Form 8-K Clubhouse Media Group, For: May 27

 

Exhibit 10.1

 

Termination and Release Agreement

Dated as of May 27, 2022

 

This Termination and Release Agreement (this “Agreement”), dated as of the date first set forth above (the “Effective Date”), is entered into by and between Clubhouse Media Group, Inc., a Nevada corporation (the “Company”) and Dmitry Kaplun (the “Employee”). Each of the Company and Employee may be referred to herein individually as a “Party” and collectively as the “Parties”.

 

WHEREAS, the Parties are the parties to that certain Executive Employment Agreement dated as of October 7, 2021 (the “Employment Agreement”); and

 

WHEREAS, the Parties now desire to terminate the Employment Agreement and the Term (as defined in the Employment Agreement) pursuant to the terms and conditions herein;

 

NOW, THEREFORE, in consideration of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:

 

1.	Termination of Employment Agreement.

 

1.1.

As of the Effective Date, the Employment Agreements and the Term of the Employment Agreements are each hereby terminated by the mutual agreement of the Parties, and the Employment Agreement shall be null and void and of no further force or effect, other than as set forth below, provided, however, that the Parties acknowledge and agree that Section 19 of the Employment Agreement, and such provisions of the Employment Agreement as required to give effect thereto, shall survive such termination and shall remain in full force and effect.

 

1.2.

Other than certain payments being held in escrow pursuant to the Consulting Agreement by and between the Company and DM3 Global Media, Inc., an affiliated entity of Employee, Employee represents and warrants and agrees that Employee has been paid all compensation and other payments as required by the Employment Agreement, in each case through the Effective Date, and that Employee has no additional rights for any additional payments or issuances of any securities of the Company or any other form of compensation in connection therewith.

 

1.3.

Notwithstanding the termination of the Employment Agreement, the Parties acknowledge and agree that the provisions of Section 15 (Survival) of the Employment Agreement, and the sections of the Employment Agreement as referenced therein, shall survive such termination and shall remain in full force and effect in accordance with their terms.

 

1.4.

Employee understands and agrees that as of the Effective Date, Employee is no longer authorized to undertake any actions on behalf of the Company as set forth in the Employment Agreement.

 

1.5.

The Parties acknowledge and agree that the Parties are the parties to that certain Restricted Stock Award Agreement dated as of October 7, 2021 (the “RSAA”), which was entered into in connection with the Employment Agreement and pursuant to which RSAA Employee was granted certain shares of Restricted Stock (as defined in the RSAA), which were subject to vesting or forfeiture as set forth therein and in the Employment Agreement. As of the Effective Date, 29,412 shares of the Restricted Stock have vested in accordance with the terms of the RSAA (the “Vested Shares”). On the Effective Date, the Parties shall enter into the Redemption Agreement as attached hereto as Exhibit A (the “Redemption Agreement”), pursuant to which the Company shall redeem all of the Vested Shares for a total purchase price of $1.00. Notwithstanding anything to the contrary in the Employment Agreement or the RSAA, the remaining 29,412 shares of Restricted Stock are hereby forfeited and shall not vest. To the extent required, this Agreement shall be deemed an amendment of the RSAA. The provisions of the RSAA that are set forth therein as surviving any termination of Employee’s engagement by the Company shall survive in accordance with their terms.

 

 

2.	Release of Claims.

 

2.1.

Effective as of the Effective Date, the Company, for itself and its Affiliates (as defined below), whether an Affiliate as of the Effective Date or hereafter becoming an Affiliate, and for each of their respective predecessors, successors, assigns, heirs, representatives, and agents and for all related parties, and all persons acting by, through, under or in concert with any of them in both their official and personal capacities (collectively, the “Company Parties”) hereby irrevocably, unconditionally and forever release, discharge and remise Employee and Employee’s Affiliates (whether an Affiliate as of the Effective Date or later), and their respective predecessors, successors, assigns, heirs, representatives, and agents and for all related parties and all persons acting by, through, under or in concert with any of them in both their official and personal capacities (collectively, the “Employee Parties”), from all claims of any type and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, known or unknown, that any Company Party may have now or may have in the future, against any of the Employee Parties to the extent that those claims arose, may have arisen, or are based on events which occurred at any point in the past up to and including the Effective Date, including, without limitation, any such matters related to the Employment Agreement or the transactions contemplated therein, but excluding any claims arising out of or pertaining to this Agreement or the Redemption Agreement (collectively, the “Company Released Claims”). The Company represents and warrants that no Company Released Claim released herein has been assigned, expressly, impliedly, or by operation of law, and that all Company Released Claims released herein are owned by the Company, which has the respective sole authority to release them. The Company agrees that it shall forever refrain and forebear from commencing, instituting or prosecuting any lawsuit action or proceeding, judicial, administrative or otherwise collect or enforce any Company Released Claim which is released and discharged herein.

