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 Exchange Act of 1934
Date of Report (Date of earliest event reported): May 20, 2014
JAMMIN JAVA CORP.
(Exact name of registrant as specified in its charter)
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Nevada
(State or other jurisdiction of incorporation)
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000-52161
(Commission File
Number)
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264204714
(IRS Employer Identification No.)
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4730 Tejon St., Denver, Colorado 80211
(Address of principal executive offices and Zip Code)
323-556-0746
Registrant's telephone number, including area code:
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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01. Entry Into A Material Definitive Agreement.
Effective May 20, 2014, Jammin Java Corp. (the “Company”, “we” or “us”), entered into an Amended and Restated License Agreement with Mother Parkers Tea & Coffee Inc. (“Mother Parkers” and the “MP Agreement”), which amended and restated a prior license agreement entered into between the parties in October 2011. A significant portion of the Company’s yearly revenue comes from sales to and through Mother Parkers. As described in greater detail in the Current Report on Form 8-K filed with the Securities and Exchange Commission on April 30, 2014, the Company entered into a Subscription Agreement with Mother Parkers in April 2014, pursuant to which Mother Parkers purchased 7,333,529 units from the Company for $2.5 million, each unit consisting of one share of the Company’s common stock; and one warrant to purchase one share of common stock at $0.51135 per share for a term of three years.
Pursuant to the MP Agreement, the Company granted Mother Parkers the exclusive right to manufacture, process, package, label, distribute and sell single serve hard capsules (which excludes single serve soft pods) (the “Product”) on behalf of the Company in Canada, the United States of America and Mexico. The rights granted under the MP Agreement are subject to certain terms and conditions of our September 13, 2012, license agreement with Fifty-Six Hope Road Music Limited (“Fifty-Six Hope Road”), pursuant to which Fifty-Six Hope Road granted the Company a worldwide, exclusive, non-transferable license to utilize certain of the “Marley Coffee” trademarks (the “Trademarks”)(as described in greater detail in our Annual Report on Form 10-K for the year ended January 31, 2014, as filed with the Securities and Exchange Commission on May 16, 2014).
Pursuant to the MP Agreement, Mother Parkers is required to, among other things, supply all ingredients and materials, labor, manufacturing equipment and other resources necessary to manufacture and package the Product, develop coffee blends set forth in specifications provided by the Company from time to time, procure coffee beans in the open market (or from the Company’s designee) at favorable prices, set prices for the Product in a manner that is competitive in the market place and deliver Product logo/brand designs to the Company for approval prior to manufacturing any such Product. We are required to, among other things, cross-promote the Product, use Product images and marketing materials provided by Mother Parkers to promote the Product, and provide the services of Rohan Marley (our Chairman) at a minimum of five locations per year at the Company’s sole cost and expense. There are no minimum volume or delivery requirements under the MP Agreement. Pursuant to the MP Agreement, Mother Parkers agreed to pay us a fee of $0.06 per capsule for Talkin’ Blues products and $0.04 per capsule for all other Product sold under the agreement, which payments are due in monthly installments.
The MP Agreement has a term of five years, provided that it automatically renews thereafter for additional one year periods if not terminated by the parties, provided further that we are not able to terminate the agreement within the first 12 months of the term of the agreement and if we terminate the agreement or take any action that lessens or diminishes Mother Parkers’ exclusive rights under the agreement during months 12 through 36 of the agreement, we are required to pay Mother Parkers a fee of $600,000 and reimburse Mother Parkers for any out of pocket costs incurred by Mother Parkers for inventory and other materials that are unsalable or unusable after such termination. Notwithstanding the requirements above, either party may terminate the agreement at any time (a) upon the default of the agreement by the other party, if such default is not cured within 30 days (45 days if the default is not capable of being cured within 30 days and 10 days in the event the default relates to non-payment of fees due) after written notice thereof is provided by the non-defaulting party; or (b) upon the bankruptcy or similar proceeding involving the other party, the dissolution or liquidation of the other party, a seizure or attachment of the other party’s property or assets, or the commencement of litigation proceedings involving Mother Parkers’ use of the Trademarks (which right to termination is in favor of Mother Parkers only). Additionally, Mother Parkers has the right to terminate the agreement at any time for any reason with 90 days prior written notice. In the event of the termination of the agreement for any reason, we are required to purchase any and all unsold Products (including raw or packaged materials) from Mother Parkers.
In the event of a product recall resulting from the Company’s act or omission, we are required to pay all costs and expenses associated with such recall. The MP Agreement requires that the parties review the terms and conditions of the agreement on a yearly basis. Additionally, the agreement requires that Mother Parkers allocate $100,000 annually to be used for marketing activities mutually agreed to by Mother Parkers and the Company.
The MP Agreement contains customary confidentiality and indemnification requirements and covenants typical of agreements similar to the MP Agreement.
The above summary of the material terms and conditions of the MP Agreement is qualified in its entirety by reference to the actual terms and conditions of the MP Agreement which is filed as Exhibit 10.1 hereto, and is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Effective May 23, 2014, the Board of Directors of the Company adopted Amended and Restated Bylaws (“Amended Bylaws”) completely replacing the Company’s prior Bylaws. The Amended Bylaws affected certain changes to among other things, bring the Company’s organizational documents in line with Nevada law, to clarify and expand certain provisions thereof and to reduce the number of shares required to be present in person or by proxy at a meeting of the stockholders to constitute a quorum from a majority to 33-1/3% of all of the shares of stock entitled to vote at such meeting, except as otherwise provided by applicable law, by the Articles of Incorporation or by the Amended Bylaws. The material revisions to the Bylaws affected as a result of the adoption of the Amended Bylaws (other than as described above), aside from general updates and clarifications to such Bylaws, are described below:
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1)
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The Amended Bylaws clarify consistent with Nevada law, that notice of each meeting of the stockholders of the Company is required to be given no less than 10 nor more than 60 days before each meeting (previously the Bylaws provided for not more than 50 days’ notice);
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2)
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The Amended Bylaws require that in the event a stockholder proposal relates to a nomination for appointment of a director of the Company, the notice provided by the stockholder shall set forth (in addition to other items required by the Amended Bylaws) (a) as to each person whom the stockholder proposes to nominate for election as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class or series and number of shares of capital stock of the Company which are owned beneficially or of record by the person and (iv) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected;
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3)
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The Amended Bylaws provide that nominations of persons for election to the Board of Directors may be made at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose of electing directors, (a) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (b) by any stockholder of the Company (i) who is a stockholder of record on the date of the giving of the notice provided for in the Amended Bylaws and on the record date for the determination of stockholders entitled to notice of and to vote at such meeting and (ii) who complies with the notice procedures set forth in the Amended Bylaws;
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4)
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The Amended Bylaws reduce the number of shares required to be present in person or by proxy at a meeting of the stockholders to constitute a quorum from a majority to 33-1/3% of all of the shares of stock entitled to vote at such meeting, except as otherwise provided by applicable law, by the Articles of Incorporation or by the Amended Bylaws;
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5)
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The Amended Bylaws provide that in the absence of a quorum at any meeting or any adjournment thereof, (A) the Board of Directors, without a vote of the stockholders, may (1) postpone, reschedule, or cancel any previously scheduled annual meeting of stockholders and (2) postpone, reschedule, or cancel any previously scheduled special meeting of the stockholders called by the Board of Directors or management (but not by the stockholders); or (B) the holders of a majority of the shares of stock entitled to vote who are present, in person or by proxy, or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting may adjourn such meeting to another place, date or time; and
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6)
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The Amended Bylaws clarify consistent with Nevada law that any action taken by the stockholders shall be valid and binding upon the Company if the number of votes cast in favor of the action exceeds the number of votes cast in opposition to the action.
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The foregoing summary of the Amended Bylaws is qualified in its entirety by reference to the full text of the Amended Bylaws attached to this Current Report as Exhibit 3.1.
Item 9.01 Financial Statements and Exhibits.
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Exhibit No.
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Description
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3.1*
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Amended and Restated Bylaws of Jammin Java Corp. (May 23, 2014)
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10.1*
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Amended and Restated License Agreement with Mother Parkers Tea & Coffee Inc. (May 20, 2014)
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* Filed herewith.
SIGNATURES
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.
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Jammin Java Corp.
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Date: May 30, 2014
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By:
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/s/ Anh Tran
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Anh Tran
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President
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EXHIBIT INDEX
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Exhibit No.
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Description
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3.1*
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Amended and Restated Bylaws of Jammin Java Corp. (May 23, 2014)
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10.1*
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Amended and Restated License Agreement with Mother Parkers Tea & Coffee Inc. (May 20, 2014)
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* Filed herewith.
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Exhibit 3.1
AMENDED AND RESTATED BYLAWS
OF
JAMMIN JAVA CORP.
a Nevada corporation
Adopted May 23, 2014
ARTICLE 1.
DEFINITIONS
1.1 Definitions. Unless the context clearly requires otherwise, in these Amended and Restated Bylaws:
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(a)
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“Articles of Incorporation” or “Articles” means the Articles of Incorporation of Jammin Java Corp., as filed with the Secretary of State of the State of Nevada and includes all amendments thereto and restatements thereof subsequently filed.
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(b)
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“Board” means the board of directors of the Company and/or an authorized Committee of the Board, as applicable.
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(c)
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“Bylaws” means these Amended and Restated Bylaws as adopted by the Board and includes amendments subsequently adopted by the Board or by the Stockholders.
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(d)
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“Company” means Jammin Java Corp., a Nevada corporation.
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(e)
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“Nevada Law” means the Nevada Revised Statutes, as amended from time to time.
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(f)
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“Section” refers to sections of these Bylaws.
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(g)
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“Stockholder” means stockholders of record of the Company.
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1.2 Offices. The title of an office refers to the person or persons who at any given time perform the duties of that particular office for the Company.
ARTICLE 2.
OFFICES
2.1 Principal Office. The Company may locate its principal office within or without the state of incorporation as the Board may determine.
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Jammin Java Corp.
2.2 Registered Office. The registered office of the Company required by law to be maintained in the state of incorporation may be, but need not be, the same as the principal place of business of the Company. The Board may change the address of the registered office from time to time.
2.3 Other Offices. The Company may have offices at such other places, either within or without the state of incorporation, as the Board may designate or as the business of the Company may require from time to time.
ARTICLE 3.
MEETINGS OF STOCKHOLDERS
3.1 Annual Meetings. The Stockholders of the Company shall hold their annual meetings for the purpose of electing directors and for the transaction of such other proper business as may come before such meetings at such time, date and place as the Board shall determine by resolution.
3.2 Special Meetings. The Board, the Chairman of the Board, the President, a majority of the members of the Board or a committee of the Board duly designated and whose powers and authority include the power to call meetings may call special meetings of the Stockholders of the Company at any time for any purpose or purposes. Special meetings of the Stockholders of the Company may also be called by the holders of at least 10% of all shares entitled to vote at the proposed special meeting.
If any person(s) other than the Board or the Chairman call a special meeting, the request shall:
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(ii)
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specify the general nature of the business proposed to be transacted; and
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(iii)
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be delivered personally or sent by registered mail or by facsimile transmission to the Secretary of the Company.
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Upon receipt of such a request, the Board shall determine the date, time and place of such special meeting, which must be scheduled to be held on a date that is within ninety (90) days of receipt by the Secretary of the request therefor, and the Secretary of the Company shall prepare a proper notice thereof. No business may be transacted at such special meeting other than the business specified in the notice to Stockholders of such meeting.
3.3 Place of Meetings. The Stockholders shall hold all meetings at such places, within or without the State of Nevada, as the Board or a committee of the Board shall specify in the notice or waiver of notice for such meetings.
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3.4 Notice of Meetings. Except as otherwise required by law, the Board or a committee of the Board shall give notice of each meeting of Stockholders, whether annual or special, not less than 10 nor more than 60 days before the date of the meeting. The Board or a committee of the Board shall deliver a notice to each Stockholder entitled to vote at such meeting by delivering a typewritten or printed notice thereof to him personally, or by depositing such notice in the United States mail, in a postage prepaid envelope, directed to him at his address as it appears on the records of the Company, or by transmitting a notice thereof to him at such address by telegraph, telecopy, cable or wireless. If mailed, notice is given on the date deposited in the United States mail, postage prepaid, directed to the Stockholder at his address as it appears on the records of the Company. An affidavit of the Secretary or an Assistant Secretary or of the Transfer Agent of the Company that he has given notice shall constitute, in the absence of fraud, prima facie evidence of the facts stated therein.
