UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
January 16, 2015
STANDARD METALS PROCESSING, INC.
(Exact name of registrant as specified in
its charter)
Nevada |
000-14319 |
84-0991764 |
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
|
611 Walnut Street, Gadsden, Alabama 35901 |
(Address of principal executive offices) |
(888) 960-7347
Registrant’s telephone number, including
area code
(Former name or former
address, if changed since last report)
Check the appropriate box below if the Form
8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Jonathan Spier has been appointed as the Chief Operating Officer
of Standard Metals Processing, Inc. (the “Company”) effective January 16, 2015.
Mr. Spier is an entrepreneur and venture
capitalist. He started and successfully sold a number of private companies including Premium Concepts Unltd, The Video Express
retail chain and the Arthur L apparel design firm.
Mr. Spier acquired majority interest of
a bankrupt wholesale manufacturing firm from Wells Fargo in 2000. As CEO, President and majority shareholder he grew the company
to over $300 million in annual revenue, with EBITDA in excess of $20 million, representing nearly $800 million at retail, including
thirteen licensed product channels, in less than four years. Under Mr. Spier’s direction, the company devised a unique, multi-tiered
branding strategy across six divisions with several recognized brand names and employed over 300 professionals, with offices in
NYC, Los Angeles, Miami, Korea, China and Guatemala. The company operated in thirty-seven countries across the globe prior to sale
of the company in 2006 to Hilco Consumer Capital, a unit of The Hilco Organization with investor partners Goldman Sachs Group and
Cerberus Capital Management.
Following the sale, Mr. Spier spent the
next seven years as a venture capitalist with investments in a number of private and small cap companies across various industries.
During this period, some of his positions included: the Founding Partner and Managing Director of PCES, a joint venture alliance
with Pegasus Capital Advisors focusing on ESOP-based private equity acquisitions; a Managing Director of Madison Partners, a NYC
based private investment firm; President of S&S Florida Ventures, a South Florida based commercial real estate investment firm
and Founder/Managing Director of Rosedown MHP Investments, a real estate investment firm focusing on modular home communities throughout
the United States.
Mr. Spier served as a board member of Passport
Brands, Inc., a publicly traded consumer products firm and Plexigen, Inc., a North Carolina based Life Sciences firm. He was an
Ernst & Young Entrepreneur of the Year Finalist in 2004 and Ernst & Young Entrepreneur of the Year Winner in 2005. He was
a long-standing member of the Young President’s Organization (YPO), a prestigious global network group of Chief Executives
and business leaders. Mr. Spier received his BA in Economics from Vassar College in 1982.
There are no familial relationships between
Mr. Spier and any officers or directors or any reportable related-party transactions.
Mr. Spier is an investor in the Company.
Prior to his consideration and appointment as an officer of the Company, Mr. Spier acquired shares of common stock through the
exercise of common stock purchase warrants, participation in the Company’s 2013 tender offer and purchases from non-affiliate
third parties. Mr. Spier has been an investor in the Company since 2010 and currently owns 1,525,907 shares.
Mr. Spier’s employment agreement
and the press release issued by the Company announcing Mr. Spier’s appointment are attached as exhibits to this Current Report
on Form 8-K.
Item 9.01 |
Financial Statements and Exhibits |
10.1 |
Jonathan Spier Employment Agreement |
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99.1 |
Press Release issued by Standard Metals Processing, Inc. on January 21, 2015, “Standard Metals Processing, Inc. Names Jonathan Spier Chief Operating Officer” |
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: January 22, 2015 |
Standard Metals Processing, Inc. |
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By: |
/s/ Sharon L. Ullman |
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Sharon L. Ullman |
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Chief Executive Officer |
Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the “Agreement”)
is made effective as of January 16, 2015 (the “Effective Date”) between Jonathan Spier (“Employee”) and
Standard Metals Processing, Inc., hereinafter referred to as (“SMPR” or the “Company”), who are hereinafter
sometimes collectively referred to as “the parties” or singularly as a “party.”
WITNESSETH
WHEREAS, SMPR wishes to appoint
Employee as the Company’s Chief Operating Officer and desires to memorialize his employment in this Agreement upon the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration
of the mutual covenants contained herein, the parties hereto agree as follows:
1. Employment Services. SMPR
hereby agrees to employ Employee as Chief Operating Officer and Employee hereby accepts such position under the terms and conditions
set forth herein. Employee shall be subject to all the usual and customary office policies and procedures of the Company as may
from time to time be established for Employees of similar grade and position.
