SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 1, 2017
U-VEND, INC .
(Exact name of registrant specified in its charter)
Commission File Number
(State or other jurisdiction
of incorporation or organization)
|(I.R.S. Employer Identification No.)|
1507 7th STREET, #425
SANTA MONICA, CALIFORNIA 90401
(Address of principal executive offices)
(Registrant’s telephone number)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communication pursuant for Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 230.14a-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))
Section 1 – Registrants Business and Operations
Entry into a Definitive Material Event .
On January 26, 2017, Mr. Neelin, an affiliate, and the Company entered into a five year exclusive Master Distributor Agreement to market and sell U-Vend services in Canada and Latin America. All expenses associated with the marketing, selling and the provisioning of the services will be borne by Mr. Neelin. The Company will earn a royalty fee of 10% on total gross sales of the services sold through the distribution agreement. Royalties will be paid to the Company on a quarterly basis. A copy of the Master Distribution Agreement is attached to this Form 8-K as an exhibit.
Section 3 – Securities and Trading Markets
Unregistered Sales of Equity Securities .
On January 26, 2017, the Company issued a convertible note under the Company’s 2016 Securities Purchase Agreement for $20,000 with an interest rate of 9.5% and two year term. The note is convertible into 400,000 shares of common stock at $0.05 per share. In addition, the Company issued 400,000 warrants with an exercise price of $0.07 per share and five year term in connection with this debt.
On January 5, 2017, the Company issued 400,000 shares of common stock upon exercise of warrants resulting in cash proceeds of $20,000 to the Company .
On December 28, 2016, the Company issued 700,000 shares of its common stock upon conversion of $35,000 face amount of Senior Convertible Note.
On December 27, 2016, the Company issued 500,000 restricted shares of its common stock to a note holder as consideration for extending the maturity of the note.
On December 23, 2016, the Company issued 250,000 restricted shares of its common stock in connection with a consulting agreement.
On December 19, 2016, the Company issued a convertible note under the Company’s 2016 Securities Purchase Agreement for $100,000 with an interest rate of 9.5% and two year term. The note is convertible into 2,000,000 shares of common stock at $0.05 per share. In addition, the Company issued 2,000,000 warrants with an exercise price of $0.07 per share and five year term in connection with this debt.
The shares of common stock to be issued in the above transactions have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and were issued and sold in reliance upon the exemption from registration contained in Section 4(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder.
Section 5 – Corporate Governance and Management
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Effective February 1, 2017, Raymond Meyers, Chief Executive Officer, President, and acting Chief Financial Officer resigned from the Company to pursue other opportunities. Mr. Meyers will remain as a member of the Company’s Board of Directors. The resignation was not related to any disagreement with the Company or due to any matter relating to the Company’s operations, policies or practices. A copy of Mr. Meyers’s resignation letter is attached to this Form 8-K as an exhibit.
On February 1, 2017, Mr. Meyers entered into a sixty day consulting agreement with the Company to provide transition services. A copy of Mr. Meyers’s consulting agreement is attached to this Form 8-K as an exhibit.
Effective February 1, 2017, the Company appointed David Graber, 45, to fill the vacancy created by the resignation of Mr. Meyers. Mr. Graber will serve as the Company’s Chief Executive Officer, President, and acting Chief Financial Officer and has been added to the Company’s Board of Directors. Most recently, Mr. Graber was the Managing Principal of Cobrador Capital Advisors, LLC, an investment management firm focused on the consumer sector. Prior to Cobrador Capital Advisors, LLC, Graber was Managing Director, Investment Banking at New Century Capital Partners (2011-2014) and National Securities Corporation (2009-2010). From 2006-2008, he was CEO and Director of OKC Corporation, a manufacturer and retailer in the home improvement industry. From 1994-2005 Mr. Graber was a Sr. Vice President and Director in the Equities Division of Donaldson, Lufkin & Jenrette and subsequently, Credit Suisse First Boston (CSFB) in New York and Los Angeles. Mr. Graber holds dual Masters of Business Administration (MBA) from Columbia University Graduate School of Business in New York City (2004) and London Business School in the UK (2004). He also holds a BA Psychology from Tulane University in New Orleans, LA (1994).
The Company and Mr. Graber entered into an employment agreement, effective February 1, 2017, for a period of two years, which may be extended by mutual consent. Mr. Graber in his capacity as Chief Executive Officer is entitled to a monthly salary of not less than $22,000. In addition, he is entitled to receive a bonus at the discretion of the Board of Directors and based on the financial performance of the Company. The Employment Agreement may be terminated prior to such date, however, upon Mr. Graber’s death, disability, by the Company for Cause (as defined in the Employment Agreement), by Mr. Graber for Good Reason (as defined in the Employment Agreement) and voluntary termination by Mr. Graber other than for Good Reason upon 30 days’ notice. Upon termination by the Company for any reason other than Cause or by Mr. Graber for Good Reason, Mr. Graber will receive any accrued but unpaid salary through the date of termination and an amount equal to his salary at the time of termination payable for the remainder of the then-current term. Upon termination by reason of Mr. Graber’s death or disability, he will receive any accrued but unpaid salary through the date of termination and an amount equal to his salary at the time of termination payable for 1 year beginning 30 days after the date of termination. Upon termination by the Company for Cause or voluntarily by Mr. Graber for other than Good Reason, he will receive only accrued but unpaid salary through the date of termination.
Effective December 31, 2016, Paul Neelin, Chief Operating Officer, Secretary and Director resigned from the Company to pursue other opportunities. The resignation was not related to any disagreement with the Company or due to any matter relating to the Company’s operations, policies or practices. A copy of Mr. Neelin’s resignation letter is attached to this Form 8-K as an exhibit.
Financial Statements and Exhibits.
|Exhibit No.||Description of Exhibit.|
|10.49||Meyers Resignation Letter|
|10.50||Meyers Consulting Agreement|
|10.51||Graber Employment Agreement|
|10.52||Neelin Resignation Letter|
|10.53||Master Distribution Agreement|
Pursuant to the requirement 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.
|By:||/s/ David Graber|
|David Graber, Chief Executive Officer|
|February 6, 2017|
U-Vend, Inc. 8-K
February 1, 2017
Board of Directors
1507 7 th Street, Suite 425
Santa Monica, CA 90401
Re: Letter of Resignation
Board of Directors:
I am writing to officially tender my resignation effective February 1, 2017 as U-Vend’s Chief Executive Officer, President, and acting Chief Financial Officer.
I enjoyed my time over the past 3 years leading the Company and I wish you continued success in the future. If I can be of any assistance in the future, please feel free to contact me.
/s/ Raymond Meyers
U-Vend, Inc. 8-K
MASTER SERVICES CONSULTING AGREEMENT
This Master Services Consulting Agreement (“Agreement”) is made effective as of February 1, 2017 (“Effective Date”),
BY and BETWEEN :
1507 7 th Street, Unit 425
Santa Monica, CA 90401
(collectively hereinafter called “COMPANY”)
1507 7 th Street, Unit 425
Santa Monica, CA 90401
(hereinafter called the “CONSULTANT”)
WHEREAS, COMPANY is a publicly listed (OTCQB: UVND) a consumer products and technology company with operations in the United States and Canada;
WHEREAS, CONSULTANT has knowledge, expertise and possesses certain business planning, financial reporting, sales strategy, and operations relating to private and public companies;
WHEREAS , COMPANY desires to retain and engage the services of CONSULTANT who has expertise in the areas desired by the COMPANY on an independent contractor basis as set forth hereinafter;
WHEREAS, COMPANY and CONSULTANT desire to delineate and set forth the terms and conditions with respect to the fees, conditions and obligations of both;
NOW, THEREFORE , in consideration of the above Recitals, which the parties agree to be true, accurate and complete for the mutual promises, agreements and undertakings set forth hereinafter, and for other good and valuable consideration, it is agreed as follows:
1. DESCRIPTION OF SERVICES. Upon the request of the Company, CONSULTANT shall prepare, consult with and advise the COMPANY with respect to matters concerning, but not limited to: (i) business strategy; (ii) operational planning; (iii) financial reporting and administration; and (iv) revenue growth and attainment activities. Unless otherwise notified by COMPANY, CONSULTANT shall be deemed to be in possession of material, non-public information and shall treat all material as confidential and not to be disclosed.
2. PERFORMANCE OF SERVICES. CONSULTANT shall provide the Services to COMPANY as outlined in section 1 of this Agreement. CONSULTANT shall devote so much time as is necessary in order to carry out its duties and obligations under this Agreement and the Services shall be performed in a timely fashion and in accordance with applicable industry standards.
R. Meyers Consulting Agreement
Page 2 of 5
Throughout the term of this Agreement, CONSULTANT may perform the same or similar services for other persons or entities, provided they do not prevent CONSULTANT from devoting the time required to perform the Services hereunder. The COMPANY acknowledges that CONSULTANT may engage in other business activities and that it may pursue such activities during the term of this Agreement so long as such activities do not prevent CONSULTANT from devoting the time required to perform the Services hereunder.
