Form 8-K Slinger Bag Inc. For: Jun 21

June 23, 2021 5:31 PM EDT

Get instant alerts when news breaks on your stocks. Claim your 1-week free trial to StreetInsider Premium here.

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

June 21, 2021
Date of Report (Date of earliest event reported)

 

SLINGER BAG INC.
(Exact Name of Registrant as Specified in Charter)

 

Nevada   333-214463   61-1789640
(State or other jurisdiction   (Commission   (IRS Employer
of incorporation)   File Number)   Identification No.)

 

2709 N. Rolling Road, Suite 138
Windsor Mill, MD
21244
(Address of Principal Executive Offices)

 

(443) – 407 7564
(Registrant’s telephone number, including area code)

 

N/A
(Former Name or Former Address, if Changed Since Last Report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

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

 

Securities registered pursuant to Section 12(b) of the Act: Not Applicable

 

Emerging growth company [X]

 

 

 

 

 

 

Item 1.01 Entry into a Material Definitive Agreement

 

Foundation Sports Systems, LLC Membership Interest Purchase Agreement

 

On June 21, 2021, the Slinger Bag Americas Inc., the Company’s wholly-owned subsidiary (“SBA”) entered into a membership interest purchase agreement (“MIPA”) with Charles Ruddy, an individual residing in the State of Massachusetts (the “Seller”), pursuant to which SBA acquired a 100% ownership stake in Foundation Sports Systems, LLC, a Massachusetts limited liability company (“Foundation Sports”), in exchange for 1,000,000 shares of common stock of the Company to be issued in three tranches (the “Purchase Price”): (i) 600,000 shares of common stock to be issued and delivered to the order of the Seller on June 18, 2021 (the “Closing Date”), 200,000 more shares of common stock to be issued and delivered to Seller on the first anniversary of the Closing Date and (iii) 200,000 more shares of common stock to be issued and delivered to Seller on the second anniversary of the Closing Date (collectively, the “Shares”), provided that 10% of the shares of each tranche will be held back by SPA and not delivered to the Seller for a period of 12 months from the date of their issuance

 

Foundation Sports provides B2B cloud based business software and services, including operational (booking) and payments software as well as digital platform management (web site design, hosting, IOS and Android apps), to the tennis industry. Its products enable tennis facilities to optimize their marketing, operations and customer facing / self-service technology that strengthens their brand and increases customer engagement.

 

The Shares are subject to a 12-month lock-up from their date of delivery during which time they may not be offered or sold by the Seller or any other recipient thereof without the express written consent of SBA.

 

On June 21, 2021, at the direction of SPA, Foundation Sports entered into the following agreements:

 

Charles Ruddy Service Agreement

 

A service agreement with the Seller pursuant to which the Seller was engaged as and became the President of Foundation Sports. The Seller will be paid a “base salary” of U.S. $250,000.00 per annum. Foundation Sports will contribute 5.0% of the Seller’s base salary (on an annualized basis) to a self- directed pension plan. The Seller be entitled to participate in:

 

  i. the the Foundation Sports annual incentive plan at a 30% of base salary eligibility level.
  ii. any equity or option plan adopted for its directors, officers and/or executives of Foundation Sports, including the Company’s Incentive Stock Option Plan.
  iii. (subject to confirmation from the Company) an award of shares of the Company’s common stock or warrants in value equal to 50% of the Seller’s applicable base salary on an annual basis.
  iv. standard executive benefit plans, such plan to include without limitation, group medical, prescription drug, dental & vision care, life and permanent disability insurance plans.

 

2

 

 

The Seller’s employment with Foundation Sports may be terminated at any time subject to certain compensation rights in favor of the Seller.

 

Jaana Gilbert Service Agreement

 

A service agreement with the Jaana Gilbert (“JG”) pursuant to which JG was engaged as and became the Principal Engineer of Foundation Sports. JG will be paid a “base salary” of U.S. $150,000.00 per annum. Foundation Sports will contribute 5.0% of JG’s base salary (on an annualized basis) to a self-directed pension plan. JG be entitled to participate in:

 

  i. the the Foundation Sports annual incentive plan at a 15% of base salary eligibility level.
  ii. standard executive benefit plans, such plan to include without limitation, group medical, prescription drug, dental & vision care, life and permanent disability insurance plans.

 

JG’s employment with Foundation Sports is for a term of 12 months subject to mutually agreed extensions and may be terminated at any time subject to certain compensation rights in favor of JG.

 

George Kustas Consulting Agreement

 

A consulting agreement with the George Kustas (“GK”) pursuant to which GK was engaged as and became a technical service consultant of Foundation Sports. GK will be paid a monthly consulting fee of U.S. $7,500.

 

The term of JG’s consulting engagement with Foundation Sports is 12 months subject to mutually agreed extensions.

 

A copy of the MIPA, the Charles Ruddy Service Agreement, the Jaana Gilbert Service Agreement and the George Kustas Consulting Agreement are attached hereto as Exhibits 10.1 through 10.4 and the above summaries of such agreements is subject to full terms of the applicable agreement.

 

Item 2.01 Completion of Acquisiton or Disposition of Assets

 

The disclosure in Item 1.01 is hereby incorporated by refrence in full.

 

Item 3.02 Unregistered Sales of Equity Securities

 

On June 23, 2021, the Company issued 540,000 shares of its common stock to the Seller under the MIPA, which consists of 600,000 shares less a hold-back of 10% (i.e., 60,000) shares as part payment of the first tranche of the Purchase Price.

 

Item 9.01 Financial Statements and Exhibits.

 

(c) Exhibits. The following documents are filed as exhibits to this report.

 

10.1 Membership Interest Purchase Agreement dated June 21, 2021
10.2 Charles Ruddy Service Agreement dated June 21, 2021
10.3 Jaana Gilbert Service Agreement dated June 21, 2021
10.4 George Kustas Consulting Agreement dated June 21, 2021

 

3

 

 

SIGNATURES

 

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

 

  Slinger Bag inc. a Nevada corporation
   
Dated: June 23, 2021 By: /s/ Mike Ballardie
    Chief Executive Officer and Sole Director

 

4

 

 

Exhibit 10.1

 

MEMBERSHIP PURCHASE AGREEMENT

 

THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (the “Agreement”) is entered into effective as of the 21st day of June 2021 (the “Effective Date”) by and among Charlie Ruddy as the “Seller”, Slinger Bag Americas Inc. as the “Buyer” and Foundation Sports Systems, LLC (“Foundation”). Foundation, Seller and Buyer are sometimes referred to collectively herein as the “Parties”, and each individually as a “Party”.

 

1. RECITALS:

 

WHEREAS, Seller owns 100% of the membership interests, which include, for the avoidance of doubt and without limitation, economic, voting and any and all other forms of ownership or participation interests, in Foundation (the “Purchased Interests”).

 

WHEREAS, Seller desires to assign, convey and transfer to Buyer, and Buyer desires to purchase from Seller, the Purchased Interests pursuant to the terms and conditions of this Agreement.

 

WHEREAS, Buyer has been given the opportunity to conduct all due diligence on Foundation Sports Systems, LLC (“Foundation”) and the Purchased Interests to the complete satisfaction of Buyer.

 

NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

 

2. MEMBERSHIP INTEREST ASSIGNMENT:

 

2.1 Assignment. Seller hereby irrevocably and unconditionally assigns, conveys, transfers, sells and delivers to Buyer, and Buyer hereby purchases from Seller, the Purchased Interests pursuant to this Agreement.

