ADVISORY AGREEMENT (Level)
Exhibit 6.31
(Level)
THIS ADVISORY AGREEMENT (the
“Agreement”)
is made this 9th day of May, 2017 (the “Effective
Date”) by and between Formula Four Beverages Inc., a
British Columbia, Canada corporation (the “Company”),
I|M1, LLC (“IM1”),
Encore Endeavor 1, LLC (“EE1”)
(IM1 and EE1, collectively, the “Advisor”).
BACKGROUND
A. The Company desires to retain the
Advisor to provide certain advisory services as hereinafter set
forth.
B. The
Advisor desires to provide certain advisory and consulting services
to the Company in accordance with the terms and conditions
contained hereinafter.
AGREEMENT
NOW, THEREFORE, in consideration of the
mutual promises set forth herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Advisory
Services.
(a) During the Term of
this Agreement, the Advisor is hereby retained by the Company on a
non-exclusive basis to provide strategic advisory services (the
“Services”)
to the Company to be mutually agreed to which are anticipated to
include: (a) provide reasonable input to the Company on various
aspects of corporate branding, and (b) work with the Company and
coordinate with other service providers of the Company with respect
to the Services set forth on Exhibit A.
(b) The Services
provided by Advisor and availability of its affiliates will, in all
respects, be subject to the Standard Terms and Conditions set forth
on Exhibit B
(“Standard Terms and
Conditions”) attached hereto and incorporated herein
by this reference. In the event of any conflict between the body of
this Agreement and the Standard Terms and Conditions, the Standard
Terms and Conditions shall control. If Company requests the
affiliates of Advisor to travel in connection with the rendering of
any Services, Advisor shall be entitled to approve each such
request (which approval may be withheld in the Advisor’s sole
discretion), and any arrangements for such travel will be pursuant
to the Standard Terms and Conditions.
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2. Term;
Termination. The Term of this Agreement shall commence on
the Effective Date as set forth above and end on December 31, 2021
(the “Expiration
Date”). Either the Advisor or the Company may
terminate this Agreement in the event that the other party breaches
or fails to perform any of its material obligations under this
Agreement, and such failure or default continues uncured for a
period of thirty (30) days following written notice from the
non-defaulting party (or if such breach, failure or default is not
reasonably capable of cure without cost or liability to the non
breaching party, then termination shall be effective immediately
upon delivery of notice). Within the six months prior to the
Expiration Date, the parties agree to meet and discuss, in good
faith, a renewal of this Agreement. The parties acknowledge and
agree that each term and provision in the Standard Terms and
Conditions is a material obligation of the Company under this
Agreement.
3. Compensation.
(a) Unless and until
the parties mutually agree otherwise, the Company agrees to pay to
Advisor the following compensation, with such compensation in each
case divided equally between IM1 and EE1, in exchange for the
Services, and the compensation terms included in this Section 3
shall survive any termination of this Agreement:
(i) Warrant.
Concurrently with the execution hereof, the Company shall issue a
Warrant (a “Warrant”)
to the Advisor to purchase 1,600,000 shares of the common stock of
the Company, for an aggregate exercise price of Four hundred and
one dollars ($401.00), in exchange for the Services performed by
the Advisor hereunder. The parties understand and agree that the
Services to be performed by Advisor hereunder with respect to the
Warrant shall be fully performed within 45 days of the execution
hereof; provided, that a
failure to perform such services within such period shall not be
deemed a material breach of this Agreement.
(ii) Royalty.
In further remuneration, commencing on the date hereof, the Company
shall pay the Advisor royalties in U.S. dollars in an amount equal
to the following amounts based on the total number of cases of
OXiGEN related product (including all current and future products)
sold in the United States in each such year (the
“Royalty”)
(for purposes hereof, the 2017 contract year shall commence on the
date hereof and end on the first anniversary of the date hereof,
and each annual anniversary of the date hereof thereafter shall be
the beginning of the next following contract year):
2017: 750,001 - 1,500,000 cases
at a $0.40 per case, everything over 1,500,001+ cases sold at $0.60
per case;
2018: 750,001 - 2,500,000 cases
at $0.40 per case, everything over 2,500,001+ cases at $0.60 per
case;
2019: 750,001 - 5,000,000 cases
at $0.40 per case, everything over 5,000,001+ cases at $0.60 per
case;
2020: 750,001 - 10,000,000
cases at $0.40 per case, everything over 10,000,001+ cases at $0.60
per case; and
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2021: 750,001 - 15,000,000
cases at $0.40 per case, everything over 15,000,001+ cases at $0.60
per case.
For
clarification purposes, as of the date hereof (but subject to
change from time to time with new and/or replacement product
offerings by the Company), a “case” delineates a case
of OXiGEN water being 24 x 20 fl. oz. bottles, 24 x 16.9 fl. oz.,
12 x 1 liter, 12 x 1.5 liter and a case of OXiGEN
“shot” being 30 x 0.5 fl. oz. shots. Notwithstanding
the foregoing, any new product “cases” other that the
aforementioned delineation of cases shall: (i) be a commercially
standardized standard configuration; and (ii) not have an adverse
effect on the Royalty payable to the Advisor pursuant to the
Agreement.