3. PAYMENT. COMPANY will compensate CONSULTANT at the beginning of each month for the Services by:
|1.||Paying to CONSULTANT the sum of ten thousand dollars ($10,000) per month for the Services described in section 1 of this agreement.|
CONSULTANT shall assume full responsibility for payment of all applicable Federal, State and local taxes or contributions imposed or required under Unemployment Insurance, Social Security and Federal and State Income and Franchise Tax Laws, with respect to the compensation and/or monies being paid to CONSULTANT by the Company hereunder. Any other taxes levied upon this Agreement, the transaction, or services shall be borne by CONSULTANT.
4. EXPENSE REIMBURSEMENT. The COMPANY shall pay all reasonable "out-of-pocket" expenses related to the duties of this Agreement including expenses incurred on behalf of the COMPANY. All expenses must have prior written approval by the COMPANY. The COMPANY shall not be required to reimburse amounts that have not been previously pre-approved by COMPANY.
5. TERM/TERMINATION. This Agreement shall be effective for a period of two (2) months from the Effective Date. This Agreement may be terminated by either party, at any time, for no or any reason at all upon fourteen (14) days written notice. This Agreement may be extended by the mutual written agreement of both parties.
6. RELATIONSHIP OF PARTIES. It is understood by the parties that CONSULTANT is an independent contractor with respect to COMPANY, and not an employee of COMPANY. COMPANY will not provide fringe benefits, including health insurance benefits, paid vacation, or any other employee benefit, for the benefit of CONSULTANT.
7. EMPLOYEES. CONSULTANT’s employees, if any, who perform services for COMPANY under this Agreement shall also be bound by the provisions of this Agreement. At the request of COMPANY, CONSULTANT shall provide adequate evidence that such persons are CONSULTANT’s employees.
9. INDEMNIFICATION. Each party (the indemnifying party”) hereby covenants and agrees to indemnify the other party (“the indemnified party”) its stockholders, directors, officers, employees, affiliates, and agents and their respective successors and assigns and to hold them harmless from and against any and all losses, claims, liabilities, obligations, fines, penalties, damages, and expenses, including reasonable attorney’s fees incurred by any of them resulting from or arising out of any action by the indemnifying party which constitutes a breach by the indemnifying party of this Agreement or its obligations hereunder, a violation of any law or regulation applicable to it, or as a result of any misrepresentation made by the indemnifying party.
R. Meyers Consulting Agreement
Page 3 of 5
10. ASSIGNMENT. CONSULTANT’s obligations under this Agreement may not be assigned or transferred to any other person, firm, or corporation.
11. CONFIDENTIALITY. COMPANY recognizes that CONSULTANT has and will have access to non-public information including:
In addition, CONSULTANT shall have access to other proprietary information (collectively, "Information") which are valuable, special and unique assets of COMPANY and need to be protected from improper disclosure. In consideration for the disclosure of the Information, CONSULTANT agrees that CONSULTANT will not at any time or in any manner, either directly or indirectly, use any Information for CONSULTANT’s own benefit, or divulge, disclose, or communicate in any manner any Information to any third party without the prior written consent of COMPANY. CONSULTANT will protect the Information and treat it as strictly confidential. A violation of this paragraph shall be a material violation of this Agreement.
12. UNAUTHORIZED DISCLOSURE OF INFORMATION. If it appears that CONSULTANT has disclosed (or has threatened to disclose) Information in violation of this Agreement, COMPANY shall be entitled to an injunction to restrain CONSULTANT from disclosing, in whole or in part, such Information, or from providing any services to any party to whom such Information has been disclosed or may be disclosed. COMPANY shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages.
13. CONFIDENTIALITY AFTER TERMINATION. The confidentiality provisions of this Agreement shall remain in full force and effect after the termination of this Agreement.
14. NON-SOLICITATION AGREEMENT. Recognizing that the various items of Information are special and unique assets of COMPANY that need to be protected from disclosure, and in consideration of the disclosure of the Information, CONSULTANT agrees and covenants that for a period of one (1) year following the termination of this Agreement, whether such termination is voluntary or involuntary, CONSULTANT will not directly or indirectly engage in the solicitation of any customer of COMPANY for any benefit. CONSULTANT agrees that this non-solicitation provision will not adversely affect the livelihood of CONSULTANT.
15. RETURN OF RECORDS. Upon termination of this Agreement, CONSULTANT shall deliver all records, notes, data, memoranda, models, and equipment of any nature that are in CONSULTANT’s possession or under CONSULTANT’s control and that are Company’s property or relate to Company’s business.
R. Meyers Consulting Agreement
Page 4 of 5
16. NOTICES. All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person or deposited in the United States mail, postage prepaid, addressed as follows:
IF for COMPANY:
1507 7 th Street, Unit 425
Santa Monica, CA 90401
IF for CONSULTANT:
1507 7 th Street, Unit 425
Santa Monica, CA 90401
Such address may be changed from time to time by either party by providing written notice to the other in the manner set forth above.
17. ENTIRE AGREEMENT. This Agreement contains the entire consulting agreement of the parties and there are no other promises or conditions in any other consulting agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.
18. AMENDMENT. This Agreement may be modified or amended if the amendment is made in writing and is signed by both parties.
19. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
20. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
21. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of California.
22. SUCCESSORS AND ASSIGNS. This Agreement is personal in its nature and neither of the parties hereto shall, without the consent of the other, assign or transfer this Agreement or any rights or obligations hereunder.
23. ATTORNEY’S FEES. If any legal action based in contract law is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire contract.
R. Meyers Consulting Agreement
Page 5 of 5
24. FAX/COUNTERPARTS. This Agreement may be executed by telex, telecopy or other facsimile transmission, and such facsimile transmission shall be valid and binding to the same extent as if it were an original. Further, this Agreement may be signed in one or more counterparts, all of which when taken together shall constitute the same document.
Party receiving Services:
|By:||/s/ David Graber|
|CEO and President|
|Party providing Services:|
|By:||/s/ Raymond Meyers|
U-Vend, Inc. 8-K
This EMPLOYMENT AGREEMENT (the “ Agreement ”) is made and entered into as of the 1 st day of February, 2017 (the “ Effective Date ”), by and between U-Vend, Inc., a Delaware corporation (the “ Company ”), and David Graber, an individual (the “ Employee ”).
1. Employment Period . The Company hereby agrees to employ the Employee as its Chief Executive Officer, and the Employee, in such capacity, agrees to provide services to the Company for the term beginning on the Effective Date (the “ Commencement Date ”) and ending on January 31, 2019 , unless earlier terminated in accordance with this Agreement (the “ Initial Term ”).
This Agreement shall be extended for additional one year terms (each such term, a “ Renewal Term ”)], unless either the Board of Directors of the Company (the “ Board ”) or the Employee objects to such extension by delivering written notice to the other party at least ninety (90) days prior to the expiration of the Initial Term or the applicable Renewal Term. Such notice, if given by either party and not withdrawn prior to the end of the applicable year, shall be deemed a termination of Employee’s employment by the party who delivered such notice under this Agreement. The Initial Term and each Renewal Term shall be collectively referred to herein as the “ Employment Period ”.
2. Performance of Duties . The Employee agrees that during the Employment Period, while he is employed by the Company, he shall devote 100% of his full working time, energies and talents performing the duties assigned to him by the Board faithfully, efficiently and in a professional manner. It is understood by the employee that he may not enter the company into any and all material contractual obligations without pre-approval by the Board of Directors. During the Employment Period, the Employee may not engage, undertake or be interested in (whether directly or indirectly) any other employment, business or occupation or become a director or employee or agent or consultant or partner of any other person, officer or company which either individually or in the aggregate would violate the immediately preceding sentence without the prior written consent of the Board.
3. Compensation . Subject to the terms and conditions of this Agreement, during the Employment Period, the Employee shall be compensated by the Company for his services as follows:
(a) He shall receive, for the Initial Term and each Renewal Term, if any, a rate of salary that is not less than $22,000 (USD) Dollars per month (the “ Salary ”), payable monthly and subject to normal and customary tax withholding and other deductions, all on a basis consistent with the Company’s normal payroll procedures and policies. During (i) the thirty (30) day period prior to the expiration of each successive twelve (12) month period during the Initial Term, and (ii) the thirty (30) day period prior to the commencement of any Renewal Term, the Employee’s salary rate shall be reviewed by the Board to determine whether an increase in his rate of compensation is appropriate, which determination shall be within the sole discretion of the Board.
(b) Any employee bonus will be at the discretion of the Board of Directors and based on financial performance of the company in conjunction with the performance of the common stock price among other factors deemed reasonable and applicable by the Board of Directors.
