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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934

 

Date of Report (Date of earliest event reported): January 19, 2022

 

mPHASE TECHNOLOGIES INC.

(Exact name of Registrant as specified in its charter)

 

New Jersey   000-30202   22-2287503

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

9841 Washington Boulevard, #200

Gaithersburg, MD 20878

(Address of principal executive offices, including zip code)

 

(301) 329-2700

(Registrant’s telephone number, including area code)

 

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

 

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

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
None   None   None

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

 

Emerging growth company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

 
 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

Chief Executive Officer’s Amendment to Employment Agreement.

 

On January 19, 2022, mPhase Technologies, Inc. (the “Company”), pursuant to the approval of its Board of Directors (the “Board”), entered into an amended and restated employment agreement with Anshu Bhatnagar, Chief Executive Officer of the Company, modifying the terms of the Employment Agreement entered into between the Company and Mr. Bhatnagar dated January 11, 2019 (collectively, the “Bhatnagar Amended Employment Agreement”). The Bhatnagar Amended Employment Agreement, which becomes effective retroactively as of January 1, 2022 (the “Effective Date”) provides for an increase to Mr. Bhatnagar’s annual cash base salary to $600,000. Further, Mr. Bhatnagar is eligible to receive additional increases to base salary, to be determined in the sole discretion of the Company’s Board, which allow for increase in base salary as follows: base salary shall increase to $700,000.00 on the first anniversary of the effective date of the Amended Employment Agreement; and base salary shall increase to $800,000.00 on the second anniversary of the effective date of the Amended Employment Agreement. Additionally, the Amended Employment Agreement provides that Mr. Bhatnagar shall also be entitled to receive stock-based compensation in the form of in shares of common stock of the Company, and an annual cash bonus of up to 100% of base salary, which shall be determined by the Board. The Term of the Bhatnagar Amended Employment Agreement shall expire on December 31, 2032.

 

Chief Financial Officer’s Amendment to Employment Agreement.

 

On January 19, 2022, the Company, pursuant to the approval of the Board, entered into an amended and restated employment agreement with Angelia Hrytsyshyn, Chief Financial Officer of the Company, modifying the terms of the Employment Agreement entered into between the Company and Ms. Hrytsyshyn dated November 16, 2021 (collectively, the “Hrytsyshyn Amended Employment Agreement”). The Hrytsyshyn Amended Employment Agreement, which becomes effective January 21, 2022 provides for an increase to Ms. Hrytsyshyn’s annual cash base salary to $250,000. Further, Ms. Hrytsyshyn is eligible to receive an annual performance-based cash bonus equal to 50% of base salary. The Term of the Hrytsyshyn Amended Employment Agreement shall be “at will” and can be terminated by the Company or Ms. Hrytsyshyn at any time for any reason provided that Ms. Hrytsyshyn may not voluntarily terminate the agreement without thirty (30) days prior written notice delivered to the Company.

 

The foregoing contains only a brief description of the material terms of and does not purport to be a complete description of the rights and obligations of the parties to the Bhatnagar Amended Employment Agreement and the Hrytsyshyn Amended Employment Agreement, and such descriptions are qualified in their entirety by reference to the full text of such agreements, which are filed hereto as Exhibits 10.3 and 10.4, respectively, and incorporated herein by reference.

 

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

 

The information set forth above under Item 1.01 is hereby incorporated by reference into this Item 5.02.

 

Director Appointment

 

On January 19, 2022, the Board appointed Mr. James F. Engler as a member of the Board (the “Appointment”). Mr. Engler will serve as a non-executive director of the Company.

 

James F. Engler, 39, Director

 

James F. Engler, Jr., age 39, is currently Vice President – Chief Financial Officer of Rosemore Inc., a privately held investment management firm. Mr. Engler has 3 years of experience in Energy and Investment Management senior management following a 15-year career in public accounting. Previously, he was a senior manager at PricewaterhouseCoopers LLP serving large SEC filers and private companies in the power and utility industry. He has an undergraduate degree from Towson University and is a Certified Public Accountant.

 

 
 

 

The Board believes that Mr. Engler’s experience in financial leadership roles makes him ideally qualified to help lead the Company towards continued growth and success.

 

Family Relationships

 

Mr. Engler does not have a family relationship with any of the current officers or directors of the Company.

 

Related Party Transactions

 

There are no related party transactions with regard to Mr. Engler reportable under Item 404(a) of Regulation S-K.

 

Compensatory Arrangements

 

In connection with the Appointment, the Company and Mr. Engler entered into a director agreement (“Form of Director Agreement”) whereby, as compensation for his services as a member of the Board, Mr. Engler shall receive 200,000 shares of the Company’s common stock options, par value $0.01 per share (the “Director Options”) and will vest monthly over three years that Mr. Engler serves as Director. Additionally, Mr. Engler shall be paid an annual fee of $50,000, to be paid $12,500 per quarter, as compensation for his services as a Director of the Company. It was further agreed that until the Company has raised $10 million, or within the first six months, whichever comes first, the Company will pay the annual compensation through the issuance of restricted shares of Company’s common stock in lieu of cash consideration. So long as Mr. Engler serves as a member of any committee of the Board, the amount of quarterly fee shall be increased by $1,250. Further, the Company has awarded Mr. Engler 200,000 cashless common stock options to be vested in accordance with a set monthly schedule.

 

Additionally, pursuant to the approval of the Board, each independent director’s existing director agreement will be amended such that each independent director will receive compensation on the same terms as set forth in the Form of Director Agreement.

 

The foregoing contains only a brief description of the material terms of and does not purport to be a complete description of the rights and obligations of the parties to the Form of Director Agreement, and such description is qualified in its entirety by reference to the full text of the Form of Director Agreement, which is filed hereto as Exhibit 10.5 and incorporated herein by reference.

 

Appointment to Committees

 

On January 20, 2022, the Company’s Board ratified and approved the establishment of the Audit Committee, Compensation Committee, and Nominating and Governance Committee as committees of the Board, the adoption of the charters for such committees and the appointment of the Company’s directors to such committees.

 

The Board appointed Chester White, Thomas Fore, and James Engler to serve on the Audit Committee of the Board of Directors of the Company, with Mr. Engler serving as the Chair of the Audit Committee.

 

The Board appointed Thomas Fore, James Engler and Suhas Subramanyam to serve on the Compensation Committee of the Board of Directors of the Company, with Mr. Fore serving as the Chair of the Compensation Committee.

 

The Board appointed Suhas Subramanyam, James Engler and Thomas Fore to serve on the Nominating and Corporate Governance Committee of the Board of Directors of the Company, with Mr. Subramanyam serving as the Chair of the Nominating and Corporate Governance Committee.

 

The Company’s respective charters of each of the Audit Committee, a Compensation Committee, and a Nominating and Corporate Governance Committee, are attached hereto as Exhibit 3.01, Exhibit 3.02, and Exhibit 3.03, and is incorporated herein by reference.

 

 
 

 

Item 8.01 Other Events.

 

On January 20, 2022, the Company issued a press release titled “mPhase Names Financial Industry Veteran James Engler, Jr to its Board of Directors.” A copy of the press release is filed hereto as Exhibits 99.1 and is incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit

Number

  Description
3.01   Audit Committee Charter*
3.02   Compensation Committee Charter*
3.03   Nominating and Corporation Governance Committee Charter*
10.1   Employment Agreement dated as of January 11, 2019 between the Company and Anshu Bhatnagar. (Incorporated by reference to Exhibit 10.1 to Form 8-K filed January 14, 2019).
10.2    Employment Agreement between Company and Angelina Hrytsyshyn dated November 16, 2021 (Incorporated by reference to Exhibit 10.2 to Form 10-Q filed November 22, 2021)
10.3   Amended and Restated Employment Agreement between the Company and Anshu Bhatnagar*
10.4   Amended and Restated Employment Agreement between the Company and Angelia Hrytsyshyn*
10.5   Form of Director Agreement*
99.1   Press Release titled “mPhase Names Financial Industry Veteran James Engler, Jr. to its Board of Directors” filed on January 20, 2022*
104   Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

* filed herewith

 

 
 

 

SIGNATURES

 

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

 

  mPhase Technologies, Inc.
     
Date: January 25, 2022 By: /s/ Anshu Bhatnagar
  Name:  Anshu Bhatnagar
  Title: Chief Executive Officer

 

 

 

 

Exhibit 3.01

 

MPHASE TECHNOLOGIES, INC.

 

AUDIT COMMITTEE CHARTER

 

1. Purpose
   
  The purpose of the Audit and Finance Committee (the “Committee”), in its capacity as a committee of the Board of Directors (the “Board”) of mPhase Technologies, Inc. (the “Company”), is to oversee (i) management’s conduct of the Company’s financial reporting process, including reviewing the financial reports and other financial information provided by the Company and the Company’s systems of internal accounting and financial controls, (ii) the Company’s independent auditors’ qualifications and independence and the audit and non-audit services provided to the Company, (iii) the performance of the Company’s independent auditors, (iv) the qualifications and performance of any firm used to assist with management’s assessment of internal controls, (v) the Company’s financing proposals and to refer to the Board for approval when appropriate, and (iv) the Company’s analysis and mitigation strategies for enterprise risk, reporting any findings or recommendations to the Board.
   
2. Membership
   
2.1 The Committee shall have at least three (3) members at all times, each of whom must be a member of the Board and must be independent as required by applicable law and applicable stock exchange listing rules (the “Listing Rules”). A member of the Committee shall be considered independent if (a) he or she is not an employee of the Company; (b) he or she does not accept, directly or indirectly, any consulting, advisory or other compensatory fee from the Company or its subsidiaries other than in connection with serving on the Committee, any other Board committee or as a member of the Board; (c) he or she is not an “affiliated person” of the Company or any Company subsidiary as defined by rules of the Securities and Exchange Commission (“SEC”), including rules promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Listing Rules; and (d) he or she meets all other requirements for independence imposed by law and the Listing Rules from time to time.
   
2.2 All members of the Committee shall have a practical knowledge of finance and accounting and be able to read and understand fundamental financial statements from the time of their respective appointments to the Committee. In addition, members may be required to participate in continuing education if required by applicable law or the Listing Rules.
   
2.3 At least one (1) member of the Committee shall be an “audit committee financial expert” as defined by Item 407(d)(5)(ii) of SEC Regulation S-K, unless otherwise determined by the Board, and at least one member shall meet the financial sophistication standards under the Listing Rules.
   
2.4 Each member of the Committee shall be appointed by the Board and shall serve until the earlier to occur of the date on which he or she shall be replaced by the Board, resigns from the Committee or resigns from the Board.

 

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3. Meetings
   
3.1 The Committee shall meet as frequently as required, but no less than four (4) times annually and at least quarterly. The Board shall name a chairperson of the Committee, who shall prepare and/or approve an agenda in advance of each meeting and shall preside over meetings of the Committee. In the absence of the chairperson, the Committee shall select a chairperson for that meeting. A majority of the members of the Committee shall constitute a quorum and the act of a majority of the members present at a meeting where a quorum is present shall be the act of the Committee. The Committee may also act by unanimous written consent of its members. The Committee shall maintain minutes or other records of meetings and activities of the Committee. A majority of the members of the Committee shall constitute a quorum.
   
3.2 The Committee is governed by the rules regarding meetings (including meetings by conference telephone or similar communications equipment), action without meetings, notice, waiver of notice, and quorum and voting requirements as are applicable to the Board. The Committee is authorized and empowered to adopt its own rules of procedure not inconsistent with (a) any provision of this Charter, (b) any provision of the Amended and Restated Certificate of Incorporation, as amended and Second Amended and Restated Bylaws of the Company, or (c) the New Jersey Corporation Law.
   
3.3 The Committee shall, through its chairperson, report regularly to the Board following the meetings of the Committee, addressing such matters as the quality of the Company’s financial statements, the Company’s compliance with legal or regulatory requirements, the performance and independence of the outside auditors, the performance of any internal audit function and other matters related to the Committee’s functions and responsibilities.
   
3.4 The Committee shall at least annually meet separately with each appropriate member of the Company’s management, the Company’s chief financial officer and the Company’s outside auditors in separate executive sessions to discuss any matters that the Committee or each of these groups believes should be discussed privately.
   
4. Responsibilities, Duties And Powers
   
4.1 The Committee’s principal responsibility is one of oversight and the Committee recognizes the Company’s management is responsible for establishing and maintaining adequate internal control over financial reporting and preparing the Company’s financial statements. The Committee also recognizes that the Company’s independent auditors are responsible for auditing and/or reviewing those financial statements to confirm that they present fairly, in all material respects, the financial position of the Company and its subsidiaries and that they are prepared in accordance with U.S. generally accepted accounting principles (the “U.S. GAAP”). In carrying out these oversight responsibilities, the Committee is not providing any expert or special assurance as to the Company’s financial statements or any professional certification as to the independent auditors’ work.
   
4.2 The designation or identification of a member of the Committee as an “audit committee financial expert” does not impose on such person any duties, obligations, or liability that are greater than the duties, obligations, and liability imposed on such person as a member of the Committee and Board of Directors in the absence of such designation or identification and the designation or identification of a member of the Committee as an “audit committee financial expert” does not affect the duties, obligations, or liability of any other member of the Committee or Board of Directors.

 

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4.3 In discharging its responsibilities, the Committee shall have full access to any relevant records of the Company and retain outside consultants and legal, financial and other advisors at the Company’s expense, to advise the Committee. The Committee shall have the sole authority and responsibility to engage or terminate any outside advisor and to approve the terms of any such engagement and the fees of any such advisor.
   
The Committee’s specific duties, responsibilities and powers are as set forth below.
   
5. Financial Reporting
   
5.1 Review and discuss with management and the independent auditor the Company’s annual audited financial statements and related disclosures, including the Company’s disclosures under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in its Annual Report on Form 10-K and the results of the independent auditor’s audit of the Company’s annual financial statements including the accompanying footnotes and the independent auditor’s report, and determine whether to recommend to the Board that the audited financial statements be included in the Company’s annual report on Form 10-K.
   
5.2 Review and discuss with management and the independent auditor the Company’s quarterly financial statements and related disclosures, including the Company’s disclosures under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in its Quarterly Report on Form 10-Q and the results of the independent auditor’s review of the quarterly financial statements, prior to the filing of its Form 10-Q.
   
5.3 In connection with each quarterly and annual report of the Company, review the contents of the Chief Executive Officer and Chief Financial Officer personal certifications to be furnished or filed with the SEC under Sections 302 and 906 of Sarbanes-Oxley.
   
5.4 Review and discuss with management the Company’s earnings press releases, including the use of “pro forma” or “adjusted” financial information that is not prepared in accordance with U.S. GAAP, as well as financial information and earnings guidance provided to analysts and rating agencies. The Chair of the Committee may represent the entire Committee for purposes of this review.
   
5.5 Prepare the audit committee report required to be included in the Company’s annual proxy materials.
   
5.6 Review and discuss with the Company’s management and independent auditors significant accounting and reporting principles, practices and procedures applied in preparing the financial statements and any major changes to the Company’s accounting or reporting principles, practices or procedures, including those required by professional or regulatory pronouncements and actions, as brought to its attention by management or the independent auditors.

