UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934

 

Date of Report (Date of earliest event reported): January 20, 2020

 

CONVERSION LABS, INC.

(Exact name of Registrant as specified in its charter)

 

Delaware   000-55857   76-0238453

(State or other jurisdiction
of incorporation)

 

(Commission
File Number)

 

(IRS Employer
Identification No.)

 

800 Third Avenue, Suite 2800

New York, NY 10022

(Address of principal executive offices, including zip code)

 

(866) 351-5907

(Registrant’s telephone number, including area code)

 

Check the appropriate box below if the 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:

 

☐ Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
   
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
   
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
   
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)).

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

 

Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

Securities registered pursuant to Section 12(b) of the Act:

  

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
         
N/A   N/A   N/A

 

 

 

 

 

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors, Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Transition of Chief Acquisition Officer

 

On January 20, 2020, the Board of Directors (the “Board”) of Conversion Labs, Inc. (the “Company”) approved the transition of Mr. Sean Fitzpatrick from the role of the Company’s Chief Acquisition Officer, to the role of President of LegalSimpli Software, LLC, (“LegalSimpli”) a majority owned subsidiary of the Company (the “CAO Transition”). Mr. Fitzpatrick has previously served as President of LegalSimpli prior to his appointment as Chief Acquisition Officer of the Company.

 

Mr. Fitzpatrick’s transition is not a result of any disagreement with the Company on any matter relating to the Company’s operations, policies or practices. He remains an extremely valuable member of Conversion Labs’ executive team, but due to the strong growth of PDF Simpli, the Company and Mr. Fitzpatrick believes his efforts should be focused on this segment of the business.

 

In connection with Mr. Fitzpatrick’s transition, the Company agreed to amend that certain services agreement entered into on July 23, 2018, by and between the Company and Mr. Fitzpatrick (the “Fitzpatrick Services Agreement”), to: (i) reflect that Mr. Fitzpatrick will serve as an employee of LegalSimpli and will no longer serve as Chief Acquisition Officer of the Company; (ii) decrease the number of options to purchase the Company’s common stock previously granted to Mr. Fitzpatrick (the “Fitzpatrick Options”) from 5,000,000 to 2,500,000, 650,000 of which have vested as of the effective date; (iii) amend the vesting schedule for the remaining 1,850,000 Fitzpatrick Options to include four performance metrics that, if met, each trigger the vesting of 462,500 Fitzpatrick Options (the “Fitzpatrick Amendment”).

 

Appointment of Chief Acquisition Officer

 

On January 20, 2020, in connection with the CAO Transition, the Board appointed Mr. Nicholas Alvarez as Chief Acquisition Officer, effective January 20, 2020 (the “CAO Appointment”).

 

Nicholas Alvarez, age 27, is an accomplished executive in the digital marketing space. He is responsible for overseeing Conversion Labs’ customer acquisition efforts including media buying and advertising strategy across all brands, excluding PDF Simpli. Prior to Conversion Labs, he worked at agencies Cheviot Capital and Internet Brands, managing over $100 million in paid media budgets. From 2015-2016 he was a digital marketing specialist for Internet Brands and worked on sites such as Lawyers.com, Carsdirect.com, among others. From 2016-2018 he worked as a Head Media Buyer at Cheviot Capital, and from 2018 to the present has served as Head of Customer Acquisition at Conversion Labs. He has an undergraduate degree from Loyola Marymount University.

 

Mr. Alvarez and the Company will continue to operate under the employment agreement (the “Alvarez Employment Agreement”) entered into on July 26, 2018 with a three (3) year term. Mr. Alvarez shall earn a salary of $120,000 per annum (the “Alvarez Salary”). In addition to the Alvarez Salary, Mr. Alvarez is eligible for a monthly bonus pursuant to the schedule attached to the Alvarez Employment Agreement, and Mr. Alvarez has been granted a ten-year option to purchase up to 600,000 shares of Common Stock of the Company (the “Alvarez Options”), which shall vest at a rate of 200,000 options at each of the seven (7) month anniversary, sixteen (16) month anniversary, twenty-five (25) month anniversary of the Alvarez Employment Agreement. As of the date of this report, 400,000 Alvarez Options have vested, and the remaining 200,000 Alvarez Options shall vest, assuming the Alvarez Employment Agreement has not been terminated prior to or on August 26, 2020.

