AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED
This Amended and Restated Employment Agreement (the “Amendment”) is made and entered into July 24, 2023 (the “Effective Date”) between AMMO, Inc., a Delaware corporation (the “Company” or “AMMO”), and Xxxxx Xxxxx (“Employee”). Company and Employee are sometimes referred to individually as “Party” and collectively as “Parties”.
RECITALS
A. The Parties entered into that certain Employment Agreement dated December 15, 2022 through which Employee was employed as the Company’s Chief Operating Officer (the “Agreement”); and
B. The Parties desire to amend the terms and conditions of Agreement via this Amendment, which will supersede all prior agreements of employment, whether written or oral, between the Company and Employee, pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of their mutual covenants and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I.
EMPLOYMENT DUTIES AND TERM
Section 1.1 Employment.
(a) The Company shall employ Employee as XXXX’s Chief Executive Officer (“CEO”) commencing on July 24, 2023 (“Start Date”) with Employee relinquishing the prior title of COO and President. In this capacity, Employee shall perform such duties, assume such responsibilities and devote his full time, attention and energy to the business of managing the operations of the Company as its senior leadership officer, ultimately responsible for the performance of the Company in all respects.
(b) Employee shall not, during the term of Employee’s employment hereunder, be engaged in any activities which materially interfere, directly or indirectly conflict with Employee’s duties and responsibilities for the Company.
(c) Employee shall perform all such duties as instructed by the Company’s Board of Directors (the “Board”), including the duties set forth in Exhibit “A” attached hereto and incorporated herein by reference, as well as such other customary duties as may be required by the Company’s governing instruments, including its certificate of incorporation, bylaws and its corporate governance charters, each as amended or modified from time to time, and by applicable law, rule or regulation, including, without limitation, the Delaware General Corporation Law (the “DGCL”) and the rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”) and any exchange or quotation system on which the Company’s securities may be traded from time to time.
(d) In connection with engagement as the CEO, Employee shall be promptly appointed to serve as a member of the Company’s Board of Directors consistent with that certain Proxy Contest Settlement Agreement entered into by and between the Company and the Urvan Group.
Section 1.2 Term. The Employment is on an at-will basis, terminable by either Party at any time for cause or no cause. The term of this Amendment shall commence on the Effective Date and shall continue, unless sooner terminated, until three (3) years thereafter (the “Initial Term”). The Company, in its discretion, shall have the right to extend this Amendment for up to three (3) additional one (1) year terms (the “Additional Terms,” and collectively with the Initial Term, the “Term”) subject to sixty (60) advance written agreement by Parties.
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ARTICLE II.
COMPENSATION
Section 2.1 Compensation. During the Term of Employment, Company shall pay and Employee shall receive the following compensation:
(a) Salary. The Company shall pay Employee Five Hundred Thousand & 00/100 Dollars ($500,000.00) per year during the Term, paid in accordance with Company’s normal payroll practices (“Salary”). In the sole discretion of the Board, and subject to the recommendation of the Compensation Committee of the Board, Employee shall be eligible for an annual increase in Salary of up to 6% per year based upon his and the Company’s performance.
(b) Stock Compensation. The Company shall issue the Employee 400,000 shares of Common Stock during the Term vested and issuable on a quarterly basis, commencing with the first quarter July 1, 2023-September 30, 2023, to be issued in accordance with the Company’s quarterly issuance schedule.1 The shares under the prior Agreement shall be pro-rated as of the Effective Date pursuant this Amendment. The shares of Common Stock that may be issued by the Company pursuant to this Agreement will not be registered and are being issued pursuant to a specific exemption under the Securities Act of 1933, as amended (the “Securities Act”), as well as under certain state securities laws for transactions by an issuer not involving any public offering or in reliance on limited federal preemption from such state securities registration laws.
The shares of Common Stock to be issued by the Company pursuant to this Agreement must be held and may not be sold, transferred, or otherwise disposed of for value unless such securities are subsequently registered under the Securities Act or an exemption from such registration is available, and that the certificates representing the shares of Common Stock issued pursuant to this Agreement will bear a legend in substantially the following form so restricting the sale of such securities:
The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and are “restricted securities” within the meaning of Rule 144 promulgated under the Securities Act. The securities have been acquired for investment and may not be sold or transferred without complying with Rule 144 in the absence of an effective registration or other compliance under the Securities Act.