(iii) Royalty
Payments. Within forty five (45) days after the end of each
calendar month, the Company shall furnish to the Advisor a complete
sales and royalty report certified to be accurate by the Chief
Financial Officer of the Company or by some other authorized
designee of the Company showing the number and description of the
cases of product sold during such month, as well as the production
records for the Company’s product during the month for which
the royalty payment to such Advisor are being
provided.
(b) Royalty Report. The Company
shall use a report form agreed to by the parties. Such report shall
be furnished to Advisor whether or not any of the cases of such
product have been sold during the preceding month. The receipt or
acceptance by the Advisor of any of the reports furnished by the
Company pursuant to this Agreement or of any royalties paid by the
Advisor hereunder (or the cashing of any royalty checks paid by the
Company hereunder) shall not preclude the Advisor from questioning
the accuracy thereof at any time, and in the event that any
inconsistencies or mistakes are discovered in such reports or
payments, any inconsistency, mistake, or inaccuracy shall
immediately be rectified, and any appropriate payment due and owing
shall immediately be paid by the Company to the Advisor. Any
amounts not paid to the Advisor when due under this Agreement shall
bear a late payment charge on the unpaid balance at the rate of
1.5% per month, compounded, or the maximum amount permitted by law,
whichever is less.
(c) Audit Rights. the Company
agrees to keep accurate books of account and records covering all
transactions relating to the license hereby granted, and the
Advisor and its duly authorized representatives shall have the
right after giving reasonable notice at all reasonable hours of the
day to an examination of said books of account and records relating
to the Company’s performance under the Agreement, and of all
other documents and materials in the possession or under the
control of the Company or any of its affiliated, associated, or
subsidiary companies or agents, with respect to the subject matter
and terms of this Agreement, and shall have free and full access
thereto for said purposes and for the purpose of making extracts
therefrom. Upon request of Advisor, the Company shall furnish to
Advisor a detailed statement by an independent certified public
accountant showing the number and description of the cases of
product covered by this Agreement distributed and/or sold by the
Company to the date of Advisor’s demand. All books of account
and records shall be kept available for no less than Seven (7)
years, or, as long as required by the Internal Revenue Service, if
longer than 7 years. Each calendar year in which this Agreement is
in effect, and after expiration or termination of this Agreement,
Advisor shall be entitled to an independent audit of and be given
access to the Company’s account books, records, invoices and
other pertinent data by a certified public accountant or qualified
auditor designated by Advisor. The audit shall be conducted to
determine the Company’s sales of products, and shall be
conducted during normal business hours at the Company’s
business office or location of such files and records. The cost of
the audit shall be borne by Advisor unless the audit reveals that
the Company understated the Royalties by more than two percent
(2%), in which case the Company shall be required to pay all
Advisor’s costs of the audit.
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(d) Change of Control. In the event
the Company or its US subsidiary, Formula Four Beverages (USA)
Inc., incurs or enters into any agreement pursuant to which a
Change of Control (as defined below) would occur, the Company shall
provide the Advisor notice of such Change of Control. Following
such notice, at the option of any party to this Agreement and upon
notice to the other parties, this Agreement, together with the
Royalty paid to Advisor under Section 3(a)(ii) shall immediately
terminate and the Advisor shall be paid, in lieu thereof, a
one-time, lump sum aggregate payment equal to the cumulative
Royalties paid to the Advisor over the previous trailing 12-month
period. The lump sum payment shall be paid to Advisor within 30
days of the occurrence of the Change of Control. For purposes
hereof, “Change of
Control” means (1) any consolidation or merger of such
entity in which the entity is not the continuing or surviving
entity, or pursuant to which the shares are converted to cash,
other securities or other property, other than a consolidation or
merger of the entity in which the holders of the entities shares
immediately prior to the consolidation or merger have substantially
the same percentage ownership of the interests of the continuing or
surviving entity immediately after the consolidation or merger, or
(2) any sale, lease, exchange or other transfer (in one transaction
or in a series of transactions and not in the ordinary course of
business) of all or substantially all of the entities assets, (3) a
sale of fifty percent (50%) or more of the then outstanding voting
securities of the entity to one party, or (4) any other event,
pursuant to which the members of the Board of Directors (or similar
governing body) who were elected prior to the occurrence no longer
constitute a majority of the members of such governing body.
Notwithstanding the above, any conveyance, transfer or grant of
security title to or a security interest in any goods, accounts,
inventory, general intangibles or other assets of such entity to
secure the obligations of the entity or any of its subsidiaries, or
the exercise of any rights or remedies by such entity after a
default of indebtedness, shall not constitute a “Change of
Control” as used herein.
