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Note 5. Commitments and Contingencies
9 Months Ended
Sep. 30, 2016
Notes  
Note 5. Commitments and Contingencies

Note 5.                        Commitments and Contingencies

 

Effective July 17, 2016, the Company entered into an Employment Agreement (the “Agreement”) with Timothy R. Kasmoch to serve as the Company’s President and Chief Executive Officer commencing July 17, 2016.  The Agreement is for a three-year term and provides for automatic renewal of successive one-year terms unless notice is provided ninety (90) days prior to the expiration of the then current term.  The Agreement provides that Mr. Kasmoch is to receive an annual base salary of $150,000, subject to annual increase at the discretion of the Board of Directors of the Company.  In addition, Mr. Kasmoch is eligible for an annual cash bonus in an amount to be determined, a vehicle allowance, and otherwise subject to the discretion of, the Board of Directors.  Under the Agreement, this determination is to be based upon the Board of Directors review of Mr. Kasmoch's performance.  The Agreement also provides for annual stock option grants to Mr. Kasmoch.  The Employment Agreement permits Mr. Kasmoch to terminate his employment in the event of a change of control or certain enumerated material breaches thereof by the Company.  In the event the Company terminates his Employment Agreement without cause, Mr. Kasmoch is entitled to receive his base salary for the period between the termination date and the natural expiration of his Employment Agreement or any extension thereof. Employee shall also have the right to exercise all options that have vested through and including the termination date.  Additional information about the Agreement is available as Exhibit 10.7 in the Form S-1 filed on July 25, 2016.

 

Effective July 17, 2016, the Company entered into an Employment Agreement (the “Agreement”) with Robert W. Bohmer to serve as the Company’s Executive Vice President and General Counsel commencing July 17, 2016.  The Agreement is for a three-year term and provides for automatic renewal of successive one-year terms unless notice is provided ninety (90) days prior to the expiration of the then current term.  The Agreement provides that Mr. Bohmer is to receive an annual base salary of $57,200, subject to annual increase at the discretion of the Board of Directors of the Company.  In addition, Mr. Bohmer is eligible for an annual cash bonus in an amount to be determined, and otherwise subject to the discretion of, the Board of Directors.  Under the Agreement, this determination is to be based upon the President/Chief Executive Officer’s and Board of Directors review of Mr. Bohmer's performance.  The Agreement also provides for annual stock option grants to Mr. Bohmer.  The Employment Agreement permits Mr. Bohmer to terminate his employment in the event of a change of control or certain enumerated material breaches thereof by the Company.  In the event the Company terminates his Employment Agreement without cause, Mr. Bohmer is entitled to receive his base salary for the period between the termination date and the natural expiration of his Employment Agreement or any extension thereof.  Employee shall also have the right to exercise all options that have vested through and including the termination date.  Additional information about the Agreement is available as Exhibit 10.8 in the Form S-1 filed on July 25, 2016.

 

Effective July 17, 2016, the Company entered into an Employment Agreement (the “Agreement”) with James K. McHugh to serve as the Company’s Chief Financial Officer, Secretary and Treasurer commencing July 17, 2016.  The Agreement is for a three-year term and provides for automatic renewal of successive one-year terms unless notice is provided ninety (90) days prior to the expiration of the then current term.  The Agreement provides that Mr. McHugh is to receive an annual base salary of $125,000, subject to annual increase at the discretion of the Board of Directors of the Company.  In addition, Mr. McHugh is eligible for an annual cash bonus in an amount to be determined, and otherwise subject to the discretion of, the Board of Directors.  Under the Agreement, this determination is to be based upon the President/Chief Executive Officer’s and Board of Directors review of Mr. McHugh's performance.  The Agreement also provides for annual stock option grants to Mr. McHugh.  The Employment Agreement permits Mr. McHugh to terminate his employment in the event of a change of control or certain enumerated material breaches thereof by the Company.  In the event the Company terminates his Employment Agreement without cause, Mr. McHugh is entitled to receive his base salary for the period between the termination date and the natural expiration of his Employment Agreement or any extension thereof.  Employee shall also have the right to exercise all options that have vested through and including the termination date.  Additional information about the Agreement is available as Exhibit 10.9 in the Form S-1 filed on July 25, 2016.

 

            As of September 30, 2016, the Company has accrued a liability of approximately $191,000 to reflect the total amount of salary and related payroll taxes voluntarily deferred by its three executive officers since February 2012 under their 2010 (as amended) and 2016 employment agreements, as well as approximately $123,000 in undeferred salary and related payroll taxes, for a combined total of approximately $314,000 in unpaid salaries and related payroll taxes.  Additional information about the 2010 employment agreements and any subsequent amendments for the officers is available in Item 11 Executive Compensation of the Form 10-K filed on April 14, 2016.