The Company reserves the right to issue the shares of Common Stock pursuant to the Company’s equity incentive plan, in its sole discretion.
(c) Stock Option Grant/ Equity Awards. On the Effective Date, the Company shall grant Employee a stock option (“Options”) under the Company’s 2017 Equity Incentive Plan (the “Plan”), as amended to purchase Four Hundred Thousand (400,000) shares of the Company’s common stock pursuant to which: (i) 100,000 shares of the Options shall vest on the Effective Date, and (ii) 300,000 shares of the Options shall vest in equal quarterly installments of 25,000 over 3 years beginning on the first quarter ended September 30, 2023, provided, in each case, that Employee remains in the continuous employ of Employer through such quarterly anniversary date. The Options shall (a) be exercisable at an exercise price per share equal to the closing market price of the Company’s common stock on the date of the grant, (b) have a term of ten years, and (c) be on such other terms as shall be determined by the Board (or the Compensation Committee of the Board) and set forth in a customary form of stock option agreement under the Plan evidencing the Options.
1 From July 1, 2023 to July 24, 2023, Employee shall receive 13,043 shares issuable at the close of the 9/30/23 quarter and Employee shall receive 33,337 shares for the quarter ended September 30, 2023, which represents an equal quarterly amount of shares during the term plus rounded shares to allow for future equal quarterly share issuances of 33,333.
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(d) Performance Bonus. During the Term, and in the sole discretion of the Board and subject to the recommendation of the Compensation Committee, Employee shall be eligible to receive performance-based bonus compensation which shall be determined in the sole discretion of the Compensation Committee of the Board of Directors. The Bonus target shall be 100-125% of Employee’s annual Salary (“Bonus”) and based upon performance for any full fiscal year of service (or pro-rated year as applicable during the first year). Employee shall be entitled to receive a Bonus for year ended March 31, 2024 and each subsequent year based upon the Salary at the time the Bonus is issued, to be paid in within 15 days of closing the financials for fiscal year end, or on such date as determined by the Compensation Committee and approved by the Board if a Company wide bonus policy payment date is adopted
Section 2.2 Participation in Employee Benefit Plans; Incentive Programs. Employee shall be entitled to participate in any employee benefit plans, the Company may establish or adopt for the benefit of employees of the Company. Employee benefits will become available to Employee in the first month following the active employment. Employer shall provide 3% match on 401(k) contributions after one year of employment with vesting of matching funds per the Company timeline and Company written policies. During the Term the Company shall provide Employee with health and medical insurance benefits with 100% of monthly premiums paid for by Company for the Employee and his/her immediate family.
Section 2.3 Time Off. Employee shall be entitled to 4 weeks of paid time off per year, whether because of sickness, vacation or otherwise (“Time Off”). Employee shall receive paid holidays commensurate with the Company policy then in effect for all similarly situated employees. The timing of vacations shall be scheduled in a manner reasonably acceptable to the Company and shall be undertaken with due consideration to ensuring consistent senior managerial oversight of the Company’s business operations during such Time Off. Accrued but unused Time Off shall not roll over to the next fiscal year and is ‘use it or lose it’ Time Off.
Section 2.4 Expenses. The Company shall reimburse Employee’s reasonable and actual out-of-pocket expenses incurred by Employee which are incurred consistent with the Company’s written policies and procedures and/or approved in advance by the Board in furtherance of performance of Employee’s CEO duties and responsibilities under this Amendment.
(a) Relocation Expenses. The Company will provide Employee with up to $12,000 to cover permanent relocation costs incurred by Employee between July-August 2023. Employee shall submit all reimbursable expenses to the Company within 60 days of the Effective Date. Such reimbursement costs are in addition to any relocation expenses permitted under the Prior Agreement.
Section 2.5 Clawback. Any incentive-based or other compensation paid to the Employee under this Amendment or any other agreement or arrangement with the Company which is subject to recovery under any law, government regulation or stock exchange listing requirement, will be subject to the deductions and clawbacks as may be required by law, government regulation or stock exchange listing requirement.
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ARTICLE III.
