8-K
PMGC Holdings Inc. (ELAB)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):June 20, 2024
| Elevai Labs Inc. | ||
|---|---|---|
| (Exact name of registrant as specified in its charter) | ||
| Delaware | 001-41875 | 85-1399981 |
| --- | --- | --- |
| (State or other jurisdiction<br><br>of incorporation) | (Commission File Number) | (I.R.S. Employer<br><br>Identification No.) |
| c/o 120 Newport Center Drive, Ste. 250<br><br> <br>Newport Beach, CA | 92660 | |
| --- | --- | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code:
866-794-4940
N/A
(Former name or former address, 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 each class | Trading Symbol(s) | Name of each exchange on which registered |
|---|---|---|
| Common Stock, $0.0001 par value | ELAB | The Nasdaq Stock Market LLC |
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. ☐
Item 1.01 Entry into a Material Definitive Agreement.
The information set forth in Item 5.02 of this Current Report on Form 8-K is incorporated by reference herein.
Item5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements ofCertain Officers.
Departure of Officers
On June 21, 2024, Dr. Jordan Plews, notified the board of directors of the Company (the “Board”) of his intention to resign as chief executive officer of the Company, effective on the close of business on June 21, 2024. Dr. Plews’s resignation was not the result of any dispute or disagreement with the Company or the Board or any matter relating to the operation, policies or practices of the Company. Following the resignation, Dr. Plews will remain as chief executive officer of each of the Company’s subsidiaries, Elevai Skincare, Inc., and Elevai Biosciences, Inc. Dr. Plews will continue to oversee the operations of our subsidiaries of our established skincare aesthetics via Elevai Skincare, Inc. and the development and commercialization of aesthetic drug candidates via Elevai Biosciences, Inc.
The resignation of Dr. Plews has been approved by the nominating committee and the Board.
On June 20, 2024, we notified Brenda Buechler, our chief marketing officer, and Christoph Kraneiss, our chief commercial officer that each of them was involuntarily terminated without “cause” or laid off from employment as part of a wider job elimination/restructuring or reduction in force of the Company in order to streamline the Company’s operations and organizational structure. The Company is in the process of assessing the restructuring of each of the executive workflows, but as of the date of this Current Report does not intend to appoint new executives to fill the eliminated roles.
Appointment of Non-EmployeeChief Executive Officer
On June 21, 2024, due to Dr. Plew’s resignation and at the recommendation of the Nomination Committee of the Board, the Board appointed our current chief financial officer and director, Mr. Graydon Bensler, as non-employee Chief Executive Officer of the Company. In relation to this appointment, Mr. Bensler’s related compensation will remain unchanged. Mr. Bensler will be made available to act as chief executive officer of the Company through an amended and restated consulting agreement, by and between the Company and GB Capital Ltd., a British Columbia, Canada corporation controlled by Mr. Bensler. Mr. Bensler accepted an appointment by the Board as of the close of business on June 21, 2024, and agreed to receive his ongoing compensation of two hundred thousand dollars per annum in exchange for his services. Mr. Bensler will remain as chief financial officer of the Company until his successor is identified. The amended and restated consulting agreement by and between the Company and GB Capital Ltd. is qualified in its entirety by reference to the complete text of the agreement, which is filed hereto as Exhibit 10.1.
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Appointment of Non-ExecutiveChairman of the Board
On June 21, 2024, at the recommendation of the Nomination Committee of the Board, the Board appointed Mr. Braeden Lichti, as non-executive chairman and director of the Board to serve a term expiring at the annual general meeting of the Company in 2024 or until his successor is duly elected and qualified. Mr. Lichti will be made available to act as non-executive chairman and director of the Company through an amended and restated consulting agreement, by and between the Company and NorthStrive Companies Inc., a California corporation controlled by Mr. Lichti. The offer letter is qualified in its entirety by reference to the complete text of the agreement, which is filed hereto as Exhibit 10.2.
Mr. Lichti accepted an appointment by the Board as of the close of business on June 21, 2024, and agreed to receive ongoing compensation under the consulting agreement of one-hundred ninety-nine thousand, two hundred dollars per annum in exchange for his services. Mr. Lichti’s appointment letter is qualified in its entirety by reference to the complete text of the agreement, which is filed hereto as Exhibit 10.3.
As a material inducement of, and condition to, Mr. Lichti’s appointment, Mr. Lichti’s and the Company agreed to terminate that advisory agreement dated February 1, 2023, pursuant to an advisory agreement termination agreement as of June 21, 2024. The termination agreement by and between the Company and Mr. Lichti is qualified in its entirety by reference to the complete text of the agreement, which is filed hereto as Exhibit 10.4.
Braeden Lichti, a co-founder of our Company has served as our strategic consultant since July 2020 through his consulting firm. We believe Mr. Lichti will be a continued asset to the Board due to his network within the banking community, biotech and healthcare business community, and his experience identifying investment opportunities and restructuring companies.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
The following exhibits are being filed herewith:
| Exhibit No. | Description |
|---|---|
| 10.1 | Amended and Restated Consulting Agreement, by and between the Company and GB Capital Ltd. |
| 10.2 | Amended and Restated Consulting Agreement, by and between the Company and NorthStrive Companies Inc. |
| 10.3 | Chairman Appointment Letter to Mr. Braeden Lichti. |
| 10.4 | Termination Agreement by and between the Company and Mr. Lichti |
| 104 | Cover Page Interactive Data File (embedded with the Inline XBRL document). |
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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.
Date: June 26, 2024
| Elevai Labs, Inc. | |
|---|---|
| By: | /s/ Graydon Bensler |
| Name: | Graydon Bensler |
| Title: | Chief Executive Officer, and Director |
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Exhibit 10.1
AMENDED AND RESTATED CONSULTING AGREEMENT
FOR NON-EMPLOYEE CHIEF EXECUTIVE OFFICER
This Amended and Restated Consulting Agreement (this “Agreement”), effective as of June 21, 2024 (“Effective Date”), is entered into by and between Elevai Labs Inc., a Delaware corporation fka Reactive Medical Labs, Inc. (“Company”), and GB Capital Ltd, a British Columbia, Canada Corporation (“Consultant”).