2. Duties.
| (a) | Employee shall serve as the Chief Operating Officer of the Company during the Term (as defined
below) of this Agreement. Employee shall carry out all assignments as set forth on Exhibit A attached hereto. |
| (b) | Employee shall, if so requested by the Company, also serve with or without additional compensation,
as an officer, director or manager of entities from time to time directly or indirectly owned or controlled by the Company (each
an “Affiliate,” or collectively, the “Affiliates”). |
3. Term. The term of the employment
shall be for Three (3) years, commencing on the Effective Date (the “Term”), unless sooner terminated by the Company
or Employee in accordance with the terms of this Agreement or pursuant to Section 6 below.
4. Extent of Services. Employee
shall devote substantial time, attention and energy to his duties hereunder and shall use his best efforts to promote the business
of SMPR and/or its subsidiaries during the Term of this Agreement. Employee may engage in other activities, including serving on
the Board of Directors of other corporations/organizations, and/or advising other corporations/organizations in each case to the
extent that such activities do not materially detract from or limit the performance of Employee’s duties under this Agreement,
or inhibit in any material way the business of SMPR and/or its subsidiaries. Employee will not engage in any activity, paid or
otherwise, for a competitor of SMPR so long as this Agreement is in effect. Employee may invest his assets in such manner as will
not require any services to be performed on his part in the operation or affairs of the companies in which such investments are
made, but only if such investments are consistent with this Agreement. Employee shall perform all duties in a professional, ethical
and businesslike manner. It is understood and acknowledged that Employee is based in Boca Raton, Florida and will perform his duties
from there with travel to locations requested by the Company as necessary.
5. Compensation and Benefits. As
compensation for his services hereunder, during the Term of the Agreement, SMPR agrees:
| (a) | To grant Employee options to purchase common stock pursuant to the 2014 Option Plan as set forth
on Exhibit B attached hereto; |
| (b) | To pay Employee salary as follows: |
| i. | One Dollar ($1.00) for the first Three (3) months; |
| ii. | Employee will accrue a monthly salary of Twelve Thousand
Five Hundred Dollars ($12,500.00) for the Fourth, Fifth and Sixth months of the Term, payable in Three (3) installments during
the Seventh, Eighth and Ninth months. |
| iii. | Employee will be paid Twelve Thousand Five Hundred Dollars
($12,500.00) per month for the remainder of the Term. |
| iv. | Employee’s performance and salary will be reviewed
annually with any changes to this Agreement represented by an addendum hereto executed by both parties. |
| (c) | To pay annual bonuses, if any bonuses are payable during the Term, which shall be determined by
the Company, in its sole discretion, in an amount and upon such other performance criteria as shall be fixed by the Compensation
Committee or Board of Directors based upon the performance of Employee and the Company during the same period. |
| (d) | Employee shall be included in any pension plan in effect as of the date of this Agreement or affected
thereafter. Employee’s participation as described in the sentence immediately preceding shall be in relation to Employee’s
annual compensation as compared to any other individual’s participation based upon his annual compensation at the time of
this Agreement. |
| (e) | SMPR will reimburse Employee for his direct expenses in connection with his duties hereunder including,
but not limited to, reasonable travel, entertainment and hotel expenses. Employee shall timely provide such receipts and other
documentation of his expenses before any reimbursements will be paid. |
| (f) | Employee will be included in any health insurance or other benefit plan provided for senior management
and executives. |
6. Termination.
(a) This Agreement
shall be terminated upon the happening of any of the following:
| (i) | at the cessation of SMPR’s business activities except as a result of a sale or merger; |
| (ii) | upon the mutual consent of the parties hereto; |
| (iii) | upon the death or disability of Employee, disability shall be defined as an inability to perform
duties and responsibilities for One Hundred Twenty (120) consecutive days as a result of physical or mental illness or condition
or loss of legal capacity; |
| (iv) | the termination for any reason or no reason by Employee
upon Thirty (30) days written notice to the Company. However, Employee cannot terminate this Agreement during a Restricted Period.