TERMINATION OF EMPLOYMENT
Section 3.1 Death & Disability of Employee. In the event of the Employee’s death during the Term of Employment, this Amendment shall terminate immediately. If, during the Term, the Employee shall suffer a “Disability” within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, the Company may terminate the Employee’s employment in conformity with applicable state and federal law. Section 22(e)(3) provides, in relevant part: “An individual is permanently and totally disabled if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” In the event the Employee is terminated due to death or Disability, the Employee (or his estate in the event of his death) shall receive (i) all of Employee’s unpaid Salary through the date of death/Disability and a severance benefit of two (2) month’s pay, (ii) all reimbursable expenses and benefits owing to Employee through the date of Employee’s death/Disability together with any benefits payable under any life insurance program in which Employee is a participant, if applicable, and (iii) Employee’s estate shall be entitled to any pro-rata vested or earned Bonus, payable at the end the respective fiscal year.
Section 3.2 Termination with Cause by Company. The Company may terminate this Amendment at any time during the Term for “Cause” upon written notice to Employee, upon which termination shall be effective immediately. For purposes of this Amendment, “Cause” means the following, without limitation:
| (a) | Willful misconduct or willful failure by the Employee to perform his responsibilities to the Company; | |
| (b) | Employee’s material breach of this Amendment; | |
| (c) | Employee’s willful failure to adhere to any written Company policy if Employee has been given reasonable opportunity to comply with such policy or cure his failure; | |
| (d) | Executive engages in misfeasance or malfeasance demonstrated by a pattern of failure to perform job duties diligently and professionally; | |
| (e) | The appropriation (or attempted appropriation) of a material business opportunity of the Company, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Company; | |
| (f) | The misappropriation (or attempted misappropriation) of any of the Company’s funds or property; or | |
| (g) | The conviction of, the indictment for (or procedural equivalent), or entering of a guilty plea or plea of no contest with respect to any crime involving moral turpitude, including breach of trust, dishonesty, or physical harm to any person, or any other criminal proceeding that reflects adversely upon the standing of the Company in the community. |
Section 3.3 Termination Without Cause by Company. The Company may terminate this Amendment at any time during the Term without “Cause” upon 60 days written notice to Employee.
Section 3.4 Termination by Employee for Good Reason. Employee may terminate this Amendment at any time by providing the Company 30 days’ written notice, with or without “Good Reason.” For purposes hereof, the term “Good Reason” shall exist upon (i) a material diminution in the Employees’ Salary; (ii) a material diminution in the Employee’s authority, duties or responsibilities; (iii) a material change in geographic location at which the Employee performs services; or (iv) any material breach by the Company of this Amendment. “Good Reason Process” means the following series of actions: (i) the Employee reasonably determines in good faith that Good Reason exists, (ii) the Employee notifies the Company or the acquiring or succeeding corporation (if applicable) in writing of the existence of Good Reason within 30 days of the occurrence of the event that gave rise to the existence of Good Reason, (iii) the Employee cooperates in good faith with the Company’s (or the acquiring or succeeding corporations, if applicable) efforts to remedy the conditions that gave rise to the existence of Good Reason for a period of 30 days following such notice (such 30 day period, the “Cure Period”), (iv) notwithstanding such efforts, Good Reason continues to exist and (v) the Employee terminates his employment within 30 days after the end of the Cure Period. For the avoidance of doubt, if the Company or the acquiring or succeeding corporation successfully remedies the conditions that gave rise to the existence of Good Reason during the Cure Period, Good Reason shall be deemed not to have existed. In the event the Employee terminates employment under this Amendment for Good Reason, the Employee shall be eligible to receive the severance benefits set forth in Section 3.6
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Section 3.5 Termination by the Employee without Good Reason. The Employee may terminate the Employee’s employment with the Company without Good Reason at any time subject to the Employee’s provision of thirty (30) days’ advance written notice to the Company (the “Applicable Notice Period”), provided, however, that the Company may, in its sole discretion, in lieu of all or part of the Applicable Notice Period, pay the Employee an amount equal to the Salary that would otherwise have been payable to the Employee had the Employee remained employed for the duration of the Applicable Notice Period. In such instance, the Employee’s termination will become effective on the date set forth in a written notice of termination to be provided by the Company (the “Early Termination Date”), and the Employee will be paid an amount equal to the Salary the Employee would have received had the Employee remained employed by the Company between the Early Termination Date and the end of the Applicable Notice Period (the “Early Termination Payment”), with the Early Termination Payment to be made no later than the 30th day following the end of the Applicable Notice Period.
