UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
[x] QUARTERLY REPORT UNDER SECTION 13 OF 15(d)OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2002
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT
For the transition period from __________ to _________
Commission file number 000-28335
Federal Security Protection Services, Inc.
____________________________________________________________
(Exact name of small business issuer as specified in its charter)
Delaware
____________________________________________________________
(State or other jurisdiction of incorporation or organization)
84-1080043IRS
____________________________________________________________
(Employer Identification No.)
400 Poydras Street, Suite 1510
New Orleans, LA 70130
(Address of principal executive offices)
(866) 932-2628
____________________________________________________________
(Issuer's telephone number)
1616 Warren Avenue, Suite 34, P.O. Box 3171
Cheyenne, WY 82003
(Former name, former address, and former fiscal year, if changed since last
report)
State the number of shares outstanding of each of the issuer's classes of
common equity as of the latest practicable date:
November 1, 2002, 6,065,209 shares.
Transitional Small Business Format (Check one): Yes [ ] No [x]
FEDERAL SECURITY PROTECTION SERVICES, INC.
FORM 10-QSB
PART I--FINANCIAL INFORMATION
Item 1. Financial Statements.
Independent Accountant's Review Report
November 7, 2002
To the Board of Directors and Shareholders
of Federal Security Protection Services, Inc.:
I have reviewed the accompanying balance sheets of Federal Security
Protection Services, Inc. as of September 30, 2002 and 2001, and the related
statements of operations for each of the three months and six months then
ended, and the related statements of cash flows for each of the six months
then ended, in accordance with Statements on Standards for Accounting and
Review Services issued by the American Institute of Certified Public
Accountants. All information included in these financial statements is the
representation of the management of Federal Security Protection Services, Inc.
A review consists principally of inquiries of Company personnel and analytical
procedures applied to financial data. It is substantially less in scope than
an audit in accordance with generally accepted accounting standards, the
objective of which is the expression of an opinion regarding the financial
statements taken as a whole. Accordingly, I do not express such an opinion.
Based on my review, I am not aware of any material modifications that should
be made to the accompanying financial statements in order for them to be in
conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that
Federal Security Protection Services, Inc. will continue as a going concern.
As discussed in Note 8 to the financial statements, the Company has suffered
recurring losses from operations and has a net capital deficiency that raise
substantial doubt about its ability to continue as a going concern.
Management's plans in regard to these matters are also described in Note 1.
The financial statements do not include any adjustments that might result
from the outcome of this uncertainty.
Carl S. Sanko
Topanga, California
Pg 3
Federal Security Protection Services, Inc.
Balance Sheets
September 30, 2002 and 2001
September 30, September 30,
2002 2001
Assets
Current assets
Cash $ 3,887 $ 204
Accounts receivable 42,648 0
Officer advances 383,033 0
Prepaid expenses 43,896 44,417
Total current assets 473,464 44,621
Property and equipment
Equipment 65,649 2,444
Accumulated depreciation (12,477) ( 976)
Property and equipment, net 53,172 1,468
Other assets
Deferred IRU costs 502,041 0
Goodwill 157,391 0
Deposits 1,388 0
Trademarks, net 0 6,383
Total other assets 660,820 6,383
Total assets $ 1,187,456 $ 52,472
See accompanying notes to financial statements
- Unaudited -
Pg 4
Federal Security Protection Services, Inc.
Balance Sheets
September 30, 2002 and 2001
September 30, September 30,
2002 2001
Liabilities and Shareholders' Equity
Current liabilities
Accounts payable $ 159,851 $ 109,381
Accrued expenses 80,806 18,289
Current portion of long term debt 9,658 0
Income taxes payable 13,574 0
Deferred IRU income 31,808 0
Accrued litigation settlement 42,500 42,500
Short-term borrowings 156,782 135,281
Total current liabilities 494,979 305,451
Long term liabilities
Deferred IRU income 858,229 0
Note payable 29,477 0
Total long term liabilities 887,706 0
Shareholders' equity (deficit)
Convertible preferred stock, par value of
$.001, 20,000,000 shares authorized.
70,000 shares designated as Series A and
issued and outstanding at September 30, 2002
and none at September 30, 2001. Aggregate
liquidation preference of $7,000,000 at
September 30, 2002. 70 0
70,000 shares designated as Series B and
issued and outstanding at September 30, 2002
and none at September 30, 2001. Aggregate
liquidation preference of $7,000,000 at
September 30, 2002. 70 0
Common stock, par value $.001, 100,000,000
shares authorized, 6,065,209 and 2,249,209
issued and outstanding at September 30, 2002
and 2001, respectively 6,065 22,492
Paid in capital 4,859,723 4,078,341
Accumulated deficit (5,061,157) (4,353,812)
Total shareholders' equity (195,229) (252,979)
Total liabilities and shareholders' equity $ 1,187,456 $ 52,472
See accompanying notes to financial statements
- Unaudited -
Pg 5
Federal Security Protection Services, Inc.
Statements of Operations
For the Six Months Ended September 30, 2002 and 2001
6 Months Ended 6 Months Ended
September 30, September 30,
2002 2001
Revenues $ 21,710 $ 609
Cost of sales:
Network costs 14,775 0
IRU costs 3,967 0
Total cost of sales 18,742 0
Operating expenses:
Salaries 48,000 0
General and administrative 454,765 171,655
Total operating expenses 502,765 171,655
Loss from operations (499,797) (171,046)
Other income 0 0
Net income (loss) $ (499,797) $ (171,046)
Basic and dilutive income (loss) per share $ (.094) $ (.083)
See accompanying notes to financial statements
- Unaudited -
Pg 6
Federal Security Protection Services, Inc.
Statements of Operations
For the Three Months Ended September 30, 2002 and 2001
3 Months Ended 3 Months Ended
September 30, September 30,
2002 2001
Revenues $ 21,710 $ 201
Cost of sales:
Network costs 14,775 0
IRU costs 3,967 0
Total cost of sales 18,742 0
Operating expenses:
Salaries 48,000 0
General and administrative 241,052 104,263
Total operating expenses 289,052 104,263
Loss from operations (286,084) (104,062)
Other income 0 0
Net income (loss) $ (286,084) $ (104,062)
Basic and dilutive income (loss) per share $ (.049) $ (.048)
See accompanying notes to financial statements
- Unaudited -
Pg 7
Federal Security Protection Services, Inc.
Statements of Cash Flows
For the Six Months Ended September 30, 2002 and 2001
6 Months Ended 6 Months Ended
September 30, September 30,
2002 2001
Cash flows from operating activities
Net income (loss) $ (499,797) $ (171,046)
Adjustments to reconcile net loss to
net cash used in operating activities
Depreciation and amortization 705 1,336
Common stock issued for services 413,895 47,000
Changes in operating assets and
liabilities
Accounts receivable (42,648) 0
Officer advances (383,033) 0
Prepaid expenses 13,000 (12,167)
Deferred IRU costs (43,896) 0
Accounts payable 58,904 86,310
Accrued expenses 53,895 8,120
Current portion long term debt 9,658 0
Income taxes payable 13,574 0
Deferred IRU income 31,808 0
Short-term borrowings 500 (15,600)
Net cash provided by (used in) operating
activities (373,435) (56,047)
Cash flows from investing activities
Business acquisition 203,0 0
Purchase of fixed assets (52,651) 0
Long term deferred costs (503,430) 0
Purchase of goodwill (157,391) 0
Net cash provided by (used in) investing
activities (510,472) 0
Cash flows from financing activities
Proceeds from issuance of common stock 0 50,000
Note payable for purchase of fixed assets 29,477 0
Deferred IRU income 858,229 0
Issuance of common stock in payment of
Interest payable 0 6,000
Net cash provided by (used in) financing
activities 887,706 56,000
Net increase (decrease) in cash 3,799 (47)
Cash, beginning of period 88 251
Cash, end of period $ 3,887 $ 204
See accompanying notes to financial statements
- Unaudited -
Pg 8
NOTES TO FINANCIAL STATEMENTS
NOTE 1 Summary of significant accounting policies
Organization and business
Federal Security Protection Services, Inc. ("the Company"), a Delaware
Corporation, was incorporated on February 4, 1994 as New York Bagel Exchange,
Inc. Commencing September 26, 1995, the Company operated in the business of
wholesale and retail sales of bagels, sandwiches, baked goods, specialty
coffees and related items. On August 22, 1997, the Company acquired the
assets and liabilities of Windom, Inc., a non-operating public shell,
resulting in the retirement of all the common and preferred shares of both
companies, and the reissuance, by the Company, of 2,594,560 shares of common
stock. The merger was accounted for, in substance, as an issuance of stock
for the net monetary assets of Windom, Inc. on August 22, 1997, and the
financial statements presented are those of New York Bagel Exchange, Inc.
since the date of its formation. Subsequent to the merger, the Company
continued its wholesale and retail operations. On January 26, 1999, New York
Bagel Exchange, Inc. changed its name to Webboat.com, Inc., on April 2,
1999, Webboat.com, Inc. changed its name to Windom.com, Inc., on April 20,
1999, Windom.com, Inc. changed its name to Web4boats.com, Inc., and on March
12, 2002 Web4Boats.com, Inc. changed its name to Federal Security Protection
Services, Inc.
On March 22, 1999, the Board of Directors approved the sale of the
Company's inventory and fixed assets for $120,000. The Company ceased its
bagel business operations on March 25, 1999. The actual disposal date of
assets subject to the sale was on April 19, 1999. A gain of approximately
$72,000 resulted upon the disposition for the year ended December 31, 1999.
During fiscal year 1999, the Company began making plans to develop
a commercial internet site in which boat builders, manufacturers, dealers,
marinas, individual buyers and sellers would come to advertise sales and
services related to the boating industry. Subsequently, through November 30,
the Company continued to invest substantially in website development and
related costs. While all such development costs were expensed as incurred,
the Company expected, as a going concern, to realize future benefits from
these costs.
On December 1, 2001, the Company ended its pursuit of developing an internet
boating site. The much slower than anticipated growth in popularity of its
website, with correspondingly minimal revenues, rendered putting further
resources into internet boating unviable. Accordingly, the boating website
was closed in January, 2002. Presently, the Company is a full-service
managed security services company and a secure Internet Protocol ("IP")
network services provider. The Company provides its products and services
to customers (carriers, other IP-based service providers, systems
integrators, business enterprises) on a turnkey or per-requirement basis.
It develops custom solutions for securing virtual private networks,
email/document security management, digital rights management, content
delivery networks, IP-based video products suite and others requiring IP
based network security solutions. These integrated solutions can be deployed
on a secure network which provides integrated access to 85% of the United
States and in 115 countries. The Company also provides desktop-to-desktop
managed security network solutions and other policy-based services. The
Pg 9
Company expects to fulfill its plans and, as a going concern to derive
revenues, by the acquisition of existing security related companies during
fiscal year 2002.
Principles of consolidation
The consolidated financial statements include the accounts of the Company
and its wholly owned subsidiaries. All significant intercompany accounts
and transactions have been eliminated upon consolidation.
Property and equipment
Equipment is recorded at cost and depreciated over estimated useful lives of
five years using the straight-line method. Trademarks are recorded at cost
and amortized over estimated useful lives of five years using the straight-
line method. For the year ended March 31, 2002, all trademarks related to
Web4Boats.com, Inc. were written down to zero. Goodwill and indefinite-lived
intangible assets acquired after June 30, 2001 are not amortized but are
reviewed annually for impairment according to the provisions of SFAS No. 142
"Goodwill and Other Intangible Assets." There was no impairment of such
assets for the six months ended September 30, 2001 or 2002.
Income taxes
The Company has total net operating loss carryforwards at September
30, 2002 of approximately $2,518,000 and $2,274,000 for federal and California
state tax purposes, respectively. A deferred asset for these amounts has not
been accrued due to the uncertain nature of its being realized. Net operating
loss carryforwards begin to expire in fiscal year 2011 and 2004 for federal
and California state tax purposes, respectively.
Revenue recognition
With the acquisition of Iris Broadband, Inc. (see Note 2), the Company has
obtained "Indefeasible Rights of Use" (IRU) agreements with telecommunication
and data network carriers that grant and convey to the user the exclusive,
indefeasible right of access to and use of conduit or fiber optic fibers
leased by Iris. The terms of the agreements are from seventeen to twenty five
years. Agreements can be for one-time up-front payments or for a down payment
with subsequent monthly or annual payments for the rights of use during the
term of the agreement. When an up-front payment is made, it is recorded as
deferred income in a liability account. Income is then realized each
reporting period according to the straight line amortization over the term
of the agreement. Any related costs incurred under the contract by Iris are
capitalized and also amortized on a straight line basis over the life of the
contract.
Earnings per share
On March 12, 2002, the Company effected a ten for one reverse split of its
common stock. The computation of loss per share of common stock is based on
the weighted average number of shares outstanding during each three month
period with the reverse stock split retroactively applied to the three months
ended September 30, 2001.
NOTE 2 Acquisition
Iris Broadband, Inc.
On September 6, 2002, the Company acquired all of the outstanding
capital stock of Iris Broadband, Inc. ("Iris") in exchange for 70,000 shares
of the Company's Series B preferred stock valued at $203,000. The plan of
Pg 10
reorganization was made pursuant to the provisions of Internal Revenue Code
Section 368 (a)(1)(B). In keeping with the provisions of SFAS No. 141
"Business Combinations" for such transactions completed after June 30,
2001, the acquisition was accounted for by the purchase method. The results
of operations of Iris have been included in the consolidated results of
the Company since the date of acquisition. The excess of the purchase price
over the fair value of net assets acquired resulted in the recording of
$157,391 of goodwill. Within six months of the acquisition, should the
Company be unsuccessful in raising a minimum of $750,000 in capital and
maintaining a minimum average stock price of twenty-five cents per share for
a consecutive ten day period, Iris, at its sole discretion, has the option of
disengaging from the Company by reversing and nullifying the acquisition
transaction.
The unaudited proforma financial information for the acquisition
of Iris as if the business had been acquired at the beginning of each
respective fiscal period, is presented as follows:
For the six months ended,
2001 2002
Revenues $ 23,409 $ 46,336
Net loss $ (193,676) $ (565,922)
Net loss per common share:
Basic & diluted $ (.021) $ (.046)
The unaudited proforma financial information is presented for information
purposes only and may not be indicative of results of operations as they
would have been if the acquisition occurred on April 1, 2001, nor is it
indicative of the results of operations which may occur in the future.
Anticipated efficiencies from the combination have been excluded from the
amounts included in the proforma information.
NOTE 3 Shareholders' equity
Stock options
During fiscal year 1998, the Company recorded a charge to operations of
$687,500 for marketing and other services in exchange for issuance of stock
options. The value for such services was computed as the difference between
the quoted market price at the option's measurement date and the option
price. All options were exercisable at time of grant and no options had been
exercised as of March 31, 2002. On April 24, 2002, all previously issued
stock options that had not already expired totalling 3,525,000 shares with
an option price of $.07 to $1.00 per share, and $1,487,500 in total were
cancelled and the Company's Board of Directors took the action of reissuing
3,525,000 shares with an option price of $.15 per share. Additionally, the
Board of Directors granted 2,700,000 in stock options with an option price
of $.15 per share to three related parties to be earned during the period
April 25, 2002 to October 25, 2002. These 6,225,000 in stock options were
valued as of the date of grant using the Black-Scholes option pricing model
and determined to have a fair value per option of $.0142 with the following
assumptions: expected price volatility of 32.8%, expected option lives of
five years, risk free interest rate of 6.0%. On September 1, 2002, the
Board of Directors also granted 3,000,000 in stock options with an option
price of $.07 per share to three Company officers. These 3,000,000 in stock
options were valued as of the date of grant using the Black-Scholes option
Pg 11
pricing model and determined to have a fair value per option of $.0525 with
the following assumptions: expected price volatility of 135%, expected option
lives of five years, risk free interest rate of 5.0%. The number of shares
represented by stock options outstanding at September 30, 2002 is therefore,
9,225,000 shares with an option price of $.07-.15 per share, and $1,143,750
in total, and with a market price at date of grant of $.06-.08 per share, and
$678,000 in total. Outstanding options expire from April to September, 2007.
Issuance of preferred stock
In September, 1999, the Company authorized the issuance of 20,000,000
shares of $.001 par value, preferred stock. In August, 1999, 10,000 shares
of preferred stock was designated as Series A preferred stock with conversion
and voting rights of one share of Series A preferred to 100 shares of common
stock. Subsequently, the 10,000 shares of Series A preferred was sold for
$100,000 to a related party. A beneficial conversion feature of $100,000 was
present in the transaction and is reflected in stockholders' equity at
September 30, 2002.
In August, 2000, the outstanding 10,000 shares of Series A preferred stock
were converted to 1,000,000 shares of common stock. The Series A preferred
shares were then cancelled and returned to the status of authorized and
unissued.
In November, 2001, 70,000 shares of Series A preferred stock were
issued as incentive to four related parties for providing the Company with
operating capital from loans totaling $20,000 and from purchase of common
stock for $50,000.
As discussed in Note 2, in September, 2002, 70,000 shares of preferred
stock was designated as Series B preferred stock and issued to the
shareholders of Iris Broadband, Inc. in exchange for all the capital stock
of Iris. Series B preferred stock has conversion and voting rights of one
share of Series B preferred to 100 shares of common stock.
NOTE 4 Related parties
Short term borrowings
During the year ended March 31, 2001, the Company received $140,000 from
eight lenders, two of which were related parties, in exchange for promissory
notes with interest at 12% per year and terms ranging from seven days to six
months. As inducement to obtain the unsecured loans, the Company issued a
total of 560,000 shares of common stock, valued at $123,800, which was
recorded as interest expense during the year ended March 31, 2001.
At September 30, 2001, the Company had unsecured promissory notes, inclusive
of accrued interest, of $153,571, payable to nine shareholders, and that bear
annual interest at rates of 10% to 12%.
At September 30, 2002, the Company had unsecured promissory notes, inclusive
of accrued interest, of $192,454, payable to nine shareholders, and that bear
annual interest at rates of 10% to 12%.
Stock options
Represented in outstanding stock options are 9,200,000 shares at September
30, 2002, to related parties.
Pg 12
NOTE 5 Statements of Cash Flows
Financial instruments
The Company considers all liquid interest-earning investments with a maturity
of three months or less at the date of purchase to be cash equivalents.
Noncash transactions
During the six months ended September 30, 2002, the Company issued 3,357,000
shares of its common stock, of which 2,950,000 shares were to related parties.
The shares were compensation in exchange for $169,000 in services, of which
$101,100 had been accrued at March 31, 2002.
Interest paid
During the six months ended September 30, 2001, the Company charged
to operations interest expense of $9,119 and paid no interest. During the six
months ended September 30, 2002, the Company charged to operations interest
expense of $14,382 and paid $220 of interest in cash.
NOTE 6 Capital lease
In September, 2002, the Company acquired data network equipment in
a transaction classified as a capital lease in accordance with SFAS No. 13,
"Accounting for Leases." The gross carrying amount of the computer
equipment was $40,860 at September 30, 2002. Amortization expense related
to the equipment is included as part of the Company's total depreciation
expense. The following table presents the future minimum lease payments
under the capital lease together with the present value of the minimum lease
payments as of September 30, 2002.
Years Ended March 31,
2003 $12,072
2004 20,695
2005 20,695
2006 8,623
Total minimum lease payments 62,085
Less: amount representing interest 21,225
Present value of minimum lease payments $40,860
NOTE 7 Commitments and Contingencies
Contract commitments
On April 5, 1999, the Company entered into a one year consulting agreement,
with a related party, under which the Company agreed to pay $10,000 per month,
payable in cash or stock, for management and advisory services. The contract
was renewed through March 31, 2002. For the year ended March 31, 2002, $4,500
in cash and 2,790,000 shares of common stock, valued at $83,700 were issued as
payment for services received from April through December, 2001. A balance of
$30,000 under the contract that was accrued as of March 31, 2002 was paid in
the quarter ended September 30, 2002 with the issuance of 600,000 shares of
common stock.
On September 1, 2002, the Company entered into a seven year employment
agreement with three officers under which the Company agreed to pay $480,000
Pg 13
in annual salary, 3,000,000 of its common shares in stock options (see Note
3), various employment benefits, and an annual bonus based on meeting certain
performance criteria. Additionally, the Company has committed to pay the
three officers up to $8,250,000 in total for early termination for other than
death, disability, or breach of conduct.
On July 26, 2002, the Company entered into a six month contract with
GlobalEquitywatchers.coms, a wholly owned subsidiary of Round II Inc., under
which terms the Company will receive various services related to promoting
the Company's website in exchange for 15,000 shares of the Company's common
stock which had a value of $900 ($.06 per share) on the contract date.
Additionally, the Company signed a 60 day agreement (with options for renewal)
with Round II Inc. on July 26, 2002 for the express purpose of having Round II
Inc. endeavor to use its professional expertise towards presenting the Company
with potential business entities for acquisition by the Company or for the
purpose of locating appropriate funding sources for the Company. As a result
of successfully completed transactions through its efforts, Round II Inc. will
be paid a fee of 10% of the stock and/or cash received by the Company.
Lease commitments
The Company leases its Iris facility under a long-term operating lease
expiring in June 2004. Future minimum lease payments total $16,704 for
fiscal 2002, $33,408 for fiscal 2003, and $8,352 for fiscal 2004. Rent
expense was incurred only in September, 2002 with the acquisition of Iris and
totaled $2,227.
Litigation
During fiscal 1999, a lawsuit was filed against the Company in which the
plaintiff, a former officer, claimed breach of employment contract related
to fiscal year 1998. In May, 1999, the dispute was settled for $42,500.
The unpaid settlement amount is accrued as of September 30, 2002 and 2001.
NOTE 8 Going concern
The Company has suffered recurring losses from operations and has a net
capital deficiency that raise substantial doubt about its ability to continue
as a going concern. During the year ended March 31, 2002, as a result of
considering the unviability of remaining in the internet boating industry,
and as described in Note 1 above, the Company saw no alternative but to cease
activities in that industry and look for a new economic model and
opportunity. Note 1 also describes management's plans in regard to
perpetuating its existence through this new opportunity related to the
small business and home security industry. The Company has the ability to
raise funds through the public equity market and, as stated in Notes 3 and 4,
has paid significant liabilities to related and other parties with common
stock and raised substantial funds from a related party in the private sector
as well. While such plans and fundraising ability seem to mitigate the
effect of prior years' losses and deficits, the Company is essentially only
beginning to operate in a new industry. The inability to assess the
likelihood of the effective implementation of management's plans in this
new environment also raises substantial doubt about its ability to continue
as a going concern.
Item 2. Management's Discussion and Analysis or Plan of Operation.
You should read the following discussion of our results of operations and
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financial condition in conjunction with our consolidated financial statements
and related notes included elsewhere in this Form 10-QSB. Unless specified
otherwise as used herein, the terms "we", "us" or "our" refers to Federal
Security Protection Services, Inc.
The following Management's Discussion and Analysis or Plan of Operation
contains certain forward-looking statements regarding future financial
condition and results of operations and the company's business operations.
We have based these statements on our expectations about future events. The
words "may," "intend," "will," "expect," "anticipate," "objective,"
"projection," "forecast," "position" or negatives of those terms or other
variations of them or comparable terminology are intended to identify
forward-looking statements. We have based these statements on our current
expectations about future events. Although we believe that our expectations
reflected in or suggested by our forward-looking statements are reasonable,
we cannot assure you that these expectations will be achieved. Our actual
results may differ materially from what we currently expect. Important
factors which could cause our actual results to differ materially from
the forward-looking statements include, without limitation: (1)general
economic and business conditions, (2) effect of future competition,
and (3) failure to raise needed capital.
OVERVIEW
The Company was organized under and pursuant to the laws of the State of
Delaware on February 4, 1994. Refer to the Company's Annual Report (Form
10KSB) for the fiscal year ending March 31, 2002 for a description of the
organizational history of the Company.
( http://www.sec.gov/cgi-bin/browse-edgar?company=&CIK=1098278&State=&SIC=
&action=getcompany )
The Company's corporate headquarters and its operating office are located at
400 Poydras Street, Suite 1510, New Orleans, LA 70130.
In March 2002, The Company's then General Manager was authorized by
the Directors of the Company to seek suitable candidates in the field of
security, for acquisition by the Company. In furtherance of this aim the
Company executed an agreement with Iris Broadband, Inc., a corporation
organized and existing under and pursuant to the laws of the State of
Louisiana, (hereinafter "Iris") pursuant to which it was agreed that the
Company would acquire all of the issued and outstanding stock of Iris. Iris
and the Company executed a letter of intent on April 25, 2002 to negotiate,
execute and consummate a tax-free stock exchange acquisition of Iris by
September 30, 2002 in which Iris would become a wholly-owned subsidiary of
the Company whereby the stockholders of Iris would receive 120,000 shares of
the Company's $.001 par value Series A preferred stock. On April 25, 2002,
the Company also entered into an agreement with Iris whereby Iris agreed to
render certain services to the Company that are designed to accelerate the
Company's business realignment.
In contemplation of the consummation of the acquisition, on May 23, 2002, Mr.
Dennis Schlagel, the Company's then President and Mr. Blair Merriam, the
Company's then General Manager, resigned their offices (both, however,
remained as Directors of the Company) and Mr. Gary O'Neal, and Mr. Michael
Landers (respectively Chief Executive Officer and President of Iris)
became respectively President and Vice President of Finance of the Company.
Pg 15
Messrs. O'Neal and Landers were also appointed Directors of the Company.
On the same date, Mr. Daniel Thornton (Secretary and a Director of the
Company) was appointed Vice President - Business Development of the Company.
(See "Directors and Executive Officers".)
The final agreement executed by Iris and the Company on August 16, 2002
reflected a change from the Letter of Intent in that: (1) 70,000 shares of
preferred stock were issued to the Iris shareholders instead of 120,000
shares; and (2) a new preferred stock series, Series B, was created, and
Series B preferred shares were issued to the former Iris shareholders instead
of Series A preferred shares. This agreement, "Plan and Reorganization by
Exchange of Voting Stock of Federal Security Protection Services, Inc. for
All of the Shares Of Iris Broadband, Inc.", is included with this report as
Exhibit A.
On September 6, 2002 all conditions to closing were met, and the Company
acquired all of the outstanding stock of Iris and thus acquired the business
of Iris. On September 19, 2002, Form Type 8-K was submitted, explaining that
control of the Company potentially shifted to the former shareholders of
Iris. The earliest date of conversion of the Series B preferred stock to
common stock is March 6, 2003, six months as and from the date of its
issuance. Total Common Stock outstanding at the effective date of the
merger was unchanged at 6,065,209 shares. Total voting rights of Series A
Preferred Stock was unchanged at 700,000. Total voting rights of Series B
Preferred Stock is 7,000,000. Grand total voting rights at the effective
date of the merger was, 13,765,209.