 

There is no arrangement or understanding between Mr. Alvarez and any other persons pursuant to which Mr. Alvarez was selected as an officer.

 

There are no family relationships between Mr. Alvarez and any director, executive officer or person nominated or chosen by the Company to become a director or executive officer of the Company within the meaning of Item 401(d) of Regulation S-K under the U.S. Securities Act of 1933 (“Regulation S-K”).

 

Since the beginning of the Company’s last fiscal year, the Company has not engaged in any transaction in which Mr. Alvarez had a direct or indirect material interest within the meaning of Item 404(a) of Regulation S-K. 

 

The above descriptions of the Fitzpatrick Amendment and Alvarez Employment Agreement do not purport to be complete and are qualified in their entirety by reference to such documents filed as Exhibits 10.1 and 10.2, respectively, hereto. 

 

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Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

Effective January 21, 2020, the Company amended its Certificate of Incorporation, by filing a certificate of amendment of certificate of incorporation (the “Certificate”) with the Secretary of State of Delaware, to effect the authorization of 5,000,000 shares of blank check preferred stock (the “Blank Check Preferred”) and to further effect the designation of 2,000,000 shares as 13% Cumulative Redeemable Perpetual Series A Preferred Stock (the “Series A Preferred”), a new class of stock having the designations, rights and preference set forth in such Certificate, all as approved an authorized by the Board. As reflected in such Certificate, the Company’s 5,000,000 authorized shares of preferred stock are comprised of 2,000,000 shares of Series A Preferred stock, and 3,000,000 shares of undesignated preferred stock for which the Board is authorized to determine the number of series into which such undesignated shares may be divided, the number of shares within each series, and the designations, rights and preferences associated with such shares.

 

The Series A Preferred shares shall have a stated value of $25 per share (the “Stated Value”), and Series A Preferred holders shall be entitled to receive dividends at a rate of 13% of the Stated Value per share per annum. The Series A Preferred shares shall not have voting rights, except for on each matter which Series A Preferred holders are entitled to vote as a separate class in which case each Series A Preferred Holder shall be entitle to one vote per share of Series A Preferred. The Company retains an optional right to redeem the shares of Series A Preferred commencing on the third anniversary of the date of issuance of each shares of Series A Preferred.

 

The foregoing descriptions of the Certificate effective January 21, 2020 for the Series A Preferred, does not purport to be complete and is subject to, and is qualified in their entirety by the full text of such document, a copy of which are attached hereto as Exhibit 3.1, and incorporated herein by reference.

 

Item 9.01  Financial Statements and Exhibits.

  

Exhibit No.   Description of Exhibit
     
3.1*   Certificate of Amendment of Certificate of Incorporation
10.1*   Fitzpatrick Amendment by and between the Company and Mr. Sean Fitzpatrick.
10.2*   Employment Agreement by and between the Company and Mr. Nicholas Alvarez.

  

* Filed herewith

 

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SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

CONVERSION LABS, INC.
     
Date: January 24, 2020 By: /s/ Justin Schreiber
    Justin Schreiber
    Principal Executive Officer

 

 

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Exhibit 3.1

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

Exhibit 10.1

 

FIRST AMENDMENT TO SERVICES AGREEMENT

 

THIS FIRST AMENDMENT to SERVICES AGREEMENT (this “First Amendment”) is made as of August 30, 2019 (the “Effective Date”) by and between Fitzpatrick Consulting, LLC, a Puerto Rico limited liability company (“Consultant”), Conversion Labs, Inc., a Delaware corporation with a place of business at 1460 Broadway, New York NY 10036 (“Company”), and LegalSimpli Software LLC, a Puerto Rico limited liability company that is a subsidiary of the Company (“LegalSimpli”).