Section 3.6 Compensation upon Termination.
(a) For Cause/Without Good Reason. In the event the Company terminates the Employee’s employment hereunder due to a Termination for Cause or the Employee voluntarily terminates employment with the Company without Good Reason, the Employee shall be entitled to accrued but unpaid Salary, reimbursable expenses and benefits owing to Employee through the day on which Employee is terminated, and all vested Shares through date of termination.
(b) Without Cause/Good Reason. In the event that the Company terminates the Employee’s employment hereunder due to a Termination without Cause or Employee terminates the employment hereunder for Good Reason, and subject to execution of a standard separation agreement and general release of claims in favor of the Company or its successor, Employee shall be entitled to compensation, including Salary and insurance benefits for a period of twelve (12) months from the effective date of termination (the “Severance Period”), and 100% of the Shares and Options, including any remaining unvested Shares and Options which shall immediately become vested and issuable upon the termination date. The Employee’s reimbursable expenses shall be paid within 15 days of Termination. Except as otherwise contemplated by this Amendment, Employee will not be entitled to any other compensation upon termination of this Amendment.
(c) The salary and fringe benefits to be paid are referred to herein as the “Termination Compensation.” Employee shall not be entitled to any Termination Compensation unless, Employee complies with all surviving provisions of any confidentiality agreement that Employee may have signed and Employee’s execution of a standard separation agreement and release of claims in favor of the Company or its successor.
(d) If Employee terminates this Amendment by providing appropriate notice, the Company, at its election, Company may (i) require Employee to continue to perform duties hereunder for the full notice period, or (ii) terminate Employee employment at any time during such notice period, provided that any such termination shall not be deemed to be a termination without cause of Employee’s employment by the Company. Unless otherwise provided by this Section, all compensation and benefits paid by Company to Employee shall cease upon his last day of employment.
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Section 3.7 Change in Control. In addition, notwithstanding the foregoing, in the event that Employee’s continuous status as an employee of the Company is terminated by the Company without Cause or Employee terminates the employment with the Company for Good Reason, in either case upon or within twelve (12) months after a Change in Control (“CoC”) as defined below then, subject to Employee’s execution of a standard separation agreement and general release of claims in favor of the Company or its successor, (i) Employee shall receive the Salary for a period of twelve (12) months, (ii) 100% of the Shares, including any remaining unvested Shares shall immediately become vested and issuable, (iii) Employee shall be entitled to the Bonus through the date of termination, if applicable, and (iv) Employee shall be released from any restriction on Non-Competition as set forth in Section 4.2 herein.
As used in this Amendment, “Change in Control” shall be deemed to have occurred if any “person” (as such term is used in Sections 13(d) and 14(d)(2) of the Exchange Act) is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding securities; (ii) if during any period of 18 consecutive months, individuals who were members of the Board at the beginning of such period (the “Incumbent Directors”) cease at any time during such period for any reason to constitute at least a majority of the Board; (iii) a sale of substantially all of the assets of the Company; or (iv) a liquidation of the Company. “Change in Control” shall specifically exclude any spin-off or reorganization of the Company contemplated prior to the Effective Date of this Amendment.
ARTICLE IV.
RESTRICTIVE COVENANTS
Section 4.1 Confidentiality.
(a) Employee recognizes and acknowledges that Employee has had and will continue to have access to various trade secrets and/or proprietary information (collectively, the “Confidential Information”) concerning the Company. Employee acknowledges that the Confidential Information has been developed solely through the substantial efforts of the Company over a long period of time, and that such Confidential Information is valuable and unique and constitutes a trade secret of the Company.
(b) Employee agrees to keep all Confidential Information of the Company in strict confidence and agrees not to disclose any Confidential Information to any other person, firm, association, company, corporation or other entity for any reason except as such disclosure may be required in connection with his employment hereunder. Employee further agrees not to use any Confidential Information for any purpose except on behalf of the Company.