 

2.2.

Effective as of the Effective Date, Employee, for Employee and for the other Employee Parties, hereby irrevocably, unconditionally and forever releases, discharges and remises each Company Party, from all claims of any type and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, known or unknown, that any Employee Party may have now or may have in the future, against any of the Company Parties to the extent that those claims arose, may have arisen, or are based on events which occurred at any point in the past up to and including the Effective Date, including, without limitation, any such matters related to the Employment Agreement or the transactions contemplated therein, including all claims under all other federal, state and local discrimination provisions and all other statutory and common law causes of action relating in any way to Employee’s engagement by or separation from engagement by the Company, but excluding any claims arising out of or pertaining to this Agreement or the Redemption Agreement (collectively, and together with the claims arising pursuant to the laws as set forth below, the “Employee Released Claims”). Employee represents and warrants that no Employee Released Claim released herein has been assigned, expressly, impliedly, or by operation of law, and that all Employee Released Claims released herein are owned by Employee, who has the sole authority to release them. Employee agrees that Employee shall forever refrain and forebear from commencing, instituting or prosecuting any lawsuit action or proceeding, judicial, administrative or otherwise collect or enforce any Employee Released Claim which is released and discharged herein.

 

 

2.3.

For purposes herein, “Affiliate” shall mean, as to any person or entity (each, a “Person”), any other Person that, directly or indirectly, through one of more intermediaries, controls, is controlled by or is under common control with such Person. For purposes of the immediately preceding sentence, the term “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.

 

2.4.

Each of the Parties hereby waives any and all rights which it may have with respect to this Agreement or the subject matter hereof, under the provisions of Section 1542 of the Civil Code of the State of California as now worded and as hereafter amended, which section provides that:

 

“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

 

2.5.

It is understood and agreed by each of the Parties that the facts in respect to which this Agreement is executed may turn out to be other than or different from the facts in the respect now known or believed by each of the Parties to be true; and with such understanding and agreement, each Party expressly accepts and assumes the risk of facts being other than or different from the assumptions and perceptions as of any date prior to and including the date hereof, and agrees that this Agreement shall be in all respects effective and shall not be subject to termination or rescission by reasons of any such difference in facts, and subject to the terms and conditions herein.

 

3.	Covenant Not to File a Claim and Indemnification.

 

3.1.

The Company, on its own behalf and on behalf of the Company Parties, agrees not to file for itself or on behalf of any other Company Party, any claim, charge, complaint, action, or cause of action against any Employee Party related to the Company Released Claims, and agrees to indemnify and save harmless such Employee Parties from and against any and all losses, including, without limitation, the cost of defense and legal fees, occurring as a result of any claims, charges, complaints, actions, or causes of action made or brought by any such Company Party against any Employee Party in violation of the terms and conditions of this Agreement. In the event that any Company Party brings a suit against any Employee Party in violation of this covenant, the Company agrees to pay any and all costs of the Employee Parties, including attorneys’ fees, incurred by such Employee Parties in challenging such action. Any Employee Party is an intended third-party beneficiary of this Agreement.

 

 

3.2.

Employee, on behalf of Employee and on behalf of each of the Employee Parties, agrees not to file for Employee or on behalf of any Employee Party, any claim, charge, complaint, action, or cause of action against any Company Party related to the Employee Released Claims, and further agrees to indemnify and save harmless such Company Parties from and against any and all losses, including, without limitation, the cost of defense and legal fees, occurring as a result of any claims, charges, complaints, actions, or causes of action made or brought by any such Employee Party against any Company Party in violation of the terms and conditions of this Agreement. In the event that any Employee Party brings a suit against any Company Party in violation of this covenant, Employee agrees to pay any and all costs of the Company Parties, including attorneys’ fees, incurred by such Company Parties in challenging such action. Any Company Party is an intended third-party beneficiary of this Agreement.

