MANAGEMENT CONSULTING AGREEMENT
Exhibit 6.38
THIS
MANAGEMENT CONSULTING AGREEMENT is made this 1st day of July, 2017
(the “Effective Date”), by and between Market
Development Consulting Group, Inc. d/b/a MDC Group
(“Consultant”), a Wisconsin corporation with mailing
address 0000 X. Xxxxx Xxxxxx, Xxx Xxxxx, XX, 00000, and Level
Brands, Inc., (“Company”), a Delaware corporation with
principal executive offices located at 0000 Xxxxxx Xxxx Xxxxx 000,
Xxxxxxxxx, XX 00000.
WHEREAS, Consultant
provides management consulting services; and
WHEREAS, Company
wishes to retain Consultant to provide such services to Company in
preparation for its Initial Public Offering (the
“IPO”), on the terms and conditions set forth
herein.
NOW
THEREFORE, for the mutual promises and other consideration
described herein, the parties hereto agree as follows:
1. Information
to be furnished by Company. Company shall furnish Consultant
with current public information about Company, including any
filings with the Securities and Exchange Commission related to an
IPO, its most recent Annual Report to Shareholders, its most recent
Proxy Statement, and shall also provide any other public
information reasonably requested by Consultant (“Company
Information”). Consultant acknowledges that Company will,
from time to time in the course of consulting with Consultant on
press releases and other communications to the public and to
broker/dealer and institutional investor networks, provide to
Consultant nonpublic information. For so long as such information
remains nonpublic or unless and until Company advises Consultant
that such information no longer is material, Consultant shall
refrain from trading in any securities of Company or advising
others to do so and shall refrain from disclosing or disseminating
such information to any other party except as directed and approved
by Company.
Company
shall be responsible to assure Company Information accurately and
fairly presents the financial condition and results of operations
of Company as of the dates indicated thereon. Consultant shall have
no liability for any misstatement or omission in Company
Information, and Company shall be obligated to indemnify and defend
Consultant against any claim, action or proceeding brought by any
party against Consultant asserting such third party has been
injured as a result of any such misstatement or
omission.
2. Management
Consulting Services. Consultant shall assist Company’s
management in developing and executing its investor and corporate
communications presentations.
Consultant is an
independent contractor and is not an officer, employee, servant,
agent, partner or joint venturer of Company. In the performance of
services under this Agreement, Consultant’s Staff shall not
be, and shall not hold themselves out to be, an officer, employee,
servant, agent, partner or joint venturer of Company and shall have
no authority to legally bind Company unless expressly authorized to
do so in writing by an authorized executive officer of
Company.
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3. Term
and Termination. This Agreement shall become effective as of
the date written above, and shall remain in effect until the
completion of the Company’s IPO or no later than the close of
business on September 30, 2017 (“Expiration Date”).
Upon expiration or non-renewal of this Agreement, the parties
hereto shall have no further duty or obligations hereunder;
provided that Company shall remain obligated to defend and
indemnify Consultant as described in paragraph 1 of this Agreement
and to make any payments of retainer fees and reimbursable expenses
pursuant to paragraph 4 and paragraph 5 which remain unpaid as
of the effective date of expiration or non-renewal.
4. Compensation
for Services.
(a) Consulting Fee. For the term of
this Agreement, Company shall pay to Consultant a fee of US
$20,000.00 in two installments. Upon execution, Company shall remit
the first payment of $10,000.00 and shall issue to Consultant 5,000
shares of its common stock.
The
second installment shall be due and payable by Company on August 1,
2017 (the “Payment Date”). Failure by Company to pay
the second installment on the Payment Date shall entitle Consultant
to cease providing services pursuant to this Agreement unless and
until said payment (together with any applicable late payment fee
or penalty) is tendered in full, in addition to any other rights or
remedies Consultant may have under this Agreement, at law or in
equity, on account of such late payment. Payment of the second
installment shall be made on the Payment Date pursuant to this
agreement, without further notice or invoice by Federal Funds Wire
or ACH Transfer to Consultant.