“Restricted Period” shall mean the Thirty (30) day period immediately preceding the due date of a quarterly regulatory
filing and the Sixty (60) day period immediately preceding the due date of an annual regulatory filing. The due date of the regulatory
filing shall include any applicable extensions and extend until such quarterly or annual statement is filed. |
| (b) | Termination by Company for Cause. “Cause”
for the purpose of this Agreement is defined as: (i) an intentional act of fraud, embezzlement, theft or any other material violation
of law committed by Employee; (ii) damage to Company’s assets; (iii) disclosure of Company’s confidential information;
(iv) breach of Employee’s obligations under this Agreement; (v) intentional engagement in any competitive activity which
would constitute a breach of Employee’s duty of loyalty or of Employee’s obligations under this Agreement; (vi) the
willful and continued failure to substantially perform Employee’s duties for Company (other than as a result of incapacity
due to physical or mental illness); (vii) willful conduct by Employee that is materially injurious to Company, monetarily or otherwise,
or (viii) failure to follow any reasonable written directives from the Board of Directors. Employee shall have Thirty (30) days
after receipt of written notice from the Company setting forth the actions or circumstances constituting “Cause” to
cure such actions or circumstances. |
| (c) | If Employee is terminated under Section 6(a)(i)-(iii), Employee’s options shall vest, expire
and be exercisable pursuant to the Stock Option Grant. “Date of Termination” shall mean the final date of Employee’s
employment, not the date of notice of termination. |
7. Covenant not to Compete. Employee
hereby covenants and agrees that during the Term of this Agreement and for a period of One (1) year after termination of such Agreement
hereunder:
| (a) | Employee will not in any way, directly or indirectly, solicit, divert, take away or accept, the
business of any of the customers, suppliers or service providers of SMPR during the Term of this Agreement for the purpose of selling
to any such customer any product or service which was provided or offered by during the Term of this Agreement hereof. |
| (b) | Employee will not directly or indirectly, attempt or seek to cause any of the foregoing customers,
suppliers or service providers of SMPR to refrain from maintaining or acquiring from or through SMPR any products or services,
or providing any products or services which were provided or offered by or to SMPR during the Term hereof, and will not assist
any other person or persons to do so. Employee agrees that telephonic or written communication by him to any of the Parties described
above shall constitute activity by Employee for the purposes of this Agreement. |
| (c) | Employee will not enter into any contract with direct competitors of the Company or work for or
consult direct competitors of the Company on topics relating to the Company’s business. The Employee agrees that he will
not engage in, directly or indirectly, and in any capacity whatsoever, or have any financial interest in, any business operation
or in any party in competition with the Company. |
| (d) | Attempt in any manner to persuade any investor or shareholder of the Company to cease investing
or reduce any investment in the Company. |
| (e) | This Section 7 shall not apply if this Agreement is terminated under Section 6(a)(i). |
8. Non – Disclosure.
Employee acknowledges that, in order for Employee to effectively perform his duties hereunder SMPR will disclose to Employee
certain valuable trade secrets and confidential business information that has been created, discovered or developed by, or that
otherwise has become known to SMPR as a result of substantial effort, expense and time incurred by SMPR or which has been assigned
or otherwise conveyed. In light of such acknowledgement, Employee hereby agrees as follows:
| (a) | Trade Secrets. Employee hereby acknowledges that certain processes, formulas and mechanisms
used by SMPR in its operation of its business, are not generally known to the public or to other persons engaged in businesses
similar to its business and, as such constitute its trade secrets. Employee hereby agrees never to directly or indirectly disclose
or use, or assist anyone else in disclosing or using such trade secrets to any person or entity other than as authorized in the
regular course of the performance of this Agreement. |
| (b) | Confidential Information. |
| (i) | Employee hereby agrees that during the Term of this Agreement and for a period of One (1) year
following termination of such employment, Employee will not divulge, disclose or make accessible to any person or entity the following
confidential business information (“Confidential Information”) of SMPR, including but not limited to: (1) e-mail addresses,
customer lists, the names of customer contacts, the names of investor contacts, investor lists, professional contacts, business
plans, technical data, product ideas, personnel, contracts and financial information; (2) patents, trade secrets, techniques, formulas,
formulations, components, ingredients, compounds, processes, business methodologies, schematics, employee suggestions, development
tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements; (3) information about
costs, profits, markets and sales; (4) plans for future development and new product concepts; (5) data relating to studies, clinical
trials, results of any studies or trials, regulatory applications, research, development, procedures and treatment plans; (6) all
documents, books, papers, drawings, models, sketches, and other data of any kind and description, including electronic data recorded