 

4.	Affirmations.

 

4.1.

The Company affirms that it has not filed, caused to be filed, or presently is a party to any claim, complaint, or action against any Employee Party in any forum or form and should any such charge or action be filed by any Company Party or by any other person or entity on any Company Party’s behalf involving matters covered by Section 2.1, the Company agrees to promptly give the agency or court having jurisdiction a copy of this Agreement and inform them that any such claims any such Company Party might otherwise have had are now settled.

 

4.2.

Employee affirms that Employee has not filed, caused to be filed, or presently is a party to any claim, complaint, or action against any Company Party in any forum or form and should any such charge or action be filed by any Employee Party or by any other person or entity on any Employee Party’s behalf involving matters covered by Section 2.2, Employee agrees to promptly give the agency or court having jurisdiction a copy of this Agreement and inform them that any such claims any such Employee Party might otherwise have had are now settled.

 

4.3.

This is a compromise and settlement of potential or actual disputed claims and is made solely for the purpose of avoiding the uncertainty, expense, and inconvenience of future litigation. Neither this Agreement nor the furnishing of any consideration concurrently with the execution hereof shall be deemed or construed at any time or for any purpose as an admission by any Party of any liability or obligation of any kind. Any such liability or wrongdoing is expressly denied. The Parties acknowledge that this Agreement was reached after good faith settlement negotiations and after each Party had an opportunity to consult legal counsel. This Agreement extends to, and is for the benefit of, the Parties, their respective successors, assigns and agents and anyone claiming by, through or under the Parties.

 

 

5.

Non-Disparagement. Following the date hereof, neither Party shall make any statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action, which may, directly or indirectly, disparage the other Party or any of such other Party’s Affiliates or their respective officers, directors, employees, advisors, businesses or reputations. Notwithstanding the foregoing, nothing in this Agreement shall preclude a Party from making truthful statements that are required by applicable law, regulation or legal process.

 

6.	Representations and Warranties of the Parties. Each Party (the “Representing Party”) represents and warrants to the other Party as set forth in this Section 6.

 

6.1.

Due Authority; No Violation. Representing Party has all requisite rights and authority or the capacity to execute, deliver and perform its obligations under this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by such Representing Party, and no other proceedings are necessary to authorize the execution, delivery and performance of this Agreement or the transactions contemplated hereby or thereby on the part of such Representing Party. The execution, delivery and performance of this Agreement will not (x) violate, conflict with, or result in the breach, acceleration, default or termination of, or otherwise give any other contracting party the right to terminate, accelerate, modify or cancel any of the terms, provisions, or conditions of any material agreement or instrument to which such Representing Party is a party or by which such Representing Party’s assets may be bound or (y) constitute a violation of any material applicable law, rule or regulation, or of any judgment, order, injunctive award or decree of any governmental authority applicable to such Representing Party or (z) conflict with, result in the breach or termination of any provision of, or constitute a default under (in each case whether with or without the giving of notice or the lapse of time, or both) any order, judgment, arbitration award, or decree to which such Representing Party is a party or by which it or any of its assets or properties are bound.

 

6.2.

Approvals. No approval, authority, or consent of or filing by such Representing Party with, or notification to, any governmental authority, is necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated herein.

 

6.3.

Enforceability. This Agreement has been duly executed and delivered by such Representing Party and, assuming that this Agreement constitutes the legal, valid and binding obligation of the other Party, constitutes the legal, valid, and binding obligation of such Representing Party, enforceable against such Representing Party in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally.

 

7.	Miscellaneous.

 

7.1.

Expenses. Other than as specifically set forth herein, each of the Parties shall pay its own costs that it incurs incident to the preparation, execution, and delivery of this Agreement and the performance of any related obligations, whether or not the transactions contemplated by this Agreement shall be consummated.

 

 

7.2.

