UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
(X) QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2000
( ) TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT
For the transition period from to
Commission file number 0-2749
DISTINCTIVE DEVICES, INC.
(Name of small business issuer in its charter)
New York 13-1999951
(State of incorporation or organization) (IRS Identification No.)
110 E. Atlantic Avenue, Suite 230, Delray Beach, Florida 33444
(Address of principal executive offices) (Zip Code)
Issuer's telephone number: (561)274-4233
N/A
(Issuer's former address)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes(X) No( )
17,163,404 shares of issuer's common stock, $.05 par value, were outstanding at
April 30, 2000. Issuer has no other class of common equity.
[1]
<PAGE>
INDEX
Page
PART I - FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
Condensed Consolidated Balance Sheets--
March 31, 2000 3
Condensed Consolidated Statements Of Operations--
Three months ended March 31, 2000 and 1999
February 5, 1998 Inception to March 31, 2000 4
Condensed Consolidated Statements Of Changes In
Stockholders' Equity--
Inception to March 31, 2000 5
Condensed Consolidated Statements Of Cash Flows--
Three months ended March 31, 2000 and 1999
February 5, 1998 Inception to March 31, 2000 6
Notes To The Condensed Consolidated Financial
Statements 7
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF
OPERATION 8
PART II - OTHER INFORMATION
Item 2. CHANGES IN SECURITIES 10
Item 5. OTHER INFORMATION 10
Item 6. EXHIBITS AND REPORTS ON FROM 8-K 11
SIGNATURES 11
[2]
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. - FINANCIAL STATEMENTS
DISTINCTIVE DEVICES, INC. AND SUBSIDIARY
(Development Stage Companies)
CONDENSED CONSOLIDATED BALANCE SHEET
(unaudited)
March 31,
2000
ASSETS
CURRENT ASSETS
Cash $ 2,724,207
Due from Related Parties
---------
Total Current Assets 2,724,207
PROPERTY AND EQUIPMENT, Net 498,431
OTHER ASSETS 27,582
--------
$ 3,250,220
=========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts Payable and Accrued Liabilities $ 23,047
Due to Related Parties
---------
Total Current Liabilities 23,047
---------
COMMITMENTS
MINORITY INTEREST
STOCKHOLDERS' EQUITY
Preferred Stock, Par Value $1; Authorized
1,000,000 Shares, Issued 0 Shares
Common Stock, Par Value $.05; Authorized
20,000,000 Shares 858,170
Additional Paid-In Capital 3,396,717
Deficit Accumulated During
the Development Stage (1,027,714)
---------
3,227,173
---------
$ 3,250,220
=========
The Accompanying Notes are an Integral Part of These Financial Statements
[3]
<PAGE>
DISTINCTIVE DEVICES, INC. AND SUBSIDIARY
(Development Stage Companies)
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
Period From
February 5,1998
Three Months Ended March 31, (Inception) to
2000 1999 March 31, 2000
Revenue $ $ $
General and Administrative Expenses 499,775 87,161 1,237,579
------- ------ ---------
Operating Loss (499,775) (87,161) (1,237,579)
Interest and Other Income 6,199 17,999
----- ------ ------
(493,576) (87,161) (1,219,580)
Minority Interest 51,628 2,963 170,673
Net Loss $ (441,948) $ (84,198) $(1,048,907)
======= ====== =========
Weighted Average Shares of
Common Stock Outstanding 14,510,235 6,000,000 8,147,442
Loss Per Share - Basic and Diluted $ (0.03) $ (0.01) $ (0.13)
========= ========= =========
The Accompanying Notes are an Integral Part of These Financial Statements
[4]
<PAGE>
DISTINCTIVE DEVICES, INC. AND SUBSIDIARY
(Development Stage Companies)
CONDENSED CONSOLIDATED STATEMENTS OF
CHANGES IN STOCKHOLDERS' EQUITY
(unaudited)
Deficit
Additional Accumulated
Common Stock Paid-in During the
Shares Amount Capital Development Stage
Initial Issuance
of Shares for Cash 6,000,000 $300,000 $ (299,700) $
Net Loss - - - (195)
--------- ------- ------- ---
Balance at
December 31, 1998 6,000,000 300,000 (299,700) (195)
Issuance of Shares
for Cash 2,051,340 102,567 699,597
Acquisition of Net
Assets on
Recapitalization 4,119,902 205,995 (1,666)
Issuance of Shares
for Services 121,712 6,086 85,198
Net Loss (606,764)
--------- ------- ------ -------
Balance at
December 31, 1999 12,292,954 614,648 483,429 (606,959)
(unaudited)
Issuance of Shares
for Cash (Note 4) 3,156,810 157,841 2,998,969
Issuance of Shares
for Minority Interest 1,713,640 85,681 (85,681)
Reduction of Minority
Interest 21,193
Net Loss (441,948)
--------- ------- --------- -------
Balance at
March 31, 2000
(unaudited) 17,163,404 $858,170 $3,396,717 $(1,027,714)
The Accompanying Notes are an Integral Part of These Financial Statements
[5]
<PAGE>
DISTINCTIVE DEVICES, INC. AND SUBSIDIARY
(Development Stage Companies)
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
Period From
February 5, 1998
Three Months Ended March 31, (Inception) to
2000 1999 March 31, 2000
CASH FLOWS FROM OPERATING
ACTIVITIES $ (578,860) $ (72,479) $(1,293,202)
CASH FLOWS FROM
INVESTING ACTIVITIES
Purchase of Property and Equipment (283,002) (19,916) (532,635)
Cash Effect of Recapitalization 398,904
------- ------ -------
Net Cash Used in Investing
Activities (283,002) (19,916) (133,731)
------- ------ -------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from Issuance of
Common Stock 3,156,810 204,120 4,151,140
--------- ------- ---------
Increase in Cash 2,294,948 111,725 2,724,207
Cash:
Beginning 429,259 5
------- ------- --------
Ending $ 2,724,207 $ 111,730 $ 2,724,207
========= ======= =========
The Accompanying Notes are an Integral Part of These Financial Statements
[6]
<PAGE>
DISTINCTIVE DEVICES, INC. AND SUBSIDIARY
(Development Stage Companies)
NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1: BASIS OF CONSOLIDATION
The accompanying unaudited condensed consolidated financial statements include
the accounts of Distinctive Devices, Inc. ("DDI") and its subsidiary, EagleView
Industries, Inc. (EagleView).