(c) He shall be reimbursed by the Company for all reasonable business, promotional, travel and entertainment expenses which are pre-approved by the Chairman of the Board and or full Board of Directors and subsequently incurred or paid by him during the employment period in the performance of his services under this Agreement that are consistent with the Company’s policies in effect from time to time, provided that the Employee furnishes to the Company appropriate documentation in a timely fashion required by the Internal Revenue Code in connection with such expenses and shall furnish such other documentation and accounting as the Company may from time to time reasonably request.
(d) He shall be entitled to all scheduled holidays of the Company, and a minimum of twenty (20) days of paid vacation per year (subject to increase in the sole discretion of the Board and subject to Company policy).
(e) He shall be eligible to participate in the benefits made generally available by the Company to the Employee management team, in accordance with the benefit plans established by the Company, and as may be amended from time to time in the Company’s sole discretion. It is understood by the employee that all benefits are pre-approved by the Board of Directors.
4. Termination . The Employee’s employment hereunder may be terminated prior to the expiration of the Employment Period under the following circumstances:
|(a)||Death . The Employee’s employment hereunder shall terminate upon his death.|
|(b)||Total Disability . The Company may terminate Employee’s employment upon the Employee becoming “Totally Disabled.” For purposes of this Agreement, “ Totally Disabled ” means any physical or mental ailment or incapacity as determined by a licensed physician in good standing, which has prevented, or is reasonably expected (as determined by a licensed physician in good standing) to prevent, the Employee from performing the duties incident to the Employee’s employment hereunder which has continued for a period of either (A) one hundred twenty (120) consecutive days or (B) two hundred ten (210) total days in any twelve (12) month period; provided , however , that the Employee receives at least thirty (30) days written notice prior to such termination.|
|(c)||Termination by the Company for Cause . The Company may terminate Employee’s employment hereunder for “Cause.” For purposes of this Agreement, “ Cause ” shall mean:|
(i) any act or omission that constitutes a material breach by the Employee of any of his obligations under this Agreement;
(ii) the refusal or failure by the Employee to carry out specific reasonable directions of the Board, which are of a material nature and consistent with the Employee’s position;
(iii) the refusal or failure by the Employee to satisfactorily perform the duties reasonably required of him by the Company in his capacity as Chief Executive Officer of the Company;
(iv) in any calendar year where the gross revenue of the Company reported on a GAAP basis has not exceeded $2,000,000;
(v) the Employee engaging in any misconduct, fraud or dishonest action (including, without limitation, theft or embezzlement), violence, threat of violence, or any activity that could result in any violation of federal securities laws, in each case that is injurious to the Company or any of its subsidiaries or affiliates;
(vi) the Employee’s material breach of a written policy of the Company;
(vii) the conviction of the Employee of, or plea of nolo contendere to, a felony under federal or state law, or a crime involving dishonesty or moral turpitude or which could reflect negatively upon the Company or otherwise impair or impede its operations (as determined in the reasonable discretion of the Board); or
(viii) any other wilful misconduct by the Employee which is materially injurious to the financial condition or business reputation of the Company or any of its affiliates.
(ix) insolvency of the Company through the protection of the bankruptcy codes, assignment for the benefit of creditors (ABC), or any and all public or private insolvency options available to the Company.
Notwithstanding the foregoing, “Cause” for termination shall not be deemed to exist with respect to the Employee’s acts as described in subsections (i), (ii), (iii), (iv) or (vi) above, unless the Company shall have given written notice to the Employee within a period not to exceed fifteen (15) days of the Company’s knowledge of the initial existence of the occurrence, specifying the “Cause” with reasonable particularity and, within thirty (30) days after such notice, the Employee shall not have cured or eliminated the problem or thing giving rise to such “Cause;” provided , however , no more than two (2) cure periods need be provided during any twelve (12) month period. For the avoidance of doubt, Employee shall not be afforded any cure period with respect to the acts described in subsections (v), (vii),(viii) or (ix) above.
(d) Termination by Employee for Good Reason . Employee may terminate his employment with the Company for Good Reason. For purposes of this Agreement, “ Good Reason ” shall mean a termination by the Employee of his employment with the Company due to a breach by the Company of its material obligations under this Agreement, or any other agreement to which Employee and Company are both parties; provided , however , that (i) the Employee provides written notice to the Company specifying in reasonable detail the circumstances claimed to provide the basis for such termination within thirty (30) days following the occurrence of such events, without the Employee’s consent, (n) if such circumstances are correctable, the Company fails to correct the circumstances set forth in Employee’s notice of termination within thirty (30) days of receipt of such notice, and (iii) the Employee actually terminates employment within sixty (60) days following such occurrence:
(e) Voluntary Termination by the Employee other than for Good Reason . The Employee may terminate his employment hereunder at any time by providing written notice to the Company at least thirty (30) days prior to his voluntary termination of employment.
(f) Notice of Termination . Any termination by the Company or by the Employee under this Agreement shall be communicated by written notice to the other party.
For avoidance of doubt, the Company may not terminate the Employee’s employment hereunder for any reason except for the reasons described in this Section 4.
5. Obligations and Compensation Following Termination of Employment . In the event that Employee’s employment hereunder is terminated, Employee shall have the following obligations and shall be entitled to the following compensation and benefits upon such termination, and nothing else:
(a) In the event that (A) Employee terminates his employment for Good Reason in accordance with Section 4(d) above, or (B) the Company terminates his employment in any manner other than pursuant to Section 4(a), Section 4(b) or Section 4(c) above, in any case, but subject to the Employee’s compliance with the provisions contained in Sections 5(d), 5(e), the Company shall pay to the Employee: (.i) any accrued but unpaid Salary for services rendered to the date of termination; and (ii) an amount equal to the Salary at the time of such termination, payable for the remainder of the then-current term (i.e., the Initial Term or any Renewal Term).
(b) Termination due to Death or Total Disability . In the event that the Employee’s employment is terminated due to the Employee’s death or by the Company as a result of the Employee being deemed to be Totally Disabled, the Company shall pay to the Employee the following amounts and nothing else: (i) any accrued but unpaid Salary for services rendered to the date of termination; and (ii) an amount equal to the Salary at the time of such termination, payable each month, over a six month period beginning thirty (30) days after the date of such termination in accordance with Section 3(a) above.
(c) Termination by the Company for Cause or Voluntary Termination by Employee other than for Good Reason . In the event that Employee’s employment is terminated by the Company for Cause pursuant to Section 4(c) above, or due to the Employee’s voluntary resignation other than for Good Reason pursuant to Section 4(e) above, the Company shall pay to the Employee any accrued but unpaid Salary for services rendered to the date of termination and nothing else.
(d) Employee’s Obligation to Execute a General Release . In the event that Employee’s employment is terminated for any reason, the Company’s obligation to pay the Employee the amounts set forth above in this Section 5 (with the exception of any accrued but unpaid Salary for services rendered on the date of termination) shall be conditioned upon the Employee (or his estate or beneficiary, as applicable) executing, and the effectiveness within ninety (90) days after such termination of employment of, a valid waiver and release of all claims that the Employee may have against the Company, Board of Directors, consultants, advisors, etc. under this Agreement in a form reasonably satisfactory to the Company (which waiver and release of all claims shall not waive or release claims for amounts payable pursuant to this Agreement or claims Employee may have as a shareholder of the Company). Notwithstanding the above, Employee agrees not to bring, or cause to bring, any type of legal action against any member of the Company’s Board of Directors, past or present, for any reason. Employee acknowledges that by being a member of the Board of Directors they have the ability to influence and approve actions that require Board of Directors approval and, as such, have an equal voice related to all Board of Directors decisions.
(e) Return of Company Property . In the event that Employee’s employment is terminated for any reason, the Employee (or his estate or legal representative, as the case may be) shall be obligated to immediately return all properly of the Company or any of its affiliates in his (or their) possession as of the date of termination, including, but not limited to, (i) cell phones, personal computers or other electronic devices provided by the Company, including all files resident on such devices; (ii) all memoranda, notes, records, files or other documentation, whether made or compiled by the Employee alone or in conjunction with others (regardless of whether such persons are employed by the Company); (iii) all proprietary or other information of the Company and its affiliates (originals and all copies) which is in the Employee’s control or possession (or that of his estate or legal representative, as the case may be); and (iv) any and all other property of the Company and its affiliates which is in the Employee’s control or possession (or that of his estate or legal representative, as the case may be), whether directly or indirectly.
(f) Transition Services . In the event that either (i) the Employee terminates his employment without Good Reason in accordance with Section 4(e) above, or (ii) the Employment Period expires pursuant to either party’s non-renewal thereof, the Employee agrees that after the date of such termination or expiration, as applicable, he shall, for a period not to exceed ninety (90) days from the effective date of his termination, take all actions as reasonably requested by the Company in order to transition all of his former job duties and responsibilities to his successor, and the Company shall compensate the Employee for such services at the pro rata hourly rate of the Employee’s Salary as of the date of the date of the Employee’s termination.