 

2.2 Purchase Price. Buyer hereby acquires the Purchased Interests from the Seller for 1,000,000 shares of common stock (the “Shares”) of Slinger Bag (the “Purchase Price”) to be issued and delivered to Seller in three tranches, the first of which will consist of 600,000 Shares to be issued and delivered in accordance with the terms hereof on the Closing Date, the second of which will be 200,000 Shares to be issued and delivered to Seller in book entry format on the first anniversary of the Closing Date and the third of which will be be 200,000 Shares to be issued and delivered to Seller in book entry format on the second anniversary of the Closing Date. Notwithstanding the foregoing, 10% of the shares representating the Purchase Price will be held back by the Buyer and not delivered to the applicable recipients thereof in accordance with clause 2.3 below for a period of 12 months from the date of their issuance.

 

2.3 Payment. The first tranche of the Purchase Price shall be payable in full at the Closing by issuing and delivering 600,000 Shares to the Seller in book entry format. Charlie Ruddy to receive 60% of each payout tranche. George N, Kustas to receive 20% of each payout tranche. Jaana Kateriina Gilbert to receive 20% of each payout tranche.

 

2.4 Lock-Up. The Shares will be subject to a 12-month lock-up from their date of delivery during which time they may not be offered or sold by the Seller or any other recipient thereof without the express written consent of the Buyer.

 

2.5 Approval and Release. Foundation hereby approves the assignment and conveyance of the Purchased Interests to the Buyer. Foundation and Seller hereby irrevocably and unconditionally release each other from any and all claims arising out of or in connection with Foundation.

 

3. REPRESENTATIONS AND WARRANTIES OF SELLER: Seller represents and warrants to Buyer that the representations and warranties contained in this Article 3 are true, correct, and complete as of the Effective Date and will be correct and complete as of the Closing Date (if different than the Effective Date), except as otherwise expressly provided for to contrary herein:

 

3.1 Residence. Seller resides at the address noted on the execution page hereof.

 

Page 1 of 6

 

  

3.2 Execution and Performance of Agreement. Seller has the requisite right, power, authority, and capacity to enter into, execute, deliver, perform, and carry out the terms and conditions of this Agreement, as well as all transactions contemplated hereunder. All requisite proceedings have been taken and Seller has obtained all approvals, consents, and authorizations necessary to authorize the execution, delivery, and performance by Seller of this Agreement. This Agreement has been duly and validly executed and delivered by Seller and constitutes the valid, binding, and enforceable obligation of Seller, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditor’s rights generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law.

 

3.3 Effect of Agreement. As of the Closing, the consummation by Seller of the transactions herein contemplated, including the execution, delivery and consummation of this Agreement, will not:

 

(a) Violate any judgment, statute, law, code, act, order, writ, rule, ordinance, regulation, governmental consent or governmental requirement, or determination or decree of any arbitrator, court, or other governmental agency or administrative body, which now or at any time hereafter may be applicable to and enforceable against the relevant party, work, or activity in question or any part thereof (collectively, “Requirement of Law”) applicable to or binding upon Seller or the Purchased Interests;

 

(b) Violate the Certificate of Organization or operating agreement of the Seller or any material agreement, contract, mortgage, indenture, bond, bill, note, or other material instrument or writing binding upon Seller or to which Seller or the Purchased Interests is subject; or

 

(c) Result in the breach of, constitute a default under, constitute an event which with notice or lapse of time, or both, would become a default under, or result in the creation of any lien, security interest, charge or encumbrance upon any part of the assets of Seller or the Purchased Interests under any agreement, commitment, contract (written or oral) or other instrument to which Seller is a party, or by which the Purchased Interests (or any part thereof) is bound or affected.

 

3.4 Ownership.

 

(a) The Purchased Interests are owned beneficially, legally and of record by Seller.

 

(b) Seller has full right, title and interest in, to and under the Purchased Interests, free and clear of any lien, claim, indebtedness, participation or encumbrance whatsoever, and full and unrestricted right and power to assign, convey, sell and deliver the Purchased Interests pursuant to the provisions of this Agreement without obtaining the consent or approval of any other person.

 

(c) There are no outstanding subscriptions, options, warrants, calls, commitments, rights, participations or agreements to which Seller is a party or by which it is bound relating to the Purchased Interests.

 

(d) Seller has made no issuance, transfer, sale, pledge, hypothecation, or any assignment of any kind with regard to the Purchased Interests.

 

3.5 Securities Representations. Seller is not subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act.

 

3.6 Litigation. There are no investigations, actions, suits, proceedings, administrative actions, requests for information or any similar actions threatened or pending that affects Seller’s rights to the Purchased Interests or the sale of the Purchased Interests.

 

3.7 Insolvency. Seller is not insolvent, nor is any insolvency pending; no proceedings are pending by or against it in bankruptcy in any state or federal court.

 

Page 2 of 6

 

 

3.8 Broker and Similar Fees. There has been no act or omission by any Seller which would give rise to any valid claim against any of the Parties for a brokerage commission, finder’s fee, or other in-kind payment in connection with the transactions contemplated hereunder.

 

3.9 Reliance. Seller recognizes, understands, and agrees that Buyer is entitled to and will be relying on the full accuracy of the above representations, warranties, covenants and agreements in effectuating the transactions contemplated hereby.

 

3.10 Non-Infringement. The business and operations of Foundation do not infringe or violate any trade secret, patent or intellectual property right of any third-party and no party has provided any Seller or Foundation with any notice of trade secret, patent or intellectual property infringement with respect to any aspect of the business or operations of Foundation.

 

4. REPRESENTATIONS AND WARRANTIES OF BUYER: Buyer represents and warrants to Seller that the representations and warranties contained in this Article 4 are true, correct, and complete as of the Effective Date and will be correct and complete as of the Closing Date (if different than the Effective Date), except as otherwise expressly provided for to contrary herein:

 

4.1 Organization. Buyer is duly organized, validly existing, and in good standing under the laws of the State of Delaware and the address listed for Buyer is true and correct.

 

4.2. Execution and Performance of Agreement. Buyer has the requisite right, power, authority, and capacity to enter into, execute, deliver, perform, and carry out the terms and conditions of this Agreement, as well as all transactions contemplated hereunder. All requisite proceedings have been taken and Buyer has obtained all approvals, consents, and authorizations necessary to authorize the execution, delivery, and performance by Buyer of this Agreement. This Agreement has been duly and validly executed and delivered by Buyer and constitutes the valid, binding, and enforceable obligation of Buyer, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditor’s rights generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law.

 

4.3 Effect of Agreement. As of the Closing, the consummation by Buyer of the transactions herein contemplated, including the execution, delivery and consummation of this Agreement, will not:

 

(a) Violate any Requirement of Law applicable to or binding upon Seller or Buyer; or

 

(b) Violate any material agreement, contract, mortgage, indenture, bond, bill, note, or other material instrument or writing binding upon Buyer or to which Buyer is subject.

 

4.4 Investigation. Buyer is purchasing the Purchased Interests based upon its own independent investigation and evaluation of Foundation. Buyer is expressly not relying on any oral representations made by Seller with regard to the Purchased Interests or Foundation.

 

5. CLOSING:

 

5.1 Closing. The closing of the transactions contemplated under this Agreement (the “Closing”) and the transfer of the Purchased Interests by Seller to Buyer shall take place after the execution of this Agreement, on the day the first tranche of the Purchase Price (i.e., 600,000 Shares) is received by the Seller (the “Closing Date”).

 

5.2 Obligations of Seller. At the Closing, Seller shall deliver or cause to be delivered:

 

(a) to Buyer an executed version of this Agreement; and

 

(b) All other documents requested by Buyer to effect the transfer of the Purchased Interests hereunder.

 

Page 3 of 6

 

 

1.1 Obligations of Buyer. At the Closing, Buyer shall deliver or cause to be delivered:

 

(a) To Seller, an executed version of this Agreement; and

 

(b) To Seller, or to the Seller’s order, the Purchase Price.

 

6. POST-CLOSING COVENANTS:

 

6.1 Survival of Representations. All of the covenants, agreements, representations, and warranties made by each Party, or pursuant hereto or in connection with the transactions contemplated hereby, shall survive the Closing for a period of two (2) years.

