CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this “Agreement”) is made as of the 1st
day of July 2020 (the “Effective Date”) between Emerging Growth Advisors, Inc., a
New York corporation, with its principal address at 000 Xxxxxxx Xx, Xxxxxxxxxx, XX
16823 (“Emerging Growth” or the “Consultant”) and Cannagistics, Inc. to be known as
NOVI BioScience, Inc., a Nevada corporation, doing business at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xx 00000 (the “Company”).
Background
WHEREAS, there is an Employment Agreement between the Company (then
known as Global3pl, Inc.) and Xxxxx X. Xxxxxxx, dated October 1,2018, whereby Xxxxx
X. Xxxxxxx was employed as the President/CEO and Sole Director of the Company;
WHEREAS, The Company has contracted with an individual to become the
President/CEO and Chairman of the Company, and
WHEREAS, Xxxxx X. Xxxxxxx is the sole owner of Emerging Growth Advisors,
Inc. (“Emerging Growth”) and the Company desires to continue to retain the services of
Xxxxx X. Xxxxxxx and to have Emerging Growth provide management consulting
services, and
WHEREAS, Emerging Growth has the requisite skills and experience to provide
the required management consulting services to the Company for the activities desired by
the Company, and are desirous of providing such services,
NOW THEREFORE, the parties intending to be legally bound agree as follows:
1. Appointment. The Company hereby agrees to engage as the Management
Consultants of the Company, and Emerging Growth accepts the engagement subject
to the Compensation approved by the Company herein. The previous Employment
Agreement, as aforementioned, is hereby transferred and superseded into this
2. Services.
2.1 During the Term and any Renewal Term, the Consultant will, upon request,
provide to the Company the Services on an “as needed” basis, including, but
not limited to, those described below.
a. Assist and advise the Company and Senior Management in market itself to
the capital markets;
b. Assist and advise the Company and Senior Management with any
implementation and financial issues and/or merger activity;
c. Assist and advise the Company and Senior Management in the creation,
development and update of its balance sheet, working with its
creditors/shareholders;
d. Assist and advise the Company and Senior Management with all
legal/accounting and corporate governance and OTC Markets compliance,
for the Company; and
e. Assist and advise the Company and Senior Management in handling the
legal, accounting and audit preparation of the Company for the duration of
this agreement, with the express understanding that the Company and its
management are expressly required to make and be responsible for all
representations and that consultant is not a legal or accounting
professional;
2.2 Staffing. The Consultant will maintain in its employ, or otherwise have
available to it, personnel sufficient in number and adequate in ability to
perform the Services in accordance with this Agreement. The Consultant will
have the exclusive right to direct and control its personnel and/or third parties
providing the Services, other than in respect of the Company's right, as the
recipient of the Services, to supervise the performance of the Consultant under
this Agreement.
2.3 Non-Exclusivity. The Company expressly understands and agrees that the
relationship with the Consultant is on a non-exclusive independent contractor
basis for the Services and that the Consultant shall not be prevented, barred or
limited from rendering consulting services of the same nature or of a similar
nature to those described in this Agreement, or of any nature whatsoever, for
or on behalf of any person, firm, corporation, or entity other than the
Company during the Term and any Renewal Term.
2.4 Place of Performance. In connection with the Services performed by the
Consultant, the Consultant's activities shall be principally based in its own
offices, except for required and approved travel on the Company' s behalf.
3. Term and Termination.
3.1 Term. Unless terminated earlier under Section 6.b., below, the term of this
Agreement will 36 months (the “Term”) commencing on the Effective Date
(that being July 1, 2020). The Term shall automatically be renewed for an
additional twelve (12) month period (the “Renewal Term”), upon the same
terms and conditions, upon mutual consent of both parties, in writing.
3.2 Termination.
(a) This Agreement may be terminated prior to the expiration of the Term or
any Renewal Term by (i) either party if a material breach to this
Agreement by the other party is not effectively cured within 10 days (the
“Cure Period”) from receipt of written notice of the breach from the nonbreaching
party;
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(b) The date of termination (the “Termination Date”) shall be defined to
mean; (i) with regard to Section 3.2 (a) (i), the date upon which the Cure
Period expires and there has been no cure, or with regard to Section 3.2 (a)
(ii), the sixtieth day as referred to therein and (ii) with regard to Section
3.1, the last day of the Term, or any Renewal Term.