Employment agreements were executed effective September 1, 2002 for Gary
O'Neal, President and CEO of the Company; Michael Landers. Vice President,
Finance and Edward Reynolds, General Counsel. These agreements and related
stock option certificates are included in this report as Exhibits B, C, D, E,
F and G.
On September 15, 2002 Mr. William Livingston resigned from the Board of
Directors. On September 27, 2002, Mr. John Fentum was appointed to the
Board of Directors. Mr. Fentum is the founder and Managing Partner of
The Assurity Group, LLC., a provider of integrated information assurance
solutions focusing on the federal government sector. He is also a Director
of Millenium Holdings, Ltd., an early stage venture management and consulting
organization. Mr. Fentum has extensive business development experience in
the convergent industries of Telecommunications and Cable TV and has
structured early and seed stage investment for closely held businesses. He
was involved with a Data Local Exchange Carrier (DLEC) in the Gulf South in
a strategic business development role. During his tenure he sold the
companies ISP holdings, contracted an investment banking services company,
leading an in house finance and corporate development group to secure
significant equity capital for the company from institutional and strategic
investors. Mr. Fentum held the position of Principal, for a private family
investment portfolio group with investment interests in telecommunications,
wireless, Internet and multimedia. Mr. Fentum was involved in over 30
transactions, ranging from acquiring on behalf of the group a controlling
interest in an Air To Ground (ATG) cellular communications technology company,
which is now deploying a national cellular network for providing voice and
data communications to business and general aviation aircraft. While with
Shaw Communications a leading Canadian CATV operator, Mr. Fentum established
Pg 16
a national presence and outsourcing revenue base for the company's CATV
billing management systems and software. He has spearheaded the
implementation of a eastern European cable TV franchise and during the early
development stages of interactive voice service bureaus successfully launched
an on line stock quote and trading system service bureau with a national
Canadian cellular provider and financial newspaper group. Mr. Fentum holds a
BA from Trent University.
BUSINESS
The Company is a full-service managed security services company and a secure
Internet Protocol ("IP") network services provider. The Company provides its
products and services to its customers (carriers, other IP-based service
providers, systems integrators, business enterprises) on a turnkey or
per-requirement basis. The Company also intends to develop custom solutions
for securing virtual private networks, email/document security management,
digital rights management, content delivery networks, IP-based video products
suite and others requiring IP based network security solutions. The Company
deploys these integrated solutions on a secure network which is currently
deployed on a Tier 1 Backbone, and can provide integrated access to Tier 2 - 4
and rural access to cover 85% of the United States and international in 115
countries. The Company can provide desktop-to-desktop managed security
network solutions and other policy-based services.
An integrated broadband network utilizing wireless technology as well as
fiber optic infrastructure is being planned. Wireless network development is
concentrated initially in the Southeastern United States, particularly in
Tier 2 - 4 cities and rural areas. Iris executed a joint venture agreement
to implement the first wireless network in a city in Louisiana and is
interested in implementation of wireless networks in other states. Expansion
to other cities is expected to occur as quickly as capital can be secured.
No assurance can be given that such capital can be secured on terms acceptable
to the Company, or upon any terms.
Services can also be provided in major metropolitan areas of Denver, Houston,
Dallas, Atlanta, Miami, Austin, Orlando, Tampa and New Orleans via DSL and
fiber optic networks with which Iris has contracted for access and transport
services.
Services Offered by the Company
The Company is a secure Internet Protocol ("IP") network services provider
and full-service Managed Security Services Provider.
* Products and services to carriers, other IP-based service providers,
systems integrators and business enterprises on a turnkey or per-requirement
basis, including customers critically needing HIPPA-compliant services.
* Custom solutions utilizing virtual Network Services for:
--Layer2 security (Layer 2 customer separation)
--Virtual Private Networks (Secure and Proprietary)
--Transaction security (e-Commerce and Financial)
--IPVideo surveillance networks
--Authentication service (Document and Network)
--Vulnerability scanning and Network Monitoring
--Data back-up and recovery (Individual and Enterprise)
--Anti-virus Scanning (Individual and Enterprise)
--Content filtering (Spam and E-Mail)
--Firewalls. (Remote and Enterprise)
* Desktop-to-desktop managed security network solutions and other policy-based
Pg 17
services.
* Integrated solutions deployed on a secure network. The network, provided
by Iris Broadband, a wholly owned subsidiary of the Company, covers nearly all
of the United States and 115 countries.
* Custom solutions utilizing FSPS Network Technologies for:
--Access Control and Physical Security Systems
--CCTV Employment and Integration
--Physical facilities construction and installation
--Wireless networks deployment
--Cable and fiber optic networks deployment.
FSPS Network Services
Security Applications and Services
--Layer2 security
--Virtual Private Networks (Secure and Proprietary)
--Transaction security (e-Commerce and Financial)
--IPVideo surveillance networks
--Authentication service (Document and Network)
--Vulnerability scanning and Network Monitoring
--Data back-up and recovery (Individual and Enterprise)
--Anti-virus Scanning (Individual and Enterprise)
--Content filtering (Spam and E-Mail)
--Firewalls. (Remote and Enterprise)
FSPS Network Technologies
FSPS Network Technologies provides the in-house capability of meeting
immediate customer requirements desiring a specific supporting physical
infrastructure to integrate with the services delivered by FSPS Network
services. These capabilities are:
* Access Control and Physical Security Systems integrated into a comprehensive
security plan for enterprise, office building or office park environments
* Communications Installation and Construction Services, includes:
Physical Facility Construction
FSPS affiliates are fully licensed and bonded and provide a range of planning,
design, construction and installation services. These include physical
facilities, e.g., collocation facilities, building huts and regeneration sites.
Site planning and design
Site preparation
Equipment install and de-install
Tower and Antenna Erection
Install generators and emergency backup systems
Engineering
CAD drawings
Asset management and logistics control
Wireless Deployment
Wireless Internet access networks in the 2.4 and 5.8 GHz range, as well as
Free Space Optics (FSO) and 60mm Wave (MMW), are proliferating throughout the
U.S. FSPS affiliates are experienced in the design and deployment of these
networks (including Terabeam, Lucent, Motorola and Nortel), and in the
supporting tower erection and antenna installation.
RESULTS OF OPERATIONS
The results of operations of Iris have been included in the consolidated
Pg 18
results of the Company since the date of acquisition effective September
6, 2002. Revenue for the six months ended September 30, 2002 was
$21,710 and $609 for the six months ended September 30, 2001. For the
three months ended September 30, 2002 revenue was also $21,710 and for the
three months ended September 30, 2001 it was $201. Revenue came from two
primary sources. The first being the resale of dedicated private line data
circuits, and the second being the realization of income from Deferred IRU
Income amortized over the term of the original amounts. Operating expenses
consist of salaries and general and administrative expenses. On September 1,
2002, the Company entered into seven year employment agreements with three
officers (Gary O'Neal, Michael Landers and Edward Reynolds) under which the
Company agreed to pay aggregate annual salaries totaling $480,000. General
and administrative expense consisted primarily of financial, marketing,
consulting, legal expenses and related costs. $48,000 of wages and salaries
was booked for the quarter ending September 30, 2002.
General and administrative expense for the six months ended September 30,
2002 was $454,765 and $171,655 for the six months ended September 30, 2001.
General and administrative expense for the three months ended September
30, 2002 was $241,052 and $104,263 for the three months ended September 30,
2001. Ninety four percent, or $225,895, of the general and administrative
expense in the most recent quarter was for Professional fees-consulting.
Of this amount, $24,282 was for the balance of stock options previously
granted that were expensed for the three months ended September 30, 2002.
Also, on September 1, 2002, the Board of Directors granted 3,000,000 in stock
options to three Company officers. These stock options were valued as of the
date of grant using the Black-Scholes option pricing model and determined to
have a fair value per option of $.0525. Therefore, $157,500 was expensed for
these options. Other Professional fees-consulting included $44,000 for Iris
Broadband, Inc.'s work in the quarter ending September 30, 2002 under the
Professional Services Contract executed on April 25, 2002. This Professional
Services contract was terminated at September 6, 2002 due to the acquisition
of Iris by the Company.
The Company does not have any non-officer employees.
LIQUIDITY AND CAPITAL RESOURCES
As of September 30, 2002, the Company had current assets of $473,464.
At September 30, 2001 the current asset balance was $44,621. Total assets
for the same respective periods were $1,187,456 and $52,472.
As of September 30, 2002, the Company had current liabilities of $494,979.
At September 30, 2001 the current liability balance was $305,451. Long term
liabilities at September 30, 2002 were $887,706. There were no long term
liabilities at September 30, 2001. Total Liabilities as of September 30,
2002 were $1,382,685 and were $305,451 as of September 30, 2001.
Total shareholders' equity was ($195,229) and ($252,979)as of September 30,
2002 and September 30, 2001, respectively.
The significant changes in the accounts from 2001 to 2002 were due solely to
the acquisition of Iris Broadband by the Company effective September 6, 2002.
Iris has executed Indefeasible Rights of Use (IRU) agreements with
telecommunication and data network carriers that grant and convey to the user
the exclusive, indefeasible right of access to and use of conduit or fiber
Pg 19
optic fibers owned by Iris. The terms of the agreements are from seventeen
to twenty-five years. Agreements can be for one- time up-front payments or
for a down payment and subsequent monthly or annual payments for the rights of
use during the entire term of the agreement. The costs of acquisition and
construction are recorded as an asset account, Deferred Costs. The costs are
expensed each reporting period according to the straight line amortization
over the term of the original amount. When an up-front payment is made, it
is recorded as a liability account, Deferred Income. Income is then realized
each reporting period according to the straight line amortization over the
term of the original amount.
The Company's auditor has issued an opinion questioning the Company's ability
to continue as a going concern, and we believe our current cash and cash
equivalents are, in fact, not sufficient to meet our anticipated cash needs
for working capital and capital expenditures. The Company intends to meet
its needs through borrowing or through the issuance of equity.
PLAN OF OPERATION
The Company is operating as a secure Internet Protocol ("IP") network services
provider and full-service Managed Security Services Provider. It offers
products and services to carriers, other IP-based service providers, systems
integrators and business enterprises on a turnkey or per-requirement basis,
including customers critically needing HIPPA-compliant services. FSPS Network
Technologies provides the in-house capability of meeting immediate customer
requirements desiring a specific supporting physical infrastructure to
integrate with the services delivered by FSPS Network services.
KNOWN RISKS AND TRENDS
The Company's business plan for its own operations is presently reliant on
the success of the acquisition of Iris Broadband, Inc. There is no means of
judging the success of the venture. There is significant competition in the
IP and data security fields, and certainly much better funded companies
competing in the marketplace.
PART II--OTHER INFORMATION
Item 1. Legal Proceedings.
None.
Item 2. Changes in Securities.
-Shares Outstanding-
Type of Security 6/30/02 9/30/02 Increase
Common Stock 5,750,209 6,065,209 315,000
Series A Preferred Stock 70,000 70,000 none
Series B Preferred Stock none 70,000 70,000
Item 3. Defaults Upon Senior Securities.
None.
Item 4. Submission of Matters to a Vote of Security Holders.
None.
Pg 20
Item 5. Other Information.
The deadline for submission of audited financial statements of Iris
Broadband, Inc. is sixty days from the originally filed Form 8K advising
of the acquisition. The 8K was filed on September 19, 2002. The audit will
not be completed and submitted by November 18, 2002. An amended 8K will be
filed advising of that fact. Included with the amended filing will be
unaudited financial statements for Iris Broadband and also consolidated
financial statements. The audit will be completed and filed as expeditiously
as possible. In the meantime, no acts will be undertaken by the Company that
would be under the auspices of the Securities Act of 1933, as amended, or any
other applicable securities laws.
Item 6. Exhibits and Reports.
EXHIBITS
Exhibit A. Plan and Reorganization by Exchange of Voting Stock of Federal
Security Protection Services, Inc. for All of the Shares Of Iris
Broadband, Inc.
Exhibit B. Employment Agreement for Gary O'Neal
Exhibit C. Employment Agreement for Michael Landers
Exhibit D. Employment Agreement for Edward Reynolds
Exhibit E. Option for Gary O'Neal to Purchase Common Stock
Exhibit F. Option for Michael Landers to Purchase Common Stock
Exhibit G. Option for Edward Reynolds to Purchase Common Stock
SIGNATURE
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed in its behalf by the undersigned, thereunto
duly authorized.
Federal Security Protection Services, Inc.
Date: November 13th, 2002 /s/ Gary S. O'Neal
________________ __________________________
Gary S. O'Neal, President
EXHIBIT A
PLAN AND AGREEMENT OF REORGANIZATION
By exchange of voting stock of FEDERAL SECURITY PROTECTION
SERVICES, INC., a Corporation organized and existing under and pursuant to
the laws of the State of Delaware. For all of the shares of IRIS BROADBAND,
INC., a Corporation organized and existing under and pursuant to the laws
of the State of Louisiana. Federal Security Protection Services, Inc.,
a corporation organized and existing under and pursuant to the laws of the
State of Delaware (hereinafter referred to as "FSPS") and Iris Broadband,
Inc., a corporation organized and existing under and pursuant to the laws of
Pg 21
the State of Louisiana, (hereinafter referred to as "Iris"), hereby agree as
follows:
ARTICLE 1
PLAN OF REORGANIZATION
Plan Adopted
Section 1.01. A plan of reorganization of FSPS and Iris, pursuant to the
provisions of Internal Revenue Code Section 368(a)(1)(B) ("the Agreement"),
is hereby adopted as follows:
* Each Shareholder will transfer to FSPS the number of shares of capital
stock of Iris, listed after his or her name in Column B of Schedule "A",
which together will constitute all of the issued and outstanding shares of
stock of Iris.
* In exchange for the number of shares transferred by each Shareholder, FSPS
will issue and cause to be delivered to each Shareholder the number of shares
of Preferred Series B stock listed after the name of each Shareholder in
Column C of Schedule "A".
Closing Date
Section 1.02. Subject to the conditions precedent set forth in this Agreement,
this plan of reorganization shall be executed at a mutually convenient date to
both parties. The closing date ("Closing Date") shall be subsequent to the
execution of this Agreement and shall be the consummation of the transactions
contemplated by the Agreement. The Closing Date shall be five (5) days after
all conditions to closing have been satisfied.
ARTICLE 2
COVENANTS, REPRESENTATIONS AND WARRANTIES OF FSPS
Legal Status
Section 2.01. FSPS is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, with corporate power
to own property and carry on its business as it is now being conducted.
Copies of the articles of incorporation of FSPS, together with amendments
thereto, certified by the Secretary of State of Delaware, and delivered to
Iris, are complete and accurate as of the date hereof.
Subsidiaries
Section 2.02. FSPS has neither subsidiaries nor any interest in any other
corporation, firm or partnership.
Capitalization
Section 2.03. FSPS has an authorization of One Hundred Million (100,000,000)
shares of common stock with the par value of one tenth of a cent ($.001) per
share of which, as at June 30, 2002, 2,708,201 were issued and outstanding.
Pg 22
In addition FSPS has an authorization of Twenty Million (20,000,000) shares of
preferred stock with the par value of one tenth of a cent ($.001) per share,
of which 70,000 Preferred A shares were issued and outstanding as of June 30,
2002. One Preferred Series A share converts to 100 common shares, however
these shares are then reverse split 10 for one, per the reverse split of
common stock approved by the shareholders on March 12, 2002, so the net
effect is a conversion to 700,000 common shares.
There are currently outstanding options to acquire 5,700,000 shares of common
stock.
Financial Statements
Section 2.04. (a) FSPS will deliver to Iris the balance sheet of FSPS as of
June 30, 2002, and the related statements of income and retained earnings of
FSPS prior to the Closing Date.
(b) Other than changes in the usual and ordinary conduct of the business
since June 30, 2002 there have been, and at the Closing Date there will be,
no changes in the financial statement as of June 30, 2002.
Title to Properties
Section 2.05. All book assets of FSPS are in existence, are in the possession
of FSPS, are in good condition and repair and conform to all applicable
zoning and building laws and ordinances. FSPS has good and marketable title
to all of its assets and, except for any liens or encumbrances that are shown
on its financial statements as of June 30, 2002, or which have arisen in the
ordinary course of its business since the date of the financial statement[s],
and which do not interfere with the conduct of its business in it ordinary
course, holds the assets subject to no mortgage, lien or encumbrance.
Indebtedness
Section 2.06. Except as set forth in the balance sheet of FSPS as of June
30, 2002 there is no outstanding indebtedness other than liabilities incurred
in the ordinary course of business or in connection with this transaction
FSPS is not in default with respect to any terms or conditions of any
indebtedness.
No Litigation or Proceeding Pending or Threatened
Section 207. FSPS is not a party to, nor has it been threatened with, any
litigation or governmental proceeding which if decided adversely to it, would
have a material adverse effect on the transaction contemplated hereby, or
upon the financial condition, net worth, prospects, or business of FSPS, or
would create a material liability on the part of FSPS.
No Restriction Preventing Transaction
Section 2.08. FSPS is not subject to any charter, bylaw, mortgage, lien,
lease, agreement, judgment or other restriction of any kind that would
prevent consummation of the transaction contemplated by this Agreement.
Pg 23
Status of Receivables
Section 2.09. None of the accounts receivable or contracts receivable
indicated in the financial statements that FSPS has delivered to Iris is
subject to any counterclaim or setoff, and all such accounts receivable and
contracts receivable are good and collectible at the aggregate amount recorded
thereof.
No Broker or Finder
Section 2.10. FSPS has not retained or otherwise utilized the services of
any broker or finder in connection with the transaction contemplated by this
Agreement.
Taxes
Section 2.11. FSPS has filed all FSPS income tax returns and, in each state
where qualified or incorporated, all state income tax or franchise tax returns
which are required to be filed, has paid all taxes as shown on those returns
as have become due and has paid all assessments received to the extent that
assessments have become due.
Status of Shares Being Transferred
Section 2.12. The shares of stock of FSPS that are to be issued and delivered
to Shareholders pursuant to the terms of this Agreement, when issued and
delivered, will be validly authorized and issued, and will be fully paid and
nonassessable. No Shareholder of FSPS will have any preemptive right of
subscription or purchase with respect to any of these shares.
Authority to Execute Agreement
Section 2.13. FSPS has the legal power and right to enter into this Agreement
and to comply with all of its terms and conditions.
Disclosure
Section 2.14. On the date of this Agreement FSPS has, and at the Closing Date,
will have disclosed all events, conditions and facts materially affecting the
business and prospects of FSPS. FSPS has not now and will not have, at the
Closing Date, withheld knowledge of any such events, conditions and facts
which it knows, or has reasonable grounds to know, may materially affect the
business and prospects of FSPS. None of the representations and warranties
made by FSPS in this Agreement and contained in any certificate or other
instrument furnished or to be furnished to Iris, pursuant to this Agreement,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary in order to make the statements
contained in this Agreement not misleading.
Pg 24
ARTICLE 3
COVENANTS, REPRESENTATIONS AND WARRANTIES OF IRIS
Legal Status
Section 3.01. Iris is a corporation duly organized, validly existing and in
good standing under the laws of the State of Louisiana, with corporate power
to own property and carry on its business as it is now being conducted.
Copies of the articles of incorporation of Iris, together with amendments
thereto, certified by the Secretary of State of Louisiana, and delivered to
FSPS, are complete and accurate as of the date hereof.
Subsidiaries
Section 3.02. Iris has a minority interest in Kinetix Broadband, L.L.C., a
Louisiana limited liability company. Iris signed a joint venture agreement
on July 30, 2002 with Vida Technologies, Inc. to create LTTI, Inc. Iris will
own fifty percent of LTTI. Iris has neither other subsidiaries nor any
interest in any other corporation, firm or partnership.
Capitalization
Section 3.03. Iris has an authorization of Ninety Million (90,000,000) shares
of common stock with the par value of one tenth of a cent ($.001) per share
of which, as at June 30, 2002, none were issued and outstanding.
In addition, Iris has an authorization of Ten Million One Hundred
Thousand (10,100,000) shares of preferred stock with the par value of one
tenth of a cent ($.001) per share of which, as at June 30, 2002, 7,000,000
were issued and outstanding.
There are no outstanding options, contracts, calls commitments
or demands relating to the authorized but unissued stock of Iris.
Financial Statements
Section 3.04. (a) Iris will deliver to FSPS the balance sheet of Iris as of
June 30, 2002, and the related statements of income and retained earnings of
FSPS prior to the Closing Date.
(b) Other than changes in the usual and ordinary conduct of the business
since June 30, 2002 there have been, and at the Closing Date there will be,
no changes in the financial statement as of June 30, 2002.
Title to Properties
Section 3.05. All book assets of Iris are in existence, are in the possession
of Iris, are in good condition and repair and conform to all applicable zoning
and building laws and ordinances. Iris has good and marketable title to all
of its assets and, except for any liens or encumbrances that are shown on its
financial statements as of June 30, 2002, or which have arisen in the
ordinary course of its business since the date of the financial statement and
which do not interfere with the conduct of its business in it ordinary course,
holds the assets subject to no mortgage, lien or encumbrance.
Pg25
Indebtedness
Section 3.06. Except as set forth in the balance sheet of Iris as of June
30, 2002 there is no outstanding indebtedness other than liabilities incurred
in the ordinary course of business or in connection with this transaction Iris
is not in default with respect to any terms or conditions of any indebtedness.
No Litigation or Proceeding Pending or Threatened
Section 3.07. Iris is not a party to, nor has it been threatened with, any
litigation or governmental proceeding, which if decided adversely to it,
would have a material adverse effect on the transaction contemplated hereby,
or upon the financial condition, net worth, prospects, or business of Iris,
or would create a material liability on the part of Iris.
No Restriction Preventing Transaction
Section 3.08. Iris is not subject to any charter, bylaw, mortgage, lien,
lease, agreement, judgment or other restriction of any kind that would
prevent consummation of the transaction contemplated by this Agreement.
Status of Receivables
Section 3.09. None of the accounts receivable or contracts receivable
indicated in the financial statements that Iris has delivered to FSPS is
subject to any counterclaim or setoff, and all such accounts receivable and
contracts receivable are good and collectible at the aggregate amount
recorded thereof.
No Broker or Finder
Section 3.10. Iris has not retained or otherwise utilized the services of
any broker or finder in connection with the transaction contemplated by this
Agreement.
Taxes
Section 3.11. Iris has filed all federal income tax returns and, in each
state where qualified or incorporated, all state income tax or franchise tax
returns which are required to be filed, has paid all taxes as shown on those
returns as have become due and has paid all assessments received to the extent
that assessments have become due, unless as noted in the financial statements
of June 30, 2002.
Status of Shares Being Transferred
Section 3.12. The shares of stock of Iris that are to be issued and delivered
to FSPS pursuant to the terms of this Agreement, when issued and delivered,
will be validly authorized and issued, and will be fully paid and
nonassessable. No Shareholder of Iris will have any preemptive right of
subscription or purchase with respect to any of these shares.
Authority to Execute Agreement
Pg 26
Section 3.13. Iris has the legal power and right to enter into this Agreement
and to comply with all of its terms and conditions.
Disclosure
Section 3.14. On the date of this Agreement Iris has, and at the Closing Date,
will have disclosed all events, conditions and facts materially affecting the
business and prospects of Iris. Iris has not now and will not have, at the
Closing Date, withheld knowledge of any such events, conditions and facts
which it knows, or has reasonable ground to know, may materially affect the
business and prospects of Iris. None of the representations and warranties
made by Iris in this Agreement and contained in any certificate or other
instrument furnished or to be furnished to FSPS, pursuant to this Agreement,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary in order to make the statements
contained in this Agreement not misleading.
ARTICLE 4
CONDUCT OF FSPS PENDING CLOSING
Access to Information and Documents
Section 4.01. (a) FSPS will afford Iris and accredited representatives,
from the date of this Agreement until consummation of the plan or
reorganization, full access during normal business hours to all properties,
books, accounts, contracts, commitments and records of every kind of FSPS
in order that Iris may have full opportunity to make any investigation as it
shall desire to make of, and to keep itself informed with respect to, the
affairs of FSPS.
(b) In addition, FSPS will permit Iris to make extracts or copies of all such
books, accounts, contracts, commitments and records and will furnish to
Shareholders and Iris upon demand, any further financial and operating data
and other information as Iris shall reasonably request from time to time.
(c) Iris will use any information so secured only for its own purposes in
connection with the consummation of the transaction contemplated and will
not divulge the information to any persons not entitled thereto.
Carry On Business as Usual
Section 4.02. FSPS will carry on its business in substantially the same
manner as it was conducted prior to the execution of this Agreement.
Section 4.03. FSPS will use its best efforts to cause the satisfaction of
all conditions precedent contained in this Agreement.
ARTICLE 5
CONDUCT OF IRIS PENDING CLOSING
Access to Information and Documents
Pg 27
Section 5.01. (a) Iris will afford FSPS and accredited representatives, from
the date of this Agreement until consummation of the plan or reorganization,
full access during normal business hours to all properties, books accounts,
contracts, commitments and records of every kind of Iris in order that FSPS
may have full opportunity to make any investigation as they shall desire to
make of, and to keep itself informed with respect to, the affairs of Iris.
(b) In addition, Iris will permit FSPS to make extracts or copies of all
such books, accounts, contracts, commitments and records and will furnish to
FSPS upon demand, any further financial and operating data and other
information as FSPS shall reasonably request from time to time.
(c) FSPS will use any information so secured only for their, or its, own
purposes in connection with the consummation of the transaction contemplated
and will not divulge the information to any persons not entitled thereto.
Carry On Business as Usual
Section 5.02. Iris will carry on its business in substantially the same
manner as it was conducted prior to the execution of this Agreement.
Section 5.03. Iris will use its best efforts to cause the satisfaction of
all conditions precedent contained in this Agreement.
ARTICLE 6
CONDITIONS PRECEDENT TO OBLIGATIONS OF FSPS TO CLOSE
Section 6.01. The obligations of FSPS to consummate the plan of
reorganization shall be subject to the following conditions precedent:
Truth of Representations and Warranties and Compliance with Covenants
(a) Representations and warranties of FSPS contained in this Agreement
shall be true as of the Closing Date with the same effect as though made on
the Closing Date. FSPS shall have performed all obligations and complied with
all covenants required by this Agreement to be performed or complied with by
them, or each of them, prior to the Closing Date. FSPS shall have delivered
to Iris a certificate signed by a duly authorized officer of FSPS, certifying
as to the truth of the representations and warranties, as to the performance
of the obligations and as to the compliance with the covenants.