Recitals
A. Whereas, Company and the Consultant (or its predecessor in interest) entered into that certain Consulting Agreement, dated June 1, 2020, as amended (collectively, the “Original Agreement”);
B. Whereas, Consultant received an assignment of the Original Agreement effective on or after June 4, 2021; and
C. Whereas, the parties amended and restate the Original Agreement, in its entirety as of the date first set above (the “Agreement”).
D. Whereas, the parties mutually wish to amend and restate the Original Agreement, in its entirety, as set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows.
Agreement
- ConsultingRelationship. During the term of this Agreement, Consultant will perform the consulting services to Company as described on Exhibit A (the “Services”). Consultant shall perform the Services in a diligent and professional matter, and in compliance with all applicable laws and regulations. This agreement shall be ratified by the board of directors of the Company.
(a) Non-employee Chief Executive Officer. The Consultant agrees to designate Graydon Bensler, Director of the Consultant, to perform those Services as Non-employee chief executive officer pursuant to that assignment agreement dated June 4, 2021, by and between the Company, the Consultant and Reactive Medical Inc., a British Columbia company.
Fees. As consideration for the Services performed by Consultant and other obligations, Company shall pay Consultant the amounts specified in Exhibit B at the times specified therein.
Expenses. Company shall reimburse Consultant for all reasonable expenses incurred in performing the Services; provided that Consultant shall obtain the prior written approval of the CEO of Company prior to incurring more than an aggregate of $2,000 of reimbursable expenses. As a condition to receipt of reimbursement, Consultant shall be required to submit to Company reasonable evidence that the amount involved was both reasonable and necessary to the Services provided under this Agreement.
4. Term and Termination.
(a) This Agreement shall commence on the Effective Date and shall terminate on the first anniversary of the date of the Original Agreement, (the “Expiration Date”); provided that the parties may extend the Expiration Date by a written agreement executed by both parties.
(b) Either party may terminate this Agreement upon at least thirty (30) days prior written notice to the other party. If your services as Consultant are terminated for no cause by the Board, then the Company and provided that you sign (and do not revoke) a full separation agreement and release of claims (“Separation Agreement”) in a form satisfactory to the Company and you which becomes irrevocable no later than sixty (60) days following your termination of employment and you remain in full compliance with such Separation Agreement, then the Company will pay you an amount equal to three (3) months of your annual fees on a pro-rated basis as severance, payable in a lump sum within sixty (60) days of the date your release of claims under the Separation Agreement becomes irrevocable. In addition, all unvested stock options shall accelerate and vest in full at the time of your termination. For purposes of clarification, no severance or accelerate options shall be due if your Services are terminated by the shareholders of the Company or if the Board terminates you with cause.
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(c) If (i) Company breaches any of its obligations pursuant to this Agreement or (ii) Consultant breaches any of its obligations pursuant to this Agreement including, but not limited to, Consultant’s obligations under the Confidential Information and Invention Assignment Agreement between Company and Consultant, the form of which is attached hereto as Exhibit C (the “Confidentiality Agreement”), then the non-breaching party may terminate this Agreement immediately if the breaching party fails to cure the breach within five (5) business days after having received written notice by the non-breaching party of the breach or default.
IndependentContractor. Consultant’s relationship with Company will be that of an independent contractor and not that of an employee or agent. Unless authorized by the Company in writing in advance, Consultant shall provide its own office space, equipment, and supplies necessary to perform the Services.
Provisionof Services. Consultant is responsible for determining the method, details and means of performing the Services.
(a) NoAuthority to Bind Company. Neither Consultant nor any of its personnel has the authority to enter into any contract that binds Company or creates any obligations on the part of Company.
(b) NoBenefits. Neither Consultant nor any of its personnel is eligible for any Company employee benefits. Further, to the extent Consultant or any of its personnel otherwise would be eligible for any Company employee benefits but for the express terms of this Agreement, Consultant on behalf of itself and its personnel hereby expressly declines to participate in such Company employee benefits.
(c) Withholding;Indemnification. Consultant shall have full responsibility for applicable withholding taxes for all compensation paid to Consultant under this Agreement, and for compliance with all applicable labor and employment requirements with respect to Consultant’s self- employment, franchise tax, worker’s compensation insurance coverage requirements and U.S. immigration visa requirements. Consultant shall indemnify, defend and hold Company harmless from any liability for, or assessment of, any claims or penalties with respect to such withholding taxes, labor or employment requirements including, without limitation, any liability for, or assessment of, withholding taxes imposed on Company by the relevant taxing authorities with respect to any compensation paid to Consultant.
Servicesfor Competitors. During term of this Agreement, Consultant shall not, directly or indirectly (a) perform any services which are the same or substantially similar to the Services, (b) participate in whether as an employee, contractor, consultant, officer or director or (c) have any ownership interest in or otherwise assist in the financing, operation, management or control of, any person or entity that designs, manufactures, markets, offers, sells and/or distributes any produces or service which competes with, or is a substitute for, any of the products or services being offered for sale by Company. Notwithstanding the foregoing, Consultant retains the right to invest in or have an interest in any competitive entity whose equity securities are traded on any public market, provided that said interest does not exceed one percent (1%) of the voting control of said entity.
ConfidentialInformation and Invention Assignment Agreement. Consultant shall sign, or has signed, the Confidentiality Agreement, which shall be effective as of the earlier to occur of the (a) Effective Date or (b) the date that Consultant first began performing services for Company. Consultant shall ensure that each of its personnel performing the Services on behalf of Consultant shall have entered into confidentiality agreement with Consultant obligating such personnel to abide by the provisions of this Agreement.