 

WHEREAS, on July 23, 2018, Company and Consultant entered into that certain Services Agreement (the “Services Agreement”), pursuant to which Consultant provided professional services to Company and the Company granted to Consultant options to purchase shares of Common Stock of Company, as set forth in Section 2 of the Services Agreement; and

 

WHEREAS, pursuant to the Services Agreement, Consultant provided professional services to Company and served as the Company’s Chief Acquisition Officer, and the Company granted to Consultant options to purchase shares of Common Stock of Company, as set forth in Section 2 of the Services Agreement; and

 

WHEREAS, the parties wish to terminate Consultant’s position as Chief Acquisition Officer of the Company, and LegalSimpli desires to engage Consultant to perform services for LegalSimpli; and

 

WHEREAS, the parties wish to amend certain terms of the Services Agreement.

 

NOW THEREFORE, in consideration of the promises and mutual covenants contained herein for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby consent and agree as follows:

 

1. All capitalized terms used, and not otherwise defined, herein, shall have the meanings ascribed to them in the Services Agreement.

 

2. Company and Consultant agree that Section 1 of the Services Agreement is hereby amended in its entirety to read as follows:

 

“Consultant agrees to provide, and Company agrees to accept and pay for in accordance with Section 2 below, the following Consulting Services (the “Services”):

 

● Consultant shall serve as an employee of LegalSimpli;

 

● Broad oversight and strategic guidance on the Company’s global customer acquisition program across all brands;

 

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● Assistance with attracting, identifying and performing due diligence on acquisition targets in the online direct response market;

 

● Attracting human talent to the Company and its subsidiaries;

 

● Financial analysis related to the Company’s global direct response marketing business.”

 

3. Company and Consultant agree that Section 2 of the Services Agreement is hereby amended in its entirety to read as follows:

 

“Company shall pay to Consultant the following Equity Fee (the “Equity Fee”) in consideration for the Services:

 

● Subject to the approval of the company’s board of directors, a ten-year option for 2,500,000 shares of Common Stock of the Company, such shares purchasable, or exercisable on a cashless basis, at an exercise price of $.30 (thirty cents) per share and shall be subject to the following terms:

 

o 650,000 option shares, which have vested as of the Effective Date pursuant to the Services Agreement;

 

o 462,500 option shares shall vest upon LegalSimpli and its subsidiaries achieving at least $10,000,000 in annual revenue with at least 10% net profit margins;

 

o 462,500 option shares shall vest upon LegalSimpli and its subsidiaries achieving at least $15,000,000 in annual revenue with at least 10% net profit margins;

 

o 462,500 option shares shall vest upon LegalSimpli and its subsidiaries achieving at least $20,000,000 in annual revenue with at least 10% net profit margins;

 

o 462,500 option shares shall vest upon LegalSimpli and its subsidiaries achieving at least $25,000,000 in annual revenue with at least 10% net profit margins.

 

If the Company is prevented from issuing any of options or the stock due to pending litigation, or for any other reason, then the expiration date(s) will commence (or recommence, if applicable) when the Company’s options or the stock relating thereto are no longer subject to current litigation, or any other contingency prohibiting the Company from issuing said options or stock. All shares resulting from the exercise of options shall have the same rights as all other shares of the Company’s capital stock. Further, if the Company should split its stock prior to the granting or exercise of said options, then the options shall be split in a similar manner and the exercise price shall be adjusted to prevent any dilution or increase in Consultant’s interest in the Company’s stock once the options are granted or exercised. Lastly, Consultant or his Estate will have the right to assign all his options, and the rights to his options. Consultant’s options and the rights to his future options do not terminate with his death. The options may be exercised by his heirs and his assigns and their heirs.”