Every notice of a meeting of the Stockholders shall state the place, date and hour of the meeting and, in the case of a special meeting, also shall state the purpose or purposes of the meeting. Furthermore, if the Company will maintain the list at a place other than where the meeting will take place, every notice of a meeting of the Stockholders shall specify where the Company will maintain the list of Stockholders entitled to vote at the meeting.
3.5 Notice of Stockholder Business and Nominations. Subject to the Articles of Incorporation, the Stockholders who intend to nominate persons to the Board of Directors, subject where applicable to these Bylaws and applicable law, or propose any other action at an annual meeting of Stockholders must timely notify the Secretary of the Company of such intent. To be timely, a Stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the Company not earlier than the close of business on the day which falls 120 days prior to the one year anniversary of the Company’s last annual meeting of Stockholders and not later than the close of business on the day which falls 90 days prior to the one year anniversary of the Company’s last annual meeting of Stockholders, together with written notice of the shareholder’s intention to present a proposal for action at the meeting, unless the Company’s annual meeting date occurs more than 30 days before or 30 days after the one year anniversary of the Company’s last annual meeting of Stockholders. In that case, the Company must receive proposals not earlier than the close of business on the 120th day prior to the date of the annual meeting and not later than the close of business on the later of the 90th day prior to the date of the annual meeting or, if the first public announcement of the date of the annual meeting is less than 100 days prior to the date of the meeting, the 10th day following the day on which the Company first makes a public announcement of the date of the annual meeting. Such notice must be in writing and must include (a) the name and record address of the Stockholder who intends to propose the business and the class or series and number of shares of capital stock of the Company which are owned beneficially or of record by such Stockholder; (b) a representation that the Stockholder is a holder of record of stock of the Company entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to introduce the business specified in the notice; (c) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting; (d) any material interest of the Stockholder in such business; and (e) any other information that is
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Jammin Java Corp.
required to be provided by the Stockholder pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (such act, and the rules and regulations promulgated thereunder, the “Exchange Act”). In the event the Stockholder proposal relates to a nomination for appointment of a director of the Company, the notice shall also set forth (a) as to each person whom the Stockholder proposes to nominate for election as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class or series and number of shares of capital stock of the Company which are owned beneficially or of record by the person and (iv) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.
Nominations of persons for election to the Board of Directors may be made at any annual meeting of Stockholders, or at any special meeting of Stockholders called for the purpose of electing directors, (a) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (b) by any Stockholder of the Company (i) who is a Stockholder of record on the date of the giving of the notice provided for in this Section 3.5 and on the record date for the determination of Stockholders entitled to notice of and to vote at such meeting and (ii) who complies with the notice procedures set forth in this Section 3.5.
Notwithstanding the foregoing, in order to include information with respect to a Stockholder proposal in the proxy statement and form of proxy for a stockholder’s meeting, Stockholders must provide notice as required by, and otherwise comply with the requirements of, the Exchange Act and the regulations promulgated thereunder. The Board of Directors reserves the right to refuse to submit any such proposal to Stockholders at an annual meeting if, in its judgment, the information provided in the notice is inaccurate or incomplete. For the avoidance of doubt, the foregoing Section 3.5 shall be the exclusive means for a Stockholder to make nominations or propose business (other than business included in the Company's proxy materials pursuant to Rule 14a-8 under the Exchange Act) at an annual meeting of stockholders. For purposes of these Bylaws, “public announcement” shall mean disclosure in a press release reported by a national service or in a document publicly filed by the Company with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. Notwithstanding the foregoing provisions of this Section 3.5, a stockholder shall also comply with all applicable requirements of the Exchange Act and applicable state law with respect to matters set forth in this Section 3.5. Nothing in this Section 3.5 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act, or the Company’s or the Board of Director’s rights and obligations under the Exchange Act and state law.
3.6 Waiver of Notice. Whenever these Bylaws require written notice, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein,
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shall constitute the equivalent of notice. Attendance of a person at any meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. No written waiver of notice need specify either the business to be transacted at, or the purpose or purposes of any regular or special meeting of the Stockholders, directors or members of a committee of the Board.
3.7 Adjournment of Meeting. When the Stockholders, the Board of Directors, or an officer (as provided in Section 3.8 below), adjourn a meeting to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Stockholders may transact any business which they may have transacted at the original meeting. If the adjournment is for more than 30 days or, if after the adjournment, the Board or a committee of the Board fixes a new record date for the adjourned meeting, the Board or a committee of the Board shall give notice of the adjourned meeting to each Stockholder of record entitled to vote at the meeting.
3.8 Quorum. Except as otherwise required by law, the holders of 33-1/3% of all of the shares of the stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum for all purposes at any meeting of the Stockholders except as otherwise provided by applicable law, by the Articles of Incorporation or by these Bylaws. In the absence of a quorum at any meeting or any adjournment thereof, (A) the Board of Directors, without a vote of the Stockholders, may (1) postpone, reschedule, or cancel any previously scheduled annual meeting of Stockholders and (2) postpone, reschedule, or cancel any previously scheduled special meeting of the Stockholders called by the Board of Directors or management (but not by the Stockholders); or (B) the holders of a majority of the shares of stock entitled to vote who are present, in person or by proxy, or, in the absence therefrom of all the Stockholders, any officer entitled to preside at, or to act as secretary of, such meeting may adjourn such meeting to another place, date or time.
If the chairman of the meeting gives notice of any adjourned special meeting of Stockholders to all Stockholders entitled to vote thereat, stating that the minimum percentage of Stockholders for a quorum as provided by Nevada Law shall constitute a quorum, then, except as otherwise required by law, that percentage at such adjourned meeting shall constitute a quorum and a majority of the votes cast at such meeting shall determine all matters.
Votes cast shall include votes cast against any proposal and shall exclude abstentions and broker non-votes, provided that votes cast against any proposal, abstentions and broker non-votes shall be counted in determining a quorum at any meeting.
3.9 Organization. Such person as the Board may have designated or, in the absence of such a person, the highest ranking officer of the Company who is present shall call to order any meeting of the Stockholders, determine the presence of a quorum, and act as chairman of the meeting. In the absence of the Secretary or an Assistant Secretary of the Company, the chairman shall appoint someone to act as the secretary of the meeting.
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Jammin Java Corp.
3.10 Conduct of Business. The chairman of any meeting of Stockholders shall determine the order of business and the procedure at the meeting, including such regulations of the manner of voting and the conduct of discussion as he deems in order.
3.11 List of Stockholders. At least 10 days before every meeting of Stockholders, the Secretary shall prepare a list of the Stockholders entitled to vote at the meeting or any adjournment thereof, arranged in alphabetical order, showing the address of each Stockholder and the number of shares registered in the name of each Stockholder. The Company shall make the list available for examination by any Stockholder for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, either at a place within the city where the meeting will take place or at the place designated in the notice of the meeting.
The Secretary shall produce and keep the list at the time and place of the meeting during the entire duration of the meeting, and any Stockholder who is present may inspect the list at the meeting. The list shall constitute presumptive proof of the identity of the Stockholders entitled to vote at the meeting and the number of shares each Stockholder holds.
A determination of Stockholders entitled to vote at any meeting of Stockholders pursuant to this Section shall apply to any adjournment thereof.
3.12 Fixing of Record Date. For the purpose of determining Stockholders entitled to notice of or to vote at any meeting of Stockholders or any adjournment thereof, or Stockholders entitled to receive payment of any dividend, or in order to make a determination of Stockholders for any other proper purpose, the Board or a committee of the Board may fix in advance a date as the record date for any such determination of Stockholders. However, the Board shall not fix such date, in any case, more than 60 days nor less than 10 days prior to the date of the particular action.
If the Board or a committee of the Board does not fix a record date for the determination of Stockholders entitled to notice of or to vote at a meeting of Stockholders, the record date shall be at the close of business on the day next preceding the day on which notice is given or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held or the date on which the Board adopts the resolution declaring a dividend.
3.13 Voting of Shares. Except as otherwise required by Nevada Law, the Articles of Incorporation or the Bylaws, (i) at all meetings of Stockholders for the election of directors, a plurality of votes cast shall be sufficient to elect such directors; (ii) any other action taken by Stockholders shall be valid and binding upon the Company if the number of votes cast in favor of the action exceeds the number of votes cast in opposition to the action, at a meeting at which a quorum is present, except that adoption, amendment or repeal of the Bylaws by Stockholders will require the vote of a majority of the shares entitled to vote; and (iii) broker non-votes and
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abstentions are considered for purposes of establishing a quorum but not considered as votes cast for or against a proposal or director nominee. Each Stockholder shall have one vote for every share of stock having voting rights registered in his name on the record date for the meeting, except as otherwise provided in any preferred stock designation setting forth the right of preferred stock shareholders. The Company shall not have the right to vote treasury stock of the Company, nor shall another corporation have the right to vote its stock of the Company if the Company holds, directly or indirectly, a majority of the shares entitled to vote in the election of directors of such other corporation. Persons holding stock of the Company in a fiduciary capacity shall have the right to vote such stock. Persons who have pledged their stock of the Company shall have the right to vote such stock unless in the transfer on the books of the Company the pledgor expressly empowered the pledgee to vote such stock. In that event, only the pledgee, or his proxy, may represent such stock and vote thereon.
Where a separate vote by a class or classes is required, a majority of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and the affirmative vote of the majority of shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class.
3.14 Inspectors. At any meeting in which the Stockholders vote by ballot, the chairman may appoint one or more inspectors. Each inspector shall take and sign an oath to execute the duties of inspector at such meeting faithfully, with strict impartiality, and according to the best of his ability. The inspectors shall ascertain the number of shares outstanding and the voting power of each; determine the shares represented at a meeting and the validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and certify their determination of the number of shares represented at the meeting, and their count of all votes and ballots. The certification required herein shall take the form of a subscribed, written report prepared by the inspectors and delivered to the Secretary of the Company. An inspector need not be a Stockholder of the Company, and any officer of the Company may be an inspector on any question other than a vote for or against a proposal in which he has a material interest.
3.15 Proxies. A Stockholder may exercise any voting rights in person or by his proxy appointed by an instrument in writing, which he or his authorized attorney-in-fact has subscribed and which the proxy has delivered to the Secretary of the meeting pursuant to the manner prescribed by law.
A proxy is not valid after the expiration of 13 months after the date of its execution, unless the person executing it specifies thereon the length of time for which it is to continue in force (which length may exceed 13 months) or limits its use to a particular meeting. Each proxy is irrevocable if it expressly states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power.
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The attendance at any meeting of a Stockholder who previously has given a proxy shall not have the effect of revoking the same unless he notifies the Secretary in writing prior to the voting of the proxy.
3.16 Action by Consent. Any action required to be taken at any annual or special meeting of Stockholders of the Company or any action which may be taken at any annual or special meeting of such Stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action that is the subject of the consent at a meeting in which each Stockholder entitled to vote on the action is present and votes, and shall be delivered to the Company by delivery to its registered office, its principal place of business, or an officer or agent of the Company having custody of the book in which proceedings of meetings of stockholders are recorded.
Every written consent shall bear the date of signature of each Stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein unless, within 50 days (or such other period as provided by applicable law) of the earliest dated consent delivered in the manner required by this section to the Company, written consents signed by a sufficient number of holders to take action are delivered to the Company by delivery to its registered office, its principal place of business or an officer or agent of the Company having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Company’s registered office shall be by hand or by certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those Stockholders who have not consented in writing.
3.17 Cumulative Voting. Cumulative voting is expressly forbidden.
ARTICLE 4.
BOARD OF DIRECTORS
4.1 General Powers. The Board shall manage the property, business and affairs of the Company.
4.2 Number. The number of directors who shall constitute the Board shall equal not less than 1 nor more than 10, as the Board or majority Stockholders may determine by resolution from time to time.
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4.3 Election of Directors and Term of Office. The Stockholders of the Company shall elect the directors at the annual or adjourned annual meeting (except as otherwise provided herein for the filling of vacancies). Each director shall hold office until his death, resignation, retirement, removal, or disqualification, or until his successor shall have been elected and qualified.