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Representations and Warranties. Consultant represents and warrants that:
(a) Neither Consultant nor any of its personnel is under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Agreement. Consultant’s performance of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by Consultant in confidence or in trust prior to commencement of this Agreement. Consultant is in the business of performing services similar to the Services for third parties. Consultant has all rights, licenses and permissions required for it to perform the Services and receive the compensation hereunder.
(b) Consultant has the right to disclose and/or or use all ideas, processes, techniques and other information, if any, which Consultant has gained from third parties, and which Consultant discloses to Company or uses in the course of performance of the Services, without liability to such third parties.
10. Miscellaneous.
(a) GoverningLaw. This Agreement shall be governed by and construed in accordance with the laws of the state of California, without giving effect to the principles of conflict of law provisions thereof.
(b) EntireAgreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof.
(c) Amendmentsand Waivers. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.
(d) Successorsand Assigns. Consultant may not assign, whether voluntarily or by operation of law, any of its rights and obligations under this Agreement, except with the prior written consent of Company. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the respective successors, assigns, heirs, executors, administrators and legal representatives of the parties.
(e) **Notices.**Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficient when delivered personally, by overnight courier or sent by email, addressed to the party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in Company’s books and records.
(f) **Severability.**If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of this Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of this Agreement shall be enforceable in accordance with its terms.
(g) **Construction.**This Agreement is the result of negotiations between and has been reviewed by each of the parties and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of both parties, and no ambiguity shall be construed in favor of or against either party.
(h) **Signatures.**This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement. Signatures received by facsimile, PDF file or other electronic format (including DocuSign) shall be deemed to be original signatures.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement but with an effective date as of the date first written above.
| COMPANY: | |
|---|---|
| ELEVAI LABS INC. | |
| By: | /s/ Dr. Jordan Plews |
| Name: | Jordan R. Plews |
| Title: | Chief Executive Officer |
| Address: | 120 Newport Center Drive Suite 250,<br><br> Newport Beach, CA 92660 |
| CONSULTANT: | |
| GB Capital Ltd. | |
| By: | /s/ Graydon Bensler |
| Name: | Graydon Bensler |
| Title: | Director |
| Address: | 1383 West 8th Avenue Vancouver Bc V6h 3w4 Canada |
| BN: | 78991 0874 |
EXHIBIT A
DESCRIPTION OF SERVICES
EXHIBIT B
COMPENSATION
EXHIBIT C
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
Exhibit 10.2
AMENDED AND RESTATED CONSULTING AGREEMENT
FOR NON-EXECUTIVE CHAIRMAN
This Amended and Restated Consulting Agreement (this “Agreement”), effective as of June 21, 2024 (“Effective Date”), is entered into by and between Elevai Labs Inc., a Delaware corporation fka Reactive Medical Labs, Inc. (“Company”), and NorthStrive Companies Inc., a California corporation (“Consultant”).
Recitals
A. Whereas, Company and BWL Investments Ltd, a British Columbia corporation (or its predecessors in interest) entered into that certain Consulting Agreement, dated July 3, 2020, as amended (collectively, the “Original Agreement”);
B. Whereas, Consultant received an assignment of the Original Agreement effective on or after December 19, 2022; and
C. Whereas, the parties amended and restate the Original Agreement, in its entirety on May 1, 2023 (the “Amended Agreement”).
D. Whereas, the parties mutually wish to amend and restate the Amended Agreement, in its entirety, as set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows.
Agreement
- ConsultingRelationship. During the term of this Agreement, Consultant will perform the consulting services as described on Exhibit A (the “Services”). Consultant shall perform the Services in a diligent and professional matter, and in compliance with all applicable laws and regulations.
| (a) |
|---|
(a) Non-executive Chairman. The Consultant agrees to designate Braeden Lichti, chief executive officer of the Consultant, to perform those Services as Non-executive Chairman in an assignment agreement pursuant to that assignment agreement dated June 21, 2024, by and between the Company, the Consultant and Mr. Lichti.
Fees. As consideration for the Services performed by Consultant and other obligations, Company shall pay Consultant the amounts specified in Exhibit B at the times specified therein.
Expenses. Consultant will be responsible for all expenses incurred while performing the Services unless Consultant receives the prior written approval of the Company to reimburse a particular expense. Without limiting the right of Company to deny approval, as a condition to receipt of reimbursement, Consultant shall be required to submit to Company reasonable evidence that the amount involved was both reasonable and necessary to the Services provided under this Agreement.
Termination and Resignation; Severance.
a. Your services as the Advisor may be terminated for any or no reason by the determination of the Board of the Company. You may also terminate your services as Advisor for any or no reason by delivering your written notice of resignation to the Company (“Resignation”), and such Resignation shall be effective upon the time specified therein or, if no time is specified, upon receipt of the notice of resignation by the Company. Upon the effective date of the termination or Resignation, your right to compensation hereunder will terminate subject to the Company’s obligations to pay you any compensation that you have already earned and to reimburse you for approved expenses already incurred in connection with your performance of your Duties as of the effective date of such termination or Resignation.
b. If your services as Advisor are terminated by the Board, then the Company and provided that you sign (and do not revoke) a full separation agreement and release of claims (“Separation Agreement”) in a form satisfactory to the Company and you which becomes irrevocable no later than sixty (60) days following your termination of employment and you remain in full compliance with such Separation Agreement, then the Company will pay you an amount equal to three (3) months of your Annual Base Advisor Fee as severance, payable in a lump sum within sixty (60) days of the date your release of claims under the Termination Agreement becomes irrevocable. In addition, all unvested Stock Options shall accelerate and vest in full at the time of your termination. For purposes of clarification, no severance shall be due if your service on the Board is terminated by the shareholders of the Company or if the Board terminates you with Cause.
c. As used in this Agreement, Cause means any: (a) willful failure by you to perform your duties and responsibilities to the Company after written notice thereof and a failure to remedy such failure within ten (10) days of such notice; (b) commission by you of any act of fraud, embezzlement, or any other willful misconduct that has caused or is reasonably expected to cause material injury to the Company; (c) unauthorized use or disclosure by you of any confidential information of the Company or any other party to whom you owe an obligation of nonuse and nondisclosure as a result of your relationship with the Company; (d) abuse of alcohol or drugs; or (e) breach by you of any of your obligations under this Agreement or any other written agreement with the Company after written notice thereof and, if capable of being remedied, a failure to remedy such breach within ten (10) days of such notice.