NOTE 2: INTERIM FINANCIAL DATA
In the opinion of management, the accompanying unaudited financial statements
have been prepared by the Company pursuant to the rules and regulations of the
Securities and Exchange Commission and generally accepted accounting principles
for interim financial information. These financial statements do not include
all of the information and footnotes required by generally accepted accounting
principles for complete financial statements. The annual financial statements
of the Company as of December 31, 1999 should be read in conjunction with these
statements. The financial information included herein has not been audited.
However, management believes the accompanying unaudited interim financial
statements contain all adjustments, consisting of only normal recurring
adjustments, necessary to present fairly the consolidated financial position of
the Company as of March 31, 2000 and the results of their operations and cash
flows for the three months ended March 31, 2000 and 1999. The re sults of
operations and cash flows for the period are not necessarily indicative of the
results of operations or cash flows for the year ending December 31, 2000.
NOTE 3: CAPITAL STRUCTURE
Preferred Stock
The Company has 1,000,000 shares of preferred stock (par value $1) authorized.
The Board has authority to issue the shares in one or more series and to fix
the designation preferences, powers and other rights as it deems appropriate.
No shares of preferred stock have been issued.
Common Stock
The Company has 20,000,000 shares of common stock (par value $.05) authorized.
Common stock has one vote per share for the election of directors and all other
matters submitted to a vote of stockholders. Shares of common stock do not
have cumulative voting, preemptive, redemption or conversion rights.
[7]
<PAGE>
DISTINCTIVE DEVICES, INC. AND SUBSIDIARY
(Development Stage Companies)
NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 4: PRIVATE PLACEMENT
During the quarter ended March 31, 2000, DDI offered in a private placement,
shares of its $.05 par value common stock, at a price of $1 per share. The
shares were offered on a best efforts basis with no minimum and DDI issued an
aggregate of 3,156,810 shares of its common stock for $3,156,810 in cash.
NOTE 5: MINORITY INTEREST
During the quarter ended March 31, 2000, DDI exchanged 1,713,640 shares of its
common stock for 856,820 shares of EagleView common stock held by minority
shareholders. As a result of this transaction, at March 31, 2000, DDI owned
approximately 97.9% of the outstanding shares of EagleView. As this is a
continuation of the August 10, 1999 recapitalization, no goodwill has been
recorded and only an adjustment to additional paid-in capital has been made for
the resultant differences in par value.
As a result of the EagleView stockholders' deficit, the minority interest has
been reduced to zero with a corresponding offset to equity.
NOTE 6: SUBSEQUENT EVENT
The Company has signed a letter of intent to acquire a satellite teleport
business, consisting of two privately held companies, for a combination of cash
and the Company's common stock.
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
Plan of Operation
The plan of operation described in our Annual Report on Form 10-KSB for
the fiscal year ended December 31, 1999 (filed March 30, 2000), remains
unchanged. As reported therein, and in Notes to the Financial Statements in
the preceding Item of this Report, more than $3 million in new equity was
raised during the quarter ended March 31, 2000. At the end of the quarter $2.7
million in cash remained available. This sum is sufficient to fund the plan of
operation, including working capital requirements for the next 12 months.
During the quarter ended March 31, 2000, our subsidiary, EagleView
Industries, Inc. ("EagleView"), completed construction of its antenna array
tower atop a building in Union City, New Jersey. The tower is intended to
provide low cost, two-way, high-speed, broadband wireless Internet access for
prospective subscribers located in Manhattan and northeast New Jersey. Costs
were fully covered by available equity capital.
[8]
<PAGE>
During February and March 2000, we exchanged 1,713,640 shares of our
common stock for most of the common stock of EagleView which was not acquired
when we exchanged 8,051,340 shares of our stock for 80.7% of EagleView's equity
on August 10, 1999. Following this latest exchange the Company holds 97.9% of
EagleView's outstanding shares. Another exchange offer will be made, later
this year, to acquire the 2.1% remainder.
As a consequence of this latest exchange we will issue to a finder 17,136
shares of our common stock. The finder received 121,712 shares after the
initial exchange on August 10, 1999.
The Company has had no operating revenue to the date of this Report.
Subsequent Events
a) On May 10, 2000, EagleView's New Jersey array tower was connected to the
local loop maintained by BellAtlantic for T-3 Internet service. The final
connection, between the local loop and the Internet backbone access to be
provided by MCIWorldCom, should be completed within days. T-3 service is
required in order to provide the full range of intended Internet services to
multiple prospective subscribers in the New York City area. Given this
imminent final connection, commercial operations are expected to begin within
weeks.
b) On April 5, 2000, the Company announced it had executed a letter of intent
to acquire a satellite teleport business. Two privately-held companies are
involved, under common ownership.
One firm holds domestic and international licenses to provide uplink and
downlink satellite circuits to its customers for data, video, Internet and
compressed voice connectivity. The second firm is a system integrator, which
designs, equips and installs, on a turnkey basis, satellite teleport facilities
for other companies.