Commitment as to Investment Purpose
(b) Iris shall have delivered to FSPS prior to the Closing Date, a written
commitment in form satisfactory to FSPS that the Shareholders are taking the
shares of stock of FSPS for purposes of investment and will not dispose of
the shares received by him or her hereunder in a manner which would result
in a violation of the Securities Act of 1933.
Acceptability of Papers and Proceedings
(c) To the extent requested by Iris, the form and substance of all papers and
proceedings shall be acceptable to counsel for Iris.
Approval of Board of Directors of FSPS
Pg 28
(d) The principal terms of this Agreement shall have been approved by the
Board of Directors of FSPS.
ARTICLE 7
CONDITIONS PRECEDENT TO OBLIGATIONS OF IRIS AND SHAREHOLDERS TO CLOSE
Section 7.01. The obligations of Iris to consummate the plan of
reorganization shall be subject to the following conditions precedent:
Truth of Representations and Warranties and Compliance with Covenants
(a) Representations and warranties of Iris contained in this Agreement
shall be true as of the Closing Date with the same effect as though made on
the Closing Date. Iris shall have performed all obligations and complied
with all covenants required by this Agreement to be performed or complied
with by Iris, prior to the Closing Date. Iris shall have delivered to FSPS a
certificate dated as of the Closing Date and signed by Iris, certifying as to
the truth of the representations and warranties, as to the performance of the
obligations and as to the compliance with the covenants.
Acceptability of Papers and Proceedings
(b) To the extent requested by FSPS, the form and substance of all papers and
proceedings shall be acceptable to counsel for FSPS.
Approval of Board of Directors of Iris
(c) The principal terms of this Agreement shall have been approved by the
Board of Directors of Iris.
Opinion From Counsel for FSPS
(f) Prior to the Closing Date, there shall be furnished to Iris an opinion
from counsel for FSPS, in form satisfactory to counsel for Iris, to the
effect that FSPS is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and that the shares of
FSPS delivered to Shareholders have been duly authorized, issued and
delivered and are validly issued and outstanding, fully paid and
nonassessable shares of Series B preferred stock of FSPS.
ARTICLE 8
CONSUMMATION OF TRANSACTION
Consideration of Iris
Section 8.01. The Board of Iris shall deliver to FSPS a resolution certifying
that all of the issued and outstanding shares of stock of Iris are
transferred to FSPS upon the issuance of the Series B preferred stock to the
shareholders of Iris as reflected in Schedule A.
Consideration of FSPS
Section 8.02. FSPS shall deliver to Shareholders within thirty days of the
Closing Date, in accordance with the data reflected on Schedule "A" attached
hereto, certificates representing 70,000 shares of Series B preferred stock
of FSPS.
Pg 29
Expenses
Section 8.03. FSPS shall pay its own expenses and Iris shall pay its own
expenses and costs incident to the preparation of this Agreement and to the
consummation of the plan of reorganization. If the reorganization is not
consummated, however, through no fault of FSPS, Iris shall bear all the
expenses and costs of both parties. If the reorganization is not
consummated, through no fault of Iris, FSPS shall bear all expenses and
costs of both parties.
Disengagement
Section 8.04 Within six (6) months from the Closing Date, should FSPS be
unsuccessful with raising a minimum of seven hundred fifty thousand dollars
($750,000) in capital and maintain a minimum average stock price of twenty
five (25) cents for a consecutive ten (10) day period, then, Iris may
exercise its option, at its sole discretion, to disengage from FSPS by
reversing and nullifying this stock exchange transaction and thereby deliver
the same shares of Iris to those persons owning Iris shares at the Closing
Date. Neither Iris, FSPS nor any of its respective shareholders shall have
any right, if any they have, which are hereby waived, to seek compensation
or damages of any kind or type resulting from the reversal/nullity, and the
effect therefrom shall be considered consideration by Iris and FSPS to the
other for the benefit of this effort.
ARTICLE 9
INTERPRETATION AND ENFORCEMENT
Notices
Section 9.01. Any notice or other communication required or permitted
under this Agreement shall be deemed to be properly given when deposited in
the United States mails for transmittal by certified or registered mail,
postage prepaid, or by overnight courier in accordance with the addresses
shown on Schedule "B" attached hereto. Facsimile transmission may also be
used, provided that a confirmed record of delivery is obtained. Facsimile
numbers are set forth for the respective parties on Schedule "B".
Assignment
Section 9.02. (a) Except as limited by the provisions of subsection (b),
this Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties, as well as the parties.
(b) Any assignment of this Agreement or of the rights of any of the parties
under it, without the prior written consent of the other parties, shall be
void.
Entire Agreement; Counterparts
Section 9.03. This Agreement and the exhibits to it contain the entire
agreement between the parties with respect to the transaction contemplated
hereby. It may be executed in any number of counterparts, each of which
shall be deemed an original, but any counterparts together constitute only
one and the same instrument.
Pg 30
Controlling Law
Section 9.04. The validity, interpretation and performance of this Agreement
shall be controlled by and be construed under the laws of the State of
Wyoming, the State in which this Agreement is being executed.
THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.
Executed on August 16th, 2002
FEDERAL SECURITY PROTECTION SERVICES, INC.
By: /s/ Blair J. Merriam
Blair J. Merriam, Director, Federal Security Protection Services, Inc.
By: /s/ Daniel Thornton
Daniel Thornton, Secretary and Director, Federal Security Protection
Services, Inc.
IRIS BROADBAND, INC.
By: /s/ Gary S. O'Neal
Gary S. O'Neal, Chairman and Chief Executive Officer, Iris Broadband, Inc.
Schedule A
Iris Broadband Shares to be Transferred to FSPS
And FSPS Preferred Series B Shares to be Issued
Column A Column B Column C
Number of FSPS
Number of Iris Shares Preferred Series B Shares
Name and Address of Shareholder To be Transferred To be Issued *
Gary S. O'Neal 2,600,000 26,000
400 Poydras Street, Suite 1510
New Orleans, LA 70130
Edward E. Reynolds 1,830,000 18,300
Law Offices of Edward E. Reynolds
400 Poydras Street, Suite 1510
New Orleans, LA 70130
Pg 31
Michael T. Landers 2,085,000 20,850
400 Poydras Street, Suite 1510
New Orleans, LA 70130
Richard J. Schluter 165,000 1,650
941 Locust Drive
Sycamore, IL 60178
Christopher L. Courtright 50,000 500
P.O. Box 186
Sedalia, CO 80135
Lynn S. Yeldell 50,000 500
142 Orpheum Drive
Metairie, LA 70005
Nicholas A. Robins 165,000 1,650
2302 Cranford Road
Durham, NC 27705
Thomas W. Wilson 55,000 550
15 West Carrillo Street
Santa Barbara, CA 93101
* Conversion ratio of one preferred share to one hundred common shares
Schedule B
Notices to the Parties to This Agreement
Notices to Federal Security Protection Services, Inc.
Mailing Address: 400 Poydras Street, Suite 1510
New Orleans, LA 70130
Telephone: 866.932.2628
Facsimile: 504.680.1510
Notices to Iris Broadband, Inc.
Mailing Address: 400 Poydras Street, Suite 1510
New Orleans, LA 70130
Telephone: 504.680.4328
866.504.4747
Facsimile: 504.680.1510
EXHIBIT B
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, effective this 1st day of September 2002,
is by and between Federal Security Protection Services, Inc., a Delaware
corporation (the "Company") and Gary S. O'Neal, an individual, (the
Pg 32
"Executive").
RECITALS
WHEREAS, the Executive has developed considerable familiarity with and
expertise in the operations and business of the Company.
WHEREAS, the Company, has determined to secure the services of
the Executive as President and Chief Executive Officer of the Company and
the Executive desires to serve in such capacity.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
AGREEMENT
1. Employment. The Company hereby agrees to employ Executive and
Executive hereby agrees to serve the Company as President and Chief Executive
Officer with such duties and responsibilities as are customarily assigned to
such position, and such other duties and responsibilities not inconsistent
therewith as may be assigned to the Executive from time to time by the Company.
2. Employment Term. Executive's employment hereunder shall be for a
term of seven (7) years or for so long as the Executive remains a
shareholder of the Company, whichever term is longer, unless earlier
terminated pursuant to Section 7 of this Employment Agreement (the "Employment
Term").
3. Responsibilities. During the Employment Term, Executive shall render
such services to the Company and its affiliates as are reasonably required by
the Board of Directors of the Company and as may be required by virtue of the
office(s) and positions held by Executive. The Executive's services shall be
performed at the New Orleans offices subject to such business travel as may be
required from time to time, or such other headquarters of the Company, as the
Executive may determine, subject to Company approval.
4. Compensation. (a) Base Salary. During the Employment Term, the
Executive shall receive a base salary (the "Annual Base Salary"), at the
annual rate of $175,000. The Annual Base Salary shall be payable in
accordance with the Company's payroll practices as in effect from time to
time (whether payable by the Company, or such other entity as the Company
shall designate, subject to applicable taxes and withholding. During the
Employment Term, the Annual Base Salary shall increase, at a minimum, in
accordance with the increase in the consumer price index as adjusted annually
and cumulatively, using September 2002 as the base month and in addition
thereto, the salary shall be further reviewed for possible merit increases at
least annually.
(b) Annual Bonus. For each calendar year or portion of a calendar
year during the Employment Term, the Executive shall be eligible to earn an
annual performance bonus (the "Annual Bonus") based on such performance goals
and targets and in such amounts as the Company may in its sole discretion
establish. Each Annual Bonus shall be paid in accordance with the terms of the
management incentive program then applicable to the Executive.
Pg 33 (c) Benefits. During the Employment Term, the Executive and/or
the Executive's family, as the case may be, shall be provided with the same
Executive benefits as are provided by the Company from time to time to other
similarly situated Executives. This shall include, but not be limited to,
family health and dental insurance; a term life insurance policy of one
million dollars ($1,000,000) with the beneficiary(ies) to be named by the
Executive; and matching 401(k) contributions.
(d) Expenses. During the Employment Term, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred
by the Executive in carrying out the Executive's duties under this Agreement,
provided that the Executive complies with the policies, practices and
procedures of the Company for the type and necessity of the expense and for
submission of expense reports, receipts, or similar documentation of such
expenses.
(e) Other Compensation. Certain amounts are due and owing
Executive arising from his employment with Iris Broadband, Inc. These amounts
will be paid to the Executive from Accounts Receivable of Iris Broadband, Inc.
(f) Options. The Executive is entitled to purchase one million
(1,000,000) shares of the $.001 par value Common Stock of the Company at an
exercise price pursuant to the terms of the Company's Stock Option Plan (the
"Option Plan"), as of the effective date of this Employment Agreement subject
to the execution by the Company and the Executive of the "Option to Purchase
Common Stock" attached hereto. The purchase rights represented by this
option are exercisable at a price per share of common stock of $.07.
(g) Termination. If the Executive's employment is terminated
pursuant to a termination for Cause or if the Executive resigns without Good
Reason, all of the then unvested Options shall immediately be canceled. In
any case, and notwithstanding any provision of this Agreement to the contrary,
(i) the terms and conditions of any Incentive Stock options shall be governed
in full by the relevant provision of the Internal Revenue Code and related
law and (ii) the terms of the other Options shall be governed by the relevant
provisions of the Option Plan (including, without limitation, in the event of
the Executive's termination of employment due to his death or Disability).
5. Vehicle Allowance. During the Employment Term, the Company shall
provide Executive a monthly vehicle allowance of at least $750.00 and such
other amount commensurate with Executive's position.
6. Best Efforts. During the Employment Term, and excluding any periods
of vacation and sick leave to which the Executive is entitled, Executive shall
devote his full business time and best efforts to the business and affairs of
the Company and its affiliates, to further the businesses and interests of
the Company and its affiliates and use his best efforts to carry out such
responsibilities faithfully and efficiently. During the Employment Term, the
Executive shall not be engaged in any other business activity without the
prior written consent of the Company except for time spent in managing his
personal, financial and legal affairs.
7. Termination of Employment. (a) Death or Disability. The Employment
Term, unless terminated earlier, shall automatically terminate on the last
day of the month in which the death of Executive occurs. If during the
Pg 34
Employment Term, Executive is prevented from performing duties or fulfilling
responsibilities by reason of any incapacity or disability for a continuous
period of six months, then the Company may, upon 90 days written notice to
Executive, terminate Executive's employment hereunder, but Executive shall
continue to be eligible to receive any benefits to which he may be entitled
under the terms of the Company's long term disability plan for its Executives.
In the event of such disability, the Company shall pay Executive full
compensation under Section 4 until such termination.
(b) By the Company. (i) The Company may terminate the executive's
employment during the Employment Term for Cause. For purposes of this
Agreement, the term "Cause" shall be defined as: (A) disloyalty or dishonesty
which results or is intended to result in personal enrichment to Executive at
the expense of the Company and/or personal enrichment to Executive of any
opportunity beneficial to the Company (including, without limitation, deceit,
fraud, embezzlement, dishonesty, or breach of business ethics); (B) acts of
moral turpitude or illegal or unprofessional conduct which may adversely
affect the reputation of the Company and/or its relationship with its
clients, investors, employees and/or shareholders; (C) fraudulent and/or
deceptive conduct in connection with the business or affairs of the Company;
(D) the failure of the Executive to perform his duties and obligations
pursuant to this Agreement; (E) conviction of a felony or crime involving
moral turpitude (or entering into a plea of nolo contendere with respect to
such crime); (F) gross misconduct; (G) any breach or intended breach by the
Executive of the confidentiality provisions of Section 9 hereof; (H) any
breach or intended breach by the executive of any Company policies or
procedures as in effect from time to time; (I) or failure by the Executive
to provide 90 days advance written notice of resignation (other than in the
case of Executive's resignation for Good reason); provided that in the case
of subsections (D), (G), (H) (but solely with respect to any intended breach)
and/or (I) of this Section 7(b) , the Company shall give written notice to
the Executive at least fifteen days prior to such termination of the
Company's intent to terminate, which notice shall set out in detail the ways
in which Executive has failed to perform, and Executive shall have failed to
cure such failure prior to the expiration of such fifteen day period.
(c) By the Executive for Good Reason. (i) For purposes of this
Agreement, "Good Reason" means:
A. any failure by the Company to comply with any provision of
Section 4 of this Agreement, other than failures that are not taken in
bad faith and are remedied by the Company within 20 business days after
receipt of written notice thereof from the Executive; or
B. any relocation of the Company's offices outside of New Orleans,
without Executive's consent.
(ii) A termination of employment by the Executive for Good Reason shall
be effectuated by giving the Company written notice ("Notice of Termination
for Good Reason") of the termination, setting forth the conduct of the Company
that constitutes Good Reason. A termination of employment by the Executive
for Good Reason shall be effective on the next business day following the date
when the Notice of Termination for Good Reason is given.
(d) Date of Termination. The "Date of Termination" means the date of
Pg 35
the Executive's death, Disability, or the date on which the termination of
the Executive's employment by the Company for Cause or by the Executive for
Good Reason is effective, as the case may be.
8. NonCompetition Covenant. In consideration of the Company agreeing
to enter into this Agreement the Executive acknowledges and agrees that
during the Employment Term of this Agreement and ending on the twelve (12)
month anniversary of the date upon which Executive's employment with the
Company is terminated for any reason (the "NonCompetition Term"), not, either
individually or in a partnership, or in conjunction with any person or
persons, firms, association, syndicate, corporation or other entity or
venture, as principal, partner, shareholder, director, officer, consultant,
independent contractor, advisor, Executive, agent or in any manner
whatsoever, either directly or indirectly,
(a) to provide or offer to provide, on behalf of a competitor of
the Company, products or services that compete with the business of
the Company to any customer or client, or prospective customer or client,
of the Company;
(b) to provide or offer to provide, on behalf of a competitor of the
Company or of any of its affiliates, products or services that compete with
the business of the Company or of any of its affiliates to any customer or
client, or prospective customer or client, of the Company or of any of its
affiliates;
(c) to engage in or become interested in or advise any business,
person, firm, association, syndicate, corporation or other entity or venture
engaged within the cities where the Company and/or any of its affiliates and
subsidiaries does business and/or has intentions or plans to do business and
within a 100 mile radius of the boundaries of each city, any business similar
to the business carried on by the Company or any of its affiliates.
9. Confidentiality Covenant. The Executive acknowledges that as a key
shareholder, and senior executive of the Company he is familiar with a range
of confidential proprietary information regarding the Company. The Executive
further acknowledges and agrees that his employment by the Company will,
throughout the Employment Term bring him into close contact with the
confidential affairs of the Company, including information about customers,
costs, profits, real estate, markets, sales, products, key personnel, pricing
policies, operational methods, technical processes and other business affairs
and methods and other information not readily available to the public, and
plans for future development. The Executive further acknowledges that the
services to be performed under this Agreement are of a special, unique,
unusual, extraordinary and intellectual character. The Executive further
acknowledges that the business of the Company and its subsidiaries is or will
become international in scope, that its products and services may or will be
marketed throughout the world, that the Company competes in nearly all of its
business activities with other entities that are or could be located in
nearly any part of the world and that the nature of the Executive's services,
position and expertise are such that he is capable of competing with the
Company from nearly any location in the world. In recognition of the
foregoing, the Executive covenants and agrees:
Pg 36
(a) The Executive, at all times during the Non-Competition Term and
thereafter, shall hold in a fiduciary capacity for the benefit of the Company
all secret, trade, proprietary or confidential information, knowledge or data
relating to the Company or any of its affiliated companies and shareholders,
and their respective businesses, that the Executive obtains during the
Executive's employment by the Company or any of its affiliated companies and
that is not public knowledge (other than as a result of the Executive's
violation of this Section 10(a) ("Confidential Information"). The Executive
shall not communicate, divulge or disseminate Confidential Information at
any time during or after the Executive's employment with the Company, except
with the prior written consent of the Company or as otherwise required by law
or legal process. The Executive shall deliver promptly to the Company on
termination of the Executive's employment by the Company or at any other time
the Company may so request, at the Company's expense, all memoranda, notes,
records, reports and other documents (and all copies thereof) relating to the
Company's business, which the Executive obtained while employed by, or
otherwise serving or acting on behalf of, the Company, and which the Executive
may then posses or have under the Executive's control. The Executive shall
execute and deliver any confidentiality policy or agreement used by the
Company for its senior executives and agrees that in the event of any
conflicts, the provisions of either of this Agreement or any other agreement
(as the case may be) which the Company, in its sole discretion, determines
more fully protects the Company shall govern.
(b) During the Non-Competition Term, the Executive shall not, on his
own behalf or on behalf of any other person, firm or entity directly or
indirectly solicit, induce, advise, recommend to, or participate in any
effort to induce, any employee, officer or Executive of the Company or any of
its affiliates to terminate his or her employment with the Company, or to
provide any assistance whatsoever to any person, firm or entity engaged in
any activity competitive to the business of the Company, to employ, or cause
any business or entity with which Executive is affiliated to employ, any
person who was a full-time executive employee of the Company at the
Executive's Date of Termination or one year prior to such date or to directly
or indirectly induce any business, entity or person with which the Company or
any of its subsidiaries or affiliates has a business relationship to
terminate or alter such business relationship.
10. Work Product Covenant. The Executive acknowledges that during the
Employment Term, the Executive may have conceived, developed, invented,
conceive of, discover, invent or create inventions, improvements, new
contributions, literary property, computer programs and software material,
ideas and discoveries, whether patentable or copyrightable or not (all of the
foregoing being collectively referred to herein as "Work Product"), and that
various business opportunities shall be presented to the Executive by reason
of the Executive's employment by the Company. The Executive acknowledges that
all of the foregoing shall be owned by and belong exclusively to the Company
and that the Executive shall have no personal interest therein, provided that
they are either related in any manner to the business (commercial or
experimental) of the Company, or are, in the case of Work Product, conceived
or made on the Company's time or with the use of the Company's facilities
or materials, or, in the case of business opportunities, are presented to the
Executive for the possible interest or participation of the Company. The
Executive shall (i) promptly disclose any such Work Product and business
opportunities to the Company; (ii) assign to the Company, upon request and
without additional compensation, the entire rights to such Work Product and
Pg 37
business opportunities; (iii) sign all papers necessary to carry out the
foregoing; and (iv) give testimony in support of the Executive's inventorship
or creation in any appropriate case. The Executive agrees that the Executive
will not assert any rights to any Work Product or business opportunity as
having been made or acquired by the Executive prior to the date of this
Agreement except for Work Product or business opportunities, if any, disclosed
to and acknowledge by the Company in writing prior to the date hereof.
(a) The Executive acknowledges and agrees that the provisions of
Section 8, 9 and 10 are necessary to protect the business operations and
affairs of the Company. The Executive understands that the restrictions set
forth in this Agreement may limit his ability to earn a livelihood in a
business similar that of the Company, but he nevertheless believes that he
has received and will receive sufficient consideration and other benefits
as an employee of the Company to justify clearly such restrictions which, in
any event (given his education, skills and ability), the Executive does not
believe would prevent him from earning a livelihood.
11. Remedies for Breach. In addition to such other rights and remedies
as the Company may have at equity or in law with respect to any breach of
this Agreement, the Executive acknowledges that the legal remedies for breach
of the covenants contained in Sections 8, 9 and 10 and breach of Section
7(b)(i)(a) are inadequate, and therefore agrees that, in addition to any or
all other remedies available to the Company and its affiliates in the event
of a breach or a threatened breach of any covenant contained in Sections 8, 9
and 10 or 7(b)(i)(a), the Company or any of its affiliates may:
(a) The Company shall have the right and remedy to have such provisions
specifically enforced by any court having jurisdiction (without any
obligation to post a bond or other security, which is hereby waived); it
being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and that money damages alone will not
provide an adequate remedy to the Company, and
(b) Seek to recover from Executive monetary damages to the Company or
its affiliates arising from such breach or threatened breach and all costs
and expenses (including attorneys' fees) incurred by the Company or any of
its affiliates concerning such breach and/or in enforcement of such covenants.
12. Successors. (a) This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not be assignable by
the Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns, and may be assigned by Company
in connection with any sale, transfer or other disposition of all or
substantially all of its business and assets.
13. Indemnification. The Executive shall be entitled throughout the
Employment Period in the capacity as an officer or director of the Company
or any of its subsidiaries, or as a member of any other governing body or
any partnership or joint venture in which the Company has an equity interest
(and after the term of employment, to the extent relating to any continued
Pg 38
service as such officer, director or member) to the benefit of the
indemnification provisions contained on the date hereof in the Certificate
of Incorporation and By-Laws of the Company (not including any amendments or
additions after the date of execution hereof that limit or narrow, but
including any that add to or broaden, the protection afforded to the
Executive by those provisions), to the extent not prohibited by applicable
law at the time of the assertion of any liability against the Executive.
14. Post-Termination Assistance. For so long as the Executive is
receiving any payments pursuant to this Agreement, the Executive shall
cooperate, at the reasonable request of the Company (i) in the transition
of any matter for which the Executive had authority or responsibility during
the Employment Period, or (ii) with respect to any other matter involving
the Company for which the Executive may be of assistance.
15. Miscellaneous. (a) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Louisiana, applicable
to agreements made and to be performed entirely within such state. The
captions of this Agreement are not part of the provisions hereof and shall
have no force or effect. This Agreement may not be amended or modified except
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications under this Agreement shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive, to the Executive's address
as maintained by the Company.
If to the Company:
FSPS, Inc.
400 Poydras Street, Suite 1510
New Orleans, Louisiana 70130
Attention: General Counsel
or to such other address as either party furnishes to the other in writing in
accordance with this Section 15. Notices and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be
held invalid or unenforceable in part, the remaining portion of such
provision, together with all other provisions of this Agreement, shall
remain valid and enforceable and continue in full force and effect to the
fullest extent consistent with law, and the invalid or unenforceable
provision shall be deemed to have been redrafted as if in the original, so
as to be valid and enforceable to the maximum extent permissible under
applicable law.
(d) Notwithstanding any other provision of this Agreement, the Company
may withhold from amounts payable under this Agreement all federal, state,
local and foreign taxes that are required to be withheld by applicable laws or
regulations.
Pg 39
(e) The failure of the Executive or the Company to insist upon strict
compliance with any provision of, or to assert any right under, this
Agreement shall not be deemed to be a waiver of such provision or right or
of any other provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this Agreement
represents the complete agreement between the parties and supersedes any
other agreement between them concerning the subject matter hereof. This
Agreement may not be modified except by express written agreement between
the parties.
(g) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, and which together shall constitute one
instrument.
(h) Whenever this Agreement provides for any payment to the Executive's
estate, such payment may be made instead to such beneficiary or beneficiaries
as the Executive may designate by written notice to the Company. The
Executive shall have the right to revoke any such designation and to
re-designate a beneficiary or beneficiaries by written notice to the Company
and to any applicable insurance company to such effect.
(i) The Executive represents and warrants to the Company that this
Agreement is legal, valid and binding upon the Executive and the execution of
this Agreement and the performance of the Executive's obligations hereunder
does not and will not constitute a breach of, or conflict with the terms or
provisions of, any agreement or understanding to which the Executive is a
party (including, without limitation, any other employment agreement). The
Company represents and warrants to the Executive that this Agreement is legal,
valid and binding upon the Company and the execution of this Agreement and
the performance of the Company's obligations hereunder does not and will not
constitute a breach of, or conflict with the terms or provisions of, any
agreement or understanding to which the Company is a party.
(j) Neither the Executive, his legal representative nor any beneficiary
designated by the Executive shall have any right, without the prior written
consent of the Company, to assign, transfer, pledge, hypothecate, anticipate
or commute to any person or entity any payment due in the future pursuant to
any provision of this Agreement, and any attempt to do so shall be void and
shall not be recognized by the Company.
(k) Each party (a) hereby irrevocably submits itself to and
acknowledges and recognizes the jurisdiction of the courts of the State of
Louisiana in the Parish of Orleans or in the United States District Court for
the Eastern District of Louisiana (which courts, together with all applicable
appellate courts, for purposes of this Agreement, are the only "courts of
competent jurisdiction"), for the purpose of any suit, action or other
proceeding arising out of, under, or in connection with, relating to, or
based upon this Agreement (b) agrees that any service of process in
connection with any such suit, action or other proceeding may be made upon
it by means of the United States mail or such other service as may be
authorized by any such court, (c) agrees that the courts of competent
jurisdiction shall be the sole and exclusive courts and forums for the
purpose of any such suit, action or proceeding (d) waives and agrees not
to assert, by way of motion, as a defense, or otherwise, in any such suit,
Pg 40
action or proceeding, any claim that it is not subject to the jurisdiction of
courts of competent jurisdiction, that such suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or the subject matter hereof
may not be enforced in or by such court and (e) irrevocably waives any right
to a trial before a jury. Each party agrees that its submission to
jurisdiction and its consent to service of process by mail is made for the
express benefit of the other party.