(c) For purposes of this Amendment, “Confidential Information” shall mean any information, process or idea that is not generally known in the industry, that the Company considers confidential and/or that gives the Company a competitive advantage, including, without limitation: (i) books and records relating to operation, finance, accounting, sales, personnel and management, (ii) policies and matters relating particularly to operations such as customer service requirements, costs of providing service and equipment, operating costs, and price matters, and (iii) various trade or business secrets, including business opportunities, marketing or business diversification plans, business development and bidding techniques, methods of processes, financial data and the like. If Employee is unsure whether certain information or material is Confidential Information, Employee shall treat that information or material as confidential unless Employee is informed by the Company, in writing, to the contrary. “Confidential Information” shall not include any information which: (i) is or becomes publicly available through no act or failure of Employee; (ii) was or is rightfully learned by Employee from a source other than the Company before being received from the Company; (iii) becomes independently available to Employee as a matter of right from a third Party having lawful right to make such communication; or (iv) is developed by Employee independently of any Confidential Information.
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(d) Employee further agrees that upon termination of his employment with the Company, for whatever reason, Employee will surrender to the Company all of the property, notes, manuals, reports, documents and other things in Employee’s possession, including copies or computerized records thereof, which relate directly or indirectly to Confidential Information.
4.2 Non-Competition. Beginning on the date hereof and through the date that is six (6) months following the Termination Date (the “Restricted Period”), Employee will not, and will cause his or her affiliates not to, directly or indirectly, through or in association with any third party, in any territory which the Company operates as of the time Employee is no longer employed by, consulting for, serving as a board member of, or no longer otherwise works for, the Company, (i) engage in, market, sell, or provide any products or services which are the same or similar to or otherwise competitive with the products and services sold or provided by the Company or (ii) own, acquire, or control any interest, financial or otherwise, in a third party or business or manage, participate in, consult with, render services for or otherwise, any business, that in each case is engaged in selling or providing the same, similar or otherwise competitive services or products which the Company is selling or providing, other than ownership of one percent or less of the equity of a publicly traded company. Upon a Change in Control and in the event Employee’s status as employee is terminated by the Company without “cause”, the Restricted Period shall be reduced to ninety (90) business days.
4.3 Non-Solicitation.
(a) During the Restricted Period, Employee will not, and will cause his or her affiliates not to, directly or indirectly, through or in association with any third party (1) call on, solicit, or service, engage or contract with, or take any action which may interfere with, impair, subvert, disrupt, or alter the relationship, contractual or otherwise, between the Company and any current or prospective customer, supplier, distributor, agent, contractor, developer, service provider, licensor, or licensee or other material business relation of the Company, (2) divert or take away the business or patronage (with respect to products or services of the kind or type developed, produced, marketed, furnished, or sold by the Company) of any of the clients, customers, or accounts, or prospective clients, customers, or accounts, of the Company or (3) attempt to do any of the foregoing, either for Employee’s own purposes or for any other third party.
(b) During the Restricted Period, Employee will not, and will cause his or her affiliates not to, directly or indirectly, through or in association with any third party (1) solicit, induce, recruit, or encourage any employees or independent contractors of or consultants to the Company to terminate their relationship with the Company or take away or hire such employees, independent contractors, or consultants or (2) attempt to do any of the foregoing, either for Employee’s own purposes or for any other third party.
Section 4.4 No Derogatory Statements. Employee shall not engage in any pattern of conduct that involves the making or publishing of written or oral statements or remarks (including, without limitation, the repetition or distribution of derogatory rumors, allegations, negative reports or comments) which are disparaging, deleterious or damaging to the integrity, reputation or goodwill of the Company, its competitors or its management.