 

6.2 Expenses. All costs and expenses incurred in conducting the assignment and conveyance described in this Agreement shall be borne by the Party incurring said expense, provided that the Buyer has agreed to pay Seller’s reasonable fees of counsel in connection with reviewing and negotiating this Agreement and all documents related to this sale.

 

6.3 Taxes. Buyer and Seller shall bear the responsibility for their respective taxes, if any, arising out of the consummation of the transactions contemplated herein and for the filing of all necessary tax returns and reports with respect to such taxes.

 

6.4 Reasonable Assistance. Seller shall use and exercise its best efforts, taking all reasonable, ordinary and necessary measures to ensure an orderly and smooth Closing and the transfer of the Purchased Interests to Buyer.

 

7. ADDITIONAL PROVISIONS:

 

7.1 Entire Agreement. This Agreement, and all references, documents, or instruments referred to herein, contains the entire agreement and understanding of the Parties in respect to the subject matter contained herein. The Parties have expressly not relied upon any promises, representations, warranties, agreements, covenants, or undertakings, other than those expressly set forth or referred to herein. This Agreement supersedes (i) any and all prior written or oral agreements, understandings, and negotiations between the Parties with respect to the subject matter contained herein; and, (ii) any course of performance and/or usage of the trade inconsistent with any of the terms hereof.

 

7.2 Severability. Each provision herein is severable and independent of any other term or provision of this Agreement. If any term or provision hereof is held void or invalid for any reason by a court of competent jurisdiction, such invalidity shall not affect the remainder of this Agreement.

 

7.3 Governing Law. This Agreement shall be governed by the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. If any court action is necessary to enforce the terms and conditions of this Agreement, the Parties hereby agree that the Supreme Court of New York, New York County, shall be the sole jurisdiction and venue for the bringing of such action.

 

7.4 Enforcement. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, it is agreed that the Parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which they are entitled at law or in equity. The remedies of the Parties under this Agreement are cumulative and shall not exclude any other remedies to which any person may be lawfully entitled.

 

Page 4 of 6

 

 

7.5 Waiver. No failure by any Party to insist on the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy on a breach shall constitute a waiver of any such breach or of any other covenant, duty, agreement, or condition.

 

7.6 Recovery of Fees by Prevailing Party. In the event of any legal action (including arbitration) to enforce or interpret the provisions of this Agreement, the non-prevailing Party shall pay the reasonable attorneys’ fees and other costs and expenses, including expert witness fees, of the prevailing Party in such amount as the court shall determine, as well as same incurred by the prevailing Party in enforcing, or on appeal from, a judgment in favor of the prevailing Party. The preceding sentence is intended by the Parties to be severable from the other provisions of this Agreement and to survive and not be merged into such judgment.

 

7.7 Recitals. The facts recited in Article 1, above, are hereby conclusively presumed to be true as between and affecting the Parties.

 

7.8 Amendment. This Agreement may be amended or modified only by a writing signed by all Parties.

 

7.9 Successors and Assigns. Except as expressly provided in this Agreement, each and all of the covenants, terms, provisions, conditions, and agreements herein contained shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties. This Agreement is not assignable by either Party without the expressed written consent of all Parties.

 

7.10 Provision Not Construed Against Party Drafting Agreement. This Agreement is the result of negotiations by and between the Parties; is the product of the work and efforts of all Parties; and, shall be deemed to have been drafted by all Parties. Each Party has had the opportunity to be represented by independent legal counsel of its choice. In the event of a dispute, no Party may claim that any provision should be construed against any other Party by reason of the fact that it was drafted by one particular Party.

 

7.11 Further Assurances. Each Party agrees (i) to furnish upon request to each other Party such further information; (ii) to execute and deliver to each other Party such other documents; and, (iii) to do such other acts and things, all as another Party may reasonably request for the purpose of carrying out the intent of this Agreement and the transactions envisioned hereunder. However, this provision shall not require that any additional representations or warranties be made and no Party shall be required to incur any material expense or potential exposure to legal liability pursuant to this Section 3.11.

 

7.12 Best Efforts. Each Party shall cooperate in good faith with the other Parties generally, and in particular, the Parties shall use and exercise their best efforts, taking all reasonable, ordinary and necessary measures to ensure an orderly and smooth relationship under this Agreement, and further agree to work together and negotiate in good faith to resolve any differences or problems which may arise in the future. However, the obligations under this Section 3.12 shall not include any obligation to incur substantial expense or liability.

 

7.13 Definitional Provisions. For purposes of this Agreement, (i) those words, names, or terms which are specifically defined herein shall have the meaning specifically ascribed to them; (ii) wherever from the context it appears appropriate, each term stated either in the singular or plural shall include the singular and plural; (iii) wherever from the context it appears appropriate, the masculine, feminine, or neuter gender, shall each include the others; (iv) the words “hereof”, “herein”, “hereunder”, and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, and not to any particular provision of this Agreement; (v) all references to “Dollars” or “$” shall be construed as being United States Dollars; (vi) the term “including” is not limiting and means “including without limitation”; and, (vii) all references to all statutes, statutory provisions, regulations, or similar administrative provisions shall be construed as a reference to such statute, statutory provision, regulation, or similar administrative provision as in force at the date of this Agreement and as may be subsequently amended.

 

8. EXECUTION: This Agreement may be executed in any number of counterparts, all of which when taken together shall be considered one and the same agreement, it being understood that all Parties need not sign the same counterpart. In the event that any signature is delivered by Fax or E-Mail such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such Fax or E-Mail were an original thereof.

 

Page 5 of 6

 

 

IN WITNESS WHEREOF, this MEMBERSHIP INTEREST PURCHASE AGREEMENT has been duly executed by the Parties, and shall be effective as of and on the Effective Date set forth above. Each of the undersigned Parties hereby represents and warrants that it (i) has the requisite power and authority to enter into and carry out the terms and conditions of this Agreement, as well as all transactions contemplated hereunder; and, (ii) it is duly authorized and empowered to execute and deliver this Agreement.

 

Seller:  
     
   
Name: Charles Ruddy  
Address:    
Email: charlie@foundationtennis.com  
     
Buyer:  
     
Singer Bag Americas Inc.  
     
   
Name: Mike Ballardie  
Title: Authorized Signatory  
Address: 2709 N. Rolling Road, Unit 138  
Windsor Mill, Maryland 21244  
Email: mike@slingerbag.com with a copy to mark.radom@slingerbag.com
     
Foundation Sports Systems, LLC  
     
   
Name: Charlie Ruddy  
Title: Managing Member and Authorized Signatory  
Email: charlie@foundationtennis.com  
     
We agree not to offer or sell any Shares we receive pursuant to this Agreement for a period of 12 months from the date of receipt.
     
George N. Kustas  
     
   
     
Jaana Kateriina Gilbert  
   
   

 

Page 6 of 6

 

 

Exhibit 10.2

 

 

 

Service Agreement

 

This agreement (this “Agreement”) is effective as of the Effective Date (as defined below)

 

BETWEEN:

Foundation Sports Systems LLC, a Massachusetts limited liability company (the “Company”)

 

AND:

 

Charles Ruddy, an individual residing in Massachusetts (the “Executive”)

 

A. The Company has offered to Executive the position of President of the Company.

 

B. The Company and the Executive wish to formally record the terms and conditions upon which the Executive will be hired by the Company and serve as the Slinger Bag Group’s strategic leadership team and President of the Company.

 

C. Each of the Company and the Executive has agreed to the terms and conditions set forth in this Agreement, as evidenced by their respective execution hereof.