6. Covenants of Employee . The Employee covenants and agrees that:
(a) Confidential Information . During the Employment Period and at all times thereafter, the Employee shall keep secret and retain in strictest confidence, and shall not use for his benefit or the benefit of others, except in connection with the business and affairs of the Company and its affiliates, all confidential matters relating to the Company’s business or to the Company and its affiliates learned by the Employee heretofore or hereafter directly or indirectly from the Company and its affiliates, including, without limitation, information with respect to (a) operations, (b) sales figures, (c) profit or loss figures and financial data, (d) costs, (e) customers, clients, and customer lists (including, without limitation, credit history, repayment history, financial information and financial statements), and (f) plans (collectively, the “ Confidential Information ”) and shall not disclose such Confidential Information to anyone outside of the Company and its affiliates except with the Company’s express written consent and except for Confidential Information which (1) is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Employee or (2) is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement. The Employee further agrees that he shall not make any statement or disclosure that (a) would be prohibited by applicable Federal or state laws or (b) is intended or reasonably likely to be detrimental to the Company or any of its subsidiaries or affiliates.
(b) Non-Solicitation . During the Employment Period and for a six-month period thereafter (the “ Restricted Period ”), the Employee shall not, without the Company’s prior written consent, directly or indirectly, knowingly solicit or encourage any employee of the Company to leave the employment of the Company or hire or participate in hiring any employee who has left the employment of the Company during the Restricted Period or the six (6) month period prior to the beginning of the Restricted Period.
(c) Non-Compete .
(i) During the Employment Period and, in the event (A) the Employee’s employment with the Company is terminated for “Cause,” (B) the Employee resigns from the Company without “Good Reason,” or (C) the Employee elects for the Employment Period to expire in accordance with Section 1 above, then, also during the Restricted Period, the Employee expressly shall not, directly or indirectly, without the prior written consent of the Board, own, manage, operate, join, control, franchise, license, receive compensation or benefits from, or participate in the ownership, management, operation, or control of, or be employed or be otherwise connected in any manner with, a Competitive Business; provided , however , that the foregoing shall not prohibit the Employee from acquiring, solely as an investment and through market purchases, securities of any entity which are registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934 and which are publicly traded, so long as the Employee is not part of any control group of such entity and such securities, alone or if converted, do not constitute more than five percent (5%) of the outstanding voting power of that entity. For purposes of this Section 6(c), “ Competitive Business ” means any enterprise in the business that markets, sells, or distributes, via vending kiosks, products or services that are the same or similar to the products or services the Company markets, sells, or distributes.
(ii) Employee recognizes that Employee’s services hereunder are of a special, unique, unusual, extraordinary and intellectual character giving them a peculiar value, the loss of which cannot be reasonably or adequately compensated for in damages, and in the event of a breach of this Agreement by Employee (particularly, but without limitation, with respect to the provisions hereof relating to the exclusivity of Employee’s services), the Company shall, in addition to all other remedies available to it, be entitled to equitable relief by way of an injunction and any other legal or equitable remedies. Anything to the contrary herein notwithstanding, the Company may seek such equitable relief in any federal or state court in New York and Employee hereby submits to exclusive jurisdiction in those courts for purposes of this Section (6)(c)(ii). Such exclusive jurisdiction of courts in New York shall not affect a court’s ability to award equitable relief as provided in Section 7(a) of this Agreement.
(d) Records . All memoranda, notes, lists, records and other documents (and all copies thereof) made or compiled by the Employee or made available to the Employee by the Company concerning the Company’s business or the Company shall be the Company’s property and shall be delivered to the Company at any time on request.
(e) Acknowledgment . Employee acknowledges and agrees that the restrictions set forth in this Section 6 are critical and necessary to protect the Company’s legitimate business interests (including the protection of its Confidential Information); are reasonably drawn to this end with respect to duration, scope, and otherwise; are not unduly burdensome; are not injurious to the public interest; and are supported by adequate consideration. Employee also acknowledges and agrees that, in the event that Employee breaches any of the provisions in this Section 6, the Company shall suffer immediate, irreparable injury and will, therefore, be entitled to injunctive relief, in addition to any other damages to which it may be entitled, as well as the costs and reasonable attorneys’ fees it incurs in enforcing its rights under this Section 6. Employee further acknowledges that any breach or claimed breach of the provisions set forth in this Agreement will not be a defense to enforcement of the restrictions set forth in this Section 6.
(f) Cessation of Payments and Benefits Upon Breach . Company’s obligations to make any payments or confer any benefit under this Agreement, other than to pay for all compensation and benefits accrued but unpaid up to the date of termination, will automatically and immediately terminate in the event that Employee breaches any of the restrictive covenants in this Section 6; provided , however , that Company provides written notice to Employee specifying in reasonable detail the circumstances claimed to provide the basis for such breach without Company’s consent, of such events.
7. Rights and Remedies Upon Breach of Restrictive Covenants . If the Employee breaches, or threatens to commit a breach of, any of the provisions of Section 6 (the “ Restrictive Covenants ”), the Company shall have the following rights and remedies (upon compliance with any necessary prerequisites imposed by law upon the availability of such remedies), each of which rights and remedies shall be independent of the other and severally enforceable, and all of which rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or in equity:
(a) The right and remedy to have the Restrictive Covenants specifically enforced by any court having equity jurisdiction, including, without limitation, the right to an entry against the Employee of restraining orders and injunctions (preliminary, mandatory, temporary and permanent) against violations, threatened or actual, and whether or not then continuing, of such covenants, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company; and
(b) The right and remedy to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively, “ Benefits ”) derived or received by him as the result of any transactions constituting a breach of the Restrictive Covenants, and the Employee shall account for and pay over such Benefits to the Company.
8. Indemnification .
(a) The Company shall indemnify Employee to the fullest extent permitted by Delaware against all claims, actions, costs, expenses, liabilities, and losses (including without limitation, attorneys’ fees, judgments, fines, penalties, and ERISA excise taxes), incurred by Employee in connection with an Identifiable Proceeding that arises from or relates to any acts, events, or omissions that occur on or after the Effective Date of this Agreement. For purposes of this Section 8, “ Identifiable Proceeding ” shall mean any identifiable action, suit, or proceeding, whether civil or criminal, administrative or investigative, in which Employee is made a party to, or a witness in, such action, suit, or proceeding by reason of the fact that Employee is or was an officer, director or employee of the Company or is or was serving as an officer, director, shareholder, employee, trustee, or agent of any other entity at the request of the Company. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, agents or fiduciaries of the Company, Employee shall be covered by such policy or policies in accordance with its or their terms.
(b) The Company shall advance to Employee all reasonable costs and expenses incurred in connection with an Identifiable Proceeding within twenty (20) days after receipt by the Company of a written request for such advance. Such request shall include an itemized list of the costs and expenses expected to be incurred in connection with the Identifiable Proceeding. Employee shall promptly repay the amount of such advance if ultimately it shall be determined that Employee is not permitted to be indemnified against such costs and expenses under applicable law. If Employee has commenced or commences legal proceedings in a court of competent jurisdiction to secure a determination that Employee should be indemnified under applicable law, as provided in this Section 8. then Employee shall not be required to reimburse the Company for any expense or cost advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Employee’s obligation to reimburse the Company, for expense advances shall be unsecured and no interest shall be charged thereon.
(c) The Company shall not settle any Identifiable Proceeding or claim in any manner which would impose on Employee any penalty or limitation without Employee’s prior written consent. Employee will not withhold consent to any proposed settlement of an Identifiable Proceeding unreasonably.
9. Successors; Assignment . This Agreement shall be binding on, and inure to the benefit of, each of the parties and their permitted successors and assigns. This Agreement may be assigned by the Company to a successor in interest in connection with a sale of all or substantially all of the assets or securities of the Company.
10. Severability; Blue Penciling .
(a) The Employee acknowledges and agrees that (i) he has had an opportunity to seek advice of counsel in connection with this Agreement and (ii) the Restrictive Covenants are reasonable in geographical and temporal scope and in all other respects. If it is determined that any of the provisions of this Agreement, including, without limitation, any of the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of the provisions of this Agreement shall not thereby be affected and shall be given full effect, without regard to the invalid portions.
(b) If any court determines that any of the covenants contained in this Agreement, including, without limitation, any of the Restrictive Covenants, or any part thereof, is unenforceable because of the duration or geographical scope of such provision, the duration or scope of such provision, as the case may be shall be reduced so that such provision becomes enforceable and, in its reduced form, such provision shall then be enforceable and shall be enforced.
11. Waiver of Breach . The waiver by either the Company or the Employee of a breach of any provision of this Agreement shall not operate as or be deemed a waiver of any subsequent breach by either the Company or the Employee.
