HWTR HFactor Inc (CE)

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: July 22, 2022

(Date of earliest event reported)

 

HFactor, Inc.

(Exact name of registrant as specified in its charter)

 

Georgia		000-1144546		58-2634747
(State or other jurisdiction of Incorporation)		(Commission File Number)		(IRS Employer Identification Number)

 

 

150 NW 168th Street, STE 307

North Miami Beach, FL 33169

(Address of principal executive offices)

 

(929) 930-3969

(Registrant’s telephone number, including area code)

 

(Former name, if changed since last report)

 

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

 

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

 

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

 

Title of Class		Trading Symbol(s)		Name of each exchange on which registered/
Common Stock		HWTR		NONEOTC Markets: PINK

  

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

 

Emerging growth company ☒

 

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

 

 

 

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

This Current Report contains forward-looking statements, including, without limitation, in the sections captioned “Description of Business,” “Risk Factors,” and “Management’s Discussion and Analysis of Financial Condition and Plan of Operations,” and elsewhere. Any and all statements contained in this Report that are not statements of historical fact may be deemed forward-looking statements. Terms such as “may,” “might,” “would,” “should,” “could,” “project,” “estimate,” “pro-forma,” “predict,” “potential,” “strategy,” “anticipate,” “attempt,” “develop,” “plan,” “help,” “believe,” “continue,” “intend,” “expect,” “future,” and terms of similar import (including the negative of any of the foregoing) may be intended to identify forward-looking statements. However, not all forward-looking statements may contain one or more of these identifying terms. Forward-looking statements in this Report may include, without limitation, statements regarding (i) the plans and objectives of management for future operations, including plans or objectives relating to the development of commercially viable products, (ii) a projection of income (including income/loss), earnings (including earnings/loss) per share, capital expenditures, dividends, capital structure or other financial items, (iii) our future financial performance, including any such statement contained in a discussion and analysis of financial condition by management or in the results of operations included pursuant to the rules and regulations of the Securities and Exchange Commission (the “SEC”), and (iv) the assumptions underlying or relating to any statement described in points (i), (ii) or (iii) above.

 

The forward-looking statements are not meant to predict or guarantee actual results, performance, events, or circumstances and may not be realized because they are based upon our current projections, plans, objectives, beliefs, expectations, estimates and assumptions and are subject to a number of risks and uncertainties and other influences, many of which we have no control over. Actual results and the timing of certain events and circumstances may differ materially from those described by the forward-looking statements as a result of these risks and uncertainties. Factors that may influence or contribute to the inaccuracy of the forward-looking statements or cause actual results to differ materially from expected or desired results may include, without limitation, our inability to obtain adequate financing, the significant length of time associated with drug development and related insufficient cash flows and resulting illiquidity, our inability to expand our business, significant government regulation of pharmaceuticals and the healthcare industry, lack of product diversification, volatility in the price of our raw materials, existing or increased competition, results of arbitration and litigation, stock volatility and illiquidity, and our failure to implement our business plans or strategies. A description of some of the risks and uncertainties that could cause our actual results to differ materially from those described by the forward-looking statements in this Report appears in the section captioned “Risk Factors” and elsewhere in this Report.

 

Readers are cautioned not to place undue reliance on forward-looking statements because of the risks and uncertainties related to them and to the risk factors. We disclaim any obligation to update the forward-looking statements contained in this Report to reflect any new information or future events or circumstances or otherwise.

 

Readers should read this Report in conjunction with the discussion under the caption “Risk Factors,” our financial statements and the related notes thereto in this Report, and other documents which we may file from time to time with the SEC.

 

EXPLANATORY NOTE

 

HFactor, Inc. ("HFactor", “HWTR”, the "Company", "we", "us") was incorporated in July 2001 in the State of Georgia under the name OwnerTel, Inc. The name of the Company was changed to Ficaar, Inc. in December of 2007, and to HFactor, Inc. in November 2021.

 

In July 2022, the then serving officers and directors of the Company entered into a series of transactions that resulted in a change in control. This Current Report responds to the following Items in Form 8-K that came about as a result of the events on July 22, 2022:

 

Item 1.01.	Entry into a Material Definitive Agreement
Item 3.02.	Unregistered Sales of Equity Securities
Item 4.01.	Changes in Registrant’s Certifying Accountant.
Item 5.01.	Changes in Control of Registrant
Item 5.02	Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Item 9.01	Exhibits

 

 

 

ITEM 1.01

ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

 

On July 22, 2022, the Company entered into a Memorandum of Understanding (“MOU”) with Bearface LLC. Pursuant to the terms of the MOU and in relevant part, the parties agreed that (i) Bearface LLC would purchase 600,000 shares of Common Stock through the Company’s then active Regulation A offering in exchange for $600,000 consideration; (ii) Dawn Cames would be appointed as the Chairman of the Board of Directors; and (iii) all then serving officers and directors would tender their resignations and Gail Levy would be appointed as President of the Company. A copy of the MOU is attached hereto as Exhibit 10.0.

 

In January 2023, the Company engaged Concorde Consulting Corp. (“CCC”) to provide consulting and advisory services with respect to various aspects of our business including, but not limited to website design, marketing, rebranding, corporate structure, and growth and expansion opportunities. The parties ratified this arrangement by entering into that certain consulting agreement dated August 15, 2023, but effective as of January 1, 2023 (the “Agreement”) (attached hereto as Exhibit 10.1). On July 16, 2024, the Parties amended the scope of services to also include the development/management of all social media platforms for the Company. The Agreement has a term of twelve months and continues month-to-month thereafter based on the mutual agreement of the parties. As compensation for services rendered, the Company agreed to pay CCC (i) 1,933,333 shares of Common Stock; (ii) 100 shares of Series D Preferred Stock each month the Agreement is in effect as a monthly retainer; and (iii) $0.10 for every beverage unit/product sold in accordance with and pursuant to the terms of that certain Royalty Agreement (attached hereto as Exhibit 10.2) entered into by the parties. The Royalty Agreement provides for a $0.10 royalty on all beverage products sold from September 1, 2023 and continuing in perpetuity.

 

On August 11, 2023, the Company and CCC also entered into that certain secured promissory note (the “Note”) (attached hereto as Exhibit 10.3) whereby CCC agreed to loan the Company up to $500,000. The Note bears interest at a rate of seven (7%) percent per annum and matured on May 31, 2024. The Company granted CCC a secured interest in all equipment, inventory, materials, supplies, intellectual property, etc. as security against the Company’s repayment obligations (see Exhibit 10.4 attached hereto).

 

ITEM 3.02

UNREGISTERED SALES OF EQUITY SECURITIES

 

From July 2022 through the date of this filing, the Company has issued (or accrued an obligation to issue) 2,000 shares of Series D Preferred Stock and 1,933,333 shares of Common Stock as compensation for services rendered by consultants/advisors.

 

On or around October 28, 2022, the Company issued 2 shares of Series D Preferred Stock to Bearface LLC in exchange for $10,000 consideration. A copy of the corresponding stock purchase agreement is attached hereto as Exhibit 10.5.

 

On or around March 20, 2023, the Company issued 13 shares of Series D Preferred Stock to Bearface LLC in exchange for $65,000 consideration. A copy of the corresponding stock purchase agreement is attached hereto as Exhibit 10.6.

 

On September 26, 2023, the Company and Richard Propper (“Propper”) entered into a Settlement Agreement and Mutual Release of All Claims (attached hereto as Exhibit 10.7) whereby Propper agreed to cancel (i) a promissory note with a principal balance due and owing in the amount of $405,918; and (ii) an accrued salary in the amount of $375,000, all in exchange for 100 shares of Series D Preferred Stock.

 

On September 26, 2023, the Company and Connie Lemen (“Lemen”) entered into a Settlement Agreement and Mutual Release of All Claims (attached hereto as Exhibit 10.8) whereby Lemen agreed to cancel a promissory note with a principal balance due and owing in the amount of $90,000 in exchange for 18 shares of Series D Preferred Stock.

 

ITEM 4.01

Changes in Registrant’s Certifying Accountant

 

In 2021, the Company engaged Bolko & Company (“Bolko”) as its new independent accountant.

 

The reports of Bolko regarding the Company’s financial statements for the fiscal years ended December 31, 2022 and 2021, being the two most recent fiscal years for which the Company has filed audited financial statements with the Securities and Exchange Commission (the “SEC”), did not contain any adverse opinion or disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope or accounting principles, except to indicate that there was substantial doubt about the Company’s ability to continue as a going concern.

 

 

 

During the fiscal years ended December 31, 2022 and 2021, and through September 30, 2023, the Company had no disagreements (as defined in Item 304(a)(1)(iv) of Regulation S-K and the related instructions to Item 304 of Regulation S-K) with Bolko on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedures, which disagreements, if not resolved to the satisfaction of Bolko would have caused Bolko to make reference thereto in connection with its report.

 

During the fiscal years ended December 31, 2022 and 2021, and through September 30, 2023 the Company did not experience any reportable events (as defined in Item 304(a)(1)(v) of Regulation S-K), except that management of the Company discussed with Bolko the continued existence of material weaknesses in the Company’s internal control over financial reporting.

 

During the Company’s fiscal years ended December 31, 2022 and 2021, and through September 30, 2023 neither the Company nor anyone on the Company’s behalf consulted with Bolko regarding any of the following:

 

(i)       either the application of accounting principles to a specified transaction, either completed or proposed, or the type of audit opinion that might be rendered on the Company’s financial statements, and neither a written report nor oral advice was provided to the Company that Bolko concluded was an important factor considered by the Company in reaching a decision as to any accounting, auditing, or financial reporting issue; or

 

(ii)       any matter that was either the subject of a disagreement (as defined in Item 304(a)(1)(iv) of Regulation S-K and the related instructions to Item 304 of Regulation S-K) or a reportable event (as defined in Item 304(a)(1)(v) of Regulation S-K).

 

On October 16, 2023, Bolko resigned as the Company’s independent accountant.

 

The Company requested Bolko to furnish it with a letter addressed to the SEC stating whether or not Bolko agrees with the above statements which, when received, will be filed in accordance with 17 CFR § 229.304(a)(3).

 

On March 1, 2024, the Company engaged Integrität Audit, Accounting & Advisory, LLC (“Integrität”) as its new independent accountant/auditor.

 

Prior to engaging Integrität, neither the Company nor anyone acting on the Company’s behalf consulted with Integrität regarding any of the following:

 

(i) The application of accounting principles to a specified transaction, either completed or proposed; or the type of audit opinion that might be rendered on the Company’s financial statements, and either a written report was provided to the Company or oral advice was provided that Integrität concluded was an important factor considered by the Company in reaching a decision as to the accounting, auditing or financial reporting issue; or

 

(ii) Any matter that was either the subject of a disagreement (as defined in paragraph 304(a)(1)(iv) and the related instructions to this item) or a reportable event (as described in paragraph 304(a)(1)(v))

 

ITEM 5.01

Changes in CONTROL OF Registrant

 

On July 22, 2022, Gail Levy, the holder of 850,000 shares of Series C Preferred Stock and the controlling shareholder of the Company, appointed Dawn Cames as the principal financial officer of the Company and as a member of the Company’s board of directors. In conjunction with the appointment of Ms. Cames, Ms. Levy (i) assigned 1 share of Series C Preferred Stock to Ms. Cames; and (ii) cancelled and returned 849,999 shares of Series C Preferred Stock to the Company. As a result of this transaction, and by virtue of the voting rights set forth in the Series C Preferred Stock Certificate of Designation, Ms. Cames became the controlling shareholder and sole director of the Company.

 

 

 

 

ITEM 5.02

DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS

 

On July 22, 2022, the following changes occurred in the order presented with respect to the Company’s officers and directors:

 

-

James C. Sanborn (COO, Director) and Leonard Klingbaum (Director) resigned from all officer and director positions held within the Company.

 

-

Dawn Cames (54) was appointed as Chairman of the board of directors. Ms. Cames is an executive with 27 years in the luxury automotive business. Since 2007, Ms. Cames has served as General Manager for JLR Long Island. She also served as President and director Ficaar, Inc. from July 2015 – July 2021. Throughout her career, Ms. Cames has worked with her teams to drive common processes, business results and customer loyalty. Her experience working with national marketing boards has helped Dawn launch new product lines in the very competitive markets. That experience will be influential in helping the Company expand its business through the development and launching of new products into new markets.

 

-

Gail Levy (68) was appointed as President of the Company and resigned as CEO and as a director, leaving Dawn Cames as the sole director of the Company. As President of the Company, Ms. Levy was given two-year employment agreement (attached hereto as Exhibit 10.9) pursuant to which she would receive a salary in the amount of $120,000 per year. The employment agreement automatically renews for one (1) year periods unless cancelled by either party within 30 days of renewal or unless terminated for cause (as defined in the agreement).

 

On August 1, 2022, Dawn Cames was appointed as interim CFO/principal financial and accounting officer.

 

ITEM 9.01

FINANCIAL STATEMENTS AND EXHIBITS

 

(d)

Exhibits

  

In reviewing the agreements included or incorporated by reference as exhibits to this Current Report on Form 8-K, please remember that the agreements may contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the parties to the applicable agreement and:

 

·

should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate;

 

·

have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement;

 

·

may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and

 

·

were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments.

 

Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time. Additional information about the Company may be found elsewhere in this Current Report on Form 8-K and the Company’s other public filings, which are available without charge through the SEC’s website at http://www.sec.gov.

 

 

  

Exhibits

 

Exhibit No.		Description		Filed herewith (*)		Incorporated by reference (Filing)
10.0		Memorandum of Understanding (Bearface LLC)		*
10.1		Consulting Agreement, as amended (Concorde Consulting Corp)		*
10.2		Royalty Agreement (Concorde Consulting Corp)		*
10.3		Secured Promissory Note (Concorde Consulting Corp)		*
10.4		Security Agreement (Concorde Consulting Corp)		*
10.5		Stock Purchase Agreement (Bearface LLC)		*
10.6		Stock Purchase Agreement (Bearface LLC)		*
10.7		Settlement Agreement (Richard Propper)		*
10.8		Settlement Agreement (Connie Lemen)		*
10.9		Employment Agreement (Gail Levy)		*
17.1		Resignation of James C. Sanborn dated July 22, 2022		*
17.2		Resignation of Leonard Klingbaum dated July 22, 2022		*
17.3		Resignation of Gail Levy dated July 22, 2022		*
104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

 

 

 

 

 

 

  

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.

 

Dated: July 19, 2024

HFactor, Inc.   By: /s/ Mike Lee Mike Lee, COO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit 10.0

 

MEMORANDUM OF UNDERSTANDING

 

THIS MEMORANDUM OF UNDERSTANDING (this "MOU"), dated as of July 22, 2022, between Bear Face, LLC, a Nevada limited liability company (the "Buyer", “we” or “our”), and HFactor, Inc. (the "Company"), a Georgia corporation (the “Company”, “you” or “yours”) sets forth our mutual understandings with respect to the terms as set forth below (the “Investment”). Buyer and the Company are sometimes referred to individually as a “Party” and collectively as the “Parties.”

 

1. Terms of Investment.

 

(a) Existing Debt/Noteholders. Upon execution of the MOU by the Parties, the Company shall use its best efforts to deliver to Buyer executed 1 year maturity date extensions and noteholder rights freezes (a “Freeze”, and collectively, “Freezes”) for each of the debt instruments held or controlled by R. Propper, C. Lemon, and L. Klingbaum (collectively, the “Notes”), in a form materially similar to the form heretofore agreed to by the Parties.

 

(b) Funding. Upon execution of the MOU, (i) Buyer shall purchase 600,000 shares of Company common stock through the Company’s Regulation A offering at $1.00 per share for a total investment of $600,000.00 (the “Investment Consideration”), and (ii) Company shall issue to Buyer 600 shares of Series D Preferred Stock in exchange Buyer executing a leak-out agreement in conjunction with the Regulation A subscription agreement. The Company shall distribute the Investment Consideration (after giving effect to all of the transactions contemplated by the MOU), to such payees listed on the “Expected Payout List”, attached to this MOU, over a maximum of the 45-day period immediately following the execution of this MOU, provided, however, that the Company may immediately pay the amounts set forth on the Schedule.

 

(c) Board of Directors. Upon execution of this MOU, the Company shall cause its sitting board of directors to resign by means of a written and signed resignation, in the form attached hereto. Such resignation shall be contemporaneous with the election by a supermajority of the holders of the Company’s Series C Preferred Stock of a new slate of directors whose names are delivered to the Company by the Buyer at the execution of this MOU (such new slate, the “New Board”). The Company shall enter into a customary release, waiver, and indemnity agreement in favor of the resigning directors, which agreement shall be binding on the Company, its successors and assigns, and each of its and their affiliates.

 

(d) Costs and Expenses. Attached to this MOU is a schedule of all invoices and amounts payable by the Company through the date of this MOU (the “Invoice Schedule”), including but not limited to the amount of all invoices from the Company’s attorneys, accountants and public relations persons and advertising persons The Company shall be responsible for all costs and expenses associated with the Company’s interests in pursuing the Investment, but only to the extent for each payee as set forth on the Invoice Schedule. Such costs shall be made available to be paid from the proceeds of the Investment as determined by the New Board.

 

(e) Series C Preferred Stock and Series D Preferred Stock. Except as set forth above in Section 1(c) or as directed in writing by the Company’s Board of Directors, Gail Levy shall refrain from exercising the voting rights of the Company’s Series C Preferred Stock; and (ii) the Company shall issue to Gail Levy the number of shares of its Series D Preferred Stock which is 10% of the then-total issued and outstanding shares of Series D Preferred Stock.

 

(f) Financial and Equity Transactions. Company shall not (i) engage in any capital raising activities, (ii) incur additional debts, (iii) issue additional shares of stock or warrants, and (iv) enter into any agreement for convertible debt of any kind without buyer’s consent.

 

(g) Balance Sheet, Capitalization Table, Shareholders and Holders of Convertible Debt and/or Warrants. The most current, updated and detailed (i) list of all debts and liabilities, as of the date of the MOU, (ii) a complete list of all shareholders with types and amounts of shares, (iii) a list of holders of any other type of convertible debt or warrant, and (iv) invoices of the Company’s accountants, attorneys, public relations advisors/consultants and any other professional of the Company, are attached hereto and incorporated herein by reference.

 

(h) Confidentiality. During the term of this MOU, neither Party may disclose information about the other parties business affairs, products/services, confidential intellectual property, trade secrets, third- party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential", except to its attorneys, accounts and business/financial advisors.

