AMENDED AND RESTATED CONSULTING AGREEMENT
Exhibit 6.26
AMENDED AND RESTATED CONSULTING AGREEMENT
This Amended and Restated Consulting Agreement
(“Agreement”)
dated June 8, 2017 is effective as of the 20th
day of March, 2017 (the
“Effective
Date”), by and between
I|M1, LLC, a California limited liability company
(“Consultant”),
and NuGene International, Inc., a Nevada corporation
(“Company”).
RECITALS
A.
Consultant
provides online, event driven and other marketing and branding
consulting services to its clients using facilitators and visual
representations being known and recognized by the public and
associated in the public mind with Consultant “for use by
men” or the men’s market.
B.
Ms.
Ireland, an internationally famous person and designer with a
highly favorable public image and strong, favorable identity for
branding; and a strong portfolio of multiple brands and
ambassadors, also with a highly favorable public image and strong
brand identities serves as Chief Brand Advisor of
Consultant.
C.
Company is a manufacturer, distributor and/or
seller of products and desires to use the branding capabilities of
the Consultant for skin and hair care products within the
“for use by men” or the men’s market, which
products contain stem cell derived and containing biologically
active or biologically derived ingredients, and limited to those
products set forth in Exhibit A
hereto (“Men’s
Products”).
D.
The Consultant possesses unique and appropriate
knowledge and skill to promote the Company, through online and
social media, in regards to the Men’s Products set forth
in Exhibit A
to advise the Company in regard to
marketing and brand awareness.
E.
The Company desires to retain Consultant with
respect to the Men’s Products set forth in
Exhibit
A to provide services to the
Company on the terms and conditions set forth
herein.
F.
The
parties wish to enter into this amended and restated agreement to
correct certain ministerial errors and disclosures in the initial
agreement between the parties which was unrelated to this Agreement
and which has been terminated ab initio.
AGREEMENT
NOW, THEREFORE in consideration of
the mutual covenants and promises contained herein, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
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1. Consultancy.
The Company hereby engages Consultant to provide assistance in
promotion of the Company and promotion and advice in regard to
marketing and branding of the Men’s
Products.
2. Duties
and Involvement.
a.
The services will generally include assistance in promotion of the
Company's name and products to the public for greater public
awareness and promotion of the Company and its products in the
online community and on television. Consultant will make use of its
social media network for these purposes and will also provide
promotion of the Men’s Products on various media. The
Services to be performed by March 31, 2017 will include, without
limitation, (i) an immediate social media blitz, including blogging
on Twitter, Instagram, Facebook and other social media platforms,
(ii) modeling impressions with the Company’s products which
will be provided on various social media platforms, (iii) marketing
and sales merchandising and branding materials, and (iv) television
and public support statements for “NuGene;” provided,
that it is understood and agreed that any failure to accomplish one
or more of the Services by March 31, 2017 shall not be deemed to be
a material breach of this Agreement for purposes of Section 4(b)
(the “Services”).
b.
Consultant acknowledges that neither it nor any of its employees
will make use of Company proprietary data for personal use or gain,
and will not disclose to any third party any confidential
information or materials which it receives as a result of providing
the Services hereunder.
3. Exclusivity
for Select Identified Products.
Company acknowledges that Consultant provides services to other
entities for other products, and the Services provided herein shall
be exclusive only to those Men’s Products set forth on
Exhibit
A. For clarification purposes,
the parties understand and agree that Consultant may perform
services for other entities and for other products (including,
without limitation, Men’s Products) to the extent such
products are not specifically set forth in Exhibit
A.
4. Term
and Termination.
a.
This Agreement shall begin as of and on the Effective Date and
shall terminate on December 31, 2017.
b.
This Agreement may be terminated upon the following events: (i)
mutual agreement of the parties provided written notice is given;
or (ii) a material breach of any of the provisions hereof by either
party.
5. Compensation.
Company agrees to compensate
Consultant as follows: (i) upon execution hereof, Company shall pay
Consultant an amount equal to Two Million Five Hundred Thousand
(2,500,000) shares of the Company’s Common Stock having a par
value of $.0001 per share (the “Shares”);
and (ii) Company shall pay to Consultant Fifty Thousand Dollars (US
$50,000) upon the earlier of (A) any Company equity or debt
offering or financing which provides the Company with proceeds in
an amount equal to or in excess of $10,000,000, or (B) June 30,
2017. With regard to the Shares, Consultant hereby represents and
warrants to Company as follows:
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a.
Consultant understands that the Shares are
characterized as “restricted securities” under the
Securities Act of 1933 (as amended, and together with the rules and
regulations promulgated thereunder, the “Act”) and that, under the
Act the Shares may not be resold, pledged, or otherwise transferred
without registration under the Act or an exemption
therefrom.
b.
Consultant
understands that the Shares are being offered in a transaction not
involving any public offering in the United States within the
meaning of the Act, and the Shares have not been registered under
the Act or under any state securities laws, and are being offered
and sold in reliance upon federal and state exemptions for
transactions not involving any public offering.
c.
Consultant is an
“accredited investor”, as that term is defined under
Rule 501(a) of the Act, and it has such knowledge and experience in
business and financial matters that it is capable of evaluating the
merits and risks of acquiring the Shares.
d.
Consultant has had
the opportunity to obtain from Company such information as it
desired in order to evaluate the merits and the risks inherent in
holding the Shares.
6. Services. Consultant shall devote such time and effort
necessary to discharge its duties hereunder. The Company
acknowledges that Consultant may conduct other business activities
and that it may pursue such during the term of this Agreement so
long as such are not inconsistent with the intent and duties
hereunder.
7. Assignment. This Agreement may not be assigned by either party
hereto without the written consent of the other but shall be
binding upon the successors the parties.
8. Governing Law.
This Agreement shall be constructed by
and enforced in accordance with laws of the State of
California.
9. General.
This Agreement contains the entire
understanding and agreement between the parties. There are no other
agreements, conditions or, oral or written, express or implied,
with regard. This Agreement may be amended only in writing signed
by both parties. This Agreement may be executed in counterparts,
each of which shall be an original but all of which together shall
constitute one and same agreement. The provisions of the Agreement
shall be binding upon the parties and their successors and assigns.
If any provisions of this Agreement, or application thereof to any
circumstances shall be deemed or held to be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement shall
not be affected and the application of such affected provision
shall be enforced to the greatest extend possible under
law.
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IN WITNESS WHEREOF, the parties hereto have caused
this instrument to be duly executed.
Consultant:
I|M1, LLC
By:
/s/ Xxxx Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
CFO
Company:
NuGene International, Inc.
By:
/s/ X. Xxx Kharazmi
Name:
X. Xxx Kharazmi
Title:
Chairman
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Exhibit A
Each of
the following products which are currently marketed and sold by the
Company, but as the same may be renamed, rebranded or otherwise for
use by men or in the men’s market containing stem cell
derived or containing biologically active or biologically derived
ingredients: NuGene Face Wash, NuGene universal Cream, NuGene
Universal Serum, NuGene Light and Bright, NuGene Eye Serum, NuGene
Face Mask, NuGene Melasma Serum, NuGene Acne Serum, NuGene
Revitalizing night Cream, NuGene Toner, NuGene Body Lotion, NuGene
Specialty Soap, NuGene Neck & Dècolleté Lotion,
Advanced Infusion Serums and other age-defying products that are
stem cell derived or which contain biologically active or
biologically derived ingredients.
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