Based upon unaudited financial information provided by the prospective
acquirees, their combined sales for calendar year 1999 exceeded $6 million with
pre-tax earnings over $800,000. The financial statements will be audited by
our independent accountants. Completion of the transaction is subject to
execution of a mutually acceptable definitive purchase and sale agreement.
The announced acquisition price is $6 million, to consist of cash and the
Company's common stock. While we believe that the cash portion can be funded
by the private sale of our restricted common stock, there can be no assurance
that such funds will be available.
[9]
<PAGE>
Risks and Uncertainties
STATEMENTS CONTAINED HEREIN AND ELSEWHERE IN THIS REPORT CONCERNING FUTURE
ACTIVITIES, PERFORMANCE OR INTENTIONS ARE FORWARD-LOOKING STATEMENTS WHICH, BY
THEIR NATURE, INVOLVE RISK AND UNCERTAINTY BECAUSE THEY RELATE TO EVENTS, AND
DEPEND ON CIRCUMSTANCES, THAT WILL OCCUR IN THE FUTURE, MANY OF WHICH ARE NOT
WITHIN THE COMPANY'S CONTROL. ACTUAL RESULTS AND EVENTS MAY DIFFER MATERIALLY
FROM THOSE EXPRESSED OR IMPLIED BY SUCH STATEMENTS AS THE RESULT OF KNOWN OR
UNKNOWN RISKS, UNCERTAINTIES AND/OR OTHER FACTORS AND THERE CAN BE NO ASSURANCE
THAT SUCH EXPECTATIONS WILL PROVE CORRECT.
PART II OTHER INFORMATION
Item 2. CHANGES IN SECURITIES
In February and March 2000, the Company exchanged 1,713,640 shares of its
common stock for 856,820 shares of its subsidiary, EagleView, pursuant to an
exchange offer made to substantially all of the then-remaining shareholders of
EagleView, other than the Company. The offer and exchange was made pursuant
to Section 4(2) of the Securities Act of 1933, as amended, and SEC Rule 506,
promulgated under that Act.
During the three months ended March 31, 2000, the Company sold 3,156,810
shares of its common stock at a price of $1.00 per share, to accredited and
sophisticated investors. The sales were made pursuant to Section 4(2) of the
Securities Exchange Act of 1933, as amended, and Rule506 promulgated under that
Act.
Item 5. OTHER INFORMATION
During April 2000 disputes arose between Mr. Sanjay Mody and other
operation officers of the Company with respect to operating and investment
policies, and other matters. Mr. Mody became a director and officer of the
Company on February 29, 2000, when he was appointed Executive Vice President
and Chief Operating Officer. Mr. Mody was removed from these offices, and
terminated as an employee, at a meeting of the Company's Board of Directors
held May 3, 2000. However, in the absence of his resignation, he remains a
director of the Company.
In March 2000 an employment agreement was entered into between Mr. Mody
and the Company's President, Mr. Paolini. The agreement is included as an
exhibit to this Report. The agreement was not approved by the Company's
directors and it was subsequently rescinded by Mr. Paolini.
[10]
<PAGE>
Counsel to Mr. Mody has advised counsel to the Company that Mr. Mody may
proceed to arbitration, as provided for in the agreement. If so, we believe
that the Company's defenses and counterclaims are sufficient to negate any
claims that Mr. Mody may put forward.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
The employment agreement referred to in the preceding Item is included
herein as an exhibit to this Report.
The Company did not file any reports on Form 8-K during the quarter ended
March 31, 2000.
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
DISTINCTIVE DEVICES, INC.
Dated: May 12, 2000 By: /s/ MICHAEL J. PAOLINI
Michael J. Paolini
President and Treasurer
Chief Executive Officer
Chief Financial Officer
[11]
<PAGE>
[ARTICLE] 5
<TABLE>
<S> <C>
[PERIOD-TYPE] 3-MOS
[FISCAL-YEAR-END] DEC-31-2000
[PERIOD-END] MAR-31-2000
[CASH] 2,724,207
[SECURITIES] 0
[RECEIVABLES] 0
[ALLOWANCES] 0
[INVENTORY] 0
[CURRENT-ASSETS] 2,724,207
[PP&E] 632,755
[DEPRECIATION] (34,324)
[TOTAL-ASSETS] 3,250,220
[CURRENT-LIABILITIES] 23,047
[BONDS] 0
[PREFERRED-MANDATORY] 0
[PREFERRED] 0
[COMMON] 858,170
[OTHER-SE] 2,369,003
[TOTAL-LIABILITY-AND-EQUITY] 3,250,220
[SALES] 0
[TOTAL-REVENUES] 0
[CGS] 0
[TOTAL-COSTS] 0
[OTHER-EXPENSES] 499,775
[LOSS-PROVISION] 0
[INTEREST-EXPENSE] 3,949
[INCOME-PRETAX] (441,948)
[INCOME-TAX] 0
[INCOME-CONTINUING] (441,948)
[DISCONTINUED] 0
[EXTRAORDINARY] 0
[CHANGES] 0
[NET-INCOME] (441,948)
[EPS-BASIC] (0.03)
[EPS-DILUTED] (0.03)
</TABLE>
EMPLOYMENT AGREEMENT, dated as of March 1, 2000 (the "Agreement"), between
EagleView Industries. Inc., a Florida corporation ("EagleView"), Distinctive
Devices, Inc., a New York corporation (the "Parent Company") (collectively the
"Employer") and Sanjay Mody (the "Employee").
In consideration of (i) the Employee's agreement to supply services under
this Agreement and (ii) the mutual agreements set forth below, the sufficiency
of which is hereby acknowledged, the Employer and the Employee agree as
follows:
SECTION I. Employment Relationship.