IndependentContractor. Consultant’s relationship with Company will be that of an independent contractor and not that of an employee or agent. Unless authorized by the Company in writing in advance, Consultant shall provide its own office space, equipment, and supplies necessary to perform the Services.
Provisionof Services. Consultant is responsible for determining the method, details and means of performing the Services.
(a) NoAuthority to Bind Company. Neither Consultant nor any of its personnel has the authority to enter into any contract that binds Company or creates any obligations on the part of Company.
(b) NoBenefits. Neither Consultant nor any of its personnel is eligible for any Company employee benefits. Further, to the extent Consultant or any of its personnel otherwise would be eligible for any Company employee benefits but for the express terms of this Agreement, Consultant on behalf of itself and its personnel hereby expressly declines to participate in such Company employee benefits.
(c) Withholding;Indemnification. Consultant shall have full responsibility for applicable withholding taxes for all compensation paid to Consultant under this Agreement, and for compliance with all applicable labor and employment requirements with respect to Consultant’s self- employment, franchise tax, worker’s compensation insurance coverage requirements and U.S. immigration visa requirements. Consultant shall indemnify, defend and hold Company harmless from any liability for, or assessment of, any claims or penalties with respect to such withholding taxes, labor or employment requirements including, without limitation, any liability for, or assessment of, withholding taxes imposed on Company by the relevant taxing authorities with respect to any compensation paid to Consultant.
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Servicesfor Competitors. During term of this Agreement, Consultant shall not, directly or indirectly (a) perform any services which are the same or substantially similar to the Services, (b) participate in whether as an employee, contractor, consultant, officer or director or (c) have any ownership interest in or otherwise assist in the financing, operation, management or control of, any person or entity that designs, manufactures, markets, offers, sells and/or distributes any produces or service which competes with, or is a substitute for, any of the products or services being offered for sale by Company. Notwithstanding the foregoing, Consultant retains the right to invest in or have an interest in any competitive entity whose equity securities are traded on any public market, provided that said interest does not exceed one percent (1%) of the voting control of said entity.
ConfidentialInformation and Invention Assignment Agreement. Consultant shall sign, or has signed, the Confidentiality Agreement, which shall be effective as of the Effective Date. Consultant shall ensure that each of its personnel performing the Services on behalf of Consultant shall have entered into confidentiality agreement with Consultant obligating such personnel to abide by the provisions of this Agreement.
Representations and Warranties. Consultant represents and warrants that:
(a) Neither Consultant nor any of its personnel is under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Agreement. Consultant’s performance of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by Consultant in confidence or in trust prior to commencement of this Agreement. Consultant is in the business of performing services similar to the Services for third parties. Consultant has all rights, licenses and permissions required for it to perform the Services and receive the compensation hereunder.
(b) Consultant has the right to disclose and/or or use all ideas, processes, techniques and other information, if any, which Consultant has gained from third parties, and which Consultant discloses to Company or uses in the course of performance of the Services, without liability to such third parties.
10. Miscellaneous.
(a) GoverningLaw. This Agreement shall be governed by and construed in accordance with the laws of the state of California, without giving effect to the principles of conflict of law provisions thereof.
(b) EntireAgreement; Other Agreements. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein. For the avoidance of doubt, this Agreement supersedes all prior or contemporaneous discussions, understandings and agreements (original or amended), whether oral or written, between them relating to the subject matter hereof. Without limiting the generality of the foregoing, this Agreement amends and restates the Original Agreement and any amendments thereto, in its entirety, effective as of the Effective Date.
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(c) Amendmentsand Waivers. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.
(d) Successorsand Assigns. Consultant may not assign, whether voluntarily or by operation of law, any of its rights and obligations under this Agreement, except with the prior written consent of Company (for purposes of clarification, Company confirms its consent to the assignment referenced in Recital B). Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the respective successors, assigns, heirs, executors, administrators and legal representatives of the parties.
(e) **Notices.**Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficient when delivered personally, by overnight courier or sent by email, addressed to the party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in Company’s books and records.
(f) **Severability.**If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of this Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of this Agreement shall be enforceable in accordance with its terms.
(g) Construction. This Agreement is the result of negotiations between and has been reviewed by each of the parties and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of both parties, and no ambiguity shall be construed in favor of or against either party.
(h) **Signatures.**This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement. Signatures received by facsimile, PDF file or other electronic format (including DocuSign) shall be deemed to be original signatures.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement but with an effective date as of the date first written above.
| COMPANY: | |
|---|---|
| ELEVAI LABS INC. | |
| By: | /s/ Dr. Graydon Bensler |
| Name: | Graydon Bensler |
| Title: | Chief Financial Officer |
| Address: | 120 Newport Center Drive Suite 250,<br><br> Newport Beach, CA 92660 |
| CONSULTANT: | |
| --- | --- |
| NORTHSTRIVE COMPANIES INC. | |
| By: | /s/ Dr. Braeden Lichti |
| Name: | Braeden Lichti |
| Title: | Chief Executive Officer |
| Address: | 1401 21st Street, Suite R Sacramento, CA 95811 |
| Business Tax ID: | 30-1245134 |
EXHIBIT A
DESCRIPTION OF SERVICES
EXHIBIT B
COMPENSATION
EXHIBIT C
CONFIDENTIALINFORMATION AND INVENTION ASSIGNMENT AGREEMENT
Exhibit 10.3
ELEVAI LABS, INC.
