2), Consultant shall devote such time, attention, skill and energy as may be reasonably required to perform the services required by this Agreement and shall assume and perform to the best of his ability such reasonable responsibilities and duties as the Company shall assign to Consultant from time to time.
1.4.Consultant shall perform the services hereunder at locations of his choosing, but he shall, at the Company’s expense, also be required to render the services at such other locations as the Company may reasonably specify from time to time.
1.5.In rendering services hereunder, Consultant shall be acting as an independent contractor and not as a employee or agent of the Company. As an independent contractor, Consultant shall have no authority, express or implied, to commit or obligate the Company in any manner whatsoever, except as specifically authorized from time to time in writing by an authorized representative of the Company, which authorization may be general or specific. Nothing contained in this Agreement shall be construed or applied to create a partnership. Consultant shall be responsible for the payment of all federal, state, provincial or local taxes payable with respect
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Michael GabrielePage 1 of 12
to all amounts paid to Consultant under this Agreement; provided, however, that if the Company is determined to be liable for collection and/or remittance of any such taxes, Consultant shall immediately reimburse the Company for all such payments made by the Company.
2.Term. Unless terminated at an earlier date in accordance with Section 5 or Section 6, this Agreement shall commence as of the Effective Date and shall continue for a continuous period of three (3) years (the “Term”).
3.Directors & Officers Insurance. The Company shall continuously benefit from the Effective Date of Closing of five hundred thousand ($500,000) dollars of capitalization from insurance coverage for its directors and officers and those of its subsidiaries in the form as is customary for an SEC Registrant. Consultant acknowledges such insurance coverage will be purchased by Enigma-Bulwark to cover its whole group.
4.Compensation
4.1.Cash: As compensation for Consultant’s services hereunder, the Company shall pay to Consultant a consulting fee of one hundred and seventy-five thousand ($175,000) dollars a year (“Base Fee”).
4.2.Payment of Cash Compensation: Until such time as the Company or its subsidiaries generate positive cashflow from operations (or such time as David Rocke receives cash payments for a Consulting Contract of even date hereof if earlier) the Company and Consultant agree that the Base Fee shall accrue monthly but be deferred and memorialized in the form of an interest bearing corporate convertible promissory note issued by Enigma-Bulwark. After such time, Base Fee shall be paid monthly by wire transfer to an account nominated by Consultant and any amount outstanding on any note issued under this section 4.2 shall be paid in four equal monthly installments until such time it is converted or fully paid.
(a) “Minimum Capital Investment” is defined as one million (US $1,000,000) dollars, secured by the company, in the aggregate, in either debt or equity financing.
(b)Interest Bearing Convertible Note. The interest bearing convertible note will have the following key terms:
(i) Interest at five percent (5%) per annum;
(ii)convert into shares of the Company’s Common stock at a twenty (20) trading day average price of the Common Stock; and
(iii)The total aggregate amount of shares that can be converted shall not exceed one (1%) percent of the issued and outstanding capital stock at the time of conversion.
(c)Termination of Cash Deferment. After a period of twelve (12) months, Enigma-Bulwark has not secured the aggregate investment of one million ($1,000,000) dollars, the Company will not continue to defer the Consultant’s fee and may choose to terminate the Consultants Agreement under Section 5.1
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Michael GabrielePage 2 of 12
4.3.Stock:
(a)Stock Options. Consultant shall receive options over common stock of Enigma-Bulwark during the Term of this Agreement as determined by Enigma-Bulwark’s Board of Directors from time to time.
(b)Initial Stock Option Grant. Upon execution of this Agreement, Consultant shall be granted an aggregate of two million seven hundred and fifty thousand and forty (2,750,040) stock options at an exercise price of fifty one hundredths of one cent ($0.005) per share (which exercise price is not less than the closing price on the date of Board approval) for a five-year period, pursuant to Enigma-Bulwark’s standard Employee Stock Option Plan (“Initial Grant”). The Initial Grant shall vest as set out in Exhibit C unless the provisions of Sections 7.3 or 7.4 apply.
4.4.Profit Share. Consultant shall be entitled to 12.5% of the Adjusted Gross Earnings of GX9 Security, Inc for each calendar year during any part of which this Agreement is in force (“Profit Share”), “Adjusted Gross Earnings” is defined in Exhibit C, Profit Share shall be paid in cash within fifteen days of the completion of the audit of GX9 Security, Inc for each calendar year, or March 31 of the following calendar year if earlier.
5.Termination By the Company
5.1.For Cause or upon death or Disability or non securing of Minimum Capital Investment. Company will have the right to immediately terminate Consultant's services and this Agreement for Cause, death or Disability or if the Company has not secured the Minimum Capital Investment within twelve months hereof.. Company will have the right to immediately terminate Consultant's services and this Agreement for Cause, death or Disability.
"Cause" means: any material breach of this Agreement by Consultant, including, without limitation, willful breach of Consultant’s covenants; conviction of a felony or failure to contest prosecution for a felony, other than what has been disclosed to the Company’s Board of Directors as of the signing of this Agreement, by Consultant; violation of any statute, rule or regulation, any of which in the reasonable judgment of Company has a material adverse effect on the business of the Company or to Company’s reputation; unethical practices; dishonesty; or disloyalty.
“Disability” means the incapacity or inability of Consultant, whether due to accident, sickness or otherwise, as determined by a medical doctor reasonably acceptable to the Board of Directors of Company and confirmed in writing by such doctor, to perform the essential functions of Consultant’s position under this Agreement, with or without reasonable accommodation (provided that no accommodation that imposes undue hardship on Company will be required) for an aggregate of ninety (90) days during any period of one hundred eighty (180) consecutive days.
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Michael GabrielePage 3 of 12
5.2.Without Cause. Company may terminate Consultant's engagement under this Agreement without cause and without advance notice.
6.Termination By Consultant.
6.1.Without reason. Consultant may terminate Consultant’s engagement under this Agreement for any reason provided that Consultant gives Company at least thirty-days’ notice in writing. Company may, at its option, relieve Consultant of all duties and authority after notice of termination has been provided.
6.2.With Good Reason. Consultant may immediately terminate Consultant’s engagement under this Agreement for any Good Reason.
“Good Reason” means: a material breach of this agreement by Company; the non-purchase, lapse, cancellation or non-renewal of the Directors & Officer insurance set out in Section 3, non securing of the Minimum Capital Investment within twelve months hereof; or the termination of Consultant’s President and/or President and CEO designations as set out in Section 1.2.
7.Effect of Termination
7.1.By Company for Cause. Upon termination of Consultant's engagement by Company for Cause Consultant shall have no rights to any unvested benefits or any other compensation or payments after the termination date.
7.2.By Company on death or Disability. Upon termination of Consultant's engagement by Company upon the death or Disability of Consultant, Consultant will have no rights to any unvested benefits or any other compensation or payments after the last day of the month in which Consultant’s death or Disability occurred.
7.3.By Company Without Cause. Upon termination of Consultant’s engagement by Company Without Cause, Company will continue to pay, including health benefits, Consultant’s Base Fee for the remainder of the period ended three years after the date hereof and Profit Share for all calendar years ended December 31, 2024, Such payments will be at usual and customary pay intervals of Company or annually in line with Section 4.4 as applicable. All unvested options within Initial Grant shall immediately vest.
7.4.By Consultant for Good Reason. Upon termination of Consultant’s engagement by Consultant for Good Reason, Company will continue to pay, including health benefits, Consultant’s Base Fee for the remainder of the period ended three years after the date hereof and Profit Share for all calendar years ended December 31, 2024, such payments will be at usual and customary pay intervals of Company. All unvested options within Initial Grant shall immediately vest.
7.5.By Consultant for without reason. All compensation, payments will cease on the termination date.
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Michael GabrielePage 4 of 12
8.Expenses. In addition to the payment of consulting fees set forth above, the Company shall reimburse Consultant all actual out-of-pocket costs for long-distance telephone services, facsimile transmissions, photocopying, courier services and postage, and all reasonable travel, lodging and per diem expenses, that he shall incur in connection with the rendering of Consultant’s services; provided that the Company shall have no obligation to reimburse any of such expenses except upon provision by Consultant of adequate documentation thereof in such form as the Company shall reasonably request; and provided further, that the Company shall have no such obligation in respect of any travel, lodging or per diem expenses unless the travel to which such expenses relate shall have been authorized in advance by the Company.
9.Insurance. Consultant if he so elects and if permissible by the Company plans, will be entitled to participate in fringe benefit, health insurance, life insurance, and other programs which Company may adopt from time to time for employees and executives of Company. Consultant may elect to be reimbursed for insurance he and his dependents currently are covered under. Participation will be in accordance with any plans and any applicable policies adopted by Company.
10.Vacation.Consultant shall be entitled to vacations in accordance with Company policy in effect from time to time. Until written policies are adopted, Consultant will accrue two (2) weeks vacation during the Initial Term of his engagement by the Company.
11.Protection of Trade Secrets, Know-How and/or Other Confidential Information of the Company.
11.1.Confidential Information. Except as permitted or directed by the Company, during the Term or at any time thereafter Consultant shall not divulge, furnish or make accessible to anyone or use in any way (other than in the ordinary course of the business of the Company) any confidential or secret knowledge or information of the Company that Consultant has acquired or become acquainted with or will acquire or become acquainted with during the Term or during engagement by the Company prior to the Term, whether developed by Consultant or by others, concerning any trade secrets, confidential or secret designs, processes, formulae, products or future products, plans, devices or material (whether or not patented or patentable) directly or indirectly useful in any aspect of the business of the Company, any customer or supplier lists of the Company, any confidential or secret development or research work of the Company, or any other confidential information or secret aspects of the business of the Company. Consultant acknowledges that the above-described knowledge or information constitutes a unique and valuable asset of the Company acquired at great time and expense by the Company and its predecessors, and that any disclosure or other use of such knowledge or information other than for the sole benefit of the Company would be wrongful and would cause irreparable harm to the Company. Both during and after the Term, Consultant will refrain from any acts or omissions that would intentionally reduce the value of such knowledge or information to the Company. The foregoing obligations of confidentiality, however, shall not apply to any knowledge or information which is now published or which subsequently becomes generally publicly known in the form in which it was obtained from the Company, other than as a direct or indirect result of the breach of this Agreement by Consultant.
11.2.Know-How and Trade Secrets. All know-how and trade secret information conceived or originated by Consultant, which arises out of the performance of the services hereunder, or any
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Michael GabrielePage 5 of 12
related material or information shall be the property of the Company, and all rights therein are hereby assigned to the Company.
11.3.Return of Records. Upon termination of this Agreement, Consultant shall deliver to the Company all property that is in his possession and that is the Company’s property or relates to the Company’s business, including, but not limited to records, notes, data, memoranda, software, electronic information, models, equipment, and any copies of the same.
12.Miscellaneous.
12.1.Entire Agreement. This Agreement (including any exhibits, schedules and other documents referred to herein) contains the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes any prior understandings, agreements or representations, written or oral, relating to the subject matter hereof.
12.2.Counterparts. This Agreement may be executed in separate counterparts, each of which will be an original and all of which taken together shall constitute one and the same agreement, and any party hereto may execute this Agreement by signing any such counterpart.
12.3.Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but if any provision of this Agreement is held to be invalid, illegal or unenforceable under any applicable law or rule, the validity, legality and enforceability of the other provision of this Agreement will not be affected or impaired thereby.
12.4.Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives and, to the extent permitted by Section 12.5, successors and assigns.
12.5.Assignment. This Agreement and the rights and obligations of the parties hereunder shall not be assignable, in whole or in part, by either party without the prior written consent of the other party.
12.6.Modification, Amendment, Waiver or Termination. No provision of this Agreement may be modified, amended, waived or terminated except by an instrument in writing signed by the parties to this Agreement. No course of dealing between the parties will modify, amend, waive or terminate any provision of this Agreement or any rights or obligations of any party under or by reason of this Agreement.
12.7.Notices. All notices, consents, requests, instructions, approvals or other communications provided for herein shall be in writing and delivered by personal delivery, overnight courier, mail, electronic facsimile or e-mail addressed to the receiving party at the address set forth herein. All such communications shall be effective when received.
Any party may change the address set forth above by notice to each other party given as provided herein.
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Michael GabrielePage 6 of 12
To: Michael Garbiele
4753 Rafi Road
Easton PA18405
To:Enigma-Bulwark Risk Management, Inc.
Clive Oosthuizen, CEO
1327 Ocean Ave, Suite B
Santa Monica, CA 90401
With copy:
To:Enigma-Bulwark, Limited.
Kyle W. Withrow, CEO
1327 Ocean Ave, Suite B
Santa Monica, CA 90401
12.8.Headings. The headings and any table of contents contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
12.9.Governing Law/Waiver of Claims/Arbitration.
(a)ALL MATTERS RELATING TO THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISIONS THEREOF.
(b) The parties hereto agree that in the event of any and all disagreements and controversies arising from this Agreement or any other agreements between the Company and Executive the breach, termination or validity thereof or the present and future dealings between the parties, such disagreements and controversies shall be subject to a two step mediation and binding arbitration process. The first step will first to a one time mediations session to be held in accordance with the California Bar Associations Mediation guidelines and to be heard in front of a Mediation expert that has been practicing for a period of at least 5 years. If the Parties fail to resolve their dispute via Mediation, the Parties agree to a second step of binding arbitration as arbitrated in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) to be held in the city of Santa Monica, California, in Los Angeles County, California before one neutral arbitrator. Such arbitrator shall be selected by mutual agreement of the parties within thirty (30) days of written notice of a continuing dispute following mediation of said disagreement or controversy. If the parties cannot mutually agree to an arbitrator within thirty (30) days, then the AAA shall designate the arbitrator. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Without waiving any remedy under this Agreement, either party may also seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Michael GabrielePage 7 of 12
determination of the merits of the controversy). In the event of any such disagreement or controversy, neither party shall directly or indirectly reveal, report, publish or disclose any information relating to such disagreement or controversy to any person, firm or corporation not expressly authorized by the other party to receive such information or use such information or assist any other person in doing so, except to comply with actual legal obligations of such party or unless such disclosure is directly related to an arbitration proceeding as provided herein, including, but not limited to, the prosecution or defense of any claim in such arbitration. The costs and expenses of the arbitration (excluding attorneys’ fees) shall be paid by the non-prevailing Party or as determined by the arbitrator. This paragraph shall survive the termination of this Agreement.
12.10.Third-Party Benefit. Nothing in this Agreement, express or implied, is intended to confer upon any other person any rights, remedies, obligations or liabilities of any nature whatsoever.
12.11.No Waiver. No delay on the part of the Company in exercising any right hereunder shall operate as a waiver of such right. No waiver, express or implied, by the Company of any right or any breach by Consultant shall constitute a waiver of any other right or breach by Consultant.
12.12.Remedies. The parties agree that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may, in its discretion, apply to any court of law or equity of competent jurisdiction for specific performance and injunctive relief in order to enforce or prevent any violations this Agreement, and any party against whom such proceeding is brought hereby waives the claim or defense that such party has an adequate remedy at law and agrees not to raise the defense that the other party has an adequate remedy at law.
*** The rest of this page left intentionally blank ***
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Michael GabrielePage 8 of 12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
Company: |
| Consultant: | ||
|
|
| ||
ENIGMA-BULWARK RISK MANAGEMENT, INC. |
| MICHAEL GABRIELE | ||
|
|
| ||
|
|
| ||
|
|
| ||
By: | /s/ Kyle W. Withrow |
| By: | /s/ Michael Gabriele |
Kyle W. Withrow |
| Michael Gabriele | ||
Its: Chief Executive Officer |
|
|
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Michael GabrielePage 9 of 12
EXHIBIT “A”
Scope of Work by Consultant for Company and its subsidiaries:
Act as President of Enigma-Bulwark Risk Management, Inc. and President and CEO of GX9 Security, Inc
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Michael GabrielePage 10 of 12
EXHIBIT “B”
Vesting of Initial Grant
The Initial Grant shall vest as follows:
(i)One hundred fourteen thousand five hundred eighty five (114,585) stock options immediately; and
(ii)One hundred fourteen thousand five hundred eighty five (114,585) stock options every ninety (90) days from the date hereof until eleven (11) such vestings have occurred under this Schedule 2(ii); and
(iii)One million three hundred and seventy five thousand and twenty (1,375,020) stock options upon meeting of performance targets negotiated and agreed between Company and Consultant acting in good faith and reasonable.
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Michael GabrielePage 11 of 12
EXHIBIT “C”
CALCULATION OF ADJUSTED GROSS EARNINGS
“Adjusted Gross Earnings” means all revenue accounted to GX9 Security Inc from the Defined Revenue Sources less Cost of Goods Sold.
“Defined Revenue Source” means all revenues accounted by GX9 Security Inc from its services including, but not limited to, revenues from the sale of products and/or services that incorporate the Enigma-Bulwark technology into the service or product offerings.
“Cost of Goods Sold” (COGS) means the direct labor costs of GX9 Security Inc employees engaged in providing the services which generate the Defined Revenue Sources.
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Michael GabrielePage 12 of 12
NON-COMPETE, NON-DILUTION AND REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made and entered into this 28th day of August 2019, by and between PearTrack Security Systems, Inc., a Nevada corporation at 1327 Ocean Avenue Suite B Santa Monica, CA 90401 (“PearTrack”) and David Rocke, a Bermuda resident, at 36 South Road, Southampton, SN01, Bermuda (“Consultant”).
WHEREAS, PearTrack is, a Nevada corporation, which has authorized two hundred and fifty million (250,000,000) shares of Common stock and twenty-five million shares of Preferred stock and issued capital stock of sixty-eight million seven hundred and fifty thousand and nine hundred and thirty-one (68,750,931) shares of $.001 par value common stock; and
WHEREAS, PearTrack wishes to enter the hospitality security market in Florida and elsewhere within the United States, through its wholly owned subsidiaries; and
WHEREAS, Consultant and PearTrack have entered into a consulting agreement of the date hereof (the “Consulting Agreement”), under which Consultant will assist PearTrack; and
WHEREAS, PearTrack wishes to restrict Consultant’s activities in ways further than included within the Consulting Agreement and Consultant is willing to agree to those restrictions; and
WHEREAS, To induce the Consultant to accept the further restrictions, PearTrack is willing to protect Consultant or his nominee from dilution resulting from future issuances of Common Stock originating from any financial instrument issued by PearTrack or any subsidiary of PearTrack prior to May 15, 2019 that allows for the issuance of Common Stock (each such instrument being a “Non-Diluting Instrument”); and
WHEREAS, PearTrack and Consultant desire that all Common Stock held in the name of Consultant or his nominee shall benefit from full Registration Rights.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in the Agreement, and in order to consummate the purchase and the sale of the Purchased Shares, it is hereby agreed as follows:
1.Consultant’s covenant not to compete.
1.1.During the period commencing on the date hereof and ending on the later of (i) five years from the date hereof and (ii) two years after the expiry or termination of the Consulting Agreement (“Non-Compete Period”). Consultant will not provide his services to any other entity in the hospitality security business in the United States (the “Business”) nor any of the security technology currently owned by PearTrack
ConfidentialPage 18/28/2019
and under development or acquired during the term of Consulting Agreement.
1.2.Consultant acknowledges that because of his position under the Consulting Agreement, he will have access to material intellectual property and Confidential Information. Consultant shall not, during the Non-Compete Period, directly or indirectly (a) divert or attempt to divert from PearTrack any of the Business, including without limitation the solicitation of or interference with any of its customers, clients, members, business partners or suppliers, or (b) solicit or otherwise induce any person employed by PearTrack or its subsidiaries to terminate his or her employment with the PearTrack or its subsidiaries.
2.Obligations of PearTrack
2.1.Upon the issuance by PearTrack, during the Non-Compete Period, of any Common Stock under any Non-Diluting Instrument (the number of shares of each issuance being a “Potential Dilution Amount”), PearTrack will immediately issue to Consultant or his nominee that number of shares of Common Stock that is equal to 7% (seven percent) of the Potential Dilution Amount, against receipt of immediately available funds equal to the par value of such Common Stock.
2.2.PearTrack will enter into a Registration Rights Agreement in the form attached at Exhibit “A” with Consultant or his nominee at each time an issuance of Common Stock is made to Consultant or his nominee.
3.Representations and warranties of PearTrack
PearTrack hereby warrants and represents:
3.1.PearTrack is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada and has the corporate power and authority to carry on its business as it is now being conducted.
4.Representations and warranties of PearTrack and Consultant
PearTrack and Consultant hereby represent and warrant that there has been no act or omission by PearTrack or Consultant which would give rise to any valid claim against any of the parties hereto.
5.General Provisions
5.1.Entire Agreement. This agreement (including the preamble and the exhibits hereto and any written agreements hereof executed by the parties) constitutes the entire Agreement and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof.
5.2.Section and Other Heading. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
ConfidentialPage 28/28/2019
5.3.Governing Law. This agreement and all transactions contemplated hereby, shall be governed by, construed and enforced in accordance with the laws of the State of California. The parties herein waive trial by jury and agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in Los Angeles County, State of California. In the event that litigation results from or arises out of this Agreement or the performance thereof, the parties agree to reimburse the prevailing party’s reasonable attorney’s fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing party may be entitled.
5.4.Amendment. This Agreement shall only be amended, modified, or supplemented by a writing signed by all parties hereto.
(The remainder of the page left intentionally blank)
ConfidentialPage 38/28/2019
IN WITNESS WHEREOF, This Agreement has been executed by each of the individual parties hereto on the date first above written.
Signed:
By: /s/ Kyle W. Withrow 08/29/2019
Kyle W. WithrowDate
President
PearTrack Security Systems, Inc.
By: /s/ David Rocke 08/29/2019
David RockeDate
ConfidentialPage 48/28/2019
EXHIBIT “A”
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (“Agreement”) is made and entered into as of the 15 day of May, 2019 (the “Effective Date”), by and between Leafy Lane Limited, a British Virgin Islands Company, with its Registered Office at 36 South Road, Southampton, Bermuda SN01 (“LEAFY”) and PearTrack Security Systems, Inc., a Nevada corporation, having a principal place of business at 1327 Ocean Avenue, Suite B, Santa Monica, CA 94501 (“PTSS” or the “Company”).
WHEREAS, in connection with the purchase by LEAFY of six million six hundred and sixty-six thousand (6,667,000) shares of the Company’s Common Stock (the “Purchased Shares”), the Company has agreed to enter into this Registration Rights Agreement.
NOW THEREFORE, in consideration of the mutual agreements, covenants and conditions and releases contained herein, the Company and the Purchaser hereby agree as follows:
1.DEFINITIONS. AS USED HEREIN:
1.1.The term “Holder” means any person owning or having the right to acquire Registrable Shares or any assignee thereof in accordance with Section 2.8 hereof.
1.2.The terms “register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act (as defined below) and the applicable rules and regulations thereunder, and the declaration or ordering of the effectiveness of such registration statement.
1.3.For the purposes hereof, the term “Registrable Shares” means and includes (i) the Purchased Shares and (ii) any common stock of the Company issued or issuable as a result of a stock split, dividend or other distribution with respect to or in exchange for or in replacement of the Purchased Shares.
1.4.The term “Ownership Percentage” means and includes, with respect to each Holder of Registrable Shares requesting inclusion of Registrable Shares in an offering pursuant to this Agreement, the number of Registrable Shares held by such Holder divided by the aggregate of (i) all Registrable Shares held by all Holders requesting registration in such offering and (ii) the total number of all other securities entitled to registration pursuant to any agreement with the Company and held by others participating in the underwriting.
1.5.The term “Securities Act” means the Securities Act of 1933, as amended.
1.6.The term “Public Offering” means and includes the closing of an underwritten public offering pursuant to an effective registration statement under the Securities Act, covering the offer and sale of securities to the general public for the account of the Company.
ConfidentialPage 58/28/2019
2.REGISTRATION RIGHTS.
2.1.“Piggy Back” Registration. If at any time the Company shall determine to register under the Securities Act (including pursuant to a demand of any stockholder of the Company exercising registration rights) any of its common stock (other than a registration relating solely to the sale of securities to participants in a Company employee benefits plan, a registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Shares or a registration in which the only common stock being registered is common stock issuable upon conversion of debt securities which are also being registered), it shall send to each Holder written notice of such determination and, if within ten (10) business days after receipt of such notice, such Holder shall so request in writing, the Company shall use its best efforts to include in such registration statement all of the Registrable Shares that such Holder requests to be registered, except that if, in connection with any offering involving an underwriting of common stock to be issued by the Company, the managing underwriter shall impose a limitation on the number of shares of common stock included in any such registration statement because, in such underwriter’s judgment, such limitation is necessary based on market conditions, the Company shall be obligated to include in such registration statement, with respect to the requesting Holder, only an amount of Registrable Shares equal to the product of (i) the number of Registrable Shares that remain available for registration after the underwriter’s cut back and (ii) such Holder’s Ownership Percentage, as that term is defined in Section 1.4. Notwithstanding the foregoing, (a) no such reduction shall be made with respect to securities being offered by the Company for its own account, and (b) any person who has or is granted registration rights, which have priority over the rights, granted hereunder shall have priority in case of any cut back. If any Holder disapproves of the terms of such underwriting, it may elect to withdraw therefrom by written notice to the Company and the underwriter.