 

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4. All other terms of the Services Agreement shall remain unamended and in full force and effect.

 

5. This First Amendment constitutes the entire agreement among the parties, and supersedes all prior and contemporaneous agreements and understandings of the parties, in connection with the subject matter of this First Amendment. No changes, modifications, terminations or waivers of any of the provisions hereof shall be binding unless in writing and signed by all of the parties thereto.

 

6. This First Amendment may be executed in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. This First Amendment may also be executed by either party hereto by facsimile signature, which shall be deemed to be an original signature of such party hereon.

 

[-signature page follows-]

 

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IN WITNESS WHEREOF, the undersigned have executed and delivered this First Amendment as of the date first written above.

 

Fitzpatrick Consulting, LLC (“Consultant”)   Conversion Labs, Inc. (“Company”)
     
By:     By:  
  Sean Fitzpatrick       Justin Schreiber
Title: President   Title:  President & CEO
Date signed:   Date signed:
     
    LegalSimpli Software, LLC. (“LegalSimpli”)
     
    By:  
       Justin Schreiber
    Title:  President & CEO
    Date signed:

 

 

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Exhibit 10.2

 

EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT (“Agreement”) is made effective as of July 26, 2018 (the “Effective Date”), by and between CONVERSION LABS, INC., a Delaware corporation (the “Company”), and Nicholas Alvarez, an individual and resident of the State of California (the “Executive”).

 

The Company and the Executive are hereinafter sometimes referred to collectively as the “Parties” and individually as a “Party.”

 

WlTNESSETH:

 

WHEREAS, the Company desires to employ, and the Executive agrees to work in the employ of the Company;

 

WHEREAS, the Parties hereto desire to set forth the terms of Executive’s employment with the Company; and

 

NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations contained, the Company and Executive hereby agree as follows:

 

1. Employment and Location. The Company hereby employs Executive, and Executive hereby accepts employment by the Company, on the terms and conditions hereinafter set forth. Given the Executive’s personal circumstances, and circumstances at the Company, Executive shall not be required to relocate.

 

2. Executive’s Duties. Executive will serve as Lead Media Buyer of the Company. Executive’s duties shall include those which are designated or assigned to him from time to time by the Chief Technology Officer of the Company, provided those duties are of the type customarily discharged by a person holding the same or similar offices in a company of similar size and operations as the Company. Executive shall devote his entire time, attention and energy to the business of the Company and shall diligently pursue its best interests.

 

3. Term of Employment. Subject to the provisions for termination hereof; the original term of this Agreement shall commence as of the date of the Original Effective Date and shall continue for a term of 3 years. Subsections 6(f) through 6(j) and Sections 7 through 20 of this Agreement shall survive termination hereof for any reason whatsoever.

 

4. Compensation. For all services rendered by Executive hereunder on behalf of the Company, and the covenants and agreements of Executive set forth herein (including without limitation the covenant not to compete set forth in Section 8 hereof), the Company agrees to pay to Executive, and Executive agrees to accept, the following compensation:

 

a) An annual salary of $87,000 from the Company for 12 months from the signing of this contract; after 12 months the annual salary increases to $120,000.

 

b) A monthly bonus payable in cash according to the schedule found in Appendix A of this document of which Executive shall receive 30% in restricted common stock

 

 

 

 

c) 300,000 options issued at the discretion of the company based on performance at an exercise price of .23 (twenty-three cents) per share.