 

NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

Article 1

 

DESCRIPTION OF POSITION, ROLE

 

  (a) Engagement of the Executive as President of the Company. Effective from the date on which the Company is acquired by Slinger Bag Inc. or one of its affiliates and reporting directly to the Chief Executive Officer of the Slinger Bag group (the “CEO”) and/or its Board of Directors of Slinger Bag Inc. (the “Board”), the Executive will serve as the President of the Company on the terms and subject to the conditions of this Agreement;
     
  (b) The Executive’s primary responsibilities include providing the strategic vision for the Company, implementing the appropriate company structure, defining the core business objectives, making major corporate decisions, directing and managing the overall operations and resources of the Company, acting as the main point of communication between the Board, CEO and corporate operations and being the public face of the Company, in each case subject to, and in accordance with, applicable laws and regulations.
     
  (c) The Executive will faithfully, honestly and diligently serve the Company, co-operate with the Slinger Bag group and Company and utilize maximum professional skill and care to ensure that all services rendered hereunder are to the satisfaction of the Company, acting reasonably. The Executive will provide any other services not specifically mentioned herein, but, which by reason of the Executive’s capability, the Executive knows or ought to know to be necessary to ensure that the best interests of the Company are maintained at all times.
     
  (d) The Executive will assume, obey, implement and execute such duties, directions, responsibilities, procedures, policies and lawful orders as may be determined or given from time to time by the CEO and the Board.

 

 

 
 

 

  (e) The Executive will report the results of his duties hereunder to the CEO and/or Board as it may request from time to time.

 

1.1 1.3 Entity: The Executive’s primary role covers the Company, but to the extent requested by the CEO or Board, the Executive will devote such of his time, skills, expertise and experience as is requested to all the Company’s group entities (currently Slinger Bag Inc, Slinger Bag Americas Inc, Slinger Bag Ltd (Israel), Slinger Bag Canada Inc, Slinger Bag International (UK) Inc), as well as any future acquisitions the company may make or subsidiaries or affiliates the Company may establish.

 

Article 2

 

COMPENSATION

 

2.1 Remuneration.

 

  i. Salary: The Executive shall be paid a “base salary” of U.S. $250,000.00 per annum. This, (together with any increases thereto as hereinafter provided) will be noted as “Base Salary”. The Base Salary shall be payable in accordance with the Company’s normal payroll procedures in effect from time to time.
     
  ii. vacation: The Executive shall be entitled to 3 weeks paid vacation on an annual basis for the first 3 years of this agreement, after which the entitlement increases to 4 weeks annually, and after 7 years to 5 weeks. While Executive’s are strongly encouraged to take their full vacation entitlement within the calendar year, in circumstances where full entitlement is not used by end of fiscal year end (April 30th) of year following entitlement, any unused days shall – at Executive’s option- be either (a) carried forward to the following year, or (2) paid out in cash (at Executive’s prorated base salary).
     
  iii. Pension contribution: as the Company does not (as yet) have a formal Executive Pension Plan, the Company will contribute 5.0% of the Executive’s Base Salary (on an annualized basis) to a self- directed pension plan at the financial institution of the Executive’s choosing. The information regarding the pension plan shall be provided to the payroll team who will execute the payments into the pension plan via adp payroll or other method of the Company’s choosing.

 

2.2 Incentive Plans: The Executive will be entitled to participate in:

 

  i. the Company’s annual incentive plan at a 30% of Base Salary eligibility level. The plan has components of both company AND individual performance targets. The final payout may vary up or down based on the performance against targets, but at 100% achievement level, the Executive is eligible for a 30% performance bonus. Specific targets for the 2021-2022 plan (for year ending April 30, 2022) are being finalized, but the principles of the plan are targets each with a “floor, target, & ceiling parameter”. Payouts are calculated based on Base Salary at time of plan finalization, with each component measured against audited year end results. In cases where the eligible Executive’s employment period is less than 52 weeks, bonus eligibility will be prorated on weeks of service with the company divided by 52.
     
  ii. company equity & or share option plans. Executive is eligible to participate in any equity or option plan adopted for its directors, officers and/or Executives. Currently the only plan the Company has relating to equity/share option plan is an Incentive Stock Option Plan (“ISOP”). Parameters for the 2021-2022 ISOP are to be finalized in the coming months, but the program will be retroactive to the date of employment in terms of award grant for the 2021-2022 year (based on May 1, 2021-April 30, 2022 fiscal year). Subject to confirming this by email or otherwise in writing, the Company intends to award the Executive shares of its common stock or warrants in value equal to 50% of the Executive’s applicable Base Salary on an annual basis.

 

 
 

 

2.3 Other Renumeration:

 

  i. “Employer Benefit Plan” the Executive shall be eligible to participate in standard executive benefit plans (for U.S. based executives), such plan to include without limitation, group medical, prescription drug, dental & vision care, life and permanent disability insurance as well as the above noted pension plan. As the Company currently does not have a plan in place, the Executive shall seek individual coverage for the above noted items and shall be re-imbursed by the Company for such costs.
     
  ii. Out of pocket expenses: Executive shall be re-imbursed for all reasonable business expenses incurred in connection with his duties to the company. This includes mobile phone costs, costs of home office, travel related expenses, or any other expense incurred on behalf of the company.

 

ARTICLE 3

 

LIABILITY INSURANCE INDEMNIFICATION

 

3.1 Officers & Directors Insurance Indemnification: the Company will insure the Executive (including heirs, executors, and administrators) with coverage under a standard directors’ and officers’ liability insurance policy at the Company’s expense.

 

ARTICLE 4

 

CONFIDENTIALITY AND NON-COMPETITION

 

4.1 Maintenance of Confidential Information.

 

a) The Executive acknowledges that, in the course of performing his/her obligations hereunder, the Executive may, either directly or indirectly, have access to and be entrusted with confidential information (whether oral, written or by inspection) relating to the Company or its respective affiliates, associates or customers (the “Confidential Information”).
   
b) The Executive acknowledges that, the Company’s Confidential Information constitutes a proprietary right, which the Company is entitled to protect. Accordingly, the Executive covenants and agrees that, as long as he/she works for the Company, the Executive will keep in strict confidence the Company’s Confidential Information and will not, without prior written consent of the Company, disclose, use or otherwise disseminate the Company’s Confidential Information, directly or indirectly, to any third party
   
c) The Executive agrees that, upon termination of his/her services for the Company (for whatever reason), he/she will immediately surrender to the Company or, at the Executive’s option, destroy all Company Confidential Information then in his/her possession or under his/her control. In the event that Executive destroys Confidential Information, Executive shall promptly (and, in any event, within 10 days of termination) confirm such destruction to the Company in writing.

 

 
 

 

4.2 Exceptions. The general prohibition contained in Section 4.1 against the unauthorized disclosure, use or dissemination of the Company’s Confidential Information will not apply in respect of any Company Confidential Information that:

 

(a) is available to the public generally;

 

(b) becomes part of the public domain through no fault of the Executive;

 

(c) is already in the lawful possession of the Executive at the time of receipt of the Company’s Confidential Information; or

 

(d) is compelled by applicable law or regulation to be disclosed, provided that the Executive gives the Company prompt written notice of such requirement prior to such disclosure and provides commercially reasonable assistance at the request and expense of the Company, in obtaining an order protecting the Company’s Confidential Information from public disclosure.

 

ARTICLE 5

 

TERMINATION

 

5.1 Termination of Employment. The Executive’s employment may be terminated only as follows:

 

  (a) Termination by the Company
     
    (i) For Cause: The Company may terminate the Executive’s employment for Cause.
       
       
    (ii) Without Cause: The Company may terminate Executive’s employment at any time by giving Executive 60 days prior written Notice of the termination. In such a case, 100% of the Executive’s unvested stock and option compensation of any nature will vest without any further action required on the part of the Executive or the Company and the Company will deliver to the order of the Executive promptly, upon receipt of a written demand of the Executive, such shares of common stock or options at its sole expense as become due to Executive hereunder. The Executive’s right to receive compensation whether in cash or securities shall survive any termination of this Agreement Without Cause.
       