(a) Employment by Employer. The Employer hereby employs the Employee, and
the Employee hereby agrees to be employed by the Employer, as the Chief
Operating Officer ("COO") of EagleView and the Parent Company. During the
Employee's employment with the Employer, the Employee shall do and perform all
services and acts necessary or advisable to fulfill the duties and
responsibilities as are consistent with the Employee's position (the
"Services") and shall render the Services on the terms set forth herein.
During the Employee's employment, the Employee shall report directly to the
Chief Executive Officer and/or the Board of Directors of EagleView and the
Chief Executive Officer and/or the Board of Directors of the Parent Company or
such person(s) as from time to time may be designated by the Employer
(hereinafter referred to as the "Reporting Officer").
(b) Duties During Employment. All executive decisions or executive actions
by the Employer shall require the consent of the Employee as COO, including but
not limited to (i) any matters involving expenses exceeding $50,000 in value;
(ii) any communications with the media; (iii) any decisions to enter into a
material joint venture with any business partner or strategic partner, or (iv)
any business arrangement or agreement valued over $1 million. The Employee
shall have such other powers and duties with respect to the Employer as may be
reasonably assigned to the Employee by the Reporting Officer, to the extent
consistent with the Employee's position and status. The Employee agrees to
devote 90% of the Employee's working time, attention and efforts to the
Employer and to perform the duties of the Employee's position in accordance
with the Employer's policies as in effect from time to time.
(c) Place of Employment. The Employer shall set up new premises in
Manhattan, or New Jersey within a 25 mile radius of Manhattan and no more than
40 miles from the Employee's current residence (the "New Premises"). (The
Employer shall not be obligated to move the New Premises if the Employee
changes his current residence after the Employer establishes offices at the New
Premises.) The Employee's principal place of employment shall be the New
Premises; provided, however, the Employee may be required to travel for
business purposes. If the New Premises are more than 25 miles from the
Employee's current residence, the Employer shall be responsible for the
Employee's transportation costs; provided, however, that the Employer shall not
be responsible for any additional transportation costs incurred by the Employee
if the Employee changes his current residence after the Employee establishes
offices at the New Premises.
(d) Employment Period. The period commencing on the date of this Agreement
and ending on the second anniversary thereof (the "Agreement End Date") or the
date on which this Agreement is earlier terminated in accordance with its terms
is referred to herein as the "Employment Period." The Employment Period shall
be freely terminable for any reason by either party at any time, subject to the
provisions of Section 3 of this Agreement. If the Employee's employment
continues for any period of time after the expiration of the Employment Period,
the Employee will be an at-will employee of the Employer.
SECTION II. Compensation and Benefits.
During the Employment Period:
(a) Base Compensation. The Employer shall pay to the Employee an annual
base salary of $ 150,000 (the "Base Salary"), payable in accordance with the
Employer's payroll practices as in effect from time to time; provided, however,
that salary payments shall be made at the beginning of each month. For all
purposes under this Agreement, the term "Base Salary" shall refer to Base
Salary as in effect from time to time.
(b) Discretionary Bonus. During the Employment Period, the Employee shall
be eligible to receive annual incentive compensation as the Executive Committee
of the Board of Directors of EagleView and the Executive Committee of the Board
of Directors of the Parent Company determine in their sole discretion to pay
the Employee.
(c) Equity Compensation. The Parent Company will use its best efforts to
adopt and approve an employee stock option plan, or plans and to file a
registration statement on Form S-8 with respect to the shares issuable under
such plan or plans, subject to the approval of its Board of Directors, and in
accordance with applicable laws (the "Employee Stock Option Plan").
In further consideration of the Employee's entering into this Agreement and
as a material inducement to join the Employer, on, or immediately after, the
date that the Employee Stock Option Plan is adopted, the Employee also shall be
granted under the plan an option to purchase 750,000 shares of Common Stock
subject to the approval of the Board of Directors of the Parent Company (the
"Second Stock Option Grant"). Fifty percent of the Second Stock Option grant
shall vest and become fully exercisable on the first anniversary of the date of
this Agreement. The remaining fifty percent of the Second Stock Option Grant
shall vest and become fully exercisable on the second anniversary of the date
of this Agreement. The exercise price for the Second Stock Option Grant shall
be $6.00 per share of Common Stock, and the expiration date shall be no less
than five years from the date of grant. Consistent with the provisions of this
Section and Section 3(f)(iv), the terms and conditions of the Fi rst and Second
Stock Option Grants shall be governed by the Employee Stock Option Plan.
(d) Benefits. During the Employment Period, the Employee shall be entitled
to participate in any welfare, health and life insurance and pension benefit
and incentive programs as may be adopted from time to time by the Employer on
the same basis as that provided to similarly situated employees of the
Employer. Without limiting the generality of the foregoing, the Employee shall
be entitled to the following benefits:
(i) Reimbursement for Business Expenses. During the Employment Period,
the Employer shall reimburse the Employee for all reasonable and necessary
expenses incurred by the Employee in performing the Employee's duties for the
Employer during the Employment Period, on the same basis as similarly situated
employees and in accordance with the Employer's policies as in effect from time
to time.
(ii) Vacation. During the Employment Period, the Employee shall be
entitled to 30 days of paid vacation per year, in accordance with the plans,
policies, programs and practices of the Employer applicable to similarly
situated employees of the Employer.
(iii) Salary Continuation During Disability. During any period prior
to termination during which the Employee is absent from the full-time
performance of the Employee's duties due to physical or mental illness
("Disability"), the Employer shall continue to pay the Employee's Base Salary
at the rate in effect at the commencement of such period of Disability, offset
by any amounts payable to the Employee under any disability insurance plan or
policy provided by the Employer.