4. System
Requirements. The Company agrees to become a member and
utilize (a) Dependable Solutions, a product approval and royalty
reports services, (b) to the extent the terms are reasonable and
the Company utilizes payment terms by credit or debit card, ireland
pay, a merchant agreement service, and (c) to the extent the terms
are reasonable, any similar web platform as may be utilized by the
Advisor from time to time as a means of facilitating performance
under this Agreement.
5. Expenses.
The Advisor shall be reimbursed for all out of pocket costs and
expenses incurred by it in the performance of the Services
hereunder subject to preapproval by the Company.
6. Return of
Documents. On termination of this Agreement or at any time
upon the request of Company in writing, Advisor shall return to
Company all documents, including all copies thereof, and all other
property relating to the business of Company and/or its
subsidiaries, including without limitation, the Confidential
Information (as hereinafter defined), in its possession or
control.
7. Amendment or
Assignment. No
modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is evidenced by a written
instrument, executed by the party against which such modification,
waiver, amendment, discharge or change is sought. This Agreement is
not assignable by the Advisor without the prior written consent of
the Company, which such consent may not be forthcoming; provided,
that for the avoidance of doubt, assignment by Advisor of one or
more advisory services to its employees or affiliates shall not
constitute a violation of this Agreement.
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8. Confidentiality.
(a) The parties agree
that the terms, conditions, and subject matter of this Agreement
constitute confidential and proprietary information belonging to
each party. Each party agrees not to divulge any confidential and
proprietary information pertaining to the other party or this
Agreement to any third party without prior written consent of the
other party. Each party shall take all lawful measures to prevent
the unauthorized use and/or disclosure of such confidential
information, and to prevent unauthorized persons or entities from
obtaining or using such information. Each party further agrees to
refrain from directly or indirectly taking any action, which would
constitute or facilitate the unauthorized use or disclosure of such
confidential information. Each party may disclose such confidential
and proprietary information to its officers, directors, employees,
agents, and authorized representatives to the extent necessary to
enable such party to perform its obligations under this Agreement;
provided said officers, directors, employees, agents, and/or
authorized representatives agree to abide by the confidentiality
provisions herein, which by its terms shall be enforceable by
injunctive relief. Each party shall be liable for any unauthorized
use and disclosure of such confidential information by its
officers, directors, employees, agents, and authorized
representatives, including without limitation its attorneys and
accountants. Each party further agrees that any breach or
threatened breach of this Section 8 would cause irreparable harm to
the other party, that a remedy at law or in damages would be
inadequate, and that the provisions of this Section 8 may be
enforced by way of injunctive relief in addition to any other
rights available to such party in law or in equity.
(b) For purposes of
this Agreement, “confidential and proprietary
information” includes, but is not limited to, the terms,
conditions, and subject matter of this Agreement, and such
party’s business, including any financial, cost, pricing, and
royalty information; product development, business, marketing,
promotion, distribution, sales, sales plans, and strategies;
information concerning such party’s product development and
intellectual property or trade secrets. The foregoing
confidentiality obligations shall not apply to information that:
(1) was previously known to the recipient free of any obligation to
keep it confidential; (2) was independently developed by recipient;
or (3) is or becomes publicly available by means other than the
unauthorized disclosure by recipient.
(c) In the event any
judicial or regulatory authority requests or requires disclosure of
any confidential information of the other party, the receiving
party shall promptly notify the disclosing party of the requested
or required disclosure and shall cooperate with the disclosing
party in any effort to avoid or limit such disclosure.
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9. Indemnity;
Insurance.
(a) Indemnity. The Company shall
indemnify, defend and hold Advisor and its affiliates harmless, at
Company’s own expense, from and against any and all losses,
liability, obligations, damages, third-party claims, demands,
causes of action, costs and expenses of whatever form or nature
(each a “Claim”
and collectively, “Claims”), including reasonable
outside attorney’s fees and other costs of legal defense,
arising out of or related to: (i) the Advisor’s rendering of
Services under this Agreement; (ii) an actual or alleged breach of
any of the representations, warranties or covenants of this
Agreement by the Company; (iii) the Company’s negligence,
willful misconduct, or willful misrepresentation; or (iv) any other
act or omission by or attributable to Company in connection with
this Agreement except to extent such indemnity is prohibited by
law. Company shall give prompt written notice to the Advisor of any
proposed settlement of any Claim. Company may not, without the
Advisor’s prior written consent, which the Advisor shall not
unreasonably withhold, condition or delay, settle or compromise any
claim or consent to the entry of any judgment regarding which
indemnification is being sought hereunder unless such settlement,
compromise or consent: (X) includes an unconditional release of the
Advisor from all liability arising out of such claim; (Y) does not
contain any admission or statement suggesting any wrongdoing or
liability on behalf of the Advisor; and (Z) does not contain any
equitable order, judgment or term (other than the fact of payment
or the amount of such payment) that in any manner affects,
restrains or interferes with the business of the Advisor. The
indemnity contained in this Section 9(a) shall not apply to any
such losses, claims, related expenses, damages or liabilities
arising out of gross negligence, willful misconduct or fraud of the
Advisor, or a material breach of the Advisor’s
representations and warranties hereunder.