12. Notice . Any notice to be given hereunder by a party hereto shall be in writing and shall be deemed to have been given when deposited in the U.S. mail, certified or registered mail, postage prepaid:
|(a)||to the Employee addressed as follows:|
David E. Graber
1507 7th Street, #425
Santa Monica, CA 90401
|(b)||to the Company addressed as follows:|
1507 7th Street, #425
Santa Monica, CA 90401
13. Amendment . This Agreement may be amended only by mutual agreement of the parties in writing without the consent of any other person and no person, other than the parties thereto (and the Employee’s estate upon his death), shall have any rights under or interest in this Agreement or the subject matter hereof.
14. Applicable Law . The provisions of this Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without regard to the conflicts of laws principles thereof. Any dispute is to be resolved exclusively in the courts of the State of New York.
15. Interpretation . This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. Sections and section headings contained in this Agreement are for reference purposes only, and shall not affect in any manner the meaning or interpretation of this Agreement. Whenever the context requires, references to the singular shall include the plural and the plural the singular.
16. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement, but all of which together shall constitute one and the same instrument.
17. Authority . Each party represents and warrants that such party has the right, power and authority to enter into and execute this Agreement and to perform and discharge all of the obligations hereunder; and that this Agreement constitutes the valid and legally binding agreement and obligation of such party and is enforceable in accordance with its terms.
18. Entire Agreement . This Agreement is intended to be the final, complete, and exclusive statement of the terms of Employee’s employment by the Company and may not be contradicted by evidence of any prior or contemporaneous statements or agreements, except for agreements specifically referenced herein. To the extent that the practices, policies or procedures of the Company, now or in the future, apply to Employee and are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control. Any subsequent change in Employee’s duties, position, or compensation will not affect the validity or scope of this Agreement.
[remainder of page intentionally left blank; signature page to follow]
[Signature Page to Employment Agreement]
IN WITNESS WHEREOF, the Employee and the Company have executed this Employment Agreement as of the Effective Date.
|/s/ David Graber|
|/s/ Alex Orlando|
|Name: Alex Orlando|
Title: BOARD MEMBER
|/s/ Patrick White|
Name: Patrick White
Title: BOARD MEMBER
|/s/ Philip Jones|
Name: Philip Jones
Title: BOARD MEMBER
|/s/ Raymond Meyers|
Name: Raymond Meyers
Title: BOARD MEMBER
U-Vend, Inc. 8-K
December 22, 2016
Mr. Raymond Meyers
1507 7 th Street, Suite 425
Santa Monica, CA 90401
Re: Letter of Resignation
I am writing to officially tender my resignation effective December 31, 2016 as U-Vend’s Chief Operating Officer, Secretary, and Director.
Working at U-Vend and with you has been a tremendous learning experience. I could not ask for a better group of professional colleagues. I have grown in many ways during my time here and I appreciate the opportunities provided to me by U-Vend.
If I can be of any assistance in the future, please feel free to reach out to me.
Your friend and colleague,
/s/ Paul Neelin
c: U-Vend Board of Directors
U-Vend, Inc. 8-K
MASTER DISTRIBUTOR AGREEMENT
THIS MASTER DISTRIBUTION AGREEMENT (this “ Agreement ”) is made as of January 26, 2017 (the “ Effective Date ”), by and between U-Vend, Inc. (hereinafter called “ U-Vend ”), and UVend Group of Companies (hereinafter “Master Distributor ”).
U-Vend, Inc., a Company organized and existing under the laws of the state of Delaware, United States of America, with its head office located at the following address:
1507 7th Street, Suite 425
Santa Monica, CA 90401
UVend Group of Companies, a Company organized and existing under the laws of Ontario, Canada, with its head office located at the following address:
UVend Group of Companies
Burlington, Ontario L7L 6A4
WHEREAS , U-Vend is in the business of developing, marketing, selling and promoting certain Vending Machines, Kiosks, Merchandisers and Digital Technology, hereinafter defined as the “Services”;
WHEREAS , Master Distributor is in the business of marketing and the distribution of self serve kiosks, merchandisers and Digital Technology in Canada and Latin America (the “Territory”);
WHEREAS , Master Distributor represents that it has the financial resources, facilities, personnel, and expertise necessary to successfully market the Services in the Territory in accordance with the terms of this Agreement;
WHEREAS , Master Distributor wishes to obtain, and U-Vend is willing to grant to the Master Distributor, the exclusive rights to market and sell the Services in the Territory, subject to the terms set forth herein.
NOW, THEREFORE , in consideration of the foregoing premises and the mutual representations and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Master Distributor and U-Vend, intending to be legally bound, hereby agree as follows:
|1.||DEFINITIONS – For purposes of this Agreement, the following terms shall have the respective meanings indicated below:|
|1.1||Territory – Shall be defined in Exhibit A|
|1.2||Services – Shall mean those products and services specifically identified in Exhibit B .|
Page 1 of 16
|2.||GRANT OF CANADIAN AND LATIN AMERICA MASTER DISTRIBUTION RIGHTS.|
|2.1||Subject to the terms and conditions of this Agreement, U-Vend hereby grants to Master Distributor, and Master Distributor hereby accepts from U-Vend, (i) a nontransferable, exclusive right to distribute the Services to end users/customers located in the Territory and (ii) a nontransferable, exclusive right to distribute certain Services to approved resellers located in the Territory.|
|2.2||Master Distributor covenants and agrees that it shall not distribute or sell any of the Services, or otherwise engage in any of the activities described herein with respect to the Services outside the Territory, in each case, without the prior written consent of U-Vend, which may be granted or withheld by U-Vend in it sole discretion. Master Distributor hereby acknowledges that it’s direct or indirect distribution or sale of the Services outside the Territory in violation of this Section 2.2 shall constitute a material breach of this Agreement pursuant to Section 12.2 below.|
|2.3||Master Distributor may appoint Resellers in furtherance of its obligations under this Agreement to service the Territory. Master Distributor shall be solely responsible for the conduct of its Resellers, and the cost of any discounts or other incentives offered by Master Distributor to its Resellers. In the event that U-Vend and/or Master Distributor becomes dissatisfied for any reason whatsoever with the performance of any of Master Distributors Resellers, U-Vend may notify Master Distributor of such dissatisfaction and it shall be the obligation of Master Distributor to terminate the Reseller within ten (10) days of said notification by Master Distributor, without any disruption of service to the retail accounts being serviced by said Reseller. Notwithstanding the foregoing, in the event that this Agreement is terminated, any and all Resellers agreements shall be automatically terminated and U-Vend shall have no obligations of any nature whatsoever to any such Resellers. Master Distributor agrees to indemnify and hold harmless U-Vend against any and all damages and costs, including attorneys’ fees and all other expenses incidental thereto, incurred as a result of any claim(s) asserted by any of Master Distributors Resellers, including, without limitation, damages arising from Master Distributors obligations under the Master Distributor Agreement.|
|2.4||On Going Assistance - U-Vend agrees to provide assistance, on a best efforts basis, to the Master Distributor throughout the term of this Agreement with operations, promotions and ongoing service.|
|2.5||Master Distributorship Rights – Master Distributor agrees and acknowledges the Master Distributorship rights contained in this agreement provided by U-Vend have a present and on-going value. Therefore, the Master Distributor agrees to compensate U-Vend for these rights through the payment of a Services sales royalty. Master Distributor agrees to pay the Services sales royalty amount as specified in Exhibit C.|
|3.||CERTAIN OBLIGATIONS OF MASTER DISTRIBUTOR.|
|3.1||Distribution to Accounts/Resellers – Master Distributor shall use its best efforts to directly distribute the Services to the Host Locations/Resellers within the Territory. In the event that the Master Distributor ceases to distribute the Services without cause or fails to pay the royalties to U-Vend as specified in Exhibit C, this agreement can be terminated by U-Vend.|
Page 2 of 16
|3.2||Sales and Promotional Efforts – Master Distributor shall use its best efforts to aggressively sell, promote and merchandise each of the Services to new Host Accounts and Resellers within the Territory, and shall strictly adhere to any and all marketing, advertising and promotional guidelines, restrictions, rules, regulations and practices of U-Vend and as communicated to Master Distributor from U-Vend from time to time (and as the same may be updated or amended from time to time). Master Distributor shall accept and fill any purchase order required from all customers.|
|3.3||Marketing Materials; Master Distributor Assistance – Except as set forth in Section 2.4, U-Vend may, but shall not be obligated to, assist Master Distributor with the marketing of the Services in the Territory, and will use its reasonable efforts to honor reasonable requests for promotional support. ANY AND ALL MARKETING, ADVERTISING AND PROMOTIONAL MATERIALS CREATED OR MODIFIED BY MASTER DISTRIBUTOR ARE SUBJECT TO U-VEND’s PRIOR WRITTEN APPROVAL, WHICH APPROVAL MAY BE WITHHELD IN U-VEND SOLE DISCRETION. Master Distributor will utilize marketing materials that contain U-Vend Intellectual Property (as hereinafter defined) only as provided or pre-approved by U-Vend, and will in no way be permitted to utilize U-Vend Intellectual Property in their own marketing materials, in each case, without first obtaining the prior written approval of an authorized officer of U-Vend.|