or retrieved by any means, that have been or will be disclosed, as well as written or oral instructions or comments; (7) any and
all information provided to the Employee while on the Company’s Tonopah, Nevada property (the “Tonopah Property”);
(8) any land, machinery, individuals, production, operations, development, work, processes, or any other type of information the
Employee observes while at the Tonopah Property; and (9) any and all information provided to Employee regarding the Company or
conversations between the Employee and a representative of the Company. |
| (ii) | Employee recognizes and acknowledges that: |
| (1) | the Confidential Information is a valuable, special and
unique asset of the Company and that disclosure of any Confidential Information would cause considerable harm to the Company’s
operations and/or business reputation; and |
| (2) | the disclosure of the Confidential Information to any
other person or entity outside the Company or use of the Confidential Information by or on behalf of any other person or entity
could result in irreparable harm to the Company. |
| (iii) | Employee shall not disclose, use or in any way implement the Confidential Information to provide,
enable or help others to provide services that are substantially similar to or competitive with any of the Company’s projects,
products or services without the written consent of the Company or as otherwise required by law. |
| (iv) | With respect to all Confidential Information, Employee
shall: |
| (1) | protect and safeguard the Confidential Information against unauthorized use, publication, or disclosure
in any manner; |
| (2) | not use any of Confidential Information except to perform the duties of Chief Operating Officer
of the Company as set out in this Agreement; |
| (3) | not, directly or indirectly, in any way, reveal, reverse engineer, de-compile, disassemble, report,
publish, disclose, transfer or otherwise use any of the Confidential Information except as specifically authorized by the Company
in accordance with this Agreement; and |
| (4) | not restrict access to the Confidential Information to the Company’s officers, directors,
or employees who need such access for a permitted use. |
9. Property of SMPR.
Employee agrees that upon termination of this Agreement, he will promptly deliver to SMPR all written and other materials in
his possession or control which contain any of the trade secrets and confidential business information described in this Agreement
and all other property of SMPR in his possession or control at such time, which was obtained from SMPR or complied or produced
for SMPR during the Term of this Agreement, including, but not limited to: (a) records; data, plans, programs, invoices, flow charts,
record layouts, computer printouts, magnetic tapes, diskettes, disks, card decks; (b) log-in and password information for all electronic
formats including but not limited to: bank(s), QuickBooks, and payroll company; and (c) letters and customer lists.
10. Non-solicitation
of Employees. During the Term of this Agreement and for One (1) year thereafter, Employee shall not hire or solicit for employment
directly or through or on behalf of any party, any persons who are then employees of SMPR. This Section 10 shall not apply if the
Agreement is terminated pursuant to Section 6(a)(i).
11. Relations with
Third Parties and Representations of the Parties.
| (a) | Employee agrees that SMPR may make known to others, either during or subsequent to the Term of
this Agreement, the existence of this Agreement and the provisions of all or any part hereof. |
| (b) | Employee represents and warrants that: |
| (i) | He is not in violation of any term of any employment contract, patent or other proprietary information
disclosure agreement of any other contract, agreement or any judgment, decree or order of any court or administrative agency relating
to or affecting his right to be retained by SMPR because of the nature of this business conducted or proposed to be conducted by
SMPR or for any other reasons; |
| (ii) | No such term, judgment, decree or order conflicts with his obligation to use his best efforts to
promote the interests of SMPR nor does the execution and delivery of this Agreement, nor the carrying on of SMPR business conflict
with any such term, judgment, decrees or order; and |
| (iii) | Neither Employee nor any of his affiliates (as that term is defined under the Securities Act of
1933) are a party to any transaction, agreement or understanding to which SMPR is also a party except this Agreement or any agreement
executed hereunder, nor does he or any of his affiliates have any interest in any person or entity with whom SMPR does or intends
to do business. |
| (c) | SMPR hereby makes the following representations in connection with this Agreement: |
| (i) | SMPR is a corporation duly organized and validly existing by virtue of the laws of the state of
its incorporation and is in good standing under the laws thereof. |
| (ii) | The execution of this Agreement by SMPR and the performance by it of the covenants and undertakings
hereunder have been duly authorized by all requisite corporate action, and approved by the Board of Directors and SMPR has the
corporate power and authority to enter into this Agreement and perform the covenants and undertakings to be performed by it hereunder
and is under no other impediment which would adversely affect its ability to consummate or prohibit it from meeting its obligation
hereunder. |
| (iii) | This Agreement has been duly authorized, executed and delivered by SMPR and constitutes a valid
and legally binding obligation of SMPR enforceable in accordance with its terms. |
12. Remedies, Survival,
and Severability.