 

(i) Governing Law. This MOU shall be governed by and construed in accordance with the internal laws of the state of Georgia, without giving effect to any choice or conflict of law provision or rule (whether of the state of Georgia or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the state of Georgia.

 

(j) No Third-Party Beneficiaries. Nothing herein is intended or shall be construed to confer upon any person or entity other than the Parties and their successors or assigns, any rights or remedies under or by reason of this MOU.

 

(k) No Assignment. Neither this MOU, nor any rights or obligations hereunder may be assigned, delegated or conveyed by either Party without the prior written consent of the other Party.

 

(l) Counterparts. This MOU may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one agreement.

 

[SIGNATURE PAGE TO FOLLOW]

 

 

 

Signature Page to Memorandum of Understanding

 

IN WITNESS WHEREOF, the Parties hereto have executed this MOU as of the date set forth above.

 

HFACTOR, INC.

 

By:/s/ Gail Levy                      
Name:Gail Levy
Title:CEO

 

BEAR FACE, LLC

 

By:/s Jason Boyd                    
Name:Jason Boyd
Title:Principal

 

 

 

 

 

Exhibit 10.1

 

Consulting Agreement

 

This Consulting Agreement (this “Agreement”) is made on August 15, 2023, but effective as of January 1, 2023, by and between HFactor, Inc., a Georgia corporation, with its principal address at 244 Madison Ave, #1249, New York, NY 10016 (the “Company”) and Concorde Consulting Corp., a Delaware corporation (the “Consultant”).

 

Background

 

Consultant began and has since continued providing business advisory and consulting services informally to Company in January 2023.

 

The parties desire to formally consummate an agreement with respect to services performed and services to be performed by Consultant on behalf of the Company.

 

NOW THEREFORE, in consideration of the promises hereof and of the mutual promises and agreements contained herein, the parties hereto, intending to be legally bound, do hereby agree as follows:

 

1. Engagement; Scope of Services. Company hereby engages Consultant to perform the duties set forth in this Agreement. The Company's engagement of Consultant under this Agreement is nonexclusive and shall not limit Company's right to engage other persons to conduct similar activities on behalf of Company.

 

2. Duties and Responsibilities of Consultant.

 

2.1. Consistent with Consultant's experience and expertise, Consultant shall advise and consult with Company's representatives on such subjects including, but not limited to, website design, marketing, rebranding, corporate structure, and growth and expansion opportunities. Consultant shall also meet with such representatives of the Company from time-to-time at the request of Company, and direct introductions to appropriate business prospects for Company.

 

2.2. In no event shall Consultant have the authority or apparent authority (nor shall Consultant suggest to third parties that it has the authority, express or implied): (i) to bind Company to any agreements or arrangements, whenever written, oral or implied; (ii) to make an offer or accept an offer on behalf of Company; or (iii) to make representations, warranties, guaranties, commitments or covenants on behalf of Company.

 

2.3. Consultant shall devote its best efforts to fulfilling the duties described herein and shall spend sufficient working time to perform such duties to the best of Consultant's skill and ability during the Term (as defined in Section 5.1). Consultant shall participate in meetings conducted by Company with respect to Company's business development activities and shall keep the Company apprised of any developments related to Consultant’s services and activities.

 

2.4. Consultant shall not assign or delegate any rights, duties or obligations arising under this Agreement without the prior written consent of Company, which consent may be withheld in Company's sole discretion.

 

3. Representations, Warranties, Covenants, and Agreements of Consultant.

 

3.1. Representations and Warranties. Consultant hereby represents and warrants to Company as follows:

 

3.1.1. The execution and performance of this Agreement by Consultant will not violate, or result in a default under, any agreement, law, statute, regulation, or other authoritative rule of any governmental body to which Consultant is a party or by which Consultant is bound.

 

3.1.2. This Agreement, when executed, will constitute the valid and legally binding obligation of Consultant, fully enforceable against Consultant in accordance with its terms.

 

3.2. Covenants and Agreements. Consultant hereby covenants with Company and agrees as follows:

 

 

 

3.2.1. Consultant shall not make use of any agent, consultant, or finder in connection with the performing of any of its duties hereunder without the prior written approval of an authorized executive officer of Company.

 

3.2.2. Consultant shall not hold itself out, directly or by implication, as being an employee or contracting agent of Company.

 

4. Compensation.

 

4.1. Company shall pay to Consultant (i) an initial payment of 1,933,333 shares of Common Stock; and (ii) a retainer fee for each month worked for the Term of this Agreement equal to 100 shares of Series D Preferred Stock. In the event that this Agreement shall be terminated prior to the end of a month, the retainer fee for Consultant shall be pro-rated to reflect the actual number of days during the month that this Agreement was in effect.

 

4.2. In addition, Company shall grant to Consultant a $0.10 royalty on all beverage products currently produced, or to be produced, by the Company in accordance with that certain Royalty Agreement of even date.

 

4.3. Except pursuant to an assignment approved in writing as set forth in Section 11.6 hereof, payment of compensation made hereunder shall be made only to Consultant.

 

4.4. Unless otherwise agreed in writing by Company, Consultant shall assume and discharge for its own account all costs and expenses incurred by Consultant in connection with the performance of Consultant's duties hereunder.

 

4.5. In the event the parties mutually agree to extend this Agreement beyond the Term, Consultant shall be eligible to receive stock options under the stock option plan of Company, if any, on such terms as may be approved by Company's board of directors.

 

5. Term and Termination.

 

5.1. The term of this Agreement (the “Term”) shall commence on the date set forth above and shall continue for the 12-month period ending December 31, 2023, and shall continue on a month-to-month basis thereafter, subject to the termination rights of the parties as set forth below.

 

5.2. This Agreement may be terminated at any time by Company, without cause, upon 30 days written notice to Consultant. In the event of such termination, Consultant shall be entitled to payment of the retainer fee specified in Section 4.1 hereof through the termination date specified in the notice.

 

5.3. This Agreement may be terminated at any time without notice by Company for Cause. Cause means any illegal acts or willful neglect on the part of Consultant or Consultant's agents or employees. In the event of such termination, Consultant shall not be entitled to any further payments under this Agreement.

 

5.4. In the event Company materially breaches any of its obligations under this Agreement, Consultant shall have the right to terminate this Agreement by giving Company written notice 10 days prior to Consultant's termination date.

 

6. Indemnification.

 

6.1. Consultant shall defend, indemnify and hold harmless Company and its officers, directors, employees, agents, parent, subsidiaries and other affiliates, from and against any and all damage, cost, liability, and expense whatsoever (including attorney's fees and related disbursements) incurred by reason of: (i) any failure by Consultant to perform any covenant or agreement of Consultant set forth herein; or (ii) any breach by Consultant of any representation, warranty, covenant or agreement contained herein.

 

6.2. Company shall defend, indemnify and hold harmless Consultant and its officers, directors, employees, agents, parent, subsidiaries and other affiliates, from and against any and all damage, cost, liability, and expense whatsoever (including attorney's fees and related disbursements) incurred by reason of: (i) any failure by Company to perform any covenant or agreement of Company set forth herein; or (ii) any breach by Company of any representation, warranty, covenant or agreement contained herein.

 

 

 

7. Independent Contractor Status of Consultant. This Agreement establishes the rights, duties, and obligations of Company and Consultant, and does not create an employer-employee or agency relationship between Company, or any entity affiliated with Company, and Consultant, or any of Consultant's employees or agents. Consultant acknowledges and agrees that Consultant is an independent contractor to Company and Consultant shall not act as an agent of Company and does not have authority to bind Company. As an independent contractor, Consultant shall be responsible for any social security taxes, insurance, and any other taxes or fees that are applicable to its employees and agents pursuant to New York law. Consultant shall not be entitled to any insurance or other benefits which may be provided to employees Company including but not limited to Workers' Compensation coverage, health or disability insurance or participation in any company-sponsored retirement plan.

 

8. Promotional Materials. From time-to-time, Company may furnish Consultant with such promotional data, materials and technical information as Company deems necessary for Consultant to have in the performance of its duties hereunder. Consultant shall use such materials in furtherance of the objectives of this Agreement and shall not disseminate the same except as set forth in Section 10.

 

Subject to the terms and conditions of this Agreement, Company grants to Consultant a nonexclusive, nontransferable, royalty-free and restricted license to use Company's name, logo, and trademarks (“Marks”) for use in marketing documents to promote and market Company's products and services hereunder. Consultant agrees to use Company's Marks in accordance with such usage guidelines and advertising policies as Company may authorize from time-to-time. Consultant may only use Company's Marks with the prior consent of Company for each such use. Consultant acknowledges and agrees that Company owns its Marks, and that any goodwill derived from the use of Company's Marks inures solely to Company. Consultant agrees that it will not register any trademark confusingly similar to, nor challenge the validity of, any of Company's Marks. Consultant hereby agrees to immediately cease the use of Company's Marks upon the request of Company. Except as specifically provided otherwise herein, nothing contained in this Agreement shall be construed as conferring any license or right with respect to any trademark, trade name, brand name, logo, or the corporate name of Company.

 

Consultant agrees that it will not make any statement and/or representation with respect to Company's services and/or products which is not: (i) authorized or approved by Company; or (ii) derived from and accurate in all respects to materials provided to Consultant by Company. Consultant agrees that it will not offer any warranties to third parties, other than those provided to third parties under the Company's standard terms and conditions.

 

Consultant agrees to quote only the prices and terms as provided by Company and to promptly forward any and all inquiries for Company's products and services to Company for acceptance. Agreements regarding Company's services and/or products will be made only by Company and no agreement will bind Company until such Company accepts such agreement in writing. Company will have no liability for agreements that Company does not accept.

 

9. Notices. All notices or other communications required or permitted to be given hereunder shall be (as elected by the person giving such notice): (a) personally delivered; (b) transmitted by postage prepaid registered mail; or (c) transmitted by commercial courier, to the parties at their respective addresses set forth above. Except as otherwise specified herein, all notices and other communications shall be deemed to have been given on the date of receipt if delivered personally, three (3) days after posting if transmitted by mail, or two (2) days after transmission if transmitted by courier, whichever shall first occur. Any party hereto may change its address for purposes hereof by written notice to the other party.

 

10. Confidential Information of Company. Any information including, but not limited to, data, business information, technical information, specifications, drawings, sketches, models, samples, tools, promotional material, computer programs and documentation, written, oral or otherwise together with analyses, compilations, comparisons, studies or other documents prepared by Consultant or its partners or employees which contain or reflect such information (all hereinafter designated “Confidential Information”) furnished to Consultant hereunder or in contemplation hereof shall remain Company property or the property of the Company subsidiary or affiliate which furnished the Confidential Information to Consultant. All copies of such Confidential Information in written, graphic or other tangible form shall be returned to Company or such Company subsidiary or affiliate upon request. Unless such information was previously known to Consultant free of any obligation to keep it confidential or has been or is subsequently made public by Company or a third party without violation of this Agreement, it shall be kept confidential by Consultant and its partners and employees: and shall be disclosed only upon the prior written consent of Company or upon such terms as may be agreed upon in writing by the parties. Any findings, reports, questionnaires, or other results of this Agreement shall be the exclusive property of Company including title to copyright in all copyrightable material and shall be considered a “work-made-for-hire” in accordance with the copyright laws of the United States.

 

 

 

11. Miscellaneous.

 

11.1. Publicity. Unless otherwise required by law, no Party shall issue any press release or any other form of public disclosure regarding the existence of this Agreement or the terms hereof, or use the name of another Party hereto in any press release or other public disclosure, without the prior written consent of the other Party, except (i) for a press release announcing the execution of this Agreement, which will be mutually approved by the Parties, (ii) for those disclosures and notifications contemplated by this Agreement or containing information previously approved for disclosure by the other Party, (iii) as required by any Legal Requirement and solely to the extent necessary to satisfy such Legal Requirement and (iv) as required by the rules of any securities exchange on which any securities of a Party are traded.

 

11.2. Governing Law. The execution, interpretation and performance of this Agreement, and any disputes with respect to the transactions contemplated by this Agreement, shall be governed by the internal laws and judicial decisions of the State of New York applicable to contracts made and to be performed entirely within the State of New York.

 

11.3. Severability. If any provision contained in this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, unless the invalidity of any such provision substantially deprives either Party of the practical benefits intended to be conferred by this Agreement. Notwithstanding the foregoing, any provision of this Agreement held invalid, illegal or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable, and the determination that any provision of this Agreement is invalid, illegal or unenforceable as applied to particular circumstances shall not affect the application of such provision to circumstances other than those as to which it is held invalid, illegal or unenforceable.

 

11.4. Construction. Each Party acknowledges that it and its attorneys have been given an equal opportunity to negotiate the terms and conditions of this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party or any similar rule operating against the drafter of an agreement shall not be applicable to the construction or interpretation of this Agreement.

 

11.5. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed on signature pages exchanged by facsimile, in which event each Party shall promptly deliver to the other such number of original executed copies as the other Party may reasonably request.

 

11.6. Assignment. Neither this Agreement nor any consideration due or to become due hereunder may be assigned, in whole or in part, by Consultant without the prior written consent of Company, which consent shall not be unreasonably withheld.

 

11.7. Entire Agreement. This Agreement constitutes the entire understanding of the parties concerning the subject matter hereof, and supersedes all prior agreements and understandings, whether written, oral or otherwise, between the parties, and may be altered or amended only in a writing signed by both parties. Except as otherwise expressly provided herein, no purported waiver by any party of any breach by the other party of its obligations, representations, warranties, agreements or covenants hereunder shall be effective unless made in a writing, and no failure to pursue or elect any remedy with respect to any default under or breach of any provisions of this Agreement shall be deemed to be a waiver of any subsequent, similar or different default or breach.

 

[Signature Page Follows]

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the date first written above.

 

COMAPNY

 

HFactor, Inc.

  

 

By: _______________________________ 

Name: Dawn Cames 

Title: CFO/Sole Director 

 

 

 

CONSULTANT

 

Concorde Consulting Corp.

 

 

By: _______________________________ 

Name: Adam Linder 

Title: President

 

 

 

 

 

Amendment No. 1

to

Consulting Agreement

 

This Amendment No. 1 (the “Amendment”) to that certain Consulting Agreement entered into on August 15, 2023 but effective January 1, 2023 (the “Agreement”), is made on July 16, 2024, by and between HFactor, Inc., a Georgia corporation, with its principal address at 150 NW 168^th St, STE 307, North Miami Beach, Florida 33169 (the “Company”) and Concorde Consulting Corp., a Delaware corporation (the “Consultant”).

 

Background

 

WHEREAS, Company and Consultant entered into the Agreement as described above in the Preamble, and

 

WHEREAS, the Parties wish to amend the scope of services included in the Agreement.

 

NOW THEREFORE, in consideration of the promises hereof and of the mutual promises and agreements contained herein, the parties hereto, intending to be legally bound, do hereby agree as follows:

 

The Duties and Responsibilities of Consultant as set forth in Section 2.1 of the Agreement are hereby amended to include the development and management of any and all of the Company’s social media platforms.

 

All other terms and provisions of the Agreement not modified by this Amendment remain in full force and effect.

  

 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment on July 16, 2024.

 

COMAPNY

 

HFactor, Inc.

 

 

By: _______________________________ 

Name: Mike Lee 

Title: COO

 

 

 

CONSULTANT

 

Concorde Consulting Corp.

 

 

By: _______________________________ 

Name: Adam Linder 

Title: President 

 

 

 

 

Exhibit 10.2

 

ROYALTY AGREEMENT

 

This ROYALTY AGREEMENT (this “Agreement”), is made on August 15, 2023, but effective as of January 1, 2023 (“Effective Date”), by and between Concorde Consulting Corp., a Delaware corporation (“Concorde”) and HFactor, Inc., a Georgia corporation (“HFactor”).

 

Background Statement

 

Whereas, HFactor is the producer of the hydrogen-infused HFactor water beverage;

 

Whereas, HFactor and Concorde entered into that certain consulting agreement of even date (the “Consulting Agreement”) whereby Concorde agreed to provide strategic advisory and business development services; and

 

Whereas, pursuant to the terms of the Consulting Agreement and as partial compensation for the services rendered thereunder, HFactor agrees to pay to Concorde a royalty of $0.10 per unit of HFactor water sold in accordance with the terms and conditions set forth herein.

 

Now, therefore, in consideration of the covenants and obligations expressed herein, and intending to be legally bound, Concorde and HFactor agree as follows:

 

Agreement

 

1.                   Definitions. Capitalized terms shall have the meaning set forth in this section. Unless the context requires otherwise, words in the singular include the plural, words in the plural include the singular, and words importing any gender shall be applicable to all genders. If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb).

 

(a)      “Affiliate” means with respect to any Person, each other Person that directly or indirectly, through one or more intermediaries, owns or controls, is controlled by or is under common control with, such Person. For the purpose of this Agreement, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of management and policies, whether through the ownership of voting securities, by contract or otherwise.

 

(b)    “Agreement” has the meaning set forth in the introductory paragraph.

 

(c)     “Business Day” means any day other than Saturday, Sunday or a day on which banks in the City of New York are authorized or required to be closed.

 

(d)    “Concorde” has the meaning set forth in the introductory paragraph.

 

(e)     “Consulting Agreement” means that Consulting Agreement, dated as of the date hereof, between Concorde and HFactor, as amended or supplemented from time to time.

 

(f)      “HFactor Intellectual Property” means (i) all inventions, patents, patent applications, trade secrets, know-how, technical data, laboratory results, clinical results, manufacturing methods, copyrights, trademarks and other data, know-how and intellectual property owned, licensed or controlled by HFactor, whenever acquired, that are necessary to develop, manufacture, have manufactured, use, promote, distribute, import, sell and offer for sale any HFactor Product and (ii) any “Patents” or “Know-How” not otherwise included in subsection (i) of this definition.

 

(g)    “HFactor Products” means all beverage products produced or to be produced by HFactor.

 

(h)    “HFactor Regulatory Rights” means any licenses, permits, approvals, codes, certifications and other authorizations or identifiers granted or required by any Governmental Authority required to manufacture, have manufactured, use, promote, distribute, import, sell and offer for sale any HFactor Product.

 

(i)      “HFactor Rights” means any right, title or interest of HFactor or its Affiliates in and to any HFactor Intellectual Property, HFactor Products, or HFactor Regulatory Rights.