 

d) Subject to the approval of the Company’s board of directors, a ten-year option for 600,000 shares of Common Stock of the Company, such shares purchasable or exercisable on a cashless basis at an exercise price of $.23 (twenty-three cents) per share and shall be subject to the following terms:

 

· So long as this Agreement has not been previously terminated, 200,000 option shares shall vest upon the 7-month anniversary of this Employment Agreement;

 

· So long as this Agreement has not been previously terminated, 200,000 option shares shall vest upon the 16-month anniversary of this Employment Agreement;

 

· So long as this Agreement has not been previously terminated, 200,000 option shares shall vest upon the 25-month anniversary of this Employment Agreement

 

(d) If the Company is prevented from issuing any of options or the stock due to pending litigation, or for any other reason, then the expiration date(s) will commence (or recommence, if applicable) when the Company’s options or the stock relating thereto are no longer subject to current litigation, or any other contingency prohibiting the Company from issuing said options or stock. All shares resulting from the exercise of options shall have the same rights as all other shares of the Company’s capital stock. Further, if the Company should split its stock prior to the granting or exercise of said options, then the options shall be split in a similar manner and the exercise price shall be adjusted to prevent any dilution or increase in Executive’s interest in the Company’s stock once the options are granted or exercised. Lastly, Executive or his Estate will have the right to assign all his options, and the rights to his options. Executive’s options and the rights to his future options do not terminate with his death. The options may be exercised by his heirs and his assigns and their heirs;

 

(j) Annual paid vacation of three weeks; and

 

(k) Prompt reimbursement of all reasonable expenses incurred by Executive in the performance of Executive’s duties during the term of this Agreement, subject to the presentation of appropriate receipts in accordance with the Company’s policies.

 

5. Additional Benefits. Executive shall be entitled to participate in or receive benefits under all benefit plans (including health insurance for himself and his family) and other programs generally available to employees of the Company to the extent that Executive’s position, tenure, salary, age, health and other qualifications make Executive eligible to participate, subject to the rules and regulations applicable thereto.

 

 

 

 

6. Covenants of Executive. For and in consideration of the employment herein contemplated and the consideration paid or promised to be paid by the Company, Executive does hereby covenant, agree and promise that during the term hereof, and thereafter to the extent specifically provided in this Agreement:

 

(a) Executive will not actively engage, directly or indirectly, in any other business or venture that competes with the Company except at the direction or upon the written approval of the CEO of the Company;

 

(b) Executive will not engage, directly or indirectly, in the ownership, management, operation or control of, or employment by, any business of the type and character engaged in by the Company or any of its subsidiaries.

 

(c) Executive will truthfully and accurately make, maintain and preserve all records and reports that the Company may from time to time reasonably request or require;

 

(d) Executive will obey all rules, regulations and reasonable special instructions applicable to Executive, and will be loyal and faithful to the Company at all times, constantly endeavoring to improve Executive’s ability and knowledge of the business in an effort to increase the value of Executive’s services to the mutual benefit of the Parties;

 

(e) Executive will make available to the Company any and all of the information of which Executive has knowledge relating to the business of the Company or any of the Company’s other subsidiaries and will make all suggestions and recommendations which Executive feels will be of benefit to the Company;

 

(f) Executive will fully account for all money, records, goods, wares and merchandise or other property belonging to the Company of which Executive has custody, and will pay over and deliver the same promptly whenever and however he may be reasonably directed to do so;

 

 

 

 

(g) Executive recognizes that during the course of Executive’s previous and current employment with the Company, Executive has had and will have access to, and that there has been, and will be disclosed to him, information of a proprietary nature owned by the Company, including but not limited to records, customer and supplier lists and information, pricing information, data, formulae, design information and specifications, inventions, processes and methods, which is of a confidential or trade secret nature, and which has great value to the Company and is a substantial basis and foundation upon which the business of the Company is predicated. Executive acknowledges that except for Executive’s employment and the fulfillment of the duties assigned to Executive, Executive would not have had and would not have access to such information, and Executive agrees that any and all confidential knowledge or information which may have been or may be obtained by or disclosed to Executive in the course of Executive’s employment with the Company, including but not limited to the information hereinabove set forth (collectively, the “Information”), will be held inviolate by Executive, that Executive will conceal the same from any and all other persons, including but not limited to competitors of the Company and its subsidiaries, and that Executive will not impart the Information or any such knowledge acquired by Executive as an officer, director or employee of the Company to anyone, either during Executive’s employment by the Company or thereafter, except to employees or agents of the Company and its subsidiaries on a strict need-to-know basis in the performance of their duties as employees or agents of the Company or one of its subsidiaries. Executive further agrees that during the term of this Agreement and thereafter, Executive will not use the Information in competing with the Company, or in any other manner to Executive’s benefit or to the detriment of the Company or its subsidiaries;