| (a) | SMPR and Employee agree that in the event of breach of any of the covenants, agreements or obligations
under Sections 4, 7, 8, 9, 10 and 11 thereof, remedies at law would be inadequate and either party may seek injunctive relief as
well as damages. |
| (b) | The covenants, agreements, representations, warranties and obligations contained in Sections 4,
7, 8, 9, 10 and 11 hereof shall survive the termination of this Agreement for the periods herein set forth. |
| (c) | Each of the covenants, agreements and obligations contained in Sections 4, 7, 8, 9, 10 and 11 hereof
shall be independent and severable from the others and should any be for any reason held illegal, invalid or unenforceable in whole
or in part, said illegality, invalidity or unenforceability shall not affect the other covenants, agreements and obligations in
said Sections. |
| (d) | In the enforcement of their rights hereunder, SMPR and Employee shall return all of their rights
under law or in equity to enforce the obligations of the other party hereunder or otherwise, and to seek relief for the acts of
the other party subject to the terms of this Agreement. |
13. Miscellaneous.
| (a) | This Agreement embodies the entire agreement of the parties hereto relating to the subject matter
hereof. No amendment, modification, waiver or attempted waiver of this Agreement or any part hereof shall be valid or binding unless
made in writing and signed by both parties. |
| (b) | All questions concerning the construction, validity, and interpretation of this Agreement and the
performance of the obligations imposed hereunder shall be governed by the laws of the State of New York, without giving effect
to the conflict of law or choice of law provisions thereof. Any dispute, controversy or claim arising out of this Agreement shall
be resolved in accordance with the rules of the Arbitration Association of America (“AAA”) applying New York law. Each
Party hereby waives its right to seek any remedy or claim for relief in court, including such Party’s right to a jury trial.
Notwithstanding the foregoing, any actions commenced under this Agreement shall be venued in either the United States District
Court for the Southern District of New York, or in the Supreme Court of New York, New York County. |
| (c) | Any notice required or permitted to be given pursuant to this Agreement shall be sufficiently given
when delivered or if sent by Certified mail postage prepaid, return receipt requested, on the third day after such mailing, to
the following address: |
If to Standard Metals Processing,
Inc.:
611
Walnut Street
Gadsden,
Alabama 35901
With a copy (which shall not
constitute notice) to the Company’s counsel:
Brinen & Associates, LLC
7 Dey Street, Suite 1503
New York, New York 10007
If to Employee:
At the address set forth on
the signature page.
or, as to each
party, at such other address as shall be designated by such party in a written notice to the other party pursuant to the terms
of this section.
| (d) | This Agreement may be executed in one or more counterparts, each of which shall be deemed to be
original, but all of which together shall constitute one and the same instrument. |
| (e) | The headings of the sections and subsections hereof have been inserted as a matter of convenience
and shall not be used in the interpretation of any provisions of this Agreement. |
| (f) | The failure of either party hereto in any one or more instances to insist upon the performance
of any of the terms or conditions of this Agreement, or to exercise any rights or privileges conferred in this Agreement or the
waiver by either party of any breach of any of the terms, covenants or conditions of this Agreement shall not be construed as thereafter
waiving any such terms, conditions, rights, privileges or covenants, and the same shall continue and remain in full force and effect
as if no such forbearance or waiver had occurred. |
| (g) | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions
of this Agreement in any other jurisdiction. Further, to the extent that any term or provision hereof is deemed invalid, void or
otherwise unenforceable, but may be made enforceable by amendment thereto, the parties agree that such amendment may be made so
that the same shall, nevertheless, be enforceable to the fullest extent permissible under the laws and public policies applied
in any such jurisdiction in which enforcement is sought. |
14. Entire
Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF,
the parties hereto have executed this Agreement under their seals as of the date and year first written above.