 

 

 

(j)      “Governmental Authority” means any nation or government, any state or other political subdivision thereof, any municipal, local, city or county government, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

(k)    “Legal Requirement” means any statute, law, treaty, rule, regulation, guidance, approval, order, decree, writ, injunction or determination of any Governmental Authority, court or arbitrator of competent jurisdiction; and, with respect to any Person, includes all such Legal Requirements applicable or binding upon such Person, its business or the ownership or use of any of its assets.

 

(l)      “Lien” means any reservations of title, mortgage, claim, lien, security interest, pledge, hypothecation, escrow, charge, option or other restriction or encumbrance of any kind.

 

(m)   “Sales” means the sale or distribution by HFactor or any of its Affiliates, in the ordinary course of business, of any and all HFactor Products; provided, however, that Sales shall not include sales of HFactor Products by Persons other than HFactor or its Affiliates from which HFactor receives, after the date hereof, no economic benefit. For purposes of the preceding sentence, HFactor shall be deemed to receive an economic benefit from the sale of HFactor Products if (i) such sale is made pursuant to any assignment, license or sublicense of any HFactor Rights by HFactor or any of its Affiliates, and (ii) HFactor or any of its Affiliates receives, after the date hereof, any consideration for such sale or from any such assignment, license or sublicense of HFactor Rights.

 

(n)    “Party” means either HFactor or Concorde, and “Parties” means both HFactor and Concorde.

 

(o)    “Person” means any natural person, corporation, limited liability company, partnership, association, trust, organization, Governmental Authority or other legal entity.

 

(p)    “Quarter” means a fiscal quarter of HFactor.

 

(q)    “Royalty” has the meaning set forth in Section 2(a).

 

(r)      “Royalty Term” means the period beginning on September 1, 2023 and continuing in perpetuity.

 

(s)     “HFactor” has the meaning set forth in the introductory paragraph.

 

(t)      “Transfer” means any sale (or any transaction having the effect of a sale), assignment, conveyance of rights, deed of trust, Lien, license, sublicense, seizure or other transfer of any sort and to any degree, voluntary or involuntary, including by operation of law.

 

2.                   Royalty.

 

(a)     Royalty Amount. In consideration of the services rendered by Concorde under the Consulting Agreement, HFactor shall pay to Concorde a royalty (the “Royalty”) equal to Ten ($0.10) Cents per unit of HFactor Product sold during the Royalty Term.

 

(b)    Payment of the Royalty. No later than 10 Business Days following the completion of each Quarter, HFactor shall pay to Concorde the Royalty for such Quarter. On the same day it makes a Royalty payment pursuant to this Section 2(b), HFactor shall deliver to Concorde a written statement showing all Sales during such Quarter and HFactor’s computation of the Royalty for such Quarter. All Royalty payments shall be made by wire transfer of immediately available funds to the account previously designated in writing to HFactor by Concorde, or such new or additional account(s) as Concorde shall designate in writing to HFactor at least five Business Days prior to the date such Royalty payment shall be due. HFactor may withhold from any payment of Royalty withholding taxes that it is required to withhold, if any, that are levied upon the Royalty by the United States or any state thereof, provided that HFactor shall deliver to Concorde copies of the filed tax return reporting such payments and official receipts (or such other evidence of payment reasonably acceptable to Concorde) evidencing that such payments were in fact received by the applicable Governmental Authority.

 

(c)     Delinquent Royalty Payments. Any Royalty not paid when due shall bear interest at a rate equal to the lower of (i) the highest rate permitted by applicable law, and (ii) one and one-half percent (1.5%) per month, compounded monthly.

 

 

 

(d)    Audit Right. Upon not less than fourteen days’ written notice, Concorde shall have the right to audit the books and records of HFactor relating to sales or other transactions included in the definition of Sales for the purposes of determining the correctness of HFactor’s computation and payment of the Royalty. Such audit may not be conducted more than once in any calendar year and shall be conducted during normal business hours by a national public accounting firm selected by Concorde at its cost and reasonably acceptable to HFactor, provided that such accounting firm enters into a reasonable confidentiality agreement prior to commencing any such audit. HFactor shall provide such accounting firm with access to all pertinent books and records and shall reasonably cooperate with such accounting firm’s efforts to conduct such audits. If there has been an underpayment of the aggregate Royalty due for the period being audited of more than $25,000, HFactor shall reimburse Concorde for the reasonable out-of-pocket costs (including accountants’ fees) incurred by Concorde in connection with such audit. In the event Concorde claims that any such audit reveals an underpayment of the Royalty, Concorde will make the audit papers for the relevant period available to HFactor.

 

3.                   Covenants of HFactor.

 

(a)     Sales Records. HFactor shall keep, or obtain from its sublicensees, if any, complete, true and accurate books and records of all Sales of HFactor Products. HFactor shall, as determined in its good faith business judgment or as reasonably requested by Concorde, enforce its audit and inspection rights under any license agreements and any other agreement relating to HFactor Products to which it is a party or a third-party beneficiary, and shall take all other commercially reasonable steps, in order to compile and maintain such books and records of Sales and to ensure such books and records are reasonably capable of being audited upon Concorde’s exercise of its rights pursuant to Section 2(d). HFactor shall keep such books and records of Sales, or cause them to be retained and available for purposes of this Agreement, for at least two (2) years following the Quarter to which they pertain.

 

(b)    Maintenance of HFactor Rights. HFactor shall not take any action, or fail to take any action or enforce any right, that is intended to, or would have the effect of, reducing Sales.

 

(c)     Maintenance of Rights. Without the prior written consent of Concorde, HFactor shall not take any action that would, or fail to take any action if such failure would, (i) modify, relinquish, diminish or terminate, or provide any Person with the right to modify, relinquish, diminish or terminate, any HFactor Intellectual Property or (ii) modify or terminate, or provide any Person with the right to modify or terminate, any HFactor Intellectual Property.

 

4.                   Representations and Warranties of HFactor. HFactor represents and warrants to Concorde, as of the date hereof, that:

 

(a)     Organization. HFactor is a corporation duly organized, validly existing and in good standing under the laws of the State of Georgia. HFactor has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as is now being conducted.

 

(b)    Authority; Execution; Enforceability. (i) HFactor has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, (ii) no consent of any party is required for HFactor to execute, deliver and perform its obligations under this Agreement, and (iii) the execution and delivery of this Agreement and the performance of all of its obligations hereunder have been duly authorized by HFactor. This Agreement has been duly executed and delivered by HFactor and constitutes the legal, valid and binding obligation of HFactor, enforceable against HFactor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws of general application relating to or affecting creditors’ rights generally.

 

(c)     No Violation. The execution, delivery and performance of this Agreement by HFactor, and HFactor’s compliance with the terms and conditions hereof, is not prohibited or limited by, and do not and will not conflict with or result in the breach of or a default under, any provision of the certificate of incorporation, bylaws or other formation documents of HFactor, any contract, agreement or instrument binding on or affecting HFactor, or any Legal Requirement applicable to HFactor.

 

(d)    Financial Condition. No insolvency proceeding of any character, including, without limitation, bankruptcy, receivership, reorganization, composition or arrangement with creditors, voluntary or involuntary, has been commenced by or against HFactor or any of its assets or properties, nor has any such proceeding been threatened. HFactor does not contemplate and has not taken any action in contemplation of the institution of any such proceeding.

 

 

 

5.                   Termination. It is the intention of the Parties that this Agreement grant to Concorde, and its assigns, the Royalty on an irrevocable, lifetime basis.

 

6.                   General Provisions.

 

(a)     Independent Contracting Parties. The Parties are not joint venturers, partners, principal and agent, master and servant, or employer and employee, and have no relationship other than as independent contracting parties. Neither Party shall be a legal representative of the other or have the power to bind or obligate the other in any manner.

 

(b)    Amendment and Modification. This Agreement may be amended, modified or supplemented only by an instrument in writing signed by the Party against whom such amendment, modification or supplement is sought to be enforced.

 

(c)     Waiver of Compliance; Consents. The rights and remedies of the Parties are cumulative and not alternative and may be exercised concurrently or separately. No failure or delay by any Party in exercising any right, power or privilege under this Agreement shall operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege shall preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (i) no waiver that may be given by a Party shall be applicable except in the specific instance for which it is given, and (ii) no notice to or demand on one Party shall be deemed to be a waiver of any obligation of such Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement. Any consent required or permitted by this Agreement is binding only if in writing.

 

(d)    Notices. All notices, consents, waivers, acceptances, rejections and other communications hereunder shall be in writing and shall be (i) delivered by hand, (ii) sent by facsimile transmission, or (iii) sent certified mail or by a nationally recognized overnight delivery service, charges prepaid, to the address set forth below (or such other address for a Party as shall be specified by like notice):

 

If to Concorde, to		Concorde Capital Corp.
		__________________________
		__________________________
		Attention: Adam Linder
		Phone: (___) ___-____

 

If to HFactor, to:		HFactor, Inc.
		244 Madison Ave, #1249
		New York, NY 10016
		Attention: Chief Executive Officer
		Phone: (929) 930-3969

Each such notice or other communication shall be deemed to have been duly given and to be effective (x) if delivered by hand, immediately upon delivery if delivered on a Business Day during normal business hours and, if otherwise, on the next Business Day; (y) if sent by facsimile transmission, immediately upon confirmation that such transmission has been successfully transmitted on a Business Day before or during normal business hours and, if otherwise, on the Business Day following such confirmation, or (z) if sent by certified mail or a nationally recognized overnight delivery service, on the day of delivery if delivered during normal business hours on a Business Day and, if otherwise, on the first Business Day after delivery. Notices and other communications sent via facsimile must be followed by notice delivered by hand or by certified mail or overnight delivery service as set forth herein within five Business Days.

 

(e)     Publicity. Unless otherwise required by law, no Party shall issue any press release or any other form of public disclosure regarding the existence of this Agreement or the terms hereof, or use the name of another Party hereto in any press release or other public disclosure, without the prior written consent of the other Party, except (i) for a press release announcing the execution of this Agreement, which will be mutually approved by the Parties, (ii) for those disclosures and notifications contemplated by this Agreement or containing information previously approved for disclosure by the other Party, (iii) as required by any Legal Requirement and solely to the extent necessary to satisfy such Legal Requirement and (iv) as required by the rules of any securities exchange on which any securities of a Party are traded.

 

 

 

(f)      Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or delegated by HFactor without Concorde’s prior written consent.

 

(g)    Governing Law. The execution, interpretation and performance of this Agreement, and any disputes with respect to the transactions contemplated by this Agreement, shall be governed by the internal laws and judicial decisions of the State of New York applicable to contracts made and to be performed entirely within the State of New York.

 

(h)    Severability. If any provision contained in this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, unless the invalidity of any such provision substantially deprives either Party of the practical benefits intended to be conferred by this Agreement. Notwithstanding the foregoing, any provision of this Agreement held invalid, illegal or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable, and the determination that any provision of this Agreement is invalid, illegal or unenforceable as applied to particular circumstances shall not affect the application of such provision to circumstances other than those as to which it is held invalid, illegal or unenforceable.

 

(i)      Construction. Each Party acknowledges that it and its attorneys have been given an equal opportunity to negotiate the terms and conditions of this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party or any similar rule operating against the drafter of an agreement shall not be applicable to the construction or interpretation of this Agreement.

 

(j)      Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed on signature pages exchanged by facsimile, in which event each Party shall promptly deliver to the other such number of original executed copies as the other Party may reasonably request.

 

(k)    Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties hereto in respect of the subject matter hereof. This Agreement supersedes all prior agreements, understandings, promises, representations and statements between the Parties and their representatives with respect to the Royalty contemplated by this Agreement.

 

[Signature Page Follows]

 

 

 

 

IN WITNESS WHEREOF, the Parties have caused this Royalty Agreement to be executed on August 15, 2023 but effective as of the Effective Date, by their duly authorized representatives.

 

	Concorde Consulting Corp.
	By:
	Name:	Adam Linder
	Title:	President
	HFACTOR, INC.
	By:
	Name:	Dawn Cames
	Title:	CFO/Sole Director

 

 

 

 

 

 

Exhibit 10.3

 

SECURED PROMISSORY NOTE

 

Principal Amount:

Up to $500,000.00

 

 

FOR VALUE RECEIVED, and subject to the terms and conditions set forth herein, HFactor, Inc., a Georgia corporation (the "Borrower"), hereby unconditionally promises to pay to the order of Concorde Consulting Corp., a Delaware corporation, or its assigns (the "Noteholder," and together with the Borrower, the "Parties"), the principal amount of up to $500,000.00 as provided in this Promissory Note (the "Note").

 

1. Definitions; Interpretation.

 

1.1 Capitalized terms used herein shall have the meanings set forth in this Section 1.1.

 

"Anti-Corruption Laws" means all laws, rules, and regulations of any jurisdiction applicable to the Borrower from time to time concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977.

 

"Beneficial Ownership Regulation" has the meaning set forth Section 12.10.

 

"Borrower" has the meaning set forth in the introductory paragraph.

 

"Business Day" means a day other than a Saturday, Sunday, or other day on which commercial banks in New York City are authorized or required by law to close.

 

"Debt" of the Borrower, means all (a) indebtedness for borrowed money; (b) obligations for the deferred purchase price of property or services, except trade payables arising in the ordinary course of business; (c) obligations evidenced by notes, bonds, debentures, or other similar instruments; (d) obligations as lessee under capital leases; (e) obligations in respect of any interest rate swaps, currency exchange agreements, commodity swaps, caps, collar agreements, or similar arrangements entered into by the Borrower providing for protection against fluctuations in interest rates, currency exchange rates, or commodity prices, or the exchange of nominal interest obligations, either generally or under specific contingencies; (f) obligations under acceptance facilities and letters of credit; (g) guaranties, endorsements (other than for collection or deposit in the ordinary course of business), and other contingent obligations to purchase, to provide funds for payment, to supply funds to invest in any Person, or otherwise to assure a creditor against loss, in each case, in respect of indebtedness set out in clauses (a) through (f) of a Person other than the Borrower; and (h) indebtedness set out in clauses (a) through (g) of any Person other than Borrower secured by any lien on any asset of the Borrower, whether or not such indebtedness has been assumed by the Borrower.

 

"Default" means any of the events specified in Section 10 which constitute an Event of Default or which, upon the giving of notice, the lapse of time, or both, pursuant to Section 10, would, unless cured or waived, become an Event of Default.

 

“Escrow Agent” means the law firm of JDT Legal.

 

"Event of Default" has the meaning set forth in Section 10.

 

"GAAP" means generally accepted accounting principles in the United States of America as in effect from time to time.

 

"Governmental Authority" means the government of the United States of America or any nation or any political subdivision thereof, whether state or local, 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 (including any supra-national bodies such as the European Union or the European Central Bank).

 

 

 

"Law" as to any Person, means the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law (including common law), statute, ordinance, treaty, rule, regulation, order, decree, judgment, writ, injunction, settlement agreement, requirement or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

"Lien" means any mortgage, pledge, hypothecation, encumbrance, lien (statutory or other), charge, or other security interest.

 

"Loan" means the principal amount of $250,000.00.

 

"Material Adverse Effect" means a material adverse effect on (a) the business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise), or prospects of the Borrower; (b) the validity or enforceability of the Note or Security Agreement; (c) the perfection or priority of any Lien purported to be created under the Security Agreement; (d) the rights or remedies of the Noteholder hereunder or under the Security Agreement; or (e) the Borrower's ability to perform any of its material obligations hereunder or under the Security Agreement.

 

"Note" has the meaning set forth in the introductory paragraph.

 

"Noteholder" has the meaning set forth in the introductory paragraph.

 

"OFAC" means the U.S. Department of the Treasury's Office of Foreign Assets Control.

 

"Parties" has the meaning set forth in the introductory paragraph.

 

"Permitted Debt" means Debt (a) existing or arising under this Note and any refinancing thereof; (b) existing as of the date of this Note; (c) which may be deemed to exist with respect to swap contracts; (d) owed in respect of any netting services, overdrafts, and related liabilities arising from treasury, depository, and cash management services in connection with any automated clearinghouse transfers of funds; and (e) unsecured insurance premiums owing in the ordinary course of business.

 

"Person" means any individual, corporation, limited liability company, trust, joint venture, association, company, limited or general partnership, unincorporated organization, Governmental Authority, or other entity.

 

"Security Agreement" means the Security Agreement, dated as of the date hereof, by and between the Borrower and Noteholder.

 

"USA PATRIOT Act" means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56, signed into law October 26, 2001).

 

1.2 Interpretation. For purposes of this Note (a) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Note as a whole. The definitions given for any defined terms in this Note shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine, and neuter forms. Unless the context otherwise requires, references herein to: (x) Schedules, Exhibits, and Sections mean the Schedules, Exhibits, and Sections of this Note; (y) an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Note shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

 

2. Loan Disbursement Mechanics. Upon execution of this Note, the Noteholder shall transfer the Loan amount to the Escrow Agent’s interest on lawyer’s trust account (“Escrow Account”) where the Loan will be held pending further instructions from the Borrower in accordance with the Parties’ agreements and the instructions set forth in the corresponding escrow agreement. The Note may be funded on various dates and in various tranches as determined by the Parties.

 

 

 

3. Interest; Repayment. The Loan shall accrue interest at the rate of 7% per annum and shall be due and payable May 31, 2024.

 

4. Security Agreement; Guaranty. The Borrower's performance of its obligations hereunder is secured by a first priority security interest in the collateral specified in the Security Agreement.

 

5. [Reserved].

 

6. Payment Mechanics.

 

6.1 Manner of Payments. All payments shall be made in lawful money of the United States of America on the date on which such payment is due by wire transfer of immediately available funds to the Noteholder's account at a bank specified by the Noteholder in writing to the Borrower from time to time.

 

6.2 Business Day Convention. Whenever any payment to be made hereunder shall be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension will be taken into account in calculating the amount of interest payable under this Note.

 

6.3 Evidence of Debt. The Noteholder is authorized to record on the grid attached hereto as Exhibit 1 each Advance made to the Borrower and each payment or prepayment thereof. The entries made by the Noteholder shall, to the extent permitted by applicable Law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of the Noteholder to record such payments or prepayments, or any inaccuracy therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loan in accordance with the terms of this Note.

 

6.4 Rescission of Payments. If at any time any payment made by the Borrower under this Note is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, or reorganization of the Borrower or otherwise, the Borrower's obligation to make such payment shall be reinstated as though such payment had not been made.