4.4 Resignations. Any director of the Company may resign at any time by giving written notice to the Board or to the Secretary of the Company. Any resignation shall take effect upon receipt or at the time specified in the notice. Unless the notice specifies otherwise, the effectiveness of the resignation shall not depend upon its acceptance.
4.5 Removal. Stockholders holding 2/3 of the outstanding shares entitled to vote at an election of directors may remove any director or the entire Board of Directors at any time, with or without cause.
4.6 Vacancies. Any vacancy on the Board, whether because of death, resignation, disqualification, an increase in the number of directors, or any other cause may be filled by a majority of the remaining directors, a sole remaining director, or the majority Stockholders. Any director elected to fill a vacancy shall hold office until his death, resignation, retirement, removal, or disqualification, or until his successor shall have been elected and qualified.
4.7 Chairman of the Board. At the initial and annual meeting of the Board, the directors may elect from their number a Chairman of the Board of Directors. The Chairman shall preside at all meetings of the Board and shall perform such other duties as the Board may direct. The Board also may elect a Vice Chairman and other officers of the Board, with such powers and duties as the Board may designate from time to time.
4.8 Compensation. The Board may compensate directors for their services and may provide for the payment of all expenses the directors incur by attending meetings of the Board or otherwise.
4.9 Insuring Directors, Officers, and Employees. The Company may purchase and maintain insurance on behalf of any director, officer, employee, or agent of the Company, or on behalf of any person serving at the request of the Company as a director, officer, employee, or agent of another company, partnership, joint venture, trust, or other enterprise, against any liability asserted against that person and incurred by that person in any such company, whether or not the Company has the power to indemnify that person against liability for any of those acts.
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ARTICLE 5.
MEETINGS OF DIRECTORS
5.1 Regular Meetings. The Board may hold regular meetings at such places, dates and times as the Board shall establish by resolution. If any day fixed for a meeting falls on a legal holiday, the Board shall hold the meeting at the same place and time on the next succeeding business day. The Board need not give notice of regular meetings.
5.2 Place of Meetings. The Board may hold any of its meetings in or out of the State of Nevada, at such places as the Board may designate, at such places as the notice or waiver of notice of any such meeting may designate, or at such places as the persons calling the meeting may designate.
5.3 Meetings by Telecommunications. The Board or any committee of the Board may hold meetings by means of conference telephone or similar telecommunications equipment that enable all persons participating in the meeting to hear each other. Such participation shall constitute presence in person at such meeting.
5.4 Special Meetings. The Chairman of the Board, the President (or any Vice President if the President is absent or unable or refuses to act), or any two directors then in office (not including the Chairman) may call a special meeting of the Board. The person or persons authorized to call special meetings of the Board may fix any place, either in or out of the State of Nevada as the place for the meeting.
5.5 Notice of Special Meetings. The person or persons calling a special meeting of the Board shall give written notice to each director of the time, place, date and purpose of the meeting of not less than three business days if by mail and not less than 24 hours if by facsimile (with confirmation of delivery), email or in person before the date of the meeting, or as otherwise provided by law. If mailed, notice is given on the date deposited in the United States mail, postage prepaid, to such director. A director may waive notice of any special meeting, and any meeting shall constitute a legal meeting without notice if all the directors are present or if those not present sign either before or after the meeting a written waiver of notice, a consent to such meeting, or an approval of the minutes of the meeting. A notice or waiver of notice need not specify the purposes of the meeting or the business which the Board will transact at the meeting. Generally, a tentative agenda will be included, but the meeting shall not be confined to any agenda included with the notice.
Upon providing notice, the Secretary or other officer sending notice shall sign and file in the Corporate Record Book a statement of the details of the notice given to each director. If such statement should later not be found in the Corporate Record Book, due notice shall be presumed.
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5.6 Waiver by Presence. Except when expressly for the purpose of objecting to the legality of a meeting, a director’s presence at a meeting shall constitute a waiver of notice of such meeting.
5.7 Quorum. A majority of the directors then in office shall constitute a quorum for all purposes at any meeting of the Board. In the absence of a quorum, a majority of directors present at any meeting may adjourn the meeting to another place, date or time without further notice. No proxies shall be given by directors to any person for purposes of voting or establishing a quorum at a directors’ meeting.
5.8 Conduct of Business. The Board shall transact business in such order and manner as the Board may determine. Except as the law requires otherwise, the Board shall determine all matters by the vote of a majority of the directors present at a meeting at which a quorum is present. The directors shall act as a Board, and the individual directors shall have no power as such. At every meeting of the Board of Directors, the Chairman of the Board, if there is such an officer, and if not, the President, or in the President’s absence, a Vice President designated by the President, or in the absence of such designation, a Chairman chosen by a majority of the directors present, shall preside. The Secretary of the Company shall act as Secretary of the Board of Directors’ meetings. When the Secretary is absent from any meeting or in the discretion of the Chairman, the Chairman may appoint any person to act as Secretary of that meeting.
5.9 Action by Consent. The Board or a committee of the Board may take any required or permitted action without a meeting if all members of the Board or committee consent thereto in writing and file such consent with the minutes of the proceedings of the Board or committee.
5.10 Transactions with Interested Directors. Any contract or other transaction between the Company and any of its directors (or any corporation or firm in which any of its directors are directly or indirectly interested) shall be valid for all purposes notwithstanding the presence of that director at the meeting during which the contract or transaction was authorized, and notwithstanding the directors’ participation in that meeting. This section shall apply only if the contract or transaction is just and reasonable to the Company at the time it is authorized and ratified, the interest of each director is known or disclosed to the Board of Directors, and the Board (or an authorized committee thereof) nevertheless authorizes or ratifies the contract or transaction by a majority of the disinterested directors present (or by authorized committee of the Board). Each interested director is to be counted in determining whether a quorum is present, but shall not vote and shall not be counted in calculating the majority necessary to carry the vote. This section shall not be construed to invalidate contracts or transactions that would be valid in its absence.
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ARTICLE 6.
COMMITTEES
6.1 Committees of the Board. The Board may designate, by a vote of a majority of the directors then in office, committees of the Board. The committees shall serve at the pleasure of the Board and shall possess such lawfully delegable powers and duties as the Board may confer.
6.2 Selection of Committee Members. The Board shall elect by a vote of a majority of the directors then in office a director or directors to serve as the member or members of a committee. By the same vote, the Board may designate other directors as alternate members who may replace any absent or disqualified member at any meeting of a committee. In the absence or disqualification of any member of any committee and any alternate member in his place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or they constitute a quorum, may appoint by unanimous vote another member of the Board to act at the meeting in the place of the absent or disqualified member.
6.3 Conduct of Business. Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as the law or these Bylaws require otherwise and except as the Board shall otherwise determine. Each committee shall make adequate provision for notice of all meetings to members. A majority of the members of the committee shall constitute a quorum, unless the committee consists of one or two members. In that event, one member shall constitute a quorum. A majority vote of the members present shall determine all matters. A committee may take action without a meeting if all the members of the committee consent in writing and file the consent or consents with the minutes of the proceedings of the committee.
6.4 Authority. Any committee, to the extent the Board provides, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company, and may authorize the affixation of the Company’s seal to all instruments which may require or permit it. However, no committee shall have any power or authority with regard to amending the Articles of Incorporation, adopting an agreement of merger or consolidation, recommending to the Stockholders the sale, lease or exchange of all or substantially all of the Company’s property and assets, recommending to the Stockholders a dissolution of the Company or a revocation of a dissolution of the Company, or amending these Bylaws of the Company. Unless a resolution of the Board expressly provides, no committee shall have the power or authority to declare a dividend, to authorize the issuance of stock, or to adopt a certificate of ownership and merger.
6.5 Minutes. Each committee shall keep regular minutes of its proceedings and report the same to the Board when required.
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6.6 Committees. All Committees and all powers provided to such Committees shall be consistent with Nevada Law, the Articles and the rules and regulations of the principal market or exchange on which the Company’s capital stock then trades.
ARTICLE 7.
OFFICERS
7.1 Officers of the Company. The officers of the Company shall consist of a President, a Secretary, a Treasurer and such Vice Presidents, a Chief Financial Officer, Assistant Secretaries, Assistant Treasurers, and other officers as the Board may designate and elect from time to time. The same person may hold at the same time any two or more offices.
7.2 Election and Term. The Board shall elect the officers of the Company. Each officer shall hold office until his death, resignation, retirement, removal or disqualification, or until his successor shall have been elected and qualified.
7.3 Compensation of Officers. The Board shall fix the compensation of all officers of the Company. No officer shall serve the Company in any other capacity and receive compensation, unless the Board authorizes the additional compensation.
7.4 Removal of Officers and Agents. The Board may remove any officer or agent it has elected or appointed at any time, with or without cause.
7.5 Resignation of Officers and Agents. Any officer or agent the Board has elected or appointed may resign at any time by giving written notice to the Board, the Chairman of the Board, the President, or the Secretary of the Company. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified. Unless otherwise specified in the notice, the Board need not accept the resignation to make it effective.
7.6 Bond. The Board may require by resolution any officer, agent, or employee of the Company to give bond to the Company, with sufficient sureties conditioned on the faithful performance of the duties of his respective office or agency. The Board also may require by resolution any officer, agent or employee to comply with such other conditions as the Board may require from time to time.
7.7 President. The President shall be the chief operating officer of the Company and, subject to the Board’s control, shall supervise and direct all of the business and affairs of the Company. When present, he shall sign (with or without the Secretary, an Assistant Secretary, or any other officer or agent of the Company which the Board has authorized) deeds, mortgages, bonds, contracts or other instruments which the Board has authorized an officer or agent of the Company to execute. However, the President shall not sign any instrument which the law, these Bylaws, or the Board expressly require some other officer or agent of the Company to sign and execute. In general, the President shall perform all duties incident to the office of President and such other duties as the Board may prescribe from time to time.
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7.8 Vice Presidents. In the absence of the President or in the event of his death, inability or refusal to act, the Vice Presidents in the order of their length of service as Vice Presidents, unless the Board determines otherwise, shall perform the duties of the President. When acting as the President, a Vice President shall have all the powers and restrictions of the Presidency. A Vice President shall perform such other duties as the President or the Board may assign to him from time to time.
7.9 Chief Financial Officer. The Chief Financial Officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the Company, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares. The books of account shall at all reasonable times be open to inspection by any director.
The Chief Financial Officer shall deposit all money and other valuables in the name and to the credit of the Company with such depositories as the Board may designate. The Chief Financial Officer shall disburse the funds of the Company as may be ordered by the Board, shall render to the Chief Executive Officer or, in the absence of a Chief Executive Officer, any president and directors, whenever they request it, an account of all of his or her transactions as Chief Financial Officer and of the financial condition of the Company, and shall have other powers and perform such other duties as may be prescribed by the Board or these Bylaws.
The Chief Financial Officer may be the Treasurer of the Company.
7.10 Secretary. The Secretary shall (a) keep the minutes of the meetings of the Stockholders and of the Board in one or more books for that purpose, (b) give all notices which these Bylaws or the law requires, (c) serve as custodian of the records and seal of the Company, (d) affix the seal of the Company to all documents which the Board has authorized execution on behalf of the Company under seal, (e) maintain a register of the address of each Stockholder of the Company (unless maintained by a duly appointed Transfer Agent), (f) sign, with the President, a Vice President, or any other officer or agent of the Company which the Board has authorized, certificates for shares of the Company, (g) have charge of the stock transfer books of the Company, and (h) perform all duties which the President or the Board may assign to him from time to time.
7.11 Assistant Secretaries. In the absence of the Secretary or in the event of his death, inability or refusal to act, the Assistant Secretaries in the order of their length of service as Assistant Secretary, unless the Board determines otherwise, shall perform the duties of the Secretary. When acting as the Secretary, an Assistant Secretary shall have the powers and restrictions of the Secretary. An Assistant Secretary shall perform such other duties as the President, Secretary or Board may assign from time to time.
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7.12 Treasurer. The Treasurer shall (a) have responsibility for all funds and securities of the Company, (b) receive and give receipts for moneys due and payable to the Company from any source whatsoever, (c) deposit all moneys in the name of the Company in depositories which the Board selects, and (d) perform all of the duties which the President or the Board may assign to him from time to time.