SECTION III. Termination.
(a) Death or Disability. If the Employee dies during the Employment
Period, the Employment Period shall terminate as of the date of the Employee's
death. If, as a result of the Employee's incapacity due to physical or mental
illness ("Disability"), the Employee shall have been absent from the full-time
performance of Employee's duties with the Employer for a period of six
consecutive months and, within 30 days after written notice is provided to the
Employee by the Employer (in accordance with Section 6(h) hereof), the Employee
shall not have returned to the full-time performance of the essential functions
of the Employee's position after provision by the Employer of such reasonable
accommodations as may be needed by the Employee in order to perform these
essential functions, the Employee's employment under this Agreement may be
terminated by the Employer for Disability. During any period prior to such
termination during which the Employee is absent from the full-time performanc f
the Employee's duties with the Employer due to Disability, the Employer shall
continue to pay the Employee's Base Salary at the rate in effect at the
commencement of such period of Disability, offset by any amounts payable to the
Employee under any disability insurance plan or policy provided by the
Employer.
(b) Cause. The Employer, at its option, may terminate the Employment
Period and all of the obligations of the Employer under this Agreement, except
for the obligation to make the Basic Termination Payment under Section 3(f)(i)
and the Employers' indemnification obligation under Section 6(e), for Cause.
The Employer shall have "Cause" to terminate the Employee's employment
hereunder upon (i) a proven or admitted act of fraud, misappropriation or
embezzlement by the Employee that is detrimental to the Employer or (2) the
Employee's conviction of or plea of guilty or nolo contendere to a felony that
is related to the Employer's business or the performance of the Employee's
duties hereunder.
(c) Termination in the Event of Cessation of Operations. In the event that
the Employer elects to cease doing business and dissolve itself, the Employer
may terminate the Employment Period as of the date of dissolution of the
Employer or upon 90 days prior written notice to the Employee of its intention
to cease operations, whichever comes later.
(d) Without Cause; Voluntary Termination. The Employer, at its option, may
terminate the Employment Period without Cause at any time, and the Employee, at
his option, may terminate the Employment Period for any reason at any time.
Any party terminating the Employment Period under this Section 3(d) shall
provide the other party with written notice thereof 60 days before the date
such termination shall be effective.
(e) Termination by Employee for Good Reason. The Employee may terminate
this Agreement upon 60 days' prior written notice to the Employer for Good
Reason (as defined below) if the basis for such Good Reason is not cured within
a reasonable period of time (determined in light of the cure appropriate to the
basis of such Good Reason, but in no event less than 10 business days) after
the Employer receives written notice specifying the basis of such Good Reason.
"Good Reason" shall mean (i) the failure of the Employer to pay any undisputed
amount due under this Agreement, (ii) a substantial diminution in the status,
position and responsibilities of the Employee, including but not limited to
failure to obtain the Employee's approval for the decisions or actions set
forth in Section 1(b), or (iii) the Employer requiring the Employee to be based
at any office or location other than the New Premises defined in Section 1(c),
provided, however, that Good Reason shall not be deemed to exist e to the
travel requirements consistent with the performance of the Employee's Services
hereunder.
a. Payments in the Event of Termination. Basic Termination Payment.
Upon the termination of the Employment Period at any time for any reason, the
Employer shall pay to the Employee or his estate the Base Salary and bonus
earned to the date of termination and any compensation previously earned but
deferred by the Employee (together with any interest or earnings thereon) that
has not yet been paid. If termination of the Employment Period occurs within
one year of execution of this Agreement, the bonus earned to date shall be
deemed to be a percentage of $150,000, with the percentage equaling the
percentage of the year that the Employee was employed by the Employer. If
termination of the Employment Period occurs after one year of the execution of
this Agreement, the bonus earned to date shall be deemed to be a percentage of
the bonus earned by the Employee in his last full year of employment, with the
percentage equaling the percentage of the then current year that the Employ
employed by the Employer.
(ii) Involuntary Termination Payment. Upon the termination of the
Employment Period at any time by the Employer without Cause, except for
termination for Death or Disability pursuant to Section 3(a), or by the
Employee for Good Reason, the Employer shall pay to the Employee within five
business days of such termination a lump-sum amount equal to two times the
Employee's annual Base Salary.
(iii) Death Payment. Within ten business days of the death of the
Employee during the Employment Term, the Employer shall pay to the estate of
the Employee a lump-sum amount equal to the lesser of (a) the total amount of
Base Salary the Employee would have received in the following six months, or
(b) the total amount of Base Salary the Employee would have received until the
Agreement End Date.
(iv) Vesting of Options. Upon the termination of the Employment Period
at any time by the Employer without Cause, by the Employee at any time for Good
Reason, or by the Employee for any reason on or after the First Anniversary of
Change in Control (as defined in Section 3(f)(v)(B)) but no later than the 30th
day after such first anniversary, the options granted to the Employee under the
Second Stock Option Grant shall vest and become fully exercisable.
i. Additional Change in Control Payment. Upon the termination of the
Employment Period by the Employee with Good Reason or by the Employer for any
reason other than for Cause, death or Disability within one year after a Change
in Control, then the Employer shall pay to the Employee within five business
days of such termination a lump-sum amount (in addition to the amount payable
under the first sentence of Section 3(f)(i)) equal to the higher of (1) two
times the Employee's annual Base Salary at the date of such termination or (2)
two times the Employee's annual Base Salary at the time of the Change in
Control. If the Employment Period is terminated by the Employee for any reason
other than with Good Reason on or after the first anniversary of a Change in
Control but no later than the 30th day after such first anniversary, the
Employee shall be entitled to the higher of the Employee's annual Base Salary
at the date of such termination or the Employee's annual Base Salary at te of
the Change of Control. If the Employment Period is terminated by the Employee
with Good Reason at any time on or after the first anniversary of a Change in
Control, the Employee shall be entitled to the payment specified in Section
3(f)(ii).