3.3 Effect of Termination.
(a) Termination under Section 3.2 will not affect any other remedy or
damages available to either of the parties. Upon termination of this
Agreement, no party will have any further obligation to fulfill
commitments under this Agreement, except for those obligations set forth
in this Section 3 and in Sections 4, 5, 6, and 7, each of which expressly
survives the termination of this Agreement.
(b) On the Termination Date, the Company shall pay to the Consultants any
remaining compensation accrued or un-accrued, as which would have
been paid during the term then in effect, any unreimbursed expenses up
through the appropriate date, and shall issue and deliver securities due and
issuable in accordance with Section 4.1 below.
4. Compensation
4.1 Fees. Consultants shall receive from the Company, upon the execution of this
Agreement, compensation as follows;
a) Payment of an amount of USD$15,000 per month for the first year of this
Agreement, USD$17,500 per month for the second year of this Agreement
and USD$20,000 per month for the third year of this. Such compensation
shall be payable in accordance with the regular payroll practices of the
Company; and
b) Consultant at its option also be paid a Health Insurance Allowance of up
to $1,500 per month, commencing July 1, 2020 for the term of this
Agreement and any extensions thereto.
4.2 Expenses. The Consultant shall be promptly reimbursed for all reasonable
out-of-pocket expenses (including travel, entertainment, etc.) incurred by it in
its performance under this Agreement, upon submission of documentation
supporting such expense( s), on a monthly basis. Any reimbursable expenses
in excess of $1 ,500.00, individually, shall be approved in advance by the
Company prior to be incurred by the Consultant.
5. Indemnification.
5.1 Indemnification by the Company. If in connection with any services or
matters that are the subject of or arise out of this Agreement or the
Consultant's engagement hereunder, the Consultant or any of its directors,
officers, stockholders, employees or agents (collectively, the “Consultant
Indemnitees”) becomes involved (whether or not as a named party) in any
action, claim, investigation or legal proceeding, the Company, will indemnify
and save harmless such Consultant Indemnitees from and against any and all
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claims, liabilities, damages, losses, costs and expenses (including amounts
paid in satisfaction of judgments in compromises and defending against any
claims or alleged claims) of any nature whatsoever, liquidated or unliquidated,
that are incurred by any Consultant Indemnitees' obligations under this
Agreement unless the claim or alleged claim resulted from willful misconduct,
negligence or fraud of the Consultant Indemnitees. The Company agrees that,
without the Consultant Indemnitees' prior written consent, it will not settle,
compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding in respect of which indemnification
could be sought under this Section 5 (whether or not the Consultant
Indemnitees are actual or potential parties to such claim, action or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of each Consultant Indemnitee from all liability arising
out of such claim, action or proceeding.
5.2 Indemnification by the Consultant. If in connection with any services or
matters that are the subject of or arise out of this Agreement or the
Consultant's engagement hereunder, the Company or any of its directors,
officers, stockholders, employees or agents (collectively, the “Company
Indemnitees”) becomes involved (whether or not as a named party) in any
action, claim, investigation or legal proceeding, the Consultant, will
indemnify and save harmless such Company Indemnitees from and against
any and all claims, liabilities, damages, losses, costs and expenses (including
amounts paid in satisfaction of judgments in compromises and defending
against any claims or alleged claims) of any nature whatsoever, liquidated or
unliquidated, that are incurred by any Company Indemnitees' obligations
under this Agreement unless the claim or alleged claim resulted from willful
misconduct, negligence or fraud of the Company Indemnitees. The
Consultant agrees that, without the Company Indemnitees' prior written
consent, it will not settle, compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding in respect of which
indemnification could be sought under this Section 5 (whether or not the
Company Indemnitees are actual or potential parties to such claim, action or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of each Company Indemnitee from all liability arising
out of such claim, action or proceeding.