(l) Each of the parties has been represented by counsel (or has had the
opportunity to be so represented) in the negotiation and preparation of this
Agreement. The parties agree that this Agreement is to be construed as
jointly drafted. Accordingly, this Agreement will be construed according to
the fair meaning of its language, and the rule of construction that
ambiguities are to be resolved against the drafting party will not be
employed in the interpretation of this Agreement.
(m) Notwithstanding the expiration, non-renewal or termination of this
Agreement, the provisions of Sections (8), (9),10),(13) and (15) of the
Agreement shall continue in full force and effect and remain fully binding
upon the parties to the extent provided for therein.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization of its Board of Directors, the Company has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
Federal Security Protection Services, Inc.
By: /s/ Michael T. Landers
Michael T. Landers, Vice President, Finance
Federal Security Protection Services, Inc.
By: /s/ Daniel W. Thornton
Daniel W. Thornton, Secretary
/s/ Gary S. O'Neal
Gary S. O'Neal, Executive
TERMINATION BENEFITS AGREEMENT (GOLDEN PARACHUTE)
This Termination Benefits Agreement, dated as of September 1, 2002, evidences
an agreement by and between Federal Security Protection Services, Inc. a
Delaware corporation having its principal executive offices at 400 Poydras
Pg 41
Street, Suite 1510, New Orleans, Louisiana 70130 (the "Company"), and
Gary S. O'Neal (the "Executive").
RECITALS
The following facts are true:
A. The Executive has many years experience valuable to serving the
Company as a key executive officer and is expected to help guide the Company
through many problems.
B. The Executive is expected to continue to make a major contribution
to the profitability, growth, and financial strength of the Company.
C. The Company considers the continued services of the Executive to be
in the best interest of the Company and its shareholders and desires to
assure the continued services of the Executive on behalf of the Company as an
objective and impartial basis and without distraction or conflict of interest
in the event of an attempt to obtain control of the Company.
D. The Executive is willing to remain in the employ of the Company upon
the understanding that the Company will provide income security upon the
terms and subject to the conditions contained herein if the Executive's
employment is terminated voluntarily for good reason or involuntarily by the
Company without good reason.
AGREEMENT
In consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the Company and the Executive agree
as follows:
1. Undertaking. The Company agrees to pay to the Executive the
Termination Benefits specified in paragraph 2 hereof if (a) control of the
Company is acquired (as defined in paragraph 3(a) hereof) and (b) after the
acquisition of control occurs (i) the Company terminates the employment of
the Executive for any reason other than cause (as defined in paragraph 3(b)
hereof), death, the Executive's attainment of age sixty five (65) or total
and permanent disability, or (ii) the Executive voluntarily terminates
employment for good reason (as defined in paragraph 3(c) hereof).
2. Termination Benefits. If the Executive is entitled to termination
benefits pursuant to paragraph 1 hereof, the Company agrees to pay to the
Executive as termination compensation in a lumpsum payment within five (5)
calendar days of the termination of the Executive's employment the full sum
of Three Million Dollars ($3,000,000.00).
3. Definitions. (a) As used in this Agreement, the "acquisition of
control" means (i) attaining ownership of twenty five percent (25%) or more
of the shares of voting stock of the Company by any person or group
(other than a person or group including the Executive or with whom or which
the Executive is affiliated), or (ii) the occurrence of a "change of control"
required to be described under the proxy disclosure rules of the Securities
and Exchange Commission.
Pg 42
(b) As used in this Agreement, the term "cause" means an act or acts
of dishonesty by the Executive constituting a felony under applicable law
and resulting or intending to result directly or indirectly in gain to or
personal enrichment of the Executive at the Company's expense. Notwithstanding
the foregoing, the Executive shall not be deemed to have been terminated for
cause unless and until there shall have been delivered to the Executive a copy
of a resolution duly adopted by the affirmative vote of not less than a
majority of the Board called and held for the purpose (after reasonable notice
and opportunity for the Executive, together with counsel, to be heard before
the Board), finding that in the good faith opinion of the Board the Executive
was guilty of conduct set forth above in the first sentence of the subsection
and specifying the particulars thereof in detail.
(c) As used in this Agreement, the term "good reason" means, without
the Executive's written consent, (i) a change in status, position or
responsibilities which, in the Executive's reasonable judgment, does not
represent a promotion from existing status, position or responsibilities
as in effect immediately prior to the change in control; the assignment of
any duties or responsibilities which, in the Executive's reasonable judgment,
are inconsistent with such status, position or responsibilities; or any
removal from or failure to reappoint or reelect the Executive to any of such
positions, except in connection with the termination for total and permanent
disability, death or cause or by him other than for good reason; (ii) a
reduction by the Company in the Executive's base salary as in effect on the
date hereof or as the same may be increased from time to time during the term
of this Agreement or the Company's failure to increase (within twelve (12)
months of the Executive's last increase in base salary) the Executive's base
salary after a change in control in an amount which at least equals, on a
percentage basis, the average percentage increase in base salary for all
executive and senior officers of the Company effected in the preceding twelve
(12) months; (iii) the relocation of the Company's principal executive
offices to a location outside the New Orleans metropolitan area or the
relocation of the Executive by the Company to any place other than the
location at which the Executive performed duties prior to a change in
control, except for required travel on the Company's business to an extent
substantially consistent with business travel obligations at the time of a
change in control; (iv) the failure of the Company to continue in effect any
incentive, bonus or other compensation plan in which the Executive
participates, including but not limited to the Company's stock option and
restricted stock plans, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan), evidenced by the Executive's written
consent, has been made with respect to such plan in connection with the
change in control, or the failure by the Company to continue the Executive's
participation therein, or any action by the Company which would directly or
indirectly materially reduce participation therein; (v) the failure by the
Company to continue to provide the Executive with benefits substantially
similar to those enjoyed or entitled under any of the Company's pension,
profit sharing, life insurance, medical, dental, health and accident, or
disability plans at the time of a change in control, the taking of any action
by the Company which would directly or indirectly materially reduce any of
such benefits or deprive the Executive of any material fringe benefit enjoyed
or entitled to at the time of the change in control, or the failure by the
Company to provide the number of paid vacation and sick leave days to which
the Executive is entitled on the basis of years of service with the Company
in accordance with the Company's normal vacation policy in effect on the date
Pg 43
hereof; (vi) the failure of the Company to obtain a satisfactory agreement
from any successor or assign of the Company to assume and agree to perform
this Agreement; (vii) any purported termination of the Executive's employment
which is not effected pursuant to paragraph 4(c) hereof (and, if applicable,
paragraph 3(b) hereof); and for purposes of this Agreement, no such purported
termination shall be effective; or (viii) any request by the Company that the
Executive participate in an unlawful act or take any action constituting a
breach of the Executive's professional standard of conduct. Notwithstanding
anything in this paragraph 3(c) to the contrary, the Executive's right to
terminate the employment pursuant to this paragraph 3(c) shall not be
affected by incapacity due to physical or mental illness.
4. Additional Provisions.(a) Enforcement of Agreement. The Company is
aware that upon the occurrence of a change in control the Board of Directors
or a shareholder of the Company may then cause or attempt to cause the
Company to refuse to comply with its obligations under this Agreement, or
may cause or attempt to cause the Company to institute, or may institute
litigation seeking to have this Agreement declared unenforceable, or may take
or attempt to take other action to deny the Executive the benefits intended
under this Agreement. In these circumstances, the purpose of this Agreement
could be frustrated. It is the intent of the Company that the Executive not
be required to incur the expenses associated with the enforcement of any
rights under this Agreement by litigation or other legal action, nor be
bound to negotiate any settlement of any rights hereunder, because the cost
and expense of such legal action or settlement would substantially detract
from the benefits intended to be extended to the Executive hereunder.
Accordingly, if following a change in control it should appear to the
Executive that the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any other person
takes any action to declare this Agreement void or enforceable, or institutes
any litigation or other legal action designed to deny, diminish or to
recovery from the Executive the benefits entitled to be provided to the
Executive hereunder, and that Executive has complied with all obligations
under this Agreement, the Company irrevocably authorizes the Executive from
time to time to retain counsel of the Executive's choice, at the expense of
the Company as provided in this paragraph 4(a), to represent the Executive
in connection with the initiation or defense of any litigation or other legal
action, whether such action is by or against the Company or any Director,
officer, shareholder, or other person affiliated with the Company, in any
jurisdiction. Notwithstanding any existing or prior attorney client
relationship between the Company and such counsel, the Company irrevocably
consents to the Executive entering into an attorney client relationship with
such counsel, and in that connection the Company and the Executive agree that
a confidential relationship shall exist between the Executive and such
counsel. The reasonable fees and expenses of counsel selected from time to
time by the Executive as hereinabove provided shall be paid or reimbursed to
the Executive by the Company on a regular, periodic basis upon presentation
by the Executive of a statement or statements prepared by such counsel in
accordance with its customary practices, up to a maximum aggregate amount of
$500,000. Any legal expenses incurred by the Company by reason of any dispute
between the parties as to enforceability of or the terms contained in this
Agreement, notwithstanding the outcome of any such dispute, shall be the sole
responsibility of the Company, and the Company shall not take any action to
seek reimbursement from the Executive for such expenses.
Pg 44
(b) Severance Pay; No Duty to Mitigate. The amounts payable to the
Executive under this Agreement shall not be treated as damages but as
severance compensation to which the Executive is entitled by reason of
termination of employment in the circumstances contemplated by this Agreement.
The Company shall not be entitled to set off against the amounts payable to
the Executive of any amounts earned by the Executive in other employment after
termination of employment with the Company, or any amounts which might have
been earned by the Executive in other employment had other such employment
been sought.
(c) Notice of Termination. Any purported termination by the Company or
by the Executive shall be communicated by written Notice of Termination to
the other party hereto in accordance with paragraph 4(k) hereof. For purposes
of this Agreement, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of his employment under the provision so
indicated. For purposes of this Agreement, no such purported termination
shall be effective without such Notice of Termination.
(d) Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective executors,
administrators, heirs, personal representatives, successors, and assigns,
but neither this Agreement nor any right hereunder may be assigned or
transferred by either party hereto, any beneficiary, or any other person,
nor be subject to alienation, anticipation, sale, pledge, encumbrance,
execution, levy, or other legal process of any kind against the Executive,
his beneficiary or any other person. Notwithstanding the foregoing, the
Company will assign this Agreement to any corporation or other business
entity succeeding to substantially all of the business and assets of the
Company by merger, consolidation, sale of assets, or otherwise and shall
obtain the assumption of this Agreement by such successor.
(e) Entire Agreement. This Agreement contains the entire Agreement
between the parties with respect to the subject matter hereof. All
representations, promises, and prior or contemporaneous understandings
among the parties with respect to the subject matter hereof are merged into
and expressed in this Agreement, and any and all prior agreements between
the parties with respect to the subject matter hereof are hereby canceled.
(f) Amendment. This Agreement shall not be amended, modified, or
supplemented without the written agreement of the parties at the time of
such amendment, modification, or supplement.
(g) Governing Law. This Agreement shall be governed by and subject
to the laws of Louisiana.
(h) Severability. The invalidity or unenforceability of any particular
provision of this particular Agreement shall not affect the other provisions,
and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision has not been contained herein.
(i) Captions. The captions in this Agreement are for convenience and
identification purposes only, are not an integral part of this Agreement,
and are not to be considered in the interpretation of any part hereof.
Pg 45
(j) Notices. Except as specifically set forth in this Agreement, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered in person or sent by registered
or certified mail, postage prepaid, addressed as set forth above, or to such
other address as shall be furnished in writing by any party to the others.
(k) Waivers. Except as otherwise specifically provided in this
Agreement, no waiver by either party hereto of any breach by the other party
hereto of any condition or provision or condition of this Agreement to be
performed by such other party shall be deemed to be a valid waiver unless
such waiver is in writing or, even if in writing, shall be deemed to be a
waiver of a subsequent breach of such condition or provision or a waiver of
a similar or dissimilar provision or condition at the same or at any prior
or subsequent time.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Federal Security Protection Services, Inc.
By: /s/ Michael T, Landers
Michael T. Landers, Vice President, Finance
Federal Security Protection Services, Inc.
By: /s/ Daniel W. Thornton
Daniel W. Thornton, Secretary
/s/ Gary S. O'Neal
Gary S. O'Neal, Executive
EXHIBIT C
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, effective this 1st day of September 2002, is
by and between Federal Security Protection Services, Inc., a Delaware
corporation (the "Company") and Michael T. Landers, an individual (the
"Executive").
RECITALS
WHEREAS, the Executive has developed considerable familiarity with and
expertise in the operations and business of the Company.
WHEREAS, the Company, has determined to secure the services of the
Executive as Vice President, Finance and Treasurer of the Company and the
Executive desires to serve in such capacity.
Pg 46
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
AGREEMENT
1. Employment. The Company hereby agrees to employ Executive and
Executive hereby agrees to serve the Company as Vice President, Finance and
Treasurer with such duties and responsibilities as are customarily assigned
to such position, and such other duties and responsibilities not inconsistent
therewith as may be assigned to the Executive from time to time by the
Company.
2. Employment Term. Executive's employment hereunder shall be for a
term of seven (7) years or for so long as the Executive remains a
shareholder of the Company, whichever term is longer, unless earlier
terminated pursuant to Section 7 of this Employment Agreement (the
"Employment Term").
3. Responsibilities. During the Employment Term, Executive shall render
such services to the Company and its affiliates as are reasonably required
by the Board of Directors of the Company and as may be required by virtue of
the office(s) and positions held by Executive. The Executive's services shall
be performed at the New Orleans offices subject to such business travel as may
be required from time to time, or such other headquarters of the Company, as
the Executive may determine, subject to Company approval.
4. Compensation. (a) Base Salary. During the Employment Term, the
Executive shall receive a base salary (the "Annual Base Salary"), at the
annual rate of $160,000. The Annual Base Salary shall be payable in accordance
with the Company's payroll practices as in effect from time to time (whether
payable by the Company, or such other entity as the Company shall designate,
subject to applicable taxes and withholding. During the Employment Term,
the Annual Base Salary shall increase, at a minimum, in accordance with the
increase in the consumer price index as adjusted annually and cumulatively,
using September 2002 as the base month and in addition thereto, the salary
shall be further reviewed for possible merit increases at least annually.
(b) Annual Bonus. For each calendar year or portion of a calendar
year during the Employment Term, the Executive shall be eligible to earn an
annual performance bonus (the "Annual Bonus") based on such performance goals
and targets and in such amounts as the Company may in its sole discretion
establish. Each Annual Bonus shall be paid in accordance with the terms of
the management incentive program then applicable to the Executive.
(c) Benefits. During the Employment Term, the Executive and/or
the Executive's family, as the case may be, shall be provided with the same
Executive benefits as are provided by the Company from time to time to other
similarly situated Executives. This shall include, but not be limited to,
family health and dental insurance; a term life insurance policy of one
million dollars ($1,000,000) with the beneficiary(ies) to be named by the
Executive; and matching 401(k) contributions.
(d) Expenses. During the Employment Term, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred
by the Executive in carrying out the Executive's duties under this Agreement,
Pg 47
provided that the Executive complies with the policies, practices and
procedures of the Company for the type and necessity of the expense and for
submission of expense reports, receipts, or similar documentation of such
expenses.
(e) Other Compensation. Certain amounts are due and owing
Executive arising from his employment with Iris Broadband, Inc. These
amounts will be paid to the Executive from Accounts Receivable of Iris
Broadband, Inc.
(f) Options. The Executive is entitled to purchase one million
(1,000,000) shares of the $.001 par value Common Stock of the Company at
an exercise price pursuant to the terms of the Company's Stock Option Plan
(the "Option Plan"), as of the effective date of this Employment Agreement
subject to the execution by the Company and the Executive of the "Option to
Purchase Common Stock" attached hereto. The purchase rights represented
by this option are exercisable at a price per share of common stock of $.07.
(g) Termination. If the Executive's employment is terminated
pursuant to a termination for Cause or if the Executive resigns without Good
Reason, all of the then unvested Options shall immediately be canceled. In
any case, and notwithstanding any provision of this Agreement to the
contrary, (i) the terms and conditions of any Incentive Stock options shall
be governed in full by the relevant provision of the Internal Revenue Code
and related law and (ii) the terms of the other Options shall be governed
by the relevant provisions of the Option Plan (including, without limitation,
in the event of the Executive's termination of employment due to his death
or Disability).
5. Vehicle Allowance. During the Employment Term, the Company shall
provide Executive a monthly vehicle allowance of at least $750.00 and such
other amount commensurate with Executive's position.
6. Best Efforts. During the Employment Term, and excluding any periods
of vacation and sick leave to which the Executive is entitled, Executive
shall devote his full business time and best efforts to the business and
affairs of the Company and its affiliates, to further the businesses and
interests of the Company and its affiliates and use his best efforts to carry
out such responsibilities faithfully and efficiently. During the Employment
Term, the Executive shall not be engaged in any other business activity
without the prior written consent of the Company except for time spent in
managing his personal, financial and legal affairs.
7. Termination of Employment. (a) Death or Disability. The Employment
Term, unless terminated earlier, shall automatically terminate on the last
day of the month in which the death of Executive occurs. If during the
Employment Term, Executive is prevented from performing duties or fulfilling
responsibilities by reason of any incapacity or disability for a continuous
period of six months, then the Company may, upon 90 days written notice to
Executive, terminate Executive's employment hereunder, but Executive shall
continue to be eligible to receive any benefits to which he may be entitled
under the terms of the Company's long term disability plan for its Executives.
In the event of such disability, the Company shall pay Executive full
compensation under Section 4 until such termination.
Pg 48
(b) By the Company. (i) The Company may terminate the executive's
employment during the Employment Term for Cause. For purposes of this
Agreement, the term "Cause" shall be defined as: (A) disloyalty or dishonesty
which results or is intended to result in personal enrichment to Executive
at the expense of the Company and/or personal enrichment to Executive of
any opportunity beneficial to the Company (including, without limitation,
deceit, fraud, embezzlement, dishonesty, or breach of business ethics);
(B) acts of moral turpitude or illegal or unprofessional conduct which
may adversely affect the reputation of the Company and/or its relationship
with its clients, investors, employees and/or shareholders; (C) fraudulent
and/or deceptive conduct in connection with the business or affairs of the
Company; (D) the failure of the Executive to perform his duties and
obligations pursuant to this Agreement; (E) conviction of a felony or crime
involving moral turpitude (or entering into a plea of nolo contendere with
respect to such crime); (F) gross misconduct; (G) any breach or intended
breach by the Executive of the confidentiality provisions of Section 9
hereof; (H) any breach or intended breach by the executive of any Company
policies or procedures as in effect from time to time; (I) or failure by
the Executive to provide 90 days advance written notice of resignation (other
than in the case of Executive's resignation for Good reason); provided that
in the case of subsections (D), (G), (H) (but solely with respect to any
intended breach) and/or (I) of this Section 7(b) , the Company shall give
written notice to the Executive at least fifteen days prior to such
termination of the Company's intent to terminate, which notice shall set
out in detail the ways in which Executive has failed to perform, and
Executive shall have failed to cure such failure prior to the expiration of
such fifteen day period.
(c) By the Executive for Good Reason. (i) For purposes of this
Agreement, "Good Reason" means:
A. any failure by the Company to comply with any provision of Section 4
of this Agreement, other than failures that are not taken in bad faith and are
remedied by the Company within 20 business days after receipt of written
notice thereof from the Executive; or
B. any relocation of the Company's offices outside of New Orleans,
without Executive's consent.
(ii) A termination of employment by the Executive for Good Reason shall
be effectuated by giving the Company written notice ("Notice of Termination
for Good Reason") of the termination, setting forth the conduct of the
Company that constitutes Good Reason. A termination of employment by the
Executive for Good Reason shall be effective on the next business day
following the date when the Notice of Termination for Good Reason is given.
(d) Date of Termination. The "Date of Termination" means the date of
the Executive's death, Disability, or the date on which the termination of
the Executive's employment by the Company for Cause or by the Executive for
Good Reason is effective, as the case may be.
8. NonCompetition Covenant. In consideration of the Company agreeing
to enter into this Agreement the Executive acknowledges and agrees that
during the Employment Term of this Agreement and ending on the twelve (12)
month anniversary of the date upon which Executive's employment with the
Pg 49
Company is terminated for any reason (the "NonCompetition Term"), not, either
individually or in a partnership, or in conjunction with any person or
persons, firms, association, syndicate, corporation or other entity or
venture, as principal, partner, shareholder, director, officer, consultant,
independent contractor, advisor, Executive, agent or in any manner whatsoever,
either directly or indirectly,
(a) to provide or offer to provide, on behalf of a competitor of the
Company, products or services that compete with the business of the Company
to any customer or client, or prospective customer or client, of the Company;
(b) to provide or offer to provide, on behalf of a competitor of the
Company or of any of its affiliates, products or services that compete with
the business of the Company or of any of its affiliates to any customer or
client, or prospective customer or client, of the Company or of any of its
affiliates;
(c) to engage in or become interested in or advise any business,
person, firm, association, syndicate, corporation or other entity or venture
engaged within the cities where the Company and/or any of its affiliates and
subsidiaries does business and/or has intentions or plans to do business and
within a 100 mile radius of the boundaries of each city, any business similar
to the business carried on by the Company or any of its affiliates.
9. Confidentiality Covenant. The Executive acknowledges that as a key
shareholder, and senior executive of the Company he is familiar with a range
of confidential proprietary information regarding the Company. The Executive
further acknowledges and agrees that his employment by the Company will,
throughout the Employment Term bring him into close contact with the
confidential affairs of the Company, including information about customers,
costs, profits, real estate, markets, sales, products, key personnel, pricing
policies, operational methods, technical processes and other business affairs
and methods and other information not readily available to the public, and
plans for future development. The Executive further acknowledges that the
services to be performed under this Agreement are of a special, unique,
unusual, extraordinary and intellectual character. The Executive further
acknowledges that the business of the Company and its subsidiaries is or will
become international in scope, that its products and services may or will be
marketed throughout the world, that the Company competes in nearly all of its
business activities with other entities that are or could be located in
nearly any part of the world and that the nature of the Executive's services,
position and expertise are such that he is capable of competing with the
Company from nearly any location in the world. In recognition of the
foregoing, the Executive covenants and agrees:
(a) The Executive, at all times during the Non-Competition Term and
thereafter, shall hold in a fiduciary capacity for the benefit of the Company
all secret, trade, proprietary or confidential information, knowledge or data
relating to the Company or any of its affiliated companies and shareholders,
and their respective businesses, that the Executive obtains during the
Executive's employment by the Company or any of its affiliated companies and
that is not public knowledge (other than as a result of the Executive's
violation of this Section 10(a) ("Confidential Information"). The Executive
shall not communicate, divulge or disseminate Confidential Information at any
Pg 50
time during or after the Executive's employment with the Company, except with
the prior written consent of the Company or as otherwise required by law or
legal process. The Executive shall deliver promptly to the Company on
termination of the Executive's employment by the Company or at any other time
the Company may so request, at the Company's expense, all memoranda, notes,
records, reports and other documents (and all copies thereof) relating to the
Company's business, which the Executive obtained while employed by, or
otherwise serving or acting on behalf of, the Company, and which the Executive
may then posses or have under the Executive's control. The Executive shall
execute and deliver any confidentiality policy or agreement used by the
Company for its senior executives and agrees that in the event of any
conflicts, the provisions of either of this Agreement or any other agreement
(as the case may be) which the Company, in its sole discretion, determines
more fully protects the Company shall govern.
(b) During the Non-Competition Term, the Executive shall not, on his
own behalf or on behalf of any other person, firm or entity directly or
indirectly solicit, induce, advise, recommend to, or participate in any
effort to induce, any employee, officer or Executive of the Company or any
of its affiliates to terminate his or her employment with the Company, or to
provide any assistance whatsoever to any person, firm or entity engaged in
any activity competitive to the business of the Company, to employ, or cause
any business or entity with which Executive is affiliated to employ, any
person who was a full-time executive employee of the Company at the
Executive's Date of Termination or one year prior to such date or to directly
or indirectly induce any business, entity or person with which the Company or
any of its subsidiaries or affiliates has a business relationship to
terminate or alter such business relationship.
10. Work Product Covenant. The Executive acknowledges that during the
Employment Term, the Executive may have conceived, developed, invented,
conceive of, discover, invent or create inventions, improvements, new
contributions, literary property, computer programs and software material,
ideas and discoveries, whether patentable or copyrightable or not (all of the
foregoing being collectively referred to herein as "Work Product"), and that
various business opportunities shall be presented to the Executive by reason
of the Executive's employment by the Company. The Executive acknowledges that
all of the foregoing shall be owned by and belong exclusively to the Company
and that the Executive shall have no personal interest therein, provided that
they are either related in any manner to the business (commercial or
experimental) of the Company, or are, in the case of Work Product, conceived
or made on the Company's time or with the use of the Company's facilities
or materials, or, in the case of business opportunities, are presented to
the Executive for the possible interest or participation of the Company. The
Executive shall (i) promptly disclose any such Work Product and business
opportunities to the Company; (ii) assign to the Company, upon request and
without additional compensation, the entire rights to such Work Product and
business opportunities; (iii) sign all papers necessary to carry out the
foregoing; and (iv) give testimony in support of the Executive's inventorship
or creation in any appropriate case. The Executive agrees that the Executive
will not assert any rights to any Work Product or business opportunity as
having been made or acquired by the Executive prior to the date of this
Agreement except for Work Product or business opportunities, if any, disclosed
to and acknowledge by the Company in writing prior to the date hereof.
(a) The Executive acknowledges and agrees that the provisions of
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Section 8, 9 and 10 are necessary to protect the business operations and
affairs of the Company. The Executive understands that the restrictions set
forth in this Agreement may limit his ability to earn a livelihood in a
business similar that of the Company, but he nevertheless believes that he
has received and will receive sufficient consideration and other benefits as
an employee of the Company to justify clearly such restrictions which, in any
event (given his education, skills and ability), the Executive does not
believe would prevent him from earning a livelihood.