|3.4||Master Distributor Service – Master Distributor shall use its best efforts at all times to properly service all customer or corporate Services Accounts at Host locations within the Territory. In the event that Master Distributor is aware of any customer or corporate Account service needs and elects not to provide said service(s), U-Vend shall be free to place or service the Services to said customer Account (without payment or compensation to Master Distributor).|
|3.5||Applicable Law – Master Distributor shall comply with all laws, rules, regulations, ordinances, codes, industry standards, decrees, governmental orders and the like, whether local, Provincial, State, or federal, whether presently or later enacted, which are, or later become, applicable to Master Distributors purchase, acceptance, storage, transportation, sale, distribution and/or reacquisition of the Services (collectively, as amended from time to time, “ Applicable Law ”), including, without limitation, within Canada.|
|3.6||Ethical Practices – Master Distributor shall not directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of any financial or other advantage or anything else of value to (i) any official or employee of any government, or any department, agency or instrumentality thereof, (ii) any political party or official thereof, or to any candidate for political office, (iii) any official or employee of any public international organization or (iv) any person acting in an official capacity for on behalf of any of the foregoing, for the purpose of improperly influencing any act or decision of the official, employee, party or candidate, or inducing the official, employee, party or candidate to act or fail to act in violation of his/her lawful duty, or securing any improper advantage for Master Distributor inducing such official, employee, party or candidate to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, or otherwise improperly promoting the business interests of U-Vend in any respect. Master Distributor will defend and indemnify U-Vend for any loss, costs, claims, or damages resulting from Master Distributors breach of this Section 3.6, including, without limitation, damages resulting from Master Distributors obligations under our Master Distributor Agreement. The provisions of this Section 3.6 shall survive the expiration or sooner termination of this Agreement.|
Page 3 of 16
|3.7||Resolution of Customer Disputes – Master Distributor shall comply with U-Vend’s procedures for handling customer inquiries, complaints, Services warranty issues, guarantee/satisfaction issues and related matters, as such procedures are communicated to Master Distributor from U-Vend from time to time (and as the same may be updated or amended from time to time).In addition, Master Distributor shall promptly notify U-Vend of the occurrence and nature of such matters as and when such matters arise.|
|3.8||Digital Kiosk Screens - Master Distributor will manage all digital screens placed on all Services sold by the Master Distributor within the Territory.|
|4.1||UVend Group of Companies Web Site – It is agreed that the Master Distributor can create and develop a Master Distributor web site at their cost. Any web site developed by the Master Distributor will need prior approval from U-Vend before it is released.|
|4.2||Web Site Links – U-Vend and Master Distributor agree to place links on their respective web sites to the other party’s web site.|
|5.1||Equipment Royalties - Master Distributor agrees to pay U-Vend 10% of gross sales from all kiosks, merchandisers or any other equipment corporately owned and operated or sold through the Reseller program and are payable subject to the payment schedule in Exhibit C.|
|5.2||Digital Sales Royalties – Master Distributor agrees to pay U-Vend 10% of gross sales from all digital sales revenue, corporately owned and operated or sold through the Reseller program and are payable subject to the payment schedule in Exhibit C.|
|5.3||Novelty and/or Retail sales . There are no royalties due to U-Vend from novelty Ice Cream, retail goods or from Master Distributors Resellers novelty or retail goods sold within the Territory.|
|5.4||Payment – Master Distributor will submit quarterly financial statements with the royalty payment no later than 10 days after the end of the quarter, as specified in Exhibit C .|
|6.||LICENSES AND LICENSE FEES.|
|6.1||License Rights - U-Vend will own all professional sports licenses and will sub license the same agreements to Master Distributor unless otherwise agreed to by the Licensor.|
|6.2||NHL - U-Vend owns the rights to the executed NHL agreement that includes both the US and Canadian Territories. With the written consent of the Licensor, the Master Distributor will have the same rights under the NHL agreement. Master Distributor will have the exclusive rights for the Territory unless otherwise agreed to by the Licensor.|
Page 4 of 16
|6.3||NHL Fee – Unless otherwise agreed to by the Licensor, Master Distributor will have the right to negotiate the rights to the NHL for the Territory.|
|6.4||MLB - U-Vend owns the rights to the executed MLB agreement that is exclusive to the US Market. The Master Distributor, with U-Vend’s written approval, has the option to negotiate with MLB for the Canadian rights. If the Master Distributor decides to obtain these rights the agreement will be in the name of U-Vend with full payment due from the Master Distributor for these Canadian rights.|
|6.5||Future Licenses - It is agreed the if U-Vend submits and is granted any future sports licenses outside of Master Distributor’s Territory, the Master Distributor will have the first-right of refusal for the Territory rights to these licenses. It is agreed that any future potential sports licenses that U-Vend signs, and if Master Distributor wishes to acquire these additional Territory rights for the license, the Master Distributor will pay to U-Vend a mutually agreed to pre-paid royalty fee.|
|6.6||Master Distributor License Rights - It is agreed that if the Master Distributor wishes to negotiate a Sports License and U-Vend does not wish to participate in that particular license that the Master Distributor has the right to enter into said agreement for the Territory.|
|6.7||Termination of License Agreements - In the event that U-Vend is terminated by the Licensor for any reason the Master Distributor has the right to negotiate with the licensor for the agreement rights.|
|7.||MUTUAL CONFIDENTIAL INFORMATION.|
|7.1||During the course of performance of this Agreement, U-Vend may disclose certain confidential information, which confidential information includes, but is not limited to, the terms of this Agreement and any information pertaining to U-Vend’s financial affairs, business systems, marketing strategies, trade secrets, Kiosks, designs, digital equipment, technology and other technical, digital and commercial information (“Confidential Information”) to Master Distributor solely to permit Master Distributor to perform its obligations under this Agreement. Master Distributor shall use its best efforts to maintain the secrecy of all such Confidential Information. Master Distributor shall not use, disclose, or otherwise exploit any Confidential Information for any purpose not specifically authorized by U-Vend in this Agreement. All files, lists, records, documents, drawings, marketing and advertising campaigns, that incorporate or refer to any Confidential Information shall be returned or destroyed promptly upon expiration or earlier termination of this Agreement. Confidential Information shall be disclosed to those employees of Master Distributor that need such information to perform their obligation to distribute the Services. For the avoidance of doubt, Master Distributor hereby covenants and agrees that it shall not disclose, directly or indirectly, any Confidential Information (including the terms of this Agreement to any self serve kiosk manufacturer, Branding Partners, licensees other Master Distributors, operators, competitors / non competitor, direct retail Master Distributor, or any affiliate of any direct Master Distributorship, and a breach of the foregoing shall be deemed a material breach of this Agreement. The provisions of this Section 7 shall survive the termination of this Agreement.|
Page 5 of 16
|8.||TERRITORY OPTIONS AND RULES.|
|8.1||Rights: It is agreed that the Master Distributor has first of refusal for other territories outside of the United States. If Master Distributor is notified by U-Vend of potential new territories, Master Distributor will have 15 days to accept or decline. If the Master Distributor notifies U-Vend of its interest in entering another territory, Master Distributor must have approval from U-Vend. Both parties agree that in the event of additional territories being awarded to the Master Distributor, the Master Distributor will pay U-Vend a one-time prepaid royalty fee as specified by U-Vend.|
|8.2||Transshipment: Master Distributor shall not directly or indirectly sell or distribute the Services outside of their Territory without the prior written permission of U-Vend, which may be withheld in U-Vend’s sole discretion. Master Distributor acknowledges that such action will cause irreparable and incalculable harm to U-Vend pursuant to this Agreement and may result in a termination of the Master Distributor Agreement. U-Vend may terminate this Agreement for cause pursuant to Section 12.2 below if Master Distributor directly or indirectly sells or distributes the Services outside of the Territory. Upon termination of the Agreement U-Vend shall be free thereafter to appoint another Master Distributor for the Territory.|
|8.3||UV Digital Lockers: It is agreed that Master Distributor will be the main contact and distributor to sell Digital Lockers worldwide. It is agreed that U-Vend and Master Distributor will agree on a “Sale Price” on a per locker basis and share these profits 50/50 and there will not be a royalty applicable on these one-time sales.|