120 Newport Center Drive | Suite 250
Newport Beach, CA | 92660
(778) 558-4949
June 21, 2024
Braeden Lichti
650 W Georgia St #3200
Vancouver, BC V6B 4P7, Canada.
Re: Non-executive Chairman of the Board of Directors AppointmentLetter
Dear Mr. Lichti:
ELEVAI LABS, INC., a Delaware corporation (the “Company” or “we”), is pleased to appoint you a position as Director of the Company and as Non-executive Chairman of the Board of Directors of the Company (the “Board”) pursuant to that assignment agreement dated as of the date of this Agreement by and between the Company and NorthStrive Companies Inc., a California corporation (the “AssignmentAgreement”). We believe your background and experience will be a significant asset to the Company and we look forward to your participation as Director and Non-executive Chairman of the Board (“Chairman”). Should you choose to accept this position, this letter agreement (the “Agreement”) shall constitute an agreement between you and the Company and contains all the terms and conditions relating to the services you agree to provide to the Company. Your appointment shall also be subject to the approval of the Board and Nomination and Compensation Committee of the Board and shall begin on June 21, 2024 (the “EffectiveDate”). Your agreement of the following shall memorialize your appointment as the Chairman of the Company as of the Effective Date.
1. **Term.**Your term as Chairman shall begin on the Effective Date and continue subject to the provisions in Section 9 below or until your successor is duly elected and qualified (the “Term”). The position shall be up for re-appointment every year by the Board and upon re-appointment, the terms and provisions of this Agreement shall remain in full force and effect.
2. **Services.**You shall render customary services as Chairman (hereinafter, your “Duties”). During the Term of your appointment, you shall attend and chair each meeting of the Board regarding the business and operations of the Company as regularly or specially called, via teleconference, video conference, or in person. After the Effective Date and during the Term, you shall consult with members of the Board and committees of the Board regularly and as necessary via telephone, electronic mail, or other forms of correspondence.
Scope of Duties:
| ● | Act<br> as non-executive chairman of the Board and stockholder meetings and<br> facilitate discussions to ensure productive decision-making and the effectiveness<br> of such meetings. |
|---|---|
| ● | Collaborate<br> with senior management and the Board on setting strategic goals and policies of the Company. |
| --- | --- |
| ● | Liaise<br> between the Board and its committees, senior management. |
| --- | --- |
| ● | Ensure<br> legal compliance, uphold governance standards. |
| --- | --- |
| ● | Provide<br> advice, implementing strategy and leading the Company’s growth strategy including but<br> not limited to fundraising, capital allocation, and mergers and acquisitions. |
| --- | --- |
| ● | Otherwise<br> perform such other customary duties as may be determined and assigned by the Board. |
| --- | --- |
3. Servi****ces for Others. You shall be free to represent or perform services for other persons, which are not competitive with the business of the Company during the term of this Agreement. For the avoidance of doubt, persons competitive with the business of the Company include but are not limited to those engaged in the business of selling, marketing, manufacturing, or creating (i) stem-cell-based aesthetics products or (ii) physician-dispensed skincare products which, in either case, are competitive with or a substitute for any of the Company’s products.
4. Compensation.
| a. | Compensation for your services to the Company have been agreed and shall be deemed to be satisfied pursuant<br>to that amended and restated consulting agreement, dated as of the date of this Agreement by and between the Company and NorthStrive Companies<br>Inc., a California corporation. |
|---|---|
| b. | As of the Effective Date, the parties acknowledge that the Chairman holds 29,167 unvested non-statutory<br>stock option shares of the Company’s common stock (the “Existing Equity Awards”) pursuant to that advisory agreement,<br>dated February 1, 2023, by and between the Company and the Chairman (the “Advisory Agreement”). Nothing herein is intended<br>to amend or otherwise alter the provisions of the Existing Equity Awards or the grants and documents governing the terms of such awards.<br>Notwithstanding same, the Advisory Agreement between the parties shall be deemed terminated upon execution of this Agreement. |
| --- | --- |
| c. | As of the Effective Date, you shall be reimbursed for reasonable, documented expenses incurred by you<br>in connection with the performance of your Duties (including pre-approved out of pocket travel expenses and other business expenses incurred<br>by you in the performance of the Duties). The compensation set forth in this Agreement is all-inclusive and there is no additional compensation<br>for attending meetings. |
| --- | --- |
5. D&OInsurance Policy. During the Term, the Company shall include you as an insured under its officers and directors insurance policy (as may be amended from time to time).
6. Assignment. We have agreed that the services to be rendered by you pursuant to this Agreement have been duly assigned to you pursuant the prior written consent of the Company in that Assignment Agreement.
7. ConfidentialInformation; Non-Disclosure. In consideration of your access to certain Confidential Information (as defined below) of the Company, in connection with your business relationship with the Company, you hereby represent and agree as follows:
a. **Definition.**For purposes of this Agreement the term “Confidential Information” means: (i) any information which the Company possesses that has been created, discovered or developed by or for the Company, and which has or could have commercial value or utility in the business in which the Company is engaged; (ii) any information which is related to the business of the Company and is generally not known by non-Company personnel; and (iii) Confidential Information includes, without limitation, trade secrets and any information concerning products, processes, formulas, designs, inventions (whether or not patentable or registrable under copyright or similar laws, and whether or not reduced to practice), discoveries, concepts, ideas, improvements, techniques, methods, research, development and test results, specifications, data, know-how, software, formats, marketing plans, and analyses, business plans and analyses, strategies, forecasts, customer and supplier identities, characteristics and agreements.
b. **Exclusions.**Notwithstanding the foregoing, the term Confidential Information shall not include: (i) any information which becomes generally available or is readily available to the public other than as a result of a breach of the confidentiality portions of this Agreement, or any other agreement requiring confidentiality between the Company and you; (ii) information received from a third party in rightful possession of such information who to your knowledge is not restricted from disclosing such information; (iii) information known by you prior to receipt of such information from the Company; (iv) information that is independently developed by you without use of or reference to any Confidential Information ; and (v) information you are required to disclose pursuant to any applicable law, regulation, judicial or administrative order or decree, or request by other regulatory organization having authority pursuant to the law; provided, however, that you shall first have given prior written notice to the Company and made a reasonable effort to obtain a protective order requiring that the Confidential Information not be disclosed.