11. Remedies for Breach. In addition to such other rights and remedies
as the Company may have at equity or in law with respect to any breach of
this Agreement, the Executive acknowledges that the legal remedies for breach
of the covenants contained in Sections 8, 9 and 10 and breach of Section
7(b)(i)(a) are inadequate, and therefore agrees that, in addition to any or
all other remedies available to the Company and its affiliates in the event
of a breach or a threatened breach of any covenant contained in Sections 8, 9
and 10 or 7(b)(i)(a), the Company or any of its affiliates may:
(a) The Company shall have the right and remedy to have such provisions
specifically enforced by any court having jurisdiction (without any
obligation to post a bond or other security, which is hereby waived); it
being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and that money damages alone will not
provide an adequate remedy to the Company, and
(b) Seek to recover from Executive monetary damages to the Company or
its affiliates arising from such breach or threatened breach and all costs
and expenses (including attorneys' fees) incurred by the Company or any of
its affiliates concerning such breach and/or in enforcement of such
covenants.
12. Successors. (a) This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not be assignable by
the Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns, and may be assigned by Company
in connection with any sale, transfer or other disposition of all or
substantially all of its business and assets.
13. Indemnification. The Executive shall be entitled throughout the
Employment Period in the capacity as an officer or director of the Company
or any of its subsidiaries, or as a member of any other governing body or
any partnership or joint venture in which the Company has an equity interest
(and after the term of employment, to the extent relating to any continued
service as such officer, director or member) to the benefit of the
indemnification provisions contained on the date hereof in the Certificate
of Incorporation and By-Laws of the Company (not including any amendments
or additions after the date of execution hereof that limit or narrow, but
including any that add to or broaden, the protection afforded to the
Executive by those provisions), to the extent not prohibited by applicable
law at the time of the assertion of any liability against the Executive.
14. Post-Termination Assistance. For so long as the Executive is
receiving any payments pursuant to this Agreement, the Executive shall
cooperate, at the reasonable request of the Company (i) in the transition
of any matter for which the Executive had authority or responsibility
during the Employment Period, or (ii) with respect to any other matter
involving the Company for which the Executive may be of assistance.
15. Miscellaneous. (a) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Louisiana, applicable
to agreements made and to be performed entirely within such state. The
captions of this Agreement are not part of the provisions hereof and shall
have no force or effect. This Agreement may not be amended or modified except
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications under this Agreement shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive, to the Executive's address
as maintained by the Company.
If to the Company:
FSPS, Inc.
400 Poydras Street, Suite 1510
New Orleans, Louisiana 70130
Attention: General Counsel
or to such other address as either party furnishes to the other in writing in
accordance with this Section 15. Notices and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be
held invalid or unenforceable in part, the remaining portion of such
provision, together with all other provisions of this Agreement, shall
remain valid and enforceable and continue in full force and effect to the
fullest extent consistent with law, and the invalid or unenforceable provision
shall be deemed to have been redrafted as if in the original, so as to be
valid and enforceable to the maximum extent permissible under applicable law.
(d) Notwithstanding any other provision of this Agreement, the Company
may withhold from amounts payable under this Agreement all federal, state,
local and foreign taxes that are required to be withheld by applicable laws
or regulations.
(e) The failure of the Executive or the Company to insist upon strict
compliance with any provision of, or to assert any right under, this Agreement
shall not be deemed to be a waiver of such provision or right or of any other
provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this Agreement
represents the complete agreement between the parties and supersedes any
other agreement between them concerning the subject matter hereof. This
Agreement may not be modified except by express written agreement between
the parties.
(g) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, and which together shall constitute
one instrument.
(h) Whenever this Agreement provides for any payment to the Executive's
estate, such payment may be made instead to such beneficiary or beneficiaries
as the Executive may designate by written notice to the Company. The
Executive shall have the right to revoke any such designation and to
re-designate a beneficiary or beneficiaries by written notice to the Company
and to any applicable insurance company to such effect.
(i) The Executive represents and warrants to the Company that this
Agreement is legal, valid and binding upon the Executive and the execution of
this Agreement and the performance of the Executive's obligations hereunder
does not and will not constitute a breach of, or conflict with the terms or
provisions of, any agreement or understanding to which the Executive is a
party (including, without limitation, any other employment agreement). The
Company represents and warrants to the Executive that this Agreement is legal,
valid and binding upon the Company and the execution of this Agreement and
the performance of the Company's obligations hereunder does not and will not
constitute a breach of, or conflict with the terms or provisions of, any
agreement or understanding to which the Company is a party.
(j) Neither the Executive, his legal representative nor any beneficiary
designated by the Executive shall have any right, without the prior written
consent of the Company, to assign, transfer, pledge, hypothecate, anticipate
or commute to any person or entity any payment due in the future pursuant to
any provision of this Agreement, and any attempt to do so shall be void and
shall not be recognized by the Company.
(k) Each party (a) hereby irrevocably submits itself to and acknowledges
and recognizes the jurisdiction of the courts of the State of Louisiana in the
Parish of Orleans or in the United States District Court for the Eastern
District of Louisiana (which courts, together with all applicable appellate
courts, for purposes of this Agreement, are the only "courts of competent
jurisdiction"), for the purpose of any suit, action or other proceeding
arising out of, under, or in connection with, relating to, or based upon this
Agreement (b) agrees that any service of process in connection with any such
suit, action or other proceeding may be made upon it by means of the United
States mail or such other service as may be authorized by any such court, (c)
agrees that the courts of competent jurisdiction shall be the sole and
exclusive courts and forums for the purpose of any such suit, action or
proceeding (d) waives and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such suit, action or proceeding, any claim that
it is not subject to the jurisdiction of courts of competent jurisdiction,
that such suit, action or proceeding is brought in an inconvenient forum,
that the venue of the suit, action or proceeding is improper or that this
Agreement or the subject matter hereof may not be enforced in or by such
court and (e) irrevocably waives any right to a trial before a jury. Each
party agrees that its submission to jurisdiction and its consent to service
of process by mail is made for the express benefit of the other party.
(l) Each of the parties has been represented by counsel (or has had the
opportunity to be so represented) in the negotiation and preparation of this
Agreement. The parties agree that this Agreement is to be construed as
jointly drafted. Accordingly, this Agreement will be construed according to
the fair meaning of its language, and the rule of construction that
ambiguities are to be resolved against the drafting party will not be
employed in the interpretation of this Agreement.
(m) Notwithstanding the expiration, non-renewal or termination of this
Agreement, the provisions of Sections (8), (9),10),(13) and (15) of the
Agreement shall continue in full force and effect and remain fully binding
upon the parties to the extent provided for therein.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization of its Board of Directors, the Company has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
Federal Security Protection Services, Inc.
By: /s/ Gary S. O'Neal
Gary S. O'Neal, President and Chief Executive Officer
Federal Security Protection Services, Inc.
By: /s/ Daniel W. Thornton
Daniel W. Thornton, Secretary
/s/ Michael T. Landers
Michael T. Landers, Executive
TERMINATION BENEFITS AGREEMENT (GOLDEN PARACHUTE)
This Termination Benefits Agreement, dated as of September 1, 2002, evidences
an agreement by and between Federal Security Protection Services, Inc. a
Delaware corporation having its principal executive offices at
400 Poydras Street, Suite 1510, New Orleans, Louisiana 70130 (the "Company"),
and Michael T. Landers (the "Executive").
RECITALS
The following facts are true:
A. The Executive has many years experience valuable to serving the
Company as a key executive officer and is expected to help guide the Company
through many problems.
B. The Executive is expected to continue to make a major contribution
to the profitability, growth, and financial strength of the Company.
C. The Company considers the continued services of the Executive to be
in the best interest of the Company and its shareholders and desires to assure
the continued services of the Executive on behalf of the Company as an
objective and impartial basis and without distraction or conflict of interest
in the event of an attempt to obtain control of the Company.
D. The Executive is willing to remain in the employ of the Company upon
the understanding that the Company will provide income security upon the terms
and subject to the conditions contained herein if the Executive's employment
is terminated voluntarily for good reason or involuntarily by the Company
without good reason.
AGREEMENT
In consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the Company and the Executive agree
as follows:
1. Undertaking. The Company agrees to pay to the Executive the
Termination Benefits specified in paragraph 2 hereof if (a) control of
the Company is acquired (as defined in paragraph 3(a) hereof) and (b) after
the acquisition of control occurs (i) the Company terminates the employment
of the Executive for any reason other than cause (as defined in paragraph
3(b) hereof), death, the Executive's attainment of age sixty five (65) or
total and permanent disability, or (ii) the Executive voluntarily terminates
employment for good reason (as defined in paragraph 3(c) hereof).
2. Termination Benefits. If the Executive is entitled to termination
benefits pursuant to paragraph 1 hereof, the Company agrees to pay to the
Executive as termination compensation in a lumpsum payment within five (5)
calendar days of the termination of the Executive's employment the full sum
of Two Million Seven Hundred Fifty Thousand Dollars ($2,750,000.00).
3. Definitions. (a) As used in this Agreement, the "acquisition
of control" means (i) attaining ownership of twenty five percent (25%) or
more of the shares of voting stock of the Company by any person or group
(other than a person or group including the Executive or with whom or which
the Executive is affiliated), or (ii) the occurrence of a "change of control"
required to be described under the proxy disclosure rules of the Securities
and Exchange Commission.
(b) As used in this Agreement, the term "cause" means an act or acts
of dishonesty by the Executive constituting a felony under applicable law and
resulting or intending to result directly or indirectly in gain to or personal
enrichment of the Executive at the Company's expense. Notwithstanding the
foregoing, the Executive shall not be deemed to have been terminated for
cause unless and until there shall have been delivered to the Executive a
copy of a resolution duly adopted by the affirmative vote of not less than
a majority of the Board called and held for the purpose (after reasonable
notice and opportunity for the Executive, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board the
Executive was guilty of conduct set forth above in the first sentence of
the subsection and specifying the particulars thereof in detail.
(c) As used in this Agreement, the term "good reason" means, without
the Executive's written consent, (i) a change in status, position or
responsibilities which, in the Executive's reasonable judgment, does
not represent a promotion from existing status, position or responsibilities
as in effect immediately prior to the change in control; the assignment of
any duties or responsibilities which, in the Executive's reasonable judgment,
are inconsistent with such status, position or responsibilities; or any
removal from or failure to reappoint or reelect the Executive to any of such
positions, except in connection with the termination for total and permanent
disability, death or cause or by him other than for good reason; (ii) a
reduction by the Company in the Executive's base salary as in effect on the
date hereof or as the same may be increased from time to time during the term
of this Agreement or the Company's failure to increase (within twelve (12)
months of the Executive's last increase in base salary) the Executive's base
salary after a change in control in an amount which at least equals, on a
percentage basis, the average percentage increase in base salary for all
executive and senior officers of the Company effected in the preceding twelve
(12) months; (iii) the relocation of the Company's principal executive offices
to a location outside the New Orleans metropolitan area or the relocation of
the Executive by the Company to any place other than the location at which
the Executive performed duties prior to a change in control, except for
required travel on the Company's business to an extent substantially
consistent with business travel obligations at the time of a change in
control; (iv) the failure of the Company to continue in effect any incentive,
bonus or other compensation plan in which the Executive participates,
including but not limited to the Company's stock option and restricted stock
plans, unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan), evidenced by the Executive's written consent, has been
made with respect to such plan in connection with the change in control, or
the failure by the Company to continue the Executive's participation therein,
or any action by the Company which would directly or indirectly materially
reduce participation therein; (v) the failure by the Company to continue to
provide the Executive with benefits substantially similar to those enjoyed or
entitled under any of the Company's pension, profit sharing, life insurance,
medical, dental, health and accident, or disability plans at the time of a
change in control, the taking of any action by the Company which would
directly or indirectly materially reduce any of such benefits or deprive the
Executive of any material fringe benefit enjoyed or entitled to at the time
of the change in control, or the failure by the Company to provide the number
of paid vacation and sick leave days to which the Executive is entitled on
the basis of years of service with the Company in accordance with the
Company's normal vacation policy in effect on the date hereof; (vi) the
failure of the Company to obtain a satisfactory agreement from any successor
or assign of the Company to assume and agree to perform this Agreement; (vii)
any purported termination of the Executive's employment which is not effected
pursuant to paragraph 4(c) hereof (and, if applicable, paragraph 3(b) hereof);
and for purposes of this Agreement, no such purported termination shall be
effective; or (viii) any request by the Company that the Executive participate
in an unlawful act or take any action constituting a breach of the Executive's
professional standard of conduct. Notwithstanding anything in this paragraph
3(c) to the contrary, the Executive's right to terminate the employment
pursuant to this paragraph 3(c) shall not be affected by incapacity due to
physical or mental illness.
4. Additional Provisions.(a) Enforcement of Agreement. The Company is
aware that upon the occurrence of a change in control the Board of Directors
or a shareholder of the Company may then cause or attempt to cause the
Company to refuse to comply with its obligations under this Agreement, or
may cause or attempt to cause the Company to institute, or may institute
litigation seeking to have this Agreement declared unenforceable, or may take
or attempt to take other action to deny the Executive the benefits intended
under this Agreement. In these circumstances, the purpose of this Agreement
could be frustrated. It is the intent of the Company that the Executive not
be required to incur the expenses associated with the enforcement of any
rights under this Agreement by litigation or other legal action, nor be bound
to negotiate any settlement of any rights hereunder, because the cost and
expense of such legal action or settlement would substantially detract from
the benefits intended to be extended to the Executive hereunder. Accordingly,
if following a change in control it should appear to the Executive that the
Company has failed to comply with any of its obligations under this Agreement
or in the event that the Company or any other person takes any action to
declare this Agreement void or enforceable, or institutes any litigation or
other legal action designed to deny, diminish or to recovery from the
Executive the benefits entitled to be provided to the Executive hereunder, and
that Executive has complied with all obligations under this Agreement, the
Company irrevocably authorizes the Executive from time to time to retain
counsel of the Executive's choice, at the expense of the Company as provided
in this paragraph 4(a), to represent the Executive in connection with the
initiation or defense of any litigation or other legal action, whether such
action is by or against the Company or any Director, officer, shareholder, or
other person affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior attorney client relationship between
the Company and such counsel, the Company irrevocably consents to the
Executive entering into an attorney client relationship with such counsel, and
in that connection the Company and the Executive agree that a confidential
relationship shall exist between the Executive and such counsel. The
reasonable fees and expenses of counsel selected from time to time by the
Executive as hereinabove provided shall be paid or reimbursed to the Executive
by the Company on a regular, periodic basis upon presentation by the Executive
of a statement or statements prepared by such counsel in accordance with its
customary practices, up to a maximum aggregate amount of $500,000. Any legal
expenses incurred by the Company by reason of any dispute between the parties
as to enforceability of or the terms contained in this Agreement,
notwithstanding the outcome of any such dispute, shall be the sole
responsibility of the Company, and the Company shall not take any action to
seek reimbursement from the Executive for such expenses.
(b) Severance Pay; No Duty to Mitigate. The amounts payable to the
Executive under this Agreement shall not be treated as damages but as
severance compensation to which the Executive is entitled by reason of
termination of employment in the circumstances contemplated by this Agreement.
The Company shall not be entitled to set off against the amounts payable to
the Executive of any amounts earned by the Executive in other employment after
termination of employment with the Company, or any amounts which might have
been earned by the Executive in other employment had other such employment
been sought.
(c) Notice of Termination. Any purported termination by the Company
or by the Executive shall be communicated by written Notice of Termination
to the other party hereto in accordance with paragraph 4(k) hereof. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of his employment
under the provision so indicated. For purposes of this Agreement, no such
purported termination shall be effective without such Notice of Termination.
(d) Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective executors,
administrators, heirs, personal representatives, successors, and assigns,
but neither this Agreement nor any right hereunder may be assigned or
transferred by either party hereto, any beneficiary, or any other person,
nor be subject to alienation, anticipation, sale, pledge, encumbrance,
execution, levy, or other legal process of any kind against the Executive,
his beneficiary or any other person. Notwithstanding the foregoing, the
Company will assign this Agreement to any corporation or other business
entity succeeding to substantially all of the business and assets of the
Company by merger, consolidation, sale of assets, or otherwise and shall
obtain the assumption of this Agreement by such successor.
(e) Entire Agreement. This Agreement contains the entire Agreement
between the parties with respect to the subject matter hereof. All
representations, promises, and prior or contemporaneous understandings among
the parties with respect to the subject matter hereof are merged into and
expressed in this Agreement, and any and all prior agreements between the
parties with respect to the subject matter hereof are hereby canceled.
(f) Amendment. This Agreement shall not be amended, modified, or
supplemented without the written agreement of the parties at the time of
such amendment, modification, or supplement.
(g) Governing Law. This Agreement shall be governed by and subject
to the laws of Louisiana.
(h) Severability. The invalidity or unenforceability of any particular
provision of this particular Agreement shall not affect the other provisions,
and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision has not been contained herein.
(i) Captions. The captions in this Agreement are for convenience and
identification purposes only, are not an integral part of this Agreement,
and are not to be considered in the interpretation of any part hereof.
(j) Notices. Except as specifically set forth in this Agreement,
all notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered in person or sent by
registered or certified mail, postage prepaid, addressed as set forth above,
or to such other address as shall be furnished in writing by any party to
the others.
(k) Waivers. Except as otherwise specifically provided in this
Agreement, no waiver by either party hereto of any breach by the other party
hereto of any condition or provision or condition of this Agreement to be
performed by such other party shall be deemed to be a valid waiver unless
such waiver is in writing or, even if in writing, shall be deemed to be a
waiver of a subsequent breach of such condition or provision or a waiver of
a similar or dissimilar provision or condition at the same or at any prior
or subsequent time.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
Federal Security Protection Services, Inc.
By: /s/ Gary S. O'Neal
Gary S. O'Neal, President and Chief Executive Officer
Federal Security Protection Services, Inc.
By: /s/ Daniel W. Thornton
Daniel W. Thornton, Secretary
/s/ Michael T. Landers
Michael T. Landers, Executive
EXHIBIT D
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, effective this 1st day of September 2002, is
by and between Federal Security Protection Services, Inc., a Delaware
corporation (the "Company") and Edward E. Reynolds, an individual
(the "Executive").
RECITALS
WHEREAS, the Executive has developed considerable familiarity with
and expertise in the operations and business of the Company.
WHEREAS, the Company, has determined to secure the services of the
Executive as General Counsel of the Company and the Executive desires to
serve in such capacity.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
AGREEMENT
1. Employment. The Company hereby agrees to employ Executive and
Executive hereby agrees to serve the Company as General Counsel with such
duties and responsibilities as are customarily assigned to such position, and
such other duties and responsibilities not inconsistent therewith as may be
assigned to the Executive from time to time by the Company.
2. Employment Term. Executive's employment hereunder shall be for a
term of seven (7) years or for so long as the Executive remains a shareholder
of the Company, whichever term is longer, unless earlier terminated pursuant
to Section 7 of this Employment Agreement (the "Employment Term").
3. Responsibilities. During the Employment Term, Executive shall render
such services to the Company and its affiliates as are reasonably required
by the Board of Directors of the Company and as may be required by virtue of
the office(s) and positions held by Executive. The Executive's services shall
be performed at the New Orleans offices subject to such business travel as
may be required from time to time, or such other headquarters of the Company,
as the Executive may determine, subject to Company approval.
4. Compensation. (a) Base Salary. During the Employment Term, the
Executive shall receive a base salary (the "Annual Base Salary"), at the
annual rate of $145,000. The Annual Base Salary shall be payable in
accordance with the Company's payroll practices as in effect from time to
time (whether payable by the Company, or such other entity as the Company
shall designate, subject to applicable taxes and withholding. During the
Employment Term, the Annual Base Salary shall increase, at a minimum, in
accordance with the increase in the consumer price index as adjusted annually
and cumulatively, using September 2002 as the base month and in addition
thereto, the salary shall be further reviewed for possible merit increases
at least annually.
(b) Annual Bonus. For each calendar year or portion of a calendar
year during the Employment Term, the Executive shall be eligible to earn an
annual performance bonus (the "Annual Bonus") based on such performance goals
and targets and in such amounts as the Company may in its sole discretion
establish. Each Annual Bonus shall be paid in accordance with the terms of
the management incentive program then applicable to the Executive.
(c) Benefits. During the Employment Term, the Executive and/or
the Executive's family, as the case may be, shall be provided with the same
Executive benefits as are provided by the Company from time to time to other
similarly situated Executives. This shall include, but not be limited to,
family health and dental insurance; a term life insurance policy of one
million dollars ($1,000,000) with the beneficiary(ies) to be named by the
Executive; and matching 401(k) contributions.
(d) Expenses. During the Employment Term, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred
by the Executive in carrying out the Executive's duties under this Agreement,
provided that the Executive complies with the policies, practices and
procedures of the Company for the type and necessity of the expense and for
submission of expense reports, receipts, or similar documentation of such
expenses.
(e) Other Compensation. Certain amounts are due and owing
Executive arising from his employment with Iris Broadband, Inc. These
amounts will be paid to the Executive from Accounts Receivable of Iris
Broadband, Inc.
(f) Options. The Executive is entitled to purchase one million
(1,000,000) shares of the $.001 par value Common Stock of the Company at an
exercise price pursuant to the terms of the Company's Stock Option Plan
(the "Option Plan"), as of the effective date of this Employment Agreement
subject to the execution by the Company and the Executive of the "Option to
Purchase Common Stock" attached hereto. The purchase rights represented by
this option are exercisable at a price per share of common stock of $.07.
(g) Termination. If the Executive's employment is terminated
pursuant to a termination for Cause or if the Executive resigns without Good
Reason, all of the then unvested Options shall immediately be canceled. In
any case, and notwithstanding any provision of this Agreement to the contrary,
(i) the terms and conditions of any Incentive Stock options shall be governed
in full by the relevant provision of the Internal Revenue Code and related
law and (ii) the terms of the other Options shall be governed by the relevant
provisions of the Option Plan (including, without limitation, in the event of
the Executive's termination of employment due to his death or Disability).
5. Vehicle Allowance. During the Employment Term, the Company shall
provide Executive a monthly vehicle allowance of at least $750.00 and such
other amount commensurate with Executive's position.
6. Best Efforts. During the Employment Term, and excluding any periods
of vacation and sick leave to which the Executive is entitled, Executive shall
devote his full business time and best efforts to the business and affairs of
the Company and its affiliates, to further the businesses and interests of
the Company and its affiliates and use his best efforts to carry out such
responsibilities faithfully and efficiently. During the Employment Term, the
Executive shall not be engaged in any other business activity without the
prior written consent of the Company except for time spent in managing his
personal, financial and legal affairs.
7. Termination of Employment. (a) Death or Disability. The Employment
Term, unless terminated earlier, shall automatically terminate on the last
day of the month in which the death of Executive occurs. If during the
Employment Term, Executive is prevented from performing duties or fulfilling
responsibilities by reason of any incapacity or disability for a continuous
period of six months, then the Company may, upon 90 days written notice to
Executive, terminate Executive's employment hereunder, but Executive shall
continue to be eligible to receive any benefits to which he may be entitled
under the terms of the Company's long term disability plan for its Executives.
In the event of such disability, the Company shall pay Executive full
compensation under Section 4 until such termination.
(b) By the Company. (i) The Company may terminate the executive's
employment during the Employment Term for Cause. For purposes of this
Agreement, the term "Cause" shall be defined as: (A) disloyalty or dishonesty
which results or is intended to result in personal enrichment to Executive
at the expense of the Company and/or personal enrichment to Executive of any
opportunity beneficial to the Company (including, without limitation, deceit,
fraud, embezzlement, dishonesty, or breach of business ethics); (B) acts of
moral turpitude or illegal or unprofessional conduct which may adversely
affect the reputation of the Company and/or its relationship with its
clients, investors, employees and/or shareholders; (C) fraudulent and/or
deceptive conduct in connection with the business or affairs of the Company;
(D) the failure of the Executive to perform his duties and obligations
pursuant to this Agreement; (E) conviction of a felony or crime involving
moral turpitude (or entering into a plea of nolo contendere with respect to
such crime); (F) gross misconduct; (G) any breach or intended breach by the
Executive of the confidentiality provisions of Section 9 hereof; (H) any
breach or intended breach by the executive of any Company policies or
procedures as in effect from time to time; (I) or failure by the Executive to
provide 90 days advance written notice of resignation (other than in the case
of Executive's resignation for Good reason); provided that in the case of
subsections (D), (G), (H) (but solely with respect to any intended breach)
and/or (I) of this Section 7(b) , the Company shall give written notice to
the Executive at least fifteen days prior to such termination of the
Company's intent to terminate, which notice shall set out in detail the ways
in which Executive has failed to perform, and Executive shall have failed to
cure such failure prior to the expiration of such fifteen day period.
(c) By the Executive for Good Reason. (i) For purposes of this
Agreement, "Good Reason" means:
A. any failure by the Company to comply with any provision of Section 4
of this Agreement, other than failures that are not taken in bad faith and are
remedied by the Company within 20 business days after receipt of written
notice thereof from the Executive; or
B. any relocation of the Company's offices outside of New Orleans,
without Executive's consent.
(ii) A termination of employment by the Executive for Good Reason
shall be effectuated by giving the Company written notice ("Notice of
Termination for Good Reason") of the termination, setting forth the
conduct of the Company that constitutes Good Reason. A termination of
employment by the Executive for Good Reason shall be effective on the next
business day following the date when the Notice of Termination for Good
Reason is given.
(d) Date of Termination. The "Date of Termination" means the date of
the Executive's death, Disability, or the date on which the termination of
the Executive's employment by the Company for Cause or by the Executive for
Good Reason is effective, as the case may be.
8. NonCompetition Covenant. In consideration of the Company agreeing
to enter into this Agreement the Executive acknowledges and agrees that
during the Employment Term of this Agreement and ending on the twelve
(12) month anniversary of the date upon which Executive's employment with
the Company is terminated for any reason (the "NonCompetition Term"), not,
either individually or in a partnership, or in conjunction with any person
or persons, firms, association, syndicate, corporation or other entity or
venture, as principal, partner, shareholder, director, officer, consultant,
independent contractor, advisor, Executive, agent or in any manner
whatsoever, either directly or indirectly,
(a) to provide or offer to provide, on behalf of a competitor of the
Company, products or services that compete with the business of the Company
to any customer or client, or prospective customer or client, of the Company;
(b) to provide or offer to provide, on behalf of a competitor of the
Company or of any of its affiliates, products or services that compete with
the business of the Company or of any of its affiliates to any customer or
client, or prospective customer or client, of the Company or of any of its
affiliates;
(c) to engage in or become interested in or advise any business,
person, firm, association, syndicate, corporation or other entity or venture
engaged within the cities where the Company and/or any of its affiliates and
subsidiaries does business and/or has intentions or plans to do business and
within a 100 mile radius of the boundaries of each city, any business similar
to the business carried on by the Company or any of its affiliates.