|9.1||Master Distributor shall maintain general and public liability and Services liability insurance in sums not less than $3,000,000 underlying coverage, and $10,000 per incident / occurrence in excess and/or umbrella coverage, with a deductible of not more than $10,000 per incident/occurrence. Master Distributor shall name U-Vend as additional named insured. The policy shall require insurer to notify U-Vend no less than thirty (30) days prior to any non-renewal or cancellation. The insurance coverage amount can be changed or modified at any time by U-Vend.|
|10.||U-VEND INTELLECTUAL PROPERTY.|
|10.1||Master Distributor acknowledges and agrees that, subject to the terms of the Master Distributor Agreement, that U-Vend will maintain sole and exclusive ownership of all trade secrets, trade names, trademarks, trade dress, copyrights, logo types, commercial symbols, patents, or similar rights or registrations, branding labels and designs used on, or in connection with, the Services now or hereafter held or applied for in connection therewith (collectively, ( U-VEND INC . IP ”). Master Distributor acknowledges and agrees that U-VEND INC IP, and the goodwill associated therewith, are the sole and exclusive property of U-Vend and, subject to the terms of the Master Distributor Agreement, may be for U-Vend and their affiliates for any purpose. U-Vend grants Master Distributor the limited, nontransferable right, during the Term, to use the U-Vend Inc. Intellectual Property solely to promote the goodwill and sale of the Services in the Territory and solely in accordance with the terms of this Agreement. Any use of the U-Vend Inc’s. Intellectual Property by Master Distributor shall be to promote the Services in the best possible manner as determined by U-Vend in its sole discretion and may be terminated by U-Vend at any time in U-Vend sole discretion.|
Page 6 of 16
|10.2||Other than as expressly set forth in Section 10.1 hereof, as of the date hereof, Master Distributor has no right, title or interest, and during the Term, Master Distributor shall not acquire any right, title or interest of any kind or nature whatsoever in or to the U-Vend Inc’s IP, or the goodwill associated therewith. Master Distributor shall not contest the rights of U-Vend or its affiliates in respect of U-Vend Inc’s IP, including any additions or improvements to U-Vend Inc’s Intellectual Property by whomever developed; U-Vend hereby waives any claim Master Distributor may have, arising under any law or in equity, with respect to U-Vend Inc’s IP.|
|10.3||Master Distributor hereby agrees that it shall not use any other trademark, service mark, trade name, logo, symbol or device in combination with U-Vend Inc’s IP, other than as may be required by Applicable Law. In addition, Master Distributor hereby further agrees that it shall not use any configuration, mark, name, design, logo, insignia, mascot or other designation confusingly similar to U-Vend Inc’s IP (or which might be considered a variation or alteration of U-Vend Inc’s IP), either during or after the Term.|
|10.4||The Provisions of this Section 10 shall survive the termination of this Agreement.|
|11.1||It is agreed that the Master Distributor will use its best efforts to assist U-Vend with any press release within the Territory. U-Vend must approve all press releases prior to distribution and shall have final and absolute editorial rights to any press release associated with this Agreement.|
|12.1||This Agreement may be terminated with cause as follows:|
U-Vend may terminate this Agreement with cause in the event of a material breach by Master Distributor of any provisions of this Agreement. U-Vend shall provide Master Distributor with written notice, which notice shall (i) indicate the nature of such cause for termination, and (ii) provide Master Distributor an opportunity to cure such breach within thirty (30) days of Master Distributors receipt of such written notice. If the Master Distributor shall have failed to cure said breach within said thirty (30) days of written notice, then this Agreement shall be deemed terminated at the expiration of the aforementioned thirty (30) day period. In the event Master Distributor is terminated by U-Vend with cause hereunder, such termination shall not terminate Master Distributors obligation to pay U-Vend for all royalties or fees owed to U-Vend by Master Distributor.
|12.2||This Agreement may be terminated by U-Vend with cause immediately in the event of:|
|a)||the liquidation or dissolution or notice thereof of Master Distributors business;|
|b)||an assignment by Master Distributor for the benefit of creditors;|
|c)||the filing of a voluntary or involuntary petition under the provisions of the United States / Canadian Bankruptcy Code or the appointment of a receiver for the property of Master Distributor, the filing of which remains uncontested and un-discharged by Master Distributor at the end of thirty (30) days after such filing;|
Page 7 of 16
|d)||Master Distributor failing, or being unable to, pay its obligations as they become due;|
|e)||a breach of Section 16 (assignment) by Master Distributor;|
|f)||Master Distributor failing to meet the Minimum Royalty Commitment;|
|g)||Master Distributor failing to sell any Services for more than thirty (30) days;|
|h)||Master Distributor taking any action that negatively affects the goodwill or reputation of U-Vend or its Services;|
|i)||Master Distributor failing to pay any sums to U-Vend when due;|
|j)||Master Distributor selling the Services outside the Territory in violation of Sections 2.2 and 8.1 of this Agreement;|
|k)||Master Distributors misuse of U-Vend Inc’s IP in violation of this Agreement, including, without limitation, Section 3.4 and/or Section 10.|
|12.3||IN THE EVENT THIS AGREEMENT IS TERMINATED BY U-VEND WITH CAUSE, OR IN THE EVENT THIS IS AGREEMENT IS TERMINATED PURSUANT TO SECTION 13 BELOW, MASTER DISTRIBUTOR SHALL NOT BE ENTITLED TO ANY AMOUNTS UNDER SECTION 12 OF THIS AGREEMENT OR OTHERWISE.|
|13.||U-VEND INC. INSOLVENCY|
|13.1||If the parent company, U-Vend Inc., ceases business operations, files for bankruptcy, or discontinues operating as a going concern, this Agreement will be immediately terminated. However, Master Distributor will still have the obligation to pay to U-Vend any outstanding royalty or other fees currently or previously due to U-Vend.|
|14 .||Indemnification .|
|14.1||U-Vend Indemnification – U-Vend shall defend, indemnify and hold harmless Master Distributor, its owners, officers, directors, agents and employees (“ Master Distributor’s Indemnified Parties ”), from and against any and all damages, liabilities, losses, costs and expenses (including, without limitation, attorneys’ fees) (collectively, ” Losses ”) resulting from any third party claim arising out of or in connection with any breach by U-Vend of any covenant, obligation, representation or warranty contained herein, or the negligence, recklessness or willful misconduct of any U-Vend Indemnified Parties (as defined below) in connection with the performance of any obligations of U-Vend Inc. under this Agreement.|
|14.2||Master Distributors Indemnification – Master Distributor shall defend, indemnify and hold harmless U-Vend, its owners, officers, directors, agents and employees (“ U-Vend Indemnified Parties ”), from and against any and all Losses resulting from any third party and/or Resellers claim arising out of or in connection with breach by Master Distributor of any covenant, obligation, representation or warranty contained herein, or the negligence, recklessness or willful misconduct of any Master Distributor Indemnified Parties in connection with the performance of any obligations of Master Distributor under this Agreement.|
Page 8 of 16
|14.3||Procedure – Any party seeking indemnification under Section 14 of this Agreement (each, an “ Indemnitee ”) shall, as a prerequisite of any such claim of indemnification: (1) notify the indemnifying Party (the “ Indemnitee ”) in writing of any claim, or any circumstances which could foreseeably give rise to a claim, in either case, to which this Section 14 may apply (a “ Claim ”), promptly upon becoming aware thereof; provided , however , Indemnities’ failure to give Indemnitee such notice shall not relieve the Indemnitee of its indemnification obligation under this Agreement except to the extent that the Indemnitor is prejudiced by Indemnities’ failure or delay in giving such notice; and (2) provide Indemnitor with the opportunity to assume and control the defense and/or settlement of any such Claim at its own expense with counsel selected by the Indemnitor and reasonably acceptable to the Indemnitee; provided , however , that an Indemnitee shall have the right to retain its own counsel, at its own cost and expense, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other party represented by such counsel in such proceedings. If the Indemnitor does not assume the defense of such Claim as aforesaid, the Indemnitee may defend such Claim but shall have no obligation to do so; provided , however , the Indemnitee shall not settle or compromise any Claim without the prior written consent of the Indemnitor, and the Indemnitor shall not settle or compromise any Claim in any manner which would have an adverse effect on the Indemnities’ interests, without the prior written consent of the Indemnitee, which consent, in each case, shall not be unreasonably withheld. The Indemnitee shall reasonably cooperate with the Indemnitor at the Indemnitors expense and shall make available to the Indemnitor all pertinent information under the control of the Indemnitee, which information shall be subject to Section 7.|
|14.4||Notification of Unauthorized Use of U-Vend Inc’s IP; No Prosecution – Master Distributor hereby agrees to notify U-Vend, in writing, as soon as practicable after it becomes aware of the manufacture, distribution, sale, transshipment, advertisement or promotion of any Services containing any names, slogans, phrases, designs, materials or artwork that may constitute infringement of U-Vend Inc’s IP (including, without limitation, trademark rights and copyrights). Master Distributor further acknowledges and agrees that it shall not commence, prosecute or institute any action or proceeding against any person, firm or entity alleging infringement or unauthorized use of U-Vend Inc’s IP without the prior written consent of U-Vend which may be withheld in its sole discretion.|
|14.5||Survival - The Provisions of this Section 14 shall survive the termination of this Agreement.|