The Company:
Standard Metals Processing, Inc.
By: /s/ Sharon L. Ullman
Name: Sharon Ullman
Title: Chief Executive Officer, President and
Executive Chairwoman |
Employee:
Jonathan Spier
By: /s/ Jonathan Spier
Address: ____________________________
____________________________________ |
Exhibit A
Duties and Responsibilities
The duties and responsibilities set forth
below shall be incorporated by reference into the Employment Agreement (the “Agreement”) entered into by Standard Metals
Processing, Inc. (the “Company”) and Jonathan Spier (“Employee”) on the Effective Date. All terms not defined
below shall have the same meaning as set forth in the Agreement. This Exhibit A may be amended from time to time and upon executed
shall become a part of the Agreement.
Employee shall carry out all assignments
including:
| (i) | Review and analyze insurance policies; |
| (ii) | Attend board and committee meetings if requested; |
| (iii) | Assist the Chief Executive Officer as reasonably requested; |
| (iv) | Assist the Company in solicitation of customers for its toll milling services upon Company’s
receipt of necessary permit(s); |
| (v) | Assist officers, directors and corporate counsel with corporate disclosure and compliance with
state corporation laws, stock exchange listing standards and SEC reporting and compliance; |
| (vi) | Assist officers and directors with subsidiary management and governance; |
| (vii) | Serve as a focal point for investor communication and assist in the drafting of press releases;
and |
| (viii) | Review, monitor, and produce all web/online/social media content and presence; |
The parties hereto have executed this Exhibit
A to the Employment Agreement setting for the Employee’s duties and responsibilities as of the date below.
The Company:
Standard Metals Processing, Inc.
By: /s/ Sharon L. Ullman
Name: Sharon Ullman
Title: Chief Executive Officer, President and
Executive Chairwoman |
Employee:
Jonathan Spier
By: Jonathan Spier
Date: January 16, 2015 |
Exhibit B
Stock Option Grant
STANDARD METALS PROCESSING, INC.
STOCK OPTION GRANT AGREEMENT
The person named below
in Section I (the “Grantee”) has been granted a Stock Option from Standard Metals Processing, Inc., a Nevada corporation
(the “Company”), subject to the terms and conditions of this Stock Option Grant Agreement (the “Agreement”).
The Stock Options to
be granted to Grantee will be subject to certain restrictions on transfer.
I. NOTICE OF GRANT
OF OPTIONS
| Total Number of Options Granted: | Two Million Two Hundred Fifty Thousand (2,250,000) |
| Date of Grant: | January 16, 2015 |
| Fair Market Value of the Shares: | $1.15 (closing price on the Date of Grant) |
II. AGREEMENT
1.
Grant of Options. The Company hereby grants to Grantee the number of options of Common Stock of the Company (the
“Shares”) set forth in Section I above.
2.
Option Exercise Price. The exercise price for shares purchased under the Option shall be One Dollar Fifteen Cents
($1.15) per share.
3.
Term of Options. The term of each Option (the “Option Term”) shall be Seven (7) years from the Date of
Grant, unless otherwise established by the Plan Administrator.
4.
Exercise of Options. The Option shall vest and become exercisable as follows: (i) Seven Hundred Fifty Thousand (750,000)
shall vest on the Date of Grant; (ii) One Hundred Eighty-Seven Thousand Five Hundred (187,500) shall vest on each of the following
dates: April 1, 2015, July 1, 2015, October 1, 2015, January 1, 2016, April 1, 2016, July 1, 2016, October 1, 2016 and January
1, 2017.
5.
Payment of Exercise Price. The exercise price for shares purchased under an Option shall be paid in full to the Company
by delivery of consideration equal to the product of the Option exercise price and the number of shares purchased. Such consideration
must be paid in cash, check (subject to the approval of the Plan Administrator), wire, or any other compensation or combinations
thereof at the sole discretion of the Plan Administrator.
6.