2.2.Effectiveness.
(a)The Company will use its best efforts to maintain the effectiveness for the period described in the plan of distribution set forth in the registration statement.
(b)The Company will from time to time amend or supplement such registration statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act and any applicable state securities statute or regulation.
2.3.Indemnification.
(a)Indemnification of Holders. In the event that the Company registers any of the Registrable Shares under the Securities Act, the Company will indemnify and hold harmless each Holder and each underwriter of the Registrable Shares so registered (including any broker or dealer through whom such shares may be sold) and each person, if any, who controls such Holder within the meaning of the Securities Act or any such underwriter within the meaning of Section 15 of the Securities Act from and against any and all losses, claims, damages, expenses or liabilities (or any action in respect thereof), joint or several, to which they or any of them become subject under the Securities Act or under any other statute or at common law or otherwise, and, except as hereinafter provided, will reimburse each such Holder, each such underwriter and each
ConfidentialPage 68/28/2019
such controlling person, if any, for any legal or other such expenses are incurred, in ing, defending, or settling any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the registration statement, in any preliminary or amended preliminary prospectus or in the prospectus (or the registration statement or prospectus as from time to time amended or supplemented by the Company); (ii) arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading; or (iii) any violation by the Company of the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”), a state securities law or any rule or regulation under the Securities Act, the Exchange Act or any state securities law; provided, however, that the indemnity contained in this Section 2.3(a) will not apply where such untrue statement or omission was made in such registration statement, preliminary or amended, preliminary prospectus or prospectus in reliance upon and in conformity with information furnished in writing to the Company in connection therewith by such Holder of Registrable Shares, any such underwriter or any such controlling person expressly for use therein. Promptly after receipt by any Holder of Registrable Shares, any underwriter or any controlling person of notice of the commencement of any action in respect of which indemnity may be sought against the Company, such Holder of Registrable Shares, or such underwriter or such controlling person, as the case may be, will notify the Company in writing of the commencement thereof, and, subject to the provisions hereinafter stated, the Company shall assume the defense of such action (including the employment of counsel, who shall be counsel reasonably satisfactory to such Holder of Registrable Shares, such underwriter or such controlling person, as the case may be), and the payment of expenses insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against the Company. Such Holder of Registrable Shares, any such underwriter or any such controlling person shall have the right to employ separate counsel in any such action and to participate in the defense thereof in the event the representation of such Holder, underwriter or controlling person by counsel retained by or on the behalf of the Company would be inappropriate due to conflicts of interest between any such person and any other party represented by such counsel in such proceeding or action, in which case the Company shall pay, as incurred, the fees and expenses of such separate counsel. The Company shall not be liable to indemnify any person under this Section 2.3(a) for any settlement of any such action effected without the Company’s consent (which consent shall not be unreasonably withheld). The Company shall not, except with the approval of each party being indemnified under this Section 2.3(a) (which approval will not be unreasonably withheld), consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the parties being so indemnified of a release from all liability in respect to such claim or litigation.
(b)Indemnification of Company. In the event that the Company registers any of the Registrable Shares under the Securities Act, each Holder of the Registrable Shares so registered will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the registration statement, each underwriter of the Registrable Shares so registered (including any broker or dealer through whom any of such shares may be sold) and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act from and against any and all losses, claims, damages, expenses or liabilities (or any action in respect thereof), joint or several, to which they or any of them may become subject under the
ConfidentialPage 78/28/2019
Securities Act or under any other statute or at common law or otherwise, and, except as hereinafter provided, will reimburse the Company and each such director, officer, underwriter or controlling person for any legal or other expenses reasonably incurred by them or any of them, as such expenses are incurred, in connection with investigating or defending any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement, in any preliminary or amended preliminary prospectus or in the prospectus (or the registration statement or prospectus as from time to time amended or supplemented) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, but only insofar as any such statement or omission was made in reliance upon and in conformity with information furnished in writing to the Company in connection therewith by such Holder, expressly for use therein; provided, however, that such Holder’s obligations hereunder shall be limited to an amount equal to the net proceeds to such Holder of the Registrable Shares sold in such registration. Promptly after receipt of notice of the commencement of any action in respect of which indemnity may be sought against such Holder of Registrable Shares, the Company will notify such Holder of Registrable Shares in writing of the commencement thereof, and such Holder of Registrable Shares shall, subject to the provisions hereinafter stated, assume the defense of such action (including the employment of counsel, who shall be counsel reasonably satisfactory to the Company) and the payment of expenses insofar as such action shall relate to the alleged liability in respect of which indemnity may be sought against such Holder of Registrable Shares. The Company and each such director, officer, underwriter or controlling person shall have the right to employ separate counsel in any such action and to participate in the defense thereof in the event the representation of the Company, any of its officers or directors or any underwriter or controlling person by counsel retained by or on the behalf of such Holder would be inappropriate due to conflicts of interest between any such person and any other party represented by such counsel in such proceeding or action, in which case such Holder shall pay, as incurred, the fees and expenses of such separate counsel, but only one such counsel. Notwithstanding the two preceding sentences, if the action is one in which the Company may be obligated to indemnify any Holder of Registrable Shares pursuant to Section 2.3, the Company shall have the right to assume the defense of such action, subject to the right of such Holders to participate therein as permitted by Section 2.3. Such Holder shall not be liable to indemnify any person for any settlement of any such action effected without such Holder’s consent (which consent shall not be unreasonably withheld). Such Holder shall not, except with the approval of the Company (which approval shall not be unreasonably withheld), consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the party being so indemnified of a release from all liability in respect to such claim or litigation.
2.4.Contribution. If the indemnification provided for in Section 2.3 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable
ConfidentialPage 88/28/2019
considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission.
2.5.Exchange Act Registration. With a view to making available to the Holders the benefits of Rule 144 promulgated under the Act and any other rule or regulation of the Securities and Exchange Commission (the “SEC”) that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company agrees to:
(a)File on a timely basis with the Securities and Exchange Commission all information that the Commission may require under either of Section 13 or Section 15(d) of the Exchange Act and, so long as it is required to file such information, take all action that may be required as a condition to the availability of Rule 144 under the Securities Act (or any successor exempted rule hereinafter in effect) with respect to the Company’s common stock; and
(b)Furnish to any Holder forthwith upon request (i) a written statement by the Company as to its compliance with the reporting requirements of Rule 144, (ii) a copy of the most recent annual or quarterly report of the Company as filed with the Securities and Exchange Commission, and (iii) any other reports and documents that a Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing a Holder to sell any such Registrable Shares without registration.
2.6.Further Obligations of the Company. Whenever the Company is required hereunder to register Registrable Shares, it agrees that it shall also do the following:
(a)Furnish to each selling Holder such copies of each preliminary and final prospectus and any other documents that such Holder may reasonably request to facilitate the public offering of its Registrable Shares;
(b)Use its best efforts to register or qualify the Registrable Shares to be registered pursuant to this Agreement under the applicable securities or “blue sky” laws of such jurisdictions as any selling Holder may reasonably request and keep such registration or qualification effective during the period set forth in Section 2.6(j) below; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to the service of process in suits other than those arising out of the offer or sale of the securities covered by the registration statement in any jurisdiction where it is not then so subject;
(c)Notify each Holder of Registrable Shares covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to
ConfidentialPage 98/28/2019
state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(d)Cause all such Registrable Shares registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(e)Provide a transfer agent and registrar for all Registrable Shares registered pursuant hereunder and a CUSIP number for all such Registrable Shares, in each case not later than the effective date of such registration;
(f)In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement and other customary agreements, in usual and customary form, with the managing underwriter of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement;
(g)Furnish, at the request of any Holder requesting registration of Registrable Shares pursuant to this Section 2, on the date that such Registrable Shares are delivered to the underwriters for sale in connection with a registration pursuant to this Section 2, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective:
(i)at the request of any Holder, to furnish on the effective date of the Registration Statement or, if the offering is underwritten, on the date that Registrable Shares are delivered to the underwriters for sale, an opinion of counsel, dated such date, representing the Company for the purposes of such registration, addressed to the underwriters and to such Holder, stating that such registration statement has become effective under the Securities Act and that (i) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (ii) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or other financial data contained therein), and (iii) such other opinions as reasonably may be requested by counsel for the underwriters or by such Holder or its counsel;
(ii)“comfort” letters signed by the Company’s independent public accountants who have examined and reported on the Company’s financial statements included in the registration statement, to the extent permitted by the standards of the American Institute of Certified Public Accountants, covering substantially the same matters with respect to the registration statement (and the prospectus included therein) and (in the case of the accountants’ “comfort” letters) with respect to events subsequent to the date of the financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ “comfort” letters delivered to the underwriters in underwritten public offerings of securities, but only if and to the extent that the Company is required to deliver or cause the delivery of such opinion or “comfort” letters to the underwriters in an underwritten public offering of securities;
ConfidentialPage 108/28/2019
(h)Make available for inspection by any seller of Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(i)Furnish to each selling Holder, upon request, a copy of all documents filed and all correspondence from or to the Securities and Exchange Commission in connection with any such offering unless confidential treatment of such information has been requested of the Securities and Exchange Commission;
(j)Keep such registration continuously effective for such reasonable period necessary to permit the Holder or Holders to complete the distribution described in the registration statement relating thereto or 180 days, whichever first occurs;
(k)promptly prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act, and to keep such registration statement effective for that period of time specified in Section 2.6(j) above;
(l)use best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement, or the lifting of any suspension of the qualification of any of the Registrable Shares for sale in any jurisdiction, at the earliest possible moment; and
(m)Take such other actions as shall be reasonably requested by any Holder.
2.7.Expenses. In the case of a registration under Section 2.1 the Company shall bear all costs and expenses of each such registration, including, but not limited to, printing, legal and accounting expenses, Securities and Exchange Commission filing fees and “blue sky” fees and expenses; provided, however, that the Company shall have no obligation to pay or otherwise bear (i) any portion of the fees or disbursements of more than one counsel for the Holders in connection with the registration of their Registrable Shares, which in no event shall exceed $75,000, (ii) any portion of the underwriter’s commissions or discounts attributable to the Registrable Shares being offered and sold by the Holders of Registrable Shares, or (iii) any of such expenses if the payment of such expenses by the Company is prohibited by the laws of a state in which such offering is qualified and only to the extent so prohibited.
2.8.Transfer of Registration Rights. The registration rights of a Holder of Registrable Shares under this Agreement may be transferred as set forth below provided (1) the transferee is bound by the terms of this Agreement and (2) the Company is given written notice prior to such transfer. Accordingly, the registration rights of a Holder of Registrable Shares may be transferred (i) to any partner or affiliate of a Holder, (ii) in the case of an individual, to any member of the immediate family of such individual or to any trust for the benefit of the individual or any such family member or members, or (iii) to any other transferee which receives at least 1,000,000 Registrable Shares. Notwithstanding the foregoing, the registration rights of a Holder under this Agreement may not be transferred to an entity, or a person controlled by, under common control with or controlling such entity, which is a direct competitor of the Company.
ConfidentialPage 118/28/2019
2.9.Market Stand-Off Agreement. Provided that all Holders are treated equally and all officers and directors of the Company are also so bound, no Holder shall, to the extent requested by any managing underwriter of the Company, sell or otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any Registrable Shares during a period (the “Stand-Off Period”) not to exceed 180 days following the effective date of a registration statement of any secondary offering of the Company under the Securities Act, (or in each case such shorter period as the Company or managing underwriter may authorize), and except in each case, for securities sold as part of the offering covered by such registration statement in accordance with the provisions of this Agreement. In order to enforce the foregoing covenant, the Company may impose stock transfer restrictions with respect to the Registrable Shares of each Holder until the end of the Stand-Off Period; provided, that (a) the Holders shall not be subject to this provision unless each officer, director and each person then owning greater than one percent (1%) of the outstanding Common Stock (on a fully diluted basis) has executed and remains bound by a comparable obligation; and (b) nothing herein shall prevent any Holder from making a distribution of Registrable Shares to an affiliate of such Holder that is otherwise in compliance with applicable securities laws, so long as such distributee agrees to be so bound.
Notwithstanding the foregoing, the obligations described in this Section 2.9 shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated in the future, or a registration relating solely to an SEC Rule 145 transaction on Form S-4 or similar forms which may be promulgated in the future.
2.10.Termination of Registration Rights. The obligations of the Company to register any Holder’s Registrable Shares pursuant to this Section 2 shall terminate at such time as all of a Holder’s Registrable Shares may immediately be sold under Rule 144 taking into account any volume limitations.
3.ASSIGNABILITY. THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS OF THE PARTIES HERETO.
4.LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
5.AMENDMENT. ANY MODIFICATION, AMENDMENT, OR WAIVER OF THIS AGREEMENT OR ANY PROVISION HEREOF, EITHER RETROACTIVELY OR PROSPECTIVELY, SHALL BE IN WRITING AND BE EXECUTED BY THE COMPANY AND THE HOLDERS OF NOT LESS THAN FIFTY PERCENT (50%) OF THE REGISTRABLE SHARES WHICH SHALL BE BINDING UPON ALL OF THE PARTIES HERETO.
6.COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS AND VIA FACSIMILE, EACH OF WHICH SHALL BE AN ORIGINAL, BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE INSTRUMENT.
7.NOTICE. ANY NOTICES AND OTHER COMMUNICATIONS REQUIRED OR PERMITTED UNDER THIS AGREEMENT SHALL BE EFFECTIVE IF IN WRITING AND DELIVERED PERSONALLY OR SENT BY TELECOPIER, FEDERAL EXPRESS OR
ConfidentialPage 128/28/2019
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS:
7.1.
If to Registrant, to:Leafy Lane Limited
36 South Road
Southampton, Bermuda SN01
Fax:
Email: thedavidrocke@gmail.com
Attention: David Rocke
If to the Company, to:PearTrack Security Systems, Inc.
Kyle W. Withrow
1327 Ocean Ave Suite B
Santa Monica, CA 90401
Fax: (888) 899.1399
kylew@peartracksecuritysystems.com
Attention: Kyle W. Withrow
Unless otherwise specified herein, such notices or other communications shall be deemed effective (a) on the date delivered, if delivered personally, (b) two business days after being sent, if sent by Federal Express, (c) one business day after being sent, if sent by telecopier with confirmation of good transmission and receipt, and ( d) three business days after being sent, if sent by registered or ce1tified mail. Each of the parties herewith shall be entitled to specify another address by giving notice as aforesaid to each of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
PEARTRACK SECURITY SYSTEMS, INC.
By: /s/ Kyle W. Withrow
Kyle W. Withrow
CEO
LEAFY LANE LIMITED
By: /s/ David Rocke
David Rocke
Director
ConfidentialPage 138/28/2019
NON-COMPETE, NON-DILUTION AND REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made and entered into this 28th day of August 2019, by and between PearTrack Security Systems, Inc., a Nevada corporation at 1327 Ocean Avenue Suite B Santa Monica, CA 90401 (“PearTrack”) and Michael Gabriele, an individual, at 4753 Rafi Road, Easton, PA 18045 (“Consultant”).
WHEREAS, PearTrack is, a Nevada corporation, which has authorized two hundred and fifty million (250,000,000) shares of Common stock and twenty-five million shares of Preferred stock and issued capital stock of sixty-eight million seven hundred and fifty thousand and nine hundred and thirty-one (68,750,931) shares of $.001 par value common stock; and
WHEREAS, PearTrack wishes to enter the hospitality security market in Florida and elsewhere within the United States, through its wholly owned subsidiaries; and
WHEREAS, Consultant and PearTrack have entered into a consulting agreement of the date hereof (the “Consulting Agreement”), under which Consultant will assist PearTrack; and
WHEREAS, PearTrack wishes to restrict Consultant’s activities in ways further than included within the Consulting Agreement and Consultant is willing to agree to those restrictions; and
WHEREAS, To induce the Consultant to accept the further restrictions, PearTrack is willing to protect Consultant or his nominee from dilution resulting from future issuances of Common Stock originating from any financial instrument issued by PearTrack or any subsidiary of PearTrack prior to May 15, 2019 that allows for the issuance of Common Stock (each such instrument being a “Non-Diluting Instrument”); and
WHEREAS, PearTrack and Consultant desire that all Common Stock held in the name of Consultant or his nominee shall benefit from full Registration Rights.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in the Agreement, and in order to consummate the purchase and the sale of the Purchased Shares, it is hereby agreed as follows:
1.Consultant’s covenant not to compete.
1.1.During the period commencing on the date hereof and ending on the later of (i) five years from the date hereof and (ii) two years after the expiry or termination of the Consulting Agreement (“Non-Compete Period”). Consultant will not provide his services to any other entity in the hospitality security business in the United States (the “Business”) nor any of the security technology currently owned by PearTrack
ConfidentialPage 18/28/2019
and under development or acquired during the term of Consulting Agreement.
1.2.Consultant acknowledges that because of his position under the Consulting Agreement, he will have access to material intellectual property and Confidential Information. Consultant shall not, during the Non-Compete Period, directly or indirectly (a) divert or attempt to divert from PearTrack any of the Business, including without limitation the solicitation of or interference with any of its customers, clients, members, business partners or suppliers, or (b) solicit or otherwise induce any person employed by PearTrack or its subsidiaries to terminate his or her employment with the PearTrack or its subsidiaries.
2.Obligations of PearTrack
2.1.Upon the issuance by PearTrack, during the Non-Compete Period, of any Common Stock under any Non-Diluting Instrument (the number of shares of each issuance being a “Potential Dilution Amount”), PearTrack will immediately issue to Consultant or his nominee that number of shares of Common Stock that is equal to 7% (seven percent) of the Potential Dilution Amount, against receipt of immediately available funds equal to the par value of such Common Stock.
2.2.PearTrack will enter into a Registration Rights Agreement in the form attached at Exhibit “A” with Consultant or his nominee at each time an issuance of Common Stock is made to Consultant or his nominee.
3.Representations and warranties of PearTrack
PearTrack hereby warrants and represents:
3.1.PearTrack is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada and has the corporate power and authority to carry on its business as it is now being conducted.
4.Representations and warranties of PearTrack and Consultant
PearTrack and Consultant hereby represent and warrant that there has been no act or omission by PearTrack or Consultant which would give rise to any valid claim against any of the parties hereto.
5.General Provisions
5.1.Entire Agreement. This agreement (including the preamble and the exhibits hereto and any written agreements hereof executed by the parties) constitutes the entire Agreement and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof.
5.2.Section and Other Heading. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
ConfidentialPage 28/28/2019
5.3.Governing Law. This agreement and all transactions contemplated hereby, shall be governed by, construed and enforced in accordance with the laws of the State of California. The parties herein waive trial by jury and agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in Los Angeles County, State of California. In the event that litigation results from or arises out of this Agreement or the performance thereof, the parties agree to reimburse the prevailing party’s reasonable attorney’s fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing party may be entitled.
5.4.Amendment. This Agreement shall only be amended, modified, or supplemented by a writing signed by all parties hereto.
(The remainder of the page left intentionally blank)
ConfidentialPage 38/28/2019
IN WITNESS WHEREOF, This Agreement has been executed by each of the individual parties hereto on the date first above written.
Signed:
By: /s/ Kyle W. Withrow 08/29/2019
Kyle W. WithrowDate
President
PearTrack Security Systems, Inc.
By: /s/ Michael Gabriele 08/29/2019
Michael GabrieleDate
ConfidentialPage 48/28/2019
EXHIBIT “A”
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (“Agreement”) is made and entered into as of the 15 day of May, 2019 (the “Effective Date”), by and between Michael Gabriele, an individual, at 4753 Rafi Road, Easton, PA 18405 (“Gabriele”) and PearTrack Security Systems, Inc., a Nevada corporation, having a principal place of business at 1327 Ocean Avenue, Suite B, Santa Monica, CA 94501 (“PTSS” or the “Company”).
WHEREAS, in connection with the purchase by Gabriele of six million six hundred and sixty-six thousand (6,667,000) shares of the Company’s Common Stock (the “Purchased Shares”), the Company has agreed to enter into this Registration Rights Agreement.
NOW THEREFORE, in consideration of the mutual agreements, covenants and conditions and releases contained herein, the Company and the Purchaser hereby agree as follows:
1.DEFINITIONS. AS USED HEREIN:
1.1.The term “Holder” means any person owning or having the right to acquire Registrable Shares or any assignee thereof in accordance with Section 2.8 hereof.
1.2.The terms “register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act (as defined below) and the applicable rules and regulations thereunder, and the declaration or ordering of the effectiveness of such registration statement.
1.3.For the purposes hereof, the term “Registrable Shares” means and includes (i) the Purchased Shares and (ii) any common stock of the Company issued or issuable as a result of a stock split, dividend or other distribution with respect to or in exchange for or in replacement of the Purchased Shares.
1.4.The term “Ownership Percentage” means and includes, with respect to each Holder of Registrable Shares requesting inclusion of Registrable Shares in an offering pursuant to this Agreement, the number of Registrable Shares held by such Holder divided by the aggregate of (i) all Registrable Shares held by all Holders requesting registration in such offering and (ii) the total number of all other securities entitled to registration pursuant to any agreement with the Company and held by others participating in the underwriting.
1.5.The term “Securities Act” means the Securities Act of 1933, as amended.
1.6.The term “Public Offering” means and includes the closing of an underwritten public offering pursuant to an effective registration statement under the Securities Act, covering the offer and sale of securities to the general public for the account of the Company.
ConfidentialPage 58/28/2019
2.REGISTRATION RIGHTS.
2.1.“Piggy Back” Registration. If at any time the Company shall determine to register under the Securities Act (including pursuant to a demand of any stockholder of the Company exercising registration rights) any of its common stock (other than a registration relating solely to the sale of securities to participants in a Company employee benefits plan, a registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Shares or a registration in which the only common stock being registered is common stock issuable upon conversion of debt securities which are also being registered), it shall send to each Holder written notice of such determination and, if within ten (10) business days after receipt of such notice, such Holder shall so request in writing, the Company shall use its best efforts to include in such registration statement all of the Registrable Shares that such Holder requests to be registered, except that if, in connection with any offering involving an underwriting of common stock to be issued by the Company, the managing underwriter shall impose a limitation on the number of shares of common stock included in any such registration statement because, in such underwriter’s judgment, such limitation is necessary based on market conditions, the Company shall be obligated to include in such registration statement, with respect to the requesting Holder, only an amount of Registrable Shares equal to the product of (i) the number of Registrable Shares that remain available for registration after the underwriter’s cut back and (ii) such Holder’s Ownership Percentage, as that term is defined in Section 1.4. Notwithstanding the foregoing, (a) no such reduction shall be made with respect to securities being offered by the Company for its own account, and (b) any person who has or is granted registration rights, which have priority over the rights, granted hereunder shall have priority in case of any cut back. If any Holder disapproves of the terms of such underwriting, it may elect to withdraw therefrom by written notice to the Company and the underwriter.
2.2.Effectiveness.
(a)The Company will use its best efforts to maintain the effectiveness for the period described in the plan of distribution set forth in the registration statement.
(b)The Company will from time to time amend or supplement such registration statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act and any applicable state securities statute or regulation.
2.3.Indemnification.