5.3 Procedures. As to any claim or lawsuit with respect to which party seeks
indemnification hereunder (the “Indemnified Party”), it shall provide prompt
notice thereof to the other party (the “Indemnifying Party”), and the
Indemnifying Party shall have the right to control the defense of said lawsuit,
including the selection of attorneys, and any settlement thereof, provided that
no settlement which impairs the rights of the Indemnified Party shall be made
without its prior written consent, which consent shall not be unreasonably
withheld.
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6. Covenants
6.1 Confidentiality. With respect to information of the Company, which is
clearly marked “Confidential”, whatever its nature and form and whether
from Graphic Materials (as defined below) or otherwise (except such as is
generally available through publication or is previously known to the
Consultant, or is lawfully obtained by the Consultant through a third-party),
obtained by the Consultant during or as a result of its consultancy with the
Company and relating to any invention, improvement, enhancement, product,
know-how, formula, software, process, design, or other creation, or to any use
of any of them, costs (including, without limitation, manufacturing costs),
prices, or to any plans of the Company, or to any other trade secret or
proprietary information of the Company, the Consultant agrees:
a) to hold all such information, inventions and discoveries which have not
otherwise become public knowledge in strict confidence and not to publish
or otherwise disclose any thereof to any person or entity other than the
Company except with the prior written consent of an officer of the
Company, or as may be required by law.
b) to take all reasonable precautions to assure that all such information,
inventions and discoveries are properly protected from access by
unauthorized persons.
c) to make no use of nor exploit in any way any such information, invention
or discovery except as required in the performance of its consultancy for
the Company.
For the purposes of this Agreement, the term “Graphic Materials” includes, without
limitation, letters, memoranda, reports, notes, notebooks, books of account, drawings,
prints, specifications, formulae, software, data print-outs, microfilms, magnetic tapes
and disks and other documents and recordings, together with all copies, excerpts and
summaries thereof.
6.2 Further Assurances. The Company and Consultant will use their best efforts
to implement the provisions of this Agreement, and for such purpose neither
party shall represent to the other any material facts concerning itself during
the Term and any Renewal Term which are false, misleading or untrue in any
material respect and neither party shall intentionally fail to provide the other
with material facts concerning itself or will in any material manner prevent the
Services from being performed under this Agreement.
7. Miscellaneous.
7.1 Limitation of Liability. IT IS UNDERSTOOD BETWEEN THE PARTIES
THAT NEITHER THE CONSULTANT NOR ANY OF THEIR PARTNERS,
EMPLOYEES, AGENTS, OR PRINCIPALS ARE PROVIDING LEGAL
SERVICES, ACCOUNTING SERVICES, OR BROKERAGE SERVICES,
AND SUCH SERVICES MUST BE RETAINED BY THE COMPANY AT
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ITS OWN COST AND EXPENSE. IT IS EXPRESSLY ACKNOWLEDGED
THAT THE CONSULTANT WILL UTILIZE ITS BEST EFFORTS IN
PERFORMING THE SERVICES CONTEMPLATED HEREBY BUT NO
REPRESENTATIONS ARE MADE OR GUARANTEE GIVEN BY THE
CONSULTANT AS TO THE AMOUNT OF TIME IT WILL SPEND IN
PROVIDING THE SERVICES NOR TO THE ULTIMATE SUCCESS OF
ANY TRANSACTION OR OTHER ACTION UNDERTAKEN BY THE
COMPANY. IN NO EVENT WILL THE AGGREGATE DAMAGES
CLAIMED BY THE COMPANY UNDER THIS AGREEMENT EXCEED
THE TOTAL CASH FEES RECEIVED BY THE CONSULTANT, EXCEPT
IN THE CASE OF WILLFUL MISCONDUCT, GROSS NEGLIGENCE OR
ACTUAL FRAUD.
7.2 Notices. All notices and other communications provided for or permitted in
this Agreement will be made in writing by hand-delivery, registered first-class
mail, or courier guaranteeing overnight delivery, to the addresses maintained
by each party.
All notices and communications will be deemed to have been duly given; at
the time delivered by hand, if personally delivered; three business days after
being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, and on the next business day if timely delivered to a courier
guaranteeing overnight delivery; provided, however, that the inability to
deliver any notice or other communication because of the changed address of
which no notice was given, or rejection or refusal to accept any notice or other
communication as of the date if such inability to deliver or rejection or refusal
to accept delivery.