(B) Change in Control Defined. "Change in Control" means the first to
occur of any of the following: (A) the sale (including by merger, consolidation
or sale of stock of subsidiaries or any other method) of all or substantially
all of the assets of the Parent Company and its consolidated subsidiaries
(taken as a whole) to any person or entity not directly or indirectly
controlled by the holders of at least 51% of the combined voting power of the
then outstanding shares of capital stock of the Parent Company (excluding
shares owned by employees of the Employer as of the date of determination) or
(B) a transaction resulting in the Principal Shareholders owning, collectively,
less than 51% of the combined voting power of the then outstanding shares of
capital stock of the Parent Company (excluding shares owned by employees of the
Employer as of the date of determination). Principal Shareholders" means the
persons set forth on Schedule I hereto.
(v) Other Provisions Applicable to Payments. Any amounts due under this
Section 3 and not paid when due shall bear interest (compounded annually) for
the period from and including the date payable to but excluding the date paid
at a rate per annum equal to the sum of (x) four percent and (y) the rate
publicly announced by BankBoston, N.A. as its "prime rate."
(f) Termination of Obligations. In the event of termination of the Employment
Period in accordance with this Section 3, all obligations of the Employer and
the Employee under this Agreement shall terminate, except for any amounts
payable by the Employer as specifically set forth in Section 3(f); provided,
however, that notwithstanding anything to the contrary contained in this
Agreement, the provisions of Section 4 and Section 5 shall survive such
termination in accordance with their respective terms and the relevant
provisions of Section 6 shall survive such termination indefinitely. In the
event of termination of the Employment Period in accordance with this Section
3, the Employee agrees to cooperate with the Employer in order to ensure an
orderly transfer of the Employee's duties and responsibilities.
SECTION IV. Confidentiality; Non-Disclosure.
(a) Non-Disclosure Obligation. The Employee acknowledges that while
employed by the Employer, the Employee will occupy a position of trust and
confidence. The Employee shall not disclose to others or use, whether directly
or indirectly, any Confidential Information regarding the Employer or any of
its subsidiaries or affiliates; provided, however that this Section 4(a)(i)
shall not apply to any disclosure (x) required to perform the Employee's duties
hereunder; (y) required by applicable law; or (z) of information that shall
have become public other than by the Employee's disclosure. "Confidential
Information" shall mean the Employer's trade secrets, the Employer's client and
customer lists and information relating to methods of doing business (including
information concerning operations, technology and systems) in use or
contemplated use by the Employer and not generally known among the Employer's
competitors. The Employee acknowledges that such Confidential Information is s
ialized, unique in nature and of great value to the Employer and its
subsidiaries or affiliates, and that such information gives the Employer and
its subsidiaries or affiliates a competitive advantage. The Employee agrees to
deliver or return to the Employer, at the Employer's request at any time or
upon termination or expiration of the Employee's employment or as soon
thereafter as possible, all documents, computer tapes and disks, records,
lists, data, drawings, prints, notes and written information (and all copies
thereof) furnished by the Employer and its subsidiaries or affiliates or
prepared by the Employee in the course of the Employee's employment by the
Employer and its subsidiaries or affiliates. As used in this Agreement,
"subsidiaries" and "affiliates" shall mean any company controlled by,
controlling or under common control with the Employer.
(i) Compulsory Disclosures. If the Employee is requested or (in the
opinion of his counsel) required by law or judicial order to disclose any
Confidential Information, the Employee shall provide the Employer with prompt
notice of any such request or requirement so that the Employer may seek an
appropriate protective order or waiver of the Employee's compliance with the
provisions of this Section 4(a).
(ii) Confidential Information of Third Parties. The Employee agrees
that he will not, during the term of this Agreement, improperly use or disclose
to the Employer any proprietary information or trade secrets of any former or
current employer or other person or entity with which he has an agreement or
duty to keep in confidence information acquired by him in confidence, and that
he will not bring onto the premises of the Employer any unpublished document or
proprietary information belonging to such employer, person or entity unless
consented to in writing by such employer, person or entity.
a) Assignment of Inventions. All Employee Developments shall be made
for hire by the Employee for the Employer or any of its subsidiaries or
affiliates. "Employee Developments" means any idea, discovery, invention,
design, method, technique, improvement, enhancement, development, computer
program, machine, algorithm or other work or authorship that (x) relates to the
business or operations of the Employer or any of its subsidiaries or
affiliates, or (y) results from or is suggested by any undertaking assigned to
the Employee or work performed by the Employee for or on behalf of the Employer
or any of its subsidiaries or affiliates, whether created alone or with others,
during or after working hours. All Confidential Information and all Employee
Developments shall remain the sole property of the Employer or any of its
subsidiaries or affiliates. The Employee shall acquire no proprietary interest
in any Confidential Information or Employee Developments developed or acquired
the Employment Period. To the extent the Employee may, by operation of law or
otherwise, acquire any right, title or interest in or to any Confidential
Information or Employee Development, the Employee hereby assigns to the
Employer all such proprietary rights. The Employee shall, both during and
after the Employment Period, upon the Employer's request, promptly execute and
deliver to the Employer all such assignments, certificates and instruments, and
shall promptly perform such other acts, as the Employer may from time to time
in its discretion deem necessary or desirable to evidence, establish, maintain,
perfect, enforce or defend the Employer's rights in Confidential Information
and Employee Developments.