(a)Indemnification of Holders. In the event that the Company registers any of the Registrable Shares under the Securities Act, the Company will indemnify and hold harmless each Holder and each underwriter of the Registrable Shares so registered (including any broker or dealer through whom such shares may be sold) and each person, if any, who controls such Holder within the meaning of the Securities Act or any such underwriter within the meaning of Section 15 of the Securities Act from and against any and all losses, claims, damages, expenses or liabilities (or any action in respect thereof), joint or several, to which they or any of them become subject under the Securities Act or under any other statute or at common law or otherwise, and, except as hereinafter provided, will reimburse each such Holder, each such underwriter and each
ConfidentialPage 68/28/2019
such controlling person, if any, for any legal or other such expenses are incurred, in ing, defending, or settling any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the registration statement, in any preliminary or amended preliminary prospectus or in the prospectus (or the registration statement or prospectus as from time to time amended or supplemented by the Company); (ii) arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading; or (iii) any violation by the Company of the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”), a state securities law or any rule or regulation under the Securities Act, the Exchange Act or any state securities law; provided, however, that the indemnity contained in this Section 2.3(a) will not apply where such untrue statement or omission was made in such registration statement, preliminary or amended, preliminary prospectus or prospectus in reliance upon and in conformity with information furnished in writing to the Company in connection therewith by such Holder of Registrable Shares, any such underwriter or any such controlling person expressly for use therein. Promptly after receipt by any Holder of Registrable Shares, any underwriter or any controlling person of notice of the commencement of any action in respect of which indemnity may be sought against the Company, such Holder of Registrable Shares, or such underwriter or such controlling person, as the case may be, will notify the Company in writing of the commencement thereof, and, subject to the provisions hereinafter stated, the Company shall assume the defense of such action (including the employment of counsel, who shall be counsel reasonably satisfactory to such Holder of Registrable Shares, such underwriter or such controlling person, as the case may be), and the payment of expenses insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against the Company. Such Holder of Registrable Shares, any such underwriter or any such controlling person shall have the right to employ separate counsel in any such action and to participate in the defense thereof in the event the representation of such Holder, underwriter or controlling person by counsel retained by or on the behalf of the Company would be inappropriate due to conflicts of interest between any such person and any other party represented by such counsel in such proceeding or action, in which case the Company shall pay, as incurred, the fees and expenses of such separate counsel. The Company shall not be liable to indemnify any person under this Section 2.3(a) for any settlement of any such action effected without the Company’s consent (which consent shall not be unreasonably withheld). The Company shall not, except with the approval of each party being indemnified under this Section 2.3(a) (which approval will not be unreasonably withheld), consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the parties being so indemnified of a release from all liability in respect to such claim or litigation.
(b)Indemnification of Company. In the event that the Company registers any of the Registrable Shares under the Securities Act, each Holder of the Registrable Shares so registered will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the registration statement, each underwriter of the Registrable Shares so registered (including any broker or dealer through whom any of such shares may be sold) and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act from and against any and all losses, claims, damages, expenses or liabilities (or any action in respect thereof), joint or several, to which they or any of them may become subject under the
ConfidentialPage 78/28/2019
Securities Act or under any other statute or at common law or otherwise, and, except as hereinafter provided, will reimburse the Company and each such director, officer, underwriter or controlling person for any legal or other expenses reasonably incurred by them or any of them, as such expenses are incurred, in connection with investigating or defending any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement, in any preliminary or amended preliminary prospectus or in the prospectus (or the registration statement or prospectus as from time to time amended or supplemented) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, but only insofar as any such statement or omission was made in reliance upon and in conformity with information furnished in writing to the Company in connection therewith by such Holder, expressly for use therein; provided, however, that such Holder’s obligations hereunder shall be limited to an amount equal to the net proceeds to such Holder of the Registrable Shares sold in such registration. Promptly after receipt of notice of the commencement of any action in respect of which indemnity may be sought against such Holder of Registrable Shares, the Company will notify such Holder of Registrable Shares in writing of the commencement thereof, and such Holder of Registrable Shares shall, subject to the provisions hereinafter stated, assume the defense of such action (including the employment of counsel, who shall be counsel reasonably satisfactory to the Company) and the payment of expenses insofar as such action shall relate to the alleged liability in respect of which indemnity may be sought against such Holder of Registrable Shares. The Company and each such director, officer, underwriter or controlling person shall have the right to employ separate counsel in any such action and to participate in the defense thereof in the event the representation of the Company, any of its officers or directors or any underwriter or controlling person by counsel retained by or on the behalf of such Holder would be inappropriate due to conflicts of interest between any such person and any other party represented by such counsel in such proceeding or action, in which case such Holder shall pay, as incurred, the fees and expenses of such separate counsel, but only one such counsel. Notwithstanding the two preceding sentences, if the action is one in which the Company may be obligated to indemnify any Holder of Registrable Shares pursuant to Section 2.3, the Company shall have the right to assume the defense of such action, subject to the right of such Holders to participate therein as permitted by Section 2.3. Such Holder shall not be liable to indemnify any person for any settlement of any such action effected without such Holder’s consent (which consent shall not be unreasonably withheld). Such Holder shall not, except with the approval of the Company (which approval shall not be unreasonably withheld), consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the party being so indemnified of a release from all liability in respect to such claim or litigation.
2.4.Contribution. If the indemnification provided for in Section 2.3 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be
ConfidentialPage 88/28/2019
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission.
2.5.Exchange Act Registration. With a view to making available to the Holders the benefits of Rule 144 promulgated under the Act and any other rule or regulation of the Securities and Exchange Commission (the “SEC”) that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company agrees to:
(a)File on a timely basis with the Securities and Exchange Commission all information that the Commission may require under either of Section 13 or Section 15(d) of the Exchange Act and, so long as it is required to file such information, take all action that may be required as a condition to the availability of Rule 144 under the Securities Act (or any successor exempted rule hereinafter in effect) with respect to the Company’s common stock; and
(b)Furnish to any Holder forthwith upon request (i) a written statement by the Company as to its compliance with the reporting requirements of Rule 144, (ii) a copy of the most recent annual or quarterly report of the Company as filed with the Securities and Exchange Commission, and (iii) any other reports and documents that a Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing a Holder to sell any such Registrable Shares without registration.
2.6.Further Obligations of the Company. Whenever the Company is required hereunder to register Registrable Shares, it agrees that it shall also do the following:
(a)Furnish to each selling Holder such copies of each preliminary and final prospectus and any other documents that such Holder may reasonably request to facilitate the public offering of its Registrable Shares;
(b)Use its best efforts to register or qualify the Registrable Shares to be registered pursuant to this Agreement under the applicable securities or “blue sky” laws of such jurisdictions as any selling Holder may reasonably request and keep such registration or qualification effective during the period set forth in Section 2.6(j) below; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to the service of process in suits other than those arising out of the offer or sale of the securities covered by the registration statement in any jurisdiction where it is not then so subject;
(c)Notify each Holder of Registrable Shares covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
ConfidentialPage 98/28/2019
(d)Cause all such Registrable Shares registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(e)Provide a transfer agent and registrar for all Registrable Shares registered pursuant hereunder and a CUSIP number for all such Registrable Shares, in each case not later than the effective date of such registration;
(f)In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement and other customary agreements, in usual and customary form, with the managing underwriter of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement;
(g)Furnish, at the request of any Holder requesting registration of Registrable Shares pursuant to this Section 2, on the date that such Registrable Shares are delivered to the underwriters for sale in connection with a registration pursuant to this Section 2, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective:
(i)at the request of any Holder, to furnish on the effective date of the Registration Statement or, if the offering is underwritten, on the date that Registrable Shares are delivered to the underwriters for sale, an opinion of counsel, dated such date, representing the Company for the purposes of such registration, addressed to the underwriters and to such Holder, stating that such registration statement has become effective under the Securities Act and that (i) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (ii) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or other financial data contained therein), and (iii) such other opinions as reasonably may be requested by counsel for the underwriters or by such Holder or its counsel;
(ii)“comfort” letters signed by the Company’s independent public accountants who have examined and reported on the Company’s financial statements included in the registration statement, to the extent permitted by the standards of the American Institute of Certified Public Accountants, covering substantially the same matters with respect to the registration statement (and the prospectus included therein) and (in the case of the accountants’ “comfort” letters) with respect to events subsequent to the date of the financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ “comfort” letters delivered to the underwriters in underwritten public offerings of securities, but only if and to the extent that the Company is required to deliver or cause the delivery of such opinion or “comfort” letters to the underwriters in an underwritten public offering of securities;
(h)Make available for inspection by any seller of Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement, and any
ConfidentialPage 108/28/2019
attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(i)Furnish to each selling Holder, upon request, a copy of all documents filed and all correspondence from or to the Securities and Exchange Commission in connection with any such offering unless confidential treatment of such information has been requested of the Securities and Exchange Commission;
(j)Keep such registration continuously effective for such reasonable period necessary to permit the Holder or Holders to complete the distribution described in the registration statement relating thereto or 180 days, whichever first occurs;
(k)promptly prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act, and to keep such registration statement effective for that period of time specified in Section 2.6(j) above;
(l)use best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement, or the lifting of any suspension of the qualification of any of the Registrable Shares for sale in any jurisdiction, at the earliest possible moment; and
(m)Take such other actions as shall be reasonably requested by any Holder.
2.7.Expenses. In the case of a registration under Section 2.1 the Company shall bear all costs and expenses of each such registration, including, but not limited to, printing, legal and accounting expenses, Securities and Exchange Commission filing fees and “blue sky” fees and expenses; provided, however, that the Company shall have no obligation to pay or otherwise bear (i) any portion of the fees or disbursements of more than one counsel for the Holders in connection with the registration of their Registrable Shares, which in no event shall exceed $75,000, (ii) any portion of the underwriter’s commissions or discounts attributable to the Registrable Shares being offered and sold by the Holders of Registrable Shares, or (iii) any of such expenses if the payment of such expenses by the Company is prohibited by the laws of a state in which such offering is qualified and only to the extent so prohibited.
2.8.Transfer of Registration Rights. The registration rights of a Holder of Registrable Shares under this Agreement may be transferred as set forth below provided (1) the transferee is bound by the terms of this Agreement and (2) the Company is given written notice prior to such transfer. Accordingly, the registration rights of a Holder of Registrable Shares may be transferred (i) to any partner or affiliate of a Holder, (ii) in the case of an individual, to any member of the immediate family of such individual or to any trust for the benefit of the individual or any such family member or members, or (iii) to any other transferee which receives at least 1,000,000 Registrable Shares. Notwithstanding the foregoing, the registration rights of a Holder under this Agreement may not be transferred to an entity, or a person controlled by, under common control with or controlling such entity, which is a direct competitor of the Company.
ConfidentialPage 118/28/2019
2.9.Market Stand-Off Agreement. Provided that all Holders are treated equally and all officers and directors of the Company are also so bound, no Holder shall, to the extent requested by any managing underwriter of the Company, sell or otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any Registrable Shares during a period (the “Stand-Off Period”) not to exceed 180 days following the effective date of a registration statement of any secondary offering of the Company under the Securities Act, (or in each case such shorter period as the Company or managing underwriter may authorize), and except in each case, for securities sold as part of the offering covered by such registration statement in accordance with the provisions of this Agreement. In order to enforce the foregoing covenant, the Company may impose stock transfer restrictions with respect to the Registrable Shares of each Holder until the end of the Stand-Off Period; provided, that (a) the Holders shall not be subject to this provision unless each officer, director and each person then owning greater than one percent (1%) of the outstanding Common Stock (on a fully diluted basis) has executed and remains bound by a comparable obligation; and (b) nothing herein shall prevent any Holder from making a distribution of Registrable Shares to an affiliate of such Holder that is otherwise in compliance with applicable securities laws, so long as such distributee agrees to be so bound.
Notwithstanding the foregoing, the obligations described in this Section 2.9 shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated in the future, or a registration relating solely to an SEC Rule 145 transaction on Form S-4 or similar forms which may be promulgated in the future.
2.10.Termination of Registration Rights. The obligations of the Company to register any Holder’s Registrable Shares pursuant to this Section 2 shall terminate at such time as all of a Holder’s Registrable Shares may immediately be sold under Rule 144 taking into account any volume limitations.
3.ASSIGNABILITY. THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS OF THE PARTIES HERETO.
4.LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
5.AMENDMENT. ANY MODIFICATION, AMENDMENT, OR WAIVER OF THIS AGREEMENT OR ANY PROVISION HEREOF, EITHER RETROACTIVELY OR PROSPECTIVELY, SHALL BE IN WRITING AND BE EXECUTED BY THE COMPANY AND THE HOLDERS OF NOT LESS THAN FIFTY PERCENT (50%) OF THE REGISTRABLE SHARES WHICH SHALL BE BINDING UPON ALL OF THE PARTIES HERETO.
6.COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS AND VIA FACSIMILE, EACH OF WHICH SHALL BE AN ORIGINAL, BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE INSTRUMENT.
7.NOTICE. ANY NOTICES AND OTHER COMMUNICATIONS REQUIRED OR PERMITTED UNDER THIS AGREEMENT SHALL BE EFFECTIVE IF IN WRITING AND DELIVERED PERSONALLY OR SENT BY TELECOPIER, FEDERAL EXPRESS OR REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS:
ConfidentialPage 128/28/2019
7.1.
If to Registrant, to:Michael Gabriele
4753 Rafi Road
Easton, Pennsylvania 18045
Fax:
Email: mgabriele@proips.com
Attention: Michael Gabriele
If to the Company, to:PearTrack Security Systems, Inc.
Kyle W. Withrow
1327 Ocean Ave Suite B
Santa Monica, CA 90401
Fax: (888) 899.1399
kylew@peartracksecuritysystems.com
Attention: Kyle W. Withrow
Unless otherwise specified herein, such notices or other communications shall be deemed effective (a) on the date delivered, if delivered personally, (b) two business days after being sent, if sent by Federal Express, (c) one business day after being sent, if sent by telecopier with confirmation of good transmission and receipt, and ( d) three business days after being sent, if sent by registered or ce1tified mail. Each of the parties herewith shall be entitled to specify another address by giving notice as aforesaid to each of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
PEARTRACK SECURITY SYSTEMS, INC.
By: /s/ Kyle W. Withrow
Kyle W. Withrow
CEO
MICHAEL GABRIELE
By: /s/ Michael Gabriele
Michael Gabriele
ConfidentialPage 138/28/2019
CONSULTANT AGREEMENT
This Consultant Agreement (“Agreement”), dated as of September 1, 2019 (the “Effective Date”), is made by and among Clive Oosthuzien (“Executive”) and Enigma-Bulwark Risk Management, Inc. or its successor company, a Nevada corporation (the “Company”).
WHEREAS, Executive will be retained by the Company as its Chief Executive Officer; and
WHEREAS, the members of the Board of Directors of the Company and the Board of Directors of the Company’s parent corporation PearTrack Security Systems, Inc., desire to enter into a Consultant agreement with Executive for three (3) years, starting from the Effective Date of September 1, 2019 through September 1, 2022; and
WHEREAS, the the members of the Board of Directors of the Company and the Board of Directors of the Company’s parent corporation PearTrack Security Systems, Inc., desire to elect the Executive to the Company’s Parent Corporation Board of Directors; and
WHEREAS, the agreed upon terms and conditions of Executive’s continued Assignment are embodied in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Executive do hereby agree as follows:
Section 1.Assignment and Duties.
On the terms and subject to the conditions set forth in this Agreement, subject to the approval and ratification of Board of Directors, such approvals to be obtained prior to the Effective Date, the Company agrees to employ Executive as its Chief Executive Officer to render such services as would be customary and to render such other services and discharge such other responsibilities as the Chief Executive Officer of the Company may, from time to time, stipulate and which shall not be inconsistent with the position listed above (“Assignment”).
Section 2.Performance.
(a)Executive accepts the Assignment as set forth in Section 1 herein and agrees to concentrate all of his/her professional time and efforts to the performance of the services described therein, including the performance of such other services and responsibilities as the Chief Executive Officer of the Company may from time to time stipulate and which shall not be inconsistent with the position listed above.
(b)Without limiting the generality of the foregoing, Executive ordinarily shall devote not less than five (5) days per week (except for vacations and regular business holidays observed by the Company) on a full-time basis, during normal business hours Monday through Friday. Executive further agrees that when the performance of his/her duties reasonably requires, he shall be present on the Company’s premises or engaged in service to or on behalf of the Company at such times except during vacations, regular business holidays or weekends.
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 1 of 13
Section 3.Term/Termination.
3.1.Term. The term of Assignment under this Agreement (the “Consulting Period”) shall commence on September 1, 2019 and terminate on September 1 2022, unless earlier terminated pursuant to the termination provisions set forth herein. Notwithstanding anything to the contrary herein, the parties acknowledge and agree that Executive’s Assignment may be terminated by the Company only for Due Cause (as hereinafter defined). Not later than one hundred twenty (120) calendar days prior to the end of the Consulting Period, the continuation of Executive’s Assignment with the Company shall be discussed in good faith between the Company and Executive. The parties shall negotiate mutually agreeableterms and conditions upon which Executive will continue Executive’s Assignment..
3.2.Termination for Due Cause. The Consulting Period may be terminated for Due Cause only for the following reasons and upon the terms and conditions set forth in this Section 3.2. The Company, by a vote of a majority of its Board of Directors (a “Termination Vote”) may terminate the Consulting Period, effective upon written notice of such termination to Executive, such notice made pursuant to Section 6 herein, in the event of (i) a material breach by Executive of his fiduciary duty or duty of loyalty to Company or of his covenants under this Agreement if such material breach is not remedied within thirty (30) calendar days following written notice by the Company; (ii) the failure of Executive to comply with any material term of this Agreement which materially adversely affects the Company; (iii) commission by Executive of theft or embezzlement of property of the Company or other acts of dishonesty of a material nature and/or commission by Executive of a crime resulting in a material injury to the businesses, properties or reputations of the Company or any of its affiliates; (iv) commission of an act by Executive in the performance of his duties hereunder reasonably determined by a majority of the board of directors of the Company to constitute gross, willful or wanton negligence; (v) willful refusal to perform or substantial neglect of the duties assigned to Executive pursuant to Section 1 of this Agreement if such refusal or neglect is not remedied within thirty (30) calendar days following written notice by the Company; or (vi) any significant violation of any statutory or common law duty of loyalty to the Company or its affiliates. All compensation paid to Executive shall immediately cease upon termination for Due Cause hereunder except accrued and unpaid compensation and all unvested Stock Options shall immediately expire.
3.3.Termination Due to Death. The Consulting Period shall be terminated upon the death of Executive. All compensation paid to Executive shall immediately cease upon such termination except for accrued and unpaid compensation pursuant to Section 4.1 herein and earned but unpaid bonus payments pursuant to Section 4.2 herein. All unvested Stock Options shall immediately become vested.
3.4.Termination Due to Permanent Total Disability. The Consulting Period shall be terminated upon the Permanent Total Disability (as defined in this Section 3.4) of Executive following written notice from the Company. Permanent Total Disability is defined as an inability by Executive to perform substantially all of the services required pursuant to this Agreement for a continuous period of ninety (90) days or for a period aggregating at ninety (90) days in any consecutive twelve (12) month period when such inability is caused by illness or a physical or mental disability. Such Permanent Total Disability shall be determined by a physician selected jointly by the parties hereto.
3.5.Termination Without Cause. Company may terminate Executive’s Assignment under this Agreement without cause and without advance notice; provided, however, that Company will pay, including health benefits, as severance pay, Executives’ Base Salary at the rate in effect on the termination
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 2 of 13
date for a period of twelve (12) months. Executive shall receive the aforementioned severance payment as a lump sum within thirty (30) days from the effective date of the termination. Any bonus compensation earned as of the termination date shall be paid to Executive pursuant to the bonus payment schedule set forth in Section 4.2 herein.
(a)Options Vesting Acceleration. If the Executive is terminated without cause, his outstanding stock options, that vest quarterly, will vest in full, upon notice of termination without cause.
(b)Termination Other Than Due Cause, Death, Disability or Resignation. In the event that Executive’s Assignment is terminated for reasons other than Due Cause, death, Permanent Total Disability or resignation, then all Stock Options scheduled to vest within one year of the date of such termination shall vest immediately and the Company shall pay as severance compensation to Executive six (6) months salary compensation at his then annual salary compensation rate, including bonus earned as of the termination date. Any severance compensation paid to Executive shall be paid ratably over the remaining payment period following termination. Any bonus compensation earned as of the termination date shall be paid to Executive pursuant to the bonus payment schedule set forth in Section 4.2 herein.
3.6.Termination by Executive. Executive may terminate the Consulting Period (i) in the event the Company has breached a material term or condition of this Agreement which is not cured or remedied within thirty (30) days following written notice by Executive to Board of Directors of Company of such breach or (ii) at Executive’s convenience. In the event that Executive’s resignation is due to an uncured breach by the Company, such resignation shall be deemed a termination by the Company as without Due Cause for purposes of vesting of Stock Options pursuant to Section 5.1 herein and for payments of salary and bonus compensation as set forth in Sections 4.1, 4.1.1 and 4.1.2, respectively, herein. In the event that the Consulting Period is terminated by Executive at his convenience, then Executive will be due any earned but unpaid salary, vacation and bonus compensation as set forth in Sections 4.1., 4.1.1, and 4.1.2, respectively, herein. All vested stock options not exercised by Executive within ninety (90) days following the termination date shall be cancelled. Any unvested Stock Options shall be cancelled as of this termination date.
3.7.Surrender of Position and Properties. Upon termination of Executive’s Assignment with the Company, regardless of the cause therefore, Executive shall promptly be deemed to have resigned from the Company’s Board of Directors and as an officer and director of any of the Company’s affiliates, if serving as such at that time, and shall surrender to the Company or its affiliates all property provided to him by the Company or its affiliates, as applicable, for use in relation to his Assignment and further, Executive shall surrender to the Company or its affiliates, as applicable, any and all sales materials, lists of customers and prospective customers, investment performance reports, files, patent applications, records, models or other materials and information of or pertaining to the Company or its affiliates or their customers or prospective customers or the products, businesses and operations of the Company or its affiliates.
3.8.Survival of Covenants. The covenants of Executive set forth in Section 5 herein shall survive the termination of the Consulting Period or any termination of this Agreement.
Section 4.Compensation.
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 3 of 13
4.1.Cash. In exchange for the services to be rendered by Executive hereunder, the Company agrees to pay, during the Consulting Period, a Base Fee at a monthly amount of:
(a)Fifteen thousand ($15,000) dollars per month in year one; and
(b)Seventeen thousand five hundred ($17,500) per month in year two; and
(c)Twenty thousand ($20,000) per month in year three.
4.1.1.Base Fee. Until such time as the Company completes a capitalization of three million ($1,000,000) dollars, the Executive shall derive his Base Fee from revenue generated from his Current Clients. Executives Current Clients are defined in a form attached as Exhibit “A” to the Consulting Agreement. Executive will continue to receive his Base Fee until such time as one of the following has occurred:
(a)Company has recived one million ($1,000,000) dollars in investment capital; or
(b)Company has generated revenue from its operations that cover the operations G&A expenses, and has a gross margin of thirty-five ($35,000) per month; or
(c)Company has entered into a joint venture whereby the Company recieves amount of capital in excess of thirty (30%) percent above the joint ventures deliniated use of funds requirement.
4.1.2.The Base Fee shall be paid by Company to Executive on or before the first (1st) day of each month during the Consulting Period by electronic transfer into an account designated by Executive.
4.1.3.Accrued Fee. The Company and Executive Agrees that any deferal or unpaid salary shall accrue monthly and be memorialized in the form of an interest bearing corporate promissory note.
(a)The Executive and the Company agree that until such time as the Executive is paid his Base Fee, the Executive will accrue his Base Fee amount plus interest, and the accued Base Fee will be transferred, on a quarterly basis, to an five (5%) interest bearing corporate Prommisory Note, and on each quarter the Company and the Executive will sign an ammendment to the Corporate Promissoryt Note, reflecting the additional acrued amount; and
(b)Any revenue received by the Executive, generated by the Executives Current Clients, shall be deemed to be part of the Executives right, under the Revenue Share Agreement, to receive one hundred (100%) percent of Adjusted Gross Revenue derived from the Executives Current Clients further deliniated the Executive’s Revenue Share Agreement in a form attached as Exhibit “B”.; and
a.For purposes of clarification, the Base Fee amount, payable to the Executive, will not be included in the Adjusted Gross Revenue calculation on revenue generated by the Executives Current Clients. This means that any income derived from the adjusted gross revenue, generated from the Executives current clients will be deducted from the two million
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 4 of 13
($2,000,000) dollars defined in the Executives Revenue Share Agreement in a form attached as Exhibit “B”; and
(c)The Base Fee received by the Executive, from revenue generated by the Executives Prospective Clients, the payments shall be deemed to be part of the Calculation of the Adjusted Gross Revenue, as it pertains Executives right to receive twenty-five (25%) percent of Adjusted Gross Revenue derived from the Prospective Clients defined in the Executives Revenue Share Agreement in a form attached as Exhibit “B”; and
(d)The Base Fee received by the Executive, from revenue generated by the Executives Prospective Clients, the payments shall be deemed to be part of the Calculation of the Adjusted Gross Revenue, as it pertains Executives right to receive twenty-five (25%) percent of Adjusted Gross Revenue derived from the Company’s products and services defined in the Executives Revenue Share Agreement in a form attached as Exhibit “B”; and
4.1.4.Annual Bonus. In addition to the Base Fee, Executive will be eligible for an annual performance bonus, to be payable upon achievement of performance goals and objectives to be mutually agreed upon by the Executive and the Company’s Board of Directors in advance of the relevant performance period.