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Section 4.5 Protected Rights. Employee acknowledges that, notwithstanding any Company policy or agreement that could be read to the contrary, nothing in any agreement or policy prohibits, limits or otherwise restricts Employee or Employee’s counsel from initiating communications directly with, responding to any inquiry from, volunteering information (including confidential or proprietary information of the Company) to, or providing testimony before, the Securities and Exchange Commission, the Department of Justice, the National Labor Relations Board (“NLRB”), any self-regulatory organization or any other governmental authority, in connection with any reporting of, investigation into, or proceeding regarding suspected violations of law. Employee acknowledges that Employee is not required to advise or seek permission from the Company before engaging in any such activity with any such governmental authority. Employee further recognizes that, in connection with any such activity, Employee must inform such governmental authority that any confidential information Employee provides is considered to be confidential. Despite the foregoing, Employee is not permitted to reveal to any third-party, including any governmental, law enforcement, or regulatory authority, information Employee came to learn during the course of employment with the Company that is protected from disclosure by any applicable privilege, including, but not limited to, the attorney-client privilege or the attorney work product doctrine; the Company does not waive any applicable privileges or the right to continue to protect its privileged attorney-client information, attorney work product, and other privileged information. Further, nothing in this agreement shall be construed to prevent or limit Employee from engaging in protected concerted activity under the National Labor Relations Act, to the extent applicable to Employee, for the purpose of collective bargaining or other mutual aid or protection, including (i) making disclosures concerning working conditions or agreement in aid of such concerted activities to other persons or entities (including, but not limited to, other employees, the NLRB, the public or other third parties), (ii) filing unfair labor practice charges with the NLRB, (iii) assisting others who are filing such charges, or (iv) cooperating with the investigative process of the NLRB or other government agencies. Employee is further advised that U.S. federal law provides that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (1) in confidence to a federal, state, or local government official (either directly or indirectly) or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
Section 4.6. Remedies. If the provisions of this Article are violated, or threatened to be violated, in whole or in part, the Company shall be entitled to a temporary restraining order or a preliminary injunction, without the necessity of posting a bond (as substantial economic damages are agreed to and assumed by and between the Parties) restraining or enjoining Employee from using or disclosing, in whole or in part, such Confidential Information, without prejudice to any other remedies the Company may have at law or in equity. If Employee violates this Article, Xxxxxxxx agrees that the Company would be irreparably harmed.
ARTICLE V.
PROPERTY; INVENTIONS AND PATENTS
Section 5.1 Property. Employee agrees that all inventions, innovations, improvements, technical information, systems, software developments, methods, designs, analyses, drawings, reports, service marks, trademarks, trade names, logos, products, equipment, and all similar or related information and materials (whether patentable or unpatentable) (collectively, “Inventions”) which relate to the Company’s actual or anticipated business, research and development, or existing or future products or services and which are conceived, developed, or made by Employee or any other employee or person at his direction, advice or assistance (whether during usual business hours and whether alone or in conjunction with any other person) while employed (and for the Restricted Period if and to the extent such Inventions result from any work performed for the Company, any use of the Company’s premises or property or any use of the Company’s Confidential Information) by the Company (including those conceived, developed, or made prior to the date of this Amendment) together with all patent applications, letters patent, trademark, brands, tradename and service mark applications or registrations, copyrights, and reissues thereof that may be granted for or upon any of the foregoing (collectively referred to herein as, the “Work Product”), belong in all instances to the Company. Employee will promptly disclose such Work Product to the Company and perform all actions reasonably requested by the Company (whether during or after the Term) to establish and confirm the Company’s ownership of such Work Product (including, without limitation, the execution and delivery of assignments, consents, powers of attorney, and other instruments) and to provide reasonable assistance to the Company (whether during or after the Term) in connection with the prosecution of any applications for patents, trademarks, brands, trade names, service marks, or reissues thereof or in the prosecution or defense of interferences relating to any Work Product. Employee recognizes and agrees that the Work Product, to the extent copyrightable, constitutes works for hire under the copyright laws of the United States and that to the extent Work Product constitutes works for hire, the Work Product is the exclusive property of the Company, and all right, title, and interest in the Work Product vests in the Company. To the extent Work Product is not works for hire, the Work Product, and all of Employee’s right, title, and interest in Work Product, including without limitation every priority right, is hereby assigned to and/or irrevocably licensed to the Company with the remuneration and benefits remitted to Employee hereunder agreed to be good and sufficient consideration in support of such assignment or irrevocable license.