9. Confidentiality Covenant. The Executive acknowledges that as a key
shareholder, and senior executive of the Company he is familiar with a range
of confidential proprietary information regarding the Company. The Executive
further acknowledges and agrees that his employment by the Company will,
throughout the Employment Term bring him into close contact with the
confidential affairs of the Company, including information about customers,
costs, profits, real estate, markets, sales, products, key personnel,
pricing policies, operational methods, technical processes and other business
affairs and methods and other information not readily available to the public,
and plans for future development. The Executive further acknowledges that the
services to be performed under this Agreement are of a special, unique,
unusual, extraordinary and intellectual character. The Executive further
acknowledges that the business of the Company and its subsidiaries is or will
become international in scope, that its products and services may or will be
marketed throughout the world, that the Company competes in nearly all of its
business activities with other entities that are or could be located in nearly
any part of the world and that the nature of the Executive's services,
position and expertise are such that he is capable of competing with the
Company from nearly any location in the world. In recognition of the
foregoing, the Executive covenants and agrees:
(a) The Executive, at all times during the Non-Competition Term and
thereafter, shall hold in a fiduciary capacity for the benefit of the Company
all secret, trade, proprietary or confidential information, knowledge or data
relating to the Company or any of its affiliated companies and shareholders,
and their respective businesses, that the Executive obtains during the
Executive's employment by the Company or any of its affiliated companies and
that is not public knowledge (other than as a result of the Executive's
violation of this Section 10(a) ("Confidential Information"). The Executive
shall not communicate, divulge or disseminate Confidential Information at any
time during or after the Executive's employment with the Company, except with
the prior written consent of the Company or as otherwise required by law or
legal process. The Executive shall deliver promptly to the Company on
termination of the Executive's employment by the Company or at any other
time the Company may so request, at the Company's expense, all memoranda,
notes, records, reports and other documents (and all copies thereof) relating
to the Company's business, which the Executive obtained while employed by,
or otherwise serving or acting on behalf of, the Company, and which the
Executive may then posses or have under the Executive's control. The Executive
shall execute and deliver any confidentiality policy or agreement used by the
Company for its senior executives and agrees that in the event of any
conflicts, the provisions of either of this Agreement or any other agreement
(as the case may be) which the Company, in its sole discretion, determines
more fully protects the Company shall govern.
(b) During the Non-Competition Term, the Executive shall not, on his
own behalf or on behalf of any other person, firm or entity directly or
indirectly solicit, induce, advise, recommend to, or participate in any effort
to induce, any employee, officer or Executive of the Company or any of its
affiliates to terminate his or her employment with the Company, or to provide
any assistance whatsoever to any person, firm or entity engaged in any
activity competitive to the business of the Company, to employ, or cause any
business or entity with which Executive is affiliated to employ, any person
who was a full-time executive employee of the Company at the Executive's
Date of Termination or one year prior to such date or to directly or
indirectly induce any business, entity or person with which the Company or
any of its subsidiaries or affiliates has a business relationship to
terminate or alter such business relationship.
10. Work Product Covenant. The Executive acknowledges that during the
Employment Term, the Executive may have conceived, developed, invented,
conceive of, discover, invent or create inventions, improvements, new
contributions, literary property, computer programs and software material,
ideas and discoveries, whether patentable or copyrightable or not (all of
the foregoing being collectively referred to herein as "Work Product"), and
that various business opportunities shall be presented to the Executive by
reason of the Executive's employment by the Company. The Executive
acknowledges that all of the foregoing shall be owned by and belong
exclusively to the Company and that the Executive shall have no personal
interest therein, provided that they are either related in any manner to the
business (commercial or experimental) of the Company, or are, in the case of
Work Product, conceived or made on the Company's time or with the use of the
Company's facilities or materials, or, in the case of business opportunities,
are presented to the Executive for the possible interest or participation of
the Company. The Executive shall (i) promptly disclose any such Work Product
and business opportunities to the Company; (ii) assign to the Company, upon
request and without additional compensation, the entire rights to such Work
Product and business opportunities; (iii) sign all papers necessary to carry
out the foregoing; and (iv) give testimony in support of the Executive's
inventorship or creation in any appropriate case. The Executive agrees that
the Executive will not assert any rights to any Work Product or business
opportunity as having been made or acquired by the Executive prior to the
date of this Agreement except for Work Product or business opportunities, if
any, disclosed to and acknowledge by the Company in writing prior to the date
hereof.
(a) The Executive acknowledges and agrees that the provisions of Section
8, 9 and 10 are necessary to protect the business operations and affairs of
the Company. The Executive understands that the restrictions set forth in this
Agreement may limit his ability to earn a livelihood in a business similar
that of the Company, but he nevertheless believes that he has received and
will receive sufficient consideration and other benefits as an employee of
the Company to justify clearly such restrictions which, in any event (given
his education, skills and ability), the Executive does not believe would
prevent him from earning a livelihood.
11. Remedies for Breach. In addition to such other rights and remedies
as the Company may have at equity or in law with respect to any breach of
this Agreement, the Executive acknowledges that the legal remedies for breach
of the covenants contained in Sections 8, 9 and 10 and breach of Section
7(b)(i)(a) are inadequate, and therefore agrees that, in addition to any or
all other remedies available to the Company and its affiliates in the event
of a breach or a threatened breach of any covenant contained in Sections 8,
9 and 10 or 7(b)(i)(a), the Company or any of its affiliates may:
(a) The Company shall have the right and remedy to have such provisions
specifically enforced by any court having jurisdiction (without any obligation
to post a bond or other security, which is hereby waived); it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company and that money damages alone will not
provide an adequate remedy to the Company, and
(b) Seek to recover from Executive monetary damages to the Company or
its affiliates arising from such breach or threatened breach and all costs and
expenses (including attorneys' fees) incurred by the Company or any of its
affiliates concerning such breach and/or in enforcement of such covenants.
12. Successors. (a) This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not be assignable by
the Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns, and may be assigned by Company in
connection with any sale, transfer or other disposition of all or
substantially all of its business and assets.
13. Indemnification. The Executive shall be entitled throughout the
Employment Period in the capacity as an officer or director of the Company or
any of its subsidiaries, or as a member of any other governing body or any
partnership or joint venture in which the Company has an equity interest (and
after the term of employment, to the extent relating to any continued service
as such officer, director or member) to the benefit of the indemnification
provisions contained on the date hereof in the Certificate of Incorporation
and By-Laws of the Company (not including any amendments or additions after
the date of execution hereof that limit or narrow, but including any that add
to or broaden, the protection afforded to the Executive by those provisions),
to the extent not prohibited by applicable law at the time of the assertion
of any liability against the Executive.
14. Post-Termination Assistance. For so long as the Executive is
receiving any payments pursuant to this Agreement, the Executive shall
cooperate, at the reasonable request of the Company (i) in the transition
of any matter for which the Executive had authority or responsibility during
the Employment Period, or (ii) with respect to any other matter involving
the Company for which the Executive may be of assistance.
15. Miscellaneous. (a) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Louisiana, applicable
to agreements made and to be performed entirely within such state. The
captions of this Agreement are not part of the provisions hereof and shall
have no force or effect. This Agreement may not be amended or modified except
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications under this Agreement shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive, to the Executive's address
as maintained by the Company.
If to the Company:
FSPS, Inc.
400 Poydras Street, Suite 1510
New Orleans, Louisiana 70130
Attention: President and Chief Executive Officer
or to such other address as either party furnishes to the other in writing in
accordance with this Section 15. Notices and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be
held invalid or unenforceable in part, the remaining portion of such
provision, together with all other provisions of this Agreement, shall remain
valid and enforceable and continue in full force and effect to the fullest
extent consistent with law, and the invalid or unenforceable provision shall
be deemed to have been redrafted as if in the original, so as to be valid and
enforceable to the maximum extent permissible under applicable law.
(d) Notwithstanding any other provision of this Agreement, the Company
may withhold from amounts payable under this Agreement all federal, state,
local and foreign taxes that are required to be withheld by applicable laws
or regulations.
(e) The failure of the Executive or the Company to insist upon strict
compliance with any provision of, or to assert any right under, this
Agreement shall not be deemed to be a waiver of such provision or right or of
any other provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this Agreement
represents the complete agreement between the parties and supersedes any other
agreement between them concerning the subject matter hereof. This Agreement
may not be modified except by express written agreement between the parties.
(g) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and which together shall constitute one
instrument.
(h) Whenever this Agreement provides for any payment to the Executive's
estate, such payment may be made instead to such beneficiary or beneficiaries
as the Executive may designate by written notice to the Company. The
Executive shall have the right to revoke any such designation and to
re-designate a beneficiary or beneficiaries by written notice to the Company
and to any applicable insurance company to such effect.
(i) The Executive represents and warrants to the Company that this
Agreement is legal, valid and binding upon the Executive and the execution
of this Agreement and the performance of the Executive's obligations hereunder
does not and will not constitute a breach of, or conflict with the terms
or provisions of, any agreement or understanding to which the Executive
is a party (including, without limitation, any other employment agreement).
The Company represents and warrants to the Executive that this Agreement is
legal, valid and binding upon the Company and the execution of this Agreement
and the performance of the Company's obligations hereunder does not and will
not constitute a breach of, or conflict with the terms or provisions of, any
agreement or understanding to which the Company is a party.
(j) Neither the Executive, his legal representative nor any beneficiary
designated by the Executive shall have any right, without the prior written
consent of the Company, to assign, transfer, pledge, hypothecate, anticipate
or commute to any person or entity any payment due in the future pursuant to
any provision of this Agreement, and any attempt to do so shall be void and
shall not be recognized by the Company.
(k) Each party (a) hereby irrevocably submits itself to and acknowledges
and recognizes the jurisdiction of the courts of the State of Louisiana in the
Parish of Orleans or in the United States District Court for the Eastern
District of Louisiana (which courts, together with all applicable appellate
courts, for purposes of this Agreement, are the only "courts of competent
jurisdiction"), for the purpose of any suit, action or other proceeding
arising out of, under, or in connection with, relating to, or based upon
this Agreement (b) agrees that any service of process in connection with any
such suit, action or other proceeding may be made upon it by means of the
United States mail or such other service as may be authorized by any such
court, (c) agrees that the courts of competent jurisdiction shall be the sole
and exclusive courts and forums for the purpose of any such suit, action or
proceeding (d) waives and agrees not to assert, by way of motion, as a defense,
or otherwise, in any such suit, action or proceeding, any claim that it is
not subject to the jurisdiction of courts of competent jurisdiction, that
such suit, action or proceeding is brought in an inconvenient forum, that the
venue of the suit, action or proceeding is improper or that this Agreement or
the subject matter hereof may not be enforced in or by such court and
(e) irrevocably waives any right to a trial before a jury. Each party agrees
that its submission to jurisdiction and its consent to service of process by
mail is made for the express benefit of the other party.
(l) Each of the parties has been represented by counsel (or has had the
opportunity to be so represented) in the negotiation and preparation of this
Agreement. The parties agree that this Agreement is to be construed as jointly
drafted. Accordingly, this Agreement will be construed according to the fair
meaning of its language, and the rule of construction that ambiguities are to
be resolved against the drafting party will not be employed in the
interpretation of this Agreement.
(m) Notwithstanding the expiration, non-renewal or termination of this
Agreement, the provisions of Sections (8), (9),10),(13) and (15) of the
Agreement shall continue in full force and effect and remain fully binding
upon the parties to the extent provided for therein.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization of its Board of Directors, the Company has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
Federal Security Protection Services, Inc.
By: /s/ Gary S. O'Neal
Gary S. O'Neal, President and Chief Executive Officer
Federal Security Protection Services, Inc.
By: /s/ Daniel W. Thornton
Daniel W. Thornton, Secretary
/s/ Edward E. Reynolds
Edward E. Reynolds, Executive
TERMINATION BENEFITS AGREEMENT (GOLDEN PARACHUTE)
This Termination Benefits Agreement, dated as of September 1, 2002, evidences
an agreement by and between Federal Security Protection Services, Inc. a
Delaware corporation having its principal executive offices at 400 Poydras
Street, Suite 1510, New Orleans, Louisiana 70130 (the "Company"), and
Edward E. Reynolds (the "Executive").
RECITALS
The following facts are true:
A. The Executive has many years experience valuable to serving the
Company as a key executive officer and is expected to help guide the Company
through many problems.
B. The Executive is expected to continue to make a major contribution
to the profitability, growth, and financial strength of the Company.
C. The Company considers the continued services of the Executive to be
in the best interest of the Company and its shareholders and desires to
assure the continued services of the Executive on behalf of the Company as
an objective and impartial basis and without distraction or conflict of
interest in the event of an attempt to obtain control of the Company.
D. The Executive is willing to remain in the employ of the Company
upon the understanding that the Company will provide income security upon the
terms and subject to the conditions contained herein if the Executive's
employment is terminated voluntarily for good reason or involuntarily by the
Company without good reason.
AGREEMENT
In consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the Company and the Executive agree as
follows:
1. Undertaking. The Company agrees to pay to the Executive the
Termination Benefits specified in paragraph 2 hereof if (a) control of
the Company is acquired (as defined in paragraph 3(a) hereof) and
(b) after the acquisition of control occurs (i) the Company terminates the
employment of the Executive for any reason other than cause (as defined in
paragraph 3(b) hereof), death, the Executive's attainment of age
sixty five (65) or total and permanent disability, or (ii) the Executive
voluntarily terminates employment for good reason (as defined in
paragraph 3(c) hereof).
2. Termination Benefits. If the Executive is entitled to termination
benefits pursuant to paragraph 1 hereof, the Company agrees to pay to the
Executive as termination compensation in a lumpsum payment within five (5)
calendar days of the termination of the Executive's employment the full sum
of Two Million Five Hundred Thousand Dollars ($2,500,000.00).
3. Definitions. (a) As used in this Agreement, the "acquisition of
control" means (i) attaining ownership of twenty five percent (25%) or more
of the shares of voting stock of the Company by any person or group (other
than a person or group including the Executive or with whom or which the
Executive is affiliated), or (ii) the occurrence of a "change of control"
required to be described under the proxy disclosure rules of the Securities
and Exchange Commission.
(b) As used in this Agreement, the term "cause" means an act or acts
of dishonesty by the Executive constituting a felony under applicable law
and resulting or intending to result directly or indirectly in gain to or
personal enrichment of the Executive at the Company's expense.
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for cause unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than a majority of the Board called and held for the purpose (after
reasonable notice and opportunity for the Executive, together with counsel,
to be heard before the Board), finding that in the good faith opinion of the
Board the Executive was guilty of conduct set forth above in the first
sentence of the subsection and specifying the particulars thereof in detail.
(c) As used in this Agreement, the term "good reason" means, without
the Executive's written consent, (i) a change in status, position or
responsibilities which, in the Executive's reasonable judgment, does not
represent a promotion from existing status, position or responsibilities as
in effect immediately prior to the change in control; the assignment of any
duties or responsibilities which, in the Executive's reasonable judgment, are
inconsistent with such status, position or responsibilities; or any removal
from or failure to reappoint or reelect the Executive to any of such
positions, except in connection with the termination for total and permanent
disability, death or cause or by him other than for good reason; (ii) a
reduction by the Company in the Executive's base salary as in effect on the
date hereof or as the same may be increased from time to time during the term
of this Agreement or the Company's failure to increase (within twelve (12)
months of the Executive's last increase in base salary) the Executive's base
salary after a change in control in an amount which at least equals, on a
percentage basis, the average percentage increase in base salary for all
executive and senior officers of the Company effected in the preceding twelve
(12) months; (iii) the relocation of the Company's principal executive offices
to a location outside the New Orleans metropolitan area or the relocation of
the Executive by the Company to any place other than the location at which
the Executive performed duties prior to a change in control, except for
required travel on the Company's business to an extent substantially
consistent with business travel obligations at the time of a change in
control; (iv) the failure of the Company to continue in effect any incentive,
bonus or other compensation plan in which the Executive participates,
including but not limited to the Company's stock option and restricted stock
plans, unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan), evidenced by the Executive's written consent, has been
made with respect to such plan in connection with the change in control, or
the failure by the Company to continue the Executive's participation therein,
or any action by the Company which would directly or indirectly materially
reduce participation therein; (v) the failure by the Company to continue to
provide the Executive with benefits substantially similar to those enjoyed or
entitled under any of the Company's pension, profit sharing, life insurance,
medical, dental, health and accident, or disability plans at the time of a
change in control, the taking of any action by the Company which would
directly or indirectly materially reduce any of such benefits or deprive the
Executive of any material fringe benefit enjoyed or entitled to at the time
of the change in control, or the failure by the Company to provide the number
of paid vacation and sick leave days to which the Executive is entitled on
the basis of years of service with the Company in accordance with the
Company's normal vacation policy in effect on the date hereof; (vi) the
failure of the Company to obtain a satisfactory agreement from any successor
or assign of the Company to assume and agree to perform this Agreement; (vii)
any purported termination of the Executive's employment which is not effected
pursuant to paragraph 4(c) hereof (and, if applicable, paragraph 3(b) hereof);
and for purposes of this Agreement, no such purported termination shall be
effective; or (viii) any request by the Company that the Executive
participate in an unlawful act or take any action constituting a breach of
the Executive's professional standard of conduct. Notwithstanding anything in
this paragraph 3(c) to the contrary, the Executive's right to terminate the
employment pursuant to this paragraph 3(c) shall not be affected by incapacity
due to physical or mental illness.
4. Additional Provisions.(a) Enforcement of Agreement. The Company is
aware that upon the occurrence of a change in control the Board of Directors
or a shareholder of the Company may then cause or attempt to cause the Company
to refuse to comply with its obligations under this Agreement, or may cause
or attempt to cause the Company to institute, or may institute litigation
seeking to have this Agreement declared unenforceable, or may take or attempt
to take other action to deny the Executive the benefits intended under this
Agreement. In these circumstances, the purpose of this Agreement could be
frustrated. It is the intent of the Company that the Executive not be
required to incur the expenses associated with the enforcement of any rights
under this Agreement by litigation or other legal action, nor be bound to
negotiate any settlement of any rights hereunder, because the cost and expense
of such legal action or settlement would substantially detract from the
benefits intended to be extended to the Executive hereunder. Accordingly,
if following a change in control it should appear to the Executive that the
Company has failed to comply with any of its obligations under this Agreement
or in the event that the Company or any other person takes any action to
declare this Agreement void or enforceable, or institutes any litigation or
other legal action designed to deny, diminish or to recovery from the
Executive the benefits entitled to be provided to the Executive hereunder,
and that Executive has complied with all obligations under this Agreement,
the Company irrevocably authorizes the Executive from time to time to retain
counsel of the Executive's choice, at the expense of the Company as provided
in this paragraph 4(a), to represent the Executive in connection with the
initiation or defense of any litigation or other legal action, whether such
action is by or against the Company or any Director, officer, shareholder, or
other person affiliated with the Company, in any jurisdiction. Notwithstanding
any existing or prior attorney client relationship between the Company and
such counsel, the Company irrevocably consents to the Executive entering into
an attorney client relationship with such counsel, and in that connection the
Company and the Executive agree that a confidential relationship shall exist
between the Executive and such counsel. The reasonable fees and expenses of
counsel selected from time to time by the Executive as hereinabove provided
shall be paid or reimbursed to the Executive by the Company on a regular,
periodic basis upon presentation by the Executive of a statement or statements
prepared by such counsel in accordance with its customary practices, up to a
maximum aggregate amount of $500,000. Any legal expenses incurred by the
Company by reason of any dispute between the parties as to enforceability of
or the terms contained in this Agreement, notwithstanding the outcome of any
such dispute, shall be the sole responsibility of the Company, and the Company
shall not take any action to seek reimbursement from the Executive for such
expenses.
(b) Severance Pay; No Duty to Mitigate. The amounts payable to the
Executive under this Agreement shall not be treated as damages but as
severance compensation to which the Executive is entitled by reason of
termination of employment in the circumstances contemplated by this Agreement.
The Company shall not be entitled to set off against the amounts payable to
the Executive of any amounts earned by the Executive in other employment
after termination of employment with the Company, or any amounts which might
have been earned by the Executive in other employment had other such
employment been sought.
(c) Notice of Termination. Any purported termination by the Company
or by the Executive shall be communicated by written Notice of Termination
to the other party hereto in accordance with paragraph 4(k) hereof. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of his employment
under the provision so indicated. For purposes of this Agreement, no such
purported termination shall be effective without such Notice of Termination.
(d) Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective executors,
administrators, heirs, personal representatives, successors, and assigns,
but neither this Agreement nor any right hereunder may be assigned or
transferred by either party hereto, any beneficiary, or any other person, nor
be subject to alienation, anticipation, sale, pledge, encumbrance, execution,
levy, or other legal process of any kind against the Executive, his
beneficiary or any other person. Notwithstanding the foregoing, the Company
will assign this Agreement to any corporation or other business entity
succeeding to substantially all of the business and assets of the Company by
merger, consolidation, sale of assets, or otherwise and shall obtain the
assumption of this Agreement by such successor.
(e) Entire Agreement. This Agreement contains the entire Agreement
between the parties with respect to the subject matter hereof. All
representations, promises, and prior or contemporaneous understandings among
the parties with respect to the subject matter hereof are merged into and
expressed in this Agreement, and any and all prior agreements between the
parties with respect to the subject matter hereof are hereby canceled.
(f) Amendment. This Agreement shall not be amended, modified, or
supplemented without the written agreement of the parties at the time of
such amendment, modification, or supplement.
(g) Governing Law. This Agreement shall be governed by and subject
to the laws of Louisiana.
(h) Severability. The invalidity or unenforceability of any particular
provision of this particular Agreement shall not affect the other provisions,
and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision has not been contained herein.
(i) Captions. The captions in this Agreement are for convenience and
identification purposes only, are not an integral part of this Agreement, and
are not to be considered in the interpretation of any part hereof.
(j) Notices. Except as specifically set forth in this Agreement, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered in person or sent by registered or
certified mail, postage prepaid, addressed as set forth above, or to such
other address as shall be furnished in writing by any party to the others.
(k) Waivers. Except as otherwise specifically provided in this
Agreement, no waiver by either party hereto of any breach by the other party
hereto of any condition or provision or condition of this Agreement to be
performed by such other party shall be deemed to be a valid waiver unless
such waiver is in writing or, even if in writing, shall be deemed to be a
waiver of a subsequent breach of such condition or provision or a waiver
of a similar or dissimilar provision or condition at the same or at any
prior or subsequent time.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
Federal Security Protection Services, Inc.
By: /s/ Gary S. O'Neal
Gary S. O'Neal, President and Chief Executive Officer
Federal Security Protection Services, Inc.
By: /s/ Daniel W. Thornton
Daniel W. Thornton, Secretary
/s/ Edward E. Reynolds
Edward E. Reynolds, Executive
EXHIBIT E
THE OPTION REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS, NOR HAS
THE STOCK UNDERLYING THIS OPTION. SAID OPTION WAS ACQUIRED FOR INVESTMENT
AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH OPTION UNDER THE SECURITIES ACT
OF 1933 AND APPLICABLE STATE SECURITIES LAWS, UNLESS IN THE OPINION OF
COUNSEL (WHICH SHALL BE REASONABLY SATISFACTORY TO THE COMPANY) THE TRANSFER
WILL VIOLATE THE REGISTRATION REQUIREMENTS OF FEDERAL OR APPLICABLE STATE
SECURITIES LAWS.
FEDERAL SECURITY PROTECTION SERVICES, INC.
OPTION TO PURCHASE COMMON STOCK
Option to Purchase
1,000,000 Shares
of Common Stock, par value $.001 per share
This is to certify that Mr. Gary S. O'Neal is entitled subject to the terms
and conditions hereinafter set forth, to purchase 1,000,000 shares of
the $.001 Common Stock of Federal Security Protection Services, Inc., a
corporation organized and existing under and by virtue of the laws of the
State of Delaware (the "Company") from the Company at a price per share
and on the terms set forth herein and to receive a certificate or
certificates representing said shares of Common stock so purchased on
presentation and surrender of Notice of Exercise attached hereto, together
with the payment of the purchase price of each share purchased either in cash
or by way of a certified check, or other check made payable to the order of
the Company.
The purchase rights represented by this Option are exercisable at a
price per share of Common Stock of seven cents ($0.07) per share. This
Option shall be valid and binding upon the Company for a period of sixty
(60) months commencing the date of the issuance of this Option.
Subject to the terms and conditions herein contained this purchase rights
represented by this Option are exercisable at the option of the registered
owner hereof, in whole or in part, at any time, or in part from time to time,
within the life of this Option, provided, however, that these option rights
shall not be exercisable with respect to a fraction of a share of Common Stock.
If the registered owner hereof shall exercise this Option as to less than all
of the shares of Common Stock covered hereby, at any time, or from time,
during the life of this Option, this Option shall be surrendered to the
Company along with the Notice of Exercise and payment, as above stated,
and 1.1 shall be canceled. The Company shall execute and deliver a new Option
of like tenor for the balance of the shares purchasable hereunder. The Option
issued for said balance, in place of this Option, shall expire on the same
date as this Option and the issuance of a new Option for the balance of said
shares of Common Stock shall in no way extend the life of this Option.
Certain Definitions: For all purposes of this Option, unless the context
otherwise requires, the following terms shall have the following respective
meanings:
* "Additional Shares" shall mean all shares, of whatever class, issued by
the Company after the date of this Option.
* "Share Equivalent" shall mean any Convertible Security or any warrant,
option or other right to subscribe for or purchase any Additional Shares or
any Convertible Security.
* "Convertible Security" shall mean any security of the Company convertible
into or by its terms exchangeable for Additional Shares.
ARTICLE 1. Exercise of Option
1.1 Manner of Exercise: Prior to the Expiration Date, this Option may be
exercised, in whole or in part, at any time or from time to time. To
exercise, the Holder shall deliver to the Company, (a) a written notice,
in substantially the form of the Exercise of Notice, attached as Exhibit A,
of such Holder's election to exercise this Option which shall be duly
executed by the Holder, his duly authorized agent or attorney, (b) a
certified or bank cashier's check payable to the order of the Company in an
amount equal to the aggregate Exercise Price for the number of Option Shares
being purchased and (c) this Option. The Company shall, as promptly as
practicable, execute and deliver or cause to be executed and delivered in
accordance with such notice, a certificate or certificates evidencing the
aggregate number of Option Shares specified in such Notice. Such certificate
or certificates shall be deemed to have been issued, and such Holder or other
person so designated shall be deemed for all purposes to have become a holder
of record of such shares, as of the date the Notice is received by the
Company. If this Option is exercised only in part, the Company shall, at
the time of delivery of the certificate or certificates evidencing the
Shares specified in such Notice, deliver to the Holder a new Option
evidencing the right to purchase the remaining Option Shares called for by
this Option, which new Option shall in all other respects be identical to
this Option. The Company shall pay all expenses, taxes and other charges
payable in connection with the issuance and delivery of stock certificates
and new Options.