 

7. Representations and Warranties. The Borrower hereby represents and warrants to the Noteholder on the date hereof as follows:

 

7.1 Existence; Power and Authority; Compliance with Laws. The Borrower (a) is a corporation duly incorporated, validly existing, and in good standing under the laws of the state of its jurisdiction of organization, (b) has the requisite power and authority, and the legal right, to own, lease, and operate its properties and assets and to conduct its business as it is now being conducted, to execute and deliver this Note and the Security Agreement, and to perform its obligations hereunder and thereunder, and (c) is in compliance with all Laws.

 

7.2 Authorization; Execution and Delivery. The execution and delivery of this Note and the Security Agreement by the Borrower and the performance of its obligations hereunder and thereunder have been duly authorized by all necessary corporate action in accordance with all applicable Laws. The Borrower has duly executed and delivered this Note and the Security Agreement.

 

7.3 No Approvals. No consent or authorization of, filing with, notice to, or other act by, or in respect of, any Governmental Authority or any other Person is required in order for the Borrower to execute, deliver, or perform any of its obligations under this Note or the Security Agreement.

 

7.4 No Violations. The execution and delivery of this Note and the Security Agreement and the consummation by the Borrower of the transactions contemplated hereby and thereby do not and will not (a) violate any Law applicable to the Borrower or by which any of its properties or assets may be bound; or (b) constitute a default under any material agreement or contract by which the Borrower may be bound.

 

7.5 Enforceability. Each of the Note and the Security Agreement is a valid, legal, and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms.

 

7.6 No Litigation. No action, suit, litigation, investigation, or proceeding of, or before, any arbitrator or Governmental Authority is pending or threatened by or against the Borrower or any of its property or assets (a) with respect to the Note, the Security Agreement, or any of the transactions contemplated hereby or thereby or (b) that could be expected to materially adversely affect the Borrower's financial condition or the ability of the Borrower to perform its obligations under the Note or the Security Agreement.

 

 

 

7.7 USA PATRIOT Act; Anti-Money Laundering. The Borrower is, and to the knowledge of the Borrower, its directors, officers, employees, and agents are, in compliance in all material respects with the USA PATRIOT Act, and any other applicable terrorism and money laundering laws, rules, regulations, and orders.

 

8. Affirmative Covenants. Until all amounts outstanding under this Note have been paid in full, the Borrower shall:

 

8.1 Maintenance of Existence. (a) Preserve, renew, and maintain in full force and effect its corporate or organizational existence and (b) take all reasonable action to maintain all rights, privileges, and franchises necessary or desirable in the normal conduct of its business, except, in each case, where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

8.2 Compliance. (a) Comply with all Laws applicable to it and its business and its obligations under its material contracts and agreements, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect and (b) maintain in effect and enforce policies and procedures reasonably designed to achieve compliance in all material respects by the Borrower and its directors, officers, employees and agents with Anti-Corruption Laws.

 

8.3 Payment Obligations. Pay, discharge, or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its material obligations of whatever nature, except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings, and reserves in conformity with GAAP with respect thereto have been provided on its books.

 

8.4 Notice of Events of Default. As soon as possible and in any event within two 2 Business Days after it becomes aware that an Event of Default has occurred, notify the Noteholder in writing of the nature and extent of such Event of Default and the action, if any, it has taken or proposes to take with respect to such Event of Default.

 

8.5 Further Assurances. Upon the request of the Noteholder, promptly execute and deliver such further instruments and do or cause to be done such further acts as may be necessary or advisable to carry out the intent and purposes of this Note and the Security Agreement.

 

9. Negative Covenants. Until all amounts outstanding under this Note have been paid in full, the Borrower shall not:

 

9.1 Indebtedness. Incur, create, or assume any Debt, other than Permitted Debt.

 

9.2 Liens. Incur, create, assume, or suffer to exist any Lien on any of its property or assets, whether now owned or hereafter acquired, except for (a) Liens for taxes not yet due or which are being contested in good faith by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Borrower in conformity with GAAP; and (b) non-consensual Liens arising by operation of law, arising in the ordinary course of business, and for amounts which are not overdue for a period of more than 30 days or that are being contested in good faith by appropriate proceedings; and (c) Liens created pursuant to the Security Agreement.

 

9.3 Line of Business. Enter into any business, directly or indirectly, except for those businesses in which the Borrower is engaged on the date of this Note or that are reasonably related thereto.

 

10. Events of Default. The occurrence and continuance of any of the following shall constitute an Event of Default hereunder:

 

10.1 Failure to Pay Principal and Interest. The Borrower fails to pay the principal hereof or interest thereon when due on this Note, whether at maturity or upon acceleration and such breach continues for a period of five (5) days after written notice from the Holder.

 

10.2 Breach of Covenants. The Borrower breaches any material covenant or other material term or condition contained in this Note and any collateral documents including but not limited to the Security Agreement and such breach continues for a period of five (5) days after written notice thereof to the Borrower from the Holder.

 

10.3 Breach of Representations and Warranties. Any representation or warranty of the Borrower made herein or in any agreement, statement or certificate given in writing pursuant hereto or in connection herewith (including, without limitation, the Security Agreement), shall be false or misleading in any material respect when made and the breach of which has (or with the passage of time will have) a material adverse effect on the rights of the Holder with respect to this Note or the Security Agreement.

 

 

 

10.4 Receiver or Trustee. The Borrower or any subsidiary of the Borrower shall make an assignment for the benefit of creditors, or apply for or consent to the appointment of a receiver or trustee for it or for a substantial part of its property or business, or such a receiver or trustee shall otherwise be appointed.

 

10.5 Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings, voluntary or involuntary, for relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against the Borrower or any subsidiary of the Borrower.

 

10.6 Delisting of Common Stock. The Borrower shall fail to maintain the listing of the Common Stock on at least one of the OTC (which specifically includes the quotation platforms maintained by the OTC Markets Group) or an equivalent replacement exchange, the Nasdaq National Market, the Nasdaq SmallCap Market, the New York Stock Exchange, or the American Stock Exchange.

 

10.7 Failure to Comply with the Exchange Act. The Borrower shall fail to comply with the reporting requirements of the Exchange Act; and/or the Borrower shall cease to be subject to the reporting requirements of the Exchange Act.

 

10.8 Liquidation. Any dissolution, liquidation, or winding up of Borrower or any substantial portion of its business.

 

10.9 Cessation of Operations. Any cessation of operations by Borrower or Borrower admits it is otherwise generally unable to pay its debts as such debts become due, provided, however, that any disclosure of the Borrower’s ability to continue as a “going concern” shall not be an admission that the Borrower cannot pay its debts as they become due.

 

10.10 Financial Statement Restatement. The restatement of any financial statements filed by the Borrower with the SEC at any time until this Note is no longer outstanding, if the result of such restatement would, by comparison to the un-restated financial statement, have constituted a material adverse effect on the rights of the Holder with respect to this Note or the Security Agreement.

 

10.11 Replacement of Transfer Agent. In the event that the Borrower proposes to replace its transfer agent, the Borrower fails to provide, prior to the effective date of such replacement, a fully executed Irrevocable Transfer Agent Instructions in a form as initially delivered pursuant to the Purchase Agreement signed by the successor transfer agent to Borrower and the Borrower.

 

10.12 Cross-Default. Notwithstanding anything to the contrary contained in this Note or the other related or companion documents, a breach or default by the Borrower of any covenant or other term or condition contained in any of the Other Agreements, after the passage of all applicable notice and cure or grace periods, shall, at the option of the Holder, be considered a default under this Note and the Other Agreements, in which event the Holder shall be entitled (but in no event required) to apply all rights and remedies of the Holder under the terms of this Note and the Other Agreements by reason of a default under said Other Agreement or hereunder. “Other Agreements” means, collectively, all agreements and instruments between, among or by: (1) the Borrower, and, or for the benefit of, (2) the Holder and any affiliate of the Holder, including, without limitation, promissory notes; provided, however, the term “Other Agreements” shall not include the related or companion documents to this Note. Each of the loan transactions will be cross-defaulted with each other loan transaction and with all other existing and future debt of Borrower to the Holder.

 

Upon the occurrence and during the continuation of any Event of Default specified in Section 10.1 (solely with respect to failure to pay the principal hereof or interest thereon when due), the Note shall become immediately due and payable and the Borrower shall pay to the Holder, in full satisfaction of its obligations hereunder, an amount equal to the Default Amount, as defined below. Upon the occurrence and during the continuation of any Event of Default specified herein, the Note shall become immediately due and payable and the Borrower shall pay to the Holder, in full satisfaction of its obligations hereunder, an amount equal to 120% times the sum of (w) the then outstanding principal amount of this Note plus (x) accrued and unpaid interest on the unpaid principal amount of this Note to the date of payment and all other amounts payable hereunder (the “Default Amount”). The Default Amount shall immediately become due and payable, without demand, presentment, or notice, all of which are hereby expressly waived, together with all costs, including, without limitation, legal fees and expenses, of collection, and the Holder shall be entitled to exercise all other rights and remedies available at law or in equity.

 

If the Borrower fails to pay the Default Amount within five (5) business days of an Event of Default, then the Holder shall have the right at any time to exercise the rights granted under the Security Agreement.

 

 

 

11. Remedies. Upon the occurrence of any Event of Default and at any time thereafter during the continuance of such Event of Default, the Noteholder may, at its option, by written notice to the Borrower (a) terminate its commitment to make any Advances hereunder; (b) declare the entire principal amount of the Loan, together with all other amounts payable under this Note, immediately due and payable; (c) exercise any or all of its rights, powers or remedies under the Security Agreement or applicable Law; and (d) assume ownership and management control of the Borrower; provided, however, that if an Event of Default described in Section 10.5 shall occur, the Loan shall become immediately due and payable without any notice, declaration, or other act on the part of the Noteholder. The remedies set forth in this Section 11 are not mutually exclusive.

 

12. Miscellaneous.

 

12.1 Notices.

 

(a) All notices, requests, or other communications required or permitted to be delivered hereunder shall be delivered in writing, in each case to the address specified below or to such other address as such Party may from time to time specify in writing in compliance with this provision:

 

(i) If to the Borrower:

 

244 Madison Ave, #1249

New York, NY 10016
Attn: Dawn Cames
Telephone: (929) 930-3969
Email: dcames@hfactorwater.com

 

(ii) If to the Noteholder:

18555 Collinns Ave

Sunny Isles, FL 33160
Attn: Adam Linder
Telephone: _______________
Email: adamlndr@gmail.com

 

(b) Notices if (i) mailed by certified or registered mail or sent by hand or overnight courier service shall be deemed to have been given when received; (ii) sent by facsimile during the recipient's normal business hours shall be deemed to have been given when sent (and if sent after normal business hours shall be deemed to have been given at the opening of the recipient's business on the next business day); and (iii) sent by email shall be deemed received upon the sender's receipt of an acknowledgment from the intended recipient (such as by the "return receipt requested" function, as available, return email, or other written acknowledgment).

 

12.2 Expenses. The Borrower shall reimburse the Noteholder on demand for all out-of-pocket costs, expenses, and fees (including reasonable expenses and fees of its external counsel) incurred by the Noteholder in connection with the transactions contemplated hereby including the negotiation, documentation, and execution of this Note and the Security Agreement and the enforcement of the Noteholder's rights hereunder and thereunder.

 

12.3 Governing Law. This Note, the Security Agreement, and any claim, controversy, dispute, or cause of action (whether in contract or tort or otherwise) based upon, arising out of, or relating to this Note, the Security Agreement, and the transactions contemplated hereby and thereby shall be governed by the laws of the State of Georgia.

 

12.4 Submission to Jurisdiction. 

 

(a) The Borrower hereby irrevocably and unconditionally (i) agrees that any legal action, suit, or proceeding arising out of or relating to this Note or the Security Agreement may be brought in the courts of the State of Florida and (ii) submits to the exclusive jurisdiction of any such court in any such action, suit, or proceeding. Final judgment against the Borrower in any action, suit, or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment.

 

(b) Nothing in this Section 12.4 shall affect the right of the Noteholder to (i) commence legal proceedings or otherwise sue the Borrower in any other court having jurisdiction over the Borrower or (ii) serve process upon the Borrower in any manner authorized by the laws of any such jurisdiction.

 

 

 

12.5 Venue. The Borrower irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Note or the Security Agreement in any court referred to in Section 12.4 and the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

12.6 Waiver of Jury Trial. THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY RELATING TO THIS NOTE, THE SECURITY AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY.

 

12.7 Integration. This Note and the Security Agreement constitute the entire contract between the Parties with respect to the subject matter hereof and supersede all previous agreements and understandings, oral or written, with respect thereto.

 

12.8 Successors and Assigns. This Note may be assigned or transferred by the Noteholder to any Person. The Borrower may not assign or transfer this Note or any of its rights hereunder without the prior written consent of the Noteholder. This Note shall inure to the benefit of, and be binding upon, the Parties and their permitted assigns.

 

12.9 Waiver of Notice. The Borrower hereby waives demand for payment, presentment for payment, protest, notice of payment, notice of dishonor, notice of nonpayment, notice of acceleration of maturity, and diligence in taking any action to collect sums owing hereunder.

 

12.10 USA PATRIOT Act. The Noteholder hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act and 31 C.F.R. § 1010.230 (the "Beneficial Ownership Regulation"), it is required to obtain, verify, and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow the Noteholder to identify the Borrower in accordance with the USA PATRIOT Act and the Beneficial Ownership Regulation, and the Borrower agrees to provide such information from time to time to the Noteholder.

 

12.11 Amendments and Waivers. No term of this Note may be waived, modified, or amended except by an instrument in writing signed by both of the Parties. Any waiver of the terms hereof shall be effective only in the specific instance and for the specific purpose given.

 

12.12 Headings. The headings of the various Sections and subsections herein are for reference only and shall not define, modify, expand, or limit any of the terms or provisions hereof.

 

12.13 No Waiver; Cumulative Remedies. No failure to exercise, and no delay in exercising on the part of the Noteholder, of any right, remedy, power, or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. The rights, remedies, powers, and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by law.

 

12.14 Electronic Execution. The words "execution," "signed," "signature," and words of similar import in the Note shall be deemed to include electronic or digital signatures or electronic records, each of which shall be of the same effect, validity, and enforceability as manually executed signatures or a paper-based record-keeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National Commerce Act of 2000 (15 U.S.C. §§ 7001 to 7031), the Uniform Electronic Transactions Act (UETA), or any state law based on the UETA, including the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301 to 309).

 

12.15 Severability. If any term or provision of this Note or the Security Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Note or the Security Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Note so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

[signature page follows]

 

 

 

IN WITNESS WHEREOF, the Borrower has executed this Note effective as of August 11, 2023.

 

		HFactor, Inc.
		By_________________________________ Name: Dawn Cames Title: Director     By_________________________________ Name: Mike Lee Title: Chief Operating Officer
Agreed and Accepted:   Concorde Consulting Corp.
By__________________________________ Name: Adam Linder Title: President

 

 

 

Exhibit A

 

Advances and Payments on the Loan

 

Date of Advance	Amount of Advance	Amount of Principal Paid	Unpaid Principal Amount of the Loan	Name of Person Making the Notation

 

 

 

 

 

 

 

Exhibit 10.4

 

SECURITY AGREEMENT

 

This SECURITY AGREEMENT, dated as of August 11, 2023 (as amended, supplemented or otherwise modified from time to time in accordance with the provisions hereof, this "Agreement"), is made by and among HFactor, Inc., a Georgia corporation, and its subsidiaries HyEdge, Inc., a Delaware corporation, and HyEdge IP Co, a Delaware corporation (collectively hereinafter the "Grantor"), in favor of Concorde Consulting Corp., a Delaware corporation (the "Secured Party").

 

WHEREAS, on the date hereof, the Grantor has entered into a Secured Promissory Note (as amended, supplemented or otherwise modified from time to time, the "Note"), with the Secured Party, pursuant to which the Secured Party, subject to the terms and conditions contained therein, is to make loans to the Grantor; and

 

WHEREAS, under the terms of this Agreement, the Grantor desires to grant to the Secured Party a security interest in the Collateral, as defined herein, to secure any and all Secured Obligations, as defined herein.

 

NOW THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1. DEFINITIONS.

 

(a) All capitalized terms used herein without definitions shall have the respective meanings set forth in the Note. Unless otherwise defined herein, terms used herein that are defined in the UCC (as defined below) shall have the meanings assigned to them in the UCC. However, if a term is defined in Article 9 of the UCC differently than in another Article of the UCC, the term has the meaning specified in Article 9.

 

(b) For purposes of this Agreement, the following terms shall have the following meanings:

 

"Agreement" has the meaning set forth in the preamble.

 

"Bank" is the financial institution identified in Schedule A.

 

"Collateral" has the meaning set forth in Section 2.

 

“Equipment” means all tools, devices, machinery, and tangible property that is not land or buildings used in the production of HFactor Products (as defined in the Note).

 

“Escrow Account” means the interest on lawyers trust account of the Escrow Agent, attached hereto and incorporated herein as Schedule A, where the proceeds from the Loan will be held.

 

“Escrow Agent” means the law firm of JDT Legal.

 

"Grantor" has the meaning set forth in the preamble.

 

“Intellectual Property” means all utility patents, design patents, trademarks, and copyrights related to Grantor’s manufacture, development, or production of HFactor Products, whether owned by or assigned to Grantor.

 

“Inventory” means, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products, including without limitation such inventory as is temporarily out of Grantor’s custody or possession or in transit and including any returned goods and any documents of title representing any of the above.

 

"Note" has the meaning set forth in the recitals.

 

"Permitted Liens" has the meaning set forth in Section 6.

 

 

 

"Secured Obligations" has the meaning set forth in Section 3.

 

"Secured Party" has the meaning set forth in the preamble.

 

"UCC" means the Uniform Commercial Code as in effect from time to time in the State of New York or, when the laws of any other state govern the method or manner of the perfection or enforcement of any security interest in any of the Collateral, the Uniform Commercial Code as in effect from time to time in such state.

 

2. GRANT OF SECURITY INTEREST. For value received, the Grantor hereby grants to the Secured Party, to secure the payment and performance in full of all of the Secured Obligations, a security interest in and pledges and assigns to the Secured Party the following properties, assets and rights of the Grantor, wherever located, whether the Grantor now has or hereafter acquires an ownership or other interest or power to transfer, and all products and proceeds thereof, and all books and records relating thereto (all of the same being hereinafter called the "Collateral"): all of the Grantor's right, title, and interest in, to and under Grantor’s Equipment, Intellectual Property, and Inventory.