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Section 5.2 Cooperation. Employee shall, during the Term and at any time thereafter, assist and cooperate fully with the Company in obtaining for the Company the grant of letters patent, copyrights, and any other intellectual property rights relating to the Work Product in the United States and/or such other countries as the Company may designate. With respect to Work Product, Employee shall, during the Term and at any time thereafter, execute all applications, statements, instruments of transfer, assignment, conveyance or confirmation, or other documents, furnish all such information to the Company and take all such other appropriate lawful actions as the Company requests that are necessary to establish the Company’s ownership of such Work Product. Employee will not assert or make a claim of ownership of any Work Product, and Employee will not file any applications for patents or copyright or trademark registration relating to any Work Product.
Section 5.3 No Designation as Inventor. Waiver of Moral Rights. Employee agrees the Company shall not be required to designate Employee as the inventor or author of any Work Product. Employee hereby irrevocably and unconditionally waives and releases, to the extent permitted by applicable law, all of Employee’s rights to such designation and any rights concerning future modifications to any Work Product. To the extent permitted by applicable law, Employee hereby waives all claims to moral rights in and to any Work Product.
Section 5.4 Pre-Existing and Third-Party Materials. Employee will not, in the course of employment with the Company, incorporate into or in any way use in creating any Work Product any pre- existing invention, improvement, development, concept, discovery, works, or other proprietary right or information owned by Employee or in which Employee has an interest without the Company’s prior written permission. Employee hereby grants the Company a nonexclusive, royalty-free, fully paid, perpetual, irrevocable, sublicensable, worldwide license to make, have made, modify, use, sell, copy, and distribute, and to use or exploit in any way and in any medium, whether or not now known or existing, such item as part of or in connection with such Work Product. Employee will not incorporate any invention, improvement, development, concept, discovery, intellectual property, or other proprietary information owned by any party other than Employee into any Work Product without the Company’s prior written permission.
Section 5.5 Attorney-in-Fact. Employee hereby irrevocably designates and appoints the Company and its duly authorized officers, agents and designees as Employee’s agent and attorney-in-fact, to act for and on Employee’s behalf to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyright, trademark, and mask work registrations with the same legal force and effect as if executed by Employee, if the Company is unable because of Employee’s unavailability, dissolution, mental or physical incapacity, or for any other reason, to secure Employee’s signature for the purpose of applying for or pursuing any application for any United States or foreign patents or mask work or copyright or trademark registrations covering the Work Product owned by the Company pursuant to this Section.
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ARTICLE VI.
MISCELLANEOUS
Section 6.1 Assignment; Binding Effect; Amendment. This Amendment and the rights of the Parties under it may not be assigned (except by operation of law and except that it may be assigned by the Company to an Affiliated Entity) and shall be binding upon and shall inure to the benefit of the Parties and their successors and assigns. This Amendment, upon execution and delivery, constitutes a valid and binding agreement of the Parties enforceable in accordance with its terms and may be modified or amended only by a written instrument executed by all Parties hereto.
Section 6.2 Entire Agreement. This Amendment is the final, complete and exclusive statement and expression of the agreement among the Parties hereto with relation to the subject matter herein, it being understood that there are no oral representations, understandings or agreements covering the same subject matter as this Amendment. This Amendment supersedes, and cannot be varied, contradicted or supplemented by evidence of any prior or contemporaneous discussions, correspondence, or oral or written agreements of any kind concerning Employee’s engagement as an employee of the Company.
Section 6.3 Counterparts. This Amendment may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute but one and the same instrument.
Section 6.4 Notices. All notices or other communications required or permitted hereunder shall be in writing and may be given by depositing the same in United States mail, addressed to the Party to be notified, postage prepaid and registered or certified with return receipt requested, by nationally recognized overnight courier or by delivering the same in person to such Party.
| (a) | If to Employee, addressed to Employee’s last known address in his/her personnel file records. | |
| (b) | If to the Company, addressed to it at: Ammo, Inc. |
Attn: Xxxxxx X. Xxxxx, CFO
0000 X. Xxxx Xxxx
Scottsdale, AZ 85260
Notice shall be deemed given and effective the day personally delivered, the day after being sent by overnight courier, subject to signature verification, and three business days after the deposit in the U.S. mail of a writing addressed as above and sent first class mail, certified, return receipt requested, or when actually received, if earlier. Any Party may change the address for notice by notifying the other Parties of such change in accordance with this Section.