7.13 Assistant Treasurers. In the absence of the Treasurer or in the event of his death, inability or refusal to act, the Assistant Treasurers in the order of their length of service as Assistant Treasurer, unless the Board determines otherwise, shall perform the duties of the Treasurer. When acting as the Treasurer, an Assistant Treasurer shall have the powers and restrictions of the Treasurer. An Assistant Treasurer shall perform such other duties as the Treasurer, the President, or the Board may assign to him from time to time.
7.14 Other Officers. The Board may appoint, or empower the Chief Executive Officer, or any other duly appointed officer of the Company, to appoint, such other officers and agents as the business of the Company may require. Each of such officers and agents shall hold office for such period, have such authority, and perform such duties as are provided in these Bylaws or as the Board, Chief Executive Officer, or other designated officer may from time to time determine.
7.15 Delegation of Authority. Notwithstanding any provision of these Bylaws to the contrary, the Board may delegate the powers or duties of any officer to any other officer or agent.
7.16 Action with Respect to Securities of Other Corporations. Unless the Board directs otherwise, the President shall have the power to vote and otherwise act on behalf of the Company, in person or by proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other corporation in which the Company holds securities. Furthermore, unless the Board directs otherwise, the President shall exercise any and all rights and powers which the Company possesses by reason of its ownership of securities in another corporation.
7.17 Vacancies. The Board may fill any vacancy in any office because of death, resignation, removal, disqualification or any other cause in the manner which these Bylaws prescribe for the regular appointment to such office.
7.18 Corporate Governance Compliance. Without otherwise limiting the powers of the Board set forth herein and provided that shares of capital stock of the Company are listed for trading on either the NASDAQ Stock Market (“NASDAQ”) or the New York Stock Exchange (“NYSE”)(including the NYSE MKT), the Company shall comply with the corporate governance rules and requirements of the NASDAQ or the NYSE, as applicable.
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ARTICLE 8.
CONTRACTS, DRAFTS, DEPOSITS AND ACCOUNTS
8.1 Contracts. Except as otherwise provided in these Bylaws, the Board, or any officers of the corporation authorized thereby, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Company; such authority may be general or confined to specific instances.
8.2 Drafts. From time to time, the Board shall determine by resolution which person or persons may sign or endorse all checks, drafts, other orders for payment of money, notes or other evidences of indebtedness that are issued in the name of or payable to the corporation, and only the persons so authorized shall sign or endorse those instruments.
8.3 Deposits. The Treasurer shall deposit all funds of the Company not otherwise employed in such banks, trust companies, or other depositories as the Board may select or as any officer, assistant, agent or attorney of the Company to whom the Board has delegated such power may select. For the purpose of deposit and collection for the account of the Company, the President or the Treasurer (or any other officer, assistant, agent or attorney of the Company whom the Board has authorized) may endorse, assign and deliver checks, drafts and other orders for the payment of money payable to the order of the Company.
8.4 General and Special Bank Accounts. The Board may authorize the opening and keeping of general and special bank accounts with such banks, trust companies, or other depositories as the Board may select or as any officer, assistant, agent or attorney of the Company to whom the Board has delegated such power may select. The Board may make such special rules and regulations with respect to such bank accounts, not inconsistent with the provisions of these Bylaws, as it may deem expedient.
ARTICLE 9.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
9.1 Certificates for Shares. Shares of the capital stock of the Company may be certificated or uncertificated, as provided under Nevada Law. Each Stockholder, upon written request to the Transfer Agent or registrar of the Company, shall be entitled to a certificate of the capital stock of the Company in such form as may from time to time be prescribed by the Board of Directors. The Secretary, Transfer Agent, or registrar of the Company shall number the certificates representing shares of the stock of the Company in the order in which the Company issues them. The President or any Vice President and the Secretary or any Assistant Secretary shall sign the certificates in the name of the Company. Any or all certificates may contain facsimile signatures. In case any officer, Transfer Agent, or registrar who has signed a certificate, or whose facsimile signature appears on a certificate, ceases to serve as such officer, Transfer Agent, or registrar before the Company issues the certificate, the Company may issue the certificate with the same effect as though the person who signed such certificate, or whose
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facsimile signature appears on the certificate, was such officer, Transfer Agent, or registrar at the date of issue. The Secretary, Transfer Agent, or registrar of the Company shall keep a record in the stock transfer books of the Company of the names of the persons, firms or corporations owning the stock represented by the certificates, the number and class of shares represented by the certificates and the dates thereof and, in the case of cancellation, the dates of cancellation. The Secretary, Transfer Agent, or registrar of the Company shall cancel every certificate surrendered to the Company for exchange or transfer. Except in the case of a lost, destroyed, stolen or mutilated certificate, the Secretary, Transfer Agent, or registrar of the Company shall not issue a new certificate in exchange for an existing certificate until he has canceled the existing certificate.
9.2 Transfer of Shares. A holder of record of shares of the Company’s stock, or his attorney-in-fact authorized by power of attorney duly executed and filed with the Secretary, Transfer Agent or registrar of the Company, may transfer his shares only on the stock transfer books of the Company. Such person shall furnish to the Secretary, Transfer Agent, or registrar of the Company proper evidence of his authority to make the transfer and shall properly endorse and surrender for cancellation his existing certificate or certificates for such shares. Whenever a holder of record of shares of the Company’s stock makes a transfer of shares for collateral security, the Secretary, Transfer Agent, or registrar of the Company shall state such fact in the entry of transfer if the transferor and the transferee request. When a transfer of shares is requested and there is reasonable doubt as to the right of the person seeking the transfer, the Company or its Transfer Agent, before recording the transfer of the shares on its books or issuing any certificate there for, may require from the person seeking the transfer reasonable proof of that person’s right to the transfer. If there remains a reasonable doubt of the right to the transfer, the Company may refuse a transfer unless the person gives adequate security or a bond of indemnity executed by a corporate surety or by two individual sureties satisfactory to the Company as to form, amount, and responsibility of sureties. The bond shall be conditioned to protect the Company, its officers, Transfer Agents, and registrars, or any of them, against any loss, damage, expense, or other liability for the transfer or the issuance of a new certificate for shares.
9.3 Lost Certificates. The Board may direct the Secretary, Transfer Agent, or registrar of the Company to issue a new certificate to any holder of record of shares of the Company’s stock claiming that he has lost such certificate, or that someone has stolen, destroyed or mutilated such certificate, upon the receipt of an affidavit from such holder to such fact. When authorizing the issue of a new certificate, the Board, in its discretion may require as a condition precedent to the issuance that the owner of such certificate give the Company a bond of indemnity in such form and amount as the Board may direct.
9.4 Regulations. The Board may make such rules and regulations, not inconsistent with these Bylaws, as it deems expedient concerning the issue, transfer and registration of certificates for shares of the stock of the Company. The Board may appoint or authorize any officer or officers to appoint one or more Transfer Agents, or one or more registrars, and may require all certificates for stock to bear the signature or signatures of any of them.
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9.5 Holder of Record. The Company may treat as absolute owners of shares the person in whose name the shares stand of record as if that person had full competency, capacity and authority to exercise all rights of ownership, despite any knowledge or notice to the contrary or any description indicating a representative, pledge or other fiduciary relation, or any reference to any other instrument or to the rights of any other person appearing upon its record or upon the share certificate. However, the Company may treat any person furnishing proof of his appointment as a fiduciary as if he were the holder of record of the shares.
9.6 Treasury Shares. Treasury shares of the Company shall consist of shares which the Company has issued and thereafter acquired but not canceled. Treasury shares shall not carry voting or dividend rights.
9.7 Consideration For Shares. Shares may be issued for such consideration as may be fixed from time to time by the Board of Directors, but not less than the par value stated in the Articles.
ARTICLE 10.
INDEMNIFICATION
10.1 Definitions. In this Article:
(a) “Indemnitee” means (i) any present or former director, advisory director or officer of the Company, (ii) any person who while serving in any of the capacities referred to in clause (i) hereof served at the Company’s request as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, and (iii) any person nominated or designated by (or pursuant to authority granted by) the Board of Directors or any committee thereof to serve in any of the capacities referred to in clauses (i) or (ii) hereof.
(b) “Official Capacity” means (i) when used with respect to a director, the office of director of the Company, and (ii) when used with respect to a person other than a director, the elective or appointive office of the Company held by such person or the employment or agency relationship undertaken by such person on behalf of the Company, but in each case does not include service for any other foreign or domestic corporation or any partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise.
(c) “Proceeding” means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative, any appeal in such an action, suit or proceeding, and any inquiry or investigation that could lead to such an action, suit or proceeding.
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10.2 Indemnification. The Company shall indemnify every Indemnitee against all judgments, penalties (including excise and similar taxes), fines, amounts paid in settlement and reasonable expenses actually incurred by the Indemnitee in connection with any Proceeding in which he was, is or is threatened to be named defendant or respondent, or in which he was or is a witness without being named a defendant or respondent, by reason, in whole or in part, of his serving or having served, or having been nominated or designated to serve, in any of the capacities referred to in Section 10.1, if it is determined in accordance with Section 10.4 that the Indemnitee (a) conducted himself in good faith, (b) reasonably believed, in the case of conduct in his Official Capacity, that his conduct was in the Company’s best interests and, in all other cases, that his conduct was at least not opposed to the Company’s best interests, and (c) in the case of any criminal proceeding, had no reasonable cause to believe that his conduct was unlawful; provided, however, that in the event that an Indemnitee is found liable to the Company or is found liable on the basis that personal benefit was improperly received by the Indemnitee the indemnification (i) is limited to reasonable expenses actually incurred by the Indemnitee in connection with the Proceeding and (ii) shall not be made in respect of any Proceeding in which the Indemnitee shall have been found liable for willful or intentional misconduct in the performance of his duty to the Company. Except as provided in the immediately preceding proviso to the first sentence of this Section 10.2, no indemnification shall be made under this Section 10.2 in respect of any Proceeding in which such Indemnitee shall have been (a) found liable on the basis that personal benefit was improperly received by him, whether or not the benefit resulted from an action taken in the Indemnitee’s Official Capacity, or (b) found liable to the Company. The termination of any Proceeding by judgment, order, settlement or conviction, or on a plea of nolo contendere or its equivalent, is not of itself determinative that the Indemnitee did not meet the requirements set forth in clauses (a), (b) or (c) in the first sentence of this Section 10.2. An Indemnitee shall be deemed to have been found liable in respect of any claim, issue or matter only after the Indemnitee shall have been so adjudged by a court of competent jurisdiction after exhaustion of all appeals therefrom. Reasonable expenses shall, include, without limitation, all court costs and all fees and disbursements of attorneys for the Indemnitee. The indemnification provided herein shall be applicable whether or not negligence or gross negligence of the Indemnitee is alleged or proven.
10.3 Successful Defense. Without limitation of Section 10.2 and in addition to the indemnification provided for in Section 10.2, the Company shall indemnify every Indemnitee against reasonable expenses incurred by such person in connection with any Proceeding in which he is a witness or a named defendant or respondent because he served in any of the capacities referred to in Section 10.1, if such person has been wholly successful, on the merits or otherwise, in defense of the Proceeding.
10.4 Determinations. Any indemnification under Section 10.2 (unless ordered by a court of competent jurisdiction) shall be made by the Company only upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct. Such determination shall be made (a) by the Board of Directors by a majority vote of a quorum consisting of directors who, at the time of such vote, are not named defendants or respondents in the Proceeding; (b) if such a quorum cannot be obtained,
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then by a majority vote of a committee of the Board of Directors, duly designated to act in the matter by a majority vote of all directors (in which designated directors who are named defendants or respondents in the Proceeding may participate), such committee to consist solely of two (2) or more directors who, at the time of the committee vote, are not named defendants or respondents in the Proceeding; (c) by special legal counsel selected by the Board of Directors or a committee thereof by vote as set forth in clauses (a) or (b) of this Section 10.4 or, if the requisite quorum of all of the directors cannot be obtained therefor and such committee cannot be established, by a majority vote of all of the directors (in which directors who are named defendants or respondents in the Proceeding may participate); or (d) by the shareholders in a vote that excludes the shares held by directors that are named defendants or respondents in the Proceeding. Determination as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination that indemnification is permissible is made by special legal counsel, determination as to reasonableness of expenses must be made in the manner specified in clause (c) of the preceding sentence for the selection of special legal counsel. In the event a determination is made under this Section 10.4 that the Indemnitee has met the applicable standard of conduct as to some matters but not as to others, amounts to be indemnified may be reasonably prorated.