  (b) Termination by the Executive
       
    (i) For Good Reason. The Executive may terminate the Executive’s employment with the Company for Good Reason.
       
    (ii) Without Good Reason. The Executive may voluntarily terminate his employment with the Company at any time by giving the Company 60 days prior written Notice of the termination.
       
  (c) Termination Upon Death or Disability
       
    (i) Death. The Executive’s employment shall terminate upon the Executive’s death.
       
    (ii) Disability. The Company may terminate the Executive’s employment upon the Executive’s Disability.
       
  (d) For the purpose of this Article 5, “Cause” means:
     
    (i) Breach of Agreement. Executive’s material breach of Executive’s obligations of this Agreement, not cured after 30 days’ Notice from the Company.

 

 
 

 

       
    (ii) Gross Negligence. Executive’s gross negligence in the performance of Executive’s duties.
       
    (iii) Crimes and Dishonesty. Executive’s conviction of or plea of guilty to any crime involving, dishonesty, fraud or moral turpitude.
       
    (iv) In the event of termination of this agreement for Cause, the Company may terminate the Executive’s employment after 30 days’ Notice.
       
  (e) For the purpose of this Article 5, “Good Reason” means:
       
    (i) Breach of Agreement. The Company’s material breach of this Agreement, which breach has not been cured by the Company within 30 days after receipt of written notice specifying, in reasonable detail, the nature of such breach or failure from Executive.
       
    (ii) Non-Payment. The failure of the Company to pay any amount due to Executive hereunder, which failure persists for 30 days after written notice of such failure has been received by the Company.
       
    (iii) Change of Responsibilities/Compensation. Any material reduction in Executive’s title or a material reduction in Executive’s duties or responsibilities or any material adverse change in Executive’s Base Salary or any material adverse change in Executive’s benefits.
       
    (iv) Change of Location. Any relocation of the premises at which Executive works to a location more than 50 miles from such location, without Executive’s consent.
       
  (f) It is agreed that in the event of termination of this agreement if the Company decides that the Executive’s services are not needed during the termination period, the Company will continue to be responsible for paying Base Salary, providing his benefits (or a cash allowance in lieu thereof) and equity compensation as defined in Article 2 of this Agreement for the entire termination period. Neither the Company, nor the Executive will be entitled to any notice or payment in excess of that specified in this Article 5.
     
  (g) Upon the termination (whether for cause, disability, death, without cause, for good reason or without good reason), the Company shall pay to Executive within 30 days of the termination date (i) any accrued but unpaid Base Salary for services rendered as of the date of termination, (ii) (if applicable) any accrued but unpaid vacation pay, (iii) the business expenses reasonably incurred by the Executive up to the date of termination or resignation and properly reimbursable, and (iv) payment of any cash allowance for benefits, in each case less any applicable deductions or withholdings required by law.

 

Section 5.2 Termination for Cause, Disability or Death

 

In the event that this Agreement and the Executive’s employment with the Company is terminated for Cause, the Company shall provide the Executive written notice thereof and Executive shall be entitled only to the amounts specified in Section 5.1 plus all vested common or preferred shares and, if applicable options and warrants.

 

 
 

 

Section 5.3 Termination without Cause

 

In the event this Agreement and the Executive’s employment with the Company is terminated by the Company without Cause (other than for death or disability), then in addition to the amounts specified in Section 5.1 and subject to the Executive’s execution and non-revocation of a separation agreement containing a general release and waiver of liability against the Company and anyone connected with it in form acceptable to the Company, the Executive shall be entitled to receive, and the Company shall pay the Executive (less statutory deductions and withholdings) the equivalent of 6 months gross compensation as defined in Section 2.1 and 2.3, plus any unpaid salary, bonuses, &/or eligible out of pocket costs. Such amount to be paid in full within 30 days of the termination date.

 

ARTICLE 6

 

MUTUAL REPRESENTATIONS

 

6.1 The Executive represents and warrants to the Company that the execution and delivery of this Agreement and the fulfillment of the terms hereof

 

(a) will not constitute a default under or conflict with any agreement or other instrument to which he is a party or by which he is bound; and

 

(b) do not require the consent of any person or entity.

 

6.2 The Company represents and warrants to the Executive that this Agreement has been duly authorized, executed and delivered by the Company and that the fulfillment of the terms hereof

 

  a) will not constitute a default under or conflict with any agreement of other instrument to which it is a party or by which it is bound; and
     
  b) do not require the consent of any person of entity.

 

6.3 Each party hereto warrants and represents to the other that this Agreement constitutes the valid and binding obligation of such party enforceable against such party in accordance with its terms subject to applicable bankruptcy, insolvency, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless if enforcement is sought in proceeding in equity or at law).

 

ARTICLE 7

 

NOTICES

 

7.1 Notices. All notices required or allowed to be given under this Agreement must be made either personally by delivery to or by facsimile transmission to the address as hereinafter set forth or to such other address as may be designated from time to time by such party in writing:

 

(a) in the case of the Company, to:

 

Slinger Bag Inc. to be provided under separate cover within three days after the date hereof; in the event that Executive does not receive notice of address within such period, then Executive shall be entitled to send any notice to any email address of the Company known to Executive and the sending of any such notice shall constitute receipt of notice whether the Company receives such notice or not.

 

 
 

 

(b) and in the case of the Executive, to the Executive’s last residence address known to the Company or the Executive’s personal email address held by the company.

 

7.2 Change of Address. Any party may, from time to time, change its address for service hereunder by written notice to the other party in the manner aforesaid.

 

ARTICLE 8

 

GENERAL

 

8.1 Further Assurances. Each party hereto will promptly and duly execute and deliver to the other party such further documents and assurances and take such further action as such other party may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created hereby.

 

8.2 Waiver. No provision hereof will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is made in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of this Agreement will not be construed as a waiver of a further breach of the same provision.

 

8.3 Amendments in Writing. No amendment, modification or rescission of this Agreement will be effective unless set forth in writing and signed by the parties hereto.

 

8.4 Assignment. Except as herein expressly provided, the respective rights and obligations of the Executive and the Company under this Agreement will not be assignable by either party without the written consent of the other party and will, subject to the foregoing, inure to the benefit of and be binding upon the Executive and the Company and their permitted successors or assigns. Nothing herein expressed or implied is intended to confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement. For the avoidance of doubt, it is agreed that in the event that the Company participates in a merger, acquisition, restructuring, reorganization or other transaction in which the Company is merged into, sold to or otherwise becomes part of or owned by another company or entity, this Agreement will remain in force and be binding on any such successor, surviving or acquiring company or entity.

 

8.5 Severability. In the event that any provision contained in this Agreement is declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, such provision will be deemed not to affect or impair the validity or enforceability of any other provision of this Agreement, which will continue to have full force and effect.

 

8.6 Headings. The headings in this Agreement are inserted for convenience of reference only and will not affect the construction or interpretation of this Agreement.

 

8.7 Number and Gender. Wherever the singular or masculine or neuter is used in this Agreement, the same will be construed as meaning the plural or feminine or a body politic or corporate and vice versa where the context so requires.

 

8.8 Time. Time is of the essence in this Agreement.

 

8.9 Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of New York without reference to its conflicts of laws principles or the conflicts of laws principles of any other jurisdiction, and each of the parties hereto expressly attorns to the jurisdiction of the courts of the State of New York. The sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement will be the applicable State of New York or federal court.

 

 
 

 

8.10 This Agreement (including all Annexes thereto) constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to this matter.

 

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

 

Sports Systems LLC  
     
Charles Ruddy  
Title: President  
     
Agreed and accepted:  
     
Charles Ruddy  
   
Slinger Bag Inc.  
     