 

(h) Executive agrees that upon termination of Executive’s employment hereunder Executive will immediately surrender and turn over to the Company all books, records, forms, specifications, formulae, data, processes, papers and writings related to the business of the Company, and all other property belonging to the Company, together with all copies of the foregoing, it being understood and agreed that the same are the sole property, directly or indirectly, of the Company;

 

(i) Executive agrees that all ideas, concepts, processes, discoveries, devices, machines, tools, materials, designs, improvements, inventions and other things of value (hereinafter collectively referred to as “intangible rights”), whether patentable or not, which are conceived, made, invented or suggested either by Executive alone or in collaboration with others during the term of Executive’s employment, and whether or not during regular working hours, shall be promptly disclosed in writing to the Company and shall be the sole and exclusive property of the Company. Executive hereby assigns all of Executive’s right, title and interest in and to all such intangible rights to the Company and its successors or assigns. In the event that any of said intangible rights shall be deemed by the Company to be patentable or otherwise able to be registered under any federal, state or foreign law, Executive further agrees that at the request and expense of the Company, he will execute all documents and do all things necessary, advisable or proper to obtain patents therefore or registration thereof; and to vest in the Company full title thereto; and

 

(j) Executive understands and acknowledges that the securities of the Company are publicly traded and subject to the Securities Act of 1933 and the Securities Exchange Act of 1934. As a result, Executive acknowledges and agrees that (i) he is required under applicable securities laws to refrain from trading in securities of the Company while in possession of material nonpublic information and to refrain from. disclosing any material nonpublic information to anyone except as permitted by this Agreement in connection with the performance of Executive’s duties hereunder, and (ii) he will communicate to any person to whom he communicates any material nonpublic information that such information is material nonpublic information and that the trading and disclosure restrictions in clause (i) above also apply to such person.

 

 

 

 

7. Termination of Employment. Either the Company or the Executive can terminate the employment at any time and for any reason, with or without notice. In the event of termination, Executive shall be entitled to all option shares vested prior to the date of termination as outlined in Section 4 of this Agreement.

 

8. Covenant Not to Compete. The Executive recognizes that the Company has business good will and other legitimate business interests which must be protected in connection with and in addition to the Information, and therefore, in exchange for access to the Information, the specialized training and instruction which the Company will provide, the Company’s agreement to employ the Executive on the terms and conditions set forth herein, and the promotion and advertisement by the Company of Executive’s skill, ability and value in the Company’s business, the Executive agrees that during the term commencing with the date of employment and ending three years after the date Executive’s employment, Executive will not, without the prior written consent of the Company, engage, directly or indirectly, in any business that competes with the Company or any of its subsidiaries in any territory in which the Company or any of its subsidiaries conducts business (determined as of the last date of Executive’s employment). It is mutually understood and agreed that if any of the provisions relating to the scope, time or territory in this Section 8 are more extensive than is enforceable under applicable laws or are broader than necessary to protect the good will and legitimate business interests of the Company, then the Parties agree that they will reduce the degree and extent of such provisions by whatever minimal amount is necessary to bring such provisions within the ambit of enforceability under applicable law.

 

9. Injunctive Relief. The Parties acknowledge that the remedies at law for breach of Executive’s covenants contained in Sections 6 and 8 of the Agreement are inadequate, and they agree that the Company shall be entitled, at its election, to injunctive relief (without the necessity of posting bond against such breach or attempted breach), and to specific performance of said covenants in addition to any other remedies at law or equity that may be available to the Company.