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c. Documents. You agree that, without the express written consent of the Company, you will not remove from the Company's premises, any notes, formulas, programs, data, records, machines or any other documents or items which in any manner contain or constitute Confidential Information, nor will you make reproductions or copies of same. You shall promptly return any such documents or items, along with any reproductions or copies to the Company upon the Company's demand, upon termination of this Agreement, or upon your termination or Resignation (as defined in Section 9 herein).
d. **Confidentiality.**You agree that you will hold in trust and confidence all Confidential Information and will not disclose to others, directly or indirectly, any Confidential Information or anything relating to such information without the prior written consent of the Company, except as may be necessary in the course of your business relationship with the Company. You further agree that you will not use any Confidential Information without the prior written consent of the Company, except as may be necessary in the course of your business relationship with the Company, and that the provisions of this paragraph (d) shall survive termination of this Agreement. Notwithstanding the foregoing, you may disclose Confidential Information to your legal counsel and accounting advisors who have a need to know such information for accounting or tax purposes and who agree to be bound by the provisions of this paragraph (d).
e. **Ownership.**You agree that the Company shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, and all other intellectual and industrial property rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), works of authorship, mask works, designations, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by you during the term of this Agreement and that arise out of your Duties (collectively, “Director Intellectual Property”) and you will promptly disclose and provide all Director Intellectual Property to the Company. You agree to assist the Company, at its expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights assigned.
8. Non-Solicitation;No Conflicting Obligations. During the Term of your appointment, (i) you shall not solicit for employment any employee of the Company with whom you have had contact due to your appointment; and (ii) your compliance with the terms of this Agreement and provision of the Duties hereunder will not violate any duty which you may have to any other person or entity, and you agree that you will not do anything in the performance of the Duties hereunder that would violate any such duty. You have disclosed and, during the Term, will disclose to the Chief Officer or President (in the absence of a Chief Officer) of the Company any conflicts between this Agreement and any other agreements you are bound by.
9. Termination and Resignation.
| a. | Your services as an Independent Director may be terminated for any or no reason by the determination of<br>the Board. You may also terminate your services as Chairman and/or as a Director for any or no reason by delivering your written notice<br>of resignation to the Company (“Resignation”), and such Resignation shall be effective upon the time specified therein<br>or, if no time is specified, upon receipt of the notice of resignation by the Company. Upon the effective date of the termination or Resignation,<br>your right to compensation hereunder will terminate subject to the Company's obligations to pay you any compensation that you have already<br>earned and to reimburse you for approved expenses already incurred in connection with your performance of your Duties as of the effective<br>date of such termination or Resignation. |
|---|---|
| b. | If your services as the Chairman are terminated by the Board, provided that you sign (and do not revoke)<br>a full separation agreement and release of claims (“Separation Agreement”) that the Company may provide in its<br>sole discretion in a form satisfactory to the Company and you which becomes irrevocable no later than sixty (60) days following your termination<br>of appointment and you remain in full compliance with such Separation Agreement, then the Company will pay you an amount equal to two<br>(2) months of your Annual Base Salary as severance, payable in a lump sum within sixty (60) days of the date your release of claims under<br>the Separation Agreement becomes irrevocable (provided that if any amount of the severance payment described herein constitutes nonqualified<br>deferred compensation under section 409A of the United States Internal Revenue Code, and the sixty (60) day period for providing the Separation<br>Agreement begins in one calendar year and ends in the next, then the amount of such severance payment that constitutes nonqualified deferred<br>compensation under section 409A of the Code shall be payable in the second calendar year (which payment will be subject to all legally<br>required withholdings)). For purposes of this paragraph, no severance shall be due if your service to the Board is terminated by the shareholders<br>of the Company or if the Board terminates you with Cause. |
| --- | --- |
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| c. | As used in this Agreement, Cause means any: (a) willful failure by you to perform your duties and responsibilities<br>to the Company after written notice thereof and a failure to remedy such failure within ten (10) days of such notice; (b) commission by<br>you of any act of fraud, embezzlement, or any other willful misconduct that has caused or is reasonably expected to cause material injury<br>or reputational harm to the Company; (c) unauthorized use or disclosure by you of any confidential information of the Company or any other<br>party to whom you owe an obligation of nonuse and nondisclosure as a result of your relationship with the Company; (d) abuse of alcohol<br>or drugs; or (e) breach by you of any of your obligations under this Agreement or any other written agreement with the Company after written<br>notice thereof and, if capable of being remedied, a failure to remedy such breach within ten (10) days of such notice. |
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10. GoverningLaw; Arbitration. All questions with respect to the construction and/or enforcement of this Agreement, and the rights and obligations of the parties hereunder, shall be determined in accordance with the law of the State of New York. All disputes with respect to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the American Arbitration Association at its New York office in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be New York law. The seat of arbitration shall be in New York. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in English. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
11. EntireAgreement; Amendment; Waiver; Counterparts. This Agreement expresses the entire understanding with respect to the subject matter hereof and supersedes and terminates any prior oral or written agreements with respect to the subject matter hereof. Any term of this Agreement may be amended and observance of any term of this Agreement may be waived only with the written consent of the parties hereto. Waiver of any term or condition of this Agreement by any party shall not be construed as a waiver of any subsequent breach or failure of the same term or condition or waiver of any other term or condition of this Agreement. The failure of any party at any time to require performance by any other party of any provision of this Agreement shall not affect the right of any such party to require future performance of such provision or any other provision of this Agreement. This Agreement may be executed in separate counterparts each of which will be an original and all of which taken together will constitute one and the same agreement, and may be executed using facsimiles of signatures, and a facsimile of a signature shall be deemed to be the same, and equally enforceable, as an original of such signature.