(iii) To the extent that any copyrightable works in the Employee
Developments are not properly characterized as a work made for hire for the
purpose of ascribing ownership of such property to the Employer, and with
respect to rights in the Employee Developments other than copyright rights, the
Employee hereby irrevocably grants, assigns and otherwise transfers exclusively
and in perpetuity to the Employer, its successors and its assigns, all rights
of the Employee in the Employee Developments whatsoever, now existing or
hereafter discovered, in all media and forms of expression. To the extent that
any claim is made concerning the existence of moral rights in regard to the
Employee Developments, the Employee agrees to waive all such right, title and
interest to the fullest extent permissible by law. The Employee agrees to
provide the Employer with a right of first refusal to re-acquire any copyright
right in the Employee Developments in the event that the Employee or her succe
ereafter exercise her or their statutory right of termination with respect to
the foregoing assignment of any copyright to the Employer. Pursuant to such
right of first refusal, prior to entering into any agreement or other
arrangement to transfer or license such copyright to any third party, the
Employee or her successors will provide the Employer with reasonable advance
notice of and an opportunity to enter into such agreement or other arrangement
with the Employee or such successors, on fair and reasonable terms and
conditions no less favorable to the Employer than the terms and conditions
offered in a bona-fide offer by such third party. The Employee shall also
promptly report each invention, discovery or improvement, whether patentable or
not, in the Employee Developments, specifically pointing out the features or
concepts which the Employee believes to be new or different.
a. Non-Competition; Non-Solicitation. The Employee acknowledges and
recognizes his possession of Confidential Information and acknowledges the
highly competitive nature of the business of the Employer and its affiliates
and subsidiaries and accordingly agrees that, in consideration of the promises
contained herein, he will not, during the Employment Period, as from time to
time extended, and for two years after the date of termination of the
Employment Period, as from time to time extended, (unless terminated by the
Employer without Cause or termination for Good Reason), either individually or
as an officer, director, stockholder, member, partner, agent, consultant or
principal of another business firm, (1) engage in any business in the United
States (whether as an employee, consultant, director, officer, partner or
shareholder, other than as a passive shareholder of a public company in which
the Employee owns less than 5%) that is in direct or indirect competition with
any a business of the Employer ("Competitive Business") or be employed in the
United States by any entity or person that controls a Competitive Business or
(2) directly or indirectly solicit any client of the Employer in order to
perform services in the United States.
(b) The Employee recognizes that he will possess confidential
information about other employees of the Employer and its subsidiaries or
affiliates relating to their education, experience, skills, abilities,
compensation and benefits, and inter-personal relationships with suppliers to
and customers of the Employer and its subsidiaries or affiliates. The Employee
recognizes that the information he will possess about these other employees is
not generally known, is of substantial value to the Employer and its
subsidiaries or affiliates in developing their respective businesses and in
securing and retaining customers, and will be acquired by Employee because of
Employee's business position with the Employer. Employee agrees that during
the Employment Period and for two years after the date of termination of the
Employment Period, regardless of the reason for his termination, Employee will
not, directly or indirectly, solicit or recruit any employee of the Employer or
any of its su ries or affiliates for the purpose of being employed by Employee
or by any business, individual, partnership, firm, corporation or other entity
on whose behalf Employee is acting as an agent, representative or employee and
that Employee will not convey any such confidential information or trade
secrets about other employees of the Employer or any of its subsidiaries or
affiliates to any other person except within the scope of Employee's duties
hereunder.
SECTION V. General Provisions.
(a) Enforceability. It is the desire and intent of the parties hereto that
the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, although the Employee and the
Employer consider the restrictions contained in this Agreement to be reasonable
for the purpose of preserving the Employer's goodwill and proprietary rights,
if any particular provision of this Agreement shall be adjudicated to be
invalid or unenforceable, such provision shall be deemed amended to delete
therefrom the portion thus adjudicated to be invalid or unenforceable, such
deletion to apply only with respect to the operation of such provision in the
particular jurisdiction in which such adjudication is made. It is expressly
understood and agreed that although the Employer and the Employee consider the
restrictions contained in Section 5 to be reasonable, if a final determination
is m ade by a court of competent jurisdiction that the time or territory or any
other restriction contained in this Agreement is unenforceable against the
Employee, the provisions of this Agreement shall be deemed amended to apply as
to such maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable.
(b) Remedies; Survival. The parties acknowledge that the Employer's damages
at law would be an inadequate remedy for the breach by the Employee of any
provision of Section 4 or Section 5, and agree in the event of such breach that
the Employer may obtain temporary and permanent injunctive relief restraining
the Employee from such breach, and, to the extent permissible under the
applicable statutes and rules of procedure, a temporary injunction may be
granted immediately upon the commencement of any such suit. Nothing contained
herein shall be construed as prohibiting the Employer from pursuing any other
remedies available at law or equity for such breach or threatened breach of
Section 4 or Section 5 or for any breach or threatened breach of any other
provision of this Agreement. The obligations contained in Sections 4 and 5
shall, to the extent provided in Sections 4 and 5, survive the termination or
expiration of the Employee's employment with the Employer and, as applicable, s
l be fully enforceable thereafter in accordance with the terms of this
Agreement.
(c) Withholding. The Employer shall withhold such amounts from any
compensation or other benefits payable to the Employee under this Agreement on
account of payroll and other taxes as may be required by applicable law or
regulation of any governmental authority.