 

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11. Right of Offset. To the extent permitted by applicable law, all amounts due and owing to Executive hereunder shall be subject to offset by the Company to the extent of any damages incurred by Executive’s breach of this Agreement. Executive acknowledges and agrees that but for the right of offset contained in this Agreement, the Company would not have hired Executive nor entered into this Employment Agreement.

 

12. Obligations of Executive. The obligations of Executive hereunder are personal and may not be transferred or delegated by Executive.

 

13. Amendment and Waiver. This Agreement may not be changed orally but only by written documents signed by the Party against whom enforcement of any waiver, change, modification, extension or discharge is sought; however, the amount of compensation to be paid to Executive for services to be performed for the Company hereunder may be changed from time to time by the Parties by written agreement without in any other way modifying, changing or affecting this Agreement or the performance by Executive of any of the duties of his employment with the Company. Any such written agreement shall be, and shall be conclusively deemed to be, a ratification and confirmation of this Agreement, except as expressly set forth in such written amendment. The waiver by any Party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any subsequent breach thereof, nor of any breach of any other term or provision of this Agreement.

 

 

 

 

14. Notice. All notices and other communications hereunder shall be in writing and shall be deemed duly delivered (i) three business days after being received by registered or certified mail, return receipt requested, postage prepaid, or (ii) three business days after being sent for next business day delivery, fees prepaid, via a reputable nationwide overnight courier service, in the case of the Company, to its principal office address, and in the case of Executive, to Executive’s residence address as shown on the records of the Company, or may be given by personal delivery thereof.

 

15. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be valid and enforceable under applicable law, but if any provision of this Agreement shall be invalid, unenforceable or prohibited by applicable law, then in lieu of declaring such provision invalid or unenforceable, to the extent permitted by law (a) the Parties agree that they will amend such provision to the minimal extent necessary to bring such provision within the ambit of enforceability, and (b) any court of competent jurisdiction may, at the request of either party, revise, reconstruct or reform such provision in a manner sufficient to cause it to be valid and enforceable.

 

16. Force Majeure. Neither of the Parties shall be liable to the other for any delay or failure to perform hereunder, which delay or failure is due to causes beyond the control of said Party, including, but not limited to: acts of God; acts of the public enemy; acts of the United States of America or any state, territory or political subdivision thereof or of the District of Columbia; fires; floods; epidemics, quarantine restrictions; strike or freight embargoes. Notwithstanding the foregoing provisions of this Section 16, in every case the delay or failure to perform must be beyond the control and without the fault or negligence of the Party claiming excusable delay.

 

17. Authority to Contract. The Company warrants and represents that it has full authority to enter into this Agreement and to consummate the transactions contemplated hereby and that this Agreement is not in conflict with any other agreement to which the Company is a party or by which it may be bound. The Company hereto further warrants and represents that the individuals executing this Agreement on behalf of the Company have the full power and authority to bind the Company to the terms hereof and have been authorized to do so in accordance with the Company’s corporate organization.

 

18. Mediation. In the event of any dispute arising under or pursuant to this Agreement, the Parties agree to attempt to resolve the dispute in a commercially reasonable fashion before instituting any arbitration or litigation (with the exception of emergency injunctive relief as set forth in Paragraph 9). If the Parties are unable to resolve the dispute within thirty (30) days, then the Parties agree to mediate the dispute with a mutually agreed upon mediator in Houston, Texas. If the Parties cannot agree upon a mediator within ten (10) days after either party shall first request commencement of mediation, each party will select a mediator within five (5) days thereof, and those mediators shall select the mediator to be used. The mediation shall be scheduled within thirty (30) days following the selection of the mediator. If the mediation does not resolve the dispute, then Paragraph 20 shall apply. The Parties further agree that any applicable statute of limitations will be tolled for the period of time from the date mediation is requested until 14 days following the mediation.