 

3. SECURED OBLIGATIONS. This Agreement secures the prompt and full performance and payment of all of the indebtedness, obligations, liabilities, and undertakings of the Grantor to the Secured Party, of any kind or description, individually or collectively, whether direct or indirect, joint or several, absolute or contingent, due or to become due, voluntary or involuntary, now existing or hereafter arising (including, all fees (including attorneys' fees), costs, and expenses that the Grantor is hereby or otherwise required to pay and perform pursuant to the Note, this Agreement, or any other Loan Document, by law or otherwise accruing before and after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Grantor, whether or not a claim for post-petition interest, fees or expenses is allowed in such proceeding), irrespective of whether for the payment of money, under or in respect of the Note, this Agreement, or any other Loan Document, including instruments or agreements executed and delivered pursuant thereto or in connection therewith (the "Secured Obligations").

 

4. PERFECTION OF SECURITY INTEREST. Immediately upon execution of this Agreement, the Grantor shall, pursuant to an agreement among the Grantor, the Secured Party and the Bank, in form and substance satisfactory to the Secured Party, cause the Bank to agree to comply without further consent of the Grantor, at any time with instructions from the Secured Party directing the disposition of funds from time to time credited to the Deposit Account. The Secured Party shall not give any such instructions or withhold any withdrawal rights from the Grantor, unless an Event of Default has occurred and is continuing, or, if effect were given to any withdrawal not otherwise permitted by the Loan Documents, would occur. The Secured Party in its discretion may take any steps necessary or appropriate to perfect, reperfect, or continue in effect the perfection and priority of the security interest granted herein.

 

5. TRANSFER OF COLLATERAL. The Grantor shall not sell, offer to sell, assign, lease, license, or otherwise transfer, or grant, create, permit, or suffer to exist any option, security interest, lien, or other encumbrance in, any part of the Collateral without the prior written consent of the Secured Party.

 

6. GRANTOR REPRESENTATIONS AND WARRANTIES. The Grantor hereby represents, warrants, and covenants that: (a) the Grantor owns or has good and marketable title to the Collateral and no other person or organization can make any claim of ownership of any kind on the Collateral; (b) the Grantor has the full power, authority and legal right to grant the security interest in the Collateral; (c) the Collateral is free from any and all claims, encumbrances, rights of setoff or any other lien of any kind except for the security interest in favor of the Secured Party created by this Agreement and the Bank in the ordinary course of business ("Permitted Liens"); (d) this Agreement creates in favor of the Secured Party a valid security interest in the Collateral, securing payment of the Secured Obligations, and such security interest is first priority (subject to Permitted Liens). The Grantor will defend the Collateral against all claims and demands made by all persons claiming either the Collateral or any interest in it.

 

7. GRANTOR COVENANTS. The Grantor shall: (a) keep the Collateral free from any other lien or security interest at all times; (b) timely pay all taxes, judgments, levies, fees, or charges of any kind levied or assessed on the Collateral or incurred in connection with this Agreement; (c) promptly advise the Secured Party of any event or circumstance that can reasonably be expected to have a material adverse effect on the Collateral; (d) not close or permit the Deposit Account to be closed without the prior written consent of the Secured Party; and (e) not cause or allow any modification, alteration or cancellation of the terms or agreements controlling the Deposit Account to occur without the prior written consent of the Secured Party.

 

 

 

8. FURTHER ASSURANCES. The Grantor agrees that at any time and from time to time, at the expense of the Grantor, the Grantor will promptly execute and deliver all further instruments and documents, obtain such agreements from third parties, and take all further action, that may be necessary or desirable, or that the Secured Party may request (including, without limitation, executing and delivering any deposit account control agreements), in order to create and/or maintain the validity, perfection or priority of and protect any security interest granted or purported to be granted hereby or to enable the Secured Party to exercise and enforce its rights and remedies hereunder or under any other agreement with respect to any Collateral.

 

9. REMEDIES. If an Event of Default shall have occurred and be continuing, at the option of the Secured Party, any and all Secured Obligations shall become immediately due and payable without presentment or demand or any notice to the Grantor or any other person obligated thereon, and the Secured Party, without any other notice to or demand upon the Grantor, shall have in any jurisdiction in which enforcement hereof is sought, in addition to all other rights and remedies, the rights and remedies of a secured party under the UCC and other applicable law, including, without limitation, the right to exercise control of the Deposit Account and the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose of all or any portion of the Collateral.

 

10. SECURED PARTY RIGHTS. Any and all rights of the Secured Party provided by this Agreement are in addition to any and all rights available to the Secured Party by law, and shall be cumulative and may be exercised simultaneously. No delay, omission, or failure on the part of the Secured Party to exercise or enforce any of its rights or remedies, either granted under this Agreement or by law, shall constitute an estoppel or waiver of such right or remedy or any other right or remedy. Any and all rights of the Secured Party provided by this Agreement shall inure to the benefit of its successors and assigns.

 

11. SEVERABILITY AND MODIFICATION. If any of the provisions in this Agreement is determined to be invalid, illegal, or unenforceable, such determination shall not affect the validity, legality, or enforceability of the other provisions in this Agreement. No waiver, modification or amendment of, or any other change to, this Agreement will be effective unless done so in a separate writing signed by the Secured Party.

 

12. NOTICES. Any notice or other communication required or permitted to be given under this Agreement shall be given and shall become effective in accordance with the Note.

 

13. ENTIRE AGREEMENT. This Agreement (including all documents referred to herein) represents the entire agreement between the Grantor and the Secured Party, and supersedes all previous understandings and agreements between the Grantor and the Secured Party, whether oral or written, regarding the subject matter hereof.

 

14. JURISDICTION. This Agreement will be interpreted and construed according to the laws of the State of New York, including, but not limited to, the UCC, without regard to choice-of-law rules in any jurisdiction.

 

IN WITNESS WHEREOF, the undersigned Grantor and Secured Party have executed this Security Agreement as of the date first above written.

 

 

	GRANTOR
	By:______________________ (Signature)
	Name: Mike Lee  Title: COO
	SECURED PARTY
	By:______________________ (Signature)
	Name: Adam Linder  Title: President

 

 

 

Schedule A

 

Escrow Account

 

 

 

Bank Name:

 

Bank Address:

 

 

Bank Account No:

 

Bank ABA/Routing No:

 

 

 

 

 

 

 

Exhibit 10.5

 

STOCK PURCHASE AGREEMENT

 

This Stock Purchase Agreement (the "Agreement") dated as of October 28, 2022, by and between HFactor, Inc. (the "Company") and Bearface, LLC (the "Investor").

 

WHEREAS, Investor wishes to purchase, and the Company agrees to sell, 2 shares of Company’s Series D Preferred Stock (the “Shares”) for $10,000 total consideration (the “Purchase Price”).

 

NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual agreements contained herein, the parties hereto agree as follows:

 

I. Purchase and Sale of the Shares.

 

1.1Agreement to Purchase and Sell. Investor hereby agrees to purchase the Shares for the Purchase Price, which is to be paid at the Closing (hereinafter defined). At Closing, Company shall cause its transfer agent to simultaneously issue the Shares to Investor.

 

1.2Closing of the Purchase. The closing of the purchase and sale of the Shares (the "Closing") shall be deemed to take place at the offices of the Company, on October 28, 2022 or at the earliest date of the completion of the events as set forth in the following sentence. At the Closing: (i) Company will cause the Shares to be delivered to Investor in book-entry form, or as otherwise directed by the Investor; and (ii) upon receipt of the Shares, Investor shall deliver to Company the Purchase Price by wire transfer, as follows:

 

Beneficiary Account Name:	HFactor, Inc.
Beneficiary Account No.:	_____________________
ABA/Transit No:	_____________________
Beneficiary Bank: Swift Code	_____________________ _____________________

 

For the avoidance of doubt, upon request by Investor, the Company shall deliver a certificate or certificates, registered in the name of such Investor, representing that number of shares of Common Stock and Shares being purchased by Investor.

 

II. Representations and Warranties of Company.

 

Company hereby represents and warrants that:

 

2.1Due Authorization. Company has all requisite legal capacity to execute, deliver and perform this Agreement and the transactions hereby contemplated. This Agreement constitutes a valid and binding agreement on the part of Company and is enforceable against Company in accordance with its terms. The execution, delivery and performance of the transactions contemplated hereunder will not conflict with any person’s right to purchase Common Shares or Series C Convertible Preferred Shares or Series D Convertible Preferred Shares and will not result in the creation of any lien, security interest, charge or encumbrance upon.

 

2.2No Consents; No Contravention. The execution, delivery and performance by Company of this Agreement (i) require no authorization, registration, consent, approval or action by or in respect of, or filings with or notice to, or exemption from, any governmental body, agency or official or other person (including but not limited to the SEC), and (ii) do not contravene, conflict with, result in a breach of or constitute a default under any material provision of applicable law or regulation, or of any material agreement to which Company is a party or by which the Company is bound, or any judgment, order, decree or other instrument binding upon Company.

 

2.3Litigation. There are no investigations, actions, suits or proceedings, administrative or otherwise, threatened or pending against the Company to the knowledge of Company that affects Company’s ability to issue the Shares.

 

2.4Insolvency. Company is not insolvent, is not in receivership, nor is any application for receivership pending; no proceedings are pending by or against it in bankruptcy or reorganization in any state or federal court; nor has it committed any act of bankruptcy.

 

 

 

2.5 Broker Fee. The Company represents and warrants that there has been no act or omission by Company or the Investor which would give rise to any valid claim against any of the parties hereto for a brokerage commission, finder’s fee or other like payment in connection with the transaction contemplated hereby. The Company further represents that it will not use any portion of the proceeds from the sale contemplated hereunder to directly or indirectly pay a commission, finder’s fee or other like payment to any party.

 

2.6Use of Proceeds. The net proceeds received by the Company from the sale of the Shares shall be used generally by the Company to satisfy its sales, marketing, and working capital needs. Nothing in this Agreement shall be interpreted to permit the Company to use net proceeds to pay any brokerage commission, finder’s fee or other like payment in connection with the transaction contemplated hereby.

 

2.7Capitalization. As of the date hereof, without giving effect to the Closing, the authorized capital stock of the Company consists of 200,000,000 shares of common stock, par value $0.001 per share (“Common Stock” or “Common Shares”), 1,000,000 shares of Series C Preferred Stock and 18,000,000 shares of Series D Preferred Stock. As of the date hereof, there are: (i) 50,467,414 shares of Common Stock issued and outstanding, (ii) 1 share of Series C Convertible Preferred Stock issued and outstanding (the “Series C Preferred Shares”), (iii) 3,231 shares of Series D Convertible Preferred Stock issued and outstanding (the “Series D Preferred Shares”) and, (iv) 0 shares of Common Stock reserved for issuance upon exercise of options, warrants and other convertible securities outstanding as of the date hereof, which includes the Series C Preferred Shares and the Series D Preferred Shares.

 

2.8Due Issuance and Authorization of Shares. The issuance, sale and delivery of the Shares to the Investor pursuant to this Agreement has been duly authorized, validly issued and such Shares are fully paid and non-assessable. The Shares and the Common Stock issuable upon conversion of the Shares will be issued in compliance with all applicable federal and state securities laws.

 

2.9Transfer or Resale. To the extent that Investor may be required by the Company’s transfer agent or Investor’s brokerage firm to obtain a legal opinion from securities counsel to deposit and sell (or otherwise transfer) the Shares, the Company agrees, at its sole expense, to either (i) furnish such legal opinion within ten (10) business days of Investor’s request or (ii) immediately reimburse Investor for up to $500 in legal fees incurred in obtaining such a legal opinion. The Company further agrees to take reasonable steps requested by Investor to facilitate the transfer or sell of Common Shares by Investor.

 

2.10Shares.

 

a. The Company shall reserve and keep available at all times during which the Shares a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue the Conversion Common Shares upon conversion of the Shares. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all of Investor’s Shares, the Company shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes.

 

b. Each Share shall be convertible into 0.01% of the Company’s Common Stock issued and outstanding on the date of conversion. Thus, if the Investor converts all of the Shares into Common Stock at a time when the Company has 60,000,000 Common Shares issued and outstanding, the Company will issue to Investor 6,000 additional Common Shares for each Share converted.

 

c. The Investor understands that the Shares and, until such time as the underlying shares of Common Stock have been registered under the Securities Act of 1933, as amended (“Securities Act”), or may be sold pursuant to an applicable exemption from registration, the Shares and underlying Common Stock will bear a restrictive legend in substantially the following form:

 

"THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (2) THE ISSUER OF SUCH SECURITIES RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY ACCEPTABLE TO THE ISSUER’S TRANSFER AGENT, THAT SUCH SECURITIES MAY BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS."

 

 

 

The legend set forth above shall be removed and the Company shall issue a shares without such legend to Investor, if, unless otherwise required by applicable state securities laws, (a) such Security is registered for sale under an effective registration statement filed under the Securities Act or otherwise may be sold pursuant to an exemption from registration without any restriction as to the number of securities as of a particular date that can then be immediately sold, or (b) Investor provides the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such security may be made without registration under the Securities Act, which opinion shall be accepted by the Company so that the sale or transfer is effected. The Investor agrees to sell all securities, including those represented by a certificate(s) from which the legend has been removed, in compliance with applicable prospectus delivery requirements, if any.

 

2.11Organization. The Company (a) is duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its formation, (b) is duly qualified to do business as a foreign entity and is in good standing in each jurisdiction where the nature of the property owned or leased by it or the nature of the business conducted by it makes such qualification necessary, and (c) has all requisite corporate power and authority to own or lease and operate its assets and carry on its business as presently being conducted as disclosed in the SEC Documents.

 

2.12Subsidiaries. The Company has a wholly owned subsidiary, HyEdge Inc. (“Subsidiary”), through which it conducts the majority of its operations. Any reference in this Agreement to the Company shall be deemed to include a reference to Subsidiary.

 

2.13OTC Markets Pink Tier. The Common Stock is quoted on the OTC Markets Pink Tier (the “OTC Pink Sheets”) under the symbol “HWTR,” and to the Company’s knowledge, there are no proceedings to revoke or suspend the trading of the Common Stock. The Company is in compliance with the requirements of the OTC Pink Sheets for continued trading of the Common Stock thereon and any other applicable requirements of the OTC Pink Sheets, and the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby (including the issuance of the Shares) will not result in any non-compliance by the Company with any such requirements.

 

2.14Tax Status. The Company has made or filed all federal and state income and all other material tax returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company and each of its Subsidiaries has set aside on its books reserves reasonably adequate for the payment of all unpaid and unreported taxes or filed valid extensions) and has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside on its books reserves reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply.   To the Company’s knowledge, there are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction.             

 

III. Representations and Warranties of Investor

 

Investor hereby represents and warrants that:

 

3.1Due Authorization. Investor has all requisite legal capacity to execute, deliver and perform this Agreement and the transactions hereby contemplated. This Agreement constitutes a valid and binding agreement on the part of Investor and is enforceable against Investor in accordance with its terms.

 

3.2No Consents; No Contravention. The execution, delivery and performance by Investor of this Agreement (i) require no authorization, consent, approval or action by or in respect of, or filings with, any governmental body, agency or official or other person and (ii) do not contravene, conflict with, result in a breach of or constitute a default under any material provision of applicable law or regulation, or of any material agreement to which Investor is a party or by which he is bound, or any judgment, order, decree or other instrument binding upon Company.

 

3.3Purchase for Investment. Investor is acquiring the Shares for investment for Investor’s own account and not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. Investor further represents that he does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person or to any third person, with respect to any of the Shares.

 

 

 

3.4Not Registered. Investor understands that the offer and sale of the Shares has not been registered under the Securities Act on the ground that the sale and the issuance of securities hereunder is exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and that Company’s reliance on such exemption is predicated on Investor’s representations set forth herein.

 

3.5Accredited Investor. Investor represents that he is an “accredited investor” as that term is defined in Regulation D promulgated under the Securities Act.

 

3.6Investment Experience. Investor acknowledges that he can bear the economic risk of his investment, and has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the investment in the Shares and the Company.

 

3.7Information. Investor has carefully reviewed such information as Investor deemed necessary to evaluate an investment in the Shares. To the full satisfaction of Investor, Investor has been furnished all materials that Investor requested relating to the Company and the issuance of the Shares hereunder including the SEC Documents.

 

3.8Restricted Securities. Investor understands that the Shares may not be sold, transferred, or otherwise disposed of without registration under the Securities Act or an exemption there from, and that in the absence of an effective registration statement covering the Shares or any available exemption from registration under the Securities Act, the Shares must be held indefinitely. Investor is aware that the Shares may not be sold pursuant to Rule 144 promulgated under the Securities Act unless all of the conditions of that Rule are met.

 

IV. Company’s Conditions to Closing.

 

4.1Accuracy of Representations. Each of the representations and warranties of Investor contained in Article III shall be true, complete and correct in all respects.

 

4.2No Action to Restrain. No statute, rule, regulation, judgment, injunction, order or decree shall have been enacted, entered, promulgated, enforced or deemed applicable by any court of competent jurisdiction, arbitrator, government or governmental authority or agency, which statute, rule, regulation, judgment, injunction, order or decree shall be in effect and restrain, enjoin, prohibit or otherwise make illegal the consummation of the sale and purchase of the Shares contemplated by this Agreement.

 

V. Investor’s Conditions to Closing.

 

5.1Accuracy of Representations. Each of the representations and warranties of Company contained in Article II shall be true, complete and correct in all respects.

 

5.2No Action to Restrain. No statute, rule, regulation, judgment, injunction, order or decree shall have been enacted, promulgated, enforced or deemed applicable by any court of competent jurisdiction, arbitrator, government or governmental authority or agency, which statute, rule, regulation, judgment, injunction, order or decree shall be in effect and restrain, enjoin, prohibit or otherwise make illegal the consummation of the sale and purchase of the Shares contemplated by this Agreement.

 

VI. Indemnification.

 

In consideration of the Investor's execution and delivery of this Agreement and acquiring the Shares, and in addition to all of the Company's other obligations under this Agreement, the Company shall defend, protect, indemnify and hold harmless the Investor (the "Indemnitee") from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether the Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys' fees and disbursements (the "Indemnified Liabilities"), incurred by the Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in this Agreement, the Subscription Agreement or any other agreement, certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained in this Agreement, the Subscription Agreement or any other agreement, certificate, instrument or document contemplated hereby or thereby or (c) any cause of action, suit or claim brought or made against the Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company) and arising out of or resulting from (i) the execution, delivery, performance or enforcement of this Agreement, the Subscription Agreement or any other agreement, certificate, instrument or document contemplated hereby or thereby, (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Shares, or (iii) the status of the Investor or as an investor in the Company pursuant to the transactions contemplated by this Agreement.