4.1.5.Signing Bonus. In addition to the Base Fee, Executive will be eligible for a signing bonus of twenty-five thousand ($25,000) dollars, to be payable upon signing his Consulting Agreement, and it is mutually agreed upon by the Executive and the Company’s Board of Directors that the Executive will accept a corporate promissory note in a form attached as Exhibit “C”. .
4.1.6.Other Meritorious Adjustments. Directors may, in their sole discretion, consider other meritorious adjustments in compensation, or a bonus, under appropriate circumstances, including the conception of valuable or unique inventions, processes, discoveries or improvements capable of profitable exploitation.
4.1.7.Participation Bonus. The Company shall compensate Executive in the event of a Transaction that involves the sale or merger of the Company, that closes while you are an Excutive or during the twelve-month period following termination as an Executive:
(a)The Company shall establish an annual bonus plan of which certain management of the Company shall be eligible to participate, which annual bonus plan shall comprise a calendar year (the “Plan Year”). Executive will be eligible to participate in such annual bonus plan during the term of this Agreement with goals (the “Annual Goals”) established and approved by the Board of Directors. Pursuant to this annual bonus plan, Executive shall be eligible for discretionary performance and incentive bonuses if and as may be determined in the sole discretion of the Board of Directors of the Company. The goals that shall be tied to the Company’s Long Term Financial Pro orma (as adopted by the Company upon execution of this Agreement) and shall serve as the basis of evaluation for any payments awarded pursuant to the Company’s annual bonus plan shall be
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 5 of 13
established and approved by the Board of Directors. At the conclusion of the Plan Year, the Board of Directors shall determine the level of success achieved by the Executive against the Annual Goals and recommend the amount of the annual bonus plan payment. If Executive’s Assignment is terminated for reasons other than Due Cause, he will be entitled to receive any bonus earned up to the date of termination as reasonably determined by the Board of Directors. All payments related to the annual bonus plan are subject to the prior approval by the Board of Directors and the Company’s ability to make such payments when considering the cash position of the Company.
Section 5.Equity.
5.1.Incentive Stock Options. Executive shall receive options during the Term of this Agreement as determined by the Company’s Board of Directors from time to time.
5.1.1.Initial Stock Option Grant. Upon execution of this Agreement, Executive shall be granted an aggregate of two million five hundred thousand (2,500,000) stock options at an exercise price of five cents ($.05) per share (which exercise price is not less than the closing price on the date of Board approval) for a five-year period pursuant to the Company’s standard Stock Option Agreement attached as Exhibit “A” to this Agreement, and further provided that:
(a)One million two hundred and fifty thousand (1,250,000) of these stock options shall be included as part of an incentive compensation plan to be negotiated in good faith between the Company and the Executive.
(b)One million two hundred and fifty thousand (1,250,000) of these stock options, of which:
i.One hundred and four thousand one hundred and sixty-six (104,166) options shall vest immediately; and
ii.One million one hundred and forty-five thousand eight hundred and thirty four (1,145,834) options shall vest over two years and nine months at a rate of one hundred and four thousand one hundred and sixty-six (104,166) options shall vest every ninety-day period commencing at the date of signing of the Executive’s Consultant Agreement.
(c)Change of Control. In the event of a merger, acquisition or sale transaction by the Company which causes a Change of Control of the Company (the “Control Change”), any stock options or similar securities held beneficially by the Executive shall automatically become fully vested. For purposes of this Section 6, Control Change shall mean the occurrence of any of the following events: (i) a majority of the outstanding voting stock of the Company shall have been acquired or beneficially owned by any person (other than the Company or a subsidiary of Company) or any two or more persons acting as a partnership, limited partnership, syndicate or other group, entity or association acting in concert for the purpose of voting, acquiring, holding, or disposing of voting stock of the Company; or (ii) a merger or a consolidation of the Company with or into
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 6 of 13
another corporation, other than (A) a merger or consolidation with a subsidiary of the Company, or (B) a merger or consolidation in which the holders of voting stock of the Company immediately prior to the merger as a class hold immediately after the merger at least a majority of all outstanding voting power of the surviving or resulting corporation or its parent; or (iii) a statutory exchange of shares of one or more classes or series of outstanding voting stock of the Company for cash, securities, or other property, other than an exchange in which the holders of voting stock of the Company immediately prior to the exchange as a class hold immediately after the exchange at least a majority of all outstanding voting power of the entity with which the Company’s stock is being exchanged; or (iv) the sale or other disposition of all or substantially all of the assets of the Company, in one transaction or a series of transactions, other than a sale or disposition in which the holders of voting stock of the Company immediately prior to the sale or disposition as a class hold immediately after the exchange at least a majority of all outstanding voting power of the entity to which the assets of the Company are being sold.
(d)10b5-1 Trading plans Trading plans are expected to be in place with vested shares if five (5) day average shares traded are greater than 100,000 shares/day. Executive may not trade more than 10,000 shares/day and may not sell more than $100,000 in any given month, without approval of the Company’s Board.
5.2.Insurance. Executive if he so elects and if permissible by the Company plans, will be entitled to participate in fringe benefit, health insurance, life insurance, and other programs which Company may adopt from time to time for executives of Company. Participation will be in accordance with any plans and any applicable policies adopted by Company.
5.3.Expenses. Executive shall be reimbursed for business-related expenses that he incurs pursuant to his Assignment with the Company, such expenses to be timely submitted and reasonable, and subject to the Company’s then standing Expense Reimbursement Policy and the review and approval of the Board of Directors or its authorized designate. Executive shall provide the Company with expense reports detailing business-related expenses and supporting documentation and other substantiation of such expenses that conform to the reporting requirements of the Company and requirements of the Internal Revenue Service. Executive is located in the state of Florida. Executive shall be reimbursed any relocation expenses incurred in connection with the performance of the Assignment up to twenty-five thousand ($25,000) dollars. .
5.4.Vacation. Executive shall be entitled to vacations in accordance with Company policy in effect from time to time. , Executive will accrue three (3) weeks vacation during the Initial Term and four (4) weeks vacation during each Additional Term.
Section 6.Covenants of Executive.
6.1.Confidentiality. During the Consulting Period and following the termination thereof for any reason, Executive shall not disclose or make any use of, for his own benefit or for the benefit of a business or entity other than the Company or its affiliates, any secret or confidential information, lists of customers and prospective customers or any other information of or pertaining to the Company or its
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 7 of 13
affiliates that is not generally known within the trade of the Company or its affiliates or which is not publicly available.
6.2.Inventions and Secrecy. Except as otherwise provided in this Section 5.2, Executive (i) shall hold in a fiduciary capacity for the benefit of the Company and its affiliates, all secret and confidential information, knowledge, or data of the Company and its affiliates obtained by Executive during his Assignment by the Company, which is not generally know to the public or recognized as standard practice (whether or not developed by Executive) and shall not, during his Assignment by the Company and following the termination of such Assignment for any reason, communicate or divulge any such information, knowledge or data to any person or entity other than the Company or its affiliates or persons or entities designated by the Company; (ii) shall promptly disclose to the Company all inventions, ideas, devices and processes made or conceived by him along or jointly with others, from the time of entering the Company’s employ and until such Assignment is terminated and for a one (1) year period following such termination, relevant or pertinent in any way, whether directly or indirectly, to the Company or its affiliates or resulting from or suggested by any work which he may have done for or at the request of the Company or its affiliates; (iii) shall at all times during his Assignment with the Company, assist the Company and its affiliates in every proper way (at the expense of the Company) to obtain and develop for the benefit of the Company inventions, ideas, devices and processes, whether or not patented; and (iv) shall perform all such acts and execute, acknowledge and deliver all such instruments as may be necessary or desirable in the opinion of the Company to vest in the Company, the entire interest in such inventions, ideas, devices and processes referred to in this Section 5.2. Executive and Company each agree that all documents, reports, files, analyses, drawings, designs, tools, equipment, plans (including, without limitation, marketing and sales plans), proposals, customer lists, computer software or hardware, and similar materials that are made by Executive or come into his or its possession by reason of and during the term of Executive’s engagement with Company are the property of Company and will not be used by his in any way adverse to Company’s interests. Executive also agrees not to allow any such documents or things, or any copies, reproductions or summaries to be delivered to or used by any third party without the specific consent of Company. Executive agrees to deliver to the Company, upon demand, and in any event upon the termination of Executive’s engagement, all of such documents and things which are in Executive’s possession or under his or its control. Executive expressly agrees that all of his work product shall be and remain the sole and exclusive property of the Company. Accordingly, all work products eligible for any form of copyright protection shall be deemed a “work made for hire” under the copyright laws and shall be owned by the Company.
6.3.Competition Following Termination. For a one (1) year period following termination, for any reason, of Executive’s Assignment with the Company, Executive shall not, without the prior written consent of the Company, which consent may be withheld at the sole discretion of the Company, (i) engage directly or indirectly, whether as an officer, director, stockholder (of 10% or more of such entity), partner, majority owner, managerial employee, creditor, or otherwise with the operation, management or conduct of any business that competes with the businesses of the Company in the United States of America or its affiliates being conducted at the time of such termination; (ii) solicit, contact, interfere with, or divert any customer served by the Company or its affiliates, or any prospective customer identified by or on behalf of the Company or its affiliates (such customers and prospective customers existing or identified by the Company as of the date of Executive’s termination) if such intention is to divert business from or compete with the Company; or (iii) solicit any person then or previously employed by the Company or its affiliates to join Executive, whether as a partner, agent, employee or otherwise, in
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 8 of 13
any enterprise engaged in a business similar to the businesses of the Company or its affiliates being conducted at the time of such termination.
6.4.Acknowledgement. Executive acknowledges that the restrictions set forth in this Section 6 are reasonable in scope and essential to the preservation of the businesses and proprietary properties of the Company and its affiliates and that the enforcement thereof will not in any manner preclude Executive, in the event of his termination of Assignment with the Company, from becoming gainfully employed in such manner and to such extent as to provide a reasonable standard of living for himself, the members of his family and those dependent upon him of at least the sort and fashion to which he and they have become accustomed and may expect.
6.5.Severability - Covenants. The covenants of Executive contained in this Section 6 shall each be construed as any agreement independent of any other provision in this Agreement and the existence of any claim or cause of action of Executive against the Company or its affiliates, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company or its affiliates of such covenants. The parties hereto expressly agree and contract that it is not the intention of any party to violate any public policy, statutory or common law, and that if any sentence, paragraph, clause or combination of the same of this Agreement is in violation of the law of any state where applicable, such sentence, paragraph, clause or combination of the same shall be void in the jurisdictions where it is unlawful and the remainder of such provision and this Agreement shall remain binding on the parties to make the covenants of this Agreement binding only to the extent that it may be lawfully done under existing applicable laws. In the event that any part of any covenant of this Agreement is determined by a court of law to be overly broad thereby making the covenant unenforceable, the parties hereto agree, and it is their desire, that such court shall substitute a judicially enforceable limitation in its place, and that as so modified the covenant shall be binding upon the parties as if originally set forth herein.
Section 7.Indemnification.
In addition to any rights Executive may have under the Company's charter or by-laws, the Company agrees to indemnify Executive and hold Executive harmless, both during the Term and thereafter, against all costs, expenses (including, without limitation, fines, excise taxes and attorneys' and accountants’ fees) and liabilities (other than settlements to which the Company does not consent, which consent shall not be unreasonably withheld) (collectively, "Losses") reasonably incurred by Executive in connection with any claim, action, proceeding or investigation brought against or involving Executive with respect to, arising out of or in any way relating to Executive's Assignment with the Company or Executive's service as a director of the Company; provided, however, that the Company shall not be required to indemnify Executive for Losses incurred as a result of Executive's intentional misconduct or gross negligence (other than matters where Executive acted in good faith and in a manner he reasonably believed to be in and not opposed to the Company's best interests). Executive shall promptly notify the Company of any claim, action, proceeding or investigation under this paragraph and the Company shall be entitled to participate in the defense of any such claim, action, proceeding or investigation and, if it so chooses, to assume the defense with counsel selected by the Company; provided that Executive shall have the right to employ counsel to represent him (at the Company's expense) if Company counsel would have a "conflict of interest" in representing both the Company and Executive. The Company shall not settle or compromise any claim, action, proceeding or investigation without Executive's consent, which consent shall not be unreasonably withheld; provided, however, that such consent shall not be required if the settlement entails
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 9 of 13
only the payment of money and the Company fully indemnifies Executive in connection therewith. The Company further agrees to advance any and all expenses (including, without limitation, the fees and expenses of counsel) reasonably incurred by the Executive in connection with any such claim, action, proceeding or investigation. The Company currently maintains a policy of directors' and officers' liability insurance covering Executive and, notwithstanding the expiration or earlier termination of this Agreement, the Company shall maintain a directors' and officers' liability insurance policy covering Executive for a period of time following such expiration or earlier termination equal to the statute of limitations for any claim that may be asserted against Executive for which coverage is available under such directors' and officers' liability insurance policy. The provisions of this paragraph shall survive the termination of this Agreement for any reason.
Section 8.Notice.
Any notice required or permitted hereunder shall be made in writing (i) either by actual delivery of the notice into the hands of the party hereunder entitled, or (ii) by the mailing of the notice in the United States mail, certified mail, return receipt requested, all postage prepaid and addressed to the party to whom the notice is to be given at the party’s respective address set forth below, or such other address as the parties may from time to time designate by written notice as provided herein and (iii) via facsimile to the fax number provided by the Parties below with a confirmation receipt. Notice will hereby be deemed to be satisfied via the delivery of any of the methods listed above.
If to the Company:
Attn: Kyle W. Withrow
Address: 1327 Ocean Avenue, Suite B
Santa Monica, CA 90401
Emailkylew@peartracksecuritysystems.com
Telephone:310.899.3900
Facsimile:310.899.1443
With copy to:
Attn:Calli R. Bucci
Address:1327 Ocean Avenue, Suite B
Santa Monica, CA 90401
Email:callib@peartracksecuritysystems.com
Telephone:310.899.3900
Facsimile:310.899.1443
If to Executive:
Attn:Clive Oosthuizen
Address:5 Omnia Avenue
Bellville, Cape Town
South Africa 7530
Email: clive.oosthuizen@gmail.com
Tel:(27) 83.230.8569
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 10 of 13
With copy to:
Att:
Address:
Email:
Telephone:
Facsimile:
The notice shall be deemed to be received in case (i) on the date of actual receipt by the party and in case (ii) three days following the date of the mailing.
Section 9.Amendment and Waiver.
No amendment or modification of this Agreement shall be valid or binding upon: (i) the Company unless made in writing and signed by an officer of the Company, duly authorized by the Board of Directors of the Company or; (ii) Executive unless made in writing and signed by him. The waiver by the Company or Executive of the breach of any Provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach of such party.
Section 10.Governing Law/Waiver of Claims/Arbitration.
(a)The validity and effect of this Agreement and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with, the laws of the State of California without giving effect to the principles of conflicts of laws thereof.
(b)Each Party to this Agreement hereby waives any claim it may have on such other Party due to any past business dealings between the Parties prior to the Effective Date of this Agreement. Additionally, the parties hereto agree that in the event of any and all disagreements and controversies arising from this Agreement or any other agreements between the Company and Executive the breach, termination or validity thereof or the present and future dealings between the parties, such disagreements and controversies shall be subject to a two step mediation and binding arbitration process. The first step will first to a one time mediations session to be held in accordance with the California Bar Associations Mediation guidelines and to be heard in front of a Mediation expert that has been practicing for a period of at least 5 years. If the Parties fail to resolve their dispute via Mediation, the Parties agree to a second step of binding arbitration as arbitrated in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) to be held in the city of Santa Monica, California, in Los Angeles County, California before one neutral arbitrator. Such arbitrator shall be selected by mutual agreement of the parties within thirty (30) days of written notice of a continuing dispute following mediation of said disagreement or controversy. If the parties cannot mutually agree to an arbitrator within thirty (30) days, then the AAA shall designate the arbitrator. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Without waiving any remedy under this Agreement, either party may also seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). In the event of any such disagreement or controversy, neither party shall directly or indirectly reveal, report, publish or disclose any information relating to such disagreement or controversy to any person, firm or corporation
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 11 of 13
not expressly authorized by the other party to receive such information or use such information or assist any other person in doing so, except to comply with actual legal obligations of such party or unless such disclosure is directly related to an arbitration proceeding as provided herein, including, but not limited to, the prosecution or defense of any claim in such arbitration. The costs and expenses of the arbitration (excluding attorneys’ fees) shall be paid by the non-prevailing Party or as determined by the arbitrator. This paragraph shall survive the termination of this Agreement.
Section 11.Entire Agreement.
This Agreement contains all of the terms agreed upon by the parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications between the parties dealing with such subject matter, whether oral or written, but limited to the Consulting Period.
Section 12.Reservation of Right.
Notwithstanding any other provision of this Agreement, Company reserves the right to modify, suspend or discontinue any and all benefit plans, practices, policies and programs at any time whether before or after termination of this Agreement without advance notice to or recourse by Executive.
Section 13.Binding Effect.
This Agreement shall be binding upon and shall inure to the benefit of the transferees, successors and assigns of the Company, including any company or entity with which the Company may merge or consolidate.
Section 14.Remedies for Breach.
Executive acknowledges that his services pursuant to this Agreement are unique and extraordinary and that irreparable injury will result to the Company and its businesses and properties in the event of a material breach of the terms and conditions of this Agreement to be performed by him, the Company may, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either at law or in equity, to enjoin him from performing services for any other person or entity in violation of any of the terms of this Agreement, and possibly obtain damages for any breach of this Agreement. In the event of a material breach by the Company of any of the terms and conditions of this Agreement to be performed by it, Executive shall have all remedies, legal or equitable, available to him under the laws of the State of California. The remedies provided herein shall be cumulative and in addition to any and all other remedies which either party may have at law or in equity.
Section 15.Costs of Enforcement.
In the event of any suit or proceeding seeking to enforce the terms, covenants or conditions of this Agreement, the prevailing party shall, in addition to all other remedies and relief that may be available pursuant to this Agreement or applicable law, recover his or its reasonable attorneys’ fees and costs as shall be determined and awarded by an arbitrator or court, as the case may be.
Section 16.Headings.
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 12 of 13
Numbers and titles to paragraphs hereof are for information purposes only and, where inconsistent with the text, are to be disregarded.
Section 17.Severability – General.
If any provision of this Agreement or the application of any such provision to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof
Section 18.Counterparts.
This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first set forth above.
COMPANY:
ENIGMA-BULWARK RISK MANAGEMENT, INC.
By: /s/ Kyle W. Withrow
Printed:Kyle W. Withrow
Title:Chief Executive Officer, Director
Date:September 1, 2019
EXECUTIVE:
CLIVE OOSTHUIZEN
By: /s/ Clive Oosthuzien
Printed:Clive Oosthuzien
Date:September 1, 2019
Enigma-Bulwark Risk Management, Inc.Consulting Agreement
Clive OosthuizenSeptember 1, 2019
Page 13 of 13
EXHIBIT “A”
COMMON STOCK OPTION AGREEMENT
PEARTRACK SECURITY SYSTEMS, INC.
STOCK OPTION AGREEMENT
FOR
CLIVE OOSTHUZIEN
1.Grant of Option. PearTrack Security Systems, Inc., a Nevada corporation (the “Company”), hereby grants, as of the effective date of this Agreement specified on Schedule I hereof beside the caption “Date of Grant” (“Date of Grant”), to Clive Oosthuzien (the “Optionee”) an option (the “Option”) to purchase an aggregate number of shares set forth on Schedule I hereof beside the caption “Number of Optioned Shares” (such number being subject to adjustment as provided in Section 10(c) of the Plan) of the Company’s common stock, $.05 par value per share (the “Shares”), at an exercise price per share set forth on Schedule I hereof beside the caption “Exercise Price” (such exercise price being subject to adjustment as provided in Section 10(c) of the Plan) (the “Exercise Price”). The Option shall be subject to the terms and conditions set forth herein. The Option is being issued pursuant to the PearTrack Security Systems, Inc. 2018 Incentive Compensation Plan (the “Plan”), which is incorporated herein for all purposes. This Option is designated on Schedule I as either an Incentive Stock Option or a Non-Qualified Stock Option. If designated on Schedule I hereof as an Incentive Stock Option, this Option is intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code, and this Agreement shall be interpreted accordingly.
2.Definitions. Unless otherwise provided herein, terms used herein that are defined in the Plan and not defined herein shall have the meanings attributed thereto in the Plan.
3.Exercise Schedule. Except as otherwise provided in Sections 6 or 10 of this Agreement, or in the Plan, the Option is exercisable in installments as specified on Schedule I hereof beside the caption “Vesting”, which shall be cumulative. To the extent that the Option has become exercisable with respect to a percentage of Shares as provided on Schedule I hereof beside the caption “Vesting” on each date (the “Vesting Date”) upon which the Optionee shall be entitled to exercise the Option with respect to the percentage of Shares granted as indicated for each Vesting Date (provided that the Continuous Service of the Optionee continues through and on the applicable Vesting Date), the Option may thereafter be exercised by the Optionee, in whole or in part, at any time or from time to time prior to the expiration of the Option as provided herein. Except as otherwise specifically provided herein, there shall be no proportionate or partial vesting in the periods prior to each Vesting Date, and all vesting shall occur only on the appropriate Vesting Date. Upon the termination of the Optionee’s Continuous Service, any unvested portion of the Option shall terminate and be null and void.
4.Method of Exercise. The vested portion of this Option shall be exercisable in whole or in part in accordance with the exercise schedule set forth in Section 3 hereof by written notice which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as to the holder’s investment intent with respect to such Shares as may be required by the Company pursuant to the provisions of the Plan. Such written notice shall be signed by the Optionee and shall be delivered in person or by certified mail to the Secretary of
Exhibit “A” Common Stock Option Agreement
Page 1 of 8
the Company. The written notice shall be accompanied by payment of the Exercise Price. This Option shall be deemed to be exercised after both (a) receipt by the Company of such written notice accompanied by the Exercise Price and (b) arrangements that are satisfactory to the Committee in its sole discretion have been made for Optionee’s payment to the Company of the amount, if any, that is necessary to be withheld in accordance with applicable Federal or state withholding requirements. No Shares shall be issued pursuant to the Option unless and until such issuance and such exercise shall comply with all relevant provisions of applicable law, including the requirements of any stock exchange upon which the Shares then may be traded.
5.Method of Payment. Payment of the Exercise Price shall be by any of the following, or a combination thereof, at the election of the Optionee: (a) cash; (b) check; (c) to the extent permitted by the Committee or as provided on Schedule I hereof beside the caption “Permission to Pay with Shares”, with Shares owned by the Optionee, or the withholding of Shares that otherwise would be delivered to the Optionee as a result of the exercise of the Option, or pursuant to a “cashless exercise” procedure, by delivery of a properly executed exercise notice together with such other documentation, and subject to such guidelines, as the Committee shall require to effect an exercise of the Option and delivery to the Company by a licensed broker acceptable to the Company of proceeds from the sale of Shares sufficient to pay the Exercise Price and any applicable income or Assignment taxes, or (d) such other consideration or in such other manner as may be determined by the Committee in its absolute discretion.
6.Termination of Option
(a)General. Any unexercised portion of the Option shall automatically and without notice terminate and become null and void at the time of the earliest to occur of the following:
(i)unless the Committee otherwise determines in writing in its sole discretion, three months after the date on which the Optionee’s Continuous Service is terminated other than by reason of (A) by the Company or a Related Entity for Cause, (B) a Disability of the Optionee as determined by a medical doctor satisfactory to the Committee, or (C) the death of the Optionee;
(ii)immediately upon the termination of the Optionee’s Continuous Service by the Company or a Related Entity for Cause;
(iii)twelve months after the date on which the Optionee’s Continuous Service is terminated by reason of a Disability as determined by a medical doctor satisfactory to the Committee;
(iv)twelve months after the date of termination of the Optionee’s Continuous Service by reason of the death of the Optionee; or
(v)the tenth anniversary of the date as of which the Option is granted (or, if a different date is shown on Schedule I hereof beside the caption “Termination Date”, such date).
(b)Cancellation. To the extent not previously exercised, (i) the Option shall terminate immediately in the event of (A) the liquidation or dissolution of the Company, or (B) any reorganization, merger, consolidation or other form of corporate transaction in which the Company does not survive or the Shares are exchanged for or converted into securities issued by another entity, or an affiliate of such successor or acquiring entity, unless the successor or acquiring entity, or an affiliate thereof, assumes the Option or substitutes an equivalent option or right pursuant to Section 10(c) of the Plan, and (ii) the
Exhibit “A” Common Stock Option Agreement
Page 2 of 8
Committee in its sole discretion may by written notice (“cancellation notice”) cancel, effective upon the consummation of any transaction that constitutes a Change in Control, the Option (or portion thereof) that remains unexercised on such date. The Committee shall give written notice of any proposed transaction referred to in this Section 6(b) a reasonable period of time prior to the closing date for such transaction (which notice may be given either before or after approval of such transaction), in order that the Optionee may have a reasonable period of time prior to the closing date of such transaction within which to exercise the Option if and to the extent that it then is exercisable (including any portion of the Option that may become exercisable upon the closing date of such transaction). The Optionee may condition his exercise of the Option upon the consummation of a transaction referred to in this Section 6(b).