   
Name: Mike Ballardie  
Title: Chief Executive Officer  

 

 

 

 

 

Exhibit 10.3

 

 

Service Agreement

 

This agreement (this “Agreement”) is effective as of the Effective Date (as defined below)

 

BETWEEN:

 

Foundation Sports Systems LLC, a Massachusetts limited liability company (the “Company”)

AND:

 

Jaana K. Gilbert, an individual residing in North Carolina (the “Executive”)

 

A. The Company has offered to Executive the position of Principal Engineer of the Company.
   
B. The Company and the Executive wish to formally record the terms and conditions upon which the Executive will be hired by the Company and serve as the Principal Engineer of the Company.
   
C. Each of the Company and the Executive has agreed to the terms and conditions set forth in this Agreement, as evidenced by their respective execution hereof.

 

NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

Article 1

 

DESCRIPTION OF POSITION, ROLE

 

  (a) Employment of the Executive. Effective from the date on which the Company is acquired by Slinger Bag Inc. or one of its affiliates and reporting directly to the President of Foundation Sports Systems, the Executive will serve as the Principal Engineer of the Company on the terms and subject to the conditions of this Agreement;
     
  (b) The Executive’s primary responsibilities include providing the continued development to ensure the reliable operation and marketability of the Foundation Core, continued development as required by the Company’s relationship with Square, and the ensure on-going compatibility with the Company’s PlayTennisConnect app, in each case subject to, and in accordance with, applicable laws and regulations.
     
  (c) The Executive will faithfully, honestly and diligently serve the Company, co-operate with the Slinger Bag group and Company and utilize maximum professional skill and care to ensure that all services rendered hereunder are to the satisfaction of the Company, acting reasonably. The Executive will provide any other services not specifically mentioned herein, but, which by reason of the Executive’s capability, the Executive knows or ought to know to be necessary to ensure that the best interests of the Company are maintained at all times.
     
  (d) The Executive will assume, obey, implement and execute such duties, directions, responsibilities, procedures, policies and lawful orders as may be determined or given from time to time by the President of the Company.
     
  (e) The Executive will report the results of her duties hereunder to the President of the Company.

 

 

   
 

 

  (f) The Executive’s primary role covers the Company, but to the extent requested by the President of the Company, the chief executive officer of Slinger Bag Inc. or the board or directors of Slinger Bag Inc., the Executive will devote such of his/her time, skills, expertise and experience as is requested to all the Company’s group entities (currently Slinger Bag Inc, Slinger Bag Americas Inc, Slinger Bag Ltd (Israel), Slinger Bag Canada Inc, Slinger Bag International (UK) Inc), as well as any future acquisitions the company may make or subsidiaries or affiliates the Company may establish.

 

Article 2

 

COMPENSATION

 

2.1 Remuneration.

 

  i. Salary: The Executive shall be paid a “base salary” of U.S. $150,000.00 per annum. This, (together with any increases thereto as hereinafter provided) will be noted as “Base Salary”. The Base Salary shall be payable in accordance with the Company’s normal payroll procedures in effect from time to time.
     
  ii. vacation: The Executive shall be entitled to 2 weeks paid vacation on an annual basis for the first 3 years of this agreement, after which the entitlement increases to 3 weeks annually, and after 7 years to 4 weeks. While Executives are strongly encouraged to take their full vacation entitlement within the calendar year, in circumstances where full entitlement is not used by end of fiscal year end (April 30th) of year following entitlement, any unused days shall – at Executive’s option- be either (a) carried forward to the following year, or (2) paid out in cash (at Executive’s prorated base salary).
     
  iii. Pension contribution: as the Company does not (as yet) have a formal Executive Pension Plan, the Company will contribute 5.0% of the Executive’s Base Salary (on an annualized basis) to a self- directed pension plan at the financial institution of the Executive’s choosing. The information regarding the pension plan shall be provided to the payroll team who will execute the payments into the pension plan via adp payroll or other method of the Company’s choosing.

 

2.2 Incentive Plans: The Executive will be entitled to participate in the Company’s annual incentive plan at a 15% of Base Salary eligibility level. The plan has components of both company and individual performance targets. The final payout may vary up or down based on the performance against targets, but at 100% achievement level, the Executive is eligible for a 15% performance bonus. Specific targets for the 2021-2022 plan (for year ending April 30, 2022) are being finalized, but the principles of the plan are targets each with a “floor, target, & ceiling parameter”. Payouts are calculated based on Base Salary at time of plan finalization, with each component measured against audited year end results. In cases where the eligible Executive’s employment period is less than 52 weeks, bonus eligibility will be prorated on weeks of service with the company divided by 52.

 

   
 

 

2.3 Other Renumeration:

 

i. “Employer Benefit Plan” the Executive shall be eligible to participate in standard executive benefit plans (for U.S. based executives), such plan to include without limitation, group medical, prescription drug, dental & vision care, life and permanent disability insurance as well as the above noted pension plan. As the Company currently does not have a plan in place, the Executive shall seek individual coverage for the above noted items and shall be re-imbursed by the Company for such costs.
   
ii. Out of pocket expenses: Executive shall be re-imbursed for all reasonable business expenses incurred in connection with his duties to the company. This includes mobile phone costs, costs of home office, travel related expenses, or any other expense incurred on behalf of the company.

 

ARTICLE 3

 

[RESERVED]

 

CONFIDENTIALITY AND NON-COMPETITION

 

4.1 Maintenance of Confidential Information.

 

a) The Executive acknowledges that, in the course of performing his/her obligations hereunder, the Executive may, either directly or indirectly, have access to and be entrusted with confidential information (whether oral, written or by inspection) relating to the Company or its respective affiliates, associates or customers (the “Confidential Information”).
   
b) The Executive acknowledges that, the Company’s Confidential Information constitutes a proprietary right, which the Company is entitled to protect. Accordingly, the Executive covenants and agrees that, as long as he/she works for the Company, the Executive will keep in strict confidence the Company’s Confidential Information and will not, without prior written consent of the Company, disclose, use or otherwise disseminate the Company’s Confidential Information, directly or indirectly, to any third party
   
c) The Executive agrees that, upon termination of his/her services for the Company (for whatever reason), he/she will immediately surrender to the Company or, at the Executive’s option, destroy all Company Confidential Information then in his/her possession or under his/her control. In the event that Executive destroys Confidential Information, Executive shall promptly (and, in any event, within 10 days of termination) confirm such destruction to the Company in writing.

 

4.2 Exceptions. The general prohibition contained in Section 4.1 against the unauthorized disclosure, use or dissemination of the Company’s Confidential Information will not apply in respect of any Company Confidential Information that:

 

  (a) is available to the public generally;
     
  (b) becomes part of the public domain through no fault of the Executive;
     
  (c) is already in the lawful possession of the Executive at the time of receipt of the Company’s Confidential Information; or
     
  (d) is compelled by applicable law or regulation to be disclosed, provided that the Executive gives the Company prompt written notice of such requirement prior to such disclosure and provides commercially reasonable assistance at the request and expense of the Company, in obtaining an order protecting the Company’s Confidential Information from public disclosure.

 

   
 

 

ARTICLE 5

 

TERM AND TERMINATION

 

5.1 Term. Executive’s employment pursuant to this Agreement shall be for a period of 12 months, which shall renew for successive periods of 12 months upon mutual agreement in writing that is signed by both parties no less than two months prior to the end of the applicable term.

 

5.2 Termination of Employment. Notwithstanding the term set forth in clause 5.1, the Executive’s employment may be terminated as follows:

 

  (a) Termination by the Company

 

  (i) For Cause: The Company may terminate the Executive’s employment for Cause.

 

  (b) Termination by the Executive

 

  (i) For Good Reason. The Executive may terminate the Executive’s employment with the Company for Good Reason.
     
  (ii) Without Good Reason. The Executive may voluntarily terminate his employment with the Company at any time by giving the Company 120 days prior written Notice of the termination.