(b) Exculpation. Notwithstanding
anything to the contrary herein, the Advisor shall, to the greatest
extent permitted by law at the time this clause is construed, be
exculpated from any liability whatsoever for any alleged abuse of
discretion, tort, breach of fiduciary duty and/or breach of trust
caused by any act or omission in connection with this Agreement. As
a consequence, the Advisor shall under no circumstances ever be
held personally liable to any other person, firm or corporation for
any damages directly or indirectly arising out of any act or
omission committed in connection with this Agreement. This
exculpation shall not, however, protect the Advisor from any
liability for a breach of trust committed intentionally or in bad
faith. Even if this Section 9(b) shall not protect the Advisor due
to the foregoing sentence, in no event shall the Advisor ever be
liable for any punitive or exemplary damages for any act or
omission committed in connection with this Agreement hereunder
regardless of whether such act or omission constituted an act
committed intentionally or in bad faith.
(c) Insurance. The Company
represents that it has obtained, and agrees to maintain, at its own
expense, in full force and effect at all times during which the
Company’s products are being manufactured, sold, and
distributed, insurance for bodily injury, advertising injury,
property damage, and product liability from a recognized insurance
company approved by Advisor, which is qualified to do business in
the State of California, providing protection at least in the
amount of $5,000,000 per occurrence and $5,000,000 in the aggregate
for the Company and for the Advisor against any actions, claims,
demands, lawsuits, loss, costs, attorneys’ fees, damages,
judgments, and liabilities of any nature whatsoever relating to
such products. Any proposed change in certificates of insurance
shall be submitted to the Advisor for its prior written approval.
The Advisor shall be entitled to a copy of the prevailing
certificate of insurance, which shall be furnished to the Advisor
by the Company. The certificate(s) shall conform to the language
requirements set out in Exhibit C attached hereto. For
purposes of this Section 9(c), the term “Advisor” shall
mean the Advisor and, without limitation, any of their agents,
employees, servants, representatives, parents, subsidiaries,
affiliates, officials, directors, officers, shareholders, owners,
attorneys, divisions, branches, units, affiliated organizations,
successors, predecessors, contractors, assigns, and all persons
acting by, through, under, or in concert with them, past or
present.
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10. Waiver.
Unless agreed in writing, the failure of either party, at any time,
to require performance by the other of any provisions hereunder
shall not affect its right thereafter to enforce the same, nor
shall a waiver by either party of any breach of any provision
hereof be taken or held to be a waiver of any other preceding or
succeeding breach of any term or provision of this Agreement. No
extension of time for the performance of any obligation or act
shall be deemed to be an extension of time for the performance of
any other obligation or act hereunder.
11. Notices.
All notices, demands or other communications given hereunder shall
be in writing and shall be deemed to have been duly given on the
day when delivered in person or transmitted by confirmed facsimile
transmission or on the third (3rd) calendar day after being mailed
by United States registered or certified mail, return receipt
requested, postage prepaid, to the addresses hereinabove first
mentioned or to such other address as any party hereto shall
designate to the other for such purpose in the manner herein set
forth.
12. Entire
Agreement. This
Agreement contains all of the understandings and agreements of the
parties with respect to the subject matter discussed herein. All
prior agreements, whether written or oral, are merged herein and
shall be of no force or effect.
13. Survival.
Any termination of this Agreement shall not, however, affect the
ongoing provisions of this Agreement which shall survive such
termination in accordance with their terms.
14. Severability.
The invalidity, illegality or unenforceability of any provision or
provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor
will the invalidity, illegality or unenforceability of a portion of
any provision of this Agreement affect the balance of such
provision. In the event that any one or more of the provisions
contained in this Agreement or any portion thereof shall for any
reason be held to be invalid, illegal or unenforceable in any
respect, this Agreement shall be reformed, construed and enforced
as if such invalid, illegal or unenforceable provision had never
been contained herein.
15. Governing
Law.
(a) This Agreement
shall be construed in accordance with and the laws of the State of
California which shall govern all disputes relating hereto without
giving effect to any conflicts of law provisions. The parties agree
that any disputes, controversies or claims arising out of,
regarding, or in any way relating to the interpretation,
application, or enforcement of this Agreement, or any matter
reasonably related thereto, shall be handled by way or arbitration
and administered by and in accordance with the JAMS streamlined
Arbitration Rules and Regulations (the ''JAMS Rules
'') of the Judicial Arbitration and Mediation Service in effect at
the time of any such proceedings. Such arbitration shall be the
sole, exclusive, and final remedy for resolving any such claims and
disputes. Judgment on the final award rendered by the arbitrator
may be entered into in any court of competent jurisdiction and
shall be final and binding upon the parties.