 

 

 

VII. Miscellaneous.

 

7.1Acknowledgment of Dilution. The Company understands and acknowledges the potentially dilutive effect of the purchase of the Shares and the conversion thereof to Common Stock. The Company further acknowledges that its obligation to issue, upon conversion of the Shares, is absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other shareholders of the Company.

 

7.2Binding Effect; Assignment. Except as provided to the contrary hereinabove, this Agreement shall apply to and shall be binding upon the parties hereto, their respective successors and assigns and all persons claiming by, through or under any of the aforesaid persons.

 

7.3Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements, including the Subscription Agreement, and understandings, both written and oral, between the parties with respect to the subject matter hereof.

 

7.4Amendment. This Agreement may not be amended or modified, except by a written instrument signed by the parties hereto.

 

7.5Applicable Law. This agreement and all transactions contemplated in this Agreement shall be governed by, construed and enforced in accordance with the laws of Florida. The parties herein waive trial by jury and agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in the State of Florida. In the event that litigation results from or arises out of this Agreement or the performance thereof, the parties agree to reimburse the prevailing party’s reasonable attorney’s fees, court costs and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing party may be entitled.

 

7.6Severability. In the event that any one or more of the provisions contained in this Agreement, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired, it being intended that all rights, powers and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law.

 

7.7Notices. All notices and other communications provided for herein shall be in writing and shall be deemed to have been duly given when received.

 

7.8Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.

 

[Signature Page Follows]

 

 

 

 

IN WITNESS WHEREOF, Company and Investor have executed this Agreement as of the date hereof.

 

 

COMPANY

HFactor, Inc.

 

 

By :_________________________

Name : Dawn Cames

Title : Officer/Director

 

 

INVESTOR

Bearface LLC

 

 

__________________________

Jason Boyd, Managing Member

 

 

 

 

 

Exhibit 10.6

 

STOCK PURCHASE AGREEMENT

 

This Stock Purchase Agreement (the "Agreement") dated as of March 20, 2023, by and between HFactor, Inc. (the "Company") and Bearface, LLC (the "Investor").

 

WHEREAS, Investor wishes to purchase, and the Company agrees to sell, 13 shares of Company’s Series D Preferred Stock (the “Shares”) for $65,000 total consideration (the “Purchase Price”).

 

NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual agreements contained herein, the parties hereto agree as follows:

 

I. Purchase and Sale of the Shares.

 

1.1Agreement to Purchase and Sell. Investor hereby agrees to purchase the Shares for the Purchase Price, which is to be paid at the Closing (hereinafter defined). At Closing, Company shall cause its transfer agent to simultaneously issue the Shares to Investor.

 

1.2Closing of the Purchase. The closing of the purchase and sale of the Shares (the "Closing") shall be deemed to take place at the offices of the Company, on March 20, 2023 or at the earliest date of the completion of the events as set forth in the following sentence. At the Closing: (i) Company will cause the Shares to be delivered to Investor in book-entry form, or as otherwise directed by the Investor; and (ii) upon receipt of the Shares, Investor shall deliver to Company the Purchase Price by wire transfer, as follows:

 

Beneficiary Account Name:	HFactor, Inc.
Beneficiary Account No.:	_____________________
ABA/Transit No:	_____________________
Beneficiary Bank: Swift Code	_____________________ _____________________

 

For the avoidance of doubt, upon request by Investor, the Company shall deliver a certificate or certificates, registered in the name of such Investor, representing that number of shares of Common Stock and Shares being purchased by Investor.

 

II. Representations and Warranties of Company.

 

Company hereby represents and warrants that:

 

2.1Due Authorization. Company has all requisite legal capacity to execute, deliver and perform this Agreement and the transactions hereby contemplated. This Agreement constitutes a valid and binding agreement on the part of Company and is enforceable against Company in accordance with its terms. The execution, delivery and performance of the transactions contemplated hereunder will not conflict with any person’s right to purchase Common Shares or Series C Convertible Preferred Shares or Series D Convertible Preferred Shares and will not result in the creation of any lien, security interest, charge or encumbrance upon.

 

2.2No Consents; No Contravention. The execution, delivery and performance by Company of this Agreement (i) require no authorization, registration, consent, approval or action by or in respect of, or filings with or notice to, or exemption from, any governmental body, agency or official or other person (including but not limited to the SEC), and (ii) do not contravene, conflict with, result in a breach of or constitute a default under any material provision of applicable law or regulation, or of any material agreement to which Company is a party or by which the Company is bound, or any judgment, order, decree or other instrument binding upon Company.

 

2.3Litigation. There are no investigations, actions, suits or proceedings, administrative or otherwise, threatened or pending against the Company to the knowledge of Company that affects Company’s ability to issue the Shares.

 

2.4Insolvency. Company is not insolvent, is not in receivership, nor is any application for receivership pending; no proceedings are pending by or against it in bankruptcy or reorganization in any state or federal court; nor has it committed any act of bankruptcy.

 

2.5 Broker Fee. The Company represents and warrants that there has been no act or omission by Company or the Investor which would give rise to any valid claim against any of the parties hereto for a brokerage commission, finder’s fee or other like payment in connection with the transaction contemplated hereby. The Company further represents that it will not use any portion of the proceeds from the sale contemplated hereunder to directly or indirectly pay a commission, finder’s fee or other like payment to any party.

 

2.6Use of Proceeds. The net proceeds received by the Company from the sale of the Shares shall be used generally by the Company to satisfy its sales, marketing, and working capital needs. Nothing in this Agreement shall be interpreted to permit the Company to use net proceeds to pay any brokerage commission, finder’s fee or other like payment in connection with the transaction contemplated hereby.

 

2.7Capitalization. As of the date hereof, without giving effect to the Closing, the authorized capital stock of the Company consists of 200,000,000 shares of common stock, par value $0.001 per share (“Common Stock” or “Common Shares”), 1,000,000 shares of Series C Preferred Stock and 18,000,000 shares of Series D Preferred Stock. As of the date hereof, there are: (i) 50,467,414 shares of Common Stock issued and outstanding, (ii) 1 share of Series C Convertible Preferred Stock issued and outstanding (the “Series C Preferred Shares”), (iii) 3,231 shares of Series D Convertible Preferred Stock issued and outstanding (the “Series D Preferred Shares”) and, (iv) 0 shares of Common Stock reserved for issuance upon exercise of options, warrants and other convertible securities outstanding as of the date hereof, which includes the Series C Preferred Shares and the Series D Preferred Shares.

 

2.8Due Issuance and Authorization of Shares. The issuance, sale and delivery of the Shares to the Investor pursuant to this Agreement has been duly authorized, validly issued and such Shares are fully paid and non-assessable. The Shares and the Common Stock issuable upon conversion of the Shares will be issued in compliance with all applicable federal and state securities laws.

 

2.9Transfer or Resale. To the extent that Investor may be required by the Company’s transfer agent or Investor’s brokerage firm to obtain a legal opinion from securities counsel to deposit and sell (or otherwise transfer) the Shares, the Company agrees, at its sole expense, to either (i) furnish such legal opinion within ten (10) business days of Investor’s request or (ii) immediately reimburse Investor for up to $500 in legal fees incurred in obtaining such a legal opinion. The Company further agrees to take reasonable steps requested by Investor to facilitate the transfer or sell of Common Shares by Investor.

 

2.10Shares.

 

a. The Company shall reserve and keep available at all times during which the Shares a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue the Conversion Common Shares upon conversion of the Shares. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all of Investor’s Shares, the Company shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes.

 

b. Each Share shall be convertible into 0.01% of the Company’s Common Stock issued and outstanding on the date of conversion. Thus, if the Investor converts all of the Shares into Common Stock at a time when the Company has 60,000,000 Common Shares issued and outstanding, the Company will issue to Investor 6,000 additional Common Shares for each Share converted.

 

c. The Investor understands that the Shares and, until such time as the underlying shares of Common Stock have been registered under the Securities Act of 1933, as amended (“Securities Act”), or may be sold pursuant to an applicable exemption from registration, the Shares and underlying Common Stock will bear a restrictive legend in substantially the following form:

 

"THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (2) THE ISSUER OF SUCH SECURITIES RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY ACCEPTABLE TO THE ISSUER’S TRANSFER AGENT, THAT SUCH SECURITIES MAY BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS."

 

The legend set forth above shall be removed and the Company shall issue a shares without such legend to Investor, if, unless otherwise required by applicable state securities laws, (a) such Security is registered for sale under an effective registration statement filed under the Securities Act or otherwise may be sold pursuant to an exemption from registration without any restriction as to the number of securities as of a particular date that can then be immediately sold, or (b) Investor provides the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such security may be made without registration under the Securities Act, which opinion shall be accepted by the Company so that the sale or transfer is effected. The Investor agrees to sell all securities, including those represented by a certificate(s) from which the legend has been removed, in compliance with applicable prospectus delivery requirements, if any.

 

2.11Organization. The Company (a) is duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its formation, (b) is duly qualified to do business as a foreign entity and is in good standing in each jurisdiction where the nature of the property owned or leased by it or the nature of the business conducted by it makes such qualification necessary, and (c) has all requisite corporate power and authority to own or lease and operate its assets and carry on its business as presently being conducted as disclosed in the SEC Documents.

 

2.12Subsidiaries. The Company has a wholly owned subsidiary, HyEdge Inc. (“Subsidiary”), through which it conducts the majority of its operations. Any reference in this Agreement to the Company shall be deemed to include a reference to Subsidiary.

 

2.13OTC Markets Pink Tier. The Common Stock is quoted on the OTC Markets Pink Tier (the “OTC Pink Sheets”) under the symbol “HWTR,” and to the Company’s knowledge, there are no proceedings to revoke or suspend the trading of the Common Stock. The Company is in compliance with the requirements of the OTC Pink Sheets for continued trading of the Common Stock thereon and any other applicable requirements of the OTC Pink Sheets, and the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby (including the issuance of the Shares) will not result in any non-compliance by the Company with any such requirements.

 

2.14Tax Status. The Company has made or filed all federal and state income and all other material tax returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company and each of its Subsidiaries has set aside on its books reserves reasonably adequate for the payment of all unpaid and unreported taxes or filed valid extensions) and has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside on its books reserves reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply.   To the Company’s knowledge, there are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction.             

 

III. Representations and Warranties of Investor

 

Investor hereby represents and warrants that:

 

3.1Due Authorization. Investor has all requisite legal capacity to execute, deliver and perform this Agreement and the transactions hereby contemplated. This Agreement constitutes a valid and binding agreement on the part of Investor and is enforceable against Investor in accordance with its terms.

 

3.2No Consents; No Contravention. The execution, delivery and performance by Investor of this Agreement (i) require no authorization, consent, approval or action by or in respect of, or filings with, any governmental body, agency or official or other person and (ii) do not contravene, conflict with, result in a breach of or constitute a default under any material provision of applicable law or regulation, or of any material agreement to which Investor is a party or by which he is bound, or any judgment, order, decree or other instrument binding upon Company.

 

3.3Purchase for Investment. Investor is acquiring the Shares for investment for Investor’s own account and not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. Investor further represents that he does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person or to any third person, with respect to any of the Shares.

 

3.4Not Registered. Investor understands that the offer and sale of the Shares has not been registered under the Securities Act on the ground that the sale and the issuance of securities hereunder is exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and that Company’s reliance on such exemption is predicated on Investor’s representations set forth herein.

 

3.5Accredited Investor. Investor represents that he is an “accredited investor” as that term is defined in Regulation D promulgated under the Securities Act.

 

3.6Investment Experience. Investor acknowledges that he can bear the economic risk of his investment, and has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the investment in the Shares and the Company.

 

3.7Information. Investor has carefully reviewed such information as Investor deemed necessary to evaluate an investment in the Shares. To the full satisfaction of Investor, Investor has been furnished all materials that Investor requested relating to the Company and the issuance of the Shares hereunder including the SEC Documents.

 

3.8Restricted Securities. Investor understands that the Shares may not be sold, transferred, or otherwise disposed of without registration under the Securities Act or an exemption there from, and that in the absence of an effective registration statement covering the Shares or any available exemption from registration under the Securities Act, the Shares must be held indefinitely. Investor is aware that the Shares may not be sold pursuant to Rule 144 promulgated under the Securities Act unless all of the conditions of that Rule are met.

 

IV. Company’s Conditions to Closing.

 

4.1Accuracy of Representations. Each of the representations and warranties of Investor contained in Article III shall be true, complete and correct in all respects.

 

4.2No Action to Restrain. No statute, rule, regulation, judgment, injunction, order or decree shall have been enacted, entered, promulgated, enforced or deemed applicable by any court of competent jurisdiction, arbitrator, government or governmental authority or agency, which statute, rule, regulation, judgment, injunction, order or decree shall be in effect and restrain, enjoin, prohibit or otherwise make illegal the consummation of the sale and purchase of the Shares contemplated by this Agreement.

 

V. Investor’s Conditions to Closing.

 

5.1Accuracy of Representations. Each of the representations and warranties of Company contained in Article II shall be true, complete and correct in all respects.

 

5.2No Action to Restrain. No statute, rule, regulation, judgment, injunction, order or decree shall have been enacted, promulgated, enforced or deemed applicable by any court of competent jurisdiction, arbitrator, government or governmental authority or agency, which statute, rule, regulation, judgment, injunction, order or decree shall be in effect and restrain, enjoin, prohibit or otherwise make illegal the consummation of the sale and purchase of the Shares contemplated by this Agreement.

 

VI. Indemnification.

 

In consideration of the Investor's execution and delivery of this Agreement and acquiring the Shares, and in addition to all of the Company's other obligations under this Agreement, the Company shall defend, protect, indemnify and hold harmless the Investor (the "Indemnitee") from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether the Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys' fees and disbursements (the "Indemnified Liabilities"), incurred by the Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in this Agreement, the Subscription Agreement or any other agreement, certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained in this Agreement, the Subscription Agreement or any other agreement, certificate, instrument or document contemplated hereby or thereby or (c) any cause of action, suit or claim brought or made against the Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company) and arising out of or resulting from (i) the execution, delivery, performance or enforcement of this Agreement, the Subscription Agreement or any other agreement, certificate, instrument or document contemplated hereby or thereby, (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Shares, or (iii) the status of the Investor or as an investor in the Company pursuant to the transactions contemplated by this Agreement.

 

VII. Miscellaneous.

 

7.1Acknowledgment of Dilution. The Company understands and acknowledges the potentially dilutive effect of the purchase of the Shares and the conversion thereof to Common Stock. The Company further acknowledges that its obligation to issue, upon conversion of the Shares, is absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other shareholders of the Company.

 

7.2Binding Effect; Assignment. Except as provided to the contrary hereinabove, this Agreement shall apply to and shall be binding upon the parties hereto, their respective successors and assigns and all persons claiming by, through or under any of the aforesaid persons.

 

7.3Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements, including the Subscription Agreement, and understandings, both written and oral, between the parties with respect to the subject matter hereof.

 

7.4Amendment. This Agreement may not be amended or modified, except by a written instrument signed by the parties hereto.

 

7.5Applicable Law. This agreement and all transactions contemplated in this Agreement shall be governed by, construed and enforced in accordance with the laws of Florida. The parties herein waive trial by jury and agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in the State of Florida. In the event that litigation results from or arises out of this Agreement or the performance thereof, the parties agree to reimburse the prevailing party’s reasonable attorney’s fees, court costs and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing party may be entitled.

 

7.6Severability. In the event that any one or more of the provisions contained in this Agreement, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired, it being intended that all rights, powers and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law.

 

7.7Notices. All notices and other communications provided for herein shall be in writing and shall be deemed to have been duly given when received.

 

7.8Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.

 

[Signature Page Follows]

 

 

 

 

IN WITNESS WHEREOF, Company and Investor have executed this Agreement as of the date hereof.

 

 

 

COMPANY

HFactor, Inc.

 

 

 

By :_________________________

Name : Dawn Cames

Title : Officer/Director

 

 

INVESTOR

Bearface LLC

 

 

__________________________

Jason Boyd, Managing Member

 

 

 

Exhibit 10.7

 

SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF ALL CLAIMS

 

THIS SETTLEMENT AGREEMENT WITH MUTUAL RELEASES (“Settlement Agreement”) is entered into on September 26, 2023, by and between HFactor, Inc. (“Company") and Richard Propper (“Propper”). Company and Propper are sometimes collectively referred to in this Settlement Agreement as the “Parties” or, individually, as a “Party.”

 

RECITALS

 

WHEREAS, the Company has an outstanding promissory note with a current principal balance due and owing in the amount of $405,918 plus accrued interest (the “Note”) payable to Propper; and

 

WHEREAS, the Company is carrying accrued salary in the amount of $375,000 (the “Salary”) on its balance sheet for services rendered by Propper; and

 

WHEREAS, the Parties have negotiated a proposed settlement with respect to the Note and Salary and wish to formalize said proposal through this Settlement Agreement.

 

NOW, THEREFORE, in consideration of the covenants and agreements expressed herein, and the recitals set forth above, which form a part of, and are incorporated into this Settlement Agreement, all of which constitutes good and valuable consideration, the Parties agree as follows:

 

AGREEMENT

 

1. Settlement Shares.

 

a) Series D Preferred Shares. Company shall issue to Propper 100 restricted shares of Series D Preferred Stock (the “Shares”), which equate to 1% of the Company’s common stock on a fully diluted basis, within five (5) business days of the execution of this Settlement Agreement in full payment and satisfaction of the Note and Salary. Upon issuance of the Shares, the Note, any interest accruing thereon, and the Salary shall be deemed paid in full and the Company shall have the legal right and authority to remove the Note and Salary from its books and records for the current fiscal reporting period.