7.Transferability. Unless (i) transfers are expressly permitted in the language appearing beside the caption “Expanded Rights to Transfer Option” on Schedule I hereof or (ii) otherwise determined by the Committee, the Option granted hereby is not transferable otherwise than by will or under the applicable laws of descent and distribution, and during the lifetime of the Optionee the Option shall be exercisable only by the Optionee, or the Optionee’s guardian or legal representative. In addition, the Option shall not be assigned, negotiated, pledged or hypothecated in any way (whether by operation of law or otherwise), and the Option shall not be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, negotiate, pledge or hypothecate the Option, or in the event of any levy upon the Option by reason of any execution, attachment or similar process contrary to the provisions hereof, the Option shall immediately become null and void. The terms of this Option shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee.
8.No Rights of Stockholders. Neither the Optionee nor any personal representative (or beneficiary) shall be, or shall have any of the rights and privileges of, a stockholder of the Company with respect to any Shares purchasable or issuable upon the exercise of the Option, in whole or in part, prior to the date on which the Shares are issued.
9.Acceleration of Exercisability of Option.
(a)Acceleration Upon Certain Terminations or Cancellations of Option. This Option shall become immediately fully exercisable in the event that, prior to the termination of the Option pursuant to Section 6 hereof, (i) the Option is terminated pursuant to Section 6(b)(i) hereof, or (ii) the Company exercises its discretion to provide a cancellation notice with respect to the Option pursuant to Section 6(b)(ii) hereof.
(b)Acceleration Upon Change in Control. This Option shall become immediately fully exercisable in the event that, prior to the termination of the Option pursuant to Section 6 hereof, and during the Optionee's Continuous Service, there is a “Change in Control”, as defined in Section 9(b) of the Plan.
10.No Right to Continuous Service. Neither the Option nor this Agreement shall confer upon the Optionee any right to Continuous Service with the Company or any Related Entity.
11.Information Confidential. As partial consideration for the granting of the Option, the Optionee agrees with the Company to keep confidential all information and knowledge that the Optionee has relating to the manner and amount of the Optionee’s participation in the Plan; provided, however, that such information may be disclosed as required by law and may be given in confidence to the Optionee’s
Exhibit “A” Common Stock Option Agreement
Page 3 of 8
spouse, the Optionee’s tax and financial advisors, or financial institutions to the extent that such information is necessary to secure a loan.
12.Interpretation. Provisions of Plan Control. This Agreement is subject to all the terms, conditions and provisions of the Plan, including, without limitation, the amendment provisions thereof, and to such rules, regulations and interpretations relating to the Plan adopted by the Committee as may be in effect from time to time. If and to the extent that this Agreement conflicts or is inconsistent with the terms, conditions and provisions of the Plan, the Plan shall control, and this Agreement shall be deemed to be modified accordingly. The Optionee accepts the Option subject to all of the terms and provisions of the Plan and this Agreement. The undersigned Optionee hereby accepts as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Plan and this Agreement, unless shown to have been made in an arbitrary and capricious manner.Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be personally delivered, delivered by facsimile or courier service, or mailed, certified with first class postage prepaid to the address specified by the person who is to receive the same. Each such notice, request, demand, or other communication hereunder shall be deemed to have been given (whether actually received or not) on the date of actual delivery thereof, if personally delivered or delivered by facsimile transmission (if receipt is confirmed at the time of such transmission by telephone or facsimile-machine-generated confirmation), or on the third day following the date of mailing, if mailed in accordance with this Section, or on the day specified for delivery to the courier service (if such day is one on which the courier service will give normal assurances that such specified delivery will be made). Any notice, request, demand, or other communication given otherwise than in accordance with this Section shall be deemed to have been given on the date actually received. Each such notice, request, demand, or other communication hereunder shall be addressed, in the case of the Company, to the Company’s Secretary at PearTrack Security Systems, Inc at 1327 Ocean Avenue Suite B Santa Monica, CA 90401, or if the Company should move its principal office, to such principal office, and, in the case of the Optionee, to the Optionee’s last permanent address as shown on the Company’s records, subject to the right of either party to designate some other address at any time hereafter in a notice satisfying the requirements of this Section. Any person entitled to any notice, request, demand, or other communication hereunder may waive the notice, request, demand, or other communication. Section 409A.
(a)It is intended that the Option awarded pursuant to this Agreement be exempt from Section 409A of the Code (“Section 409A”) because it is believed that (i) the Exercise Price may never be less than the Fair Market Value of a Share on the Date of Grant and the number of shares subject to the Option is fixed on the original Date of Grant, (ii) the transfer or exercise of the Option is subject to taxation under Section 83 of the Code and Treas. Reg. 1.83-7, and (iii) the Option does not include any feature for the deferral of compensation other than the deferral of recognition of income until the exercise of the Option. The provisions of this Agreement shall be interpreted in a manner consistent with this intention, and the provisions of this Agreement may not be amended, adjusted, assumed or substituted for, converted or otherwise modified without the Optionee’s prior written consent if and to the extent that the Company believes or reasonably should believe that such amendment, adjustment, assumption or substitution, conversion or modification would cause the award to violate the requirements of Section 409A. In the event that either the Company or the Optionee believes, at any time, that any benefit or right under this Agreement is subject to Section 409A, then the Committee may (acting alone and without any required consent of the Optionee) amend this Agreement in such manner as the Committee deems necessary or appropriate to be exempt from or otherwise comply with the requirements of Section 409A (including
Exhibit “A” Common Stock Option Agreement
Page 4 of 8
without limitation, amending the Agreement to increase the Exercise Price to such amount as may be required in order for the Option to be exempt from Section 409A).
(b)Notwithstanding the foregoing, the Company does not make any representation to the Optionee that the Option awarded pursuant to this Agreement is exempt from, or satisfies, the requirements of Section 409A, and the Company shall have no liability or other obligation to indemnify or hold harmless the Optionee or any Beneficiary for any tax, additional tax, interest or penalties that the Optionee or any Beneficiary may incur in the event that any provision of this Agreement, or any amendment or modification thereof or any other action taken with respect thereto, that either is consented to by the Optionee or that the Company reasonably believes should not result in a violation of Section 409A, is deemed to violate any of the requirements of Section 409A.
15.Incentive Stock Option Treatment. If designated on Schedule I hereof as an Incentive Stock Option: (a) the terms of this Option shall be interpreted in a manner consistent with the intent of the Company and the Optionee that the Option qualify as an Incentive Stock Option under Section 422 of the Code; (b) if any provision of the Plan or this Agreement shall be impermissible in order for the Option to qualify as an Incentive Stock Option, then the Option shall be construed and enforced as if such provision had never been included in the Plan or the Option; and (c) if and to the extent that the number of Options granted pursuant to this Agreement exceeds the limitations contained in Section 422 of the Code on the value of Shares with respect to which this Option may qualify as an Incentive Stock Option, this Option shall be a Non-Qualified Stock Option.Section Headings. The Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
17.Governing Law and Venue. THIS AGREEMENT SHALL AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEVADA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF CALIFORNIA. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF THE COURTS LOCATED IN THE STATE OF CALIFORNIA AND AGREES THAT ANY LITIGATION BETWEEN THE PARTIES WILL BE FILED IN COURTS LOCATED IN LOS ANGELES, CALIFORNIA.
18.Arbitration. By execution hereof, the parties hereto expressly agree that upon the request of any party, whether made before or after the institution of any legal proceeding, any action, dispute, claim or controversy of any kind, whether in contract or in tort, statutory or common law, legal or equitable, arising between the parties in any way arising out of any of the provisions contained in this Agreement shall be resolved by binding arbitration administered by the American Arbitration Association (the “AAA”) and in Los Angeles, California. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the AAA and, to the maximum extent applicable, the Federal Arbitration Act (Title 9 of the United States Code) except as otherwise specified herein. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction. The arbitrator shall resolve all disputes in accordance with the applicable substantive law. A single arbitrator shall be chosen and shall decide the dispute, unless the amount sought in the dispute exceeds $100,000, in which case a panel of three arbitrators shall decide the dispute. In all arbitration proceedings in which the amount of any award exceeds $100,000, in the aggregate, the arbitrator(s) shall make specific, written findings of fact and conclusions of law. In all arbitration proceedings in which the amount of any award exceeds $100,000,
Exhibit “A” Common Stock Option Agreement
Page 5 of 8
in the aggregate, the parties shall have, in addition to the limited statutory right to seek a vacation or modification of an award pursuant to applicable law, the right to vacation or modification of any award that is based, in whole or in part, on an incorrect or erroneous ruling of law by appeal to an appropriate court having jurisdiction; provided, however, that any such application for a vacation or modification of such an award based on an incorrect ruling of law must be filed in a court having jurisdiction over the dispute within 15 days from the date the award is rendered. The findings of fact of the arbitrator(s) shall be binding on all parties and shall not be subject to further review except as otherwise allowed by applicable law. No provision of this Agreement nor the exercise of any rights hereunder shall limit the right of any party, and any party shall have the right during any dispute, to seek, use, and employ ancillary or preliminary remedies, such as injunctive relief (including, without limitation, specific performance), from a court having jurisdiction before, during, or after the pendency of any arbitration. The institution and maintenance of any action for judicial relief or pursuit of provisional or ancillary remedies shall not constitute a waiver of the right of any party to submit any dispute to arbitration nor render inapplicable the compulsory arbitration provisions hereof.
16.Attorney’s Fees. If any action is brought to enforce or interpret the terms of this Agreement (including through arbitration), the prevailing party shall be entitled to reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled.Counterparts. This Agreement may be executed in any number of counterparts and shall be effective when each party hereto has executed at least one counterpart, with the same effect as if all signing parties had signed the same document. All counterparts will be construed together and evidence only one agreement, which, notwithstanding the actual date of execution of any counterpart, shall be deemed to be dated the day and year first written above. In making proof of this Agreement, it shall not be necessary to account for a counterpart executed by any party other than the party against whom enforcement is sought or to account for more than one counterpart executed by the party against whom enforcement is sought.
21.Execution by Facsimile. The manual signature of any party hereto that is transmitted to any other party by facsimile or in portable document format (PDF) shall be deemed for all purposes to be an original signature.
This page intentionally left blank; signature page follows.
Exhibit “A” Common Stock Option Agreement
Page 6 of 8
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 1st day of September 2019.
COMPANY:
PearTrack Security Systems, Inc.
By: /s/ Kyle W. Withrow
Name: Kyle W. Withrow
Title: CEO
The Optionee acknowledges receipt of a copy of the Plan and represents that he or she has reviewed the provisions of the Plan and this Agreement in their entirety, is familiar with and understands their terms and provisions, and hereby accepts this Option subject to all of the terms and provisions of the Plan and this Agreement. The Optionee further represents that he or she has had an opportunity to obtain the advice of counsel prior to executing this Agreement.
Dated: September 1, 2019
OPTIONEE:
By: /s/ Clive Oosthuzien
Name:Clive Oosthuzien
Address: 5 Omnia Avenue
Bellville, Cape Town
South Africa 7530
Exhibit “A” Common Stock Option Agreement
Page 7 of 8
SCHEDULE I
NAME OF OPTIONEE: | Clive Oosthuzien |
DATE OF GRANT: | September 1, 2019 |
TYPE OF OPTION: | Incentive Stock Option No |
| Non-Qualified Stock Option Yes |
NUMBER OF OPTIONED SHARES: | 1,250,000 |
EXERCISE PRICE: | $0.05 per Share |
TERMINATION DATE: | 5th year anniversary of Date of Grant |
VESTING: | ·104,166 Optioned Shares on Date of Grant; ·1,145,834 Optioned Shares vests every 90 days after the Date of Grant, for a total of 11 vested grants of 104,166 Options. |
PERMISSION TO PAY WITH SHARES: | X Granted Denied |
EXPANDED RIGHTS TO TRANSFER OPTION: | None |
Exhibit “A” Common Stock Option Agreement
Page 8 of 8
EXHIBIT “B”
REVENUE SHARING AGREEMENT
REVENUE SHARING AGREEMENT
THIS REVENUE SHARING AGREEMENT (this “Agreement”) is made and entered into as of September 1, 2019 by and between Enigma-Bulwark Security, Inc., a Nevada corporation at 1327 Ocean Avenue Suite B Santa Monica, CA 90401 (the “Company”), PearTrack Security Systems, Inc. a Nevada corporation at 1327 Ocean Avenue Suite B, Santa Monica, CA 90401 (“Parent Corporation”), Triskelion Risk Solution, Inc. a South Africa corporation with its principal address at 5 Omnia Ave. Bellville Cape Town, South Africa 7530, (“TRISKELION” or “Revenue Share Recipient”), and Clive Oosthuizen, an individual at 5 Omnia Ave. Bellville Cape Town, South Africa 7530, (“Oosthuizen”), individually a “Party” and collectively they are “Parties” to this Agreement.
WHEREAS, the Company has entered that certain Consulting Agreement and Non-Compete, Non Dilution Revenue Share and Registration Agreement (the “Non Compete Agreement”), with Oosthuizen, the President of Triskelion, for the exclusive engagement of his services; and
WHEREAS, as part of the Non Compete Agreement’s consideration, the Company agreed to enter a Revenue Sharing Agreement (“Revenue Agreement”) with TRISKELION, whereby the Company will pay TRISKELION revenue proceeds from the Adjusted Gross Revenue generated by the Defined Revenue Sources, through the terms and conditions more particularly set forth herein; and
WHEREAS, its sole shareholder, and its Board of Directors have authorized the Company, to enter a Revenue Sharing Agreement with TRISKELION on the terms and conditions set forth herein below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, and to consummate the terms of the Non Compete Agreement, which the Parties hereby acknowledge this Agreement to be an integral part thereof, it is hereby agreed as follows:
1.Definitions.
1.1.In this Agreement the following words and phrases shall have the following meanings unless the context requires otherwise:
1.1.1.“Agreement” means this Agreement, and all the exhibits, Schedules and other documents attached to or referred to in this Agreement, and all amendments and supplements, if any, to this Agreement.
Exhibit “B” Revenue Sharing Agreement
Page 1 of 13
1.1.2.“Adjusted Gross Revenue” means for this Agreement all revenue accounted to the Company from the Defined Revenue Sources, as defined in Section 1.1.6 below, less Cost of Goods Sold, as defined herein in Section 1.1.5.
1.1.3.“Adjusted Gross Revenue Sharing Percentage” shall mean an amount equal to:
1.1.3.1.One Hundred Percent (100%) of the Adjusted Gross Revenue of the Current Clients of Oosthuizen, up to two million ($2,000,000) dollars, in a form attached as Exhibit A.
1.1.3.2.Twenty-Five Percent (25%) of the adjusted gross revenue on all new business, generated from new customers, in Defined Territories, up to five hundred thousand ($500,000) dollars, in in a form attached as Exhibit “B”.
1.1.3.3.Twenty-five (25%) of the adjusted gross revenue on all new revenue sources, generated from historical or new customers, in the Defined Territories, through the sale or lease of Defined Products up to five hundred thousand ($500,000). The Defined Products, Technology and Services, are hereinafter referred to collectively as the “Defined Products”.
1.1.4.“Business Day” shall mean a day other than a day, which is a Saturday, Sunday, or Public or bank holiday in Los Angeles, California.
1.1.5.“Cost of Goods Sold” (COGS) is defined herein as the direct costs attributable to the production of the goods sold by each Defined Revenue Source. This amount includes the cost of the materials used in creating the good and excludes direct labor costs used to produce the good. In addition, COGS will include the direct costs associated with commission from sales representatives, sales agents and sales partnerships, if applicable. The COGS shall include cash compensation due and payable to Oosthuizen under his Executive Consulting Agreement with the Company.
1.1.6.“Defined Revenue Sources” is defined herein as revenue generated from the historical customers of Triskelion, identified prospective customers in the defined territory, and from all revenue generated from the sale or lease of Defined Products, in a form attached as Exhibit “A” of this agreement.
1.1.7.“Defined Territories” is defined herein as the territories that represent the countries in a form attached as Exhibit “B” of Triskelion.
1.1.8.“Defined Products” is defined herein as the Products, Technology and Services owned by PearTrack Security Systems, Inc. in a form attached as Exhibit “C” of this Agreement.
1.1.9.“Executive Consulting Agreement” is defined herein as the Consulting Agreement between Oosthuizen and Company, in a form attached as Exhibit “D”.
1.1.10.“Non Compete, Non-Dilution and Registration Rights Agreement” in a form attached as Exhibit “E”.
Exhibit “B” Revenue Sharing Agreement
Page 2 of 13
1.1.11.“Triskelion Customer Agreements Templates” in a form attached as Exhibit “F”.
1.1.12.“Triskelion Intellectual Property” is defined as an Intellectual Property License Agreement in a form attached as Exhibit “G”.
2.Revenue Sharing. During the Term of this Agreement and in consideration for Oosthuizen entering into the Non-Compete Agreement, and the transferring of the Triskelion Customer Agreements to Company, the Triskelion Intellectual Property, the Company shall pay to TRISKELION, the Adjusted Gross Revenue Sharing Percentage, in cash or by wire transfer as directed by TRISKELION, calculated based on the Adjusted Gross Revenue accounted by the Company and its subsidiaries during each calendar quarter (January through March being the First Quarter, April through June being the Second Quarter, July through September being the Third Quarter and October through December being the Fourth Quarter) commencing with the end of the first calendar quarter after the date of this Agreement. All payments of the Adjusted Gross Revenue Sharing Percentage shall be paid within thirty (30) days of the last day of the calendar quarter during which revenues are accounted, time being of the essence of this provision. At the time of payment, the Company shall also deliver TRISKELION an accurate and complete written statement setting forth the Company’s calculations of the Adjusted Gross Revenue Sharing Percentage, including the basis of the gross revenues from the Defined Revenue Sources, the Cost of Goods Sold and the Adjusted Gross Revenues during the quarter, certified as to accuracy by an appropriate representative of the Company.
3.Term. This Agreement shall continue to be in force until the earliest to occur of (i) the date on which TRISKELION has received aggregate payments of the Adjusted Gross Revenue Sharing Percentage, from the Defined Revenue Sources, in an amount totaling Two Million Dollars ($2,000,000), or (ii) the date on which TRISKELION receives payment resulting from a sale as provided in Section 4 below, or (iii) the date on which the Parties, by mutual written consent, agree to terminate this Agreement.
4.Payment on Sale of Purchased Assets. In the event the Company (or any affiliate or subsidiary of the Company) sells or otherwise transfers (i) any of the TRISKELION Customer Agreements or (ii) all or substantially all of its operating assets to a third party for valuable consideration and the aggregate payments of the Adjusted Gross Revenue Sharing Percentage paid by Company to TRISKELION at the time of such sale or transfer total less than Two Million Dollars ($2,000,000) in the aggregate, then the Company agrees pay TRISKELION the difference between the total, aggregate amount of all Adjusted Gross Revenue Sharing Percentage payments made by the Company at such time and Two Million Dollars ($2,000,000). Such amount due under this Section 4 shall be payable by the Company to TRISKELION in cash or wired funds (as directed by TRISKELION) within thirty (30) days of the last day of the calendar quarter during which the sale or transfer occurs, time being of the essence of this provision.
5.Waiver. The waiver of the breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach of the same or other provision hereof.
6.Notices. All notices and other communications under this Agreement will be in writing and will be given by personal or courier delivery, facsimile or first class mail, certified or registered with return receipt requested, and will be deemed to have been duly given upon receipt if personally delivered or delivered by courier, on the date of transmission if transmitted by facsimile, or three business days after mailing if
Exhibit “B” Revenue Sharing Agreement
Page 3 of 13
mailed, to the addresses of the Company and TRISKELION contained in the records of the Company at the time of such notice.
To PearTrack Security Systems, Inc.:
In care of:Kyle W. Withrow
Title:President & CEO
Address:1327 Ocean Avenue, Suite B
Santa Monica, CA 90401
Tel:(310) 899-4442
Fax:(888) 899-3402
Email:kylew@peartracksecuritysystems.com
To Triskelion, Inc.:
In care of:Clive Oosthuizen
Title:President
Address:5 Omnia Avenue, Bellville
Cape Town, South Africa 7530
Tel:(27) 83.230.8569
Fax:
Email:clive.oosthuizen@gmail.com
7.Headings. The section headings used in this Agreement are intended for convenience of reference and will not by themselves determine the construction or interpretation of any provision of this Agreement.
8.Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state of Nevada, excluding those laws that direct the application of the laws of another jurisdiction.
8.1.Arbitration. In the event that there shall be a dispute (a “Dispute”) among the parties arising out of or relating to this Agreement, or the breach thereof, the parties agree that such dispute shall be resolved by final and binding arbitration before a single arbitrator in Santa Monica, in the County of Los Angeles, CA, administered by the American Arbitration Association (the “AAA”), in accordance with AAA’s Rules. The arbitrator’s decision shall be final and binding upon the parties, and may be entered and enforced in any court of competent jurisdiction by either of the parties. The arbitrator shall have the power to grant temporary, preliminary and permanent relief, including without limitation, injunctive relief and specific performance.
8.2.Costs and Expense.The Company will pay the direct costs and expenses of the arbitration, including arbitration and arbitrator fees. Except as otherwise provided by statute, Revenue Share Recipient and the Company are responsible for their respective attorneys’ fees incurred in connection with enforcing this Agreement. Revenue Share Recipient and the Company agree that, to the extent permitted by law, the arbitrator may, in his or her discretion, award reasonable attorneys’ fees to the prevailing party.
9.Counterparts and Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and
Exhibit “B” Revenue Sharing Agreement
Page 4 of 13
the same instrument. This Agreement may be executed by facsimile signature (including signatures in Adobe PDF or similar format).
10.Enforcement. If any portion of this Agreement is determined to be invalid or unenforceable, such portion will be adjusted, rather than voided, to achieve the intent of the parties to the extent possible, and the remainder will be enforced to the maximum extent possible. In the event the parties engage in litigation relating to or arising out of this Agreement or the performance thereof, the parties agree that the Court shall be asked to determine which party is the prevailing party to the proceeding or proceedings, and the non-prevailing party or parties shall, jointly and severally, be liable to the prevailing party in the amount of all reasonable attorney’s fees, court costs, and all other expenses, incurred by the prevailing party to the proceeding in addition to any other relief to which the prevailing party may be entitled.
IN WITNESS, WHEREOF, the parties hereto have executed this Revenue Sharing Agreement as of the date set forth in the preamble hereto.
PEARTRACK SECURITY SYSTEMS, INC.
By:/s/ Kyle W. Withrow
Printed:Kyle W. Withrow
Title:Chief Executive Officer, Director
Date:September 1, 2019
TRISKELION SECURITY SOLUTIONS, INC.
By:/s/ Clive Oosthuzien
Printed:Clive Oosthuzien
Date:September 1, 2019
Exhibit “B” Revenue Sharing Agreement
Page 5 of 13
EXHIBIT TABLE OF CONTENTS
Exhibit “A”Current Clients of Triskelion and/or Clive Oosthuizen
Exhibit “B”Defined Territories
Exhibit “C”Defined Products
Exhibit “D”Executive Consulting Agreements
Exhibit “E”Non-Compete, Non-Dilution & Registration Rights Agreements
Exhibit “F”Triskelion Customer Agreements
Exhibit “B” Revenue Sharing Agreement
Page 6 of 13
EXHIBIT “A”
CURRENT CLIENTS OF TRISKELION
1.Janusian Risk Management, Liberia
2.Siemens PLC, Nigeria
3.Putu Iron Ore Mining, Liberia
4.Sierra Rutile Ltd, Sierra Leone
5.Vodacom, South Africa
6.Gemrocks Mining, Liberia
Exhibit “B” Revenue Sharing Agreement
Page 7 of 13
EXHIBIT “B”
DEFINED TERRITORIES
1.IPAS Nigeria (Woman’s Health NGO)
2.Newmont Mining (Physical Security at mining site)
3.Mozayix International (Washington based Risk Management company. Possibility of joint venture for Africa projects)
4.DAI (International Development Company) We can partner with this company for Risk Management at multiple locations across Africa and Internationally.