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(b) Notwithstanding the
foregoing, the parties may seek provisional relief, including a
preliminary injunction or temporary restraining order, in any
federal or state court of competent jurisdiction located in Los
Angeles, California, without prejudice to the above described
arbitration procedures, if in that parties sole judgment such
provisional relief is necessary to avoid an irreparable injury or
to preserve the status quo. Never the less, the arbitration
procedure set forth in this Section 15 is intended to be the sole
and exclusive method of resolving any claims arising out of,
relating to, or regarding this Agreement.
16. Enforcement.
Any suit, action or proceeding with respect to this Agreement shall
be brought in the state or federal courts located in Los Angeles
County in the State of California. The parties hereto hereby accept
the exclusive jurisdiction and venue of those courts for the
purpose of any such suit, action or proceeding. The parties hereto
hereby irrevocably waive, to the fullest extent permitted by law,
any objection that any of them may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any judgment entered by any court in
respect thereof brought in Los Angeles County, California, and
hereby further irrevocably waive any claim that any suit, action or
proceeding brought in Los Angeles County, California has been
brought in an inconvenient form.
17. Binding
Nature. The terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the parties, and their
respective successors and assigns.
18. Counterparts.
This Agreement may be executed in any number of counterparts,
including facsimile signatures which shall be deemed as original
signatures. All executed counterparts shall constitute one
agreement, notwithstanding that all signatories are not signatories
to the original or the same counterpart.
[signature page
follows]
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IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date first above
written.
Company:
Formula
Four Beverages Inc.
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇ May 9, 2017
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
CEO
Advisor:
I|M1,
LLC
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
President
Encore
Endeavor 1, LLC
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
President
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EXHIBIT A
Strategic Alignment Deliverables
INFLUENCER MARKETING / ADVERTISING
●
OXiGEN to work with
Advisors on influencer program. OXiGEN’s presence at upcoming
events; and
●
Advisor to assist
with obtaining best paid advertising rates through its current
partners that are deemed relevant to OXiGEN.
OXiGEN REPRESENTATION BY ADVISOR
●
Advisor, to
include, when appropriate, the OXiGEN story in media opportunities;
and
●
Advisor, when
possible, will incorporate social media posts directly related to
OXiGEN in the social channels.
PRODUCTION ASSETS
●
Advisor in
cooperation with other service providers and OXiGEN to lead the
initiative to create a 5-6 minute video telling the story and
vision of OXiGEN;
●
Advisor in
cooperation with other service providers and OXiGEN will assist
with production resources/facilities at agreed upon times/dates;
and
●
Advisor in
cooperation with other service providers and OXiGEN, will assist
with producing broadcast materials and other visuals for the brand
which may be used globally.
DISTRIBUTION
●
Advisor will
mutually endeavor to enhance OXiGEN’s sales/distribution
networks;
●
Advisor will
mutually endeavor to enhance OXiGEN’s retail accounts;
and
●
Advisor will
mutually endeavor to enhance OXiGEN’s key product
alignment/placement with various entities.
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EXHIBIT B
Standard Terms & Conditions
1.
Likeness & Promotional Materials
1.1.1.
Company
acknowledges the good reputation of the Advisor and its affiliates,
and further acknowledges that all uses of the Advisor’s or
its affiliate’s name, photographic image, and
non-photographic likeness manufactured, distributed, and/or
exploited by Company (collectively “Likenesses”) will be utilized in
such a manner as to enhance the reputation and recognition of the
Advisor and its affiliates to the mutual benefit of the parties and
shall be subject advanced approval by the Advisor as provided
hereunder. The quality of each Likeness shall be suitable for the
use for which they are intended.
1.1.2.
All Likenesses
developed hereunder, and all brochures, publications, printed
matter, advertising, signs, promotional displays, websites,
webpages, video and sound recordings, online social media pages
(hereinafter the “Promotional
Materials”) and other forms of advertising,
promotional, and/or publicity material in connection with the
Services, shall be subject to the Advisor’s written approval
in advance of use, distribution, marketing or sale. Without cost to
the Advisor, Company shall submit to the Advisor for its inspection
and approval, at least three (3) samples of each Likeness and/or
Promotional Material prior to any use, marketing, advertising, sale
or other distribution to the public (each a “Sample”). In lieu of submitting
three (3) Samples of the Likenesses and/or Promotional Materials
under this Paragraph, Company may submit either a computer diskette
or e-mail attachment containing a depiction of one (1) Sample for
the Advisor’s inspection and approval. The Advisor’s
representative, or any duly authorized representative of the
Advisor designated by it in writing, shall have TEN (10) BUSINESS
DAYS from the Advisor’s confirmed receipt of the supplied
Samples to approve or reject in writing such samples. If any such
time period lapses without Company receiving express written
approval or rejection of the supplied Samples, the Samples will be
deemed approved by the Advisor, provided that copies of all
correspondence accompanying the Samples are submitted or sent to
the Advisor’s counsel in accordance with the notice
provisions of Section 7 of this Exhibit B. Company shall not
distribute, market and/or exploit any Likeness or Promotional
Material until Company has received the Advisor’s written
approval of the Sample.