 

b) Legends. Propper understands that until such time as the Shares have been registered under the 1933 Act or may be sold pursuant to any applicable exemption without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Shares shall bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for such Shares):

 

“NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO AN APPLICABLE EXEMPTION UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”

 

 

 

The legend set forth above shall be removed and the Company shall issue a certificate for the applicable shares without such legend to the holder of any security upon which it is stamped or (as requested by such holder) issue the shares to such holder by electronic delivery by crediting the account of such holder’s broker with The Depository Trust Company (“DTC”), if, unless otherwise required by applicable state securities laws, (a) such security is registered for sale under an effective registration statement filed under the 1933 Act or otherwise may be sold pursuant to an applicable exemption without any restriction as to the number of securities as of a particular date that can then be immediately sold; or (b) the Company or Propper provides the Legal Counsel Opinion (as contemplated by and in accordance herewith) to the effect that a public sale or transfer of such Security may be made without registration under the 1933 Act. Propper agrees to sell all Shares, including those represented by a certificate(s) from which the legend has been removed, in compliance with applicable prospectus delivery requirements, if any.

 

2. Propper Release. With the exception of rights and obligations created by this Settlement Agreement, Propper and all of his successors, heirs, assigns, affiliates, agents, attorneys, and anyone claiming by, through or under them, does hereby unconditionally and forever release and discharge Company, Company successors, assigns, affiliates, partners, members, officers, directors, employees and attorneys, of and from any and all liability, claims, counterclaims, damages, agreements, covenants, suits, contracts, obligations, liabilities, accounts, offsets, costs, expenses, rights, and causes of action of any nature whatsoever, whether arising at law or in equity, whether known or unknown, whether the liability be direct or indirect, liquidated or unliquidated, which Propper may now have, own, or at any time heretofore have ever had, owned, or held against Company from the beginning of time to the date of this Settlement Agreement. It is the intent and understanding of the Parties that this is a complete, general release and waiver of all claims.

 

3. Company Release. With the exception of rights and obligations created by this Settlement Agreement, Company, on behalf of itself and all of its successors, heirs, assigns, affiliates, agents, attorneys, and anyone claiming by, through or under them, does hereby unconditionally and forever releases and discharge Propper and his successors, assigns, affiliates, members, partners, officers, directors, employees and attorneys of and from any and all liability, claims, counterclaims, damages, agreements, covenants, suits, contracts, obligations, liabilities, accounts, offsets, costs, expenses, rights, and causes of action of any nature whatsoever, whether arising at law or in equity, whether known or unknown, whether the liability be direct or indirect, liquidated or unliquidated, which Company may now have, own, or at any time heretofore have ever had, owned, or held against Propper from the beginning of time to the date of this Settlement Agreement. It is the intent and understanding of the Parties that this is a complete, general release and waiver of all claims.

 

4. Representations and Warranties. Each of the Parties represents and warrants to the other as follows:

 

(a) Authorization and Validity. The execution and delivery of this Settlement Agreement by the Parties and the performance of their obligations hereunder have been duly authorized, and this Settlement Agreement constitutes the legal, valid, and binding obligation of the Parties in accordance with its terms. The Parties represent that they are not aware of any claims arising from or related to the Note or Salary that are held by any third party.

 

(b) Arms-Length Agreement. The Parties acknowledge (i) that they have had access to independent legal counsel in the negotiation of the terms of and in the preparation and execution of this Settlement Agreement, and that they have had the opportunity to review, analyze and discuss with counsel this Settlement Agreement and the underlying factual matters relevant to this Settlement Agreement for a sufficient period of time before the execution and delivery hereof (or that they hereby expressly waive the right to obtain advice from counsel); (ii) that all of the terms of this Settlement Agreement were negotiated at arm’s-length; (iii) that this Settlement Agreement was executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties; and (iv) the execution and delivery of this Settlement Agreement are the free and voluntary act of the Parties.

 

(c) No Reliance. The Parties did not rely upon any statement, representation or promise of any other Party (or of any officer, agent, employee, representative, or attorney for any other Party) in executing this Settlement Agreement or in making the settlement provided for herein, except as expressly stated in this Settlement Agreement.

 

(d) Assignment of Claims. The Parties have not heretofore assigned, transferred, or granted, or purported to assign, transfer, or grant, any of the claims addressed, resolved, compromised, settled, or otherwise disposed of by this Settlement Agreement and each Party has the full power and authority to enter into this Settlement Agreement and grant the consideration required herein.

 

 

 

5. Notices. Any notice, request, demand, or other communication which is required or may be given under this Settlement Agreement shall be in writing and shall be deemed to have been duly given on the day that it is electronically emailed, to the following email addresses or to such other additional email address as any Party might designate by written notice to the other Party with copy to such Party’s counsel:

 

To Propper:

Attn: Richard Propper

Email: _______________________

 

To Company:

Attn: Mike Lee

Email: _______________________

 

6. Miscellaneous.

 

(a) Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement, the Note, or any other agreement, certificate, instrument, or document contemplated hereby shall be brought only in the state courts located in Clark County, Nevada or in the federal courts located in Clark County, Nevada. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS SETTLEMENT AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY. The prevailing party shall be entitled to recover from the other party its reasonable attorney’s fees and costs. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Settlement Agreement or any other agreement, certificate, instrument or document contemplated hereby by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Settlement Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.

 

(b) Merger and Integration. This Settlement Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior and contemporaneous oral and written agreements and discussions.

 

(c) Modification. This Settlement Agreement may be amended only by an agreement in writing, signed by all Parties hereto.

 

(d) Binding Effect. Once executed by all the Parties hereto, this Settlement Agreement is binding upon and shall inure to the benefit of each of the Parties and its respective agents, attorneys, employees, representatives, officers, directors, divisions, subsidiaries, affiliates, assigns, heirs, successors in interest and shareholders.

 

(e) Severability. Whenever possible, each term, provision and condition of this Settlement Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any term, provision or condition of this Settlement Agreement shall be found or held to be invalid or unenforceable by any court of competent jurisdiction, such invalidity or unenforceability shall not affect the remainder of such term, provision or condition or any other term, provision or condition, and this Settlement Agreement shall survive and be construed as if such invalid or unenforceable term, provision or condition had not been contained therein.

 

(f) Construction. Whenever the context hereof so requires, the singular shall include the plural, the male gender shall include the female gender and the neuter, and vice versa.

 

(g) Headings. The headings and subheadings contained in this Settlement Agreement are intended for convenience only and shall in no way affect the meaning or interpretation of the Settlement Agreement.

 

(h) Interpretation. The Parties acknowledge that they have cooperated in the drafting and preparation of this Settlement Agreement and that no provision of this Settlement Agreement shall be construed against or interpreted to the disadvantage of any Party hereto by reason of such Party having drafted such a provision or being deemed to have drafted such a provision.

 

 

 

(i) Attorneys’ Fees and Costs. In the event of any action, suit or other proceeding concerning the interpretation, validity, performance, or breach of any of the terms and conditions of this Settlement Agreement, the prevailing party shall recover reasonable attorney’s fees, costs and expenses incurred in each and every such action, suit, or other proceeding, including any and all appeals and/or petitions relating thereto.

 

(j) Counterparts. This Settlement Agreement may be executed in counterparts, each of which shall be deemed an original, but when taken together with the other signed counterparts shall constitute one Settlement Agreement, which shall be binding upon and effective as to all signatories hereto.

 

(k) Further Acts. The Parties agree to perform any further acts and to execute and deliver any such further and additional documents which may be reasonably necessary to carry out the intent, terms, and effect of this Settlement Agreement.

 

(l) Survival; Successors and Assigns. Whenever a Party is referred to in this Settlement Agreement, such reference shall be deemed to include the successors and assigns of such Party. All covenants, agreements, representations, and warranties made herein shall survive this Settlement Agreement and continue in full force and effect.

 

(m) Effectiveness. This Settlement Agreement is effective when signed by all parties listed below and is deemed executed effective as of the date first appearing above.

 

[Signature Page Follows]

 

 

 

IN WITNESS WHEREOF, the undersigned Buyer and the Company have caused this Agreement to be duly executed as of the date first above written.

 

COMPANY

 

HFactor, Inc.

 

 

By:

Name: Mike Lee

Title: COO

 

 

PROPPER

 

 

Richard Propper, individually

 

 

 

 

 

Exhibit 10.8

 

SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF ALL CLAIMS

 

THIS SETTLEMENT AGREEMENT WITH MUTUAL RELEASES (“Settlement Agreement”) is entered into on September 26, 2023, by and between HFactor, Inc. (“Company") and Connie Lemon (“Holder”). Company and Holder are sometimes collectively referred to in this Settlement Agreement as the “Parties” or, individually, as a “Party.”

 

RECITALS

 

WHEREAS, the Company has an outstanding promissory note with a current principal balance due and owing in the amount of $90,000 plus accrued interest (the “Note”) payable to Holder; and

 

WHEREAS, the Parties have negotiated a proposed settlement with respect to the Note and wish to formalize said proposal through this Settlement Agreement.

 

NOW, THEREFORE, in consideration of the covenants and agreements expressed herein, and the recitals set forth above, which form a part of, and are incorporated into this Settlement Agreement, all of which constitutes good and valuable consideration, the Parties agree as follows:

 

AGREEMENT

 

1. Settlement Shares.

 

a) Series D Preferred Shares. Company shall issue to Holder 18 restricted shares of Series D Preferred Stock (the “Shares”), which equate to 0.18% of the Company’s common stock on a fully diluted basis, within five (5) business days of the execution of this Settlement Agreement in full payment and satisfaction of the Note. Upon issuance of the Shares, the Note shall be deemed paid in full and the Company shall have the legal right and authority to remove the Note from its books and records.

 

b) Legends. Holder understands that until such time as the Shares have been registered under the 1933 Act or may be sold pursuant to any applicable exemption without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Shares shall bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for such Shares):

 

“NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO AN APPLICABLE EXEMPTION UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”

 

The legend set forth above shall be removed and the Company shall issue a certificate for the applicable shares without such legend to the holder of any security upon which it is stamped or (as requested by such holder) issue the shares to such holder by electronic delivery by crediting the account of such holder’s broker with The Depository Trust Company (“DTC”), if, unless otherwise required by applicable state securities laws, (a) such security is registered for sale under an effective registration statement filed under the 1933 Act or otherwise may be sold pursuant to an applicable exemption without any restriction as to the number of securities as of a particular date that can then be immediately sold; or (b) the Company or Holder provides the Legal Counsel Opinion (as contemplated by and in accordance herewith) to the effect that a public sale or transfer of such Security may be made without registration under the 1933 Act. Holder agrees to sell all Shares, including those represented by a certificate(s) from which the legend has been removed, in compliance with applicable prospectus delivery requirements, if any.

 

 

 

2. Holder Release. With the exception of rights and obligations created by this Settlement Agreement, Holder and all of his successors, heirs, assigns, affiliates, agents, attorneys, and anyone claiming by, through or under them, does hereby unconditionally and forever release and discharge Company, Company successors, assigns, affiliates, partners, members, officers, directors, employees and attorneys, of and from any and all liability, claims, counterclaims, damages, agreements, covenants, suits, contracts, obligations, liabilities, accounts, offsets, costs, expenses, rights, and causes of action of any nature whatsoever, whether arising at law or in equity, whether known or unknown, whether the liability be direct or indirect, liquidated or unliquidated, which Holder may now have, own, or at any time heretofore have ever had, owned, or held against Company from the beginning of time to the date of this Settlement Agreement. It is the intent and understanding of the Parties that this is a complete, general release and waiver of all claims.

 

3. Company Release. With the exception of rights and obligations created by this Settlement Agreement, Company, on behalf of itself and all of its successors, heirs, assigns, affiliates, agents, attorneys, and anyone claiming by, through or under them, does hereby unconditionally and forever releases and discharge Holder and his successors, assigns, affiliates, members, partners, officers, directors, employees and attorneys of and from any and all liability, claims, counterclaims, damages, agreements, covenants, suits, contracts, obligations, liabilities, accounts, offsets, costs, expenses, rights, and causes of action of any nature whatsoever, whether arising at law or in equity, whether known or unknown, whether the liability be direct or indirect, liquidated or unliquidated, which Company may now have, own, or at any time heretofore have ever had, owned, or held against Holder from the beginning of time to the date of this Settlement Agreement. It is the intent and understanding of the Parties that this is a complete, general release and waiver of all claims.

 

4. Representations and Warranties. Each of the Parties represents and warrants to the other as follows:

 

(a) Authorization and Validity. The execution and delivery of this Settlement Agreement by the Parties and the performance of their obligations hereunder have been duly authorized, and this Settlement Agreement constitutes the legal, valid, and binding obligation of the Parties in accordance with its terms. The Parties represent that they are not aware of any claims arising from or related to the Note that are held by any third party.

 

(b) Arms-Length Agreement. The Parties acknowledge (i) that they have had access to independent legal counsel in the negotiation of the terms of and in the preparation and execution of this Settlement Agreement, and that they have had the opportunity to review, analyze and discuss with counsel this Settlement Agreement and the underlying factual matters relevant to this Settlement Agreement for a sufficient period of time before the execution and delivery hereof (or that they hereby expressly waive the right to obtain advice from counsel); (ii) that all of the terms of this Settlement Agreement were negotiated at arm’s-length; (iii) that this Settlement Agreement was executed without fraud, duress, undue influence or coercion of any kind exerted by any of the Parties; and (iv) the execution and delivery of this Settlement Agreement are the free and voluntary act of the Parties.

 

(c) No Reliance. The Parties did not rely upon any statement, representation or promise of any other Party (or of any officer, agent, employee, representative, or attorney for any other Party) in executing this Settlement Agreement or in making the settlement provided for herein, except as expressly stated in this Settlement Agreement.

 

(d) Assignment of Claims. The Parties have not heretofore assigned, transferred, or granted, or purported to assign, transfer, or grant, any of the claims addressed, resolved, compromised, settled, or otherwise disposed of by this Settlement Agreement and each Party has the full power and authority to enter into this Settlement Agreement and grant the consideration required herein.

 

5. Notices. Any notice, request, demand, or other communication which is required or may be given under this Settlement Agreement shall be in writing and shall be deemed to have been duly given on the day that it is electronically emailed, to the following email addresses or to such other additional email address as any Party might designate by written notice to the other Party with copy to such Party’s counsel:

 

To Holder:

Attn: Connie Lemon

Email: ____________________

 

To Company:

Attn: Mike Lee

Email: ____________________

 

 

 

6. Miscellaneous.

 

(a) Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement, the Note, or any other agreement, certificate, instrument, or document contemplated hereby shall be brought only in the state courts located in Clark County, Nevada or in the federal courts located in Clark County, Nevada. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS SETTLEMENT AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY. The prevailing party shall be entitled to recover from the other party its reasonable attorney’s fees and costs. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Settlement Agreement or any other agreement, certificate, instrument or document contemplated hereby by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Settlement Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.

 

(b) Merger and Integration. This Settlement Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior and contemporaneous oral and written agreements and discussions.

 

(c) Modification. This Settlement Agreement may be amended only by an agreement in writing, signed by all Parties hereto.

 

(d) Binding Effect. Once executed by all the Parties hereto, this Settlement Agreement is binding upon and shall inure to the benefit of each of the Parties and its respective agents, attorneys, employees, representatives, officers, directors, divisions, subsidiaries, affiliates, assigns, heirs, successors in interest and shareholders.

 

(e) Severability. Whenever possible, each term, provision and condition of this Settlement Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any term, provision or condition of this Settlement Agreement shall be found or held to be invalid or unenforceable by any court of competent jurisdiction, such invalidity or unenforceability shall not affect the remainder of such term, provision or condition or any other term, provision or condition, and this Settlement Agreement shall survive and be construed as if such invalid or unenforceable term, provision or condition had not been contained therein.

 

(f) Construction. Whenever the context hereof so requires, the singular shall include the plural, the male gender shall include the female gender and the neuter, and vice versa.

 

(g) Headings. The headings and subheadings contained in this Settlement Agreement are intended for convenience only and shall in no way affect the meaning or interpretation of the Settlement Agreement.

 

(h) Interpretation. The Parties acknowledge that they have cooperated in the drafting and preparation of this Settlement Agreement and that no provision of this Settlement Agreement shall be construed against or interpreted to the disadvantage of any Party hereto by reason of such Party having drafted such a provision or being deemed to have drafted such a provision.

 

(i) Attorneys’ Fees and Costs. In the event of any action, suit or other proceeding concerning the interpretation, validity, performance, or breach of any of the terms and conditions of this Settlement Agreement, the prevailing party shall recover reasonable attorney’s fees, costs and expenses incurred in each and every such action, suit, or other proceeding, including any and all appeals and/or petitions relating thereto.

 

(j) Counterparts. This Settlement Agreement may be executed in counterparts, each of which shall be deemed an original, but when taken together with the other signed counterparts shall constitute one Settlement Agreement, which shall be binding upon and effective as to all signatories hereto.

 

 

 

(k) Further Acts. The Parties agree to perform any further acts and to execute and deliver any such further and additional documents which may be reasonably necessary to carry out the intent, terms, and effect of this Settlement Agreement.

 

(l) Survival; Successors and Assigns. Whenever a Party is referred to in this Settlement Agreement, such reference shall be deemed to include the successors and assigns of such Party. All covenants, agreements, representations, and warranties made herein shall survive this Settlement Agreement and continue in full force and effect.

 

(m) Effectiveness. This Settlement Agreement is effective when signed by all parties listed below and is deemed executed effective as of the date first appearing above.

 

[Signature Page Follows]

 

 

 

 

 

 

 

 

IN WITNESS WHEREOF, the undersigned Buyer and the Company have caused this Agreement to be duly executed as of the date first above written.

 

COMPANY

 

HFactor, Inc.

 

 

 

By:

Name: Mike Lee

Title: COO

 

 

HOLDER

 

 

Connie Lemon, individually

 

 

 

 

Exhibit 10.9

 

EMPLOYMENT AGREEMENT

 

This Employment Agreement (this “Agreement”) is made as of July 22, 2022 (the “Effective Date”) by HFactor, Inc., a Georgia corporation (the “Employer”), and Gail Levy (the “Employee”).

 

Article I
EMPLOYMENT TERMS AND DUTIES

 

1.1Employment And Term. Employer agrees to employee the Employee, and Employee accepts the employment by the Employer, upon the terms and conditions set forth in this Agreement. Subject to the provisions of Article IV, the term of Employee’s employment under this Agreement will be begin on the Effective Date and end on the date that is two (2) years from the Effective Date (the “Employment Period”). The Employment Period shall automatically renew for successive one (1) year periods unless the Employment Period is cancelled by either party no less than thirty (30) days before the end of the Term or successive Term, as the case may be.