 

  (c) Termination Upon Death or Disability

 

  (i) Death. The Executive’s employment shall terminate upon the Executive’s death.
     
  (ii) Disability. The Company may terminate the Executive’s employment upon the Executive’s Disability.

 

  (d) For the purpose of this Article 5, “Cause” means:

 

  (i) Breach of Agreement. Executive’s material breach of Executive’s obligations of this Agreement, not cured after 30 days’ Notice from the Company.
     
  (ii) Gross Negligence. Executive’s gross negligence in the performance of Executive’s duties.
     
  (iii) Crimes and Dishonesty. Executive’s conviction of or plea of guilty to any crime involving, dishonesty, fraud or moral turpitude.
     
  (iv) In the event of termination of this agreement for Cause, the Company may terminate the Executive’s employment immediately upon written notice.

 

   
 

 

  (e) For the purpose of this Article 5, “Good Reason” means:

 

  (i) Breach of Agreement. The Company’s material breach of this Agreement, which breach has not been cured by the Company within 30 days after receipt of written notice specifying, in reasonable detail, the nature of such breach or failure from Executive.
     
  (ii) Non-Payment. The failure of the Company to pay any amount due to Executive hereunder, which failure persists for 30 days after written notice of such failure has been received by the Company.

 

ARTICLE 6

 

MUTUAL REPRESENTATIONS

 

6.1 The Executive represents and warrants to the Company that the execution and delivery of this Agreement and the fulfillment of the terms hereof

 

  (a) will not constitute a default under or conflict with any agreement or other instrument to which he is a party or by which he is bound; and
     
  (b) do not require the consent of any person or entity.

 

6.2 The Company represents and warrants to the Executive that this Agreement has been duly authorized, executed and delivered by the Company and that the fulfillment of the terms hereof

 

  a) will not constitute a default under or conflict with any agreement of other instrument to which it is a party or by which it is bound; and
     
  b) do not require the consent of any person of entity.

 

6.3 Each party hereto warrants and represents to the other that this Agreement constitutes the valid and binding obligation of such party enforceable against such party in accordance with its terms subject to applicable bankruptcy, insolvency, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless if enforcement is sought in proceeding in equity or at law).

 

ARTICLE 7

 

NOTICES

 

7.1 Notices. All notices required or allowed to be given under this Agreement must be made either personally by delivery to or by facsimile transmission to the address as hereinafter set forth or to such other address as may be designated from time to time by such party in writing:

 

  (a) in the case of the Company, to:

 

Slinger Bag Inc. to be provided under separate cover within three days after the date hereof; in the event that Executive does not receive notice of address within such period, then Executive shall be entitled to send any notice to any email address of the Company known to Executive and the sending of any such notice shall constitute receipt of notice whether the Company receives such notice or not.

 

  (b) and in the case of the Executive, to the Executive’s last residence address known to the Company or the Executive’s personal email address held by the company.

 

   
 

 

7.2 Change of Address. Any party may, from time to time, change its address for service hereunder by written notice to the other party in the manner aforesaid.

 

ARTICLE 8

 

GENERAL

 

8.1 Further Assurances. Each party hereto will promptly and duly execute and deliver to the other party such further documents and assurances and take such further action as such other party may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created hereby.
   
8.2 Waiver. No provision hereof will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is made in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of this Agreement will not be construed as a waiver of a further breach of the same provision.
   
8.3 Amendments in Writing. No amendment, modification or rescission of this Agreement will be effective unless set forth in writing and signed by the parties hereto.
   
8.4 Assignment. Except as herein expressly provided, the respective rights and obligations of the Executive and the Company under this Agreement will not be assignable by either party without the written consent of the other party and will, subject to the foregoing, inure to the benefit of and be binding upon the Executive and the Company and their permitted successors or assigns. Nothing herein expressed or implied is intended to confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement. For the avoidance of doubt, it is agreed that in the event that the Company participates in a merger, acquisition, restructuring, reorganization or other transaction in which the Company is merged into, sold to or otherwise becomes part of or owned by another company or entity, this Agreement will remain in force and be binding on any such successor, surviving or acquiring company or entity.
   
8.5 Severability. In the event that any provision contained in this Agreement is declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, such provision will be deemed not to affect or impair the validity or enforceability of any other provision of this Agreement, which will continue to have full force and effect.
   
8.6 Headings. The headings in this Agreement are inserted for convenience of reference only and will not affect the construction or interpretation of this Agreement.
   
8.7 Number and Gender. Wherever the singular or masculine or neuter is used in this Agreement, the same will be construed as meaning the plural or feminine or a body politic or corporate and vice versa where the context so requires.
   
8.8 Time. Time is of the essence in this Agreement.

 

   
 

 

8.9 Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of New York without reference to its conflicts of laws principles or the conflicts of laws principles of any other jurisdiction, and each of the parties hereto expressly attorns to the jurisdiction of the courts of the State of New York. The sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement will be the applicable State of New York or federal court.
   
8.10 This Agreement (including all Annexes thereto) constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to this matter.

 

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

 

Foundation Sports Systems LLC

 

______________________

Charlie Ruddy Title: President

 

Agreed and accepted

 

__________________________                Jaana K. Gilbert Title: Principal Engineer

 

   

 

 

 

Exhibit 10.4

 

 

 

Consulting Agreement

 

This agreement (this “Agreement”) is effective as of the Effective Date (as defined below)

 

BETWEEN:

Foundation Sports Systems LLC, a Massachusetts limited liability company (the “Company”)

 

AND:

 

George Kustas, an individual residing in Florida (the “Consultant”)

 

A. The Company has offered to engage Consultant to perform technical services for the Company.

 

B. The Company and the Consultant wish to formally record the terms and conditions upon which the Consultant will be engaged by the Company.

 

C. Each of the Company and the Consultant has agreed to the terms and conditions set forth in this Agreement, as evidenced by their respective execution hereof.

 

NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

Article 1

 

DESCRIPTION OF SERVICES

 

  (a) Engagement of the Consultant. Effective from the date on which the Company is acquired by Slinger Bag Inc. or one of its affiliates and reporting directly to the President of the Company, the Consultant will perform technical services for the Company on the terms and subject to the conditions of this Agreement;
     
  (b) The Consultant’s primary responsibilities include maintaining the reliable operation of the Companies PlayTennisConnect app, continued integration with Company’s core Foundation modules, and ensuring the ongoing competitive marketability of the app, in each case subject to, and in accordance with, applicable laws and regulations.
     
  (c) The Consultant will faithfully, honestly and diligently serve the Company, cooperate with the Slinger Bag group and Company and utilize maximum professional skill and care to ensure that all services rendered hereunder are to the satisfaction of the Company, acting reasonably. The Consultant will provide any other services not specifically mentioned herein, but, which by reason of the Consultant’s capability, the Consultant knows or ought to know to be necessary to ensure that the best interests of the Company are maintained at all times.
     
  (d) The Consultant will assume, obey, implement and execute such duties, directions, responsibilities, procedures, policies and lawful orders as may be determined or given from time to time by the President of the Company.
     
  (e) The Consultant will report the results of his duties hereunder to the President of the Company.

 

 

 

 
 

 

Article 2

 

COMPENSATION

 

  (a) Retainer: The Consultant shall be paid a monthly fee of U.S. $7,500.00 per month in accordance with the Company’s normal payroll procedures in effect from time to time.
     
  (b) Out of pocket expenses: Consultant shall be reimbursed for all reasonable business expenses incurred in connection with his duties to the company. This includes travel related expenses or any other expense incurred on behalf of the company.