Consequential Damages. EACH PARTY HERETO WAIVES ANY AND ALL CLAIMS AGAINST THE OTHER FOR ANY LOSS, COST, DAMAGE, EXPENSE, INJURY OR OTHER LIABILITY WHICH IS IN THE NATURE OF INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHICH ARE SUFFERED OR INCURRED AS THE RESULT OF, ARISE OUT OF, OR ARE IN ANY WAY CONNECTED TO THE PERFORMANCE OF THE OBLIGATIONS UNDER THIS AGREEMENT.

 

7.3.

Representations and Warranties. All representations, warranties, and agreements made by the Parties pursuant to this Agreement shall survive the consummation of the transactions contemplated herein until the expiration of the applicable statute of limitations.

 

7.4.

Effect of Waiver. The waiver by either Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach hereof. No waiver shall be valid unless in writing.

 

7.5.

Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. No Party shall have any power or any right to assign or transfer, in whole or in part, this Agreement, or any of its rights or any of its obligations hereunder, including, without limitation, any right to pursue any claim for damages pursuant to this Agreement or the transactions contemplated herein, or to pursue any claim for any breach or default of this Agreement, or any right arising from the purported assignor’s due performance of its obligations hereunder, without the prior written consent of each of the other Parties and any such purported assignment in contravention of the provisions herein shall be null and void and of no force or effect.

 

7.6.

No Third-Party Rights. Except as expressly provided in this Agreement, this Agreement is intended solely for the benefit of the Parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person or entity other than the Parties hereto.

 

7.7.

Entire Agreement; Amendment. This Agreement, the Redemption Agreement and the provisions of the Employment Agreement which survive the termination as set forth herein, set forth the entire agreement of the Parties hereto and supersede any and all prior agreements and understandings concerning the Employee’s employment by the Company. This Agreement may be changed only by a written document signed by the Employee and the Company.

 

7.8.

Severability. If any one or more of the provisions, or portions of any provision, of the Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions or parts hereof shall not in any way be affected or impaired thereby.

 

7.9.

Governing Law and Waiver of Jury Trial.

 

7.9.1.

All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined, and this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of California, and for all purposes shall be construed in accordance with the laws of such state, without giving effect to the choice of law provisions of such state.

 

 

7.9.2.

each Party agrees that all legal proceedings concerning this Agreement shall be commenced in the state and federal courts sitting in Los Angeles County, California (the “Selected Courts”). Each Party hereto hereby irrevocably submits to the exclusive jurisdiction of the Selected Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of the rights of a Party under this AGREEMENT, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such Selected Courts, or such Selected Courts are improper or inconvenient venue for such proceeding. Each Party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding 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 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 applicable law.

 

7.9.3.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.9.3.

 

7.9.4.

If any Party shall commence an action or proceeding to enforce any provisions of this Agreement, then the prevailing Party in such action or proceeding shall be reimbursed by the other Party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.

 

 

7.10.

Notices. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other Party, or by registered or certified mail, return receipt requested, postage prepaid, or by email with return receipt requested and received or nationally recognized overnight courier service, addressed as set forth below or to such other address as either Party shall have furnished to the other in writing in accordance herewith. All notices, requests, demands and other communications shall be deemed to have been duly given (i) when delivered by hand, if personally delivered, (ii) when delivered by courier or overnight mail, if delivered by commercial courier service or overnight mail, and (iii) on receipt of confirmed delivery, if sent by email.

 

If to the Company:

 

Clubhouse Media Group, Inc.

Attn: Amir Ben-Yohanan

3651 Lindell Road, D517

Las Vegas, NV 89103

Email: [email protected]

 

With a copy, which shall not constitute notice, to:

 

Anthony L.G., PLLC

Attn: John Cacomanolis

625 N. Flagler Drive, Suite 600

West Palm Beach, FL 33401

Email: [email protected]

 

If to Employee, to the address and email address on file for the Employee in the books and records of the Company.

 

7.11.

Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.

 

7.12.