Post-Termination Exercises. The Plan Administrator shall establish and set forth in each instrument that evidences
an Option whether the Option shall continue to be exercisable, and the terms and conditions of such exercise, if the Grantee ceases
to be employed by, or to provide services to, the Company or a Related Corporation, which provisions may be waived or modified
by the Plan Administrator at any time. If not so established in the instrument evidencing the Option, the Option shall be exercisable
according to the following terms and conditions, which may be waived or modified by the Plan Administrator at any time:
(a) Any portion
of an Option that is not vested and exercisable on the date of termination of the Grantee’s employment or service relationship
(the “Employment Termination Date”) shall expire on such date.
(b) Any portion of
an Option that is vested and exercisable on the Employment Termination Date shall expire upon the earliest to occur of:
(i)
if the Grantee’s Employment Termination Date occurs for reasons of Retirement, Disability (as defined in the in the
Grantee’s Employment Agreement) or death, the one-year anniversary of such Employment Termination Date;
(ii)
if the Grantee’s Employment Termination Date occurs for reasons other than Cause, Retirement, Disability or death,
the three-month anniversary of such Employment Termination Date; and
(iii)
the last day of the Option Term (the “Option Expiration Date”).
(c) Notwithstanding
the foregoing, if the Grantee dies after the Employment Termination Date while the Option is otherwise exercisable, the portion
of the Option that is vested and exercisable on such Employment Termination Date shall expire upon the earlier to occur of (A)
the Option Expiration Date or (B) the first anniversary of the date of death, unless the Plan Administrator determines otherwise.
(d) A Grantee’s
transfer of employment or service relationship between or among the Company and a Related Corporation, or a change in status from
an employee to a consultant, agent, advisor or independent contractor or a change in status from a consultant, agent, advisor or
independent contractor to an employee, shall not be considered a termination of employment or service relationship for purposes
of this Section 6. The effect of a Company-approved leave of absence on the terms and conditions of an Option shall be determined
by the Plan Administrator, in its sole discretion.
7.
Termination for Cause. Notwithstanding Section 6, in case of termination of the Grantee’s employment or service
relationship for Cause (as defined in the Grantee’s Employment Agreement), the Option shall automatically expire at the time
the Company first notifies the Grantee of such termination. If a Grantee’s employment or service relationship with the Company
is suspended pending an investigation of whether the Grantee shall be terminated for Cause, all the Grantee’s rights under
any Option likewise shall be suspended during the period of investigation.
8.
Notices. Any notice, demand or request required or permitted to be given by either the Company or the Grantee pursuant
to the terms of this Agreement shall be in writing and shall be deemed given when delivered personally or deposited in the U.S.
mail, First Class with postage prepaid, and addressed to the parties at the address with respect to the Grantee set forth at the
end of this Agreement and with respect to the Company at its principal place of business or such other address as the party may
request by notifying the other in writing.
9.
No Waiver. Either party’s failure to enforce any provision or provisions of this Agreement shall not in any
way be construed as a waiver of any such provision or provisions, nor prevent that party from thereafter enforcing each and every
other provision of this Agreement. The rights granted both parties herein are cumulative and shall not constitute a waiver of either
party’s right to assert all other legal remedies available to it under the circumstances.
10. Successors and
Assigns. The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement
shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth,
this Agreement shall be binding upon Grantee and his or her heirs, executors, administrators, successors and assigns.
11. Governing Law.
All questions concerning the construction, validity, and interpretation of this Agreement and the performance of the obligations
imposed hereunder, including without limitation the grant of the Options, shall be governed by the laws of the State of New York,
without giving effect to the conflict of law or choice of law provisions thereof. Any dispute, controversy or claim arising out
of this Agreement shall be resolved accordance with the rules of the Arbitration Association of America (“AAA”) applying
New York law. Each Party hereby waives its right to seek any remedy or claim for relief in court, including such Party’s
right to a jury trial. Notwithstanding the foregoing, any actions commenced under this Agreement shall be venued in either the
United States District Court for the Southern District of New York, or in the Supreme Court of New York, New York County.
12. Severability.
In the event that any of the provisions, or portions thereof, of this Agreement are held to be unenforceable or invalid by any
court of competent jurisdiction, the validity and enforceability of the remaining provisions, or portions thereof, will not be
affected, and such unenforceable provisions shall be automatically replaced by a provision as similar in terms as may be valid
and enforceable.