|15.1||Master Distributor hereby represents and warrants to U-Vend that, as of the Effective Date: (a) it is qualified and permitted to enter into this Agreement and that the terms of this Agreement do not conflict with, and are not inconsistent with any other of its contractual obligations; (b) it is validly existing and in good standing under the laws of Canada, and has all necessary corporate power to perform its obligations under this Agreement and its financial resources are sufficient to enable it to perform all of its obligations under this Agreement; and (c) it has sufficient personnel and capacity to perform its obligations under this Agreement.|
Page 9 of 16
|15.2||Master Distributor represents and warrants to U-Vend that it has all requisite corporate power and authority to enter into this Agreement. Master Distributor is qualified and permitted to enter into this Agreement and that the terms of this Agreement do not conflict with and are not inconsistent with any other of its contractual obligations.|
|15.3||Master Distributor hereby covenants that Master Distributor: (a) shall store the Services in accordance with all Applicable Laws; (b) shall distribute and ship the Services within the Territory in accordance with all Applicable Law; (c) shall not sell any Services unauthorized by U-Vend; (d) shall not adulterate or misbrand any Services, or engage in any activity that could or does render Kiosks adulterated or misbranded; and (e) shall maintain all necessary records for compliance with the terms of this Agreement and all Applicable Laws.|
|16.||MODIFICATIONS, AMENDMENTS AND WAIVERS; ASSIGNMENT.|
|16.1||This Agreement may not be modified or amended, including by customs of trade, or course of dealing, except by an instrument in writing signed by a duly authorized officers of both of the parties hereto. Performance of any obligation required of a party hereunder may be waived only by a written waiver signed by a duly authorized officer of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The waiver by either party hereto of a breach of any obligation of the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.|
|16.2||The parties hereby covenant and agree that U-Vend shall be permitted to transfer or assign this Agreement to a successor-in-interest of U-Vend upon notice to, but without the consent of, Master Distributor.|
|16.3||U-Vend grant of distribution rights hereunder is based upon its trust and confidence in Master Distributor and the current owners of Master Distributor. Master Distributor’s rights and/or obligations under this Agreement may not be transferred or assigned in any manner, voluntary or involuntary, to any other person or entity, without the prior written consent of U-Vend. For purposes of this Section 16.3, a transfer or assignment shall include, but not be limited to the following: (i) gift, (ii) merger of Master Distributor (or any parent entity of Master Distributor) with any other entity, and (iii) sale, gift, transfer or issuance of more than 25% of the equity ownership, stock or assets of Master Distributor (or any parent entity of Master Distributor) to any person, persons or entities other than the current owners or their direct family. Master Distributor will not unreasonably withhold such consent if Master Distributor timely provides U-Vend with all information it reasonably requires and U-Vend determines that such transfer or assignment will not impair U-Vend rights or opportunities hereunder nor put U-Vend at risk in any of its other business dealings. Upon any such transfer or assignment without U-Vend consent, this Agreement shall be deemed terminated “with cause” by U-Vend without notice and without opportunity to cure.|
|17.1||Except for payment obligations, which shall not be excused, neither party to this Agreement shall be responsible for any failure to perform due to unforeseen circumstances or to causes beyond such party’s reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor, or materials. In the event of any such delay, U-Vend Inc. may defer the delivery date for a period equal to the time of such delay.|
|Page 10 of 16|
|18.1||Unless otherwise specifically provided, all notices required or permitted by this Agreement shall be in writing and may be delivered personally, or may be sent by facsimile or certified mail, return receipt requested, to the following addresses, unless the parties are subsequently notified of any change of address. If to Master Distributor, to the notice address set forth on the signature page to this Agreement.|
Group of Companies Group
BURLINGTON, ONTARIO L7L 6A4
ATTENTION: MR. PAUL NEELIN
|Any notice shall be deemed to have been received as follows: (i) by personal delivery, upon receipt, (ii) by facsimile or email, twenty four (24) hours after transmission or dispatch, (iii) by certified mail, five (5) business days after delivery to the Canadian / U.S. postal authorities by the party serving notice. If notice is sent by facsimile, a confirming copy of the same shall be sent by mail to the same address.|
|19.||ARBITRATION; INJUNCTIVE RELIEF|
|19.1||Any controversy or claim between or among the parties relating to this Agreement shall be determined by arbitration in accordance with the Arbitration Rules of Canadian and American Arbitration Associations. The panel shall consist of at least three (3) arbitrators. Any such arbitration hearing shall be held in local regions of U-Vend Inc., unless the parties mutually agree otherwise. Notwithstanding the foregoing, Master Distributor acknowledges and agrees that U-Vend Inc. would be damaged irreparably in the event Master Distributor fails or refuses to perform its obligations hereunder. Accordingly, Master Distributor agrees that U-Vend Inc. shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement, including without limitation Sections 2, 7, 10, 11, 13, 16, 17 and 18, by U-Vend and to enforce specifically this Agreement and the terms and provisions hereof without bond or other security being required in any court in Canada or the United States or, this being in addition to any other remedy to which U-Vend is entitled at law or in equity.|
|20.1||This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, United States, without regard to conflict of law principles.|
|21.1||In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement in any other jurisdiction, but this Agreement shall be reformed and construed in any such jurisdiction as if such invalid or illegal or unenforceable provision had never been contained herein and such provision shall be reformed so that it would be valid, legal and enforceable to the maximum extent permitted in such jurisdiction.|
|Page 11 of 16|
|22.1||This Agreement together with the Exhibits attached hereto, constitute the entire understanding and contract between the parties and supersedes and all prior and contemporaneous, oral or written representations, communications, understandings, and agreements between the parties with respect to the subject matter hereof. The parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein.|
|23.1||The initial term of this Agreement shall be deemed to commence on the Effective Date and shall continue in full force and effect for five (5) years (the “Term”), unless earlier terminated in accordance with the terms of this Agreement, including, without limitation, Section 12. Thereafter, unless either party provides a 30 day notice of termination prior to the end of the initial five year Term or any subsequent Term, the Term shall automatically renew and continue on a year to year basis until and unless terminated as set forth herein. Notwithstanding the foregoing, Master Distributor acknowledges and agrees that this Agreement may be terminated by U-Vend at any time in accordance with Section 12 of this Agreement.|
++++++++++++++++++SIGNATURE PAGE FOLLOWS+++++++++++++++++
|Page 12 of 16|
IN WITNESS WHEREOF, the parties hereto have caused this Master Distributor Agreement to be duly executed by their duly authorized representatives as of the Effective Date.
1507 7th Street, Suite 425
Santa Monica, CA 90401
|Raymond Meyers||/s/ Raymond Meyers||January 26, 2017|
|Name (Print)||Mr. Raymond Meyers||Date|
|S Audero||/s/ S Audero||January 26, 2017|
UVend Group of Companies Group
BURLINGTON, ONTARIO L7L 6A4
|Paul Neelin||/s/ Paul Neelin||January 26, 2017|
|Name (Print)||Mr. Paul Neelin||Date|
|M Papescu||/s/ M Papescu||January 26, 2017|
|Page 13 of 16|
Subject to the terms of this Agreement, Master Distributor shall be the exclusive Master Distributor of the Services for:
2. Latin America
|Page 14 of 16|
Digital Kiosks: Approved self serve kiosks that retails either novelty ice cream or retail and/or retail accessories with a digital screen attached and approved graphic packages.
Digital Merchandisers: Approved merchandises for “Grab N Go” sales with a digital screen attached and approved graphic packages.
UV Digital : The management, sales and content development of digital ads, news and/or streaming video to directed all kiosks and merchandisers within the Canadian Marketplace.
Digital Lockers: The resale of a “Stand Alone Digital Lockers” to existing vending machine owner operators worldwide.
|Page 15 of 16|
The resale of a “Stand Alone Digital Greeter” to Canadian
locations. EXHIBIT C
1. Kiosks: 10% CDN$ of the gross sale price all kiosks opened corporately or sold through the reseller program within the Territory.
2. Merchandisers: 10% CDN$ of the gross sale price all kiosks opened corporately or sold through the reseller program within the Territory.
3. UV Digital: 10% CDN$ of the gross sale of all digital ads sold to advertisers or through the reseller program within the Territory.
4. Digital Lockers: 10% CDN$of the gross sale price all Digital Greeters opened corporately or sold through the reseller program within the Territory.
5. Digital Greeters: 10% CDN$ of the gross sale price all Digital Greeters opened corporately or sold through the reseller program within the Territory.
6. Other Products and Services: A minimum of 10% CDN$ royalty paid to U-Vend by the Master Distributor for units opened corporately or sold through the reseller program within the Territory.
Royalty Payment Dates
1st Quarter: January - March - Due no later than April 10th
2nd Quarter: April - May - Due no later than June 10th
3rd Quarter: June - August - Due no later than September 10th
4th Quarter: October - December - Due no later than January 10th
|Page 16 of 16|