 

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5.7 Review, evaluate and discuss the nature and extent of any significant changes in U.S. accounting principles, the application of accounting principles and all critical accounting policies with the independent auditors and the Company’s management.
   
5.8 Discuss with management and the independent auditor the effect of regulatory and accounting initiatives, rule changes and U.S. GAAP matters, as well as off-balance sheet structures, on the Company’s financial statements.
   
5.9 Prior to filing an audit report relating to audited financial statements, receive, review and discuss the independent auditors’ report required to be provided by the auditors under Section 204 of Sarbanes-Oxley.
   
5.10 Review findings or communications from the independent auditors regarding any (i) fraud involving senior management and any fraud, whether caused by senior management or other employees, that causes a material misstatement of the financial statements and/or (ii) illegal acts involving senior management that come to the auditors’ attention as well as other illegal acts unless they are clearly inconsequential.
   
5.11 Establish procedures and administer a Whistleblower policy and a reporting process through an independent third party for (i) the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls, auditing matters, or suspected violations of the Company’s Code of Ethics or other policies and procedures of the Company, and (ii) the confidential, anonymous submission by employees of the Company of concerns regarding questionable accounting or auditing matters or suspected violations of the Company’s Code of Ethics or other policies and procedures of the Company. These procedures shall conform with Section 301 of SOX and all rules and regulations pursuant to the Whistleblower Program mandated by Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, including providing protection of employees against retaliation such as unlawful discharge, demotion, suspension, direct or indirect threats, harassment or discrimination.
   
5.12 Review and discuss with management any auditing, accounting or financial reporting based Current Reports on Form 8-K.
   
6. Internal Controls
   
6.1 Review annually the adequacy and quality of the Company’s financial and accounting staff, the need for and scope of internal audit reviews, and the plan, budget and the designations of responsibilities for any internal audit.
   
6.2 Review the performance and material findings of internal audit reviews.
   
6.3 Review annually with the independent auditors any significant matters regarding the Company’s internal controls and procedures over financial reporting that have come to their attention during the conduct of their annual audit, and review whether any internal control recommendations made by the auditors have been implemented by management.
   
6.4 Review major risk exposures (whether financial, operating or otherwise) and the guidelines and policies that management has put in place to govern the process of monitoring, controlling and reporting such exposures.
   
6.5 Review and evaluate at least annually the Company’s policies and procedures for maintaining and investing cash funds and for hedging.

 

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6.6 Review and discuss with management and the independent auditors the effect of accounting and regulatory initiatives and off-balance sheet structures on financial statements.
   
6.7 Review, evaluate and discuss with the independent auditors and management, management’s report on internal controls over financial reporting and the related auditor’s attestation report, as required by Section 404 of Sarbanes-Oxley. In particular, information regarding any deficiencies, weaknesses or changes in internal controls should be sought and discussed with management and the independent auditors.
     
6.8 Evaluate whether management is setting the appropriate “tone at the top” by communicating the importance of internal controls and ensuring that all supervisory and accounting employees understand their roles and responsibilities with respect to internal controls.
     
7. Independent Auditor
     
7.1 The Committee shall have the ultimate authority and responsibility for the for the appointment (subject to shareholder ratification, if applicable), retention, termination, compensation and oversight of the work of the independent auditor (including resolution of disagreements between management and the independent auditor regarding financial reporting) for the purpose of preparing or issuing an audit report or related work. The independent auditor shall report directly to the Committee.
     
7.2 Review and discuss with the independent auditors:
     
  (a) All critical accounting policies and practices to be used.
     
  (b) All alternative treatments of financial information within U.S. GAAP that have been discussed with management, ramifications of the use of such alternative disclosures and treatments and the treatment preferred by the independent auditor.
     
  (c) Other material written communications between the independent auditor and management, such as any management letter or schedule of unadjusted differences.
     
7.3 Approve all audit and permissible non-audit services to be provided by the independent auditor, establish a policy for the Committee’s pre-approval of audit and non-audit services to be provided by the independent auditor and annually review and pre-approve the audit and non-audit services that are to be covered by the pre-approval policy.
     
7.4 Obtain and review a report from the independent auditor at least annually regarding (a) the independent auditor’s internal quality control procedures; (b) any material issues raised by the most recent internal quality control review, or peer review, of the firm, or by any inquiry or investigation by governmental or professional authorities within the preceding five years respecting one or more independent audits carried out by the firm; (c) any steps taken to deal with any such issues; and (d) all relationships between the independent auditor and the Company. Evaluate at least annually the qualifications, performance and independence of the independent auditor, including considering whether the auditor’s quality controls are adequate and the provision of permitted non-audit services is compatible with maintaining the auditor’s independence and including a review and evaluation of the lead partner of the independent auditor team, taking into account the opinions of management. The Committee shall present its conclusions with respect to the independent auditor to the Board.

 

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7.5 Discuss, as needed, with the independent auditor the matters required to be discussed by Statement on Auditing Standards No. 114 (previously No. 61), as amended from time to time, relating to the conduct of the audit, including any difficulties encountered in the course of the audit work, any restrictions on the scope of activities or access to requested information and any significant disagreements with management.
   
7.6 Prior to engaging the independent auditor to perform an audit of the Company’s financial statements, (a) obtain from the independent auditor a formal written statement delineating all relationships between the accountants and the Company, consistent with Public Company Accounting Oversight Board Rule 3526; (b) actively engage in a dialogue with the independent auditor with respect to any disclosed relationships or services that may impact the auditor’s objectivity and independence; and (c) recommend that the Board take appropriate action in response to the independent auditor’s report to satisfy the Board of the independence of the auditor.
   
7.7 Oversee the rotation of the audit partners as required by law. Consider whether, in order to assure continuing auditor independence, it is appropriate to adopt a policy of rotating the independent auditing firm on a regular basis.
   
7.8 Establish hiring policies for employees or former employees of the independent auditor who participated in any capacity in the audit of the Company.
   
7.9 Discuss with the national office of the independent auditor issues on which they were consulted by the Company’s audit team and matters of audit quality and consistency.
   
7.10 Obtain from the independent auditors assurance that they have complied with Section 10A of the Exchange Act and the rules promulgated thereunder, as amended from time to time.
   
7.11 Confirm with the independent auditor that it is aware of no violations of Rule 13b2-2 under the Exchange Act relating to improper influence on the conduct of audits.
   
7.12 Meet with the independent auditor prior to the audit to discuss the proposed scope, planning and staffing of the audit, and receive confirmation from the independent auditor that no limitations have been placed on the scope or nature of their audit, plan or procedure. Review the fees and other significant compensation to be paid to the independent auditor.
   
8. Process Improvement
   
8.1 Establish regular and separate systems of reporting to the Committee by each of management and the independent auditor regarding any significant judgments made in management’s preparation of the financial statements and the view of each as to appropriateness of such judgments.

 

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8.2 Review with the independent auditor and management the extent to which changes or improvements in financial or accounting practices, as approved by the Committee, have been implemented.
   
9. Compliance with Corporate Business Conduct and Ethics Policies
   
9.1 Review with management, the independent auditors and legal counsel, as the Committee deems appropriate, actions taken to ensure compliance with any code of ethics or conduct for the Company established by the Board.
   
9.2 Review at least annually the Company’s code of ethics adopted to comply with Section 406 of the Sarbanes-Oxley Act.
   
9.3 Evaluate whether management is setting the appropriate “tone at the top” by communicating the importance of the Company’s ethics and conduct codes.
   
10. Funding
   
10.1 The Company must provide for appropriate funding, as determined by the Committee, in its capacity as a committee of the Board, for payment of (i) compensation to any registered public accounting firm engaged for the purpose of preparing or issuing an audit report or performing other audit, review or attest services for the Company; (ii) compensation to any advisers employed by the Committee; and (iii) ordinary administrative expenses of the Committee that are necessary or appropriate in carrying out its duties.
   
11. Other
   
11.1 Review and advise the Board with respect to the Company’s policies and procedures regarding compliance with applicable laws and regulations relevant to the scope of the Committee’s responsibilities.
   
11.2 Review with the Company’s internal and outside counsel legal matters that may have a material impact on the financial statements, the Company’s compliance policies and any material reports or inquiries received from regulators or governmental agencies.
   
11.3 Review and approve any and all transactions involving the Company and a related party on an ongoing basis, with particular attention to potential conflicts of interest. For these purposes, a “related party transaction” includes any transaction required to be disclosed pursuant to Item 404 of Regulation S-K.
   
11.4 Review the findings of any examinations by regulatory agencies.
   
11.5 Discuss with management and the independent auditor the Company’s major financial risk exposures and the steps management has taken to monitor and control such exposures, including the Company’s risk assessment and risk management policies.
   
11.6 Establish procedures for (a) the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters; and (b) the confidential, anonymous submission by employees of concerns regarding questionable accounting or auditing matters.
   
11.7 Respond as it determines to be appropriate (after consulting with legal counsel selected by the Committee) to any report of evidence of a material violation of the securities laws that the Committee receives from the Company’s chief legal officer, if any, or from any attorney appearing and practicing before the SEC in the representation of the Company.
   
11.8 Review, reassess the adequacy of and update this Charter periodically, at least annually, as conditions dictate and recommend any proposed changes to the Board for approval.
   
11.9 Conduct a review and evaluation, at least annually, of the performance of the Committee and its members, including a review of the compliance of the Committee with this Charter.
   
11.10 Undertake such additional actions within the scope of its primary functions as the Board or Committee shall determine.

 

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Exhibit 3.02

 

MPHASE TECHNOLOGIES, INC.

COMPENSATION COMMITTEE CHARTER

 

1. Purpose
   
  The Board of Directors (the “Board”) of mPhase Technologies, Inc. (the “Company’) has established the Compensation Committee (the “Committee”) and has adopted this Charter to reflect the Company’s commitment to “best practices” and to keep the Board informed of changes in applicable legal and regulatory requirements to Committee functions and the Company’s compensation and human resource activities. The Committee is responsible for reviewing and approving all compensation plans, policies, and programs of the Company to compensate the executive officers and the independent directors of the Board in a reasonable and cost-effective manner. The Committee’s overall objectives are to ensure the attraction and retention of superior talent, to motivate the performance of the Company’s executive officers in the achievement of the Company’s business objectives, and to align the interests of the executive officers and directors with the long-term interests of the Company’s stockholders.
   
2. Composition and Committee Meetings
   
2.1 The Committee shall consist of no less than two (2) independent members. Each member of the Committee shall meet the independence requirements of the U.S. securities laws and of any U.S. or foreign national securities exchange on which the Company’s stock may be listed from time to time. Specifically, under the NASDAQ Stock Market or NYSE MKT listing standards, the Board must affirmatively determine that all of the members of the Committee are independent. In affirmatively determining the independence of each Committee member, the Board must consider all factors specifically relevant to determining whether a director has a relationship to the Company which is material to that director’s ability to be independent from management in connection with the duties  of a Committee member, including, but not limited to: (A) the source of compensation of such director, including any consulting, advisory or other compensatory fee paid by the Company to such director; and (B) whether such director is affiliated with the Company, a subsidiary of the Company or an affiliate of a subsidiary of the Company.
   
2.2 The Chairman of the Committee shall be appointed and removed by the Board.
   
2.3 The Committee shall meet at least once each year. Additional meetings may occur as the Committee or its Chairman deems advisable. The Committee may request any officer or employee of the Company to attend a meeting of the Committee or to meet with any compensation or other consultant to the Committee. The Committee may meet in person or telephonically. The Chair or his or her designee shall preside over all meetings of the Committee. The Committee is governed by the rules regarding meetings (including meetings by conference telephone or similar communications equipment), action without meetings, notice, waiver of notice, and quorum and voting requirements as are applicable to the Board. The Committee is authorized and empowered to adopt its own rules of procedures not inconsistent with (a) any provision of this Charter, (b) any provision of the Amended and Restated Certificate Incorporation, as amended and Second Amended and Restated Bylaws of the Company, or (c) the New Jersey Corporation Law.

 

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3. Principal Functions and Responsibilities.
 
The Committee shall be responsible for the following:
   
3.1 Review, at least annually, the performance of the CEO and consider and approve the CEO’s compensation including salary, bonus, incentive and equity compensation for the following year, taking into account the Company’s performance, the effect on stockholder value, the CEO’s performance, the responsibilities undertaken by the CEO, trends in the companies considered comparable to the Company, and any other factors the Committee considers relevant to the CEO’s compensation. The CEO shall not be present during voting or deliberations on matters relating to the compensation of the CEO.
   
3.2 Review the goals and objectives to be achieved by the CEO for the following year.
   
3.3 Review with the CEO the performance of the Company’s other executive officers.
   
3.4 Review, consider and approve salary, bonus, incentive and equity compensation of executive officers other than the CEO. The CEO may be present during the voting or deliberations on the compensation of executive officers other than the CEO if the Committee so desires.
   
3.5 Review and make recommendations to the Board concerning the Company’s employee incentive compensation plans including bonuses and equity-based plans, benefit and severance plans and, as appropriate, establishing guidelines in relation thereto.
   
3.6 Review and, if appropriate, approve or recommend approval of employment agreements, severance arrangements, retirement arrangements, change in control agreements and provisions, and any special or supplemental benefits for each executive officer of the Company.
   
3.7 Review and recommend to the Board compensation (salary, bonus, incentives, and other compensation) for the non-employee directors.
   
3.8 Review and discuss with the Company’s management the compensation discussion and analysis (“CD&A”) prepared for inclusion in the Company’s annual proxy statement or annual report filed with the Securities and Exchange Commission (“SEC”), to the extent such CD&A is required by applicable law or stock exchange rules, and based on such review and discussion recommend to the Board that the CD&A be filed with such report in the form approved by the Committee. The Committee shall also produce a report to be included in the Company’s annual proxy statement or annual report filed with the SEC in accordance with applicable rules and regulations.
   
3.9 In discharging its responsibilities, have full access to any relevant records of the Company.

 

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3.10 Consider such other matters in relation to the compensation and benefit policies of the Company, and carry out such other duties as may be assigned to the Committee from  time to time by the Board.
     
3.11 The Committee will oversee the administration of the Company’s existing equity compensation plans and such other stock option or equity participation plans as may be adopted by the shareholders or the Board from time to time within the authority delegated by the Board.
     
3.12 The Committee may, in its sole discretion, retain or obtain the advice of a compensation consultant, independent legal counsel or other adviser (collectively, “Compensation Consultant”) to advise the Committee. If the Committee does retain or obtain the advice of a Compensation Consultant, the Committee shall be directly responsible for the appointment, termination, compensation and oversight of the work of any such Compensation Consultant. The Company must provide for appropriate funding, as determined by the Committee, for payment of reasonable compensation to a Compensation Consultant.
     