Exhibit “B” Revenue Sharing Agreement
Page 8 of 13
EXHIBIT “C”
DEFINED PRODUCTS
PearLoxx Patented Container Locking System
·When transporting goods, for instance, on cargo ships, trains and trucks, containers are used to a great extent. Such containers are easy to handle in loading and unloading due to standardized sizes and a robust construction. This design of containers, which are often referred to as ISO containers, allows the transported goods to be well protected in transport and also during loading and unloading. These containers are usually equipped with two doors on one of the short sides, there are mechanisms for keeping the doors in a closed position. Among prior art there are a number of different kind of fixed mounted equipment for locking of the doors, however this equipment may extend out of the exterior measure of the container, causing space-consuming problems. Further this kind of fixed locking equipment demands time consuming modifications to the container for mounting of the lock equipment at the doors and/or container.
·There are problems with containers when persons are trying to illegally reach the content of the container, at a storage site or during transport. Particularly leasing containers, which are usually not equipped with locking device for the door.
·It is desirable with fast and efficient locking and unlocking of containers, it is also desirable to minimize the risk for unwanted opening of the container.
The PearLoxx System
·PearLoxx locking systems integrate elements from a patented container lock, with a physical container locking system with proprietary electronic control and deadlock system, and the PearTrack tracking and communication system.
·Additionally, our Codeloxx system provides an electronically remotely operated security lock for shipping containers that signals operation and location updates via the PearTrack system.
Principle generic features of the PearLoxx System include:
·Electronically operated secure locking system using patented mechanical design.
·Tamper and drill resistant design
·Local 5-digit code emergency access, and emergency power options.
·GPS global tracking with GSM 2G/3G communication using PearTrack tracking unit.
·Automatic notification of lock operation and unlocking / locking events.
·Local user one-touch re-locking
·C. 90 day rechargeable or up to 10 year primary battery versions based
Exhibit “B” Revenue Sharing Agreement
Page 9 of 13
US Patent for PearLoxx
CodeloxxRemote management tool
·The PearLoxx lock assembly (“CodeLoxx”) is operated by a microcontroller based lock control circuit;
· This electronic circuit is able to accept either remote open commands via the PearTrack system or a 5 digit local code, which is input via a single button and LED combination;
· The deadlock bolt is operated using a motor driven gear/rack, and once the deadbolt is retracted a user can manually operate the lock.
· Lock open status is signaled via the PearTrack tracking unit, and re-locking is automatically inhibited while the lock bolt is open to prevent jamming.
Exhibit “B” Revenue Sharing Agreement
Page 10 of 13
EXHIBIT “D”
EXECUTIVE CONSULTING AGREEMENT
Exhibit “B” Revenue Sharing Agreement
Page 11 of 13
EXHIBIT “E”
NON-COMPETE, NON-DILUTION, &
REGISTRATION RIGHTS AGREEMENT
Exhibit “B” Revenue Sharing Agreement
Page 12 of 13
EXHIBIT “F”
TRISKELION CUSTOMER AGREEMENT
TEMPLATE AGREEMENTS
Exhibit “B” Revenue Sharing Agreement
Page 13 of 13
CONSULTING AGREEMENT
CONSULTING AGREEMENT (this “Agreement”) effective the 8th day of October, 2019, by and between the Enigma-Bulwark, Ltd., a Nevada corporation at 1327 Ocean Avenue, Suite B, Santa Monica, CA 90401 (the “Company”), and Yinuo Jiang at 3559 Sawtelle Blvd., #1, Los Angeles, CA 90066 (the “Consultant”).
WHEREAS, the Company desires to retain Consultant to serve as Corporate Secretary of the Company pursuant to the Board of Director’s appointment on October 8, 2019, on the terms and conditions set forth in this Agreement, and Consultant desires to be retained by the Company on such terms and conditions.
NOW, THEREFORE, in consideration of the premises, the mutual agreements herein set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1.Engagement of Consultant; Services to be Performed.
1.1.The Company hereby retains Consultant to serve as Corporate Secretary pursuant to the Board of Director’s appointment on October 8, 2019. Consultant hereby accepts such appointment and agrees to perform such services for the Company upon the terms and conditions set forth in this Agreement.
1.2.This Agreement supersedes any other agreement between Consultant and the Company or its subsidiaries.
1.3.During the Term (as defined in Section 2), Consultant shall devote such time, attention, skill and energy to the business of the Company as may be reasonably required to perform the services required by this Agreement up to a maximum time commitment of 40 hours in any calendar month, and shall assume and perform to the best of her ability such reasonable responsibilities and duties as the Company shall assign to Consultant from time to time.
1.4.Consultant shall perform the services hereunder at Consultant’s home office and from time to time at the Company’s principal office and shall, at the Company’s expense, also be required to render the services at such other locations as the Company may specify from time to time.
1.5.In rendering services hereunder, Consultant shall be acting as an independent contractor and not as an employee or agent of the Company. As an independent contractor, Consultant shall have no authority, express or implied, to commit or obligate the Company in any manner whatsoever, except in the capacity as Corporate Secretary of the Company, or as specifically authorized from time to time in writing by an authorized representative of the Company, which authorization may be general or specific. Nothing contained in this Agreement shall be construed or applied to create a partnership. Consultant shall be responsible for the payment of all federal, state, provincial or local taxes payable with respect to all amounts paid to Consultant under this Agreement; provided, however, that if the Company is determined to be liable for collection and/or remittance of any such taxes, Consultant shall immediately reimburse the Company for all such payments made by the Company.
Enigma-Bulwark, Ltd.Consulting Agreement
Yinuo JiangPage 1 of 2
2.Term. Unless terminated at an earlier date in accordance with Section 4, this Agreement shall commence as of the date first written above and shall continue for a continuous period of three (3) years (the “Term”) and renewable for additional one year periods if both parties agree.
3.Compensation
3.1.Cash: As compensation for Consultant’s services hereunder, the Company shall pay to Consultant a consulting fee of one hundred thousand dollars ($100,000) per annum, payable monthly over the term of this Agreement (“Consulting Fee”), subject to Section 3.1(a).
(a)Deferral: Cash Compensation under Section 3.1 shall be deferred and accrued (“Deferred Compensation”) until such time as (i) the Company has secured a minimum of $250,000; or (ii) the Company has remained cash flow positive for a period of three (3) months, maintaining an average minimum cash balance of $25,000 per month.
(b)Conversion: The Consultant may, at her option, elect to convert the Deferred Compensation, or any portion thereof, into shares of the Company’s restricted common stock at a conversion price equal to the Company’s average trading price for the twenty (20) days immediately preceding the Consultant’s written request for conversion.
3.2.Equity
(a)Stock Award. Upon execution of this Agreement, Consultant shall be granted one million (1,000,000) shares of the Company’s restricted stock at a price of $0.001 per share (the “Stock Award”), the payment of which may be offset against monies owed to Consultant pursuant to Section 3.1(a) above. The Stock Award shall be fully vested as of the date of this Agreement.
(b)Stock Options. Consultant may be granted non-qualified stock options during the Term of this Agreement as determined by the Company’s Board of Directors from time to time.
4.Termination By the Company.
4.1.For Cause. The Company will have the right to immediately terminate Consultant's services and this Agreement for cause. "Cause" means: any material breach of this Agreement by Consultant, including, without limitation, breach of Consultant’s covenants; conviction of a felony or failure to contest prosecution for a felony, other than what has been disclosed to the Company’s Board of Directors as of the signing of this Agreement, by Consultant; violation of any statute, rule or regulation, any of which in the judgment of the Company is harmful to the business of the Company or to the Company’s reputation; unethical practices; dishonesty; disloyalty; or any reason that would constitute cause under the laws of Nevada. Upon termination of Consultant's engagement hereunder for cause or upon the death or disability of Consultant, Consultant will have no rights to any unvested benefits or any other compensation or payments after the termination date or the last day of the month in which Consultant’s death or disability occurred.
For purposes of this Agreement, “disability” means the incapacity or inability of Consultant, whether due to accident, sickness or otherwise, as determined by a medical doctor acceptable to the Board of Directors of the Company and confirmed in writing by such doctor, to perform the essential functions of Consultant’s position under this Agreement, with or without reasonable accommodation (provided that no
Enigma-Bulwark, Ltd.Consulting Agreement
Yinuo JiangPage 2 of 2
accommodation that imposes undue hardship on the Company will be required) for an aggregate of ninety (90) days during any period of one hundred eighty (180) consecutive days.
4.2.Without Cause. The Company may terminate Consultant's engagement under this Agreement without cause and without advance notice; provided, however, that the Company will continue to pay, as severance pay, the Consulting Fee at the rate in effect on the termination date for a period of eighteen months. Such payments will be at usual and customary pay intervals of the Company.
4.3.Termination By Consultant. Consultant may terminate Consultant’s engagement under this Agreement for any reason provided that Consultant gives the Company at least thirty (30) days’ notice in writing. The Company may, at its option, accelerate such termination date to any date at least two weeks after Consultant’s notice of termination. The Company may, at its option, relieve Consultant of all duties and authority after notice of termination has been provided. All compensation, payments will cease on the termination date.
5.Expenses. In addition to the payment of consulting fees set forth above, the Company shall reimburse Consultant all actual out-of-pocket costs for long-distance telephone services, facsimile transmissions, photocopying, courier services and postage, and all reasonable travel, lodging and per diem expenses, that he shall incur in connection with the rendering of Consultant’s services; provided that the Company shall have no obligation to reimburse any of such expenses except upon provision by Consultant of adequate documentation thereof in such form as the Company shall reasonably request; and provided further, that the Company shall have no such obligation in respect of any travel, lodging or per diem expenses unless the travel to which such expenses relate shall have been authorized in advance by the Company.
6.Protection of Trade Secrets, Know-How and/or Other Confidential Information.
6.1.Confidential Information. Except as permitted or directed by the Company, during the Term or at any time thereafter Consultant shall not divulge, furnish or make accessible to anyone or use in any way (other than in the ordinary course of the business of the Company) any confidential or secret knowledge or information of the Company that Consultant has acquired or become acquainted with or will acquire or become acquainted with during the Term or during engagement by the Company prior to the Term, whether developed by Consultant or by others, concerning any trade secrets, confidential or secret designs, processes, formulae, products or future products, plans, devices or material (whether or not patented or patentable) directly or indirectly useful in any aspect of the business of the Company, any customer or supplier lists of the Company, any confidential or secret development or research work of the Company, or any other confidential information or secret aspects of the business of the Company. Consultant acknowledges that the above-described knowledge or information constitutes a unique and valuable asset of the Company acquired at great time and expense by the Company and its predecessors, and that any disclosure or other use of such knowledge or information other than for the sole benefit of the Company would be wrongful and would cause irreparable harm to the Company. Both during and after the Term, Consultant will refrain from any acts or omissions that would reduce the value of such knowledge or information to the Company. The foregoing obligations of confidentiality, however, shall not apply to any knowledge or information which is now published, or which subsequently becomes generally publicly known in the form in which it was obtained from the Company, other than as a direct or indirect result of the breach of this Agreement by Consultant.
Enigma-Bulwark, Ltd.Consulting Agreement
Yinuo JiangPage 3 of 2
6.2.Know-How and Trade Secrets. All know-how and trade secret information conceived or originated by Consultant, which arises out of the performance of the services hereunder, or any related material or information shall be the property of the Company, and all rights therein are hereby assigned to the Company.
6.3.Return of Records. Upon termination of this Agreement, Consultant shall deliver to the Company all property that is in her possession and that is the Company’s property or relates to the Company’s business, including, but not limited to records, notes, data, memoranda, software, electronic information, models, equipment, and any copies of the same.
7.Miscellaneous.
7.1.Entire Agreement. This Agreement (including any exhibits, schedules and other documents referred to herein, if any) contains the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes any prior understandings, agreements or representations, written or oral, relating to the subject matter hereof.
7.2.Counterparts. This Agreement may be executed in separate counterparts, each of which will be an original and all of which taken together shall constitute one and the same agreement, and any party hereto may execute this Agreement by signing any such counterpart.
7.3.Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but if any provision of this Agreement is held to be invalid, illegal or unenforceable under any applicable law or rule, the validity, legality and enforceability of the other provision of this Agreement will not be affected or impaired thereby.
7.4.Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives and, to the extent permitted by subsection (e), successors and assigns.
7.5.Assignment. This Agreement and the rights and obligations of the parties hereunder shall not be assignable, in whole or in part, by either party without the prior written consent of the other party.
7.6.Modification, Amendment, Waiver or Termination. No provision of this Agreement may be modified, amended, waived or terminated except by an instrument in writing signed by the parties to this Agreement. No course of dealing between the parties will modify, amend, waive or terminate any provision of this Agreement or any rights or obligations of any party under or by reason of this Agreement.
7.7.Notices. All notices, consents, requests, instructions, approvals or other communications provided for herein shall be in writing and delivered by personal delivery, overnight courier, mail, electronic facsimile or e-mail addressed to the receiving party at the address set forth above. All such communications shall be effective when received. Any party may change the address set forth above by notice to each other party given as provided above.
7.8.Headings. The headings and any table of contents contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Enigma-Bulwark, Ltd.Consulting Agreement
Yinuo JiangPage 4 of 2
7.9.Governing Law. ALL MATTERS RELATING TO THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEVADA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISIONS THEREOF.
7.10.Third-Party Benefit. Nothing in this Agreement, express or implied, is intended to confer upon any other person any rights, remedies, obligations or liabilities of any nature whatsoever.
7.11.No Waiver. No delay on the part of the Company in exercising any right hereunder shall operate as a waiver of such right. No waiver, express or implied, by the Company of any right or any breach by Consultant shall constitute a waiver of any other right or breach by Consultant.
7.12.Jurisdiction and Venue. THIS AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR STATE COURT SITTING IN CALIFORNIA, AND EACH PARTY CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUM IS NOT CONVENIENT. IF ANY PARTY COMMENCES ANY ACTION UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT IN ANOTHER JURISDICTION OR VENUE, ANY OTHER PARTY TO THIS AGREEMENT SHALL HAVE THE OPTION OF TRANSFERRING THE CASE TO THE ABOVE-DESCRIBED VENUE OR JURISDICTION OR, IF SUCH TRANSFER CANNOT BE ACCOMPLISHED, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.
7.13.Remedies. The parties agree that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may, in its discretion, apply to any court of law or equity of competent jurisdiction for specific performance and injunctive relief in order to enforce or prevent any violations this Agreement, and any party against whom such proceeding is brought hereby waives the claim or defense that such party has an adequate remedy at law and agrees not to raise the defense that the other party has an adequate remedy at law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
Company: Consultant:
ENIGMA-BULWARK, LTD.CONSULTANT
By: /s/ Kyle W. Withrow By: /s/ Yinuo Jiang
Kyle W. WithrowYinuo Jiang
Its: Chief Executive OfficerAn Individual
Enigma-Bulwark, Ltd.Consulting Agreement
Yinuo JiangPage 5 of 2
NON-COMPETE, NON-DILUTION, REVENUE SHARING
AND REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made and entered into this 10th day of October 2019, by and between PearTrack Security Systems, Inc., a Nevada corporation at 1327 Ocean Avenue Suite B Santa Monica, CA 90401 (“PearTrack”) and Clive Oosthuizen at 5 Omnia Avenue Bellville, Cape Town, South Africa 7530 (“Consultant”).
WHEREAS, PearTrack is, a Nevada corporation, which has authorized two hundred and fifty million (250,000,000) shares of Common stock and twenty-five million shares of Preferred stock and issued capital stock of eighty-two million eighty-two thousand and nine hundred and thirty-one (82,087,931) shares of $.001 par value common stock; and
WHEREAS, PearTrack wishes to enter the risk management and security market in Africa and other international markets as well as within the United States, through its wholly owned subsidiaries; and
WHEREAS, Consultant and PearTrack have entered into a consulting agreement of the date hereof (the “Consulting Agreement”), under which Consultant will accept the role of President of PearTrack and accept a position as a member of its Board of Directors; and
WHEREAS, PearTrack wishes to restrict Consultant’s activities in ways further than included within the Consulting Agreement and Consultant is willing to agree to those restrictions; and
WHEREAS, In return for his agreement to further restrictions, PearTrack is willing to issue to Consultant 4,000,000 (four million shares of Common Stock of PearTrack at par value of $0.001 per share in return for a payment equal to par value of such Common Stock; and
WHEREAS, To further induce the Consultant to accept the further restrictions, PearTrack is willing to protect Consultant from dilution resulting from future issuances of Common Stock originating from any financial instrument issued by PearTrack or any subsidiary of PearTrack prior to the date hereof that allows for the issuance of Common Stock (each such instrument being a “Non-Diluting Instrument”); and
WHEREAS, PearTrack and Consultant desire that all Common Stock issued to Consultant or shall benefit from full Piggybank Registration Rights.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in the Agreement, and in order to consummate the purchase and the sale of the Purchased Shares, it is hereby agreed as follows:
1.Consultant’s covenant not to compete.
1.1.During the period commencing on the date hereof and ending on the later of (i) five years from the date hereof and (ii) two years after the expiry or termination of the
ConfidentialPage 110/10/2019
Consulting Agreement (“Non-Compete Period”). Consultant will not provide his services to any other entity in the security business in the United States or any country outside the United States (the “Business”) nor any of the security technology currently owned by PearTrack and under development or acquired during the term of Consulting Agreement.
1.2.Consultant acknowledges that because of his position under the Consulting Agreement, he will have access to material intellectual property and Confidential Information. Consultant shall not, during the Non-Compete Period, directly or indirectly (a) divert or attempt to divert from PearTrack any of the Business, including without limitation the solicitation of or interference with any of its customers, clients, members, business partners or suppliers, or (b) solicit or otherwise induce any person employed by PearTrack or its subsidiaries to terminate his or her employment with the PearTrack or its subsidiaries.
2.Obligations of PearTrack
2.1.Upon receipt of $4,000 (four thousand United States dollars) in immediately available funds, PearTrack will issue Consultant 4,000,000 (four million shares of Common Stock of PearTrack (the “Purchased Shares”) through a Common Stock Purchase Agreement in a form attached as Exhibit “A”,
2.2.Upon the issuance by PearTrack during the Non-Compete Period of any Common Stock under any Non-Diluting Instrument (the number of shares of each issuance being a “Potential Dilution Amount”), PearTrack will immediately issue to Consultant that number of shares of Common Stock that is equal to 4.5% (four and a half percent) of the Potential Dilution Amount, against receipt of immediately available funds equal to the par value of such Common Stock.
2.3.PearTrack will enter into a Registration Rights Agreement in the form attached at Exhibit “B” with Consultant at each time an issuance of Common Stock is made to Consultant.
3.Representations and warranties of PearTrack
PearTrack hereby warrants and represents:
3.1.PearTrack is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada and has the corporate power and authority to carry on its business as it is now being conducted.
3.2.Restrictions on Stock.
3.3.PearTrack is not a party to any agreement, written or oral, creation rights in respect to the Purchased Shares in any third person or relation to the voting of PearTrack’s Stock.
ConfidentialPage 210/10/2019
3.4.PearTrack is the lawful owner of the Purchased Shares, free and clear of all security interests, liens, encumbrances, equities and other charges.
3.5.as of the date hereof, (a) there is no private or governmental action, suit, proceeding, litigation, arbitration or investigation pending or, to the knowledge of PearTrack, threatened against PearTrack that would prohibit, prevent, enjoin, restrict or materially impair or delay the unrestricted transfer of the Purchased Shares, and all associated rights appertaining thereto, and (b) there is no legally binding judgment, decree, order, injunction, decision or award against PearTrack that would prohibit, prevent, enjoin, restrict or materially impair or delay the unrestricted transfer of the Purchased Shares and all associated rights appertaining thereto.
3.6.There are no existing warrants, options, stock purchase agreements, redemption agreements, restrictions of any nature, calls or rights to subscribe of any character relating to the Purchased Shares, nor are there any securities convertible into such stock.
4.Representations and warranties of PearTrack and Consultant
PearTrack and Consultant hereby represent and warrant that there has been no act or omission by PearTrack or Consultant which would give rise to any valid claim against any of the parties hereto for a brokerage commission, finder’s fee, or other like payment in connection with the transaction contemplated hereby.
5.General Provisions
5.1.Entire Agreement. This agreement (including the preamble and the exhibits hereto and any written agreements hereof executed by the parties) constitutes the entire Agreement and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof.
5.2.Section and Other Heading. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
5.3.Governing Law. This agreement and all transactions contemplated hereby, shall be governed by, construed and enforced in accordance with the laws of the State of California. The parties herein waive trial by jury and agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in Los Angeles County, State of California. In the event that litigation results from or arises out of this Agreement or the performance thereof, the parties agree to reimburse the prevailing party’s reasonable attorney’s fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing party may be entitled.
5.4.Amendment. This Agreement shall only be amended, modified, or supplemented by a writing signed by all parties hereto.
ConfidentialPage 310/10/2019
IN WITNESS WHEREOF, This Agreement has been executed by each of the individual parties hereto on the date first above written.
Signed:
By: /s/ Kyle W. Withrow 10/10/2019
Kyle W. Withrow Date
CEO
PearTrack Security Systems, Inc.
By: /s/ Clive J. Oosthuizen 10/10/2019
Clive J. OosthuizenDate
ConfidentialPage 410/10/2019
EXHIBIT “A”
COMMON STOCK PURCHASE AGREEMENT
COMMON STOCK
PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into this 10th day of October 2019, by and between PearTrack Security Systems, Inc., a Nevada corporation at 1327 Ocean Avenue Suite B Santa Monica, CA 90401 (“Seller”) and Triskelion Risk Solutions, Inc. a South Africa corporation (“TRS”), with its principal address at 5 Omnia Avenue Bellville, Cape Town, South Africa 7530 (“Purchaser”).
WHEREAS, Seller is the record owner and holder of the issued and outstanding shares of the capital stock of PearTrack Security Systems, Inc. (“Corporation”), a Nevada corporation, which Corporation has authorized two hundred and fifty million (250,000,000) shares of Common stock and twenty-five million shares of Preferred stock and issued capital stock of eighty-two million eighty-four thousand and nine hundred and thirty-one (82,084,931) shares of $.001 par value common stock; and
WHEREAS, Purchaser has been afforded the opportunity to purchase the Corporations Common stock as consideration of agreeing to a non-compete provision of the Asset Purchase Agreement, entered into by the Purchaser and the Seller; and
WHEREAS, Purchaser desires to purchase the number of shares of said stock as specified in Exhibit “A” hereto (the “Purchased Shares”) and the Seller desires to sell the Purchased Shares, upon the terms and subject to the conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in the Agreement, and in order to consummate the purchase and the sale of the Purchased Shares, it is hereby agreed as follows:
1.PURCHASE AND SALE: Subject to the terms and conditions hereinafter set forth, at the closing of the transaction contemplated herby, Seller shall sell, convey, transfer, and deliver to Purchaser certificates representing the Purchased Shares, and Purchaser shall purchase from Seller the Purchased Shares in consideration of the purchase price set forth in Exhibit “A” to this Agreement. The certificates representing the Purchased Shares shall be duly endorsed for transfer of accompanied by appropriate stock transfer powers duly executed in blank, in either case with signatures guaranteed in the customary fashion, and shall have all the necessary documentary transfer tax stamps affixed thereto at the expense of Seller. The closing of the transactions contemplated by this Agreement (“Closing”), shall be held at 1327 Ocean Ave Suite B, Santa Monica California 90401 on or before May 1, 2019, at 10:00 AM PDT, or such other place, date and time as the parties hereto may otherwise agree.
ConfidentialPage 510/10/2019
2.NUMBER OF PURCHASED SHARES AND PAYMENT OF PURCHASE PRICE. The number of Purchased Shares and total consideration for the purchase of the Purchased Shares are fully set out in Exhibit “A” attached hereto and made a part hereof.
3.REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby warrants and represent:
3.1.Organization and Standing. PearTrack Security Systems, Inc. is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada and has the corporate power and authority to carry on its business as it is now being conducted.
3.2.Restrictions on Stock.
i.Seller is not a party to any agreement, written or oral, creation rights in respect to the Purchased Shares in any third person or relation to the voting of the Corporation’s Stock.
ii.Seller is the lawful owner of the Purchased Shares, free and clear of all security interests, liens, encumbrances, equities and other charges.
iii.There are no existing warrants, options, stock purchase agreements, redemption agreements, restrictions of any nature, calls or rights to subscribe of any character relating to the Purchased Shares, nor are there any securities convertible into such stock.
4.REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER. Seller and Purchaser hereby represent and warrant that there has been no act or omission by Seller, Purchaser or the Corporation which would give rise to any valid claim against any of the parties hereto for a brokerage commission, finder’s fee, or other like payment in connection with the transaction contemplated hereby.
5.GENERAL PROVISIONS
5.1.Entire Agreement. This agreement (including the exhibits hereto and any written agreements hereof executed by the parties) constitutes the entire Agreement and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof.
