ADVISORY AGREEMENT
Exhibit
10.71
THIS ADVISORY AGREEMENT (the
“Agreement”)
is made this 8th day of March 2018 (the “Effective
Date”) by and between LEVEL BRANDS, INC., a North Carolina
corporation (the “Company”)
with its principal place of business located at 0000 Xxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxx, XX 00000 and XXXXXXX XXXXXXXXX, an individual (the
“Advisor”),
with his principal offices located in care of X.X. Xxx 0000, Xxxxxx
Xxxxxx, XX 00000.
R E C I T A L S
WHEREAS, the Company is a branding and
marketing company.
WHEREAS, the Advisor is President of
xxxxx xxxxxxx® Worldwide ("kiWW").
WHEREAS, affiliates of kiWW are owners
of two of the Company's subsidiaries, I'M1, LLC, a California
limited liability company ("I’M1"),
and Encore Endeavor 1, LLC, a California limited liability
("EE1).
WHEREAS, the Company desires to retain
the Advisor to provide certain advisory services as hereinafter set
forth.
WHEREAS, the Advisor desires to provide
certain advisory and consulting services to the Company in
accordance with the terms and conditions contained
hereinafter.
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. During the
Term of this Agreement, the Advisor is hereby retained by the
Company on a non-exclusive basis to provide advisory and consulting
services to the Company and in connection therewith to serve as
Managing Director of Level H&W LLC (“H&W”) and
Co-Managing Director of I’M 1 and EE1 (the
“Services”).
In providing these Services he will have responsibility to develop
and facilitate sales and business strategies while coordinating day
to day business activities for each of X'X0, XX0 and H&W, under
the direction of the Chief Executive Officer of the Company. The
Advisor shall provide such Services as reasonably requested by the
Company during the Term of this Agreement; provided, however, that the Advisor
shall not be required to devote any minimum number of hours per
week to the provision of the Services hereunder. Unless otherwise
agreed to by the Advisor, all Services hereunder shall be performed
by the Advisor, in his sole discretion, at his principal place of
business. The Advisor represents and warrants to the Company that
the provision of the Services contemplated hereunder will not
conflict with any agreement or understanding to which he is a party
and that kiWW has consented to the engagement of the Advisor by the
Company as herein contemplated.
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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 February 28, 2019
(the “Expiration
Date”). Commencing on the Expiration Date, the term of
this Agreement shall automatically be extended on a month to month
basis. Either party may terminate this Agreement upon 30 days
written notice to the other party.
3. Compensation;
Independent Contractor.
(a) For
all services rendered by the Advisor in any capacity required
hereunder during the Term, including, without limitation, services
as Managing Director of I'M1, EE1 and H&W, the Advisor shall be
entitled to receive $1.00 per month payable in accordance with the
customary accounts payable practices of the Company (the
"Compensation").
(b) The Advisor
acknowledges and agrees that he shall be an independent contractor
and the Advisor shall not be considered an “employee”
of the Company, X'X0, XX0, and/or H&W for any purpose. The
Advisor shall be solely responsible for the payment of all foreign,
federal, state and local sales taxes, use taxes, value added tax,
withholding taxes, income tax, unemployment and workers’
compensation insurance premiums, and similar taxes and charges of
any kind with respect to his compensation and the Services provided
under this Agreement.
4. Expenses.
The Advisor shall be reimbursed for all out of pocket costs and
expenses incurred by him in the performance of the Services
hereunder subject to preapproval by the Company.
5. 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.
6. 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.
7. Confidentiality.
(a) In connection with
the performance of the Services contemplated by this Agreement, the
Advisor and his affiliates may gain access to Confidential
Information (as hereinafter defined) of the Company. Confidential
Information includes information communicated orally, in writing,
by electronic or magnetic media, by visual observation, or by other
means, and may be marked confidential or proprietary, or bear a
marking of like import, or which the Company states to be
confidential or proprietary, or which would logically be considered
confidential or proprietary under circumstances of its disclosure
known to Advisor. No rights or licenses to trademarks, inventions,
copyrights, patents or any other intellectual property rights are
implied or granted under this Agreement or by the conveying of
Confidential Information to Advisor.
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(b) The Advisor
acknowledges and understands that: (i) Confidential Information
provides the Company with a competitive advantage (or that could be
used to the disadvantage of the Company by a competitor); (ii) the
Company has a continuing interest in maintaining the
confidentiality of Confidential Information; and (iii) the Company
has a compelling business interest in preventing unfair competition
stemming from the use or disclosure of Confidential
Information.
(c) For purposes
hereof, “Confidential
Information” includes, but is not limited to,
information pertaining to business plans, joint venture agreements,
licensing agreements, financial information, contracts, customers,
products, trade secrets, specifications, designs, plans, drawings,
software, data, prototypes, processes, methods, research,
development or other information relating to the business
activities and operations of the Company.
(d) The Advisor agrees,
and shall use reasonable efforts, to cause his controlled
affiliates to agree, to keep Confidential Information confidential
and, except as authorized by the Company, Advisor shall not,
directly or indirectly, use Confidential Information for any reason
except in a manner Advisor believes reasonable or appropriate to
perform the Services under this Agreement. The Advisor acknowledges
that such Confidential Information could be deemed to be material
non-public information that is not generally available to the
public. The Advisor further acknowledges his understanding that
federal securities laws strictly prohibit any individual or entity
who obtains inside information, and has a duty not to disclose it
such as the Advisor, from using the information in connection with
the purchase or sale of securities, and Company shall advise
Advisor whether information disclosed to him constitutes material,
nonpublic information.
(e) The restrictions in
subsection (d) of this Section shall not apply to any Confidential
Information that: (i) is or becomes available to the public through
no breach of this Agreement by Advisor; (ii) was previously known
by Advisor or his affiliates; (iii) is received from a third party
free to disclose such information without restriction; (iv) is
independently developed by Advisor or his affiliates without the
use of the Confidential Information; (v) is approved for release by
written authorization of the Company or its affiliates; (vi) is
required by law or regulation to be disclosed, but only to the
extent and for the purposes of such required disclosure; or (vii)
is disclosed in response to an order or request of a governmental
agency, provided that Advisor notifies the Company of the order or
request ten (10) days prior to disclosure and permits the Company
to seek an appropriate protective order.
8. Indemnity;
Insurance.
(a) Indemnity: The Company shall
indemnify, defend, and hold Advisor and his 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)
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. Provided, however, that the indemnity
agreement 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.
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(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 has
procured, and shall continue to maintain, policies of director and
officer insurance that provides to the same coverage to Advisor as
is provided to any officer and director of the
Company.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
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14. Governing
Law. This Agreement shall become valid when executed and
accepted by Company. This Agreement shall be construed in
accordance with the laws of the State of California, without an
application of the principles of conflicts of laws. Anything in
this Agreement to the contrary notwithstanding, the Advisor shall
conduct the Advisor's business in a lawful manner and faithfully
comply with applicable laws or regulations of the state, city or
other political subdivision in which the Advisor is
located.
15. 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.
16. Binding Nature, No
Third Party Beneficiary. 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.
17. 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.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date first above
written.
THE
COMPANY
By:
/s/ Xxxx X.
Xxxxxxx
Xxxx X.
Xxxxxxx, Chief Financial Officer
/s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx
Xxxxxxxxx
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