 

            The Company’s executive and administrative offices are located in Toledo, Ohio.  In April 2011, the Company signed a 68 month lease with Deerpoint Development Co., Ltd. (“Deerpoint”).  The total minimum rental commitment for the remaining contracted year of 2016 is $40,764.  In June 2015, the Company issued Deerpoint 16,106 shares of unregistered common stock at a price of $1.43 per share in exchange for six months rent, resulting in net additional expense of approximately $2,600 above the contracted amount, but saving approximately $20,400 of cash.  The total rental expense included in the statements of operations for the nine months ended September 30, 2016 and 2015 is approximately $30,600 and $33,200, respectively.  The total rental expense included in the statements of operations for both the three months ended September 30, 2016 and 2015 is approximately $10,200.

 

            In October 2010, the Company began to lease property in Emlenton, Pennsylvania under a lease with A-C Valley Industrial Park, for one year.  After September 2011, the Company operated under a month-to-month lease agreement, for a reduced rate, therefore there is no minimum rental commitment at September 30, 2016 for any of the succeeding five years.  The total rental expense included in the statements of operations for each of the nine months and three months ended September 30, 2016 and 2015 is $9,000 and $3,000, respectively.

 

            In June 2009, the Company began to maintain an office in West Unity, Ohio under a lease with D&B Colon Leasing, LLC, (“D&B”) for one year.  In June 2010, the Company renewed the lease for an additional year through May 2011, and operated under a month-to-month lease until the Company closed the office in September 2014.  In June 2015, the Company issued D&B 20,997 shares of unregistered common stock at a price of $1.48 per share in exchange for the remaining eleven months rent owed, resulting in net additional expense of approximately $3,600 above the contracted amount, but saving $27,500 of cash.  The total rental expense included in the statements of operations for the nine months ended September 30, 2016 and 2015 is $-0- and $3,600, respectively.  The total rental expense included in the statements of operations for both the three months ended September 30, 2016 and 2015 is $-0-.

 

            For each of the nine months and three months ended September 30, 2016 and 2015, the Company paid a total of $19,800 and $6,600, respectively, recorded as rent in selling, general and administrative expense, on behalf of the Chief Executive Officer.  No future commitment exists in any succeeding years as the residential building lease is not in the Company’s name, however the Company expects to pay $2,200 for the remainder of 2016 through the lease term maturing October 31, 2016.

 

            In June 2014, Mulberry Processing, LLC, a wholly owned subsidiary of the Company, entered into a contract to lease certain real property and buildings in Bradley, Florida from Bowling Green Holdings, LLC, for a five year lease term beginning June 1, 2014 and a monthly payment of $10,000.  More details can be found in Note 4 Capital Lease, in default.

 

            In September 2014, the Company entered into an operating lease with Caterpillar Financial for operating equipment at its Bradley, Florida location.  The lease term is for three years beginning October 2014 and a monthly payment of $3,155.  The total minimum rental commitment for the year ending December 31, 2016 is $37,900 and for the year ending December 31, 2017 is $28,400.  The total rental expense included in the statements of operations for each of the nine months and three months ended September 30, 2016 and 2015 is $28,395 and $9,465, respectively.

 

            For all of the Company’s operating leases, the total rental expense included in the statements of operations for the nine months ended September 30, 2016 and 2015 is $85,800 and $94,000, respectively.  The total rental expense included in the statements of operations for the three months ended September 30, 2016 and 2015 is $27,300 and $29,300, respectively.

 

            As of September 30, 2016, the only properties management believes to be adequately covered by insurance are the lease with Caterpillar Financial and a truck operating at its Bradley Florida location.  The Company’s general and automotive liability insurance lapsed effective September 1, 2016.

 

           

The Company operates in an environment with many financial risks, including, but not limited to, major customer concentrations, customer contract termination provisions, competing technologies, infringement and/or misappropriation of intellectual property rights, the highly competitive and, at times, seasonal nature of the industry and worldwide economic conditions.  Various federal, state and governmental agencies are considering, and some have adopted, laws and regulations regarding environmental protection which could adversely affect the business activities of the Company.  The Company cannot predict what effect if any, current and future regulations may have on the operations of the Company.

 

 

           

From time to time the Company is involved in legal proceedings and subject to claims which may arise in the ordinary course of business.  Certain unsecured creditors have brought civil action against the Company related to nonpayment.  The Company has not accrued any additional amount related to these charges, but continue to negotiate payment plans to satisfy these creditors.