12. Indemnification. The Company shall, to the maximum extent provided under applicable law, indemnify and hold you harmless from and against any expenses, including reasonable attorney’s fees, judgments, fines, settlements and other legally permissible amounts (“Losses”), incurred in connection with any proceeding arising out of, or related to, your performance of your Duties, other than any such Losses incurred as a result of your gross negligence or willful misconduct. The Company shall advance to you any expenses, including reasonable attorneys’ fees and costs of settlement, incurred in defending any such proceeding to the maximum extent permitted by applicable law. Such costs and expenses incurred by you in defense of any such proceeding shall be paid by the Company in advance of the final disposition of such proceeding promptly upon receipt by the Company of (a) written request for payment; (b) appropriate documentation evidencing the incurrence, amount and nature of the costs and expenses for which payment is being sought; and (c) an undertaking adequate under applicable law made by or on your behalf to repay the amounts so advanced if it shall ultimately be determined pursuant to any non-appealable judgment or settlement that you are not entitled to be indemnified by the Company.
**13. Acknowledgement.**You accept this Agreement subject to all the terms and provisions of this Agreement. You agree to accept as binding, conclusive, and final all decisions or interpretations of the Board of any questions arising under this Agreement. Notwithstanding anything to the contrary contained in this Agreement, nothing shall prohibit you from exercising your fiduciary duties as Director of the Company.
[Signature Page Follows]
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The Agreement has been executed and delivered by the undersigned and is made effective as of the date set first set forth above.
| Sincerely, | |
|---|---|
| ELEVAI LABS, INC. | |
| By: | /s/ Dr. Jordan Plews |
| Dr. Jordan Plews | |
| Chief Officer | |
| AGREED AND ACCEPTED: | |
| --- | |
| /s/ Braden Lichti |
Braeden Lichti
c/o NorthStrive Companies Inc.
Exhibit 10.4
TERMINATION AGREEMENT OF
THE ADVISORY AGREEMENT
This Termination Agreement is dated as of June 21, 2024 (the “Termination Agreement”), by and between Braeden Lichti (“Advisor”), and Elevai Labs Inc., a Delaware corporation (the “Company”, together the “Parties”, and each, a “Party”).
WHEREAS, Advisor and the Company entered into an Advisory Agreement effective February 1, 2023 (the “ Advisory Agreement”), pursuant to which the Advisor conditionally agreed to enter into an advisory relationship with the Company as described therein;
WHEREAS, pursuant to the terms of Advisory Agreement, either party may terminate the Advisory Agreement upon at least ten (10) days prior written notice to the other party (the “Notice”);
WHEREAS, pursuant to the terms of Advisory Agreement, the parties may waive any provision under that Advisory Agreement so long as both parties agree to such a waiver of the Advisory Agreement in an executed form (the “Waiver”);
WHEREAS, the Parties hereto desire to terminate the Advisory Agreement subject to Waiver of the Notice (the “Waived Notice”), without any effect to the existing equity awards granted to Mr. Lichti on February 9, 2021 pursuant to the 2020 equity incentive plan of the Company consisting of 29,167 unvested nonstatutory stock options as of the Termination Date (as defined herein) (the “Existing EquityAwards”) which shall continue to vest in accordance with that February 9, 2021 stock option agreement as inducement for the termination of the Advisory Agreement, on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Definitions. Capitalized terms used and not defined in this Termination Agreement have the respective meanings assigned to them in the Advisory Agreement.
Termination of the Advisory Agreement. Subject to the Waived Notice and pursuant to the terms and conditions of this Termination Agreement, the Advisory Agreement is hereby terminated by mutual agreement of the Parties (and not due to the breach of the Advisory Agreement by either Party) as of December 8, 2023 (the “Termination Date”). From and after the Termination Date, the Advisory Agreement will be of no further force or effect, and the rights and obligations of each of the Parties thereunder shall terminate notwithstanding the perpetual existence of the Existing Equity Awards.
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Mutual Release. In consideration of the covenants, agreements and undertakings of the Parties under this Termination Agreement, each Party, on behalf of itself and its respective present and former direct and indirect parents, subsidiaries and affiliates and their respective officers, directors, shareholders, members, managers, partners, employees and their respective successors and assigns (collectively, “Releasors”) hereby releases, waives and forever discharges and covenants not to sue the other Party and its respective present and former, direct and indirect parents, subsidiaries, and affiliates, employees, officers, directors, shareholders, members, managers, partners agents, representatives, and their respective successors and assigns (collectively, “Releasees”), of and from any and all actions, causes of action, suits, losses, liabilities, rights, debts, dues, sums of money, accounts, reckonings, obligations, costs, expenses, liens, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands, of every kind and nature whatsoever, whether now known or unknown, foreseen or unforeseen, matured or unmatured, suspected or unsuspected, in law, admiralty or equity (collectively, “Claims”), which any of such Releasors ever had, now have, or hereafter can, shall, or may have against any of such Releasees for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of time through the date of this Termination Agreement arising out of or relating to the Engagement Agreement, except for any Claims relating to rights and obligations preserved by, created by or otherwise arising out of this Termination Agreement (including any surviving indemnification or other obligations under the Engagement Agreement).
Representations and Warranties. Each Party hereby represents and warrants to the other Party that:
(a) It has the full right, power and authority to enter into this Termination Agreement and to perform its obligations hereunder.