1.1.3.
All materials
submitted for approval to the Advisor in a language other than
English will be accompanied by a complete and accurate English
translation.
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1.1.4.
In addition to the
standards required above, Company acknowledges the great value of
the goodwill associated with Advisor, and Company agrees that it
will not use the Likenesses or Promotional Material in any manner
which, directly or indirectly, would demean, ridicule or otherwise
tarnish the reputation or image of the Advisor. Without limiting
the foregoing, (i) all Likenesses and Promotional Materials shall
in all respects be manufactured, marketed and distributed in a
manner consistent with the high quality standards and image of the
Advisor, and (ii) Company shall not permit the manufacture,
marketing or distribution of any Promotional Material or any other
material in connection with the rendering of Services that
represents, depicts or promotes (a) the glorification of violence,
including but not limited to any representations of gang- or
terrorist-related imagery, firearms or explosive devices, (b)
sexual activities, including but not limited to any representations
of body parts or sex toys, (c) religious beliefs, including but not
limited to any religious iconography or any image commonly
associated with any religious organization or cult, (d) any
political content, (e) tobacco, alcohol or drug use, or (f)
personal hygiene.
2.
Travel &
Expenses. If the Advisor elects to travel in connection with
the rendering of Services as provided in Section 1 of the
Agreement, all travel, lodging, meals, and related incidental
expenses incurred by the Advisor and by all traveling companions
the Advisor reasonably requires for any personal appearances
provided in this Agreement shall be paid by Company. The Advisor
and the traveling companions she reasonably requires shall either
travel via private plane or first class air and with
portal-to-portal SUV ground transportation. If private plane travel
is used, Company shall pay the round trip fuel costs and landing
fees for the relevant flight, and if airline travel is used, then
Company shall pay for first class air travel. The Advisor or its
affiliates and the traveling companions reasonably requires shall
be lodged in first class hotel accommodations (i.e., a 5-star or
comparable with suite amenities and accommodations), and each shall
be provided with all meals in connection with such appearances.
Company and the Advisor acknowledge that it will be appropriate to
establish a budget in advance of any such travel approved by the
Advisor and takes into account the Advisor’s comfort, support
and other reasonable needs and those of her travelling companions.
All travel and expenses shall be subject to preapproval by the
Company.
3.
Recording &
Filming. Except as provided herein, under no circumstance
shall any recording be made by Company in any manner whatsoever,
whether on video or audio tape, film, celluloid, and/or by any
other means possible, of the Advisor in connection with any
appearance provided under this Agreement or otherwise, including
without limitation all personal appearances and photo sessions,
without the prior written approval of the Advisor. Should the
Advisor approve any such recording of any appearance in connection
herewith, said recording shall be contracted for under “work
for hire” provisions and all rights, including the copyright,
related to said recording, shall belong solely to the Advisor and
are hereby assigned to the Advisor. If Company uses the services of
anyone other than its employees to make any such recording, Company
shall obtain written assignments to the Advisor of all copyright
and other rights in any recordings, negatives, or any other
materials bearing the Advisor’s image and/or voice. It is
further agreed that any such recording of the Advisor, which
Company desires to use for any purpose whatsoever, shall be
submitted to the Advisor for its absolute written approval prior to
any use thereof. In addition to approving the recording itself, the
intended use must also be approved in writing by the Advisor prior
to any use thereof. Company further agrees to pay the
Advisor’s Screen Actors Guild union costs (including
applicable scale compensation and pension, health, and welfare
benefits based thereon) that are attributable to the Advisor
directly in connection with her work for or with Company and her
paid broadcasts in any media.
12
5.
Consultation.
The Advisor and Company agree to have meaningful consultation with
each other regularly throughout the term of this Agreement and any
renewal or extension thereof. The parties agree that the purpose of
the consultation will be to discuss methods and strategies to
develop, promote, and expand the Advisor brand and image for the
mutual benefit of Company and the Services contemplated hereunder.
To attain this mutual goal, the Advisor or its designees agrees to
meet in person from time to time as may be reasonably appropriate
throughout the calendar year in conformity with mutually agreed
upon schedules to discuss the Services and to solicit input and
ideas from the Advisor or its designees. The Advisor acknowledges
that Company or a parent of Company may be required or may deem it
appropriate to issue press releases relating to periodic
developments and the Advisor agrees that it will either approve or
disapprove any such press release containing references to the
Services, provided that (a) the Advisor shall deliver its
suggestions, corrections or other comments to Company regarding the
press release with in one business day of receipt; (b) both Company
and the Advisor Company shall diligently thereafter work together
to assure a final version of the press release within the five (5)
business days following submission to and receipt by the Advisor;
and (c) if Company has made the requested corrections or changes
agreed upon or if not otherwise disapproved in writing shall be
deemed approved at the end of seven (7) business days following the
initial submission to and receipt by the Advisor. Any disapproval
from the Advisor shall he accompanied by constructive requests for
changes to be made in order for approvals to be given.