10.5 Advancement of Expenses. Reasonable expenses (including court costs and attorneys’ fees) incurred by an Indemnitee who was or is a witness or was, is or is threatened to be made a named defendant or respondent in a Proceeding shall be paid by the Company at reasonable intervals in advance of the final disposition of such Proceeding, and without making any of the determinations specified in Section 10.4, after receipt by the Company of (a) a written affirmation by such Indemnitee of his good faith belief that he has met the standard of conduct necessary for indemnification by the Company under this Article and (b) a written undertaking by or on behalf of such Indemnitee to repay the amount paid or reimbursed by the Company if it shall ultimately be determined that he is not entitled to be indemnified by the Company as authorized in this Article. Such written undertaking shall be an unlimited obligation of the Indemnitee but need not be secured and it may be accepted without reference to financial ability to make repayment. Notwithstanding any other provision of this Article, the Company may pay or reimburse expenses incurred by an Indemnitee in connection with his appearance as a witness or other participation in a Proceeding at a time when he is not named a defendant or respondent in the Proceeding.
10.6 Employee Benefit Plans. For purposes of this Article, the Company shall be deemed to have requested an Indemnitee to serve an employee benefit plan whenever the performance by him of his duties to the Company also imposes duties on or otherwise involves services by him to the plan or participants or beneficiaries of the plan. Excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall be deemed fines. Action taken or omitted by an Indemnitee with respect to an employee benefit plan in the performance of his duties for a purpose reasonably believed by him to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Company.
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10.7 Other Indemnification and Insurance. The indemnification provided by this Article shall (a) not be deemed exclusive of, or to preclude, any other rights to which those seeking indemnification may at any time be entitled under the Company’s Articles of Incorporation, any law, agreement or vote of shareholders or disinterested directors, or otherwise, or under any policy or policies of insurance purchased and maintained by the Company on behalf of any Indemnitee, both as to action in his Official Capacity and as to action in any other capacity, (b) continue as to a person who has ceased to be in the capacity by reason of which he was an Indemnitee with respect to matters arising during the period he was in such capacity, (c) inure to the benefit of the heirs, executors and administrators of such a person and (d) not be required if and to the extent that the person otherwise entitled to payment of such amounts hereunder has actually received payment therefor under any insurance policy, contract or otherwise.
10.8 Notice. Any indemnification of or advance of expenses to an Indemnitee in accordance with this Article shall be reported in writing to the shareholders of the Company with or before the notice or waiver of notice of the next shareholders’ meeting or with or before the next submission to shareholders of a consent to action without a meeting and, in any case, within the 12-month period immediately following the date of the indemnification or advance.
10.9 Construction. The indemnification provided by this Article shall be subject to all valid and applicable laws, including, without limitation, the Nevada General Corporation Law, and, in the event this Article or any of the provisions hereof or the indemnification contemplated hereby are found to be inconsistent with or contrary to any such valid laws, the latter shall be deemed to control and this Article shall be regarded as modified accordingly, and, as so modified, to continue in full force and effect.
10.10 Continuing Offer, Reliance, etc. The provisions of this Article (a) are for the benefit of, and may be enforced by, each Indemnitee of the Company, the same as if set forth in their entirety in a written instrument duly executed and delivered by the Company and such Indemnitee and (b) constitute a continuing offer to all present and future Indemnitees. The Company, by its adoption of these Bylaws, (a) acknowledges and agrees that each Indemnitee of the Company has relied upon and will continue to rely upon the provisions of this Article in becoming, and serving in any of the capacities referred to in Section 10.1 of this Article, (b) waives reliance upon, and all notices of acceptance of, such provisions by such Indemnitees and (c) acknowledges and agrees that no present or future Indemnitee shall be prejudiced in his right to enforce the provisions of this Article in accordance with its terms by any act or failure to act on the part of the Company.
10.11 Effect of Amendment. No amendment, modification or repeal of this Article or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitees to be indemnified by the Company, nor the obligation of the Company to indemnify any such Indemnitees, under and in accordance with the provisions of the Article as in effect immediately prior to such amendment, modification or repeal with respect to claims
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arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
ARTICLE 11.
TAKEOVER OFFERS; ACQUISITION OF CONTROLLING INTEREST
11.1 Takeover Offers. In the event the Company receives a takeover offer, the Board of Directors shall consider all relevant factors in evaluating such offer, including, but not limited to, the terms of the offer, and the potential economic and social impact of such offer on the Company’s Stockholders, employees, customers, creditors and community in which it operates.
11.2 Nevada Controlling Interest Statutes. Pursuant to Nevada Revised Statutes (“NRS”) Section 78.378, the Company shall not be governed by the provisions of NRS 78.378 to 78.3793, inclusive, of the NRS, and such sections shall not apply to the Company or to an acquisition of a controlling interest by any stockholder of the Company.
ARTICLE 12.
DIVIDENDS
12.1 General. The Board, subject to any restrictions contained in either (i) Nevada Law, or (ii) the Articles, may declare and pay dividends upon the shares of its capital stock. Dividends may be paid in cash, in property, or in shares of the Company’s capital stock.
12.2 Dividend Reserve. The Board may set apart out of any of the funds of the Company available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve.
ARTICLE 13.
NOTICES
13.1 General. Whenever these Bylaws require notice to any Stockholder, director, officer or agent, such notice does not mean personal notice. A person may give effective notice under these Bylaws in every case by depositing a writing in a post office or letter box in a postpaid, sealed wrapper, or by dispatching a prepaid telegram addressed to such Stockholder, director, officer or agent at his address on the books of the Company. Unless these Bylaws expressly provide to the contrary, the time when the person sends notice shall constitute the time of the giving of notice.
13.2 Waiver of Notice. Whenever the law or these Bylaws require notice, the person entitled to said notice may waive such notice in writing, either before or after the time stated therein.
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13.3 Electronic Notice. Without limiting the manner by which notice otherwise may be given effectively to Stockholders pursuant to the Nevada Law, the Articles or these Bylaws, any notice to Stockholders given by the Company under any provision of Nevada Law, the Articles or these Bylaws shall be effective if given by a form of electronic transmission consented to by the Stockholder to whom the notice is given. Any such consent shall be revocable by the Stockholder by written notice to the Company. Any such consent shall be deemed revoked if:
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(i)
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the Company is unable to deliver by electronic transmission two consecutive notices given by the Company in accordance with such consent; and
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(ii)
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such inability becomes known to the Secretary or an Assistant Secretary of the Company or to the Transfer Agent, or other person responsible for the giving of notice.
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However, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
Any notice given pursuant to the preceding paragraph shall be deemed given:
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(i)
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if by facsimile telecommunication, when directed to a number at which the Stockholder has consented to receive notice;
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(ii)
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if by electronic mail, when directed to an electronic mail address at which the Stockholder has consented to receive notice;
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(iii)
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if by a posting on an electronic network together with separate notice to the Stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and
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(iv)
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if by any other form of electronic transmission, when directed to the Stockholder.
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An affidavit of the Secretary or an Assistant Secretary or of the Transfer Agent or other agent of the Company that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein. An “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
Notwithstanding the above, no notice by a form of electronic transmission shall be effective if prohibited by Nevada Law, the Articles or these Bylaws.
13.4 Undeliverable Notices. Whenever notice is required to be given, under any provision of the Nevada Law, the Articles or these Bylaws, to any Stockholder to whom (a) notice of two (2)
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Amended and Restated Bylaws of
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consecutive annual meetings, or (b) all, and at least two (2) payments (if sent by first-class mail) of dividends or interest on securities during a twelve (12) month period, have been mailed addressed to such person at such person’s address as shown on the records of the Company and have been returned undeliverable, the giving of such notice to such person shall not be required. Any action or meeting which shall be taken or held without notice to such person shall have the same force and effect as if such notice had been duly given. If any such person shall deliver to the Company a written notice setting forth such person’s then current address, the requirement that notice be given to such person shall be reinstated. In the event that the action taken by the Company is such as to require the filing of an amendment to the Articles with the Secretary of State of Nevada, the amendment need not state that notice was not given to persons to whom notice was not required to be given pursuant to Nevada Law.
ARTICLE 14.
MISCELLANEOUS
14.1 Facsimile Signatures. In addition to the use of facsimile signatures which these Bylaws specifically authorize, the Company may use such facsimile signatures of any officer or officers, agents or agent, of the Company as the Board or a committee of the Board may authorize.
14.2 Corporate Seal. The Board may provide for a suitable seal containing the name of the Company, of which the Secretary shall be in charge. The Treasurer, any Assistant Secretary, or any Assistant Treasurer may keep and use the seal or duplicates of the seal if and when the Board or a committee of the Board so directs.
14.3 Fiscal Year. The Board shall have the authority to fix and change the fiscal year of the Company.
14.4 Bylaw Provisions Additional and Supplemental to Provisions of Law. All restrictions, limitations, requirements and other provisions of these Bylaws shall be construed, insofar as possible, as supplemental and additional to all provisions of law applicable to the subject matter thereof and shall be fully complied with in addition to the said provisions of law unless such compliance shall be illegal.
14.5 Bylaw Provisions Contrary to or Inconsistent with Provisions of Law. Any article, section, subsection, subdivision, sentence, clause or phrase of these Bylaws which, upon being construed in the manner provided in Section 14.4 of these Bylaws, shall be contrary to or inconsistent with any applicable provision of law, shall not apply so long as said provisions of law shall remain in effect, but such result shall not affect the validity or applicability of any other portions of these Bylaws, it being hereby declared that these Bylaws, and each article, section, subsection, subdivision, sentence, clause, or phrase thereof, would have been adopted irrespective of the fact that any one or more articles, sections, subsections, subdivisions, sentences, clauses or phrases is or are illegal.
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Amended and Restated Bylaws of
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ARTICLE 15.
AMENDMENTS
15.1 Subject to the provisions of the Articles, the Stockholders or the Board may amend or repeal these Bylaws at any shareholders or directors meeting, subject to the voting and approval requirements of the shareholders and the directors, as applicable, set forth herein for general Company matters. All amendments shall be upon advice of counsel as to legality, except in emergency. Bylaw changes shall take effect upon adoption unless otherwise specified.
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Exhibit 10.1
AMENDED AND RESTATED LICENSE AGREEMENT
THIS AGREEMENT is dated the 20th day of May, 2014,
B E T W E E N:
MOTHER PARKER'S TEA & COFFEE INC., a corporation organized and existing under the laws of the Province of Ontario, Canada and its Affiliates (hereinafter referred to as "MP")
- and -
JAMMIN JAVA CORP., a corporation organized and existing under the laws of state of Nevada (hereinafter referred to as "JJ") (MP and JJ may hereinafter be referred to individually as a “Party” and collectively as the “Parties”)
WHEREAS:
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A.
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MP is engaged in, inter alia, the manufacture, distribution and sale of single serve beverage capsules;
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B.
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MP and JJ entered into a License Agreement dated October 13, 2011 (as amended, modified and revised from time to time, hereinafter referred to as the “Prior Trademark License Agreement”), which is amended, restated and superseded in its entirety by this Amended and Restated License Agreement dated May [ ], 2014 (the “Agreement”), whereby JJ is among other things, granting to MP the right and license to use the Trademarks as hereinafter defined in connection with the manufacture, distribution, processing, packaging and sale of the Products as hereinafter defined, using the Trademarks in accordance with the terms and conditions contained herein;
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C.
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JJ is the registered owner or licensee of the Trademarks and has full right and authority to enter into this Agreement with MP;
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D.
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MP and JJ have entered into a non-disclosure agreement dated June 24, 2011, a copy of which is attached hereto as Schedule "A"; and
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E.
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The Parties have agreed to amend and expand their business relationship and wish to define their respective rights and obligations and other terms and conditions concerning their relationship in this Agreement, which shall substitute for and supersede the Prior Trademark License Agreement.
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IN CONSIDERATION of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1
INTERPRETATION AND SCHEDULES
Unless the context shall otherwise require, in this Agreement the following terms have the following meanings:
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(a)
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"Affiliate" means, with respect to any Person, any other Person who directly or indirectly controls, is controlled by, or is under direct or indirect common control with, such Person. A Person shall be deemed to control a Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise;
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(b)
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"Business Day" means any day other than a Saturday, a Sunday or any other day on which the principal commercial banks located in the City of Toronto are not open for business during normal business hours;
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(c)
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"Change of Control" means the transfer or issue by sale, assignment, subscription, transmission on death, mortgage, charge, security interest, operation of law or otherwise, of any shares, acting rights or interest which would result in any change in the effective Control of a corporation or the sale of all or substantially all of the assets of a corporation.