5.2.Section and Other Heading. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
5.3.Governing Law. This agreement and all transactions contemplated hereby, shall be governed by, construed and enforced in accordance with the laws of the State of California. The parties herein waive trial by jury and agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in Los Angeles County, State of California. In the event that litigation results from or
ConfidentialPage 610/10/2019
arises out of this Agreement or the performance thereof, the parties agree to reimburse the prevailing party’s reasonable attorney’s fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing party may be entitled.
5.4.Amendment. This Agreement shall only be amended, modified, or supplemented by a writing signed by all parties hereto.
IN WITNESS WHEREOF, This Agreement has been executed by each of the individual parties hereto on the date first above written.
Signed:
By: /s/ Kyle W. Withrow 10/10/2019
Kyle W. Withrow Date
CEO
PearTrack Security Systems, Inc.
By: /s/ Clive J. Oosthuizen 10/10/2019
Clive J. OosthuizenDate
President
Triskelion Risk Solutions, Inc.
ConfidentialPage 710/10/2019
EXHIBIT “A”
NUMBER OF SHARES TO BE PURCHASED
AND
PAYMENT OF PURCHASE PRICE
1.Four Million (4,000,000) shares of common stock of PearTrack Security Systems, Inc.
2.The Shares of PTSS are being sold at par value $.001 per share for a total of fifty-eight hundred ($4,000.00) dollars.
ConfidentialPage 810/10/2019
EXHIBIT “B”
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (“Agreement”) is made and entered into as of the 10th day of October 2019 (the “Effective Date”), by and between Clive Oosthuizen, an individual, with at 5 Omnia Avenue Bellville, Cape Town, South Africa 7530 (“Oosthuizen”) and PearTrack Security Systems, Inc., a Nevada corporation, having a principal place of business at 1327 Ocean Avenue, Suite B, Santa Monica, CA 94501 (“PTSS” or the “Company”).
WHEREAS, in connection with the purchase by Oosthuizen of four million (4,000,000) shares of the Company’s Common Stock (the “Purchased Shares”), the Company has agreed to enter into this Registration Rights Agreement.
NOW THEREFORE, in consideration of the mutual agreements, covenants and conditions and releases contained herein, the Company and the Purchaser hereby agree as follows:
1.DEFINITIONS. AS USED HEREIN:
1.1.The term “Holder” means any person owning or having the right to acquire Registrable Shares or any assignee thereof in accordance with Section 2.8 hereof.
1.2.The terms “register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act (as defined below) and the applicable rules and regulations thereunder, and the declaration or ordering of the effectiveness of such registration statement.
1.3.For the purposes hereof, the term “Registrable Shares” means and includes (i) the Purchased Shares and (ii) any common stock of the Company issued or issuable as a result of a stock split, dividend or other distribution with respect to or in exchange for or in replacement of the Purchased Shares.
1.4.The term “Ownership Percentage” means and includes, with respect to each Holder of Registrable Shares requesting inclusion of Registrable Shares in an offering pursuant to this Agreement, the number of Registrable Shares held by such Holder divided by the aggregate of (i) all Registrable Shares held by all Holders requesting registration in such offering and (ii) the total number of all other securities entitled to registration pursuant to any agreement with the Company and held by others participating in the underwriting.
1.5.The term “Securities Act” means the Securities Act of 1933, as amended.
1.6.The term “Public Offering” means and includes the closing of an underwritten public offering pursuant to an effective registration statement under the Securities Act, covering the offer and sale of securities to the general public for the account of the Company.
ConfidentialPage 910/10/2019
2.REGISTRATION RIGHTS.
2.1.“Piggy Back” Registration. If at any time the Company shall determine to register under the Securities Act (including pursuant to a demand of any stockholder of the Company exercising registration rights) any of its common stock (other than a registration relating solely to the sale of securities to participants in a Company employee benefits plan, a registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Shares or a registration in which the only common stock being registered is common stock issuable upon conversion of debt securities which are also being registered), it shall send to each Holder written notice of such determination and, if within ten (10) business days after receipt of such notice, such Holder shall so request in writing, the Company shall use its best efforts to include in such registration statement all of the Registrable Shares that such Holder requests to be registered, except that if, in connection with any offering involving an underwriting of common stock to be issued by the Company, the managing underwriter shall impose a limitation on the number of shares of common stock included in any such registration statement because, in such underwriter’s judgment, such limitation is necessary based on market conditions, the Company shall be obligated to include in such registration statement, with respect to the requesting Holder, only an amount of Registrable Shares equal to the product of (i) the number of Registrable Shares that remain available for registration after the underwriter’s cut back and (ii) such Holder’s Ownership Percentage, as that term is defined in Section 1.4. Notwithstanding the foregoing, (a) no such reduction shall be made with respect to securities being offered by the Company for its own account, and (b) any person who has or is granted registration rights, which have priority over the rights, granted hereunder shall have priority in case of any cut back. If any Holder disapproves of the terms of such underwriting, it may elect to withdraw therefrom by written notice to the Company and the underwriter.
2.2.Effectiveness.
(a)The Company will use its best efforts to maintain the effectiveness for the period described in the plan of distribution set forth in the registration statement.
(b)The Company will from time to time amend or supplement such registration statement and the prospectus contained therein as and to the extent necessary to comply with the Securities Act and any applicable state securities statute or regulation.
2.3.Indemnification.
(a)Indemnification of Holders. In the event that the Company registers any of the Registrable Shares under the Securities Act, the Company will indemnify and hold harmless each Holder and each underwriter of the Registrable Shares so registered (including any broker or dealer through whom such shares may be sold) and each person, if any, who controls such Holder within the meaning of the Securities Act or any such underwriter within the meaning of Section 15 of the Securities Act from and against any and all losses, claims, damages, expenses or liabilities (or any action in respect thereof), joint or several, to which they or any of them become subject under the Securities Act or under any other statute or at common law or otherwise, and, except as hereinafter provided, will reimburse each such Holder, each such underwriter and each
ConfidentialPage 1010/10/2019
such controlling person, if any, for any legal or other such expenses are incurred, in ing, defending, or settling any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the registration statement, in any preliminary or amended preliminary prospectus or in the prospectus (or the registration statement or prospectus as from time to time amended or supplemented by the Company); (ii) arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading; or (iii) any violation by the Company of the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”), a state securities law or any rule or regulation under the Securities Act, the Exchange Act or any state securities law; provided, however, that the indemnity contained in this Section 2.3(a) will not apply where such untrue statement or omission was made in such registration statement, preliminary or amended, preliminary prospectus or prospectus in reliance upon and in conformity with information furnished in writing to the Company in connection therewith by such Holder of Registrable Shares, any such underwriter or any such controlling person expressly for use therein. Promptly after receipt by any Holder of Registrable Shares, any underwriter or any controlling person of notice of the commencement of any action in respect of which indemnity may be sought against the Company, such Holder of Registrable Shares, or such underwriter or such controlling person, as the case may be, will notify the Company in writing of the commencement thereof, and, subject to the provisions hereinafter stated, the Company shall assume the defense of such action (including the employment of counsel, who shall be counsel reasonably satisfactory to such Holder of Registrable Shares, such underwriter or such controlling person, as the case may be), and the payment of expenses insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against the Company. Such Holder of Registrable Shares, any such underwriter or any such controlling person shall have the right to employ separate counsel in any such action and to participate in the defense thereof in the event the representation of such Holder, underwriter or controlling person by counsel retained by or on the behalf of the Company would be inappropriate due to conflicts of interest between any such person and any other party represented by such counsel in such proceeding or action, in which case the Company shall pay, as incurred, the fees and expenses of such separate counsel. The Company shall not be liable to indemnify any person under this Section 2.3(a) for any settlement of any such action effected without the Company’s consent (which consent shall not be unreasonably withheld). The Company shall not, except with the approval of each party being indemnified under this Section 2.3(a) (which approval will not be unreasonably withheld), consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the parties being so indemnified of a release from all liability in respect to such claim or litigation.
(b)Indemnification of Company. In the event that the Company registers any of the Registrable Shares under the Securities Act, each Holder of the Registrable Shares so registered will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the registration statement, each underwriter of the Registrable Shares so registered (including any broker or dealer through whom any of such shares may be sold) and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act from and against any and all losses, claims, damages, expenses or liabilities (or any action in respect thereof), joint or several, to which they or any of them may become subject under the
ConfidentialPage 1110/10/2019
Securities Act or under any other statute or at common law or otherwise, and, except as hereinafter provided, will reimburse the Company and each such director, officer, underwriter or controlling person for any legal or other expenses reasonably incurred by them or any of them, as such expenses are incurred, in connection with investigating or defending any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement, in any preliminary or amended preliminary prospectus or in the prospectus (or the registration statement or prospectus as from time to time amended or supplemented) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, but only insofar as any such statement or omission was made in reliance upon and in conformity with information furnished in writing to the Company in connection therewith by such Holder, expressly for use therein; provided, however, that such Holder’s obligations hereunder shall be limited to an amount equal to the net proceeds to such Holder of the Registrable Shares sold in such registration. Promptly after receipt of notice of the commencement of any action in respect of which indemnity may be sought against such Holder of Registrable Shares, the Company will notify such Holder of Registrable Shares in writing of the commencement thereof, and such Holder of Registrable Shares shall, subject to the provisions hereinafter stated, assume the defense of such action (including the employment of counsel, who shall be counsel reasonably satisfactory to the Company) and the payment of expenses insofar as such action shall relate to the alleged liability in respect of which indemnity may be sought against such Holder of Registrable Shares. The Company and each such director, officer, underwriter or controlling person shall have the right to employ separate counsel in any such action and to participate in the defense thereof in the event the representation of the Company, any of its officers or directors or any underwriter or controlling person by counsel retained by or on the behalf of such Holder would be inappropriate due to conflicts of interest between any such person and any other party represented by such counsel in such proceeding or action, in which case such Holder shall pay, as incurred, the fees and expenses of such separate counsel, but only one such counsel. Notwithstanding the two preceding sentences, if the action is one in which the Company may be obligated to indemnify any Holder of Registrable Shares pursuant to Section 2.3, the Company shall have the right to assume the defense of such action, subject to the right of such Holders to participate therein as permitted by Section 2.3. Such Holder shall not be liable to indemnify any person for any settlement of any such action effected without such Holder’s consent (which consent shall not be unreasonably withheld). Such Holder shall not, except with the approval of the Company (which approval shall not be unreasonably withheld), consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the party being so indemnified of a release from all liability in respect to such claim or litigation.
2.4.Contribution. If the indemnification provided for in Section 2.3 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage, or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be
ConfidentialPage 1210/10/2019
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission.
2.5.Exchange Act Registration. With a view to making available to the Holders the benefits of Rule 144 promulgated under the Act and any other rule or regulation of the Securities and Exchange Commission (the “SEC”) that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company agrees to:
(a)File on a timely basis with the Securities and Exchange Commission all information that the Commission may require under either of Section 13 or Section 15(d) of the Exchange Act and, so long as it is required to file such information, take all action that may be required as a condition to the availability of Rule 144 under the Securities Act (or any successor exempted rule hereinafter in effect) with respect to the Company’s common stock; and
(b)Furnish to any Holder forthwith upon request (i) a written statement by the Company as to its compliance with the reporting requirements of Rule 144, (ii) a copy of the most recent annual or quarterly report of the Company as filed with the Securities and Exchange Commission, and (iii) any other reports and documents that a Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing a Holder to sell any such Registrable Shares without registration.
2.6.Further Obligations of the Company. Whenever the Company is required hereunder to register Registrable Shares, it agrees that it shall also do the following:
(a)Furnish to each selling Holder such copies of each preliminary and final prospectus and any other documents that such Holder may reasonably request to facilitate the public offering of its Registrable Shares;
(b)Use its best efforts to register or qualify the Registrable Shares to be registered pursuant to this Agreement under the applicable securities or “blue sky” laws of such jurisdictions as any selling Holder may reasonably request and keep such registration or qualification effective during the period set forth in Section 2.6(j) below; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to the service of process in suits other than those arising out of the offer or sale of the securities covered by the registration statement in any jurisdiction where it is not then so subject;
(c)Notify each Holder of Registrable Shares covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
ConfidentialPage 1310/10/2019
(d)Cause all such Registrable Shares registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(e)Provide a transfer agent and registrar for all Registrable Shares registered pursuant hereunder and a CUSIP number for all such Registrable Shares, in each case not later than the effective date of such registration;
(f)In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement and other customary agreements, in usual and customary form, with the managing underwriter of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement;
(g)Furnish, at the request of any Holder requesting registration of Registrable Shares pursuant to this Section 2, on the date that such Registrable Shares are delivered to the underwriters for sale in connection with a registration pursuant to this Section 2, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective:
(i)at the request of any Holder, to furnish on the effective date of the Registration Statement or, if the offering is underwritten, on the date that Registrable Shares are delivered to the underwriters for sale, an opinion of counsel, dated such date, representing the Company for the purposes of such registration, addressed to the underwriters and to such Holder, stating that such registration statement has become effective under the Securities Act and that (i) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (ii) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or other financial data contained therein), and (iii) such other opinions as reasonably may be requested by counsel for the underwriters or by such Holder or its counsel;
(ii)“comfort” letters signed by the Company’s independent public accountants who have examined and reported on the Company’s financial statements included in the registration statement, to the extent permitted by the standards of the American Institute of Certified Public Accountants, covering substantially the same matters with respect to the registration statement (and the prospectus included therein) and (in the case of the accountants’ “comfort” letters) with respect to events subsequent to the date of the financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ “comfort” letters delivered to the underwriters in underwritten public offerings of securities, but only if and to the extent that the Company is required to deliver or cause the delivery of such opinion or “comfort” letters to the underwriters in an underwritten public offering of securities;
(h)Make available for inspection by any seller of Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and
ConfidentialPage 1410/10/2019
other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(i)Furnish to each selling Holder, upon request, a copy of all documents filed and all correspondence from or to the Securities and Exchange Commission in connection with any such offering unless confidential treatment of such information has been requested of the Securities and Exchange Commission;
(j)Keep such registration continuously effective for such reasonable period necessary to permit the Holder or Holders to complete the distribution described in the registration statement relating thereto or 180 days, whichever first occurs;
(k)promptly prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act, and to keep such registration statement effective for that period of time specified in Section 2.6(j) above;
(l)use best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement, or the lifting of any suspension of the qualification of any of the Registrable Shares for sale in any jurisdiction, at the earliest possible moment; and
(m)Take such other actions as shall be reasonably requested by any Holder.
2.7.Expenses. In the case of a registration under Section 2.1 the Company shall bear all costs and expenses of each such registration, including, but not limited to, printing, legal and accounting expenses, Securities and Exchange Commission filing fees and “blue sky” fees and expenses; provided, however, that the Company shall have no obligation to pay or otherwise bear (i) any portion of the fees or disbursements of more than one counsel for the Holders in connection with the registration of their Registrable Shares, which in no event shall exceed $75,000, (ii) any portion of the underwriter’s commissions or discounts attributable to the Registrable Shares being offered and sold by the Holders of Registrable Shares, or (iii) any of such expenses if the payment of such expenses by the Company is prohibited by the laws of a state in which such offering is qualified and only to the extent so prohibited.
2.8.Transfer of Registration Rights. The registration rights of a Holder of Registrable Shares under this Agreement may be transferred as set forth below provided (1) the transferee is bound by the terms of this Agreement and (2) the Company is given written notice prior to such transfer. Accordingly, the registration rights of a Holder of Registrable Shares may be transferred (i) to any partner or affiliate of a Holder, (ii) in the case of an individual, to any member of the immediate family of such individual or to any trust for the benefit of the individual or any such family member or members, or (iii) to any other transferee which receives at least 1,000,000 Registrable Shares. Notwithstanding the foregoing, the registration rights of a Holder under this Agreement may not be transferred to an entity, or a person controlled by, under common control with or controlling such entity, which is a direct competitor of the Company.
ConfidentialPage 1510/10/2019
2.9.Market Stand-Off Agreement. Provided that all Holders are treated equally and all officers and directors of the Company are also so bound, no Holder shall, to the extent requested by any managing underwriter of the Company, sell or otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any Registrable Shares during a period (the “Stand-Off Period”) not to exceed 180 days following the effective date of a registration statement of any secondary offering of the Company under the Securities Act, (or in each case such shorter period as the Company or managing underwriter may authorize), and except in each case, for securities sold as part of the offering covered by such registration statement in accordance with the provisions of this Agreement. In order to enforce the foregoing covenant, the Company may impose stock transfer restrictions with respect to the Registrable Shares of each Holder until the end of the Stand-Off Period; provided, that (a) the Holders shall not be subject to this provision unless each officer, director and each person then owning greater than one percent (1%) of the outstanding Common Stock (on a fully diluted basis) has executed and remains bound by a comparable obligation; and (b) nothing herein shall prevent any Holder from making a distribution of Registrable Shares to an affiliate of such Holder that is otherwise in compliance with applicable securities laws, so long as such distributee agrees to be so bound.
Notwithstanding the foregoing, the obligations described in this Section 2.9 shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated in the future, or a registration relating solely to an SEC Rule 145 transaction on Form S-4 or similar forms which may be promulgated in the future.
2.10.Termination of Registration Rights. The obligations of the Company to register any Holder’s Registrable Shares pursuant to this Section 2 shall terminate at such time as all of a Holder’s Registrable Shares may immediately be sold under Rule 144 taking into account any volume limitations.
3.ASSIGNABILITY. THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS OF THE PARTIES HERETO.
4.LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
5.AMENDMENT. ANY MODIFICATION, AMENDMENT, OR WAIVER OF THIS AGREEMENT OR ANY PROVISION HEREOF, EITHER RETROACTIVELY OR PROSPECTIVELY, SHALL BE IN WRITING AND BE EXECUTED BY THE COMPANY AND THE HOLDERS OF NOT LESS THAN FIFTY PERCENT (50%) OF THE REGISTRABLE SHARES WHICH SHALL BE BINDING UPON ALL OF THE PARTIES HERETO.
6.COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS AND VIA FACSIMILE, EACH OF WHICH SHALL BE AN ORIGINAL, BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE INSTRUMENT.
7.NOTICE. ANY NOTICES AND OTHER COMMUNICATIONS REQUIRED
ConfidentialPage 1610/10/2019
OR PERMITTED UNDER THIS AGREEMENT SHALL BE EFFECTIVE IF IN WRITING AND DELIVERED PERSONALLY OR SENT BY TELECOPIER, FEDERAL EXPRESS OR REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS:
7.1.
If to Registrant, to:Clive Oosthuizen
5 Omnia Avenue, Bellville
Cape Town, South Africa 7530
Fax:
Email: clive.oothuizen@gmail.com
Attention: Clive Oosthuizen
If to the Company, to:PearTrack Security Systems, Inc.
Kyle W. Withrow
1327 Ocean Ave Suite B
Santa Monica, CA 90401
Fax: (888) 899.1399
kylew@peartracksecuritysystems.com
Attention: Kyle W. Withrow
Unless otherwise specified herein, such notices or other communications shall be deemed effective (a) on the date delivered, if delivered personally, (b) two business days after being sent, if sent by Federal Express, (c) one business day after being sent, if sent by telecopier with confirmation of good transmission and receipt, and (d) three business days after being sent, if sent by registered or certified mail. Each of the parties herewith shall be entitled to specify another address by giving notice as aforesaid to each of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
PEARTRACK SECURITY SYSTEMS, INC.
By: /s/ Kyle W. Withrow
Kyle W. Withrow
CEO
CLIVE OOSTHUIZEN
By: /s/ Clive Oosthuizen
Clive Oosthuizen
ConfidentialPage 1710/10/2019
ENIGMA-BULWARK RISK MANAGEMENT, INC.
And
PRIME AFRICAN SECURITY, LTD. JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT (the "Agreement" or this "Joint Venture Agreement"), is made and entered into as of this September 10, 2020, by and between Enigma-Bulwark Risk Management, Inc. (hereinafter "ENIGMA"), a Delaware Limited Liability Company, with its primary office located at 210 Bromwell Rd., Capetown, South Africa 7925, and Prime African Security, Inc. (hereinafter "PRIME"), a South African corporation, with a registered office located at 1092 Pretorius St, Hatfield, Pretoria, 0002, South Africa (PRIME) (ENIGMA and PRIME are each a "Party" and together "Parties" or "JV Interest Holders").
WHEREAS, ENIGMA is a security and risk management company that provides physical security, technology-systems integration and risk management advisory services to our clients. We offer our clients security officers, risk management advisory, situation analysis, proprietary and third-party technology and software solutions to understand, assess and mitigate risks, providing protective security solutions governments, corporations, and individuals; and
WHEREAS, ENIGMA desires to enter a joint venture (the "Joint Venture") with PRIME to develop plans and strategies that are designed to protect assets and people in a variety of environments within the Territory (as defined below); and
WHEREAS, PRIME is a security firm headquartered in Pretoria South Africa that provides security guards and risk management solutions for a wide variety of clients; and
WHEREAS, ENIGMA and PRIME will form a business unit named "Prime Enigma Africa" (the "Joint Venture Project") that operates as a DBA under Prime African Security, Ltd. The ownership interest of the Joint Venture Project shall be: 51% PRIME and ENIGMA 49%; and
WHEREAS, it is understood by PRIME and ENIGMA that the Joint Venture Project ("JV Project") represents a interim operational structure to the proposed Joint Venture, and it is the intent of the Parties to this Agreement to effect the formation of a new corporation ("JV NewCo"), where PRIME will own 51% and ENIGMA will own 49% of the issued and outstanding shares of the JV NewCo; and
WHEREAS, it is understood by the Parties that once the formation of the JV NewCo as a South African corporation is complete, the JV NewCo will seek to register and as a company providing security officers and security related products and services in South Africa; and
WHEREAS, it is further understood by the Parties to this Joint Venture that once it has secured the requisite registration and licenses to provide security officers and security related products and services, the Joint Venture Project shall transfer all its commercial contracts to the JV-NewCo, and the JV Project and its bank account will be closed; and
WHEREAS, The Joint Venture Project will provide the Services of ENIGMA to Customers (as defined below) in the Territory subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants and commitments set forth herein, the parties hereto agree as follows:
Enigma-Bulwark, Risk Management, Inc.Joint Venture Agreement
Prime African Security, LtdSeptember 10, 2020
Page 1 of 11
1.INTERPRETATION
1.1.In this Agreement, unless the context otherwise requires:
"Agreement" means this Joint Venture Agreement.
"Anti-Dilution" means that ENIGMA will own 51% of the Joint Venture and PRIME will not issue or sell shares of its common stock thereby diluting ENIGMA's ownership in the Joint Venture below 49%.
"Business Day" means any day other than a Saturday, Sunday or public or bank holiday in South Africa.
"Contributions" means that which is defined in Section 4, 4.1, 4.2 and 4.3 of this Agreement.
"Customer" means a government, corporation, individual or End-User.
"Data" means the data, code, text, images or sounds (together with any database made up of any of the foregoing) which are embodied in any electronic or tangible medium, and which are tested, stored, uploaded, accessed and/or processed by the Software.
"Employee Stock Option Plan" means the 2020 Enigma-Bulwark Employee Stock Option Plan defined further in Schedule "G".
"End-User" means any Person that retains the services of the Joint Venture for its own use.
"EnigmaCode" means the firmware that operates the remote locking and unlocking of the EnigmaLok technology defined in Schedule "C".
"EnigmaCode License" means the EnigmaCode technology that is part of the EnigmaLok License between Enigma-Bulwark, Ltd. and Prime Enigma Africa, Ltd. and that is further defined in Schedule "H".
"EnigmaData" means the data system that management the GPS tracking and monitoring of shipping containers further defined in Schedule "C".
"EnigmaLok" means the patented container locking technology defined in Schedule "C".
"EnigmaLok License" means the intellectual property rights License between Enigma-Bulwark, Ltd. and Prime Enigma Africa, Ltd. and that is further defined in Schedule "H".
"EnigmaTrak" means the GPS tracking defined in Schedule "C"
"EnigmaTrak License" means the intellectual property rights License between Enigma-Bulwark, Ltd. and Prime Enigma Africa, Ltd. and that is further defined in Schedule "G".
"Enigma End-User License Agreement" means an agreement properly executed between the Joint Venture and a Customer or a Customer and an End-User, which shall be enforceable under applicable law or as, otherwise approved in writing by ENIGMA. In all other respects the Joint Venture or the Customer, as the case may be, shall be entitled to include such terms and conditions in its contracts with End Users as it thinks fit provided such terms do not conflict with (or place any greater obligation upon ENIGMA than) this Agreement.