 

 

 

 

19. Recovery of Litigation Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement or any agreement or instrument delivered under or in connection with this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing Party or Parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.

 

20. Arbitration. Any and all disputes or controversies whether of law or fact and of any nature whatsoever arising from or respecting this Agreement shall be decided by arbitration by the American Arbitration Association in accordance with its Commercial Rules except as modified herein.

 

(a) The arbitrator shall be elected as follows: in the event the Company and the Executive agree on one arbitrator, the arbitration shall be conducted by such arbitrator. In the event the Company and the Executive do not so agree, the Company and the Executive shall each select one independent, qualified arbitrator and the two arbitrators so selected shall select the third arbitrator (the arbitrator(s) are herein referred to as the “Panel”). The Company reserves the right to object to any individual arbitrator who shall be employed by or affiliated with a competing organization.

 

(b) Arbitration shall take place in any other location mutually agreeable to the Parties. At the request of either Party, arbitration proceedings will be conducted in the utmost secrecy; in such case all documents, testimony and records shall be received, heard and maintained by the arbitrators in secrecy, available for inspection only by the Company or the Executive and their respective attorneys and their respective experts who shall agree in advance and in writing to receive all such information in secrecy until such information shall become generally known. The Panel shall be able to award any and all relief, including relief of an equitable nature, provided that punitive damages shall not be awarded. The award rendered by the Panel may be enforceable in any court having jurisdiction thereof.

 

(c) Reasonable notice of the time and place of arbitration shall be given to all Parties and any interested persons as shall be required by law.

 

21. Governing Law. This Agreement and the rights and obligations of the Parties shall be governed by and construed and enforced in accordance with the substantive laws of California.

 

22. Multiple Counterparts. This Agreement may be executed in multiple counterparts each of which shall be deemed to be an original but all of which together shall constitute but one instrument.

 

 

 

23. Prior Employment Agreements. The Company represents and warrants to Executive, and Executive represents and warrants to the Company, that Executive and the Company have fulfilled all of the terms and conditions of all prior employment agreements to which Executive may be or has been a party.

 

EXECUTED as of the day and year first above set forth.

 

CONVERSION LABS, INC.

 

By:

 

EXECUTIVE

 

By: Nicholas Alvarez

 

 

 

Appendix A: Head Media Buyer Bonus Plan

 

Testing Phase

 

· Optimization period – Newly launched offers subject to a 30-day optimization period whereby no performance CPA is earned unless the offer presents an ad-sales ratio of 30% or less.

 

· If ad-sales ratio of <30%, bonus structure is calculated at end of month and effective immediately and proactively for the optimization period resulting in payment by the 15th of the next month.

 

· Bonus plans may be customized if subsequently agreed to in writing for new campaigns General Structure

· Each offer will have its own CPA model after the 30 day Optimization period, modeled by Head Media Buyer and agreed to in writing by the CEO or CTO of the Company within the first 5 calendar days of any month.
o Begins from the first day that Paid Media in any form is run to the site
o Scaling revenue model per brand.
o Sales/Spend ratio bonuses will set the following variables:
o $x Sales minimum, excluding refunds and Chargebacks
o %x below sales/ad spend to trigger the bonus pool
o Incremental % of sales for Bonus pool

 

· Bonuses will be applied by a (per brand, per Model). Totals are calculated for the total of each month and paid on the 15th of the next month

 

· Model found at: https://docs.google.com/spreadsheets/d/1e0euIX3UEd_G4T5uBvYQtGxTzpcTOQskEnLEYBR W6rg/edit?usp=sharing

 

· Establish a trial bonus model effective from July 1, 2018 based on CPA and Re-bill rate

 

· Segment % of bonus pool allocation for analyst-level media buyers at the beginning of the month