3.13 The Committee may select a Compensation Consultant only after taking into consideration all relevant factors with respect to such Compensation Consultant’s independence, including the following:
     
  (i) The provision of other services to the Company by the person that employs the Compensation Consultant;
     
  (ii) The amount of fees received from the Company by the person that employs the Compensation Consultant, as a percentage of the total revenue of the person that employs the Compensation Consultant;
     
  (iii) The policies and procedures of the person that employs the Compensation Consultant that are designed to prevent conflicts of interest;
     
  (iv) Any business or personal relationship of the Compensation Consultant with a member of the Committee;
     
  (v) Any stock of the Company owned by the Compensation Consultant; and
     
  (vi) Any business or personal relationship of the Compensation Consultant or the person employing the Compensation Consultant with an executive officer of the Company.
     
4. Procedures
     
4.1 The CEO of the Company shall not be present during voting or deliberations of the Committee regarding his or her compensation.
     
4.2 The Committee, in its sole discretion, has the authority to retain, appoint, obtain the advice of, terminate, compensate, and provide oversight of the work of such outside advisors, including compensation consultants, legal counsel, and other experts and advisors, as it determines appropriate to assist in the full performance of its functions and responsibilities and to set the terms and conditions of such advisors’ retention. The Company shall provide for appropriate funding, as determined by the Committee, for payment of reasonable compensation to such advisors. To the extent that the Committee engages outside compensation consultants, legal counsel, or other experts or advisors, the Committee will document and disclose, as may be required, the selection process, fees paid, and services rendered by such advisors in accordance with applicable laws and regulations. In selecting any compensation consultant, legal counsel, or other expert or advisor, the Committee will take appropriate precautions to establish the independence of such consultant, counsel, expert, or advisor and ensure that no conflicts of interest exist. Specifically, the Committee will select, retain, or receive advice from, any such consultant, counsel, expert, or advisor only after taking into consideration the factors set forth in Exchange Act Rule 10C-1(b)(4) and Nasdaq Marketplace Rule 5605(d)(3)(D).

 

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4.3 The Committee shall review and reassess the adequacy of this Charter on an annual basis and recommend changes to the Board for approval.
   
4.4 Each Committee member shall undertake an annual self-assessment to evaluate how well the Committee has fulfilled its purpose during the previous year. Self-assessment findings will be reported to the Nominating and Corporate Governance Committee and to the full Board for review.
   
5. Quorum
   
5.1 A majority of the members of the Committee shall constitute a quorum.
   
6. Reporting
   
6.1 The Chair shall report of the Board, at the next regularly scheduled meeting of the Board, the deliberations, actions, and recommendations of the Committee since the last Board meeting.
   
7. Minutes
   
7.1. Minutes will be kept of each meeting of the Committee. Such minutes and any actions taken by unanimous consent of the Committee will be made available to each member of the Board.

 

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Exhibit 3.03

 

MPHASE TECHNOLOGIES, INC.

 

CORPORATE GOVERNANCE AND NOMINATING COMMITTEE CHARTER

 

1. Purpose
   
  The principal purposes of the Nominating and Corporate Governance Committee (the “Committee”), in its capacity as a committee of the Board of Directors (the “Board”) of mPhase Technologies, Inc. (the “Company”), are to: (i) identify individuals qualified to become members of the Board; (ii) recommend the persons to be nominated by the Board for election as directors at the annual meeting of stockholders and the persons to be elected by the Board to fill any vacancies on the Board; (iii) monitor and oversee the Company’s compliance with sound principles of corporate governance, consistent with applicable law and best practices; and (iv) develop and recommend to the Board for adoption corporate governance principles applicable to the Company.
   
2. Committee Membership
   
  The Committee shall be comprised of no fewer than two (2) members. Each member of the Committee shall meet the independence requirements of U.S. securities laws and of any U.S. or foreign national securities exchange on which the Company’s stock may be listed from time to time. The members and chair of the Committee shall be appointed and removed by the Board with or without cause
   
3. Authority of the Committee
   
3.1 The Committee shall have unrestricted access to all information and all employees have been, and shall be, directed to cooperate as requested by members of the Committee;
   
3.2 The Committee shall have the authority to obtain advice and assistance from outside legal or other advisors in its sole discretion to assist the Committee in fulfilling its responsibilities;
   
3.3 The Committee shall have the authority to retain and terminate any search firm to be used to identify director candidates and shall have sole authority to approve the search firm’s fees and other retention terms;
   
3.4 The Committee may require officers and employees of the Company to produce such information and reports, including reports to be provided annually or on other regular basis, as the Committee may deem appropriate; and
   
3.4 The Committee shall have such other authority as may be delegated by resolution of the Board.
   
4. Responsibilities of the Committee
   
4.1 Corporate Governance

 

(a) The Committee shall oversee all aspects of the Company’s corporate governance functions on behalf of the Board;

 

(b) The Committee shall recommend to the Board corporate governance polices, practices and procedures applicable to the Company;

 

(c) The Committee shall monitor compliance with the corporate governance policies and provide advice on issues of corporate governance to the Board;

 

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(d) The Committee shall monitor and assess the relationship between the Board and management and make such recommendations as it may deem necessary with a view to ensuring that the Board is able to function independently of management; and

 

(e) The Committee shall review and approve any changes recommended by management regarding the Company’s corporate disclosure policies, and periodically review and if desirable amend the Company’s corporate governance policies, including its policy with respect to insider trading in the Company’s securities and its codes of business conduct and ethics for directors, officers and employees.

 

4.2 Director Nomination and Evaluation

 

(a) The Committee shall make recommendations to the Board regarding minimum qualifications of director candidates, and processes for identifying and nominating directors;

 

(b) The Committee shall evaluate the business experience, or specialized skills or experience of director candidates. Diversity of background and experience, including diversity of race, ethnicity, international background, gender and age, are also important factors to be considered by the Committee when evaluating candidates for Board membership;

 

(c) The Committee shall determine each proposed nominee’s qualifications for service on the Board and conduct appropriate inquiries into the backgrounds and qualifications of possible nominees. Each nominee should be a person of integrity and be committed to devoting the time and attention necessary to fulfill his or her duties to the Company;

 

(d) The Committee shall consider issues involving possible conflicts of interest of directors and potential directors;

 

(e) The Committee shall identify individuals qualified to become Board members, select or recommend director nominees, and recommend to the Board the director nominees for the next annual meeting of stockholders;

 

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(f) The Committee shall oversee an orientation program to familiarize new directors with the Company’s business and operations, and oversee ongoing education for all directors regarding corporate governance matters;

 

(g) The Committee shall evaluate and recommend to the Board when new members should be added to the Board, and recommend a replacement member to the Board when a vacancy occurs on the Board by reason of disqualification, resignation, retirement, or death; and

 

(h) The Committee shall evaluate the performance of each director before recommending to the Board his or her nomination for an additional term as director.

 

4.3 Board and Committee Evaluation

 

(a) The Committee shall review and assess the independence of each director and potential directors in accordance with U.S. securities law and applicable stock exchange definitions and requirements;

 

(b) The Committee shall consider annually, the establishment and membership of committees of the Board, the delegation of authority of such committees, the chairmanship of such committees and recommend to the Board director nominees for each committee;

 

(c) The Committee shall annually conduct a review of the performance of the Board as a whole and of individual members of the Board based on such criteria and performance factors as the Committee may determine; and

 

(d) The Committee shall review and reassess the adequacy of this charter on a regular basis and submit any proposed revisions to the Board for consideration and approval.

 

5. Meetings, Reports and Procedures
   
5.1 The Committee shall hold a minimum of two (2) regular meetings per year, which shall be scheduled as nearly as practicable to occur in connection with the quarterly meetings of the Board. Additional meetings may occur as the Committee or its Chairman deems advisable. The Committee is governed by the rules regarding meetings (including meetings by conference telephone or similar communications equipment), action without meetings, waiver of notice, and quorum and voting requirements as are applicable to the Board. The Committee is authorized and empowered to adopt its own rules of procedure not inconsistent with (a) any provision of the Amended and Restated Certificate of Incorporation, as amended and Second Amended and Restated Bylaws of the Company, or (b) the New Jersey Corporation Law.
   
5.2 In advance of every meeting, the Chairman of the Committee, with the assistance of Company management, shall prepare and distribute to the Committee members and others as deemed appropriate by the Chairman, an agenda of matters to be addressed at the meeting.
   
5.3 The Committee shall keep adequate minutes of all its proceedings, and will report through the Committee Chair to the Board following meetings of the Committee. Committee members will be furnished with copies of the minutes of each meeting and any action taken.
   
5.4 At least annually, the Committee shall evaluate its own performance.
   
5.5 A majority of the members of the Committee shall constitute a quorum.

 

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Exhibit 10.3

 

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

 

This Restated and Amended Employment Agreement (“Agreement”) dated January 19, 2022, with an effective date of January 1, 2022 (“Effective Date”), is by and between mPhase Technologies, Inc., a New Jersey Company (the “Company”), and Anshu Bhatnagar (the “Executive”). The Company and the Executive are referred to individually as a “Party” and collectively as the “Parties.”

 

WHEREAS, the Executive is currently employed as the Company’s Chief Executive Officer and is expected to make major contributions to the short- and long-term profitability, growth, and financial strength of the Company;

 

WHEREAS, the Company has determined that appropriate arrangements should be taken to encourage the continued attention and dedication of the Executive to his assigned duties without distraction, and the Company desires to employ and retain the Executive during the Employment Period (as defined herein);

 

WHEREAS, the Executive wishes to be employed by the Company during the Employment Period (as defined herein) and desires to provide his services to the Company in such capacities and subject to the terms and conditions hereof;

 

WHEREAS, the Executive and the Company have previously entered into an Employment Agreement dated January 11, 2019 (the “Original Agreement”); and

 

WHEREAS, the Parties desire to amend and restate the Original Agreement on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual promises, covenants, and agreements contained herein, and intending to be legally bound hereby, the Company and the Executive do hereby agree as follows:

 

AGREEMENT

 

1. Adoption of Recitals. The Company and Executive hereto adopt the above recitals as being true and correct.

 

2. Employment.

 

(a) The term of employment with the Company shall commence on the Effective Date. It shall expire on December 31, 2032 (“Employment Period”), unless such term is extended in writing by the Parties or is earlier terminated pursuant to the terms hereof. For the avoidance of doubt, if the Employment Period is not extended, such non-renewal shall not be considered a Termination (as defined herein). The Executive shall not be entitled to any compensation as set forth in Section 6 hereof.

 

3. Position and Duties.

 

(a) During the Employment Period, the Executive shall serve as the Chief Executive Officer of the Company. As Chief Executive Officer, the Executive shall be responsible for establishing, alongside the Company’s Chief Financial Officer (“CFO”) and board of directors (the “Board of Directors” or “Board”), the goals and strategies of the Company and presiding over the entire Company. The Executive shall oversee the budgets of the Company and ensure that resources are properly allocated. During the Employment Term, Executive shall perform all duties, consistent with his positions as CEO, in order to advance the Company’s affairs and related business efforts, assigned or delegated to him by the Board and normally associated with the position of and CEO.

 

 

 

 

4. Obligations of the Company.

 

(a) In addition to the requirements set forth in this Agreement, the Company shall provide Executive with the tools and utilities for an office, if Executive so requests, as well as supplies and other facilities and services suitable to Executive’s position, and adequate for the performance of his duties.

 

5. Compensation and Related Matters.

 

The Executive shall receive five forms of compensation, described in this Section 5, to include: cash-based base salary; stock-based base salary; annual cash-based bonus; annual grants of restricted common stock; and the opportunity to participate in any of the Company’s equity option plans, if applicable. In addition, the Executive is entitled to receive fringe benefits as described in this Section 5.

 

(a) Cash Based Base Salary. During the Employment Period, the Company shall pay to the Executive an annual cash based base salary (“Base Salary”) of Six Hundred Thousand Dollars (US $600,000) payable by the Company in accordance with the Company’s payroll schedules throughout the Employment Period, subject to the provisions of Section 6 hereof and subject to any applicable tax and payroll deductions; provided, however, that, in the sole discretion of the Company’s Board of Directors, the Executive may receive an increase in Base Salary based on factors such as the market and the Executive’s job performance. On the first anniversary of the Effective Date, the Base Salary shall increase to $700,000.00, less applicable taxes and withholdings. On the second anniversary of the Effective Date, the Base Salary shall be increased to $800,000.00, less applicable taxes and withholdings. The Base Salary may only be decreased through a written modification of this Agreement executed and signed by the Parties. All payments to Executive hereunder shall be made in accordance with the Company’s customary practices and procedures, all of which shall be in conformity with applicable federal, state and local laws and regulations.

 

(b) Stock Based Base Salary. Executive shall be entitled to receive Stock Based Salary in shares of common stock of the Company (the “Common Stock”).

 

(c) Annual Cash Based Bonus.

 

(i) At the sole discretion of the Board, the Board may award the Executive a bonus (“Annual Cash Based Bonus”) that reflects and rewards the contributions of the Executive to the Company’s business and success.

 

(ii) The Executive and the Board will meet in good faith at the beginning of each calendar year to set Key Performance Indicators (“KPIs”) for that calendar year. If the Executive achieves his established KPIs during the calendar year and each year thereafter, The Executive will receive a bonus for the applicable calendar year (the “Annual Performance Bonus”). The Annual Cash Based Bonus shall have a target award of 100% of Base Salary (the “Target Award”), less applicable taxes and deductions, with the Executive eligible receive up to 200% of the Targe Award based on the achievement of KPIs during the applicable year. In addition, the Company may award the Executive and additional bonus in the form of cash and/or securities, at the discretion of the Board, or pursuant to one or more written plans adopted by the Board for similarly situated employees. Any Annual Cash Based Bonus shall be payable no later than March 15 in the year following the applicable bonus year.

 

(iii) Except as set forth in this Agreement, Annual Cash Based Bonuses that are not earned and accrued are deemed waived if the Executive’s employment is terminated for any reason prior to the Board awarding the Annual Cash Based Bonus.

 

(d) Annual Grants of Restricted Common Stock. The Company may, in its sole discretion, award the Executive a stock-based bonus (“Stock Bonus”) that reflects and rewards the contributions of the Executive to the Company’s business and success.

 

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(e) Intentionally Omitted.