13. Entire Agreement.
This Agreement, as applicable, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersede
in their entirety all prior undertakings and agreements of the Company and Grantee with respect to the subject matter hereof, and
may not be modified adversely to the Grantee’s interest except by means of a writing signed by the Company and Grantee.
[SIGNATURE PAGE TO
FOLLOW]
IN
WITNESS WHEREOF, Grantee and the Company have executed this Agreement and agree that the grant of Stock Options hereunder is to
be governed by the terms and conditions of this Agreement.
GRANTEE |
COMPANY |
|
|
Jonathan Spier |
Standard Metals Processing, Inc. |
|
|
By: /s/ Jonathan Spier |
By: /s/ Sharon L. Ullman |
|
|
Name: Jonathan Spier |
Name: Sharon L. Ullman |
|
|
|
Title: Chief Executive Officer, President and Executive
Chairwoman |
Exhibit 99.1
Standard Metals Processing,
Inc. Names Jonathan Spier Chief Operating Officer
New York, New York, Jan. 21, 2015 -- Standard
Metals Processing, Inc., (OTCQB: SMPR) (the “Company”), announced today the appointment of Jonathan Spier as
its Chief Operating Officer.
“Management is very pleased with
the progress that was made in 2014 toward the launch of our custom toll milling operations. We welcome the addition of Mr. Spier
and the organizational skills and experience that have led to his distinguished career and many accomplishments. One of our highest
priorities as we prepare for rapid growth in 2015 was to fill this important position and we are delighted to have Mr. Spier on
board,” said Sharon Ullman, CEO of Standard Metals Processing, Inc.
“I am excited to begin my position
as COO of Standard Metals Processing, Inc. Having worked as an entrepreneur and venture capitalist since 1982, I have encountered
and been involved with many innovative and successful companies. I look forward to helping the Company grow and succeed. As a substantial
shareholder, I like getting involved in companies I believe in,” said Jonathan Spier.
Mr. Spier is an entrepreneur and venture
capitalist. He started and successfully sold a number of private companies. He also acquired a majority interest in a bankrupt
wholesale manufacturing firm that he grew to over $300 million in annual revenue, with EBITDA in excess of $20 million, representing
nearly $800 million at retail, including thirteen licensed product channels, in less than four years before its sale. As a venture
capitalist, he has investments in a number of private and small cap companies across various industries and held positions including:
the Founding Partner and Managing Director of PCES, a joint venture alliance with Pegasus Capital Advisors focusing on ESOP-based
private equity acquisitions; a Managing Director of Madison Partners, a NYC based private investment firm; President of S&S
Florida Ventures, a South Florida based commercial real estate investment firm and Founder/Managing Director of Rosedown MHP Investments,
a real estate investment firm focusing on modular home communities throughout the United States.
Mr. Spier has also served as a board member
of Passport Brands, Inc., a publicly traded consumer products firm and Plexigen, Inc., a North Carolina based Life Sciences firm.
He was an Ernst & Young Entrepreneur of the Year Finalist in 2004 and Ernst & Young Entrepreneur of the Year Winner in
2005.
About Standard
Metals Processing, Inc.
Standard Metals
Processing, Inc. is being developed as the only comprehensive custom toll milling operation in Nevada that is designed to provide
entrepreneurial – mid-mines with four different independent process circuits under one roof in order to produce the greatest
yields available through the extraction of precious, strategic minerals from mined material.
Forward-Looking
Statement
This release includes
forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. All statements regarding our expected future financial position, results of operations,
cash flows, financing plans, business strategy, products and services, competitive positions, growth opportunities, plans and objectives
of management for future operations, as well as statements that include words such as “anticipate,” “if,”
“believe,” “plan,” “estimate,” “expect,” “intend,” “may,”
“could,” “should,” “will,” and other similar expressions are forward-looking statements. All
forward-looking statements involve risks, uncertainties and contingencies, many of which are beyond our control, which may cause
actual results, performance, or achievements, as described in our reports filed with the Securities and Exchange Commission which
are available for review at www.sec.gov, to differ materially from anticipated results,
performance, or achievements. We are under no obligation to (and expressly disclaim any such obligation to) update or alter our
forward-looking statements, whether as a result of new information, future events or otherwise.
SOURCE: Standard Metals Processing, Inc.
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