1.2 Fractional Shares: No fractional Shares will be issued in connection
with any purchase in the exercise of this Option. In lieu of such fractional
shares the Company shall make a cash refund equal to the product of the
applicable fraction multiplied by the Exercise Price paid by the Holder for
one Option Share upon such exercise.
ARTICLE 2. Transfer
Subject to Compliance with the Securities Act of 1933, as amended (the
"Securities Act") this Option is transferable, in whole or in part, at
the offices of the Company by the Holder in person or by duly authorized
attorney, upon presentation of this Option certificate and an Assignment,
substantially in the form of Exhibit B hereto, properly completed and
executed.
ARTICLE 3. Adjustment of Exercise Price and Number of Option Shares
The number and kind of securities purchasable upon the exercise of this Option
and the Exercise Price shall be subject to adjustment from time to time upon
the happening of certain events as follows:
3.1 Reclassification, Consolidation or Merger:
If (a) the outstanding securities of the class issuable upon exercised of
this Option are changed or reclassified (other than as a result of a division,
combination, increase or decrease in the number of such securities
outstanding) or, (b) if the Company is consolidated or merged with or into
another corporation (other than a merger with another corporation in which
the Company is the surviving corporation and which does not result in any
reclassification or change other than a division or combination of
outstanding securities issuable upon the exercise of this Option or an
increase or decrease in the number such securities outstanding) or (c) if
all or substantially all of the assets of the Company are sold or transferred,
the Company or such successor or purchasing corporation, as the case may be,
shall, without requiring any additional consideration therefore, issue a new
Option in exchange for this Option, providing that the Holder of this Option
shall have the right to exercise such new Option upon terms not less
favorable to the Holder than those then applicable to this Option and to
receive upon exercise, in lieu of each Share issuable upon exercise of this
Option, the kind and amount of shares of stock, other securities, money or
property receivable upon such reclassification, change, consolidation,
merger, sale or transfer by the Holder of one share of Common Stock issuable
upon exercise of this Option had this Option been exercised immediately prior
to such reclassification, change, consolidation, merger, sale or transfer.
Such new Option shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article 3. The Holder shall be entitled to the benefits of the new option
immediately upon any such reclassification, change, consolidation, merger,
sale or transfer, whether or not a certificate evidencing such new Option
has been issued. The provisions of this Section 3.1 shall similarly apply
to successive reclassifications, changes, consolidations, changes,
consolidations, mergers, sales and exchanges.
3.2 Subdivision or Combination: If, while this Option remains outstanding
and unexpired, the Company subdivides or combines it outstanding securities
of the class issuable upon exercise of this Option, the Exercise Price
shall, in case of subdivision, be proportionately reduced as of the effective
date of such subdivision, or shall be, in the case of combination,
proportionately increased as of the effective date of such combination.
3.3. Stock Dividends: If the Company at any time while this Option
is outstanding and unexpired pays a dividend or makes any other distribution
on its shares payable in shares, then the Exercise Price shall be adjusted,
as of the date of such payment or other distribution to that price determined
by multiplying the Exercise Price in effect immediately prior to such payment
or other distribution by a fraction (a) the numerator of such shall be the
total number of Shares outstanding immediately prior to such dividend or
distribution and (b) the denominator of which shall be the total number of
shares outstanding immediately after such dividend or distribution.
3.4 Liquidating Dividends, Etc. If the Company at any time while this
Option is outstanding and unexpired distributes its assets to the holders of
its shares as a dividend in liquidation or partial liquidation or as a return
of capital other than as a dividend payable out of funds legally available for
dividends under the laws of the State of Delaware, the Holder of this Option
shall, upon exercise, be entitled to receive, in addition to the number of
Shares receivable, and without payment of any additional consideration, a sum
equal to the amount of such assets as would have been payable to such Holder
as owner of that number of Shares had such Holder been the holder of record of
such Common Stock on the record date for such distribution and an appropriate
provision therefore shall be made a part of any such distribution.
3.5 Issuance of Additional Shares of Common Stock: If, while this Option is
outstanding and unexpired, the Company issues any Additional Shares (other
than as provided in Section 3.1 through 3.4) at a price per share less than
the Exercise Price, or without consideration, then the Exercise Price upon
each such issuance shall be adjusted to that price determined by multiplying
the Exercise Price by a fraction:
(a) the numerator of which shall be the number of Shares outstanding
immediately prior to issuance of such Additional Shares plus the number
of Shares which the aggregate consideration received by the Company for
the total number of Additional Shares so issued would purchase at the
Exercise Price, and
(b) the denominator of which shall be the number of shares outstanding
immediately after issuance of such Additional Shares.
This Section shall not apply under any circumstances for which adjustment
is provided in Sections 3.1, 3.2, 3.3, or 3.4. No adjustment of the Exercise
Price shall be made under this Section 3.5 upon issuance of any additional
shares which are issued pursuant to any Common Stock Equivalent if upon the
issuance of any such Common Stock Equivalent (i) any such adjustment shall
previously have been made pursuant to Section or (ii) no adjustment was
required by Section 3.6.
3.6. Issuance of Common Stock Equivalents: If, at any time while this Option
is outstanding and and unexpired, the Company issues any Common Stock
Equivalent and the price per share for which Additional Shares may be
issuable thereafter pursuant to such Common Stock Equivalent shall be less
than the Exercise Price, or, if after any such issuance, the price per share
for which Additional Shares may be issuable thereafter pursuant to such
Common Stock Equivalent shall be less than the Exercise Price, or, if after
any such issuance, the price per share for which Additional Shares may be
issuable thereafter is amended, and such price as so amended shall be less
than the Exercise Price at the time of such amendment, then the Exercise Price
upon each such issuance or amendment shall be adjusted as provided in Section
3.5 on the basis that (a) the maximum number of Additional Shares issuable
pursuant to all such Common Stock Equivalents shall be deemed to have been
issued as of the earlier of (i) the date on which the Company shall enter
into a firm contract for the issuance of such Common Stock Equivalents or
(ii) the date of actual issuance of such Common Stock Equivalent, and (b)
the aggregate consideration for such maximum of Additional Shares shall be
deemed to be the minimum consideration received and receivable by the Company
for the issuance of such Additional Shares pursuant to such Common Stock
Equivalent. No adjustment of the Exercise Price shall be made under this
Section 3.6 upon the issuance of any convertible security which is issued
pursuant to the exercise of any Options or other subscription or purchase
rights thereunder, if any adjustment shall previously have been made in the
Exercise Price then in effect upon the issuance of such Options or other
rights pursuant to this Section 3.6.
3.7 Other Provisions Applicable to Adjustments Under this Article 3. The
following provisions shall be applicable to adjustments in the Exercise Price
provided in this Article 3:
(a) Computation of Consideration. The consideration received by the Company
shall be deemed to be the following: To the extent that any Additional Shares
or any Common Stock Equivalents shall be issued for a cash consideration, the
consideration received by the Company, if such Additional Shares or Common
Stock Equivalents are offered by are sold to underwriters or dealers for
public offering without a subscription offering, the initial public offering
price, in any case excluding any amounts paid or receivable for accrued
interest or accrued dividends and without deduction of any compensation,
discounts, commissions or expenses paid or incurred by the Company for and
in the underwriting of, or otherwise in connection with, the issue of the
shares; to the extent that such issuance shall be for a consideration other
than cash, then except as herein otherwise expressly provided, the fair market
value of such consideration at the time of such issuance as determined in good
faith by the Board of Directors of the Company. The consideration for any
Additional Shares of Common Stock issuable pursuant to any Common Stock
Equivalents shall be the consideration received by the Company for issuing
such Common Stock Equivalents, plus the additional consideration payable to
the Company upon the exercise, conversion or exchange of such Common Stock
Equivalents. In case of the issuance of any Additional Shares or Common Stock
Equivalents in payment or satisfaction of any dividend upon any class of stock
other than the Shares, the Company shall be deemed to have received for such
Additional Shares or Common Stock Equivalents a consideration equal to the
amount of such dividend so paid or satisfied.
(b) Readjustment of Exercise Price. Upon the expiration of the right to
convert, exchange or exercise any Common Stock Equivalent the issuance of
which effected an adjustment in the Exercise Price, if any such Common Stock
Equivalent shall not have been converted, exercised or exchanged, the number
of shares of Common Stock deemed to be issued and outstanding by reason of the
fact that they were issuable upon conversion, exchange or exercise of any
such Common Stock Equivalent, shall no longer be computed as set forth above
and the Exercise Price shall forthwith be readjusted and thereafter be the
price which it would have been (but reflecting any other adjustments in the
Exercise Price made pursuant to the provisions of this Article 3 after the
issuance of such Common Stock Equivalent) had the adjustment of the Exercise
Price been made in accordance with the issuance or sale of the number of
Additional Shares actually issued upon conversion, exchange or issuance of
such Common Stock Equivalent and thereupon only the number of Additional
Shares actually so issued shall be deemed to have been issued and only the
consideration actually received by the Company (computed as in clause (a) of
this section 3.7) shall be deemed to have been received by the Company.
(c) Treasury Shares: The number of shares at any time outstanding shall not
include any shares directly or indirectly owned or held by for the account of
the Company or any of its subsidiaries.
3.8 Other Action Affecting Common Stock. If the Company shall take any action
affecting its shares, other than an action described Sections 3.1 through
3.7, inclusive, which, in the opinion of the Board of Directors would have a
materially adverse affect upon the rights or the holder of this Option, the
Exercise Price shall be adjusted in such manner and at such time as the Board
of Directors may in good faith determine to equitable in the circumstances.
3.9 Adjustment of Number of Shares. Upon each adjustment in the Exercise
Price pursuant to any provision of this Article 3, the number of shares
purchasable shall be adjusted, to the nearest whole share, to the product
obtained by multiplying such number of shares purchasable immediately prior
to such adjustment in the Exercise Price by a fraction, the numerator of
which shall the Exercise Price immediately prior to such adjustment and the
denominator of which shall be the Exercise Price immediately thereafter.
3.10. Notice of Adjustments. Whenever the Exercise Price shall be adjusted,
the Company shall make a certificate signed by its President or Vice President
and by its Treasurer, Assistant Treasurer, Secretary or Assistant Secretary,
(if not referred to be said titles said certificate shall be signed by the
Company's Chief Executive Officer and its Chief Financial Officer or the
deputy to each such person) setting forth in detail, the event requiring
adjustment, the amount of adjustment, the method of calculating such
adjustment (including describing the basis on which the Board of Directors
made its determination) and the Exercise Price after giving effect to such
adjustment and, promptly after each such adjustment, shall cause copies of
such certificate to be mailed (by first class mail postage prepaid) to the
Holder. A determination of any adjustment to the Exercise Price or the
number or kind of shares or other securities issuable upon exercise of this
Option, made by independent certified public accountants selected by the
Company, shall be final and binding upon all parties.
ARTICLE 4. Further Covenants of the Company
4.1 Option Share. The Company covenants and agrees that all shares which may
be issued upon exercise of this Option, will, upon issuance, be duly and
validly issued, fully paid, non-assessable and free from all taxes, liens and
charges. The Company further covenants and agrees that during the period
within which the rights represented by this Option may be exercised, the
Company shall at all times have authorized and reserved for the purpose of
issuance upon exercise of the purchase rights evidenced by this Option, a
sufficient number of shares of its capital stock to provide for the exercise
of the rights represented by this Option and of Common Shares into which the
Common Shares are convertible.
4.2 Exchange of Options. Upon surrender for exchange or transfer of any
Option Certificate, properly endorsed to the Company, the Company at the
Holder's expense will promptly issue and deliver to or upon the order of
the Holder a new Option Certificate or certificates of like tenor, in the
name of such Holder or as such holder as Holder may direct. Until transfer
of this Option Certificate on the books of the Company, the Company may
treat the registered Holder hereof as the owner for all purposes.
ARTICLE 5. Negation of Voting and Dividend Rights
This Option shall not entitle Holder to any voting rights or other rights as
a holder of stock of the Company, or to any other rights whatsoever, except
the rights herein expressed. No dividends of any kind or character, shall be
payable or accrue in respect to this Option or the interest represented
hereby or the Common Stock purchasable hereunder or the Common Stock into
which said Common Stock shall be convertible, unless and until this Option
is exercised and if exercised, then only to the extent that it is exercised.
ARTICLE 5. Governing Law.
This Option shall be governed and construed in accordance with the laws of the
State of Delaware without giving effect to the principles of conflicts of law.
IN WITNESS WHEREOF, the Company has caused this Option Certificate to be
executed on this 1stth day of September 2002, by its proper corporate officers
thereunto duly authorized.
FEDERAL SECURITY PROTECTION SERVICES, INC.
By /s/ Michael Landers by /s/ Daniel Thornton
Vice President, Finance Secretary
EXHIBIT A
EXERCISE NOTICE
(To be signed only upon exercise of the Option)
To: Federal Security Protection Services, Inc.
The undersigned, the Holder of the enclosed Option Certificate, hereby
irrevocably elects to exercise the purchase right represented by such Option
Certificate to purchase hereunder _____________________________________shares
of the Common Stock of Federal Security Protection Services, Inc. and herewith
makes payment to Federal Security Protection Services, Inc. of
$_________________, therefore and requests that the certificate or
certificates for such shares be issued in the name of, and delivered to
the undersigned.
Date:_______________ ___________________________________
___________________________________
Print Name
(Signature must conform in all
respects to name of Holder as
specified on the face of the
Option Certificate.)
Address:
___________________________________
___________________________________
Taxpayer Identification Number:
___________________________________
*/Insert the number of shares called for on the face of the Option Certificate
or, in the case of a partial exercise, the portion thereof as to which the
Option is being exercised, in either case without making any adjustment for
any stock or other securities or property or cash which, pursuant to the
adjustment provisions of the Option, may be deliverable upon exercise.
EXHIBIT B
FORM OF ASSIGNMENT
(To be signed only upon transfer of Option*)
For value received, the undersigned hereby sells, assigns and transfers
to ___________________ the right represented by the attached Option
Certificate to purchase _______________________ Option Shares of Federal
Security Protection Services, Inc., as defined in the Option Certificate,
with full power of substitution.
Dated:_______________________
_________________________________________
_________________________________________
(Print Name)
(Signature must conform in all respects
to name of Holder as specified on the
face of the Option Certificate)
Address:
_________________________________________
_________________________________________
Taxpayer Identification Number
_________________________________________
*/ The Option Certificate and the rights embodied therein may not be
transferable and can only be transferred in a manner which will not
constitute a violation of the Securities Act of 1933 (the "Act") and which
will not cause the original issuance of the Option Certificate to be a
violation of the Act. The Company may require an opinion of counsel
acceptable to the Company that any such transfer would not bring about
the results stated and, in the event the Company determines that it can
honor the request for transfer, the Company may impose such requirements
and restrictions upon the recipient as the Company deems reasonable. This
may include, but may not be limited to, the requirement that the proposed
recipient execute an investment letter in a form acceptable to the Company,
as a condition precedent to the transfer.
EXHIBIT F
THE OPTION REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS, NOR HAS THE
STOCK UNDERLYING THIS OPTION. SAID OPTION WAS ACQUIRED FOR INVESTMENT AND
MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH OPTION UNDER THE SECURITIES ACT OF
1933 AND APPLICABLE STATE SECURITIES LAWS, UNLESS IN THE OPINION OF COUNSEL
(WHICH SHALL BE REASONABLY SATISFACTORY TO THE COMPANY) THE TRANSFER WILL
VIOLATE THE REGISTRATION REQUIREMENTS OF FEDERAL OR APPLICABLE STATE
SECURITIES LAWS.
FEDERAL SECURITY PROTECTION SERVICES, INC.
OPTION TO PURCHASE COMMON STOCK
Option to Purchase
1,000,000 Shares
of Common Stock, par value $.001 per share
This is to certify that Mr. Michael T. Landers is entitled subject to the
terms and conditions hereinafter set forth, to purchase 1,000,000 shares of
the $.001 Common Stock of Federal Security Protection Services, Inc., a
corporation organized and existing under and by virtue of the laws of the
State of Delaware (the "Company") from the Company at a price per share and
on the terms set forth herein and to receive a certificate or certificates
representing said shares of Common stock so purchased on presentation and
surrender of Notice of Exercise attached hereto, together with the payment
of the purchase price of each share purchased either in cash or by way of
a certified check, or other check made payable to the order of the Company.
The purchase rights represented by this Option are exercisable at a price
per share of Common Stock of seven cents ($0.07) per share. This Option
shall be valid and binding upon the Company for a period of sixty (60)
months commencing the date of the issuance of this Option.
Subject to the terms and conditions herein contained this purchase rights
represented by this Option are exercisable at the option of the registered
owner hereof, in whole or in part, at any time, or in part from time to time,
within the life of this Option, provided, however, that these option rights
shall not be exercisable with respect to a fraction of a share of Common
Stock. If the registered owner hereof shall exercise this Option as to
less than all of the shares of Common Stock covered hereby, at any time, or
from time, during the life of this Option, this Option shall be surrendered
to the Company along with the Notice of Exercise and payment, as above stated,
and 1.1 shall be canceled. The Company shall execute and deliver a new
Option of like tenor for the balance of the shares purchasable hereunder.
The Option issued for said balance, in place of this Option, shall expire on
the same date as this Option and the issuance of a new Option for the balance
of said shares of Common Stock shall in no way extend the life of this Option.
Certain Definitions: For all purposes of this Option, unless the context
otherwise requires, the following terms shall have the following respective
meanings:
* "Additional Shares" shall mean all shares, of whatever class, issued by the
Company after the date of this Option.
* "Share Equivalent" shall mean any Convertible Security or any warrant,
option or other right to subscribe for or purchase any Additional Shares or
any Convertible Security.
* "Convertible Security" shall mean any security of the Company convertible
into or by its terms exchangeable for Additional Shares.
ARTICLE 1. Exercise of Option
1.1 Manner of Exercise: Prior to the Expiration Date, this Option may be
exercised, in whole or in part, at any time or from time to time. To
exercise, the Holder shall deliver to the Company, (a) a written notice,
in substantially the form of the Exercise of Notice, attached as Exhibit A,
of such Holder's election to exercise this Option which shall be duly executed
by the Holder, his duly authorized agent or attorney, (b) a certified or bank
cashier's check payable to the order of the Company in an amount equal to the
aggregate Exercise Price for the number of Option Shares being purchased and
(c) this Option. The Company shall, as promptly as practicable, execute and
deliver or cause to be executed and delivered in accordance with such notice,
a certificate or certificates evidencing the aggregate number of Option Shares
specified in such Notice. Such certificate or certificates shall be deemed to
have been issued, and such Holder or other person so designated shall be
deemed for all purposes to have become a holder of record of such shares, as
of the date the Notice is received by the Company. If this Option is
exercised only in part, the Company shall, at the time of delivery of the
certificate or certificates evidencing the Shares specified in such Notice,
deliver to the Holder a new Option evidencing the right to purchase the
remaining Option Shares called for by this Option, which new Option shall
in all other respects be identical to this Option. The Company shall pay
all expenses, taxes and other charges payable in connection with the issuance
and delivery of stock certificates and new Options.
1.2 Fractional Shares: No fractional Shares will be issued in connection with
any purchase in the exercise of this Option. In lieu of such fractional
shares the Company shall make a cash refund equal to the product of the
applicable fraction multiplied by the Exercise Price paid by the Holder for
one Option Share upon such exercise.
ARTICLE 2. Transfer
Subject to Compliance with the Securities Act of 1933, as amended (the
"Securities Act") this Option is transferable, in whole or in part, at
the offices of the Company by the Holder in person or by duly authorized
attorney, upon presentation of this Option certificate and an Assignment,
substantially in the form of Exhibit B hereto, properly completed and executed.
ARTICLE 3. Adjustment of Exercise Price and Number of Option Shares
The number and kind of securities purchasable upon the exercise of this Option
and the Exercise Price shall be subject to adjustment from time to time upon
the happening of certain events as follows:
3.1 Reclassification, Consolidation or Merger:
If (a) the outstanding securities of the class issuable upon exercised of this
Option are changed or reclassified (other than as a result of a division,
combination, increase or decrease in the number of such securities
outstanding) or, (b) if the Company is consolidated or merged with or into
another corporation (other than a merger with another corporation in which
the Company is the surviving corporation and which does not result in any
reclassification or change other than a division or combination of
outstanding securities issuable upon the exercise of this Option or an
increase or decrease in the number such securities outstanding) or
(c) if all or substantially all of the assets of the Company are sold
or transferred, the Company or such successor or purchasing corporation,
as the case may be, shall, without requiring any additional consideration
therefore, issue a new Option in exchange for this Option, providing that the
Holder of this Option shall have the right to exercise such new Option upon
terms not less favorable to the Holder than those then applicable to this
Option and to receive upon exercise, in lieu of each Share issuable upon
exercise of this Option, the kind and amount of shares of stock, other
securities, money or property receivable upon such reclassification, change,
consolidation, merger, sale or transfer by the Holder of one share of Common
Stock issuable upon exercise of this Option had this Option been exercised
immediately prior to such reclassification, change, consolidation, merger,
sale or transfer. Such new Option shall provide for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for
in this Article 3. The Holder shall be entitled to the benefits of the new
option immediately upon any such reclassification, change, consolidation,
merger, sale or transfer, whether or not a certificate evidencing such new
Option has been issued. The provisions of this Section 3.1 shall similarly
apply to successive reclassifications, changes, consolidations, changes,
consolidations, mergers, sales and exchanges.
3.2 Subdivision or Combination: If, while this Option remains outstanding and
unexpired, the Company subdivides or combines it outstanding securities of
the class issuable upon exercise of this Option, the Exercise Price shall,
in case of subdivision, be proportionately reduced as of the effective date
of such subdivision, or shall be, in the case of combination, proportionately
increased as of the effective date of such combination.
3.3. Stock Dividends: If the Company at any time while this Option is
outstanding and unexpired pays a dividend or makes any other distribution on
its shares payable in shares, then the Exercise Price shall be adjusted, as of
the date of such payment or other distribution to that price determined by
multiplying the Exercise Price in effect immediately prior to such payment or
other distribution by a fraction (a) the numerator of such shall be the total
number of Shares outstanding immediately prior to such dividend or
distribution and (b) the denominator of which shall be the total number of
shares outstanding immediately after such dividend or distribution.
3.4 Liquidating Dividends, Etc. If the Company at any time while this
Option is outstanding and unexpired distributes its assets to the holders
of its shares as a dividend in liquidation or partial liquidation or as a
return of capital other than as a dividend payable out of funds legally
available for dividends under the laws of the State of Delaware, the Holder
of this Option shall, upon exercise, be entitled to receive, in addition to
the number of Shares receivable, and without payment of any additional
consideration, a sum equal to the amount of such assets as would have been
payable to such Holder as owner of that number of Shares had such Holder been
the holder of record of such Common Stock on the record date for such
distribution and an appropriate provision therefore shall be made a part of
any such distribution.
3.5 Issuance of Additional Shares of Common Stock: If, while this Option
is outstanding and unexpired, the Company issues any Additional Shares
(other than as provided in Section 3.1 through 3.4) at a price per share
less than the Exercise Price, or without consideration, then the Exercise
Price upon each such issuance shall be adjusted to that price determined
by multiplying the Exercise Price by a fraction:
(a) the numerator of which shall be the number of Shares outstanding
immediately prior to issuance of such Additional Shares plus the number
of Shares which the aggregate consideration received by the Company for the
total number of Additional Shares so issued would purchase at the Exercise
Price, and
(b) the denominator of which shall be the number of shares outstanding
immediately after issuance of such Additional Shares.
This Section shall not apply under any circumstances for which adjustment
is provided in Sections 3.1, 3.2, 3.3, or 3.4. No adjustment of the Exercise
Price shall be made under this Section 3.5 upon issuance of any additional
shares which are issued pursuant to any Common Stock Equivalent if upon the
issuance of any such Common Stock Equivalent (i) any such adjustment shall
previously have been made pursuant to Section or (ii) no adjustment was
required by Section 3.6.
3.6. Issuance of Common Stock Equivalents: If, at any time while this Option
is outstanding and unexpired, the Company issues any Common Stock Equivalent
and the price per share for which Additional Shares may be issuable thereafter
pursuant to such Common Stock Equivalent shall be less than the Exercise
Price, or, if after any such issuance, the price per share for which
Additional Shares may be issuable thereafter pursuant to such Common
Stock Equivalent shall be less than the Exercise Price, or, if after any
such issuance, the price per share for which Additional Shares may be
issuable thereafter is amended, and such price as so amended shall be less
than the Exercise Price at the time of such amendment, then the Exercise
Price upon each such issuance or amendment shall be adjusted as provided
in Section 3.5 on the basis that (a) the maximum number of Additional Shares
issuable pursuant to all such Common Stock Equivalents shall be deemed to
have been issued as of the earlier of (i) the date on which the Company
shall enter into a firm contract for the issuance of such Common Stock
Equivalents or (ii) the date of actual issuance of such Common Stock
Equivalent, and (b) the aggregate consideration for such maximum of Additional
Shares shall be deemed to be the minimum consideration received and receivable
by the Company for the issuance of such Additional Shares pursuant to such
Common Stock Equivalent. No adjustment of the Exercise Price shall be made
under this Section 3.6 upon the issuance of any convertible security which
is issued pursuant to the exercise of any Options or other subscription or
purchase rights thereunder, if any adjustment shall previously have been made
in the Exercise Price then in effect upon the issuance of such Options or
other rights pursuant to this Section 3.6.
3.7 Other Provisions Applicable to Adjustments Under this Article 3. The
following provisions shall be applicable to adjustments in the Exercise Price
provided in this Article 3:
(a) Computation of Consideration. The consideration received by the Company
shall be deemed to be the following: To the extent that any Additional Shares
or any Common Stock Equivalents shall be issued for a cash consideration, the
consideration received by the Company, if such Additional Shares or Common
Stock Equivalents are offered by are sold to underwriters or dealers for
public offering without a subscription offering, the initial public offering
price, in any case excluding any amounts paid or receivable for accrued
interest or accrued dividends and without deduction of any compensation,
discounts, commissions or expenses paid or incurred by the Company for and
in the underwriting of, or otherwise in connection with, the issue of the
shares; to the extent that such issuance shall be for a consideration other
than cash, then except as herein otherwise expressly provided, the fair market
value of such consideration at the time of such issuance as determined in
good faith by the Board of Directors of the Company. The consideration for
any Additional Shares of Common Stock issuable pursuant to any Common Stock
Equivalents shall be the consideration received by the Company for issuing
such Common Stock Equivalents, plus the additional consideration payable to
the Company upon the exercise, conversion or exchange of such Common Stock
Equivalents. In case of the issuance of any Additional Shares or Common
Stock Equivalents in payment or satisfaction of any dividend upon any class
of stock other than the Shares, the Company shall be deemed to have received
for such Additional Shares or Common Stock Equivalents a consideration equal
to the amount of such dividend so paid or satisfied.