Counsel. The Parties acknowledge and agree that Anthony L.G., PLLC (“Counsel”) has acted as legal counsel to the Company, and that Counsel has prepared this Agreement at the request of the Company, and that Counsel is not legal counsel to Employee individually. Each of the Parties acknowledges and agrees that they are aware of, and have consented to, the Counsel acting as legal counsel to the Company and preparing this Agreement, and that Counsel has advised each of the Parties to retain separate counsel to review the terms and conditions of this Agreement and the other documents to be delivered in connection herewith, and each Party has either waived such right freely or has otherwise sought such additional counsel as it has deemed necessary. Each of the Parties acknowledges and agrees that Counsel does not owe any duties to Employee in Employee’s individual capacity in connection with this Agreement and the transactions contemplated herein. Each of the Parties hereby waives any conflict of interest which may apply with respect to Counsel’s actions as set forth herein, and the Parties confirm that the Parties have previously negotiated the material terms of the agreements as set forth herein.

 

7.13.

Rule of Construction. The general rule of construction for interpreting a contract, which provides that the provisions of a contract should be construed against the Party preparing the contract, is waived by the Parties hereto. Each Party acknowledges that such Party was represented by separate legal counsel in this matter who participated in the preparation of this Agreement or such Party had the opportunity to retain counsel to participate in the preparation of this Agreement but elected not to do so.

 

7.14.

Execution in Counterparts, Electronic Transmission. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. The signature of any Party which is transmitted by any reliable electronic means such as, but not limited to, a photocopy, electronically scanned or facsimile machine, for purposes hereof, is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature or an original document.

 

[Signatures appear on following page]

 

 

IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the Effective Date.

 

	Clubhouse Media Group, Inc.
	By:	/s/ Amir Ben-Yohanan
	Name:	Amir Ben-Yohanan
	Title:	Chief Executive Officer
	Employee: Dmitry Kaplun
	By:	/s/ Dmitry Kaplun
	Name:	Dmitry Kaplun

 

 

Exhibit 10.2

 

REDEMPTION AGREEMENT

 

May 27, 2022

 

This Redemption Agreement (this “Agreement”), dated as of the date and time first set forth above (the “Effective Date”), is entered into by and between Clubhouse Media Group, Inc., a Nevada corporation (the “Company”) and Dmitry Kaplun (“Stockholder”). The Company and Stockholder may be referred to herein individually as a “Party” and collectively as the “Parties”.

 

RECITALS

 

WHEREAS, Stockholder is the owner of certain shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”); and

 

WHEREAS, pursuant to the terms and conditions of this Agreement, Stockholder desires to sell, and the Company desires to purchase, all of the Stockholder’s rights, title, and interest in and to 29,412 shares of Common Stock (the “Shares”) as further described herein; and

 

WHEREAS, in connection with the redemption of the Shares, the Parties shall undertake such further actions as set forth herein.

 

NOW, THEREFORE, in consideration of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:

 

1.

Agreement to Purchase and Sell. Subject to the terms and conditions of this Agreement, Stockholder shall sell, assign, transfer, convey, and deliver to the Company, and the Company shall accept and purchase, the Shares and any and all rights in the Shares to which Stockholder is entitled, and by doing so Stockholder shall be deemed to have assigned all of Stockholder’s rights, titles and interest in and to the Shares to the Company. The redeemed Shares shall be returned to the status of authorized but unissued shares of Common Stock. This Agreement and the transactions as set forth herein are entered into pursuant to the transactions as set forth in the Termination and Release Agreement entered into by the Parties on the Effective Date (the “Termination Agreement”), and are subject to the terms and conditions herein.

 

2.	Consideration. The consideration for the acquisition of the Shares shall be $1.00 in total (the “Purchase Price”).

 

3.	Closing; Deliveries; Additional Actions.

 

3.1.

Closing. The purchase and sale of the Shares (the “Closing”) shall be held on the date hereof.

 

3.2.

Deliveries at Closing. At the Closing, Stockholder shall deliver to the Company the stock power in the form as attached hereto to as Exhibit A, and such other documents as may be required under applicable law or reasonably requested by the Company, and the Company shall deliver to Stockholder the Purchase Price via check.

 

 

4.	Representations and Warranties of the Stockholder. Stockholder represents and warrants to the Company as set forth below.

 

4.1.

Organization and Standing. The Stockholder is natural person and has all requisite power and authority to own its properties and conduct its business as it is now being conducted. The nature of the business and the character of the properties the Stockholder owns or leases do not make licensing or qualification of the Stockholder as a foreign entity necessary under the laws of any other jurisdiction, except to the extent such licensing or qualification have already been obtained

 

4.2.