 

(f) Equity Option Plan(s). Executive shall have the opportunity to participate in the Company’s equity incentive option plans, at the Board’s discretion, should the Company adopt any such plans. Equity Performance Award. The Executive will be entitled to receive annual Equity Awards with a target aggregate award value of One Million Dollars ($1,000,000) (the “Annual Equity Award”) under the incentive plan. The actual amount of the Annual Equity Awards will be decided based on the percentage of the KPIs which the Executive meets in the applicable year (the “Performance Grant”), with the Executive eligible to receive up to 200% of the target aggregate award value based on the achievement of KPIs during the applicable year. The Board shall determine the actual Annual Equity Awards to be granted based on the percentage of the KPIs which the Executive meets in the applicable calendar year. Any Performance Grant shall be granted no later than the end of the first quarter in the calendar year following the applicable calendar/performance year, provided that on the applicable Performance Grant date, the Executive is still employed by the Company. Fifty percent (50%) of the Performance Grant will be in the form of Restricted Common Stock (the “RCSs”) and the remaining fifty percent (50%) of the Performance Grant will be in the form of options to purchase the Company’s common stock (the “Stock Options”). All options granted to the Executive under this Agreement shall be valid for a period of five (5) years. One-third (1/3rd) of the RCSs shall vest on the first anniversary of the Performance Grant. The remaining two-thirds (2/3rd) shall vest in eight (8) equal installments at the end of every calendar quarter within the two years following the first anniversary of the Performance Grant. The number of Stock Options shall be calculated in accordance with the Company’s option valuation practices. One-third (1/3rd ) of the Options shall vest on the first (1st) anniversary of the Performance Grant. The remaining two-thirds (2/3rd) shall vest in eight (8) equal installments at the end of every calendar quarter within the two years following the first (1st ) anniversary of the Performance Grant. The RCS grant will include a cash payment upon vesting to cover expected ordinary income tax charges and will be calculated at the highest individual personal income tax rate (“Gross Up”). Notwithstanding the foregoing, the vesting schedule of the RCSs and the Stock Options granted pursuant to each Annual Equity Award shall not be less favorable than the vesting schedule applicable to any equity award granted to a majority of the other senior executives of the Company for the same performance year. The Parties agree that, for years 2022 or later, the Company may transition to the use of KPIs where some or all of the KPIs span more than one performance year, and in such event, the Company and the Executive agree to such modifications to his Annual Equity Awards, consistent with the financial terms described in this paragraph that are needed to implement the revised policy.

 

(g) Other Benefits. During the Employment Period, the Executive shall be entitled to participate in such employee benefit plans, programs or arrangements implemented by the Company and available to executive officers of the Company including, but not limited to, medical, dental, short term disability, long term disability, and life insurance (collectively the “Plans”). The Company shall have the right, from time to time and in its sole discretion, to modify and amend the Plans.

 

(h) Fringe Benefits.

 

(i) Vacation. Executive shall be entitled to four (4) weeks (20 business days) (pro-rated for partial fiscal year) of vacation time each year with full pay. The time for such vacation shall be requested by Executive, subject to the Company’s reasonable approval. If Executive is unable for any reason to take the total amount of authorized vacation during any year, he may accrue the time. The Company will cash-out out the unused vacation leave at the end of each calendar year and pay Executive the value of the unused vacation leave by March 10 of the following calendar year. Each vacation day will be calculated at 1/365 of Executive’s Base Salary. The accrued, unused and not-cashed out portion of vacation leave will be paid within thirty (30) days following termination of Executive’s employment.

 

(ii) Sick Time. Executive shall be entitled to ten (10) days per year as sick leave and/or personal leave with full pay.

 

(iii) Long-Term Compensation. The Executive shall be eligible to receive additional awards of stock options to purchase shares of the Company’s Common Stock and other stock awards in the sole discretion of and subject to such terms as established by the Company’s Board, and otherwise in accordance with the provisions of the applicable stock incentive plan(s) of the Company.

 

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(iv) Health and Dental Insurance. The Executive shall be eligible to receive health and dental insurance for him and his family which is no less favorable than is provided to other similarly situated executives of the Company; Company shall also agree to reimburse the amount of family deductible required to be paid by insured under such plans or contribute the maximum allowable HSA contribution limits per year depending on which type of plans are obtained by the Company.

 

(v) Vehicle Allowance: You will receive a monthly car allowance in the gross amount of $1,800 per month.

 

(vi) Membership Fees. The Company shall reimburse Executive for fees, up to twelve thousand dollars ($12,000) annually, for Executive’s membership in any club and shall reimburse Executive for fees for any other organizations mutually agreeable to Executive and the Company. Such fees shall include, but not be limited to, expenses associated with Executive’s attendance at any educational events.

 

(vii) Tax Preparation Fees. The Company shall reimburse Executive for Executive’s reasonable fees incurred from time to time for tax preparation and planning services, up to a maximum amount of ten thousand dollars ($10,000) per annum.

 

(viii) Recovery of Incentive Compensation. Notwithstanding anything herein to the contrary, the Executive agrees that incentive compensation payable to the Executive under this Agreement or otherwise shall be subject to any clawback policy adopted or implemented by the Company with respect to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and such regulations as are promulgated thereunder from time to time, or with respect to any other applicable law, regulation or Company policy.

 

(ix) Benefits are not in Lieu of Base Salary. Nothing paid to the Executive under any of the Plans or fringe benefit arrangements shall be deemed to be in lieu of Base Salary payable to the Executive hereunder.

 

(i) Reimbursement of Business Expenses. The Company shall pay or reimburse Executive for all reasonable, ordinary and necessary business and travel expenses that may be incurred by him directly and solely for the benefit of the Company in connection with the rendition of the services contemplated hereby. Executive shall submit to the Company such invoices, receipts or other evidences or expenses as Company may require.

 

6. Termination.

 

(a) Termination upon Death. The Executive’s employment hereunder shall terminate upon the death of the Executive; provided, however, that for purposes of this Agreement the Date of Termination (as defined herein) based upon the death of the Executive shall be deemed to have occurred on the last day of the month in which the death of the Executive shall have occurred.

 

(b) Termination upon Disability. If the Executive is unable to perform the essential functions of his position, with or without reasonable accommodation, for an aggregate period in excess of 360 days (which need not be consecutive) during the previous twenty four (24) months, due to a physical or mental illness, disability or condition, the Company may terminate the Executive’s employment hereunder at the end of any calendar month by giving written Notice of Termination (as defined herein) to the Executive stating the Date of Termination. Any questions as to the existence, extent or potentiality of illness or incapacity of the Executive upon which the Company and the Executive cannot agree shall be determined by a qualified independent physician selected by the Executive. The determination of such physician certified in writing to the Company and to the Executive shall be final and conclusive for all purposes of this Agreement. Nothing in this Subsection 6(b) of this Agreement shall be construed to waive the Executive’s rights, if any, under existing law including, without limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et seq. and the Americans with Disabilities Act, 42 U.S.C. §12101 et seq. This Subsection 6(b) of this Agreement is intended to be interpreted and applied consistent with any laws, statutes, regulations and ordinances prohibiting discrimination, harassment and/or retaliation on the basis of a disability or request or use of a medical leave. For purpose of this Agreement, “Disability” means Executive is entitled to receive long-term disability benefits under the Company’s long-term disability plan or, if there is no such plan, Executive has incurred a permanent and total disability (within the meaning of Section 22(e)(3) of the Code or any successor provision), which has existed for 180 consecutive days.

 

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(c) Termination by Company for Cause. At any time during the Employment Period, the Company may terminate the Executive’s employment hereunder for Cause if, at a meeting of the Board called and held for such purpose, the Board unanimously determines in good faith that there is Cause (as defined below) to terminate the employment of the Executive, and the Company gives written Notice of Termination to Executive. The Date of Termination shall be specified in the Notice of Termination. For purposes of this Agreement, “Cause” shall mean any of the following has occurred: (i) conduct by the Executive constituting a material act of willful gross misconduct in connection with the performance of his duties, including, without limitation, misappropriation of funds or property of the Company or any of its subsidiaries or affiliates; (ii) continued, willful and deliberate non-performance by the Executive of his duties hereunder (other than by reason of the Executive’s physical or mental illness, incapacity or disability) which has continued for more than ninety (90) days following written notice of such non-performance from the Board or authorized executive; (iii) a breach by the Executive of any of the provisions contained in Section 9 of this Agreement; (iv) a violation by the Executive of the Company’s employment policies which violation has continued following written notice of such violation from the Board or (v) willful failure to cooperate with a bona fide internal investigation or an investigation by regulatory or law enforcement authorities, after being instructed by the Company to cooperate, or the willful destruction or failure to preserve documents or other materials known to be relevant to such investigation or the willful inducement of others to fail to cooperate or to produce documents or other materials in connection with such investigation. For purposes of clauses (i), (ii) or (v) hereof, no act, or failure to act, on the Executive’s part shall be deemed “willful” unless done, or omitted to be done, by the Executive without reasonable belief that the Executive’s act or failure to act, was in the best interest of the Company and its subsidiaries and affiliates.

 

For purposes of this section, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of the Company.

 

(d) Termination without Cause; termination for death or disability; or Resignation by the Executive for Good Reason. In consideration of the Executive entering into the restrictive covenants set forth in Section 6 of this Agreement, if the Company (or any parent or subsidiary or successor of the Company) terminates the Executive’s employment with the Company without Cause, if this Agreement is terminated due to the Executive’s death or disability, or the Executive resigns for Good Reason, in each case other than in connection with a change of control (which is provided for under Section 7), then, subject to Section 6, in addition to being paid the Base Salary for the remainder of the Employment Period of this Agreement, the Executive will be entitled to the following:

 

(i) A lump sum payment equal to 100% of the Target Award for the year of termination, which shall be prorated for the number of days the Executive was employed during such year;

 

(ii) a lump sum payment equal to 2.6 times the sum of (A) the Executive’s then current Base Salary (or if greater, his Base Salary at any time during the prior two (2) year period); (B) one hundred percent (100%) of the Target Award of Annual Performance Bonus (the bonus in Section 2(b) herein; and (C) one hundred percent (100%) of the target Equity Performance Award (the bonus in Section 2(c) herein;

 

(iii) provided that the Executive timely elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) for the Executive and eligible dependents, reimbursement from the Company for the COBRA premiums for such coverage (at the coverage levels in effect immediately prior to such termination) for up to twenty-four (24) months following the termination date, as long as the Executive remains eligible for COBRA; provided, however, that if the Company determines that reimbursed COBRA premiums would be deemed to be discriminatory or to otherwise violate the then-applicable provisions of the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, and the guidance and regulations issued thereunder, the Company will in lieu thereof provide to the Executive a taxable monthly payment, payable on the last day of a given month, in an amount equal to the monthly COBRA premium that the Executive would be required to pay to continue The Executive’s group health coverage in effect on the termination of employment date (which amount will be based on the premium for the first month of COBRA coverage), which such payments will commence on the month following the Executive’s termination from employment and will end on the earlier of (x) the date upon which the Executive obtains other employment or (y) the date the Company has paid an amount equal to twenty-four (24) payments; and

 

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(iv) all issued and unvested equity awards, except the Annual Performance Bonus under Section 5(d), shall immediately vest; provided, however, the Annual Performance Bonus shall remain outstanding and shall vest if the KPIs are actually met.

 

The Executive shall receive the payments and other consideration under this Section 6(d) only upon the Executive’s execution and delivery of a customary general release (that is not revoked by him under applicable law) of the Company, its parents, subsidiaries and affiliates and each of their respective officers, directors, employees, agents, successors and assigns.

 

All payments under this Section 6(d) shall be made within thirty (30) days following termination of The Executive’s employment; provided, however, that to the extent required by Code Section 409A (as defined below), if the thirty (30) day period begins in one calendar year and ends in the second calendar year, all payments will be made in the second calendar year.

 

(e) Definitions. For the purposes of this Agreement, “Good Reason” means the Executive’s resignation within thirty (30) days following the expiration of any Company cure period (discussed below) following the occurrence of one or more of the following, without the Executive’s express written consent: (i) any material and adverse change in the Executive’s position with the Company; (ii) any material diminution in the Executive’s title, duties, responsibilities and reporting relationships; (iii) a material reduction in the Executive’s Base Salary; (iv) a relocation of the Executive’s principal Company office to a location more than thirty (30) miles from its current location; or (v) any material breach by the Company of this Agreement; provided, however, that with respect to any Good Reason termination, the Board will be given not less than thirty (30) days’ written notice by the Executive (within ninety (90) days of the occurrence of the event constituting Good Reason) of the Executive’s intention to terminate the Executive’s employment for Good Reason, such notice to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed termination for Good Reason is based, and such termination shall be effective at the expiration of such thirty (30) day notice period only if the Company has not fully cured such act or acts or failure or failures to act that give rise to Good Reason during such period or if such violation is not reasonably curable within such thirty (30) day period, but the Company is proceeding diligently and in good faith to cure such violation, such longer period as is reasonably needed by Company, not to exceed forty (45) days following the date of such notice.

 

(f) Termination by the Executive for Good Reason. The Executive may terminate this Agreement with Good Reason (hereinafter defined) by delivering a Notice of Termination to the Company complying with the Good Reason process (outlined in Section (d)(e)) and specifying the Date of Termination.

 

(g) Mutual Agreement Termination. If the Company’s Board of Directors determines to terminate this Agreement pursuant to the terms hereof, each Party hereby agrees to the Mutual Agreement Termination as described in Section 6(h)(iii) below. This Mutual Agreement Termination shall not constitute an admission of any wrong doing or improper behavior on the part of the Company or the Executive.

 

(h) Obligations Upon Termination.

 

(i) Termination by the Company for Cause or by the Executive for other than Good Reason. If Executive’s employment is terminated pursuant to Subsections 6(c) or 6(i), the Company shall pay or provide to the Executive (or to his authorized representative or estate) any earned but unpaid Base Salary, accrued but unpaid Annual Cash Based Bonus, earned but unpaid incentive compensation, unpaid business expense reimbursements, accrued but unused vacation, accrued but unused sick leave and any vested benefits the Executive may have under any Plans (collectively, the “Accrued Benefits”) within thirty (30) days of the Executive’s termination. Any outstanding stock option or other stock awards held by Executive as of the Date of Termination shall be subject to the terms of the applicable award agreements.

 

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(ii) Termination by the Company for Death, Disability or Without Cause or by the Executive with Good Reason. If the Executive’s employment is terminated by the Company due to Death as provided for in Subsection 6(a), a disability as provided for in Subsection 6(b), the Executive terminates his employment for Good Reason as provided for in Subsection 6(f), or the Company terminates the Executive’s employment without Cause, then the Company shall continue to pay the Executive his Base Salary and the Executive shall be eligible to participate in the Plans for sixty (60) months following the date of Executive’s termination, pay any pro-rata share of his Annual Cash Based Bonus that would have or could have been earned prior to the Date of Termination and pay the Executive his other Accrued Benefits. To the extent the Company is unable to provide coverage to the Executive under any of the Plans, Executive shall acquire private coverage for such benefits and Company shall reimburse Executive for the cost of purchasing such benefits throughout the balance of the Employment Period. Any outstanding stock option or other stock awards held by Executive as of the Date of Termination shall be subject to the terms of the applicable award agreements. Notwithstanding anything to the contrary in any applicable option agreement or stock-based award agreement, all stock options and other stock-based awards held by the Executive shall immediately accelerate and become fully exercisable or non-forfeitable as of the Date of Termination.

 

(iii) Mutual Agreement Termination. If the Company’s Board of Directors and the Executive determine to terminate the employment pursuant to Section 6(g) hereof, then this pre-negotiated offer will stand as the terms for the termination of this Agreement. Executive will be entitled to his Base Salary paid to him in cash over twenty-four (24) months and Executive will also be entitled to any bonus compensation due to him through the Date of Termination. Executive also agrees to comply with Section 6(iv) hereof.