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(d)
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"Claim" means claim, demand, action, cause of action, damage, loss, cost, liability or expense (excluding indirect, special, consequential and incidental damages and loss of profits), and all legal and other professional fees and disbursements, interest, penalties and amounts paid in settlement.
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(e)
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"Confidential Information" shall mean financial, business, operational and other information pertaining to each Party and its business and its directors, officers, shareholders, employees and agents which is confidential or proprietary in nature, whether in written form, on computer disks or other forms of electronic storage, containing or based on, in whole or in part, such information whether marked “Confidential” or otherwise reasonably constituting confidential or proprietary information of the other Party. Notwithstanding anything to the contrary contained in this definition, Confidential Information shall not include (i) information which is within the public domain at the date of its disclosure to the receiving Party or which thereafter enters the public domain through no fault of the receiving Party (but only after it becomes part of the public domain), (ii) information which becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party provided that such source is not bound by a confidentiality agreement or other confidentiality obligations, and(iii) information which the receiving Party is required by law to disclose provided, however, that the receiving Party shall notify the disclosing
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Party before any such disclosure and shall give the disclosing Party a reasonable opportunity to obtain a protective order or other form of protection prior to disclosure;
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(f)
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"Control" of a corporation or other entity is held by a Person where securities of the corporation or other entity to which are attached more than 50% of the votes that may be cast to elect directors or persons acting in a similar capacity of the corporation or other entity are held, other than by way of security only, by or for the benefit of such Person;
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(g)
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"Governmental Authority" means any national, multi-national, federal, provincial, state, municipal, local or other government, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government;
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(h)
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"License" means the license granted by JJ to MP permitting MP to use the Trademarks and other rights in accordance with the terms and conditions contained herein;
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(i)
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"License Fee" means the fee payable to JJ for granting the license hereunder to MP to use the Trademarks;
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(j)
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"Licensed Trademarks" means those Trademarks that are used by JJ but owned by another party and which are necessary to the operation of the business of JJ as presently conducted and is intended to be conducted throughout the Term of this Agreement, particulars of which are set out in Schedule "B";
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(k)
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"Person" means any natural person, corporation, division of a corporation, partnership, joint venture (which includes a co-ownership), association, company, estate, unincorporated organization, trust, government or Governmental Authority;
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(l)
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"Product" means single serve hard capsules (which, for greater certainty excludes single serve soft pods);
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(m)
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"Term" shall have the meaning attributed thereto in Section 6.1;
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(n)
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"Territory" means the geographic territory for which JJ has granted the License and in which MP may sell the Product, being Canada, the United States of America and Mexico; and
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(o)
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"Trademarks" means the trademarks owned by JJ, the Licensed Trademarks and any trademark or trademarks owned by or licensed to JJ which may be added to Schedule B from time to time in accordance with this Agreement.
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1.2 Construction.
In this Agreement, except as otherwise expressly provided:
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(a)
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all words and personal pronouns relating thereto shall be read and construed as the number and gender of the party or parties referred to in each case require, and the verb shall be read and construed as agreeing with the required word and pronoun;
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(b)
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the division of this Agreement into Articles and Sections is for convenience of reference only and shall not modify or affect the interpretation or construction of this Agreement and all references to Articles or Sections are references to Articles or Sections of this Agreement;
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(c)
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when calculating the period of time within which or following which any act is to be done or step taken pursuant to this Agreement, the date which is the reference day in calculating such period shall be excluded. If the last day is not a Business Day, the period in question shall end on the next Business Day;
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(d)
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all dollar amounts are expressed in United States funds unless otherwise specifically noted; and
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(e)
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the words "including" shall be interpreted to mean "including without limitation".
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1.3 Schedules. The following are the schedules to this Agreement and form a part hereof;
Schedule A Non-Disclosure Agreement
Schedule B Trademarks (listed separately for owned, licensed and sublicensed Trademarks)
Schedule C Letter of Intent (“LOI”) between MP and JJ. Notwithstanding that the LOI is a non-binding agreement, both Parties hereby acknowledge and agree that the terms and conditions as set out in the LOI are now firm and binding, as set forth herein and in the Subscription Agreement between the Parties.
ARTICLE 2
LICENSE
2.1 License.
Upon and subject to the terms of this Agreement, JJ hereby grants to MP the sole and exclusive right to manufacture, create, develop, process, package, label, distribute, market and directly or indirectly sell the Product, or to cause any of its Affiliates to do
any of the same, within the Territory under the License. JJ has agreed to License the Trademarks to MP and to grant the rights hereunder to MP in consideration for the Licensing Fee. JJ shall cause all of its Affiliates and related entities and persons to comply with the exclusivity provisions of this Agreement. MP shall not sell or distribute Product by any direct marketing methods, including, without limitation, television, infomercials (DRTV) or direct mail, without the prior written approval of JJ (and where applicable its licensor). Notwithstanding the foregoing, JJ hereby confirms and acknowledges that MP has the right to directly or indirectly sell or distribute the Product through retail channels, including but not limited to, Amazon, ECS, etc. The rights granted herein do not include the rights in or to any images, persona, photographs or other copyrighted works of or relating to Robert Marley, aka Bob Marley. MP understands that JJ has not authorized MP to use any musical composition, song lyrics, song titles, master recording, audio-visual recording, video and/or motion picture in connection with Product and/or in connection with any advertising or promotional material used to advertise or promote the sale of Product. Notwithstanding the foregoing or anything to the contrary set out in this Agreement, JJ hereby acknowledges and agrees that MP has the right to use any copyrighted work or portion thereof, including but not limited to, images, song lyrics, song titles, etc., in connection with materials used to advertise or promote the sale of Product to the extent that such copyrighted work or portion thereof is incorporated in the Product, and JJ has authorized its use by MP. All Product shall bear at least one Trademark and, save and except for co-branding with MP’s capsule trademarks, no Product shall be sub-branded, co-branded or sold or otherwise distributed under any marks other than the Trademarks. All rights in and to the Trademarks not specifically granted and licensed to MP hereunder are hereby reserved by JJ (or its licensor) and JJ (or its licensor) may exercise such rights at any time.
2.2 Use of the Trademarks.
MP shall display the Trademarks with notices or legends, reasonably prescribed from time to time by JJ or as otherwise may be necessary, to identify JJ (or its licensor) as the owner of the Trademarks, MP as a licensee of the Trademarks, and the use thereof as a licensed use.
JJ shall promptly notify MP in the event that JJ creates or obtains new trademarks, logos or designs that relate to or are developed in connection with the Product, and the same shall be immediately incorporated by reference into the definition of Trademarks and corresponding Schedule to this Agreement and the Agreement shall be amended accordingly.
2.3 Infringement or Unfair Competition.
Each of MP and JJ covenants and agrees to give notice to the other of any claim or demand made to it alleging an infringement or conflict with JJ's rights, and MP's rights hereunder, in connection with any of the Trademarks.
JJ (or its licensor) may take whatever action if deems necessary or desirable to protect the validity and strength of its Trademarks at its sole expense. MP agrees to comply with
reasonable requests made by JJ (or its licensor) for assistance in connection with any action with respect to the Trademarks.
2.4 Interest in the Trademarks.
MP acknowledges and agrees that:
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(a)
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nothing in this Agreement conveys to or confers on MP any right, title or interest in any of the Trademarks, except the right to use the Trademarks in accordance with and upon and subject to the terms of this Agreement;
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(b)
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the Trademarks are and remain and shall remain the sole property of JJ or where applicable, its licensor;
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(c)
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any and all use by MP of the Trademarks shall accrue and ensure to the benefit of JJ and where applicable, its licensor; and
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(d)
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without JJ's prior written consent (and where applicable, the consent of JJ’s licensor), MP shall not, nor shall it cause any appointed agent, to effect any registration of any of the Trademarks or any of JJ's rights under this Agreement, in any public or governmental office.
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2.5 No Contest.
MP agrees that it will not, during the term of this Agreement or thereafter, dispute or contest, directly or indirectly, the validity or enforceability of the Trademarks, nor counsel, procure or assist anyone else to do any of the foregoing.
2.6 JJ's Representations and Warranties Regarding Trademarks.
JJ represents, warrants and covenants to MP that as of the date hereof and throughout the Term:
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(a)
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except for the Licensed Trademarks, JJ holds the entire right, title and interest in and to all of the Trademarks;
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(b)
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with respect to the Licensed Trademarks, JJ has a written contract with the person who owns or controls the right, title and interest in and to such Licensed Trademarks (“Owner”) wherein such Owner has agreed to license them to JJ upon such terms and conditions as will enable JJ to perform and abide by all of its obligations under this Agreement;
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(c)
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except for the Licensed Trademarks, JJ has the exclusive and unfettered right to use the Trademarks except to the extent JJ has licensed or sublicensed others to use the Trademarks, which licenses and sublicenses are listed in Schedule B which in each case constitute non-exclusive licenses or sublicenses and do not infringe upon the License and rights granted to MP hereunder;
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(d)
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except for the Licensed Trademarks, the Trademarks have been duly registered or applications to register the same have been filed in the national or regional intellectual property offices, as the case may be, for all jurisdictions in which sale and/or distribution of products making use of the Trademarks has been authorized by JJ, and any such applications or registrations are in good standing;
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(e)
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with respect to the Licensed Trademarks, JJ has a written contract with the Owner that provides that the Licensed Trademarks have been duly registered or applications to register the same have been filed in the national or regional intellectual property offices, as the case may be, for all jurisdictions in which the sale and/or distribution of products making use of the Licensed Trademarks has been authorized by JJ, and any such applications or registrations are in good standing;
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(f)
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except for the Licensed Trademarks, JJ has the exclusive right to use and sub-license the Licensed Trademarks except to the extent the rights are identified in Schedule B as being nonexclusive;
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(g)
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with respect to the Licensed Trademarks, JJ has the exclusive right to use and sub-license the Licensed Trademarks in connection with the Product to the extent that JJ has granted to MP in this Agreement;
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(h)
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no consents of third parties are required in order for the granting of the License, or for Licensed Trademarks to be licensed or sub-licensed to a third party. JJ is not a party to or bound by any contract, agreement or other commitment that limits or impairs its ability to use, reproduce, distribute, transfer, display, assign, convey, encumber, sell, offer to sell or license all or any portion of the Trademarks;
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(i)
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to the best of JJ’s knowledge, neither the use of the Trademarks nor the conduct of the business of JJ infringes or otherwise violates the intellectual property rights of any other person. JJ has not received any notice, claim or threat to that effect. To the best of JJ”s knowledge, there is no actual or threatened claim by any Person that any Trademark is, or may be, invalid or unenforceable or non-distinctive. No infringement, misuse or misappropriation of the Trademarks has occurred or is occurring;
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(j)
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the Trademarks are valid and the rights of JJ in the Trademarks are enforceable;
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(k)
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to the best of JJ”s knowledge, none of the Trademarks are subject to any outstanding order, award, decision, injunction, judgment, decree, stipulation or agreement materially restricting the transfer, use, enforcement or licensing thereof by JJ in the operation of the business of JJ as now conducted or as intended to be conducted; and
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(l)
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to the knowledge of JJ, there is no actual or threatened challenge to the ownership, validity, use, scope or enforceability of any of the Trademarks.
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2.7 MP's General Representations and Warranties.