Right and Title to Shares. Stockholder legally and beneficially owns the Shares and no other person or entity has any rights therein or thereto. There are no liens or other encumbrances of any kind on the Shares and Stockholder has the sole right to dispose of the Shares. There are no outstanding options, warrants or other similar agreements with respect to the Shares.

 

4.3.

Due Authority; No Violation. Stockholder has all requisite rights and authority or the capacity to execute, deliver and perform Stockholder’s obligations under this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of Stockholder, and no other proceedings on the part of Stockholder are necessary to authorize the execution, delivery and performance of this Agreement or the transactions contemplated hereby or thereby on the part of Stockholder. The execution, delivery and performance of this Agreement will not (x) violate, conflict with, or result in the breach, acceleration, default or termination of, or otherwise give any other contracting party the right to terminate, accelerate, modify or cancel any of the terms, provisions, or conditions of any material agreement or instrument to which Stockholder is a party or by which Stockholder or Stockholder’s assets may be bound or (y) constitute a violation of any material applicable law, rule or regulation, or of any judgment, order, injunctive award or decree of any governmental authority applicable to Stockholder or (z) conflict with, result in the breach or termination of any provision of, or constitute a default under (in each case whether with or without the giving of notice or the lapse of time, or both) any order, judgment, arbitration award, or decree to which such Stockholder is a party or by which it or any of Stockholder’s assets or properties are bound.

 

4.4.

Approvals. No approval, authority, or consent of or filing by Stockholder with, or notification to, any governmental authority, is necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated herein.

 

4.5.

Enforceability. This Agreement has been duly executed and delivered by Stockholder and, assuming that this Agreement constitutes the legal, valid and binding obligation of the Company, constitutes the legal, valid, and binding obligation of Stockholder, enforceable against Stockholder in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally.

 

 

5.	Representations and Warranties of The Company. The Company represents and warrants to Stockholder as set forth below.

 

5.1.

Organization and Standing. The Company is duly organized, validly existing, and in good standing under the laws of the State of Nevada and has all requisite power and authority to own its properties and conduct its business as it is now being conducted. The nature of the business and the character of the properties the Company owns or leases do not make licensing or qualification of the Company as a foreign entity necessary under the laws of any other jurisdiction, except to the extent such licensing or qualification have already been obtained.

 

5.2.

Due Authority; No Violation. The Company has all requisite rights and authority or the capacity to execute, deliver and perform its obligations under this Agreement. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Company, and no other proceedings on the part of the Company are necessary to authorize the execution, delivery and performance of this Agreement or the transactions contemplated hereby or thereby on the part of the Company. The execution, delivery and performance of this Agreement will not (x) violate, conflict with, or result in the breach, acceleration, default or termination of, or otherwise give any other contracting party the right to terminate, accelerate, modify or cancel any of the terms, provisions, or conditions of any material agreement or instrument to which the Company is a party or by which it or its assets may be bound or (y) constitute a violation of any material applicable law, rule or regulation, or of any judgment, order, injunctive award or decree of any governmental authority applicable to the Company or (z) conflict with, result in the breach or termination of any provision of, or constitute a default under (in each case whether with or without the giving of notice or the lapse of time, or both) the Company’s organizational documents, or any order, judgment, arbitration award, or decree to which such the Company is a party or by which it or any of its assets or properties are bound.

 

5.3.

Approvals. No approval, authority, or consent of or filing by the Company with, or notification to, any governmental authority, is necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated herein.

 

5.4.

Enforceability. This Agreement has been duly executed and delivered by the Company and, assuming that this Agreement constitutes the legal, valid and binding obligation of Stockholder, constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally.

 

6.	Covenants and Agreements.

 

6.1.

Each of the Parties, as promptly as practicable, shall make, or cause to be made, all filings and submissions under laws applicable to it and its affiliates, as may be required for it to consummate the transactions contemplated hereby and shall use its commercially reasonable efforts to obtain, or cause to be obtained, all other authorizations, approvals, consents and waivers from all persons and governmental authorities necessary to be obtained by it or its affiliates, in order for it to consummate such transactions, at the cost of the Party required to file or submit the same. Notwithstanding anything to the contrary herein, nothing herein shall require, or be construed to require, any Party to agree to hold separate or to divest any of the businesses, product lines or assets.