(b) The execution of this Termination Agreement by the individual whose signature is set forth at the end of this Termination Agreement on behalf of such Party, and the delivery of this Termination Agreement by such Party, have been duly authorized by all necessary action on the part of such Party.
(c) This Termination Agreement has been executed and delivered by such Party and (assuming due authorization, execution, and delivery by the other Party hereto) constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
Confidentiality. Subject to the terms and conditions of Section 6 and except as may be required by applicable law or regulation or order, request, demand, subpoena or requirement of any court or regulator or supervisory authority, including but not limited to, FINRA or the Securities and Exchange Commission, each Party acknowledges the confidential nature of the terms and conditions of this Termination Agreement (collectively, the “Confidential Information”) and agrees that it shall not (a) disclose any of such Confidential Information to any person or entity, except to such Party’s affiliates, employees, advisors and other representatives who need to know the Confidential Information to assist such Party, or act on its behalf, to exercise its rights or perform its obligations under this Termination Agreement, or (b) use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Termination Agreement. Each Party shall be responsible for any breach of this Section 5 caused by any of its affiliates, employees, advisors, or other representatives. Notwithstanding the foregoing, if any Confidential Information is permissibly disclosed pursuant to Section 6, such information will no longer be deemed “Confidential Information” for the purposes of this Section 5.
Publicity and Announcements. Neither Party shall (orally or in writing) independently disclose or issue any press release or make any other public statement, or otherwise communicate with the media, concerning the existence of this Termination Agreement or the subject matter hereof, without the prior written approval of the other Party, except to the extent that such Party is required to make any public disclosure or filing with respect to the subject matter of this Termination Agreement (i) by applicable law or regulation, or (ii) pursuant to any rules or regulations of any securities exchange of which the securities of such party or any of its affiliates are listed or traded or (iii) pursuant to any order, request, demand, subpoena or requirement of any court or regulator or supervisory authority, including but not limited to, Nasdaq or the Securities and Exchange Commission, or (iv) in connection with enforcing its rights under this Termination Agreement.
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Miscellaneous.
(a) All notices, requests, consents, claims, demands, waivers, summons and other legal process, and other similar types of communications hereunder (each, a “Notice”) must be in writing and addressed to the relevant Party at the address set forth below (or to such other address that may be designated by the receiving Party from time to time in accordance with this Section 7(a)). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of this Section 7(a).
(b) Notice shall be sent to the Company at:
Elevai Labs Inc.
Graydon Bensler, Chief Financial Officer
120 Newport Center Drive
Suite 250, Newport Beach, CA 92660
Notice shall be sent to the Advisor at:
Braeden Lichti
14781 Pomerado Road, #199 Poway, CA 92064
(c) This Termination Agreement and all related documents, and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of New York, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York. No legal suit, action, or proceeding arising out of or relating to this Termination Agreement or the transactions contemplated hereby (each, a “Related Proceeding”) may be commenced, prosecuted, or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts (collectively, the “Specified Courts”) shall have jurisdiction over the adjudication of any Related Proceeding, and the Parties to this Termination Agreement hereby irrevocably consent to the exclusive jurisdiction the Specified Courts and personal service of process with respect thereto. The Parties to this Termination Agreement hereby irrevocably waive any objection to the laying of the venue of any Related Proceeding in the Specified Courts and irrevocably waive and agree not to plead or claim in any Specified Court that any Related Proceeding brought in any Specified Court has been brought in an inconvenient forum.
(d) This Termination Agreement and each of the terms and provisions hereof may only be amended, modified, waived or supplemented by an agreement in writing signed by each Party.
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(e) Neither Party may assign, transfer or delegate any or all of its rights or obligations under this Termination Agreement without the prior written consent of the other Party. No assignment will relieve the assigning Party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing will be null and void. This Termination Agreement will inure to the benefit of and be binding upon each of the Parties and each of their respective permitted successors and permitted assigns.
(f) This Termination Agreement may be executed in counterparts, each of which is deemed an original, but all of which constitutes one and the same agreement. Delivery of an executed counterpart of this Termination Agreement electronically or by facsimile shall be effective as delivery of an original executed counterpart of this Termination Agreement.
(g) For purposes of this Termination Agreement, (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”;(ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Termination Agreement as a whole; (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (v) words denoting any gender include all genders. The Parties drafted this Termination Agreement without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(h) The headings in this Termination Agreement are for reference only and do not affect the interpretation of this Termination Agreement.
(i) Each of the Parties shall, and shall cause its respective affiliates to, from time to time at the request of the other Parties, without any additional consideration, furnish such further information or assurances, execute and deliver such additional documents, instruments and conveyances, and take such other actions and do such other things, as may be reasonably necessary to carry out the provisions of this Termination Agreement and give effect to the transactions contemplated hereby.
(j) Each Party acknowledges and agrees that (i) a breach or threatened breach by such Party of any of its obligations under this Termination Agreement would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (ii) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party will, in addition to any and all other rights and remedies that may be available to such Party at law, in equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that it shall not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 7(j).
(k) This Termination Agreement constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matters.
(l) Each Party shall pay its own costs and expenses in connection with the drafting, negotiation, and execution of this Termination Agreement (including the fees and expenses of its advisors, accounts and legal counsel).
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IN WITNESS WHEREOF, the Parties have executed this Termination Agreement as of the date first written above.
| COMPANY: | |
|---|---|
| ELEVAI LABS INC. | |
| By: | /s/ Graydon Bensler |
| Name: | Graydon Bensler |
| Title: | Chief Financial Officer |
| Address: | 120 Newport Center Drive |
| Suite 250, Newport Beach, CA 92660 | |
| ADVISOR: | |
| By: | /s/ Braeden Lichti |
| Name: | Braeden Lichti |
| Address: | 14781 Pomerado Road, #199<br><br> <br>Poway, CA 92064 |
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