6.
Preferred
Vendors. The parties further agree that the Advisor may from
time to time recommend sub-contractors, vendors, and/or
manufacturers to Company that Company will consider in good faith.
Company will use commercially reasonable efforts to use the
sub-contractors, vendors, and/or manufacturers suggested by the
Advisor.
7.
Notices.
Any notice, communication, statement, payment, or legal service of
process required or permitted under this Agreement shall be in
writing and shall be effective when hand delivered; or on the date
when the notice, communication, statement, payment, or legal
service of process is transmitted by confirmed electronic facsimile
(with a confirmation copy sent by mail); or the day after the
notice, communication, statement, payment, or legal service of
process is sent by reputable overnight air courier service (e.g.,
Federal Express). All such communications shall be sent to the
parties at the notice addresses listed below or to such other
persons and the parties to each other may designate notice
addresses as in writing.
13
|
If to
Advisor:
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇▇▇, CFO
Email:
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
With a
copy to:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Sterling/▇▇▇▇▇▇▇
▇▇ ▇▇▇
#▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
With a
second copy to:
|
▇▇▇▇
▇▇▇▇▇▇, Esq.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
If to
Company:
|
Formula
Four Beverages Inc.
World
Trade Centre, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telephone:
604-283-1005 ext. 109
Telecopier:
▇▇▇-▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Email:
▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇-▇▇▇▇.▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Email:
▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇-▇▇▇▇.▇▇▇
|
|
With a
copy to:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇
|
8.
No
Relationship. The Advisor is an independent contractor.
Nothing contained herein shall be deemed to create an agency, joint
venture, franchise, or partnership relation between the parties,
and neither party shall so hold itself out. Company shall have no
right to obligate or bind the Advisor in any manner whatsoever, and
nothing contained in this Agreement shall give, or is intended to
give, any rights of any kind to any third person(s).
14
9.
Equitable
Relief. The parties acknowledge that the subject matter of
this Agreement relates to services and rights, which are
extraordinary and unique and which cannot be replaced or adequately
compensated in money damages, and any breach by Company of the
Standard Terms and Conditions of this Exhibit B will cause
irreparable injury to the Advisor.
10.
Protection.
Company agrees that during the term of this Agreement, or
thereafter, it will not register or attempt to register any of
trademarks, copyrights, or patents including or incorporating any
aspect of the Advisor’s name, likeness, or trademarks, nor
will Company form or incorporate any entity under a name that
includes such name, likeness, or trademarks. Company will not
attack the title or any rights of the Advisor in and to any
trademarks registered or controlled by the Advisor or attack the
validity of this Agreement and further acknowledges the goodwill
inherent to the Advisor’s name, likeness, and related
trademarks.
11.
Code of Conduct and
Millennium Development Goals. The Company agrees to (a) the
Human Rights - Code of Conduct, attached to these Standard Terms
and Conditions as Attachment 1 hereto,
incorporated herein by this reference, with respect to which
Company agrees to fully comply; and (b) the Millennium Development
Goals, attached to these Standard Terms and Conditions as
Attachment 2,
incorporated herein by reference, with respect to which the Company
agrees to fully adopt, as well as meaningfully contribute to, one
or more of such goals either economically or through other Company
resources. Advisor reserves the right to amend and update
Attachment 1 and
Attachment 2 from
time to time upon written notice to the Company of such
changes.
15
ATTACHMENT 1
To
Standard Terms and Conditions
CODE OF CONDUCT
行为守则
1.
PURPOSE:
The Company is committed to using only manufacturers to strive to
conduct business in a highly professional and ethical manner. This
document outlines those commitments each facility makes in respect
to its compliance with applicable law and tis personal practices
and policies.
目的：[被许可人]承诺只使用了力争在一个高度专业和道德的方式开展业务的厂家。本文概述了这些各设施使得在尊重其遵守适用的法律和个人的做法和政策的承诺。
2.
CHILD
LABOR: The facility agrees not to use child labor in the
manufacturing, or distribution of the Goods. The term
“child” refers to a person younger than the local legal
minimum age for employment or the age for completing compulsory
education; provided, however, in no event shall the Facility use
any person below the age of (15) fifteen. The Facility also agrees
to comply with all other Laws applicable to employees, regardless
of the age of an employee.
童工：该中心同意不使用童工在制造，或货物配送。
“童工”是指一个人年龄低于当地法定最低就业年龄或年龄在完成义务教育;
提供的，但是，在任何情况下，基金使用任何人（15）15岁以下。该基金还同意遵守适用于所有员工的其他法律，不论雇员的年龄。
3.
FORCED
LABOR: The Facility agrees to employ only persons whose presence is
voluntary. The Facility agrees not to use any forced or involuntary
labor, whether prison, bonded, indentured or
otherwise.
强迫劳动：该基金同意只雇用人员，其存在是自愿的。该基金同意不使用任何强迫或非自愿劳动，无论是监狱，保税，契约或其他方面。
4.