 

(iv) If the Executive signs a general release of claims in a form and manner satisfactory to the Company (the “Release”) within twenty one (21) days of the Date of Termination, Executive shall receive the following additional compensation:

 

(A) Executive shall be paid, in addition to the Base Salary an additional twenty four (24) months of his then Base Salary (“Severance Amount”). The Severance Amount shall be paid in a lump sum payment on a date that is coincident with or immediately follows the sixtieth (60th day after the Date of Termination. Solely for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Severance Amount is considered a separate payment. Notwithstanding the foregoing, if the Executive breaches any of the provisions contained in Section 9 hereof relating to restrictive covenants, payment of the Severance Amount shall immediately cease; and

 

(B) If the Executive elects to receive COBRA benefits, the Company will pay the premium required for such coverage for the Executive for a period of twelve (12) months from the Date of Termination; however, should the Executive become enrolled in health benefits by a subsequent employer prior to twelve (12) months following the Date of Termination, the Executive must notify the Company and the Company’s obligation to pay COBRA co-payments shall thereupon cease. Notwithstanding anything to the contrary in this Agreement, if the Company determines in its sole discretion that it cannot provide the COBRA premiums without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act) or incurring an excise or penalty tax, the Company will in lieu thereof provide to the Executive a taxable monthly payment in an amount equal to the monthly COBRA premium that the Executive would be required to pay to continue his group health coverage in effect on the Date of Termination, which payments will be made regardless of whether the Executive elects COBRA coverage and will commence in the month following the month in the Company determines that it cannot provide the COBRA premiums and will end on the earlier of (i) the date the Executive becomes covered by another health plan, or (ii) twelve (12) months following the Date of Termination.

 

(i) Notice of Termination. A “Notice of Termination” to effectuate a termination pursuant Section 6 hereof shall be made in accordance with the notice provision of Section 21. For purposes of this Agreement, a Notice of Termination shall mean a notice, in writing, which shall indicate the specific termination provision of this Agreement relied upon as the basis for the Termination and the Date of Termination. The Date of Termination shall not be earlier than the date such Notice of Termination is delivered (as defined above); provided however, that the Company, at its option, may elect to have the Executive not report to work after the date of the written notice.

 

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(j) Date of Termination.Date of Termination” means the date on which this Agreement shall terminate in accordance with the provisions of this Section 6.

 

7. Change in Control Payment. The provisions of this Section 7 set forth certain terms of an agreement reached between the Executive and the Company regarding the Executive’s rights and obligations upon the occurrence of a Change in Control (as defined herein) of the Company. These provisions are intended to assure and encourage in advance the Executive’s continued attention and dedication to his assigned duties and his objectivity during the pendency and after the occurrence of any such event. These provisions shall apply in lieu of, and expressly supersede, the provisions of this Agreement, regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs within one (1) year after the occurrence of the first event constituting a Change in Control, provided that such first event occurs during the Employment Period.

 

(a) Change in Control.

 

(i) If within one (1) year after a Change in Control, the Executive’s employment is terminated by the Company due to death as provided for in Subsection 6(a), a disability as provided for in Subsection 6(b) or without Cause as provided for in Subsection 6(d), or the Executive terminates his employment for Good Reason as provided for in Subsection 6(f), then, subject to the signing of the Release by the Executive within twenty one (21) days of the Date of Termination, the Company shall pay the Executive a lump sum in cash in an amount equal five years of the Executive’s Base Salary (or the Executive’s annual Base Salary in effect immediately prior to the Change in Control, if higher) on the sixtieth (60th) day following the Date of Termination;

 

(ii) Notwithstanding anything to the contrary in any applicable option agreement or stock-based award agreement, all stock options and other stock-based awards held by the Executive shall immediately accelerate and become fully exercisable or non-forfeitable as of the Date of Termination; and

 

(iii) If the Executive elects to receive COBRA benefits, the Company will pay the premium required for such coverage for the Executive for a period of twenty four (24) months from the Date of Termination; however, should the Executive become enrolled in health benefits by a subsequent employer prior to twenty four (24) months following the Date of Termination, the Executive must notify the Company and the Company’s obligation to pay COBRA co-payments shall thereupon cease. Notwithstanding anything to the contrary in this Agreement, if the Company determines in its sole discretion that it cannot provide the COBRA premiums without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act) or incurring an excise or penalty tax, the Company will in lieu thereof provide to the Executive a taxable monthly payment in an amount equal to the monthly COBRA premium that the Executive would be required to pay to continue his group health coverage in effect on the Date of Termination, which payments will be made regardless of whether the Executive elects COBRA coverage and will commence in the month following the month in the Company determines that it cannot provide the COBRA premiums and will end on the earlier of (i) the date the Executive becomes covered by another health plan, or (ii) twenty four (24) months following the Date of Termination.

 

(b) Definitions. For purposes of this Section 7, the following terms shall have the following meanings:

 

(i) Change in Controlshall mean any of the following:

 

(A) any “person,” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than the Company, any of its subsidiaries, or any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust of the Company or any of its subsidiaries), together with all “affiliates” and “associates” (as such terms are defined in Rule 12b-2 under the Exchange Act) of such person, shall become the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities having the right to vote in an election of the Board (“Voting Securities”) (in such case other than as a result of an acquisition of securities directly from the Company); or

 

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(B) the date a majority of the members of the Board is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Board before the date of the appointment or election; or

 

(C) the consummation of (A) any consolidation or merger of the Company where the stockholders of the Company, immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, shares representing in the aggregate more than fifty percent (50%) of the voting shares of the Company issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any), or (B) any sale or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company.

 

(ii) Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred for purposes of the foregoing clause (i) solely as the result of an acquisition of securities by the Company which, by reducing the number of shares of Voting Securities outstanding, increases the proportionate number of Voting Securities beneficially owned by any person to fifty percent (50%) or more of the combined voting power of all of the then outstanding Voting Securities; provided, however, that if any person referred to in this sentence shall thereafter become the beneficial owner of any additional shares of Voting Securities (other than pursuant to a stock split, stock dividend, or similar transaction or as a result of an acquisition of securities directly from the Company) and immediately thereafter beneficially owns fifty percent (50%) or more of the combined voting power of all of the then outstanding Voting Securities, then a Change in Control shall be deemed to have occurred for purposes of the foregoing clause (i).

 

8. Compliance with Section 409A; 6 Month Delay.

 

(a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement would be considered deferred compensation subject to the twenty percent (20%) additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six (6) months and one day after the Executive’s separation from service, or (B) the Executive’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six (6) month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.

 

(b) The Parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The Parties agree that this Agreement may be amended, as reasonably requested by either Party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either Party.

 

(c) A termination of employment shall not be deemed to have occurred unless it is also a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h).

 

(d) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.

 

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9. Confidential Information and Cooperation.

 

(a) Confidential Information. As used in this Agreement, Confidential Information means information belonging to the Company which is of value to the Company in the course of conducting its business and the disclosure of which could result in a competitive or other disadvantage to the Company. Confidential Information includes, without limitation, financial information, reports, and forecasts; inventions, improvements and other intellectual property; trade secrets; know-how; designs, processes or formulae; software; market or sales information or plans; customer lists; and business plans, prospects and opportunities (such as possible acquisitions or dispositions of businesses or facilities) which have been discussed or considered by the management of the Company. Confidential Information includes information developed by the Executive in the course of the Executive’s employment by the Company, as well as other information to which the Executive may have access in connection with the Executive’s employment. Confidential Information also includes the confidential information of others with which the Company has a business relationship. Notwithstanding the foregoing, Confidential Information does not include information in the public domain, unless due to breach of the Executive’s duties under Section 8(b).

 

(b) Confidentiality. The Executive understands and agrees that the Executive’s employment creates a relationship of confidence and trust between the Executive and the Company with respect to all Confidential Information. At all times, during the Executive’s employment with the Company, the Executive will keep in confidence and trust all such Confidential Information, and will not use or disclose any such Confidential Information without the written consent of the Company, except as may be necessary in the ordinary course of performing the Executive’s duties to the Company.

 

(c) Documents, Records, etc. All documents, records, data, apparatus, equipment and other physical property, whether or not pertaining to Confidential Information, which are furnished to the Executive by the Company or are produced by the Executive in connection with the Executive’s employment will be and remain the sole property of the Company. The Executive will return to the Company all such materials and property as and when requested by the Company. In any event, the Executive will return all such materials and property immediately upon termination of the Executive’s employment for any reason. The Executive will not retain with the Executive any such material or property or any copies thereof after such termination.

 

(d) Intentionally Omitted.

 

(e) Litigation and Regulatory Cooperation. During and after the Executive’s employment, the Executive shall cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while the Executive was employed by the Company. The Executive’s full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after the Executive’s employment, the Executive also shall cooperate fully with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while the Executive was employed by the Company. The Company shall reimburse the Executive for any reasonable out-of-pocket expenses incurred in connection with the Executive’s performance of obligations pursuant to this Subsection 9(e).

 

(f) Intentionally Omitted.

 

10. Indemnification and D&O Insurance. The Company and its subsidiaries’ and affiliates’ Certificate or Articles of Incorporation or Bylaws, including, if applicable, any directors and officer’s insurance policies, shall indemnify, hold harmless, and defend the Executive against any and all claims. Such right shall include the right to be paid by the Company expenses, including attorney’s fees, judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, by reason of the fact that Executive is or was a director, officer, employee or agent of the Company or any Subsidiary, whether asserted or claimed prior to, at or after the date of termination of employment, to the fullest extent permitted under applicable law and on a basis no less favorable than in existence under the Company’s Bylaws and Certificate of Incorporation in effect as of the Effective Date. During the Employment Period and thereafter, Company shall provide Executive coverage under a policy of directors’ and officers’ liability insurance that provides you with coverage on the same basis as is provided for the Company’s continuing officers and directors from time to time. This duty to indemnify shall survive the termination, expiration or cancellation of this Agreement.

 

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11. Arbitration of Disputes. Any controversy or claim arising out of or relating to this Agreement or the breach thereof or otherwise arising out of the Executive’s employment or the termination of that employment (including, without limitation, any claims of unlawful employment discrimination whether based on age or otherwise) shall, to the fullest extent permitted by law, be settled by arbitration in any forum and form agreed upon by the Parties or, in the absence of such an agreement, under the auspices of the American Arbitration Association (“AAA”) in Bethesda, Maryland in accordance with the Employment Dispute Resolution Rules of the AAA, including, but not limited to, the rules and procedures applicable to the selection of arbitrators. In the event that any person or entity other than the Executive or the Company may be a party with regard to any such controversy or claim, such controversy or claim shall be submitted to arbitration subject to such other person or entity’s agreement. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This Section 11 shall be specifically enforceable. Notwithstanding the foregoing, this Section 11 shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or a preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Section 11.

 

12. Consent to Jurisdiction. To the extent that any court action is permitted consistent with or to enforce Section 11 of this Agreement, the Parties hereby consents to personal jurisdiction and exclusive venue in the United States District Court for Maryland, if such Court can exercise jurisdiction. In the event the foregoing Court lacks jurisdiction, the Executive consents to personal jurisdiction and exclusive venue in the Circuit Court in and for Montgomery County, Maryland. Accordingly, with respect to any such court action, the Executive (a) submits to the personal jurisdiction of such courts; (b) consents to service of process; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process.

 

13. Specific Performance. It is agreed that the rights granted to the Parties hereunder are of a special and unique kind and character and that, if there is a breach by any Party of any material provision of this Agreement, the other Party would not have any adequate remedy at law. It is expressly agreed, therefore, that the rights of the Parties hereunder may be enforced by an action for specific performance and other equitable relief without the Parties posting a bond, or, if a bond is required, the Parties agree that the lowest bond permitted shall be adequate.

 

14. Entire Agreement. This Agreement contains the entire understanding of the Parties and no agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either Party, which are not set forth expressly in this Agreement. This Agreement supersedes all negotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the Parties and/or their affiliates. The Executive acknowledges that he has not relied on any prior or contemporaneous discussions or understandings in entering into this Agreement. This Agreement also supersedes and voids any employment agreements between Executive and Company.

 

15. Withholding. All payments made by the Company to the Executive under this Agreement shall be net of any tax or other amounts required to be withheld by the Company under applicable law.

 

16. Assigns. This Agreement is not assignable by the Company or Executive.

 

17. Successor to the Executive. This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal representatives, executors, administrators, heirs, distributees, devisees and legatees. In the event of the Executive’s death after his termination of employment but prior to the completion by the Company of all payments due him under this Agreement, the Company shall continue such payments to the Executive’s beneficiary designated in writing to the Company prior to his death (or to his estate, if the Executive fails to make such designation).

 

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18. Successor to Company. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company expressly to assume and agree to perform this Agreement to the same extent that the Company would be required to perform it if no succession had taken place. Failure of the Company to obtain an assumption of this Agreement at or prior to the effectiveness of any succession shall be a material breach of this Agreement.

 

19. Enforceability. If any portion or provision of this Agreement (including, without limitation, any portion or provision of any section of this Agreement) shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

 

20. Waiver/Amendment. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving Party. The failure of any Party to require the performance of any term or obligation of this Agreement, or the waiver by any Party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is approved by the Board and agreed to in writing signed by Executive and such officer as may be specifically authorized by the Board.

 

21. Survival. The provisions of this Agreement shall not survive the termination of the Executive’s employment hereunder, except that the provisions of (i) Section 6 hereto relating to post-termination payment obligations; (ii) Section 9 hereto relating to the restrictive covenants; and (iii) Sections 11 and 12 relating to arbitration and jurisdiction and venue shall remain binding upon the Parties.

 

22. Notices. Any notices, requests, demands and other communications provided for by this Agreement shall be sufficient if in writing and delivered in person or sent by a nationally recognized overnight courier service or by registered or certified mail, postage prepaid, return receipt requested, to the Executive at the last address the Executive has filed in writing with the Company or, in the case of the Company, at its main offices, attention of the Board.

 

23. Governing Law. This is a Maryland contract and shall be construed under and be governed in all respects by the laws of the State of Maryland, without giving effect to the conflict of laws principles of such State.

 

24. Gender Neutral. Wherever used herein, a pronoun in the masculine gender shall be considered as including the feminine gender unless the context clearly indicates otherwise.

 

25. Neutral Construction. No Party may rely on any drafts of this Agreement in any interpretation of the Agreement. Each Party to this Agreement has reviewed this Agreement and has participated in its drafting and, accordingly, no Party shall attempt to invoke the normal rule of construction to the effect that ambiguities are to be resolved against the drafting Party in any interpretation of this Agreement.

 

26. Headings and Captions. The titles and captions of paragraphs, sections, subparagraphs and subsections contained in this Agreement are provided for convenience of reference only, and shall not be considered terms or conditions of this Agreement.