(d) Assignment; Successors. This Agreement is personal in its nature and
none of the parties hereto shall, without the consent of the others, assign or
transfer this Agreement or any rights or obligations hereunder, provided that,
in the event of the merger, consolidation, transfer, or sale of all or
substantially all of the assets of EagleView or the Parent Company with or to
any other individual or entity, this Agreement shall, subject to the provisions
hereof, be binding upon and inure to the benefit of such successor and such
successor shall discharge and perform all the promises, covenants, duties, and
obligations of the Employer hereunder, and all references herein to the
"Employer" shall refer to such successor.
(e) Indemnity. The Employer hereby agrees to indemnify and hold the
Employee harmless to the maximum extent permitted by law against any and all
liabilities, expenses (including attorneys' fees and costs), claims, judgments,
fines, and amounts paid in settlement actually and reasonably incurred in
connection with any proceeding arising out of the Employee's employment with
the Employer (whether civil, criminal, administrative or investigative, other
than proceedings by or in the right of the Employer), if with respect to the
actions at issue in the proceeding the Employee acted in good faith and in a
manner Employee reasonably believed to be in, or not opposed to, the best
interests of the Employer, and (with respect to any criminal action) Employee
had no reason to believe Employee's conduct was unlawful. Said indemnification
arrangement shall (i) survive the termination of this Agreement, (ii) apply to
any and all qualifying acts of the Employee which have taken place during an
eriod in which he was employed by the Employer, irrespective of the date of
this Agreement or the term hereof, including, but not limited to, any and all
qualifying acts as an officer and/or director of any affiliate while the
Employee is employed by the Employer and (iii) be subject to any limitations
imposed from time to time under applicable law.
(f) Acknowledgment. The Employee acknowledges that he has been advised by
the Employer to seek the advice of independent counsel prior to reaching
agreement with the Employer on any of the terms of this Agreement. The parties
agree that no rule of construction shall apply to this Agreement which
construes ambiguous language in favor of or against any party by reason of that
party's role in drafting the Agreement.
(g) Waivers; Modification. Failure to insist upon strict compliance with
any of the terms, covenants, or conditions hereof shall not be deemed a waiver
of such term, covenant, or condition, nor shall any waiver or relinquishment
of, or failure to insist upon strict compliance with, any right or power
hereunder at any one or more times be deemed a waiver or relinquishment of such
right or power at any other time or times. This Agreement shall not be
modified in any respect except by a writing executed by each party hereto.
(h) Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by registered or certified mail, postage prepaid, return receipt
requested, sent by overnight courier, or sent by facsimile (with confirmation
of receipt), addressed as follows:
If to the Employer:
EagleView Industries, Inc.
PMB #6-271
5030 Champion Blvd. G-6
Boca Raton, FL 33496
Attention: Michael Paolini
Facsimile: (561) 243-1779
with a copy to:
Jonathan Shepard
5355 Town Center
Suite 801
Boca Raton, FL 33486
(561) 368-7700
If to the Employee:
Sanjay Mody
35 Harvard St.
Cloister, NJ 07624
Facsimile: (201) 750-2347
with a copy to:
Covington & Burling
1330 Avenue of the Americas
New York, NY 10019
Attention: Robert P. Haney, Jr.
Facsimile: (212) 841-1010
or at such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. If such notice
or communication is mailed, such communication shall be deemed to have been
given on the fifth business day following the date on which such communication
is posted.
(i) Descriptive Headings; Certain Interpretations. Descriptive headings
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement. Except as otherwise expressly
provided in this Agreement: (i) any reference in this Agreement to any
agreement, document or instrument includes all permitted supplements and
amendments; (ii) a reference to a law includes any amendment or modification to
such law and any rules or regulations issued thereunder; (iii) the words
"include," "included" and "including" are not limiting; and (iv) a reference to
a person or entity includes its permitted successors and assigns.
(j) Counterparts; Entire Agreement. This Agreement may be executed in any
number of counterparts, and each such counterpart hereof shall be deemed to be
an original instrument, but all such counterparts together shall constitute one
agreement. This Agreement and Employee Stock Option Plan contain the entire
agreement among the parties with respect to the transactions contemplated by
this Agreement and terminate and supersede all other or prior written or oral
agreements or understandings among the parties with respect to the Employee's
employment by the Employer. The Employee hereby represents and warrants that
by entering into this Agreement, the Employee will not rescind or otherwise
breach an employment agreement with Employee's current employer prior to the
natural expiration date of such agreement.
(k) Governing Law; Jurisdiction. This Agreement and the legal relations
thus created between the parties hereto shall be governed by and construed
under and in accordance with the internal laws of the State of New York without
reference to the principles of conflicts of laws. Subject to Section 6(l) of
this Agreement, any and all disputes between the parties which may arise
pursuant to this Agreement will be heard and determined before an appropriate
federal court in New York, or, if not maintainable herein, then in an
appropriate New York state court. The parties acknowledge that such courts
have jurisdiction to interpret and enforce the provisions of this Agreement,
and the parties consent to, and waive any and all objections that they may have
as to, personal jurisdiction and/or venue in such courts.
(l) Arbitration. Any claim or dispute arising under this Agreement (other
than under Sections 4 or 5) shall be subject to arbitration, and prior to
commencing any court action, the parties agree that they shall arbitrate all
such controversies. The arbitration shall be conducted in New York, New York,
in accordance with the Employment Dispute Rules of the American Arbitration
Association and the Federal Arbitration Act, 9 U.S.C. 1, et. seq. The
arbitrator(s) shall be authorized to award both liquidated and actual damages,
in addition to injunctive relief, but no punitive damages. Each party shall
have the right to have the award made the judgment of a court of competent
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
Sanjay Mody
/s/ Sanjay Mody
By: Sanjay Mody, Chief Operating Officer
By: /s/ Michael J. Paolini, President
Distinctive Devices, Inc.
By: /s/ Michael J. Paolini, President
EagleView Industries, Inc.