ABUSE
OF LABOR: The Facility agrees to treat each employee with dignity
and respect and not to use corporal punishment, threats of
violence, or other forms of physical, sexual, psychological or
verbal harassment or abuse.
滥用劳动：该基金同意把每个员工的尊严和尊重，不使用体罚，暴力威胁或其他形式的身体，性，心理或言语上的骚扰或虐待。
5.
NON-DISCRIMINATION:
The Facility agrees not to discriminate in hiring and employment
practices, including salary, benefits, advancement, discipline,
termination, or retirement on the basis of race, religion, age,
nationality, social or ethnic origin, sexual orientation, gender,
political opinion or disability.
不歧视：该基金同意不会在雇佣和招聘活动，包括工资，福利，晋升，纪律，终止或退休种族，宗教，年龄，国籍，社会或民族，性取向，性别的基础上歧视，政治观点或残疾。
6.
ASSOCIATION:
The Facility agrees to follow employees to organize and bargain
collectively without penalty or interference in accordance with
local Laws.
关联关系：该基金同意遵守雇员组织和集体谈判不受处罚或干预按照当地的法律。
16
7.
WAGES,
BENEFITS AND WORKING HOURS: The facility recognizes that wages are
essential to meeting employee’s basic needs. The Facility
agrees to comply, at a minimum, with all applicable wages and hour
Laws, including minimum wage, overtime hours, maximum hours, piece
rates and other elements of compensation and shall provide legally
mandated benefits.
工资，福利和工作时间：该厂认识到，工资是必要的，以满足员工的基本需求。该基金同意遵守，至少，所有适用的工资和工时的法律，包括最低工资，加班，最长工时，计件工资和补偿等内容，并应提供法定福利。
8.
HEALTH
AND SAFETY: The Facility agrees to provide employees with a safe
and healthy workplace environment in accordance with all applicable
Laws, ensuring at a minimum, reasonable access to potable water and
sanitary facilities, fine safety and adequate lighting and
ventilation. The Facility also agrees to ensure that the same
standards of health and safety are applied to any housing it
provides for employees.
健康和安全：该基金同意为员工提供一个安全和健康的工作环境符合所有适用法律，确保在最低限度，合理获得饮用水和卫生设施，精美的安全性和足够的照明和通风。该基金也同意，以确保健康和安全的相同标准适用于它提供了雇员的住房
9.
COMPLIANCE:
The Facility agrees to take appropriate steps to ensure that the
provisions of the COC are communicated to its employees, including
by prominent posting a copy of this COC in the local language on
one or more bulletin boards in places readily accessible to
employees at all times.
合规性：本基金同意采取适当措施，以确保奥委会的规定传达给员工，其中包括由著名张贴在当地语言的一个或多个电子公告板的名额该行为准则的副本容易获得员工的所有次。
10.
ENVIRONMENT:
Business partners should share our concern for the environment and
adhere to their local and national laws regarding the protection
and preservation of the environment.
环境：业务合作伙伴应该分享我们对环境的关注，并坚持对环境的保护和维护当地和国家法律。
11.
LEGAL
REQUIREMENTS: Business partners should be in compliance with all
legal requirements involved in conducting the
business.
法律要求：业务合作伙伴应符合参与开展业务的所有法律要求。
12.
Our Business
Partners are required to provide full access to their facilities
and those of their manufacturers, vendors and subcontractors, and
to release records relating to employment practices. We may conduct
on-site inspections of facilities to monitor the standards and
assure the quality of our products.
我们的业务合作伙伴必须提供完全访问他们的设备和那些他们的制造商，供应商和分包商，并发布有关用工行为记录。我们可以进行现场视察设施，以监控标准，确保了产品的质量。
Please report Violations Anonymously by emailing to:
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
17
ATTACHMENT 2
To
Standard Terms and Conditions
Millennium Development Goals
1. We
must eradicate extreme poverty and hunger!
2.
Achieve universal primary education.
3.
Promote gender equality and empower women.
4.
Reduce child mortality.
5.
Improve maternal health.
6.
Combat HIV/AIDS, Malaria, and other diseases.
7.
Ensure environmental sustainability.
8. Build global
partnerships for development.
9.
Bring opportunities of financial stability and healthcare to
American Veterans and their families.
10.
Stop Human Trafficking.
18
EXHIBIT C
Level Brands
REQUIRED INSURANCE CERTIFICATE
Under Description of Operations state the
following:
“Certificate Holder: Level Brands, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇ WorldWide, Inc., I|M1, LLC, Encore Endeavor 1, LLC, The
Sterling/▇▇▇▇▇▇▇ Company, and their partners, owners,
subsidiaries, affiliates, directors, officers, managers and
employees are named additional insured with regards to liability
arising out of operations of the named insured.”
The Certificate Holder should be listed as:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Send copies of Certificate to:
▇▇▇ ▇▇▇▇▇, CIC
BB&T
▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Ex. C
– Insurance Coverage