MP represents, warrants, and covenants to JJ that
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(a)
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MP is a corporation duly formed and validly existing under the laws of the Province of Ontario, Canada, and holds all required licenses and qualifications required to carry on business in all applicable jurisdictions to fulfill its obligations hereunder;
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(b)
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the execution, delivery and performance of this Agreement are within its power and capacity and have been duly authorized by all proper and required proceedings;
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(c)
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MP has full power and authority to execute this Agreement, which has been duly executed and delivered by MP and constitutes the legal, valid and binding obligation of MP, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and other laws of general application limiting the enforceability of creditors' rights and to the fact that specific performance and injunction are equitable remedies available only in the discretion of the court;
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(d)
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there are no actions, suits or proceedings pending or to the knowledge of MP threatened against or adversely affecting MP in any court or before any federal, state, provincial, municipal, or other governmental department, commission, board, bureau or agency which materially affect the performance of its obligations under this Agreement;
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(e)
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neither the execution and delivery of this Agreement nor compliance with the terms hereof
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(i) has resulted or shall result in a violation of the terms of the articles, by-laws or resolutions of MP or of any applicable laws applicable to it,
(ii) has resulted or shall result in a breach of, or constitute a default under, any instrument or agreement to which MP is a party or by which it is bound, or
(iii) requires the approval or any consent of any Governmental Authority except such as has been obtained or may be obtained in the ordinary course of business; and
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(f)
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MP holds all material licenses, permits, approvals, authorizations and consents from any Person which are required to perform its duties and obligations pursuant to the terms hereof. MP is in good standing with respect to all such permits, approvals, authorizations and consents and none of the same contains any term, provision, condition or limitation which would have a material adverse effect on or materially adversely restrict the performance by the MP of its duties and obligations pursuant to the terms hereof.
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2.8 JJ's General Representations and Warranties.
JJ represents, warrants, and covenants to MP that:
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(a)
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JJ is a corporation duly formed and validly existing under the laws of Nevada and holds all required licenses and qualifications required to carry on business in all applicable jurisdictions to fulfill its obligations under this Agreement;
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(b)
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the execution, delivery and performance of this Agreement are within its power and capacity and have been duly authorized by all proper and required proceedings;
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(c)
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JJ has full power and authority to execute this Agreement, which has been duly executed and delivered by JJ and constitutes the legal, valid and binding obligation of JJ, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and other laws of general application limiting the enforceability of creditors' rights and to the fact that specific performance and injunction are equitable remedies available only in the discretion of the court;
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(d)
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there are no actions, suits or proceedings pending or to the knowledge of JJ threatened against or adversely affecting JJ in any court or before any federal, state, provincial, municipal, or other governmental department, commission, board, bureau or agency which materially affect the performance of its obligations under this Agreement;
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(e)
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neither the execution and delivery of this Agreement nor compliance with the terms hereof (i) has resulted or shall result in a violation of the terms of the articles, by-laws or resolutions of JJ or of any applicable laws applicable to it, (ii) has resulted or shall result in a breach of, or constitute a default under, any instrument or agreement to which JJ is a party or by which it is bound, or (iii) requires the approval or any consent of any Governmental Authority except such as has been obtained or may be obtained in the ordinary course of business; and
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(f)
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JJ holds all material licenses, permits, approvals, authorizations and consents from any Person which are required to perform its duties and obligations pursuant to the terms hereof. JJ is in good standing with respect to all such permits, approvals, authorizations and consents and none of the same contains any term, provision, condition or limitation which would have a material adverse effect on or materially adversely restrict the performance by JJ of its duties and obligations pursuant to the terms hereof.
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2.9 MP's Obligations
MP covenants and agrees that:
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(a)
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it shall supply all the ingredients and materials, and all labour, manufacturing equipment and other resources necessary to manufacture and package the Product in its discretion and in accordance with its customary practices;
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(b)
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it shall develop Product blends that follow the JJ coffee taste profile as set out in the specifications and guidelines provided to MP by JJ from time to time;
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(c)
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it shall procure coffee beans on the open market with the exception of Jamaican blue beans which will be sourced from JJ’s designee on a basis to be agreed by the Parties at a favourable price (closed nation status);
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(d)
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MP will set prices of the Product in its discretion, but in a manner that is competitive in the market place within the range of pricing of competitive products per channel;
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(e)
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it will not to act or omit to act in any manner which may reasonably adversely affect the goodwill attached to and symbolized by any of the Trademarks; and
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(f)
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it will deliver Product logo/brand designs to JJ for approval, provided that if JJ does not respond to MP within 72 (seventy two) hours of receipt of such material, JJ is deemed to have not given its approval for such logo/brand designs.
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2.10 JJ's Obligations.
JJ covenants and agrees that:
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(a)
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it shall continuously provide MP with any non-confidential information in its possession or to which it becomes aware that may assist MP in the creation, promotion and sale of the Product within the Territory including, without limitation, specific target markets and areas of avoidance and it shall promptly notify MP of any change to such information;
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(b)
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to provide and cross-promote the Product on all brand communication vehicles including, but not limited to its corporate and related websites, social media outlets and celebrity appearances;
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(c)
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it will use Product images and copy provided by MP in its promotion of the Product;
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(d)
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it will provide a minimum of five (5) Marley family-member appearances (i.e., appearances of Rohan Marley, the Chairman of JJ), per year at locations to be agreed upon by the Parties, at the sole cost and expense of JJ; and
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(e)
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it will provide MP with Product logo and brand design guidelines from time to time.
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2.11 No Minimum Volume.
MP is under no obligation to deliver minimum sales volumes or minimum Licensing Fees and there shall be no such similar requirements relating to the manufacture, processing, packaging or sale of the Product.
2.12 No Exclusivity.
Notwithstanding any other provision herein contained, the Parties agree that MP shall have the right and freedom to negotiate and contract from time to time and in its sole discretion and for greater certainty, the Parties agree that there shall be no exclusivity granted by MP to JJ with respect to the subject matter of this Agreement or its conducting similar business in the Territory under the terms and conditions of this Agreement or otherwise. Notwithstanding the foregoing, JJ shall grant exclusivity to MP with respect to the subject matter of this Agreement and, for greater certainty, shall not enter into any arrangements that are similar to or have the potential to compete with, the terms and conditions contained herein.
ARTICLE 3
FEES
There shall be no License Fee for Product sold by MP to JJ and its Affiliates. MP shall pay to JJ a License Fee for Product sold to parties other than JJ and its Affiliates calculated as follows:
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(a)
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$0.06 per capsule for Talkin' Blues products; and
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(b)
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$0.04 per capsule for all other products.
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The License Fee shall be paid in monthly instalments. MP shall prepare statements setting out its calculation of the License Fee in reasonable detail, which shall be prima facie correct absent manifest error. JJ shall have the right to audit the statements prepared by MP once per year with reasonable notice to MP, and MP shall provide reasonable assistance to JJ in connection with such audits. JJ shall bear the sole cost of such audits unless the audited License Fee is more than 5% different (higher) than the License Fee as determined by MP, and under such situation MP shall bear all reasonable auditing costs.
ARTICLE 4
CONFIDENTIALITY AND PROPRIETARY INFORMATION
The Parties acknowledge that prior to the date hereof and during the Term of this Agreement, they may have had/will have access to and may have been/be entrusted with Confidential Information, the use by, or the disclosure of which to the general public could be detrimental to the best interests of the Parties. Each Party further acknowledges that the right to maintain the confidentiality of the Confidential Information constitutes a proprietary right which each Party is entitled to protect. Accordingly, each Party covenants and agrees that it will not disclose, reveal or make known any Confidential Information at any time to any partnership, unincorporated association, organization, syndicate, corporation, trust and a trustee, executor, administrator or other legal or personal representative, nor shall any Party use the Confidential Information for any purpose without the prior written consent of the other Party. The covenants and agreements contained in this section shall survive without limitation the termination of this Agreement. JJ expressly acknowledges and agrees that to the extent it is required to disclose information to the public with respect to its relationship with MP under applicable securities laws, JJ will use commercially reasonable efforts to request confidential treatment for such information as MP may request in writing, subject in all cases to applicable securities laws.
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(a)
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JJ hereby acknowledges and agrees that all formula, recipe, process and ingredient information of the Product, as well as all technical and quality assurance information, sales data, promotion and marketing plans developed by MP in connection with this Agreement are the sole and exclusive property of MP and JJ acquires no rights to use any such data or information for any purpose.
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(b)
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All rights, title and interest in and to all intellectual property rights regarding the Product and to any improvement or enhancement thereof, whether or not protectable and whether or not conceived of or made in the course of or as a result of this Agreement, are, will be and will remain the sole and exclusive property of MP.
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(c)
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JJ hereby assigns all intellectual property rights MP may have or develop with respect to the Product in the course of or as a result of this Agreement to MP and will cause all employees to waive all moral rights they may have or develop in any intellectual property rights directly associated with the Product.
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(d)
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MP agrees and confirms that it shall have no right to ownership or use of JJ’s Intellectual Property, other than as a result of this Agreement. "Intellectual Property" means all patents, inventions, patent applications, patent rights (whether patented or not), trademarks, trademark registrations, trade names,
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brand names, all other names and slogans embodying business or product goodwill (or both), copyright registrations, copyrights (including those in computer programs, software, including all source code and object code, development documentation, programming tools, drawings, specifications and data), software, trade secrets, know-how, mask works, industrial designs, formulae, processes and technical information, including confidential and proprietary information, whether or not subject to statutory registration or protection. MP may not remove, obscure or modify any copyright or other notices included in the Products. MP shall use reasonable efforts to protect JJ’s Intellectual Property from any use that is not permitted under this Agreement.
ARTICLE 5
INDEMNIFICATION
JJ (in this Section 5.1 the "Indemnifying Party") hereby agrees to indemnify and hold MP, its shareholders, directors, officers, employees, agents, representatives and Affiliates and their respective shareholders, directors, officers and employees (in this Section 5.1, the "Indemnified Party") harmless in respect of any Claim which may be made or brought against an Indemnified Party or which an Indemnified Party may suffer or incur directly or indirectly as a result of, in respect of or arising out of:
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(a)
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any incorrectness in or breach of any representation or warranty of JJ contained in this Agreement or in any other agreement, certificate or instrument executed and delivered pursuant to this Agreement;
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(b)
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any breach of or any non-fulfilment of any covenant or agreement on the part of JJ under this Agreement or under any other agreement, certificate or instrument executed and delivered pursuant to this Agreement; and
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(c)
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the use by MP of the Trademarks in accordance with the terms and conditions herein.
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MP (in this Section 5.2 the "Indemnifying Party") hereby agrees to indemnify and hold JJ, its shareholders, directors, officers, employees, agents, representatives and Affiliates and their respective shareholders, directors, officers and employees (in this Section 5.2, the "Indemnified Party") harmless in respect of any Claim which may be made or brought against an Indemnified Party or which an Indemnified Party may suffer or incur directly or indirectly as a result of in respect of or arising out of:
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(a)
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any incorrectness in or breach of any representation or warranty of MP contained in this Agreement or in any other agreement, certificate or instrument executed and delivered pursuant to this Agreement;
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(b)
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any breach of or any non-fulfilment of any covenant or agreement on the part of MP under this Agreement or under any other agreement, certificate or instrument executed and delivered pursuant to this Agreement; and
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(c)
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the use by MP of the Trademarks other than in accordance with the terms and conditions herein.
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If an Indemnified Party becomes aware of a Claim in respect of which indemnification is provided for pursuant to either of Section 5.1 or 5.2, as the case may be, the Indemnified Party shall promptly give written notice of the Claim to the Indemnifying Party; provided that the failure of any Party entitled to indemnification hereunder to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under Section 5.1 or 5.2, as applicable, except to the extent that the Indemnifying Party is actually prejudiced by such failure to give timely notice. Such notice shall specify whether the Claim arises as a result of a claim by a Person against the Indemnified Party (a "Third Party Claim") or whether the Claim does not so arise (a "Direct Claim"), and shall also specify with reasonable particularity (to the extent that the information is available):
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(i)
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the factual basis for the Claim; and
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(ii)
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the amount of the Claim, if known.
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In the case of a Direct Claim, the Indemnifying Party shall have 60 days from receipt of notice of the Claim within which to make such investigation of the Claim as the Indemnifying Party considers necessary or desirable. For the purpose of such investigation, the Indemnified Party shall make available to the Indemnifying Party the information relied upon by the Indemnified Party to substantiate the Claim, together with all such other information as the Indemnifying Party may reasonably request. If both parties agree at or before the expiration of such 60 day period (or any mutually agreed upon extension thereof) to the validity and amount of such Claim, the Indemnifying Party shall immediately pay to the Indemnified Party the full agreed upon amount of the Claim, failing which the matter shall be referred to binding arbitration in accordance with this Agreement.