Any
payment made more than thirty (30) days after the Payment Date will
be subject to an interest charge at the rate of 18% per year from
the Payment Date until the date paid or, if less, the maximum legal
rate permissible under applicable law.
Company
shall have taken all steps necessary to assure that such shares of
the Company, will constitute duly authorized, fully-paid upon
issuance, non-assessable, validly issued and outstanding shares of
common stock of Company.
5. Reimbursement
for Expenses. Company shall reimburse Consultant for
reasonable out-of-pocket expenses incurred by Consultant in
connection with performing services pursuant to this Agreement,
including without limitation travel, meals, lodging, mobile
telephone, and long distance telephone. Notwithstanding the
forgoing, any individual expenses in excess of $2,000.00, must be
pre-approved by Company in writing or such expense may be
disallowed. Company agrees to make reimbursement payments for
out-of-pocket expenses upon receipt of Consultant’s invoice.
Any reimbursement payments owed but not made within fifteen (15)
days following the Company's receipt of invoice shall accrue
interest from the invoice date at the rate of 18% per year, or, if
less, the maximum rate permitted under applicable law.
6. Consultant’s
Representations and Warranties. Consultant represents and
warrants to Company that Consultant has all requisite power and
authority and has taken all actions necessary to authorize the
execution, delivery and performance by it of this Agreement. This
Agreement constitutes the valid and binding obligations of
Consultant, enforceable against Consultant in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to the rights of creditors generally and for general
principles of equity.
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EXCEPT
AS STATED IN THE PRECEEDING PARAGRAPH, CONSULTANT MAKES NO
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE QUALITY OF
SERVICES TO BE PROVIDED HEREUNDER OR ANY RESULTS TO BE ACHIEVED,
AND HEREBY EXPRESSLY DISCLAIMS THE EXISTENCE OF ANY SUCH
REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. CONSULTANT SHALL HAVE NO LIABILITY FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES SUFFERED BY
COMPANY.
7. Company’s
Representations and Warranties. Company represents and
warrants to Consultant that Company has all requisite corporate or
other power and authority, and has taken all corporate or other
actions necessary to authorize, the execution, delivery and
performance by it of this Agreement. This Agreement constitutes,
and upon execution will constitute, the valid and binding
obligations of Company, enforceable against Company in accordance
with their respective terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to the rights of
creditors generally and for general principles of
equity.
8. Insurance. Company
shall include Consultant as an insured under the director and
officer insurance policy it maintains for its directors and
officers.
9. Miscellaneous.
Neither party may assign its rights or duties under this
Agreement without the express prior written consent of the other
party, except that (i) either party
may assign all of its rights hereunder together with all of its
obligations hereunder to any third party with which it may merge or
consolidate or to a purchaser of substantially all of the assets of
such party and (ii) Consultant may, without Company’s
consent, assign to any party affiliated with Consultant or to any
independent contractor who renders services to Consultant in
connection with Consultant’s performance of this Agreement
Consultant’s right to receive all or any portions of the
Consulting Fee, Common Stock and reimbursable expenses due and
owing to Consultant.
“Company”
as used in this Agreement, shall mean Level Brands, Inc. and all of
its wholly owned subsidiaries.
This
Agreement contains the entire understanding of the parties with
respect to the subject matter hereof. The terms of this Agreement
may be altered only by written agreement between the parties. The
failure of either party to object to or take affirmative action
with respect to any conduct of the other which is in violation of
the terms of this Agreement shall not be construed as a waiver of
the violation or breach, or of any future similar violation or
breach.
This
Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of Wisconsin, without regard
to its provisions governing choice of law.
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IN
WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officer as of the
Effective Date.
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Market Development Consulting Group, Inc.
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By: /s/ Xxxx
Xxxxxxx
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By: /s/ Xxxxx X.
Xxxxxxxxx
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Xxxx Xxxxxxx, CFO & COO
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Xxxxx X. Xxxxxxxxx,
President
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