 

27. Further Assurances. Each of the Parties hereto shall execute and deliver any and all additional papers, documents and other assurances, and shall do any and all acts and things reasonably necessary in connection with the performance of their obligations hereunder and to carry out the intent of the Parties hereto.

 

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28. Right to Review and Seek Counsel. The Executive acknowledges that he has had the opportunity to seek independent counsel and tax advice in connection with the execution of this Agreement, and the Executive represents and warrants to the Company (a) that he has sought such independent counsel and advice as he has deemed appropriate in connection with the execution hereof and the transactions contemplated hereby, and (b) that he has not relied on any representation of the Company as to tax matters, or as to the consequences of the execution hereof.

 

29. Counterparts. This Agreement may be executed in one or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute and shall be one and the same instrument. This Agreement, and the counterparts thereto, may be executed by the Parties using their respective signatures transmitted via facsimile machines or via electronic mail.

 

IN WITNESS WHEREOF, the Parties have executed this Agreement effective on the date and year first above written.

 

  COMPANY:
  mPhase Technologies, Inc.
     
  By: /s/ Angelia Hrytsyshyn
    Angelia Hrytsyshyn, Chief Financial Officer
     
  EXECUTIVE:
     
    /s/ Anshu Bhatnagar
    Anshu Bhatnagar

 

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Exhibit 10.4

 

mPHASE TECHNOLOGIES, INC.

 

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

 

This Amended and Restated Employment Agreement (“Agreement”) is entered into by and between mPhase Technologies, Inc., a New Jersey corporation with a principal place of business in Gaithersburg, MD (the “Company”), and Angelia Hrytsyshyn, an individual (the “Executive”).

 

WHEREAS, the Company and the Executive previously entered into an employment agreement, dated November 16, 2021 with start date of employment commencing on November 22, 2021 (the “Original Effective Date”); and

 

WHEREAS, the Parties desire to amend and restate the employment agreement on the terms and conditions set forth herein.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration the receipt of which is hereby acknowledged, the parties mutually agree as follows:

 

Section 1. Term of Employment.

 

  (a) Effective Date. Executive’s employment shall continue under this Agreement commencing on January 21, 2022 (the “Effective Date”). The Company hereby employs Executive, and Executive hereby agrees to be employed by the Company, on the terms and conditions set forth herein for a term commencing on the Effective Date of this Agreement. Effective Date of this Agreement.
     
  (b) Term. The Agreement shall become effective on the Effective Date and shall continue unless earlier terminated as provided in Section 6 (the “Term”). The Executive’s employment with the Company shall be “at will,” meaning that the Executive’s employment may be terminated by the Company or the Executive at any time and for any reason provided that Executive may not voluntarily terminate his employment upon less than thirty (30) days prior written notice delivered to the Company, or upon such shorter notices as Company and Executive agree.
     
  (c) Location. During the Term, the Executive’s principal place of employment shall be in Gaithersburg, MD. The Executive acknowledges that Executive’s duties and responsibilities shall require the Executive to travel on business to the extent reasonably necessary to fully perform Executive’s duties and responsibilities hereunder.

 

Section 2. Duties and Exclusivity.

 

  (a) During the Term, the Executive (i) shall serve as Chief Financial Officer of the Company, with responsibilities, duties and authority customary for such position, subject to direction by the Chief Executive Officer of the Company, (ii) shall report directly to the Chief Executive Officer; (iii) shall devote all the Executive’s working time and efforts to the business and affairs of the Company and its subsidiaries; and (iv) agrees to observe and comply with the Company’s rules and policies as adopted by the Company from time to time. The Executive’s duties, responsibilities and authority may include services for one or more subsidiaries of the Company.
     
  (b) Notwithstanding anything to the contrary in Section 2(a) above, the Executive may (i) serve as a director, trustee or officer or otherwise participate in not-for-profit educational, welfare, social, religious and civic organizations. During the Term, Executive shall not accept any other employment or consultancy or serve on the board of directors or similar body of any entity unless such position is approved by the Chief Executive Officer.

 

 

 

 

  (c) Exclusivity. The Executive hereby represents to the Company that: (i) the execution and delivery of this Agreement by the Executive and the Company and the performance by the Executive of the Executive’s duties hereunder do not and shall not constitute a breach of, conflict with, or otherwise contravene or cause a default under, the terms of any other agreement or policy to which the Executive is a party or otherwise bound or any judgment, order or decree to which the Executive is subject; (ii) that the Executive has no information (including, without limitation, confidential information and trade secrets) relating to any other Person which would prevent, or be violated by, the Executive entering into this Agreement or carrying out his duties hereunder; (iii) the Executive is not bound by any agreement with any previous employer or other party to refrain from (A) competing with the business of, or (B) soliciting the customers of, that employer or party, in each case, which would be violated by the Executive’s employment with the Company; and (iv) the Executive understands the Company will rely upon the accuracy and truth of the representations and warranties of the Executive set forth herein and the Executive consents to such reliance.
     
  (d) Deemed Resignation. Upon termination of Executive’s employment for any reason, Executive shall be deemed to have resigned from all offices, if any, then held with the Company or any of its subsidiaries, and, at the Company’s request, Executive shall execute such documents as are necessary or desirable to effectuate such resignations.

 

Section 3. Compensation.

 

  (a) Salary. In consideration of all of the services rendered by the Executive under the terms of this Agreement, the Company shall pay to the Executive a base salary at the annualized rate of Two Hundred Fifty Thousand Dollars ($250,000.00), less payroll deductions and all required withholdings. Executive’s Base Salary shall be subject to annual review and upward adjustment only by the Chief Executive Officer of the Company. The Base Salary shall be paid in accordance with the customary payroll practices of the Company in effect. The Executive’s salary, as adjusted from time to time under this Section 3(a), is referred to as (“Base Salary”).
     
  (b) Annual Bonus. With respect to each Company fiscal year that ends during the Term, commencing with fiscal year 2022, the Executive shall be eligible to receive an annual performance-based cash bonus (the “Annual Bonus”) which shall be payable based upon the attainment of individual and/or Company performance goals established by the Chief Executive Officer. The target amount of such Annual Bonus shall equal 50% of Executive’s Base Salary in the year to which the Annual Bonus relates, provided that the actual amount of the Annual Bonus may be greater or less than such target amount (the “Target Bonus”). Each Annual Bonus, if any, for a fiscal year shall be payable, less payroll deductions and all required withholdings, no later than the fifteenth day of the second month following the end of such fiscal year.
     
  (c) Reimbursement of Expenses. The Company will promptly reimburse Executive for all reasonable out-of-pocket business expenses that are incurred by Executive in furtherance of the Company’s business in accordance with the Company’s policies with respect thereto as in effect.
     
  (d) Paid Time Off. Executive shall be entitled to accrue ten (10) days of paid time off during each calendar year in accordance with and subject to the terms of the Company’s vacation policy applicable to other executive officers of the Company, as it may be amended prospectively from time to time. Any accrued paid time off that is not used in the calendar year in which it is earned will be eligible to be carried forward to, or otherwise used in, any subsequent calendar year, provided that Executive shall not be allowed to accrue paid time off in excess of ten (10) days at any one time.
     
  (e) Holidays. During the Employment Period, Executive shall be entitled to holidays consistent with the Company’s current policy, which may be amended from time to time.

 

 

 

 

Section 4. Equity Awards.

 

  (a) Restricted Stock Grant. In addition to Base Salary, as part of the Executive’s overall compensation, the Executive shall receive a restricted stock award of 500,000 shares of the Company’s common stock (the “Restricted Shares”). For so long as the Executive remains continuously employed by the Company, the Restricted Shares shall vest as follows: 25% of the Shares shall vest at, 1 year, 2 year, 3 and 4 year anniversaries of the Agreement The Restricted Shares grant shall be evidenced in writing by, and subject to the terms and conditions of a restricted stock agreement, which agreement shall expire ten (10) years from the date of grant except as otherwise provided herein or in such restricted stock agreement.
     
  (b) Section 83(b) Election. The Executive hereby acknowledges that the Executive has been informed that, with respect to the Restricted Stock, the Executive may file an election with the Internal Revenue Service, within 30 days of the Date of the Grant, electing pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, (the Code) to be taxed currently on any difference between the purchase price of the Restricted Stock and their fair market value on the date of purchase. Absent such an election, taxable income will be measured and recognized by the Executive at the time or times at which the forfeiture restrictions on the Restricted Stock lapse. The Executive is strongly encouraged to seek the advice of his own tax consultants in connection with the issuance of the Restricted Stock and the advisability of filing of the election under Section 83(b) of the Code. THE EXECUTIVE ACKNOWLEDGES THAT IT IS NOT THE COMPANYS, BUT RATHER THE EXECUTIVES SOLE RESPONSIBILITY TO FILE THE ELECTION UNDER SECTION 83(b) TIMELY.
     
  (c) Sale of Shares. Executive agrees that he will not loan or pledge any securities of the Company owned by him or which he may accrue in the future through restricted stock, option or other equity awards as collateral for any indebtedness.

 

Section 5. Compliance with Company Policy.

 

During the Term, the Executive shall observe all Company rules, regulations, policies, procedures and practices in effect from time to time, including, without limitation, such policies and procedures as are contained in the Company policy and procedures manual, as may be amended or superseded from time to time.

 

Section 6. Termination of Employment.

 

Executive’s employment with the Company may be terminated during the Term of this Agreement for any of the following reasons:

 

  (a) By The Company For Cause. At any time during the Term, the Company may terminate Executive’s employment hereunder for Cause. For purposes of this Agreement, “Cause” shall mean the occurrence of any of the following events, as determined by the Board or a committee designated by the Board, in its sole discretion: (i) conduct by Executive constituting a material act of willful misconduct in connection with the performance of his duties, including, without limitation, misappropriation of funds or property of the Company or any of its affiliates other than the occasional, customary and de minimis use of Company property for personal purposes; (ii) the commission by Executive of a felony or any misdemeanor involving moral turpitude, deceit, dishonesty or fraud, or conduct by Executive that would reasonably be expected to result in material injury to the Company if he were retained in his position; (iii) continued, willful and deliberate non-performance by Executive of his duties hereunder (other than by reason of Executive’s physical or mental illness, incapacity or disability) which has continued for more than thirty (30) days following written notice of such non-performance from the Company; (iv) a material breach by Executive of any of the provisions contained in Paragraph 7 of this Agreement; (v) a material violation by Executive of the Company’s employment policies which has continued for more than thirty (30) days following written notice of such violation from the Company; or (vi) willful failure to cooperate with a bona fide internal investigation or an investigation by regulatory or law enforcement authorities, after being instructed by the Company to cooperate, or the willful destruction or failure to preserve documents or other materials known to be relevant to such investigation or the willful inducement of others to fail to cooperate or to produce documents or other materials.

 

 

 

 

  (b) By The Company for Without Cause. At any time during the Term, the Company may terminate Executive’s employment hereunder without Cause.
     
  (c) By The Executive. At any time during the Term, Executive may terminate his employment hereunder for any reason.
     
  (d) Right to Severance. In the event the Company terminates Executive’s employment Without Cause and if Executive executes and does not revoke during any applicable revocation period a general release of all claims against the Company and its affiliates in a form acceptable to the Company (a “Release of Claims”) within a reasonable period of time specified by the Company and in compliance with applicable law, following such termination, then in addition to any accrued obligations payable under Section 6(d)(i) below, the Company shall:

 

    i. Provided the Executive has been employed for a minimum of twelve (12) months but less than twenty-four (24) months, pay to the Executive six (6) months of the Executive’s current Base Salary, less payroll deductions and all required withholdings, paid over time in accordance with the Company’s payroll practices then in effect;
       
       
    ii. Provided the Executive has been employed for a minimum of twenty-four (24) months, pay to the Executive twelve (12) months of the Executive’s current Base Salary, less payroll deductions and all required withholdings, paid over time in accordance with the Company’s payroll practices then in effect; and
       
       
    iii. The Company shall notify Executive of any right to continue group health plan coverage sponsored by the Company immediately prior to Executive’s date of termination pursuant to the provisions of applicable law including, but not limited to, the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). If Executive elects to receive such continued healthcare coverage, the Company shall directly pay, or reimburse Executive for, the premium for Executive and Executive’ s covered dependents, less the amount of Executive’s monthly premium contributions for such coverage prior to termination, for the period commencing on the first day of the first full calendar month following the date the Release of Claims becomes effective and irrevocable through the earlier of (i) the last day of the six (6) or twelve (12) full calendar months (such period consistent with the severance payment period set forth in Section 6(d)(i) and 6(d)(ii) above) following the date the Release of Claims becomes effective and irrevocable (ii) the date Executive and Executive’s covered dependents, if any, become eligible for healthcare coverage under another employer’s plan(s). Executive shall notify the Company immediately if Executive becomes covered by a group health plan of a subsequent employer. After the Company ceases to pay premiums pursuant to this subsection, Executive may, if eligible, elect to continue healthcare coverage at Executive’s expense in accordance the provisions of COBRA or other applicable law.

 

For purposes of this Section 6(e), Executive’s termination of employment at the end of the Term following an earlier notice of nonrenewal by the Company shall be treated as a termination of the Executive’s employment by the Company without Cause as of the last day of the Term.

 

 

 

 

  (e) Upon a termination of the Executive’s employment for any reason, (i) the Executive shall be entitled to receive: (A) any portion of the Executive’s Base Salary through the date of employment termination not theretofore paid, (B) any expenses owed to the Executive under Section 3(c) above, (C) any accrued but unused vacation pay owed to the Executive pursuant to Section 3(e) above, any pro-rated and unpaid Annual Bonus pursuant to Section 3(b) above, and (E) any amount arising from the Executive’s participation in, or benefits under, any employee benefit plans, programs or arrangements under Section 3(d) above, which amounts shall be payable in accordance with the terms and conditions of such employee benefit plans, programs or arrangements.
     
  (f) The payments and benefits described in this Section 6 shall be the only payments and benefits payable in the event of the Executive’s termination of employment for any reason.

 

Section 7. Competitive Activity; Confidentiality; Nonsolicitation.

 

(a) Acknowledgements and Agreements. Executive hereby acknowledges and agrees that in the performance of Executive’s duties to the Company during the Employment Period, Executive will be brought into frequent contact with existing and potential customers of the Company throughout the world. Executive also agrees that trade secrets and confidential information of the Company, more fully described in subparagraph 7(e)(i), gained by Executive during Executive’s association with the Company, have been developed by the Company through substantial expenditures of time, effort and money and constitute valuable and unique property of the Company. Executive further understands and agrees that the foregoing makes it necessary for the protection of the Company’s Business that Executive not compete with the Company during his employment with the Company, and not compete with the Company for a defined period thereafter, as further provided in the following subparagraphs.

 

(b) Covenants.