 

ARTICLE 3

 

CONFIDENTIALITY AND NON-COMPETITION

 

4.1 Maintenance of Confidential Information.

 

a) The Consultant acknowledges that, in the course of performing his/her obligations hereunder, the Consultant may, either directly or indirectly, have access to and be entrusted with confidential information (whether oral, written or by inspection) relating to the Company or its respective affiliates, associates or customers (the “Confidential Information”).
   
b) The Consultant acknowledges that, the Company’s Confidential Information constitutes a proprietary right, which the Company is entitled to protect. Accordingly, the Consultant covenants and agrees that, as long as he/she works for the Company, the Consultant will keep in strict confidence the Company’s Confidential Information and will not, without prior written consent of the Company, disclose, use or otherwise disseminate the Company’s Confidential Information, directly or indirectly, to any third party
   
c) The Consultant agrees that, upon termination of his/her services for the Company (for whatever reason), he/she will immediately surrender to the Company or, at the Consultant’s option, destroy all Company Confidential Information then in his/her possession or under his/her control. In the event that Consultant destroys Confidential Information, Consultant shall promptly (and, in any event, within 10 days of termination) confirm such destruction to the Company in writing.

 

4.2 Exceptions. The general prohibition contained in Section 4.1 against the unauthorized disclosure, use or dissemination of the Company’s Confidential Information will not apply in respect of any Company Confidential Information that:

 

(a) is available to the public generally;

 

(b) becomes part of the public domain through no fault of the Consultant;

 

(c) is already in the lawful possession of the Consultant at the time of receipt of the Company’s Confidential Information; or

 

(d) is compelled by applicable law or regulation to be disclosed, provided that the Consultant gives the Company prompt written notice of such requirement prior to such disclosure and provides commercially reasonable assistance at the request and expense of the Company, in obtaining an order protecting the Company’s Confidential Information from public disclosure.

 

 
 

 

ARTICLE 5

 

TERM AND TERMINATION

 

5.1 Term. Consultant’s engagement pursuant to this Agreement shall be for a period of 12 months, which shall renew for successive periods of 12 months upon mutual agreement in writing that is signed by both parties no less than two months prior to the end of the applicable term.

 

5.2 Termination of Engagement. Notwithstanding the term set forth in clause 5.1, the Consultant’s engagement may be terminated as follows:

 

  (a) Termination by the Company
       
    (i) For Cause: The Company may terminate the Consultant’s engagement for Cause.
       
  (b) Termination by the Consultant
       
    (i) For Good Reason. The Consultant may terminate the Consultant’s engagement with the Company for Good Reason.
       
    (ii) Without Good Reason. The Consultant may voluntarily terminate his engagement with the Company at any time by giving the Company 120 days prior written Notice of the termination.
       
  (c) Termination Upon Death or Disability
       
    (i) Death. The Consultant’s engagement shall terminate upon the Consultant’s death.
       
    (ii) Disability. The Company may terminate the Consultant’s engagement upon the Consultant’s Disability.
       
  (d) For the purpose of this Article 5, “Cause” means:
       
    (i) Breach of Agreement. Consultant’s material breach of Consultant’s obligations of this Agreement, not cured after 30 days’ Notice from the Company.
       
    (ii) Gross Negligence. Consultant’s gross negligence in the performance of Consultant’s duties.
       
    (iii) Crimes and Dishonesty. Consultant’s conviction of or plea of guilty to any crime involving, dishonesty, fraud or moral turpitude.
       
    (iv) In the event of termination of this agreement for Cause, the Company may terminate the Consultant’s engagement immediately upon written notice.
       
  (e) For the purpose of this Article 5, “Good Reason” means:
       
    (i) Breach of Agreement. The Company’s material breach of this Agreement, which breach has not been cured by the Company within 30 days after receipt of written notice specifying, in reasonable detail, the nature of such breach or failure from Consultant.

 

 

 
 

 

  (ii) NonPayment. The failure of the Company to pay any amount due to Consultant hereunder, which failure persists for 30 days after written notice of such failure has been received by the Company.

 

ARTICLE 6

 

MUTUAL REPRESENTATIONS

 

6.1 The Consultant represents and warrants to the Company that the execution and delivery of this Agreement and the fulfillment of the terms hereof

 

(a) will not constitute a default under or conflict with any agreement or other instrument to which he is a party or by which he is bound; and

 

(b) do not require the consent of any person or entity.

 

6.2 The Company represents and warrants to the Consultant that this Agreement has been duly authorized, executed and delivered by the Company and that the fulfillment of the terms hereof

 

  a) will not constitute a default under or conflict with any agreement of other instrument to which it is a party or by which it is bound; and
     
  b) do not require the consent of any person of entity.

 

6.3 Each party hereto warrants and represents to the other that this Agreement constitutes the valid and binding obligation of such party enforceable against such party in accordance with its terms subject to applicable bankruptcy, insolvency, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless if enforcement is sought in proceeding in equity or at law).

 

ARTICLE 7

 

NOTICES

 

7.1 Notices. All notices required or allowed to be given under this Agreement must be made either personally by delivery to or by facsimile transmission to the address as hereinafter set forth or to such other address as may be designated from time to time by such party in writing:

 

  (a) in the case of the Company, to:

 

Foundation Sports Systems LLC. to be provided under separate cover within three days after the date hereof; in the event that Consultant does not receive notice of address within such period, then Consultant shall be entitled to send any notice to any email address of the Company known to Consultant and the sending of any such notice shall constitute receipt of notice whether the Company receives such notice or not.

 

  (b) and in the case of the Consultant, to the Consultant’s last residence address known to the Company or the Consultant’s personal email address held by the company.

 

 
 

 

7.2 Change of Address. Any party may, from time to time, change its address for service hereunder by written notice to the other party in the manner aforesaid.

 

ARTICLE 8

 

GENERAL

 

8.1 Further Assurances. Each party hereto will promptly and duly execute and deliver to the other party such further documents and assurances and take such further action as such other party may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created hereby.

 

8.2 Waiver. No provision hereof will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is made in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of this Agreement will not be construed as a waiver of a further breach of the same provision.

 

8.3 Amendments in Writing. No amendment, modification or rescission of this Agreement will be effective unless set forth in writing and signed by the parties hereto.

 

8.4 Assignment. Except as herein expressly provided, the respective rights and obligations of the Consultant and the Company under this Agreement will not be assignable by either party without the written consent of the other party and will, subject to the foregoing, inure to the benefit of and be binding upon the Consultant and the Company and their permitted successors or assigns. Nothing herein expressed or implied is intended to confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement. For the avoidance of doubt, it is agreed that in the event that the Company participates in a merger, acquisition, restructuring, reorganization or other transaction in which the Company is merged into, sold to or otherwise becomes part of or owned by another company or entity, this Agreement will remain in force and be binding on any such successor, surviving or acquiring company or entity.

 

8.5 Severability. In the event that any provision contained in this Agreement is declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, such provision will be deemed not to affect or impair the validity or enforceability of any other provision of this Agreement, which will continue to have full force and effect.

 

8.6 Headings. The headings in this Agreement are inserted for convenience of reference only and will not affect the construction or interpretation of this Agreement.

 

8.7 Number and Gender. Wherever the singular or masculine or neuter is used in this Agreement, the same will be construed as meaning the plural or feminine or a body politic or corporate and vice versa where the context so requires.

 

8.8 Time. Time is of the essence in this Agreement.

 

8.9 Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of New York without reference to its conflicts of laws principles or the conflicts of laws principles of any other jurisdiction, and each of the parties hereto expressly attorns to the jurisdiction of the courts of the State of New York. The sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement will be the applicable State of New York or federal court.

 

 
 

 

8.10 This Agreement (including all Annexes thereto) constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to this matter.

 

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

 

 

Foundation Sports Systems LLC  
     
   
Charlie Ruddy  
Title: President  
     
Agreed and accepted  
     
   
George Kustas  

 

 

 

 



Serious News for Serious Traders! Try StreetInsider.com Premium Free!

You May Also Be Interested In





Related Categories

SEC Filings