 

1.2Duties. Employee will serve as the President of Employer. Employee shall have such duties as are consistent with such title and/or that are reasonably assigned or delegated to Employee by the Employer’s Board of Directors. Employee will devote her full-time business time, attention, skill, and energy to the business of Employer, will use her reasonable best efforts to promote the success of Employer’s business, and will cooperate with the Employer’s Board of Directors in the advancement of the best interests of Employer; provided, however, that Employee shall assume a different executive position and/or a different executive title as soon as Employer appoints some other person as the President of the Employer.

 

Article II
COMPENSATION

 

2.1Salary. During the Employment Period, unless otherwise terminated hereunder in accordance with Article IV, Employee shall be paid an annual salary of $120,000 subject to adjustment as provided below (the “Salary”), which will be payable as earned in equal periodic installments according to Employer’s customary payroll practices, but no less frequently than monthly.

 

2.2Expense Reimbursement / No Employee Benefits.

 

2.2(a)Contemporaneously with the execution of this Agreement, Employee shall deliver to the Employer an itemized account describing her necessary and reasonable previously unreimbursed business expenses incurred in connection with her employment, through May 31, 2022, which itemized account shall include each expenses relation to the business of the Company, and supporting documentation for each such expense claimed, which supporting documentation shall be sufficient for the Employer to claim a business expense tax deduction for each such itemized expense (a “Reimbursable Expense”). Within five (5) business days of the Effective Date, Employer shall reimburse Employee for the Reimbursable Expense, in an amount not to exceed $$75,173.00 in the aggregate.

 

2.2(b)Except for the reimbursement detailed in this Section 2.2(a), Employee shall not receive any fringe benefits, reimbursements and/or benefits that are or may be provided to other employees of the Employer, except that Employee shall be the same number of paid vacation days as are provided to the other executives of the Company, in accordance with the vacation policies of Employer in effect per year, at such time or times as approved by the Employer’s Chief Financial Officer or the Employer’s Chairman of the Board of Directors.

 

Article III
FACILITIES AND EXPENSES

 

Employer will furnish Employee with office space, equipment, supplies, and such other facilities as Employer deems necessary or appropriate for the performance of Employee’s duties under this Agreement.

 

 

 

Article IV
TERMINATION

 

The Employment Period, Employee’s Salary, and any and all other rights of Employee under this Agreement or otherwise as an employee of Employer will terminate (except as otherwise provided in this Article IV or Section 1.1): (a) upon the death of Employee; (b) upon the disability of Employee immediately upon notice from either party to the other; or (c) for Cause, upon notice from Employer to Employee and opportunity to cure, or at such later time as such notice may specify. For the purposes of this Agreement, “Cause” means: (a) Employee’s material breach of this Agreement; (b) Employee’s repeated failure to adhere to any reasonable written Employer policy that results in material harm to Employer; (c) the appropriation (or attempted appropriation) of a material business opportunity of Employer, including attempting to secure or securing any material personal profit in connection with any transaction entered into on behalf of Employer without disclosure to Employer; (d) the misappropriation (or attempted misappropriation) of a material portion of Employer’s funds or property; or (e) the conviction of, or the entering of a guilty plea or plea of no contest with respect to, a felony or the equivalent thereof; provided that within twenty (20) days of becoming aware of the occurrence, the Employer will give written notice to the Employee specifically identifying the event constituting “cause” and the actions required to cure the breach of such event, and will give Employee five (5) days to cure such event before it may terminate her. For purposes of Article IV, Employee will be deemed to have a “disability” if, for physical or mental reasons, Employee is unable to perform the essential functions of Employee’s duties under this Agreement for 120 consecutive days, or 180 days during any twelve-month period.

 

Article V
NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS

 

5.1Acknowledgements by Employee. Employee acknowledges that (a) during the Employment Period and as a part of her employment, Employee will be afforded access to Confidential Information; (b) public disclosure of such Confidential Information could have an adverse effect on Employer and its business; (c) because Employee possesses substantial technical expertise and skill with respect to Employer’s business, Employer desires to obtain exclusive ownership of each Employee Invention, and Employer will be at a substantial competitive disadvantage if it fails to acquire exclusive ownership of each Employee Invention; and (d) the provisions of this Article V are reasonable and necessary to prevent the improper use or disclosure of Confidential Information and to provide Employer with exclusive ownership of all Employee Inventions. For the purposes of this Agreement, the term “Confidential Information” shall mean any and all:

 

(a)trade secrets concerning the business and affairs of Employer, including product specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and development, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), computer software and database technologies, systems, structures, and architectures (and related formulae, compositions, processes, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information), and any other information, however documented, that is a trade secret as defined under applicable law; and

 

(b)confidential information concerning the business and affairs of Employer (which includes historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel training and techniques and materials), however documented; notes, analysis, compilations, studies, summaries, and other material prepared by or for Employer containing or based, in whole or in part, on any information included in the foregoing.

 

provided, however, that “Confidential Information” shall not include any information that is generally known to the industry or the public other than as a result of Employee’s breach of this Agreement.

 

For purposes of this Agreement, the term “Employee Invention” shall mean any idea, invention, technique, modification, process, or improvement (whether patentable or not), any industrial design (whether registerable or not), any mask work, however fixed or encoded, that is suitable to be fixed, embedded or programmed in a semiconductor product (whether recordable or not), and any work of authorship (whether or not copyright protection may be obtained for it) created, conceived, or developed by Employee, either solely or in conjunction with others, during the Employment Period, or a period that includes a portion of the Employment Period, that relates in any way to, or is useful in any manner in, the business then being conducted or demonstrably proposed to be conducted by Employer.

 

 

 

5.2Confidentiality and Inventions. Agreements by Employee covenants and agrees as follows:

 

(a) Confidentiality.

 

(i) During and following the Employment Period, Employee will hold in confidence the Confidential Information and will not disclose it to any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, or governmental body (each individually, a “Person”), except with the specific prior written consent of Employer or except as otherwise expressly permitted by the terms of this Agreement.

 

(ii) Any trade secrets of Employer will be entitled to all of the protections and benefits under applicable law. If any information that Employer deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for purposes of this Agreement, such information may, nevertheless, be considered Confidential Information for purposes of this Agreement. Employee hereby waives any requirement that Employer submit proof of the economic value of any trade secret or post a bond or other security.

 

(iii) Employee will not remove from Employer’s premises (except to the extent such removal is for purposes of the performance of Employee’s duties at home or while traveling, or except as otherwise specifically authorized by Employer) any document, record, notebook, plan, model, component, device, or computer software or code, whether embodied in a disk or in any other form that constitutes Confidential Information (collectively, the “Proprietary Items”). Employee recognizes that, as between Employer and Employee, all of the Proprietary Items, whether or not developed by Employee, are the exclusive property of Employer. Upon termination of this Agreement by either party, or upon the request of Employer during the Employment Period, Employee will return to Employer all of the Proprietary Items in Employee’s possession or subject to Employee’s control, and Employee shall not retain any copies, abstracts, sketches, or other physical embodiment of any of the Proprietary Items.

 

(b) Employee Inventions. Each Employee Invention will belong exclusively to Employer. Employee acknowledges that all of Employee’s writing, and works of authorship, which constitute Employee Inventions are works made for hire and the property of Employer, including any copyrights, patents, or other intellectual property rights pertaining thereto. If it is determined that any such works are not works made for hire, Employee hereby assigns to Employer all of Employee’s right, title, and interest, including all rights of copyright, patent, and other intellectual property rights, to or in such Employee Inventions. Employee covenants that she will promptly: (i) disclose to Employer in writing any Employee Invention; (ii) assign to Employer or to a party designated by Employer, at Employer’s request and without additional compensation, all of Employee’s right to the Employee Invention for the United States and all foreign jurisdictions; (iii) execute and deliver to Employer such applications, assignments, and other documents as Employer may request in order to apply for and obtain patents or other registrations with respect to any Employee Invention in the United States and any foreign jurisdictions; (iv) sign all other papers necessary to carry out the above obligations; and (v) give testimony and render any other reasonable assistance, at the expense of Employer, in support of Employer’s rights to any Employee Invention.

 

5.3Disputes or Controversies. Employee recognizes that should a dispute or controversy arising from or relating to this Agreement be submitted for adjudication to any court, arbitration panel, or other third party, the preservation of the secrecy of Confidential Information may be jeopardized. All pleadings, documents, testimony, and records relating to any such adjudication will be maintained in secrecy and will be available for inspection by Employer, Employee, and their respective attorneys and experts, who will agree, in advance and in writing, to receive and maintain all such information in secrecy, except as may be limited by them in writing.

 

Article VI
GENERAL PROVISIONS

 

6.1Injunctive Relief and Additional Remedy. Employee acknowledges that the injury that would be suffered by Employer as a result of a breach of the provisions of this Agreement (including any provision of Article V) may be irreparable and that an award of monetary damages to Employer for such a breach may be an inadequate remedy. Consequently, Employer will have the right, in addition to any other rights it may have, to seek injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce any provision of this Agreement, and Employer will not be obligated to post bond or other security in seeking such relief.

 

 

 

6.2Covenants Of Article V Are Essential And Independent Covenants. The covenants by Employee in Article V are essential elements of this Agreement, and without Employee’s agreement to comply with such covenants, Employer would not have entered into this Agreement or employed or continued the employment of Employee. Employer and Employee have independently consulted their respective counsel and have been advised in all respects concerning the reasonableness and propriety of such covenants, with specific regard to the nature of the business conducted by Employer. Employee’s covenants in Article V are independent covenants and the existence of any claim by Employee against Employer under this Agreement or otherwise, or against Buyer, will not excuse Employee’s breach of any covenant in Article V. If Employee’s employment hereunder expires or is terminated, this Agreement will continue in full force and effect as is necessary or appropriate to enforce the covenants and agreements of Employee in Article V.

 

6.3Representations and Warranties by Employee. Employee represents and warrants to Employer that the execution and delivery by Employee of this Agreement do not, and the performance by Employee of Employee’s obligations hereunder will not, with or without the giving of notice or the passage of time, or both: (a) violate any judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to Employee; or (b) conflict with, result in the breach of any provisions of or the termination of, or constitute a default under, any agreement to which Employee is a party or by which Employee is or may be bound.

 

6.4Obligations Contingent on Performance. The obligations of Employer hereunder, including its obligation to pay the compensation provided for herein, are contingent upon Employee’s performance of Employee’s obligations hereunder.

 

6.5Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by either party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.

 

6.6Binding Effect; Delegation of Duties Prohibited. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors, assigns, heirs, and legal representatives, including any entity with which Employer may merge or consolidate or to which all or substantially all of its assets may be transferred. The duties and covenants of Employee under this Agreement, being personal, may not be delegated.

 

6.7Notices. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties):

 

If to Employer:

HFactor Inc.

______________________ 

______________________ 

Attention: _____________ 

Email: ________________

 

If to Employee:

Gail Levy

______________________ 

______________________ 

Email: ________________

 

6.8Entire Agreement; Amendments. This Agreement and the documents executed in connection herewith, contain the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof. This Agreement may not be amended orally, but only by an agreement in writing signed by the parties hereto.

 

 

 

6.9Governing Law And Waiver Of Jury Trial. This Agreement will be governed by the laws of the State of Georgia without regard to conflicts of laws principles. THE PARTIES HERETO HEREBY WAIVE A JURY TRIAL IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT.

 

6.10Section Headings, Construction. The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All words used in this Agreement will be construed to be of such gender or number, as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.

 

6.11Severability and Third Party Beneficiary. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. This Agreement is otherwise intended solely for the benefit of the parties hereto and their successors and assigns.

 

6.12Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute the same agreement.

 

EMPLOYER:

HFACTOR, INC., a Georgia corporation

 

 

By:_______________________________

_______________________, President

 

 

 

EMPLOYEE:

_________________________________

Gail Levy

 

 

 

 

Exhibit 17.1

 

DIRECTOR RESIGNATION

 

1.        The undersigned person is a member of the board of directors of HFactor, Inc. (“Company). Pursuant to the terms and conditions of that certain Memorandum of Understanding dated July 22, 2022 (the “MOU Effective Date”), the director whose name and signature is set forth below hereby resigns from such directorship as of the MOU Effective Date, by means of this written Director Resignation. A copy of the MOU is attached hereto as Exhibit A.

 

2.       Mutual Non-disparagement. The Director agrees not to engage in any form of conduct or make any statements or representations that disparage, portray in a negative light, or otherwise impair the reputation, goodwill or commercial interests of any Company or any Company director, officer, shareholder, agent, attorney, independent contractor or endorser. The Company agrees to cause its directors and officers not to engage in any form of conduct or make any statements or representations that disparages, portrays in a negative light, or otherwise impairs the reputation, goodwill, or commercial interests of the director set forth below. Notwithstanding the foregoing, nothing herein shall prevent any Party from making a statement or taking any act required by law.

 

3.       Cancellation of Series C Preferred Stock. The undersigned person warrants and represents to the Company that the purpose of the transfer of the Company’s Series C Preferred Stock as set forth below is to permit the Company’s board of directors, in its discretion, to allocate voting rights and the conversion rights of holders of Series C Preferred Stock among the Company’s officers and directors. In conjunction with the execution of this resignation, James C. Sanborn hereby cancels and returns 150,000 shares of Series C Preferred Stock to the Company and does hereby irrevocably constitute and appoint both the Company’s Secretary and the Company’s attorney, or either of them, to effectuate the share cancellation with the Company’s transfer agent. Further, and in addition, each of the undersigned person shall execute a Stock Assignment Separate From Certificate, in the form attached hereto as Exhibit “A”, in favor of the Company.

 

4.       Counterparts and Electronic Signature. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one in the same instrument. The executed signature page to this Agreement may be transmitted by facsimile transmission, by electronic mail in “portable document format” (.pdf) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature, and shall have the same effect as an original for all purposes.

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the MOU Effective Date.

 

/s/ James C. Sanborn

James C. Sanborn

 

 

ACKNOWLEDGED AND AGREED:

HFACTOR, INC.

 

By: /s/ Gail Levy

Gail Levy, CEO

 

 

Exhibit 17.2

 

DIRECTOR RESIGNATION

 

1.        The undersigned person is a member of the board of directors of HFactor, Inc. (“Company). Pursuant to the terms and conditions of that certain Memorandum of Understanding dated July 22, 2022 (the “MOU Effective Date”), the director whose name and signature is set forth below hereby resigns from such directorship as of the MOU Effective Date, by means of this written Director Resignation.

 

2.       Mutual Non-disparagement. The Director agrees not to engage in any form of conduct or make any statements or representations that disparage, portray in a negative light, or otherwise impair the reputation, goodwill or commercial interests of any Company or any Company director, officer, shareholder, agent, attorney, independent contractor or endorser. The Company agrees to cause its directors and officers not to engage in any form of conduct or make any statements or representations that disparages, portrays in a negative light, or otherwise impairs the reputation, goodwill, or commercial interests of the director set forth below. Notwithstanding the foregoing, nothing herein shall prevent any Party from making a statement or taking any act required by law.

 

3.       Counterparts and Electronic Signature. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one in the same instrument. The executed signature page to this Agreement may be transmitted by facsimile transmission, by electronic mail in “portable document format” (.pdf) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature, and shall have the same effect as an original for all purposes.

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the MOU Effective Date.

 

/s/ Leonard Klingbaum

Leonard Klingbaum

 

 

ACKNOWLEDGED AND AGREED:

HFACTOR, INC.

  

By: /s/ Gail Levy

Gail Levy, CEO

 

Exhibit 17.3

 

DIRECTOR RESIGNATION

 

1.        The undersigned person is a member of the board of directors of HFactor, Inc. (“Company). Pursuant to the terms and conditions of that certain Memorandum of Understanding dated July 22, 2022 (the “MOU Effective Date”), the director whose name and signature is set forth below hereby resigns from such directorship as of the MOU Effective Date, by means of this written Director Resignation. A copy of the MOU is attached hereto as Exhibit A.

 

2.       Mutual Non-disparagement. The Director agrees not to engage in any form of conduct or make any statements or representations that disparage, portray in a negative light, or otherwise impair the reputation, goodwill or commercial interests of any Company or any Company director, officer, shareholder, agent, attorney, independent contractor or endorser. The Company agrees to cause its directors and officers not to engage in any form of conduct or make any statements or representations that disparages, portrays in a negative light, or otherwise impairs the reputation, goodwill, or commercial interests of the director set forth below. Notwithstanding the foregoing, nothing herein shall prevent any Party from making a statement or taking any act required by law.

 

3.       Cancellation and Transfer of Series C Preferred Stock. The undersigned person warrants and represents to the Company that the purpose of the transfers of the Company’s Series C Preferred Stock as set forth below is to permit the Company’s board of directors, in its discretion, to allocate voting rights and the conversion rights of holders of Series C Preferred Stock among the Company’s officers and directors. In conjunction with the execution of this resignation, (i) Gail Levy hereby cancels and returns 849,999 shares of Series C Preferred Stock to the Company, and (ii) hereby transfers, assigns and conveys to Dawn Cames one (1) all share of Series C Preferred Stock. The undersigned person does hereby irrevocably constitute and appoint both the Company’s Secretary and the Company’s attorney, or either of them, to effectuate the share cancellation and share transfer set forth above with the Company’s transfer agent. Further, and in addition, undersigned person shall execute a Stock Assignment Separate From Certificate, in the form attached hereto as Exhibit “A”, in favor of the Company and Dawn Cames, all as described above.

 

4.       Counterparts and Electronic Signature. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one in the same instrument. The executed signature page to this Agreement may be transmitted by facsimile transmission, by electronic mail in “portable document format” (.pdf) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature, and shall have the same effect as an original for all purposes.

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the MOU Effective Date.

 

/s/ Gail Levy

Gail Levy

 

 

ACKNOWLEDGED AND AGREED:

HFACTOR, INC.

 

By: /s/ James C. Sanborn

James C. Sanborn, COO

v3.24.2

Cover	Jul. 22, 2022
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jul. 22, 2022
Entity File Number	000-1144546
Entity Registrant Name	HFactor, Inc.
Entity Central Index Key	0001144546
Entity Tax Identification Number	58-2634747
Entity Incorporation, State or Country Code	GA
Entity Address, Address Line One	150 NW 168th Street, STE 307
Entity Address, City or Town	North Miami Beach
Entity Address, State or Province	FL
Entity Address, Postal Zip Code	33169
City Area Code	(929)
Local Phone Number	930-3969
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock
Trading Symbol	HWTR
Security Exchange Name	NONE
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false

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