 

(i) Covenants During Employment. While employed by the Company, Executive will not compete with the Company anywhere in the world. In accordance with this restriction, but without limiting its terms, while employed by the Company, Executive will not:

 

    (A) enter into or engage in any business which competes with the Company’s Business;
       
    (B) solicit customers, business, patronage or orders for, or sell, any products or services in competition with, or for any business that competes with, the Company’s Business;
       
    (C) divert, entice or otherwise take away any customers, business, patronage or orders of the Company or attempt to do so; or
       
    (D) promote or assist, financially or otherwise, any person, firm, association, partnership, corporation or other entity engaged in any business which competes with the Company’s Business.

 

(ii) Covenants Following Termination. For two (2) years following the termination of Executive’s employment, Executive shall not:

 

    (A) enter into or engage in any business which competes with the Company’s Business;
       
    (B) solicit customers, business, patronage or orders for, or sell, any products and services in competition with, or for any business, wherever located, that competes with, the Company’s Business;

 

 

 

 

    (C) divert, entice or otherwise take away any customers, business, patronage or orders of the Company, or attempt to do so; or
       
    (D) promote or assist, financially or otherwise, any person, firm, association, partnership, corporation or other entity engaged in any business which competes with the Company’s Business.
       
      The time period set forth in subparagraph 7(b)(ii) may be extended to such longer period as determined by the Company in its sole discretion, provided that if the Company extends the applicable period, the Company shall make payment to Executive of the Base Salary during any such extended period.

 

(iii) Indirect Competition. For the purposes of subparagraphs 7(b)(i) and (ii) inclusive, but without limitation thereof, Executive will be in violation thereof if Executive engages in any or all of the activities set forth therein directly as an individual on Executive’s own account, or indirectly as a partner, joint venturer, employee, agent, salesperson, consultant, officer and/or director of any firm, association, partnership, corporation or other entity, or as a stockholder of any corporation in which Executive or Executive’s spouse, child or parent owns, directly or indirectly, individually or in the aggregate, more than one percent (1%) of the outstanding stock.

 

(iv) If it is judicially determined that Executive has violated this subparagraph 7(b) and the Company obtains an injunction or other equitable relief, then the period applicable to each obligation that Executive has been determined to have violated will be automatically extended by a period of time equal in length to the period during which such violation occurred.

 

(c) The Company. For purposes of this paragraph 7, the Company shall include any and all direct and indirect subsidiary, parent, affiliated, or related companies of the Company for which Executive worked or had responsibility at the time of termination of his employment and at any time during the two (2) year period prior to such termination.

 

(d) Non-Solicitation; Non-Association. Executive will not directly or indirectly at any time during the period of Executive’s employment, or for five (5) years thereafter, attempt to disrupt, damage, impair or interfere with the Company’s Business by raiding any of the Company’s employees, soliciting any of them to resign from their employment by the Company or associating with any of them for the express purpose of encouraging them to resign from their employment by the Company, or by disrupting the relationship between the Company and any of its consultants, agents or representatives.

 

Executive acknowledges that this covenant is necessary to enable the Company to maintain a stable workforce and remain in business.

 

(e) Further Covenants.

 

(i) Executive will keep in strict confidence, and will not, directly or indirectly, at any time, during or after Executive’s employment with the Company, disclose, furnish, disseminate, make available or, except in the course of performing Executive’s duties of employment, use any trade secrets or confidential business and technical information of the Company or its customers or vendors, without limitation as to when or how Executive may have acquired such information. Such confidential information shall include, without limitation, the Company’s unique selling, manufacturing and servicing methods and business techniques, training, service and business manuals, promotional materials, training courses and other training and instructional materials, vendor and product information, customer and prospective customer lists, other customer and prospective customer information and other business information. Executive specifically acknowledges that all such confidential information, whether reduced to writing, maintained on any form of electronic media, or maintained in the mind or memory of Executive and whether compiled by the Company, and/or Executive, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by the Company to maintain the secrecy of such information, that such information is the sole property of the Company and that any retention and use of such information by Executive during Executive’s employment with the Company (except in the course of performing Executive’s duties and obligations to the Company) or after the termination of Executive’s employment shall constitute a misappropriation of the Company’s trade secrets.

 

 

 

 

(ii) Executive agrees that upon termination of Executive’s employment with the Company, for any reason, Executive shall return to the Company, in good condition, all property of the Company, including without limitation, the originals and all copies of any materials which contain, reflect, summarize, describe, analyze or refer or relate to any items of information listed in subparagraph 7(e)(i) of this Agreement.

 

(f) Discoveries and Inventions; Work Made for Hire.

 

(i) Executive agrees that upon conception and/or development of any idea, discovery, invention, improvement, software, writing or other material or design that: (A) relates to the business of the Company, or (B) relates to the Company’s actual or demonstrably anticipated research or development, or (C) results from any work performed by Executive for the Company, Executive will assign to the Company the entire right, title and interest in and to any such idea, discovery, invention, improvement, software, writing or other material or design. Executive has no obligation to assign any idea, discovery, invention, improvement, software, writing or other material or design that Executive conceives and/or develops entirely on Executive’s own time without using the Company’s equipment, supplies, facilities, or trade secret information unless the idea, discovery, invention, improvement, software, writing or other material or design either: (x) relates to the business of the Company, or (y) relates to the Company’s actual or demonstrably anticipated research or development, or (z) results from any work performed by Executive for the Company. Executive agrees that any idea, discovery, invention, improvement, software, writing or other material or design that relates to the business of the Company or relates to the Company’s actual or demonstrably anticipated research or development which is conceived or suggested by Executive, either solely or jointly with others, within one (1) year following termination of Executive’s employment under this Agreement or any successor agreements shall be presumed to have been so made, conceived or suggested in the course of such employment with the use of the Company’s equipment, supplies, facilities, and/or trade secrets.

 

(ii) In order to determine the rights of Executive and the Company in any idea, discovery, invention, improvement, software, writing or other material, and to insure the protection of the same, Executive agrees that during Executive’s employment, and, to the extent related to the Company’s Business, for one (1) year after termination of Executive’s employment under this Agreement or any successor agreement, Executive will disclose immediately and fully to the Company any idea, discovery, invention, improvement, software, writing or other material or design conceived, made or developed by Executive solely or jointly with others. The Company agrees to keep any such disclosures confidential. Executive also agrees during Executive’s employment, and, to the extent related to the Company’s Business, for one (1) year after termination of Executive’s employment under this Agreement or any successor agreement, to record descriptions of all work in the manner directed by the Company and agrees that all such records and copies, samples and experimental materials will be the exclusive property of the Company. Executive agrees that at the request of and without charge to the Company, but at the Company’s expense, Executive will execute a written assignment of the idea, discovery, invention, improvement, software, writing or other material or design to the Company and will assign to the Company any application for letters patent or for trademark registration made thereon, and to any common-law or statutory copyright therein; and that Executive will do whatever may be necessary or desirable to enable the Company to secure any patent, trademark, copyright, or other property right therein in the United States and in any foreign country, and any division, renewal, continuation, or continuation in part thereof, or for any reissue of any patent issued thereon. In the event the Company is unable, after reasonable effort, and in any event after ten business days, to secure Executive’s signature on a written assignment to the Company of any application for letters patent or to any common-law or statutory copyright or other property right therein, whether because of Executive’s physical or mental incapacity or for any other reason whatsoever, Executive irrevocably designates and appoints the Corporate Secretary of the Company as Executive’s attorney-in-fact to act on Executive’s behalf to execute and file any such application and to do all other lawfully permitted acts to further the prosecution and issuance of such letters patent, copyright or trademark.

 

 

 

 

(iii) Executive acknowledges that, to the extent permitted by law, all work papers, reports, documentation, drawings, photographs, negatives, tapes and masters therefor, prototypes and other materials (hereinafter, “items”), including without limitation, any and all such items generated and maintained on any form of electronic media, generated by Executive during Executive’s employment with the Company shall be considered a “work made for hire” and that ownership of any and all copyrights in any and all such items shall belong to the Company. The item will recognize the Company as the copyright owner, will contain all proper copyright notices, e.g., “(creation date) mPhase Technologies, Inc., All Rights Reserved,” and will be in condition to be registered or otherwise placed in compliance with registration or other statutory requirements throughout the world.

 

(g) Confidentiality Agreements. Executive agrees that Executive shall not disclose to the Company or induce the Company to use any secret or confidential information belonging to Executive’s former employers. Except as indicated, Executive warrants that Executive is not bound by the terms of a confidentiality agreement or other agreement with a third party that would preclude or limit Executive’s right to work for the Company and/or to disclose to the Company any ideas, inventions, discoveries, improvements or designs or other information that may be conceived during employment with the Company. Executive agrees to provide the Company with a copy of any and all agreements with a third party that preclude or limit Executive’s right to make disclosures or to engage in any other activities contemplated by Executive’s employment with the Company.

 

(h) Relief. Executive acknowledges and agrees that the remedy at law available to the Company for breach of any of Executive’s obligations under this Agreement would be inadequate. Executive therefore agrees that, in addition to any other rights or remedies that the Company may have at law or in equity, temporary and permanent injunctive relief may be granted in any proceeding which may be brought to enforce any provision contained in subparagraphs 7(b), 7(d), 7(e), 7(f) and 7(g) inclusive, of this Agreement, without the necessity of proof of actual damage.

 

(i) Reasonableness. Executive acknowledges that Executive’s obligations under this paragraph 7 are reasonable in the context of the nature of the Company’s Business and the competitive injuries likely to be sustained by the Company if Executive were to violate such obligations. Executive further acknowledges that this Agreement is made in consideration of, and is adequately supported by the agreement of the Company to perform its obligations under this Agreement and by other consideration, which Executive acknowledges constitutes good, valuable and sufficient consideration.

 

Section 8. Survival of Obligations.

 

The obligations of the Executive as set forth in Section 4, Section 6, Section 7, and Sections 9 through 13 below shall survive the term of this Agreement and the termination of Executive’s employment hereunder regardless of the reason(s) therefor.

 

 

 

 

Section 9. Equitable Remedies.

 

Executive agrees that any damages awarded the Company for any breach of Sections 10 through 11 of this Agreement by Executive would be inadequate. Accordingly, in addition to any damages and other rights or remedies available to the Company, the Company shall be entitled to obtain injunctive relief from a court of competent jurisdiction temporarily, preliminarily and permanently restraining and enjoining any such breach or threatened breach and to specific performance of any such provision of this Agreement. In the event that either party commences litigation against the other under this Agreement the prevailing party in said litigation shall be entitled to recover from the other all costs and expenses incurred to enforce the terms of this Agreement and/or recover damages for any breaches thereof, including without limitation reasonable attorneys’ fees.

 

Section 10. Representations and Warranties.

 

  (a) Executive represents and warrants as follows that: (i) Executive has no obligations, legal or otherwise, inconsistent with the terms of this Agreement or with the Executive’s undertaking a relationship with the Company; and (ii) Executive has not entered into, nor will Executive enter into, any agreement (whether oral or written) in conflict with this Agreement.
     
  (b) The Company represents and warrants to the Executive that this Agreement and the Restricted Shares grant have been duly authorized by the Company’s Board of Directors and are the valid and binding obligations of the Company, enforceable in accordance with their respective terms.

 

Section 11. Miscellaneous.

 

  (a) Entire Agreement. This Agreement, the exhibits attached hereto, and the Restricted Shares granted concurrently herewith under Section 4(a) hereof, contain the entire understanding of the parties and supersede all previous contracts, arrangements or understandings, express or implied, between the Executive and the Company with respect to the subject matter hereof or his engagement by the Company as Chief Financial Officer. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement or in the attached exhibits.
     
  (b) Section Headings. The section headings herein are for the purpose of convenience only and are not intended to define or limit the contents of any section.
     
  (c) Severability. If any provision of this Agreement shall be declared to be invalid or unenforceable, in whole or in part, the remainder of this Agreement shall be deemed the same.
     
  (d) No Oral Modification; Waiver or Discharge. No provisions of this Agreement may be modified, waived or discharged orally, but only by a waiver, modification or discharge in writing signed by the Executive and such officer as may be designated by the Board of Directors of the Company to execute such a waiver, modification or discharge. No waiver by either party hereto at any time of any breach by the other party hereto of, or failure to be in compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the time or at any prior or subsequent time.
     
  (e) Invalid Provisions. Should any portion of this Agreement be adjudged or held to be invalid, unenforceable or void, such holding shall not have the effect of invalidating or voiding the remainder of this Agreement and the parties hereby agree that the portion so held invalid, unenforceable or void shall, if possible, be deemed amended or reduced in scope, or otherwise be stricken from this Agreement to the extent required for the purposes of validity and enforcement.

 

 

 

 

  (f) Execution In Counterparts. The parties may sign this Agreement in counterparts, all of which shall be considered one and the same instrument. Facsimile transmissions, or electronic transmissions in .pdf format, of any executed original document and/or retransmission of any executed facsimile or .pdf transmission shall be deemed to be the same as the delivery of an executed original of this Agreement.
     
  (g) Governing Law And Performance. This Agreement shall be governed, construed, interpreted and enforced in accordance with the substantive laws of the state of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the state of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the state of Delaware. Any legal action or proceeding with respect to this Agreement shall be brought in the courts of the state of Delaware or of the United States of America for the State of Delaware. By execution and delivery of this Agreement, each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts. The prevailing party shall be entitled to all applicable remedies, including but not limited to actual damages caused by breach and reasonable attorney’s fees and costs.
     
  (h) Successor and Assigns. This Agreement shall be binding on and inure to the benefit of the successors in interest of the parties, including, in the case of the Executive, the Executive’s heirs, executors and estate. The Executive may not assign Executive’s obligations under this Agreement. Any successor to the Company (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets shall assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business and/or assets which executes and delivers the assumption agreement described in this Section 11(h) or which becomes bound by the terms of this Agreement by operation of law.
     
  (i) Notices. Any notices or other communications provided for hereunder may be made by hand, by certified or registered mail, postage prepaid, return receipt requested, or by nationally recognized express courier services provided that the same are addressed to the party required to be notified at its address first written above, or such other address as may hereafter be established by a party by written notice to the other party. Notice shall be considered accomplished on the date delivered, three days after being mailed or one day after deposit with the express courier, as applicable.

 

Section 12. Section 409A.

 

  (a) It is intended that any compensation or benefits under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) provided under Treasury Regulations Sections 1.409A-1(b), and this Agreement will be construed to the greatest extent possible as consistent with those provisions, and to the extent not so exempt, this Agreement (and any definitions hereunder) will be construed in a manner that complies with Section 409A. For purposes of Section 409A, the Executive’s right to receive any installment payments under this Agreement shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. Severance benefits under Section 6(d) shall not commence until the Executive has a “separation from service” for purposes of Section 409A.
     
  (b) To the extent that any reimbursement of expenses or in-kind benefits constitutes deferred compensation under Section 409A, such reimbursement or benefit shall be provided no later than December 31 of the year following the year in which the expense was incurred. The amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year. The amount of any in-kind benefits provided in one year shall not affect the amount of in-kind benefits provided in any other year.