Enigma-Bulwark, Risk Management, Inc.Joint Venture Agreement
Prime African Security, LtdSeptember 10, 2020
Page 2 of 11
"Enigma Tethered Drone" means the Patent Pending US 2020/0148348Al technology owned by Enigma-Bulwark and that Enigma-Bulwark, Ltd will License to Prime Enigma Africa after it has been incorporated and is further defined in Schedule "C".
"Enigma Tethered Drone License" means the intellectual property rights License between Enigma-Bulwark, Ltd. and Prime Enigma Africa, Ltd. and that is further defined in Schedule "I".
"Fees" means the fees set forth in Schedule "B" or such other fees, costs or charges that the parties may agree to in writing from time to time.
"Force Majeure" means, in relation to either party, any circumstances beyond the reasonable control of that party, including without limitation, natural disasters (earthquakes, hurricanes, floods) wars, riots or other major upheaval including acts of terrorism, actions of administrative bodies, performance failures of parties outside the control of the contracting party, or other act of God.
"Intellectual Property" means any patent, copyright, registered design, Trademark or other industrial or intellectual property right (whether or not registered) subsisting in the Territory in respect of the Services and applications for any of the foregoing.
"JV Project" means the Joint Venture between PRIME and ENIGMA operating as a business unit of PRIME and DBA Prime-Enigma African Security.
"Joint Venture Project Interest Holders" means the parties that hold a percentage of the JV Project's operations through a DBA Prime-Enigma African Security.
"Network Based Video Surveillance" refers to the Enigma US Patent Pending No.: 2020/0169834 and ENIGMA World Patent Pending No. WO 2018/222748 Al proprietary video network technology further defined in Schedule "C" Intellectual Property.
"Network Based Video Surveillance License" means the intellectual property rights License between Enigma Bulwark, Ltd. and Prime Enigma Africa, Ltd. and that is further defined in Schedule "J".
"JV NewCo" means the corporation that the parties to the JV Project will file to incorporate and then file the necessary registrations with the South African Government in order to comply with the required registrations and licenses to operate a Security Company in South Africa.
"JV NewCo Shareholders" means Prime African Security, Ltd. and Enigma-Bulwark Risk Management, Inc.
"OEM" means any Person that acquires or licenses the Services and reuses or incorporates them into new products which such Person then markets, sells and distributes.
"Operating Agreement" means the operating agreement that the Joint Venture Project will be governed by and will be in form of Schedule "B".
"Person" means an individual or a firm, corporation, partnership, The Joint Venture, assoc1at10n, trust, unincorporated association, government, state or agency of a government or state or any other entity or organization.
Enigma-Bulwark, Risk Management, Inc.Joint Venture Agreement
Prime African Security, LtdSeptember 10, 2020
Page 3 of 11
"PRIME Historical Business" means the commercial business that Prime African Security, Ltd. has as of the date of the signing of the PRIME-ENIGMA Joint Venture Agreement and is identified as revenue that is sequestered and separate and apart from use in the operations of the PRIME-ENIGMA Joint Venture Project or as part of the JV NewCo.
"Prime Enigma Africa" means the name of the business ("DBA") that the proposed Joint Venture Project will operate under for the period until the JV NewCo has been incorporated, and the requisite registrations and licenses that will permit the JV NewCo to operate a security company in South Africa., but no later than December 31, 2020.
"Prime-Enigma African Security Bank Account" means the corporate bank account that will be jointly opened and controlled equally by PRIME and ENIGMA.
"Purchase Order Form" means a document that constitutes an order placed by the Joint Venture pursuant to the terms of this Agreement.
"Reseller" means any Person that that acquires or licenses the Services for resale to its customers.
"Restricted Information" means all proprietary, nonpublic information, whether disclosed in writing, orally, by electronic means or otherwise, concerning the parties' businesses, products, assets and/or equipment, including but not limited to, all tangible, intangible, visual, electronic, present or future information such as: (a) trade secrets; (b) financial information, including pricing, pricing strategies, revenue or credit information; (c) technical information, including research, development, procedures, algorithms, data, designs, inventions, processes, formulas and know-how; (d) business information, including operations, planning, marketing interests, clients, suppliers and products; and (e) the terms of any definitive agreement between the parties and the discussions, negotiations and proposals related to such agreement. Restricted Information disclosed to the other party must be clearly identified. Written Restricted Information must be clearly marked in a conspicuous place with an appropriate legend identifying the information as confidential. Restricted Information that is not written must be identified as Restricted Information at the time of disclosure and confirmed in a writing delivered to the receiving party within fifteen (15) days following its disclosure.
"Services" means the services detailed in Schedule A, as such schedule may be supplemented from time to time in accordance with clause 7.1, including, but not limited to, physical security officers, risk management advisory, risk planning, Strategic Planning and Situational Analysis, software, documentation, managed software as a service facility Custom Software, communication services, GPS Hardware, patented cargo container locking technology and other such services.
"SmarTrak-ICS" means the ENIGMA SmarTrak Intelligent Container System, including GPS based tracking, patented container locking and communication technology communication, data management, and global mapping software.
"Smart Video" means Artificial Intelligence or Augmented Intelligence powered video and camera technology and video data management and associated software and hardware.
"Systems Integrator" means any Person that combines various components and programs into a functioning system, customized for a particular customer's needs.
"Territory" means South Africa.
Enigma-Bulwark, Risk Management, Inc.Joint Venture Agreement
Prime African Security, LtdSeptember 10, 2020
Page 4 of 11
"Tethered Drone" means tethered drone platforms owned by third parties and integrated into the Service and Product Offerings.
"Tracking/Locking Hardware/Software" means the physical hardware devises that are part of the SmarTrak-ICS platform, including EnigrnaTrak, EnigrnaLok, EnigmaCode and EnigmaData, sold by ENIGMA to the Joint Venture and subsequently resold to Customers by the Joint Venture that enables the remote tracking and securing of assets using GPS/ GPRS/ tracking, monitoring and patented locking M2M technology.
"VAR" means a Person that purchases or licenses the Services and resells the Services after incorporating other hardware and/or software into the Services or the Services into other hardware.
"Web Domain" means the web addresses of the System, having its URL at www.primeafrican.co.za or as amended from time to time to include www.prime-enigmaafricansecurity.co.za.
1.2.Any reference in this Agreement to "writing" includes a reference to e-mail, facsimile transmission or comparable means of communication.
1.3.In this Agreement the masculine includes the feminine and the neuter, and the singular includes the plural and vice versa as the context admits or requires.
1.4.The index and headings to the clauses and Appendices to and Schedules of this Agreement are for convenience only and will not affect its construction or interpretation.
1.5.References to a statute or statutory provision include, unless the context otherwise requires, a reference to that statute or statutory provision as from time to time amended, modified, extended, re-enacted, consolidated and all statutory instruments, orders, by-laws, directions and notices made pursuant to it whether made before or after the date of this Agreement which are in force prior to the date of this Agreement.
1.6.Any reference in this Agreement to a clause or Schedule or Schedule is a reference to a clause or Schedule or Schedule of this Agreement and references in any Schedule or Schedule to clauses, sections or paragraphs relate to the clauses, sections or paragraphs in that Schedule or Schedule.
1.7.The Schedules and Schedules form part of this Agreement and will have the same force and effect as if expressly set out in the body of this Agreement and any reference to this Agreement will include the Schedules and Schedules.
1.8.Any reference to a "month" is a reference to the period of a calendar month.
2.FORMATION OF JOINT VENTURE
2.1.The joint venture formed by this Agreement (the "Joint Venture") will conduct its business under the name PRIME AFRICAN SECURITY, and will have its registered address, initially, at 1092 Pretorius St, Hatfield, Pretoria 0002, South Africa. The Joint Venture shall be considered a joint venture between the Parties in all respects, and in no event, shall this Agreement be construed to create a partnership or any other fiduciary relationship between the Parties.
Enigma-Bulwark, Risk Management, Inc.Joint Venture Agreement
Prime African Security, LtdSeptember 10, 2020
Page 5 of 11
2.2.The Joint Venture shall be formed by:
2.2.1.PRIME and ENIGMA entering this Joint Venture Agreement, which will operate as an operating unit of Prime African Security, Ltd., until the Parties incorporate a South African corporation or Limited Liability Company and file the requisite registration requirements to operate a Security Company in South Africa.
2.2.2.PRIME and ENIGMA shall enter an Operating Agreement as Exhibit "C", that will govern the Joint Venture and will govern how the Joint Venture business is conducted and will supersede the Bylaws of Prime African Security, Ltd.
2.2.3.PRIME and ENIGMA shall enter a Shareholder Agreement as Exhibit "D" to the Joint Venture Agreement.
2.2.4.PRIME and ENIGMA shall Opening a Corporate bank account in the name of PRIME-ENIGMA AFRICAN SECURITY with 2 Signatories, one signatory representing PRIME and one representing ENIGMA. How the bank account is controlled and the funds, if any, are allocated or applied to operational expenses or distributed in accordance with Clause 6.
2.2.5.A financial officer from PRIME and ENIGMA will have access to view activity on the online banking.
3.PURPOSE
The Joint Venture shall be formed to develop and execute commercial opportunities in the South African Security and Risk Management marketplace and products and services technologies and exploit business relationships to achieve this goal.
4.CONTRIBUTIONS
The Parties hereto shall each make an initial contribution to the Joint Venture as follows:
4.1.ENIGMA' s ContributionInternational experience in risk management for large corporations in high-risk environments, prospective customer relationships. License to the patented remote monitoring technology of EnigmaLok and EnigmaCode License to the Trade Secrets around a battery management technology and know-how. Experience in the development of Business Plans, Situational Analysis, Market Analysis, Go to Market Strategy and financial models. Five Hundred thousand (500,000) Stock Options as part of the Enigma-Bulwark, Ltd. Employment Common Stock Option agreement.
4.2.. PRIMES's ContributionExperience in security services and technology, management of security officers and CCTV and other video technologies. The mature relationships with the South African government, and with local regulatory institutions, that the principals of Prime have developed will be utilized to effect commercial success of the proposed Joint Venture.
5.DUTIES OF THE JOINT VENTURE
5.1.The Joint Venture Project shall use commercially reasonable efforts to promote, market and sell the Products and Services, detailed in Exhibit "A" and pursuant to the terms of this Agreement.
Enigma-Bulwark, Risk Management, Inc.Joint Venture Agreement
Prime African Security, LtdSeptember 10, 2020
Page 6 of 11
5.2.Except as expressly provided for elsewhere in this Agreement, The Joint Venture shall, at its own cost, train those of its employees who will be engaged in promoting, marketing and selling the Services products to use and demonstrate the Services to a professional standard.
5.3.The Joint Venture shall, at its own cost, conduct promotion and marketing of the Services in the Territory with reasonable care and diligence and shall provide such resource and expertise as reasonably necessary to ensure a professional implementation of the Services and shall provide after-sales support to Customers and cultivate and maintain good relations with Customers and potential Customers in the Territory in accordance with reasonable commercial principles.
5.4.The Joint Venture shall be entitled to perform its duties hereunder in such manner, as it considers approp1iate subject to the provisions of this Agreement.
5.5.The Joint Venture shall be responsible for obtaining all licenses, permits and approvals, which are necessary for the performance of its duties under this Agreement.
6.FISCAL YEAR; ACCOUNTING; ALLOCATION OF JV PROJECT PROFITS
Any and all Adjusted Net Income accruing to the JV Project shall be distributed to the Parties, 51% to PRIME and 49% to ENIGMA, on a quarterly basis. Distributions shall be made within thirty (30) days after the end of each calendar quarter: Distribution shall be made after a determination of Adjusted Net Income has been determined by a formula defined in section 6.1.
6.1.Adjusted Net Income. The Adjusted Net Income shall be defined as Net Revenue, less general and administrative expense, sales and marketing, a cash reserve equal to twenty (20%) percent of the pro forma operating budget, and the projected tax allocation for the quarterly and fiscal period.
6.2.Fiscal Year. The fiscal year of JV Project shall be the calendar year unless otherwise determined by the JV Interest Holders (the "Fiscal Year").
6.3.Method of Accounting. It is anticipated that JV Project will use the accrual method of accounting to report income and deductions for tax purposes Management may change accounting methods if the Management determines such change to be in the best interests of JV Project or its JV Interest Holders.
6.4.Books of Account; Records. JV Project shall keep proper books of account at the principal office of PRIME, which shall be open for reasonable examination and copying by any JV Interest Holder or its authorized representative. PRIME may charge its reasonable costs of copying and mailing any such books and records.
6.5.Quarterly Reports. Within 30 days following the completion of each Fiscal Quarter, JV Project shall deliver to each JV Interest Holder a report containing the following: (i) a balance sheet; (ii) a statement of income and cash flows; and (iii) any other pertinent inforn1ation regarding the JV Project's activities.
6.6.Tax Information. Within 90 days after the end of each Fiscal Year, JV Project shall deliver to each JV Interest Holder with respect to such Fiscal Year a statement showing all items of income, gain, loss, deduction and credit of PRIME for income tax purposes, together with all other information regarding JV Project necessary for the preparation of PRIME's tax returns. PRIME shall cause all tax returns and reports required to be filed by PRIME to be prepared and timely filed with the appropriate authorities and shall, upon the reasonable request of any JV Interest Holder, furnish to such JV Interest Holder such tax returns and reports promptly after the filing of the same. PRIME shall retain such tax returns and reports for the PRIME's three most recent tax years.
Enigma-Bulwark, Risk Management, Inc.Joint Venture Agreement
Prime African Security, LtdSeptember 10, 2020
Page 7 of 11
6.7.Allocation of Profits and Losses.
6.7.1.The Profits of the JV Project as set out in the reports issued under Clause 6.4, if any, shall be allocated among the JV Interest Holders pro rata to their Interest Holdings in the JV Project. Immediately after making such allocations is, as nearly as possible, equal to if JV Project only maintained a base operating budget for the operations of the JV Project.
6.7.2.The JV Projects management will develop an annual budget for the operations of the JV Project which will include a capital reserve equal to twenty (20%) percent of the annual budget. "Profits" and "Losses" shall mean an amount equal to the PRIME's taxable income or loss, respectively, for any period from all sources, determined in accordance with South African Tax Code, adjusted in the following manner: (i) the income of the PRIME that is exempt from income tax or not otherwise taken into account in computing Profits and Losses pursuant to this definition shall be added to such taxable income or loss.
6.8.Distributions
6.8.1.Distributions shall be made with timing and in accordance with surplus funds available in the JV Project account equal to three (3) months operating capital plus twenty (20%) percent of the annual operating budget, the Company may make distributions of Net Cash Flow, which distributions shall be made quarterly.
6.8.2.Definition of Net Cash Flow. "Net Cash Flow" of the JV Project as determined for any period shall be computed by deducting from the gross revenues received by the JV Project during each quarterly period from all sources all of the following items: (a) all operating expenses of the business accrued or payable during such period, taxes payable by PRIME, and insurance premiums, but excluding depreciation and amortization allowances, (b) interest and principal payments on indebtedness of the PRIME (including loans that may have been made by management and accrued during such period, (c) proceeds received from investment into the PRIME other than insiders or management, (d) additions to Reserves, (e) anticipated working capital and fixed asset requirements for future periods as determined by the annual operating annual budget of the JV Project, (f) those attributable to the PRIME Historical Business.
7.MANAGEMENT
The following individuals in the following positions will comprise the Joint Venture's management (the "Management Team").
7.1.The Executive Management Team will be structured as follows:
7.1.1.Godden Sibanda, Chief Executive Officer & Director
7.1.2.Clive Oosthuizen, President & Director
7.1.3.Calli R. Bucci, Co-Chief Financial Officer
8.RESPONSIBILITIES OF THE PARTIES
8.1.The Parties will each have the following responsibilities under the Joint Venture:
8.1.1.ENIGMAS's Responsibilities:
Enigma-Bulwark, Risk Management, Inc.Joint Venture Agreement
Prime African Security, LtdSeptember 10, 2020
Page 8 of 11
8.1.1.1.ENIGMA is charged with delivering the products and services defined in Schedule "A".
8.1.2.PRIME's Responsibilities:
8.1.2.1.ENIGMA is charged with delivering the products and services defined in Schedule "A".
8.2.The Parties will use each of their best endeavors to promptly form JV NewCo no later than September 30, 2020, and file all requisite registrations, and license applications that will allow JV NewCo to operate a security company in South Africa.
9.ANTI-DILUTION
During the period whereby the Joint Venture between PRIME and ENIGMA is active the Joint Venture will not issue new Joint Venture Interests, without written consent from ENIGMA, that would result in ENIGMA owning less than 49% of the issued capital stock of the Joint Venture.
10.NON-EXCLUSIVITY
No exclusivity is formed by virtue of this Joint Venture Agreement and neither Party shall be obligated to make offers to the other related to any business outside of South Africa.
11.TERM
This Agreement shall commence on the date first written above and remain in full force and effect for an initial period of three years (the "Initial Term"). At the end of the Initial Term, this Agreement will automatically renew in one-year increments (each, a "Renewal Term"), unless and until this Agreement is terminated in accordance with Section 8 hereinafter.
12.TERMINATION
Either Party shall have the right to terminate this Agreement, effective as of the end of the Initial Term or any Renewal Term, by providing the other with written notice of termination at least thirty (30) days prior to the end of such Initial Term or Renewal Term. Neither Party shall have the right to terminate this Agreement at any other time unless such termination is mutually agreed to by the Parties hereto. The Joint Venture shall terminate upon termination of this Agreement.
13.CONFIDENTIAL INFORMATION
The Non-Disclosure Agreement entered into by the Parties as of in August 2020 (the "NDA") is applicable to the Joint Venture and shall apply in full force and effect to any and all Confidential Information (as defined in the NDA) exchanged or otherwise accessed by a Party under this Agreement.
14.FURTHER ACTIONS
The Parties shall execute any documents and take all appropriate actions as may be necessary to give effect to the Joint Venture.
Enigma-Bulwark, Risk Management, Inc.Joint Venture Agreement
Prime African Security, LtdSeptember 10, 2020
Page 9 of 11
15.ASSIGNMENT
Neither Party shall assign or transfer any of its rights or obligations hereunder without the prior written consent of the other Party, except to a successor in ownership of all or substantially all of the assets of the assigning Party if the successor in ownership expressly assumes in writing the terms and conditions of this Agreement. Any such attempted assignment without written consent will be void. This Agreement shall inure to the benefit of and shall be binding upon the valid successors and assigns of the Parties.
16.GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the South Africa, without regard to conflicts of law principles.
17.COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which, when taken together, shall constitute one instrument.
18.SEVERABILITY
The Parties recognize the uncertainty of the law with respect to certain provisions of this Agreement and expressly stipulate that this Agreement will be construed in a manner that renders its provisions valid and enforceable to the maximum extent possible under applicable law. To the extent that any provisions of this Agreement are determined by a court of competent jurisdiction to be invalid or unenforceable, such provisions will be deleted from this Agreement or modified so as to make them enforceable and the validity and enforceability of the remainder of such provisions and of this Agreement will be unaffected.
19.NOTICES
All notices, requests, demands and other communications under this Agreement must be in writing and will be deemed duly given, unless otherwise expressly indicated to the contrary in this Agreement: (i) when personally delivered; (ii) upon receipt of a telephone facsimile transmission with a confirmed telephonic transmission answer back; (iii) three (3) days after having been deposited in the mail, certified or registered, return receipt requested, postage prepaid; or (iv) one (1) business day after having been dispatched by a nationally recognized overnight courier service, addressed to a Party or their permitted assigns at the address for such Party first written above.
PRIME AFRICAN SECURITY, LTD.
Attention: Godden Sibanda, President
Prime African Security, Ltd.
1092 Pretorius St.
Hatfield, Pretoria 0002 South Africa
Fax: 011.27. (086) 547 7790
Email: goddens@primeafrican.co.za
Enigma-Bulwark, Risk Management, Inc.Joint Venture Agreement
Prime African Security, LtdSeptember 10, 2020
Page 10 of 11
ENIGMA-BULWARK RISK MANAGEMENT, INC.
Attention: Clive Oosthuizen, CEO
Enigma-Bulwark Risk Management, Inc.
210 Bromwell Rd.,
Capetown, South Africa 7925
Fax: 01 310 899 8167
Email: clive.oosthuizen@gmail.com
20.HEADINGS
Paragraph headings used in this Agreement are for reference only and shall interpretation of this Agreement.
21.ENTIRE AGREEMENT
This Agreement contains the entire agreement and understanding between the Parties, superseding all prior contemporaneous communications, representations, agreements, and understandings, oral or written, between the Parties with respect to the subject matter hereof. This Agreement may not be modified in any manner except by written amendment executed by each Party hereto.
In Witness Whereof, the Parties have caused this Joint Venture Agreement to be duly executed and delivered as of the date first written above.
PRIME AFRJCAN SECURITY, LTD.
/s/ Godden Sibanda 11/10/2020
Godden Sibanda
CEO/President
ENIGMA-BULWARK RJSK MANAGEMENT, INC.
/s/ Clive Oosthuizen 11/10/2020
Clive Oosthuizen
CEO
Enigma-Bulwark, Risk Management, Inc.Joint Venture Agreement
Prime African Security, LtdSeptember 10, 2020
Page 11 of 11
SCHEDULES
A.Goods and Services
B.Fees for Goods and Services
C.Intellectual Property
a.Enigma-Bulwark Container Locking Technology Patent
b.Tethered Drone Patent Pending
c.Network Based Video Surveillance Patent Pending
d.EnigmaTrak Trade Secret Technology
D.Prime African Security, Ltd. By Laws/N Shareholder Agreement
E.Non-Disclosure Agreement
F.N Stake Holders
G.Enigma-Bulwark, Ltd. Employee Stock Option Agreement
H.EnigmaTrak License
I.EnigmaLok License
J.Tethered Drone License
K.Network Based Video Surveillance and Logistics for Multiple Users License
SCHEDULE "A"
GOODS & SERVICES
1.Advisory/Consul ting
2.Security Officers
3.Security Management
4.Systems Integration
5.Technology
6.Hardware
7.Software
SCHEDULE "B"
FEES FOR SERVICES
1.Advisory/Consul ting
2.Security Officers
3.Security Management
4.Systems Integration
5.Technology
6.Hardware
7.Software
SCHEDULE "C"
INTELLECTUAL PROPERTY
1.EnigrnaLok
2.Tethered Drone
3.Video Network
4.EnigrnaTrak
SCHEDULE "D"
PRIME AFRICAN SECURITY, LTD. BYLAWS/
JV SHAREHOLDER AGREEMENT
SCHEDULE "E"
NONDISCLOSURE AGREEMENT
SCHEDULE "F"
JV STAKE HOLDER
1.Prime African Security, Ltd.
2.Enigma-Risk Management, Inc.
SCHEDULE "G"
ENIGMA-BULWARK, LTD.
EMPLOYEE STOCK OPTION PLAN
SCHEDULE "H"
ENIGMATRAK LICENSE
SCHEDULE "I"
ENIGMALOK LICENSE
SCHEDULE "J"
TETHERED DRONE LICENSE
SCHEDULE "K"
NETWORK BASED VIDEO SURVEILLANCE AND
LOGISTICS FOR MULTIPLE USERS LICENCE
EXHIBIT 31.1
CERTIFICATION PURSUANT TO
18 U.S.C. ss 1350, AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Clive Oosthuzien., certify that:
1.I have reviewed this quarterly report on Form 10-Q of Enigma-Bulwark, Ltd.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
/s/ Clive Oosthuzien.
Clive Oosthuzien
President and CEO
June 6, 2023
EXHIBIT 31.2
CERTIFICATION PURSUANT TO
18 U.S.C. ss 1350, AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Calli Bucci, certify that:
1.I have reviewed this quarterly report on Form 10-Q of Enigma-Bulwark, Ltd.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
/s/ Calli Bucci
Calli Bucci
Chief Financial Officer
June 6, 2023
EXHIBIT 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Clive Oosthuzien., hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)the Quarterly Report on Form 10-Q of Enigma-Bulwark, Ltd. for the period ended March 31, 2016 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Enigma-Bulwark, Ltd.
/s/ Clive Oosthuzien
Clive Oosthuzien
President and CEO
June 6, 2023
A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906, has been provided to Enigma-Bulwark, Ltd. and will be retained by Enigma-Bulwark, Ltd. and furnished to the Securities and Exchange Commission or its staff upon request.
EXHIBIT 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Calli Bucci, hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)the Quarterly Report on Form 10-Q of Enigma-Bulwark, Ltd. for the period ended March 31, 2016 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Enigma-Bulwark, Ltd.
/s/ Calli Bucci
Calli Bucci
Chief Financial Officer
June 6, 2023
A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906, has been provided to Enigma-Bulwark, Ltd. and will be retained by Enigma-Bulwark, Ltd. and furnished to the Securities and Exchange Commission or its staff upon request.