7.3 Waivers. The failure of a party to this Agreement to insist upon strict
adherence to any of the terms of this Agreement on any occasion will not be
considered a waiver or deprive that party of the right thereafter to insist upon
strict adherence to that term or other term of this Agreement. Any waiver must
be in writing.
7.4 Force Majeure. The Consultant will not be responsible for any failure or
delay in performance of its obligations under this Agreement because of
circumstances beyond its reasonable control including acts of God, fires,
floods, wars, civil disturbances, sabotage, accidents, labor disputes (whether
or not the employees' demands are reasonable and within the party's power to
satisfy), governmental actions or transportation delays.
7.5 Governing Law. This Agreement, the rights of the parties in, under and to
this Agreement and any dispute or action relating to this Agreement (whether
in contract, tort or otherwise) will be governed by, construed and enforced in
accordance with the laws of New York applicable to the agreements made and
performed entirely in that State. Any legal actions, suits or proceeding arising
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out of this Agreement (whether arising in contract, tort or otherwise), will be
brought exclusively in a federal or state court located in the State of New
York having jurisdiction of those courts with respect to any legal actions, suits
or proceeding (whether arising in contract, tort or otherwise) arising out of
this Agreement. In the event of any legal action, suit or proceeding, the parties
waive their right to a jury trial.
7.6 Entire Agreement; Amendments. This Agreement represents the entire
understanding of the parties and supersedes and cancels any and all prior
negotiations, undertakings and agreements between the parties, whether
written or oral, with respect to the subject matter of the Agreement. This
Agreement may be amended, modified, waived or terminated only by a
written instrument signed by both parties to this Agreement.
7.7 Binding Effect. This Agreement will insure to be the benefit of and will be
binding upon the parties their respective successors, permitted transferees and
assigns.
7.8 Assignment and Benefits of Agreement. This Agreement may not be
assigned by any party to this Agreement without the written consent of the
other party, except that Consultant may assign this Agreement to an entity
wholly owned by the sole shareholder of Consultant. Nothing in this
Agreement, express or implied, is intended to confer upon any person other
that the parties hereto, and their said successors and assigns, any rights under
or by reason of this Agreement.
7.9 Independent Contractor. Each of the Company and the Consultant certifies
that neither party has any authority to act for or bind the other party except as
expressly provided for in this Agreement, that the Consultant may work for
others, and that any persons provided by the Consultant under this Agreement
will be solely the employees or agents of the Consultant under its sole and
exclusive direction and control.
7.10 Severability. To the extent that any provision of this Agreement or the
application thereof is determined by a court of competent jurisdiction to be
invalid or unenforceable, the remainder of this Agreement, or the application
of such a provision under other circumstances, will be unaffected and will
continue in full force and effect unless the invalid or unenforceable provision
is of such essential importance for this Agreement that it is to be reasonably
assumed that the parties would not have concluded this Agreement without
the invalid or unenforceable provision.
7.11 Consents. Any consent or approval to be given under this Agreement may be
delegated by the party to give such consent or approval to any agent or
representative as such party may, from time to time, authorize in writing.
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7.12 Counterparts. This Agreement may be executed in any number of
counterparts, and each of the parties on separate counterparts, each of which,
when so executed, will be deemed an original, not all of which will constitute
but one and the same original.
7.13 Third Parties. Nothing in this Agreement, expressed or implied, is intended
or will be construed to confer upon or give any person other than parties to
this Agreement, their permitted successors or assigns and (to the extent
indicated herein) any rights or reminded under or by reason of this
Agreement.
7.14 Further Assurances. Each party will take or perform such actions as
reasonable requested by the other party, including the execution of any
additional documents, in order to carry out the intent of, and to facilitate and
effectuate the actions contemplated by this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
Emerging Growth Advisors, Inc.
By: /s/ Xxxxx X. Xxxxxxx
Name. Xxxxx X. Xxxxxxx
Title: President
Cannagistics, Inc. to be known as
NOVI Bioscience, Inc.
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: President
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