 

 

 

 

  (c) If the Executive is deemed at the time of his separation from service to be a specified employee for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of the compensation and benefits to which the Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of the Executive’s termination benefits shall be provided to the Executive immediately after the earlier of (A) the expiration of the six-month period measured from the date of the Executive’s separation from service with the Company (as such term is defined in the Treasury Regulations issued under Section 409A of the Code) or (B) the date of the Executive’s death in a lump sum, and any remaining payments due under the Agreement shall be paid as otherwise provided herein.

 

Section 13. Limitation of Payments upon Certain Events.

 

  (a) Limitation on Payments. Notwithstanding anything in this Agreement to the contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise (“Payment”) would (a) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (b) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive’s after-tax proceeds: (i) payment in full of the entire amount of the Payment (a “Full Payment”), or (ii) payment of only a part of the Payment so that Executive receives that largest Payment possible without being subject to the Excise Tax (a “Reduced Payment”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment, notwithstanding that all or some portion the Payment may be subject to the Excise Tax.
     
  (b) The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the date the first Payment is due shall make all determinations required to be made under this Section 13. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the transaction, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder.
     
  (c) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive at such time as requested by the Company or Executive. If the independent registered public accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Payment, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive.

 

IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement under seal as of the date and year first above written.

 

Company:    
      mPhase Technologies, Inc.
       
By: Anshu Bhatnagar    
  Chief Executive Officer    
       
Executive:      
   /s/ Angelia Hrytsyshyn    
By: Angelia Hrytsyshyn    

 

 

 

 

 

Exhibit 10.5

 

mPHASE TECHNOLOGIES, INC.

9841 Washingtonian Boulevard, #200

Gaithersburg, MD 20878

 

Date: January ___, 2022

 

This letter is to confirm the terms of your appointment as a Non-Executive Director of mPhase Technologies, Inc. (the “Company”).

 

Overall, in terms of time commitment, your attendance is expected at all Board of Directors (the “Board”) meetings, meetings of the audit, compensation and nomination committees of the Board (as applicable) and the General Meetings (if requested). In addition, you will be expected to devote appropriate preparation time ahead of each meeting.

 

By accepting this appointment, you have confirmed that you are able to allocate sufficient time to meet the expectations of this position.

 

For and in consideration of the services to be performed by you, the Company agrees to compensate you as follows:

 

1.1 Fee. An annual fee in the amount of $50,000 (the “Annual Fee”), payable on a quarterly basis of $12,500 (the “Quarterly Fee”) upon the last day of each fiscal quarter, subject to the director’s continuous service as a member of the Board and commencing in the quarter in which the director accepts this appointment, provided the director is a member of the Board as of such date. Until the company has raised $10 million, or six months, whichever comes first, in lieu of cash consideration, the Annual Fee will be paid by issuance of the number of restricted shares of the Company’s common stock equivalent to the applicable U.S. Dollar amount due as determined based upon the closing price on the last trading day of such quarter. For so long as the director serves as a member of any Committee of the Board, the amount of such Quarterly Fee shall be increased by $1,250.
   
 

Additionally, the board member shall receive 200,000 of cashless common stock options struck at the closing price of signing of this agreement vesting monthly over three years that the board member serves on the board and or vesting immediately upon the acquisition or change of control of Mphase Technologies. 

 

Certain Representations. You represent and agree that you are accepting the shares of common stock being issued to you pursuant to this Agreement for your own account and not with a view to or for sale of distribution thereof. You understand that the securities are restricted securities and you understand the meaning of the term “restricted securities.” You further represent that you were not solicited by publication of any advertisement in connection with the receipt of the shares and that you have consulted tax counsel as needed regarding the shares.

 

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1.3 The Company agrees to reimburse you for reasonable out-of-pocket expenses incurred by you in connection with your service (including reasonable out-of-pocket expenses and transportation expenses, provided that such expenses are against original and valid receipts and pre-approved by the Company in writing (the “Expenses”).
   
1.4 Payment of the Expenses, as applicable, shall be made against your itemized invoice following the receipt of the relevant invoice, which invoice shall be submitted to the Company within seven (7) days of the end of each calendar month during the term of this letter of appointment.
   
1.5 For the avoidance of any doubt, the Annual Fee and the aforementioned Expenses constitute the full and final consideration for your appointment, and you shall not be entitled to any additional consideration, of any form, for your appointment and service.

 

2. The term of your appointment as a Non-Executive Director of the Company shall be for one year or until the next Annual Meeting of Stockholders.
   
3. You will undertake such travelling as may reasonably be necessary for the performance of your duties, including travelling overseas for Board meetings and site visits if required.
   

4.

 

 

You will undertake such duties and powers relating to the Company, and any subsidiaries or associated companies of the Company (the “Group”) as the Board may from time-to-time reasonably request. Directors have the same general legal responsibilities to the Company as any other director. The Board as a whole is collectively responsible for promoting the success of the Company by directing and supervising the Company’s affairs, inter alia, as follows:

 

 

Providing entrepreneurial leadership of the Group within a framework of prudent and effective controls which enable risk to be assessed and managed; and

 

 

Setting the Group’s strategic aims, ensuring the necessary financial and human resources are in place for the Group to meet its objectives, and reviewing management performance; and

 

  Setting the Group’s values and standards and ensuring its obligations to its shareholders and others are understood and met.

 

5. Confidential Information

 

You undertake to the Company that you shall maintain in strict confidentiality all trade, business, technical or other information regarding the Company, the Group, its affiliated entities and their business affairs including, without limitation, all marketing, sales, technical and business know-how, intellectual property, trade secrets, identity and requirements of customers and prospective customers, the Company’s methods of doing business and any and all other information relating to the operation of the Company (collectively, the “Confidential Information”). You shall at no time disclose any Confidential Information to any person, firm, or entity, for any purpose unless such disclosure is required in order to fulfil your responsibilities as director. You further undertake that you shall not use such Confidential Information for personal gain.

 

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Confidential Information shall not include information that (i) is or becomes part of the public domain other than as a result of disclosure by you, (ii) becomes available to you on a non-confidential basis from a source other than the Company, provided that the source is not bound with respect to that information by a confidentiality agreement with the Group or is otherwise prohibited from transmitting that information by a contractual legal or fiduciary obligation, or (iii) can be proven by you to have been in your possession prior to disclosure of the information by the Company. In the event that you are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process) to disclose any Confidential Information, it is agreed that you, to the extent practicable under the circumstances, will provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive compliance with this paragraph 5. If a protective order or the receipt of a waiver hereunder has not been obtained, you may disclose only that portion of the Confidential Information which you are legally compelled to disclose.

 

Blackout Period. You understand that we have a policy pursuant to which no officer, director or key executive may not engage in transactions in our stock during the period commencing two weeks prior to the end of a fiscal quarter and ending the third day after the financial information for the quarter and year have been publicly released. If a member of the audit committee, if you have information concerning our financial results at any time, you may not engage in transactions in our securities until the information is publicly disclosed.

 

6. Term and Termination

 

6.1 Subject to paragraph 6.1 hereunder, this appointment shall terminate immediately and without claim for compensation on the occurrence of any of the following events:

 

  6.1.1 if you resign as a director of the Company for any reason; and/or
     
  6.1.2 if this appointment is cancelled by the holder or the holders of the shares by which you were appointed; and/or
     
  6.1.3 if you were appointed by other directors in order to temporary fill vacancy on the Board and said appointment is cancelled by the Board; and/or
     
  6.1.4 if you are removed or not re-appointed as a director of the Company at a General Meeting of the Company in accordance with the requirements of the New Jersey Business Corporation Act and/or any other applicable law or regulation (the “Law”) and/or the Company’s Articles of Incorporation; and/or
     
  6.1.5 if you have been declared bankrupt or made an arrangement or composition with or for the benefit of your creditors; and/or
     
  6.1.6 if you have been disqualified from acting as a director (including, but not limited to, an event in which you are declared insane or become of unsound mind or become physically incapable of performing your functions as director for a period of at least 60 days); and/or

 

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  6.1.7 with your death and if you are a corporation or either entity, with your liquidation; and/or
     
  6.1.8 if an order of a court having jurisdiction over the Company requires you to resign.

 

6.2 Any termination of this letter of appointment shall be without payment of damages or compensation (except that you shall be entitled to any accrued Annual Fees or Expenses properly incurred under the terms of this letter of appointment prior to the date of such termination).
   
6.3 Upon termination of this appointment, you shall return all property belonging to a Group company, together with all documents, papers, disks and information, howsoever stored, relating to a Group company and used by you in connection with this position with the Company.

 

7. Subject to the proper performance of your obligations to the Company under this letter of appointment and any applicable law, the Company agrees that you will be free to accept other appointments and directorships provided that:

 

  7.1 They do not in any way conflict with the interests of the Company or any member of the Group; and
     
  7.2 They do not restrict you from devoting the necessary time and attention properly to services to be performed under this letter of appointment; and
     
  7.3 In the event that you become aware of any potential conflicts of interest, these must be disclosed to the Chairman and/or the Chief Executive Officer (the “CEO”) of the Company as soon as they become apparent; and
     
  7.4 The Company acknowledges that you are currently on the Board of Directors of the following companies:

 

8. The Company will put directors’ and officers’ liability insurance in place as soon as possible and will use commercially reasonable effort to maintain such coverage for the full term of your appointment.
   
9. The performance of individual directors and the Board and its committees is evaluated annually. If, in the interim, there are any matters which cause you concern about your position, you should discuss them with the Chairman and/or the CEO as soon as appropriate.
   
10. In addition to any right pursuant to applicable law, occasions may arise when you consider that you need professional advice in the furtherance of your duties as a director. Circumstances may occur when it will be appropriate for you to seek such advice from independent advisors at the Company’s expense, to the extent provided under applicable law and subject to the prior written approval of a majority of the independent directors of the Company and the CEO, such consent shall not be unreasonably withheld.

 

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11. This letter refers to your appointment as a director of the Company and your membership of the audit, compensation, and nomination committees of the board.
   
12. You shall procure that you comply at all times with the Company’s inside trading policies as in effect from time to time.
   
13. You shall discharge your general duties as a director pursuant to the Company’s Articles of Association of the Company and applicable law.
   
14. This letter of appointment shall be governed by and construed in accordance with the law of the State of New York.

 

Please sign the attached copy of this letter and return it to the Company to signify your acceptance of the terms set out above.

 

Sincerely yours,

 

  mPHASE TECHNOLOGIES, INC.
   
  By: /s/ Anshu Bhatnagar 
   

Anshu Bhatnagar

    Chief Executive Officer
     
  By:  

 

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Exhibit 99.1

 

mPhase Names Financial Industry Veteran James Engler, Jr. to its Board of Directors

 

Gaithersburg, MD – January 20, 2022 – mPhase Technologies, Inc. (OTC Pink: XDSL) (“mPhase” or the “Company”), a technology company developing the mPower EV+ (electric vehicle) charging network and consumer engagement platform, is pleased to announce the appointment of financial industry veteran James Engler, Jr. to its Board of Directors.

 

James is currently Vice President and Chief Financial Officer of Rosemore Inc., a privately held investment management firm that has a legacy in the energy and transportation industries dating back more than a century to the founding of the American Oil Company (AMOCO) in 1910. In addition to three years of experience in energy and investment management at Rosemore, he previously was a senior manager at PricewaterhouseCoopers LLP (PwC) for 15 years, serving large SEC filers and private companies in the power and utility industry. His primary client at PwC was utility giant Exelon, where he managed the audits of the 10Qs/Ks for three regulated utilities as well as worked on the audit of the company’s commodities and generation business units.

 

In addition to his work on external SEC audits, he spent a 2-year rotation at PwC’s National Office where he supported multiple engagement teams throughout the country during inspections by the Public Company Accounting Oversight Board (PCAOB); served as a technical consultant to PwC audit teams; and was involved in discourse with SEC, PCAOB, and other regulatory agencies. He has an undergraduate degree from Towson University, is a Certified Public Accountant, and a Level II Candidate in the CAIA program.

 

“With 18 years of oversight experience across a diverse set of businesses in the energy space, James is an exceptional addition to our board,” said mPhase CEO Anshu Bhatnagar. “He has a deep understanding of the oil & gas and utility industries – both of which figure heavily in our future as an EV charging company. These groups will be the most affected by the move to EV, so his knowledge will be beneficial as we work to make our mPower ecosystem a bridge to that future. We plan to have James head our audit committee to give our prospective clients and customers even greater confidence in our ability to become a strong long-term partner.”

 

“This is an exciting and anxious time for many companies facing the transition to EV that is expected to have an historic tipping point in the next few years,” explained board member James Engler, Jr. “I have spent close to two decades involved with companies in different segments of energy production and consumption, so I have a unique operational and historical perspective on the accounting and regulatory requirements necessary for success in the energy sector. I believe that the mPower ecosystem can play a significant role in helping businesses and consumers adapt to an EV lifestyle that will be fundamentally different than what we know today. I look forward to working with my fellow board members to be a part of this exciting future.”

 

 
 

 

About mPhase Technologies

 

mPhase is an emerging EV-centric technology company focused on consumer engagement using data analytics and artificial intelligence to create a monetizable link between consumers and retailers at opportunistic times and places. The Company is currently building a connected ecosystem of EV charging, 5G internet connectivity and software solutions that optimize consumer engagement within the framework of a SaaS/TaaS model, supplemented by an ESG-compliant Marketplace that incentives eco-friendly actions. Branded under the mPower name, this ecosystem will empower the way people shop, dine, fuel and interact with the world to create a richer life experience. The mPower ecosystem is tailored to each individual’s tastes and needs, with particular emphasis on empowering tomorrow’s green consumer. mPhase also has data driven business units generating recurring revenue outside of its consumer ecosystem, in addition to legacy nanobattery technology and a related patent portfolio that are slated for future development. Additional information can be found at the mPhase website, www.mphasetech.com; and at www.mpower.co. Please follow us on twitter: @mPhase_Tech for the latest updates.

 

Safe Harbor Statement

 

This press release contains certain forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These statements are identified by the use of the words “could,” “believe,” “anticipate,” “intend,” “estimate,” “expect,” “may,” “continue,” “predict,” “potential,” “project” and similar expressions that are intended to identify forward-looking statements. All forward-looking statements speak only as of the date of this press release. You should not place undue reliance on these forward-looking statements. Although we believe that our plans, objectives, expectations and intentions reflected in or suggested by the forward-looking statements are reasonable, we can give no assurance that these plans, objectives, expectations or intentions will be achieved. Forward-looking statements involve significant risks and uncertainties (some of which are beyond our control) and assumptions that could cause actual results to differ materially from historical experience and present expectations or projections. Actual results to differ materially from those in the forward-looking statements and the trading price for our common stock may fluctuate significantly. Forward-looking statements also are affected by the risk factors described in the Company’s filings with the U.S. Securities and Exchange Commission. Except as required by law, we undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, after the date on which the statements are made or to reflect the occurrence of unanticipated events.

 

Investor Contact:

 

ir@mphasetech.com

 

Investor Contact

Brian M. Prenoveau, CFA

MZ Group - MZ North America

561-489-5315

XDSL@mzgroup.us

www.mzgroup.us