In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its expense, to participate in or assume control of the negotiation, settlement or defense of the Claim. If the Indemnifying Party elects to assume such control, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party's out-of pocket expenses incurred as a result of such participation or assumption. The Indemnified Party shall have the right to participate in the negotiation, settlement or
defense of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its expense or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). The Indemnified Party shall cooperate in a reasonable manner with the Indemnifying Party so as to permit the Indemnifying Party to conduct such negotiation, settlement and defense and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim. If, having elected to assume control of the negotiation, settlement or defense of the Third Party Claim, the Indemnifying Party thereafter fails to conduct such negotiation, settlement or defense with reasonable diligence, then the Indemnified Party shall be entitled to assume such control at the cost of the Indemnifying Party and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that (i) the Indemnified Party is required by applicable law or the order of any court, tribunal or regulatory body having jurisdiction, or (ii) it is necessary in the reasonable view of the Indemnified Party acting in good faith and in a manner consistent with reasonable commercial practices, in respect of (A) a Third Party Claim by a customer relating to a material amount of products or services or (B) a Third Party Claim relating to any contract which is necessary to the ongoing operations of a material portion of the Indemnified Party’s business operations or any material part thereof in order to avoid material damage to the relationship between the Indemnified Party and any of its major customers or to preserve the rights of the Indemnified Party under such an essential contract, to make a payment to any Person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, then the Indemnified Party may make such payment and the Indemnifying Party shall, promptly after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If such a payment, by resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party and the Indemnifying Party are unable to agree whether such payment was unreasonable in the circumstances having regard to the amount and merits of the Third Party Claim, then such dispute shall be referred to and finally settled by binding arbitration from which there shall be no appeal.
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5.6
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Settlement of Third Party Claims.
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If the Indemnifying Party fails to assume control of the defense of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defense of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that the liability of the Indemnifying Party shall be limited to the proposed settlement amount if any such consent is not obtained for any reason within a reasonable time after the request therefore.
The amount of any Claim submitted under Section 5.1, Section 5.2 or Section 5.3 as damages or by way of indemnification shall bear interest from and including the date any Indemnified Party is required to make payment in respect thereof at the prime rate calculated from and including such date to but excluding the date reimbursement of such Claim by the Indemnifying Party is made, and the amount of such interest shall be deemed to be part of such Claim.
ARTICLE 6
TERM AND REVIEW
The term ("Term") of this Agreement shall commence on the date first written above and, unless terminated earlier pursuant to the provisions of this Agreement, shall continue for a period of five (5) years. The Term of this Agreement shall automatically renew for successive one (1) year periods subject to termination provisions contained herein, provided that:
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a.
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JJ shall notify MP if conversations occur with KGM over the life of the License Agreement.
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b.
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JJ shall not take any action to terminate the Agreement during a standstill period of 12 months from the date of this Agreement.
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c.
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Should JJ terminate this Agreement or take any action that lessens or diminishes MP’s exclusive license to use the Trademarks within 24 months of the end of the standstill period, JJ shall pay MP $600,000 and shall reimburse MP for any out of pocket costs incurred by MP for inventory or other materials that remain with MP and are unsalable or unusable. In addition, should JJ terminate this Agreement or take any action that lessens or diminishes MP’s exclusive license to use the Trademarks within 24 months of the end of the standstill period, MP shall have the right, in its sole and absolute discretion, to terminate this Agreement immediately upon written notice to JJ.
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The Term shall automatically expire without any required payment pursuant to Section 6.1(c) above (a) upon the mutual written consent of the Parties or (b) in the event of the occurrence of any other act which, by law, would require that the License be terminated.
The Parties agree to undertake a review of the initiative contemplated by the terms and conditions of this Agreement on an annual basis commencing on or about its first anniversary date.
ARTICLE 7
TERMINATION
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7.1
|
Termination on Default.
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Notwithstanding anything contained in this Agreement, if either Party shall default in any material respect in fulfilling any covenant or agreement on its part to be performed hereunder and such default shall not have been cured within thirty (30) days after written notice given by the non-defaulting Party specifying the nature of such default (except in the case of non-payment of License Fees due which shall have a ten (10) day cure period)(or, if such default shall be of such a nature that it cannot be remedied or cured within such thirty (30) day period, such period shall be extended to such time not more than forty-five (45) days after written notice as may be necessary, provided the non-defaulting Party is proceeding with reasonable diligence and good faith to remedy or cure such default) then, in such case, in addition to the non-defaulting Party's other rights and remedies, such Party shall have the right to cancel this Agreement by giving written notice of termination to the defaulting Party to such effect at the end of such period (or extended period, as the case may be) and such notice shall take effect upon receipt.
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7.2
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AutomaticTermination.
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Notwithstanding anything contained in this Agreement, either Party may terminate this Agreement (without the payment of any penalties under Section 6.1(c), except for Section 7.2(d), below) forthwith upon written notice to the other upon the happening of any of the following events:
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(a)
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the bankruptcy or insolvency or similar proceeding of the other Party whether voluntary or involuntary, that is, the other Party becomes insolvent, makes any assignment for the benefit of its creditors, is adjudged bankrupt, or if a receiver or a trustee of the other Party's property or undertaking is appointed;
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(b)
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the winding-up, dissolution or liquidation of the other Party, whether voluntary or involuntary;
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(c)
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the seizure or attachment of a substantial portion of the property, assets or undertaking of the other Party; or
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(d)
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the commencement of litigation proceedings involving MP's use of the Trademarks, as a result of the granting of the License or in connection with any of the terms and conditions contained herein (which shall be a terminating right in favour of MP only).
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7.3
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Termination Without Cause
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Notwithstanding anything contained herein, MP shall have the right to terminate this Agreement for any reason upon ninety (90) days written notice to JJ. Upon such termination under this Section, no payments under Section 6.1(c) shall be due.
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7.4
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Return of Confidential Information.
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Upon the termination of this Agreement, each Party shall, within thirty (30) days from the effective date of termination, return to the possession of the other Party all Confidential Information of the other Party and all copies, notes or compilations of such information. The Parties shall not copy nor reproduce, in whole or in part, such data, studies or other material without the prior written consent of the other Party; provided that either Party may make one copy of all of the foregoing and deliver the same to the custody of its legal advisors who shall be instructed only to disclose the contents thereof in the context of legal proceedings or dealings with any Governmental Authority.
In the event of termination of this Agreement for any reason, JJ shall be obligated to purchase any unsold Product including, without limitation, any raw or packaged materials at a cost as mutually determined by the Parties acting reasonably.
ARTICLE 8
RECALLS
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8.1
|
Recalls and Withdrawals.
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If MP determines, in its sole discretion, or based on a bona fide recommendation from a Governmental Authority, that consideration shall be given to undertake a market withdrawal or recall of a Product, MP shall have the right to carry out such action in its sole discretion and the Parties agree to cooperate fully in connection with any such withdrawal or recall. In the event that such action results from an act or omission by JJ, JJ shall be obligated to pay all costs and expenses relating to such market withdrawal or recall. Subject to carrying out its obligations under this Section 8.1, MP shall have no obligation to pay other costs, expenses or other amounts claimed by JJ or any other Indemnified Party hereunder related to JJ.
In the event of a recall, no press release, interview or statement shall be made in connection with such recall, without the prior written consent of the other Party, which consent will not be unreasonably withheld.
ARTICLE 9
GENERAL
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9.1
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Restriction on Assignment.
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Neither Party may assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party, provided that MP may assign or subcontract all or any part of this Agreement to any Affiliate or to any successor to its business without the consent of JJ. This Agreement shall endure to the benefit of the Parties and their respective successors and permitted assigns and shall be binding upon the Parties and their respective successors and assigns. A Change of Control (whether in law or in fact) of JJ shall be deemed an assignment by JJ for the purposes of this section.
[Intentionally removed.]
This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
All notices required or permitted hereunder shall be in writing and shall be deemed to be sufficiently given if mailed by registered or certified mail, postage prepaid, or delivered by hand or sent by email, or sent by facsimile, and addressed
if to MP, at:
Tom Prychitka
2531 Stanfield Road
Mississauga, Ontario
L4Y 1S4
tprychitka@mother-parkers.com
if to JJ, at:
Brent Toevs
4730 Tejon St., Denver,
Colorado 80211
brent@marleycoffee.com
Either Party may give notice to the other Party in the manner herein provided of a change in its address for notice. Any notice or other written matter shall be deemed to have been given and received: if mailed, on the fifth (5th) Business Day following the
date of mailing; if delivered by hand, on the date of delivery; and, if sent by facsimile and email, on the Business Day following the sending of the notice; provided that during an interruption in regular postal service in Canada, all such notices or other written matters shall be delivered by hand or sent by facsimile and by email.
MP shall allocate, annually (every 12 months), $100,000.00. These funds will be used for marketing activities mutually agreed to by MP and JJ.
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9.6
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Non-Waiver and Remedies Cumulative.
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Any waiver or condoning by one Party of any breach of this Agreement by the other Party shall not operate as a waiver or condoning of any subsequent breach of this Agreement by the other Party. No delay or omission by either Party in exercising any right or power hereunder will impair such right or power or be construed to be a waiver thereof. A waiver by either Party of any provision hereof or of any breach hereunder must be in writing signed by the waiving Party. Except as otherwise provided in this Agreement, all remedies provided for in this Agreement will be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity, or otherwise.
This Agreement constitutes the entire agreement between the Parties relative to the subject matter hereof and supersedes all earlier agreements, arrangements or understandings in that regard, written or oral. This Agreement may not be amended except by an instrument in writing duly executed by the Party against whom the amendment is sought to be enforced.
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9.7
|
Relationship Among Parties
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The Parties are entering into this Agreement as independent contractors, in accordance with and subject to the terms of this Agreement. Nothing in this Agreement constitutes either Party to be an agent or partner of the other Party in any respect, and neither Party shall have any authority whatsoever with respect to the property or business of the other except as expressly provided in this Agreement.
If any provision of this Agreement is adjudicated to be invalid or unenforceable, in whole or in part, then such provision, or part thereof, shall be deemed amended to delete therefrom the objectionable portion and the remaining portions of this Agreement shall continue to remain in full force and effect.
This Agreement may be signed in counterparts (including by facsimile counterparts) and each counterpart 'shall constitute an original document, and all counterparts, taken together, shall constitute an original document.
The Parties each agree to bear their own costs associated with the preparation and execution of this Agreement.
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9.11
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No Consequential Damages
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MP shall not be liable for any incidental, consequential, indirect, special or punitive damages, or loss of profits, as a consequence of the performance or non-performance of this Agreement.
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9.12
|
Equitable Remedies. The Parties acknowledge and agree that, in the event a Party breaches any of its obligations under this Agreement (a) the other Party may suffer substantial, immediate and irreparable harm, (b) the other Party shall not have an adequate remedy at law for money damages in the event of any such failure and (c) that in the event of any such failure, the other Party may be entitled to (i) specific performance, injunctive and other equitable relief to compel the breaching Party to comply with its obligations in accordance with the terms and conditions of this Agreement and (ii) any other remedy to which the other Party may be entitled at law or in equity (without the necessity of posting of a bond).
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9.13
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Form and Construction. The headings used in this Agreement are for convenience of reference only and do not constitute substantive matter to be considered in construing the terms of this Agreement. As used in this Agreement, the masculine gender shall include the feminine and the singular form of words shall include the plural, or vice versa, as necessary in order that this Agreement may be interpreted so as to conform to the subject matter actually existing. The language of this Agreement shall be construed as a whole and not strictly for or against any of the Parties regardless of who drafted or was principally responsible for drafting this Agreement or any of its specific terms or conditions.
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The Parties agree to do or cause to be done all acts or things necessary to implement and carry this Agreement into effect to its full extent.
[Signatures on next page]
IN WITNESS WHEREOF the Parties have caused this Agreement to be executed as of the date first written above.
MOTHER PARKER'S TEA & COFFEE INC.
Per: /s/ Tom Prychitka
Name: Tom Prychitka
Title: CFO & Vice President Shared Services
JAMMIN JAVA CORP.
Per: /s/ Brent Toevs
Name: Brent Toevs
Title: CEO
SCHEDULE A
NON-DISCLOSURE AGREEMENT
[Provided separately.]
SCHEDULE B
TRADEMARKS
Owned Trademarks
None.
Licensed Trademarks
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1.
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MARLEY COFFEE
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2.
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MARLEY COFFEE STIR IT UP
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3.
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4.
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Licenses or Sublicenses of Trademarks by JJ to others
Jammin Java (PK) (USOTC:JAMN)
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