Section 6.5 Governing Law; Arbitration. This Amendment shall be governed by and construed in accordance with the internal laws of the State of Arizona, without giving effect to any choice or conflict of law provision or rule (whether of the State of Arizona or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Arizona; provided, however, that the following provisions shall be governed by the Federal Arbitration Act:
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(a) Any dispute or controversy arising under or in connection with this Amendment shall be settled exclusively by arbitration, in accordance with the rules of the American Arbitration Association for employment disputes as then in effect. For the avoidance of doubt, it is understood and agreed that this agreement to arbitrate includes any and all claims and disputes, including, without limitation, as to arbitrability, with respect to Employee’s employment with the Company or the termination of such employment, including, without limitation, any claim for alleged discrimination, harassment, or retaliation under on the basis of race, sex, color, national origin, sexual orientation, age, religion, creed, marital status, veteran status, alienage, citizenship, disability or handicap, or any other legally protected status, and any alleged violation of any federal, state, or other governmental law, statute or regulation, including, but not limited to, any alleged violation of Title VII of the Civil Rights Act of 1964, other civil rights statutes including, without limitation, 42 U.S.C. § 1981, 42 U.S.C. § 1982, and 42 U.S.C. § 1985, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Worker Adjustment and Retraining Notification Act, the Employee Retirement Income Security Act, the Fair Labor Standards Act, the Occupational Safety and Health Act, the Immigration Reform and Control Act, the Xxxxxxxx-Xxxxx Act, or any state or local law, statute or regulation, as such statutes, laws, and regulations are amended. Judgment may be entered on the arbitrator’s award in any court having jurisdiction.
Section 6.6 No Waiver. No delay of or omission in the exercise of any right, power or remedy accruing to any Party as a result of any breach or default by any other Party under this Amendment shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of or in any similar breach or default occurring later; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.
Section 6.7 Captions. The headings of this Amendment are inserted for convenience only and shall not constitute a part of this Amendment or be used to construe or interpret any provision hereof.
Section 6.8 Severability. In case any provision of this Amendment shall be invalid, illegal, or unenforceable, it shall, to the extent possible, be modified in such manner as to be valid, legal and enforceable but so as most nearly to retain the intent of the Parties. If such a modification is not possible, such provision shall be severed from this Amendment. In either case the validity, legality and enforceability of the remaining provisions of this Amendment shall not in any way be affected or impaired thereby.
Section 6.9 Construction. The Parties have participated jointly in the negotiation and drafting of this Amendment. In the event an ambiguity or question of intent or interpretation arises, this Amendment shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Amendment. Any reference to any federal, state, local or foreign statute shall be deemed to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” means including, without limitation. The Parties intend that representations, warranties and covenants contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached shall not detract from or mitigate the fact the Party is in breach of the first representation, warranty or covenant.
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Section 6.10 No Derogatory Statement. The Company shall not engage in any pattern of conduct that involves the making or publishing of written or oral statements or remarks (including, without limitation, the repetition or distribution of derogatory rumors, allegations, negative reports or comments) which are disparaging, deleterious or damaging to the integrity or reputation of Employee.
Section 6.11 Indemnification by the Company. The Company shall indemnify, defend and hold Employee harmless from any liabilities, obligations, claims, penalties, fines or losses resulting from any unauthorized or unlawful acts of the Company which contravene any applicable statute, rule, regulation or order of any jurisdiction, foreign or domestic.
Section 6.12 Headings. The headings used herein are for convenience only and do not limit the contents of this Amendment.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed effective as of the day and year first above written.
| AMMO, INC. | ||
| /s/ Xxxxxx X. Xxxxx | ||
| By: | Xxxxxx X. Xxxxx | |
| Its: | Chief Financial Officer | |
| EMPLOYEE: | ||
| /s/ Xxxxx X. Xxxxx | ||
| By: | Xxxxx X. Xxxxx | |
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Supplemental Information For
Dated July 24, 2023
The following is a list of Exhibits to the above referenced Agreement, not attached herewith. Any omitted information will be furnished to the Securities and Exchange Commission upon request.
| 1. | Exhibit “A” Roles And Responsibilities Chief Executive Officer For AMMO, INC. (the “Company”) |
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