(b) Readjustment of Exercise Price. Upon the expiration of the right to
convert, exchange or exercise any Common Stock Equivalent the issuance of
which effected an adjustment in the Exercise Price, if any such Common
Stock Equivalent shall not have been converted, exercised or exchanged,
the number of shares of Common Stock deemed to be issued and outstanding by
reason of the fact that they were issuable upon conversion, exchange or
exercise of any such Common Stock Equivalent, shall no longer be computed as
set forth above and the Exercise Price shall forthwith be readjusted and
thereafter be the price which it would have been (but reflecting any other
adjustments in the Exercise Price made pursuant to the provisions of this
Article 3 after the issuance of such Common Stock Equivalent) had the
adjustment of the Exercise Price been made in accordance with the issuance or
sale of the number of Additional Shares actually issued upon conversion,
exchange or issuance of such Common Stock Equivalent and thereupon only the
number of Additional Shares actually so issued shall be deemed to have been
issued and only the consideration actually received by the Company (computed
as in clause (a) of this section 3.7) shall be deemed to have been received
by the Company.
(c) Treasury Shares: The number of shares at any time outstanding shall not
include any shares directly or indirectly owned or held by for the account of
the Company or any of its subsidiaries.
3.8 Other Action Affecting Common Stock. If the Company shall take any action
affecting its shares, other than an action described Sections 3.1 through
3.7, inclusive, which, in the opinion of the Board of Directors would have a
materially adverse affect upon the rights or the holder of this Option, the
Exercise Price shall be adjusted in such manner and at such time as the Board
of Directors may in good faith determine to equitable in the circumstances.
3.9 Adjustment of Number of Shares. Upon each adjustment in the Exercise
Price pursuant to any provision of this Article 3, the number of shares
purchasable shall be adjusted, to the nearest whole share, to the product
obtained by multiplying such number of shares purchasable immediately prior to
such adjustment in the Exercise Price by a fraction, the numerator of which
shall the Exercise Price immediately prior to such adjustment and the
denominator of which shall be the Exercise Price immediately thereafter.
3.10. Notice of Adjustments. Whenever the Exercise Price shall be adjusted,
the Company shall make a certificate signed by its President or Vice President
and by its Treasurer, Assistant Treasurer, Secretary or Assistant Secretary,
(if not referred to be said titles said certificate shall be signed by the
Company's Chief Executive Officer and its Chief Financial Officer or the deputy
to each such person) setting forth in detail, the event requiring adjustment,
the amount of adjustment, the method of calculating such adjustment (including
describing the basis on which the Board of Directors made its determination)
and the Exercise Price after giving effect to such adjustment and, promptly
after each such adjustment, shall cause copies of such certificate to be
mailed (by first class mail postage prepaid) to the Holder. A
determination of any adjustment to the Exercise Price or the number or
kind of shares or other securities issuable upon exercise of this Option,
made by independent certified public accountants selected by the Company,
shall be final and binding upon all parties.
ARTICLE 4. Further Covenants of the Company
4.1 Option Share. The Company covenants and agrees that all shares which may
be issued upon exercise of this Option, will, upon issuance, be duly and
validly issued, fully paid, non-assessable and free from all taxes, liens and
charges. The Company further covenants and agrees that during the period
within which the rights represented by this Option may be exercised, the
Company shall at all times have authorized and reserved for the purpose of
issuance upon exercise of the purchase rights evidenced by this Option, a
sufficient number of shares of its capital stock to provide for the exercise
of the rights represented by this Option and of Common Shares into which the
Common Shares are convertible.
4.2 Exchange of Options. Upon surrender for exchange or transfer of any
Option Certificate, properly endorsed to the Company, the Company at the
Holder's expense will promptly issue and deliver to or upon the order of
the Holder a new Option Certificate or certificates of like tenor, in the
name of such Holder or as such holder as Holder may direct. Until transfer
of this Option Certificate on the books of the Company, the Company may
treat the registered Holder hereof as the owner for all purposes.
ARTICLE 5. Negation of Voting and Dividend Rights
This Option shall not entitle Holder to any voting rights or other rights as
a holder of stock of the Company, or to any other rights whatsoever, except
the rights herein expressed. No dividends of any kind or character, shall be
payable or accrue in respect to this Option or the interest represented
hereby or the Common Stock purchasable hereunder or the Common Stock into
which said Common Stock shall be convertible, unless and until this Option
is exercised and if exercised, then only to the extent that it is exercised.
ARTICLE 5. Governing Law.
This Option shall be governed and construed in accordance with the laws of
the State of Delaware without giving effect to the principles of conflicts of
law.
IN WITNESS WHEREOF, the Company has caused this Option Certificate to be
executed on this 1st day of September 2002, by its proper corporate officers
thereunto duly authorized.
FEDERAL SECURITY PROTECTION SERVICES, INC.
By /s/ Gary S. O'Neal by /s/ Daniel Thornton
President Secretary
EXHIBIT A
EXERCISE NOTICE
(To be signed only upon exercise of the Option)
To: Federal Security Protection Services, Inc.
The undersigned, the Holder of the enclosed Option Certificate, hereby
irrevocably elects to exercise the purchase right represented by such
Option Certificate to purchase hereunder
_____________________________________shares of the Common Stock of
Federal Security Protection Services, Inc. and herewith makes payment
to Federal Security Protection Services, Inc. of $_________________,
therefore and requests that the certificate or certificates for such shares
be issued in the name of, and delivered to the undersigned.
Date:_______________ ___________________________________
___________________________________
Print Name
(Signature must conform in all
respects to name of Holder as
specified on the face of the
Option Certificate.)
Address:
___________________________________
___________________________________
Taxpayer Identification Number:
___________________________________
*/Insert the number of shares called for on the face of the Option Certificate
or, in the case of a partial exercise, the portion thereof as to which the
Option is being exercised, in either case without making any adjustment for
any stock or other securities or property or cash which, pursuant to the
adjustment provisions of the Option, may be deliverable upon exercise.
EXHIBIT B
FORM OF ASSIGNMENT
(To be signed only upon transfer of Option*)
For value received, the undersigned hereby sells, assigns and
transfers to ___________________ the right represented by the attached
Option Certificate to purchase _______________________ Option Shares of
Federal Security Protection Services, Inc., as defined in the Option
Certificate, with full power of substitution.
Dated:_______________________
_________________________________________
_________________________________________
(Print Name)
(Signature must conform in all respects
to name of Holder as specified on the
face of the Option Certificate)
Address:
_________________________________________
_________________________________________
Taxpayer Identification Number
_________________________________________
*/ The Option Certificate and the rights embodied therein may not be
transferable and can only be transferred in a manner which will not
constitute a violation of the Securities Act of 1933 (the "Act") and which
will not cause the original issuance of the Option Certificate to be a
violation of the Act. The Company may require an opinion of counsel
acceptable to the Company that any such transfer would not bring about the
results stated and, in the event the Company determines that it can honor the
request for transfer, the Company may impose such requirements and
restrictions upon the recipient as the Company deems reasonable. This may
include, but may not be limited to, the requirement that the proposed
recipient execute an investment letter in a form acceptable to the
Company, as a condition precedent to the transfer.
EXHIBIT G
THE OPTION REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS, NOR HAS THE
STOCK UNDERLYING THIS OPTION. SAID OPTION WAS ACQUIRED FOR INVESTMENT AND
MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH OPTION UNDER THE SECURITIES ACT OF
1933 AND APPLICABLE STATE SECURITIES LAWS, UNLESS IN THE OPINION OF COUNSEL
(WHICH SHALL BE REASONABLY SATISFACTORY TO THE COMPANY) THE TRANSFER WILL
VIOLATE THE REGISTRATION REQUIREMENTS OF FEDERAL OR APPLICABLE STATE
SECURITIES LAWS.
FEDERAL SECURITY PROTECTION SERVICES, INC.
OPTION TO PURCHASE COMMON STOCK
Option to Purchase
1,000,000 Shares
of Common Stock, par value $.001 per share
This is to certify that Mr. Edward E. Reynolds is entitled subject to the
terms and conditions hereinafter set forth, to purchase 1,000,000 shares of
the $.001 Common Stock of Federal Security Protection Services, Inc., a
corporation organized and existing under and by virtue of the laws of the
State of Delaware (the "Company") from the Company at a price per share and
on the terms set forth herein and to receive a certificate or certificates
representing said shares of Common stock so purchased on presentation and
surrender of Notice of Exercise attached hereto, together with the payment of
the purchase price of each share purchased either in cash or by way of a
certified check, or other check made payable to the order of the Company.
The purchase rights represented by this Option are exercisable at a price per
share of Common Stock of seven cents ($0.07) per share. This Option shall be
valid and binding upon the Company for a period of sixty (60) months
commencing the date of the issuance of this Option.
Subject to the terms and conditions herein contained this purchase rights
represented by this Option are exercisable at the option of the registered
owner hereof, in whole or in part, at any time, or in part from time to time,
within the life of this Option, provided, however, that these option rights
shall not be exercisable with respect to a fraction of a share of Common
Stock. If the registered owner hereof shall exercise this Option as to less
than all of the shares of Common Stock covered hereby, at any time, or from
time, during the life of this Option, this Option shall be surrendered to the
Company along with the Notice of Exercise and payment, as above stated, and
1.1 shall be canceled. The Company shall execute and deliver a new Option of
like tenor for the balance of the shares purchasable hereunder. The Option
issued for said balance, in place of this Option, shall expire on the same
date as this Option and the issuance of a new Option for the balance of said
shares of Common Stock shall in no way extend the life of this Option.
Certain Definitions: For all purposes of this Option, unless the context
otherwise requires, the following terms shall have the following respective
meanings:
* "Additional Shares" shall mean all shares, of whatever class, issued by
the Company after the date of this Option.
* "Share Equivalent" shall mean any Convertible Security or any warrant,
option or other right to subscribe for or purchase any Additional Shares or
any Convertible Security.
* "Convertible Security" shall mean any security of the Company convertible
into or by its terms exchangeable for Additional Shares.
ARTICLE 1. Exercise of Option
1.1 Manner of Exercise: Prior to the Expiration Date, this Option may be
exercised, in whole or in part, at any time or from time to time. To
exercise, the Holder shall deliver to the Company, (a) a written notice,
in substantially the form of the Exercise of Notice, attached as Exhibit
A, of such Holder's election to exercise this Option which shall be duly
executed by the Holder, his duly authorized agent or attorney, (b) a
certified or bank cashier's check payable to the order of the Company in
an amount equal to the aggregate Exercise Price for the number of Option
Shares being purchased and (c) this Option. The Company shall, as promptly
as practicable, execute and deliver or cause to be executed and delivered
in accordance with such notice, a certificate or certificates evidencing
the aggregate number of Option Shares specified in such Notice. Such
certificate or certificates shall be deemed to have been issued, and such
Holder or other person so designated shall be deemed for all purposes to have
become a holder of record of such shares, as of the date the Notice is
received by the Company. If this Option is exercised only in part, the
Company shall, at the time of delivery of the certificate or certificates
evidencing the Shares specified in such Notice, deliver to the Holder a new
Option evidencing the right to purchase the remaining Option Shares called
for by this Option, which new Option shall in all other respects be identical
to this Option. The Company shall pay all expenses, taxes and other charges
payable in connection with the issuance and delivery of stock certificates
and new Options.
1.2 Fractional Shares: No fractional Shares will be issued in connection with
any purchase in the exercise of this Option. In lieu of such fractional
shares the Company shall make a cash refund equal to the product of the
applicable fraction multiplied by the Exercise Price paid by the Holder for
one Option Share upon such exercise.
ARTICLE 2. Transfer
Subject to Compliance with the Securities Act of 1933, as amended
(the "Securities Act") this Option is transferable, in whole or in part,
at the offices of the Company by the Holder in person or by duly authorized
attorney, upon presentation of this Option certificate and an Assignment,
substantially in the form of Exhibit B hereto, properly completed and executed.
ARTICLE 3. Adjustment of Exercise Price and Number of Option Shares
The number and kind of securities purchasable upon the exercise of this
Option and the Exercise Price shall be subject to adjustment from time to
time upon the happening of certain events as follows:
3.1 Reclassification, Consolidation or Merger:
If (a) the outstanding securities of the class issuable upon exercised of this
Option are changed or reclassified (other than as a result of a division,
combination, increase or decrease in the number of such securities
outstanding) or, (b) if the Company is consolidated or merged with or into
another corporation (other than a merger with another corporation in which the
Company is the surviving corporation and which does not result in any
reclassification or change other than a division or combination of
outstanding securities issuable upon the exercise of this Option or an
increase or decrease in the number such securities outstanding) or (c) if
all or substantially all of the assets of the Company are sold or transferred,
the Company or such successor or purchasing corporation, as the case may be,
shall, without requiring any additional consideration therefore, issue a new
Option in exchange for this Option, providing that the Holder of this Option
shall have the right to exercise such new Option upon terms not less favorable
to the Holder than those then applicable to this Option and to receive upon
exercise, in lieu of each Share issuable upon exercise of this Option, the
kind and amount of shares of stock, other securities, money or property
receivable upon such reclassification, change, consolidation, merger, sale or
transfer by the Holder of one share of Common Stock issuable upon exercise of
this Option had this Option been exercised immediately prior to such
reclassification, change, consolidation, merger, sale or transfer. Such new
Option shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article 3. The
Holder shall be entitled to the benefits of the new option immediately upon
any such reclassification, change, consolidation, merger, sale or transfer,
whether or not a certificate evidencing such new Option has been issued.
The provisions of this Section 3.1 shall similarly apply to successive
reclassifications, changes, consolidations, changes, consolidations, mergers,
sales and exchanges.
3.2 Subdivision or Combination: If, while this Option remains outstanding
and unexpired, the Company subdivides or combines it outstanding securities
of the class issuable upon exercise of this Option, the Exercise Price shall,
in case of subdivision, be proportionately reduced as of the effective date of
such subdivision, or shall be, in the case of combination, proportionately
increased as of the effective date of such combination.
3.3. Stock Dividends: If the Company at any time while this Option is
outstanding and unexpired pays a dividend or makes any other distribution on
its shares payable in shares, then the Exercise Price shall be adjusted, as
of the date of such payment or other distribution to that price determined
by multiplying the Exercise Price in effect immediately prior to such payment
or other distribution by a fraction (a) the numerator of such shall be the
total number of Shares outstanding immediately prior to such dividend or
distribution and (b) the denominator of which shall be the total number of
shares outstanding immediately after such dividend or distribution.
3.4 Liquidating Dividends, Etc. If the Company at any time while this Option
is outstanding and unexpired distributes its assets to the holders of its
shares as a dividend in liquidation or partial liquidation or as a return of
capital other than as a dividend payable out of funds legally available for
dividends under the laws of the State of Delaware, the Holder of this Option
shall, upon exercise, be entitled to receive, in addition to the number of
Shares receivable, and without payment of any additional consideration, a sum
equal to the amount of such assets as would have been payable to such Holder
as owner of that number of Shares had such Holder been the holder of record
of such Common Stock on the record date for such distribution and an
appropriate provision therefore shall be made a part of any such distribution.
3.5 Issuance of Additional Shares of Common Stock: If, while this Option is
outstanding and unexpired, the Company issues any Additional Shares (other
than as provided in Section 3.1 through 3.4) at a price per share less
than the Exercise Price, or without consideration, then the Exercise Price
upon each such issuance shall be adjusted to that price determined by
multiplying the Exercise Price by a fraction:
(a) the numerator of which shall be the number of Shares outstanding
immediately prior to issuance of such Additional Shares plus the number
of Shares which the aggregate consideration received by the Company for
the total number of Additional Shares so issued would purchase at the
Exercise Price, and
(b) the denominator of which shall be the number of shares outstanding
immediately after issuance of such Additional Shares.
This Section shall not apply under any circumstances for which adjustment
is provided in Sections 3.1, 3.2, 3.3, or 3.4. No adjustment of the Exercise
Price shall be made under this Section 3.5 upon issuance of any additional
shares which are issued pursuant to any Common Stock Equivalent if upon the
issuance of any such Common Stock Equivalent (i) any such adjustment shall
previously have been made pursuant to Section or (ii) no adjustment was
required by Section 3.6.
3.6. Issuance of Common Stock Equivalents: If, at any time while this Option
is outstanding and unexpired, the Company issues any Common Stock Equivalent
and the price per share for which Additional Shares may be issuable
thereafter pursuant to such Common Stock Equivalent shall be less than the
Exercise Price, or, if after any such issuance, the price per share for which
Additional Shares may be issuable thereafter pursuant to such Common Stock
Equivalent shall be less than the Exercise Price, or, if after any such
issuance, the price per share for which Additional Shares may be issuable
thereafter is amended, and such price as so amended shall be less than the
Exercise Price at the time of such amendment, then the Exercise Price upon
each such issuance or amendment shall be adjusted as provided in Section 3.5
on the basis that (a) the maximum number of Additional Shares issuable
pursuant to all such Common Stock Equivalents shall be deemed to have been
issued as of the earlier of (i) the date on which the Company shall enter
into a firm contract for the issuance of such Common Stock Equivalents
or (ii) the date of actual issuance of such Common Stock Equivalent, and
(b) the aggregate consideration for such maximum of Additional Shares shall
be deemed to be the minimum consideration received and receivable by the
Company for the issuance of such Additional Shares pursuant to such Common
Stock Equivalent. No adjustment of the Exercise Price shall be made under
this Section 3.6 upon the issuance of any convertible security which is
issued pursuant to the exercise of any Options or other subscription or
purchase rights thereunder, if any adjustment shall previously have been made
in the Exercise Price then in effect upon the issuance of such Options or
other rights pursuant to this Section 3.6.
3.7 Other Provisions Applicable to Adjustments Under this Article 3. The
following provisions shall be applicable to adjustments in the Exercise Price
provided in this Article 3:
(a) Computation of Consideration. The consideration received by the
Company shall be deemed to be the following: To the extent that any
Additional Shares or any Common Stock Equivalents shall be issued for
a cash consideration, the consideration received by the Company, if such
Additional Shares or Common Stock Equivalents are offered by are sold to
underwriters or dealers for public offering without a subscription offering,
the initial public offering price, in any case excluding any amounts paid
or receivable for accrued interest or accrued dividends and without deduction
of any compensation, discounts, commissions or expenses paid or incurred by
the Company for and in the underwriting of, or otherwise in connection with,
the issue of the shares; to the extent that such issuance shall be for a
consideration other than cash, then except as herein otherwise expressly
provided, the fair market value of such consideration at the time of such
issuance as determined in good faith by the Board of Directors of the
Company. The consideration for any Additional Shares of Common Stock
issuable pursuant to any Common Stock Equivalents shall be the consideration
received by the Company for issuing such Common Stock Equivalents, plus
the additional consideration payable to the Company upon the exercise,
conversion or exchange of such Common Stock Equivalents. In case of the
issuance of any Additional Shares or Common Stock Equivalents in payment
or satisfaction of any dividend upon any class of stock other than the Shares,
the Company shall be deemed to have received for such Additional Shares or
Common Stock Equivalents a consideration equal to the amount of such dividend
so paid or satisfied.
(b) Readjustment of Exercise Price. Upon the expiration of the right to
convert, exchange or exercise any Common Stock Equivalent the issuance of
which effected an adjustment in the Exercise Price, if any such Common Stock
Equivalent shall not have been converted, exercised or exchanged, the number
of shares of Common Stock deemed to be issued and outstanding by reason of the
fact that they were issuable upon conversion, exchange or exercise of any
such Common Stock Equivalent, shall no longer be computed as set forth above
and the Exercise Price shall forthwith be readjusted and thereafter be the
price which it would have been (but reflecting any other adjustments in the
Exercise Price made pursuant to the provisions of this Article 3 after the
issuance of such Common Stock Equivalent) had the adjustment of the Exercise
Price been made in accordance with the issuance or sale of the number of
Additional Shares actually issued upon conversion, exchange or issuance of
such Common Stock Equivalent and thereupon only the number of Additional
Shares actually so issued shall be deemed to have been issued and only the
consideration actually received by the Company (computed as in clause (a) of
this section 3.7) shall be deemed to have been received by the Company.
(c) Treasury Shares: The number of shares at any time outstanding shall not
include any shares directly or indirectly owned or held by for the account of
the Company or any of its subsidiaries.
3.8 Other Action Affecting Common Stock. If the Company shall take any action
affecting its shares, other than an action described Sections 3.1 through 3.7,
inclusive, which, in the opinion of the Board of Directors would have a
materially adverse affect upon the rights or the holder of this Option,
the Exercise Price shall be adjusted in such manner and at such time as the
Board of Directors may in good faith determine to equitable in the
circumstances.
3.9 Adjustment of Number of Shares. Upon each adjustment in the Exercise
Price pursuant to any provision of this Article 3, the number of shares
purchasable shall be adjusted, to the nearest whole share, to the product
obtained by multiplying such number of shares purchasable immediately prior
to such adjustment in the Exercise Price by a fraction, the numerator of
which shall the Exercise Price immediately prior to such adjustment and the
denominator of which shall be the Exercise Price immediately thereafter.
3.10. Notice of Adjustments. Whenever the Exercise Price shall be adjusted,
the Company shall make a certificate signed by its President or Vice
President and by its Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary, (if not referred to be said titles said certificate
shall be signed by the Company's Chief Executive Officer and its Chief
Financial Officer or the deputy to each such person) setting forth in
detail, the event requiring adjustment, the amount of adjustment, the
method of calculating such adjustment (including describing the basis
on which the Board of Directors made its determination) and the Exercise
Price after giving effect to such adjustment and, promptly after each
such adjustment, shall cause copies of such certificate to be mailed (by
first class mail postage prepaid) to the Holder. A determination of
any adjustment to the Exercise Price or the number or kind of shares or
other securities issuable upon exercise of this Option, made by independent
certified public accountants selected by the Company, shall be final and
binding upon all parties.
ARTICLE 4. Further Covenants of the Company
4.1 Option Share. The Company covenants and agrees that all shares which may
be issued upon exercise of this Option, will, upon issuance, be duly and
validly issued, fully paid, non-assessable and free from all taxes, liens and
charges. The Company further covenants and agrees that during the period
within which the rights represented by this Option may be exercised, the
Company shall at all times have authorized and reserved for the purpose of
issuance upon exercise of the purchase rights evidenced by this Option, a
sufficient number of shares of its capital stock to provide for the exercise
of the rights represented by this Option and of Common Shares into which the
Common Shares are convertible.
4.2 Exchange of Options. Upon surrender for exchange or transfer of any
Option Certificate, properly endorsed to the Company, the Company at the
Holder's expense will promptly issue and deliver to or upon the order of
the Holder a new Option Certificate or certificates of like tenor, in the
name of such Holder or as such holder as Holder may direct. Until transfer
of this Option Certificate on the books of the Company, the Company may
treat the registered Holder hereof as the owner for all purposes.
ARTICLE 5. Negation of Voting and Dividend Rights
This Option shall not entitle Holder to any voting rights or other rights as a
holder of stock of the Company, or to any other rights whatsoever, except the
rights herein expressed. No dividends of any kind or character, shall be
payable or accrue in respect to this Option or the interest represented hereby
or the Common Stock purchasable hereunder or the Common Stock into which said
Common Stock shall be convertible, unless and until this Option is exercised
and if exercised, then only to the extent that it is exercised.
ARTICLE 5. Governing Law.
This Option shall be governed and construed in accordance with the laws of
the State of Delaware without giving effect to the principles of conflicts of
law.
IN WITNESS WHEREOF, the Company has caused this Option Certificate to be
executed on this 1st day of September 2002, by its proper corporate officers
thereunto duly authorized.
FEDERAL SECURITY PROTECTION SERVICES, INC.
By /s/ Gary S. O'Neal by /s/ Daniel Thornton
President Secretary
EXHIBIT A
EXERCISE NOTICE
(To be signed only upon exercise of the Option)
To: Federal Security Protection Services, Inc.
The undersigned, the Holder of the enclosed Option Certificate, hereby
irrevocably elects to exercise the purchase right represented by such Option
Certificate to purchase hereunder _____________________________________shares
of the Common Stock of Federal Security Protection Services, Inc. and herewith
makes payment to Federal Security Protection Services, Inc.
of $_________________, therefore and requests that the certificate or
certificates for such shares be issued in the name of, and delivered to
the undersigned.
Date:_______________ ___________________________________
___________________________________
Print Name
(Signature must conform in all
respects to name of Holder as
specified on the face of the
Option Certificate.)
Address:
___________________________________
___________________________________
Taxpayer Identification Number:
___________________________________
*/Insert the number of shares called for on the face of the Option
Certificate or, in the case of a partial exercise, the portion thereof
as to which the Option is being exercised, in either case without making
any adjustment for any stock or other securities or property or cash which,
pursuant to the adjustment provisions of the Option, may be deliverable upon
exercise.
EXHIBIT B
FORM OF ASSIGNMENT
(To be signed only upon transfer of Option*)
For value received, the undersigned hereby sells, assigns and transfers
to ___________________ the right represented by the attached Option
Certificate to purchase _______________________ Option Shares of Federal
Security Protection Services, Inc., as defined in the Option Certificate,
with full power of substitution.
Dated:_______________________
_________________________________________
_________________________________________
(Print Name)
(Signature must conform in all
respects to name of Holder as
specified on the face of the
Option Certificate)
Address:
_________________________________________
_________________________________________
Taxpayer Identification Number
_________________________________________
*/ The Option Certificate and the rights embodied therein may not be
transferable and can only be transferred in a manner which will not constitute
a violation of the Securities Act of 1933 (the "Act") and which will not cause
the original issuance of the Option Certificate to be a violation of the Act.
The Company may require an opinion of counsel acceptable to the Company that
any such transfer would not bring about the results stated and, in the event
the Company determines that it can honor the request for transfer, the Company
may impose such requirements and restrictions upon the recipient as the
Company deems reasonable. This may include, but may not be limited to, the
requirement that the proposed recipient execute an investment letter in a form
acceptable to the Company, as a condition precedent to the transfer.
(2)
81
91
102
115