 

 

6.2.

Each Party shall promptly inform the other Party of any material communication from any governmental authority regarding any of the transactions contemplated by this Agreement and shall promptly furnish the other Party with copies of substantive notices or other communications received from any third party or any governmental authority with respect to such transactions. Each Party shall agree on the content of any proposed substantive written communication or submission or any oral communication to any governmental authority. If any Party or any affiliate thereof receives a request for additional information or documentary material from any such governmental authority with respect to the transactions contemplated by this Agreement, then such Party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. The Parties shall each, to the extent practicable, provide the other Party and its counsel with advance notice of and the opportunity to participate in any substantive discussion, telephone call or meeting with any governmental authority in respect of any filing, investigation or other inquiry in connection with the transactions contemplated by this Agreement and to participate in the preparation for such discussion, telephone call or meeting, to the extent not prohibited by the governmental authority.

 

6.3.

Each of the Parties shall execute such documents and perform such further acts as may be reasonably required to carry out the provisions hereof and the actions contemplated hereby.

 

7.	Miscellaneous.

 

7.1.

Further Assurances. From time to time, whether at or following the Closing, each Party shall make reasonable commercial efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable, including as required by applicable laws, to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement.

 

7.2.

Expenses. Each of the Parties shall pay its own costs that it incurs incident to the preparation, execution, and delivery of this Agreement and the performance of any related obligations, whether or not the transactions contemplated by this Agreement shall be consummated.

 

7.3.

Fees. Each Party agrees to pay the costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing Party in litigation, arbitration, administrative proceeding or any other proceeding related to the enforcement or interpretation of any of the terms of this Agreement.

 

7.4.

Consequential Damages. EACH PARTY HERETO WAIVES ANY AND ALL CLAIMS AGAINST THE OTHER FOR ANY LOSS, COST, DAMAGE, EXPENSE, INJURY OR OTHER LIABILITY WHICH IS IN THE NATURE OF INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHICH ARE SUFFERED OR INCURRED AS THE RESULT OF, ARISE OUT OF, OR ARE IN ANY WAY CONNECTED TO THE PERFORMANCE OF THE OBLIGATIONS UNDER THIS AGREEMENT.

 

7.5.

Representations and Warranties. All representations, warranties, and agreements made by the Parties pursuant to this Agreement shall survive the consummation of the transactions contemplated herein until the expiration of the applicable statute of limitations.

 

7.6.

Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be given in accordance with the provisions of the Termination Agreement.

 

 

7.7.

Governing Law and Waiver of Jury Trial.

 

7.7.1.

All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined, and this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, and for all purposes shall be construed in accordance with the laws of such state, without giving effect to the choice of law provisions of such state.

 

7.7.2.

each Party agrees that all legal proceedings concerning this Agreement shall be commenced in the state and federal courts sitting in Los Angeles County, California (the “Selected Courts”). Each Party hereto hereby irrevocably submits to the exclusive jurisdiction of the Selected Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of the rights of a Party under this AGREEMENT, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such Selected Courts, or such Selected Courts are improper or inconvenient venue for such proceeding. Each Party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding 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 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 applicable law.

 

7.7.3.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.7.3.

 

7.7.4.

If any Party shall commence an action or proceeding to enforce any provisions of this Agreement, then the prevailing Party in such action or proceeding shall be reimbursed by the other Party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.

 

 

7.8.

Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. No Party shall have any power or any right to assign or transfer, in whole or in part, this Agreement, or any of its rights or any of its obligations hereunder, including, without limitation, any right to pursue any claim for damages pursuant to this Agreement or the transactions contemplated herein, or to pursue any claim for any breach or default of this Agreement, or any right arising from the purported assignor’s due performance of its obligations hereunder, without the prior written consent of the other Party and any such purported assignment in contravention of the provisions herein shall be null and void and of no force or effect.

 

7.9.

No Third Party Beneficiaries. Nothing in this Agreement shall confer any rights, remedies or claims upon any Person or entity not a party or a permitted assignee of a party to this Agreement.

 

7.10.

Specific Performance. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by them in accordance with the terms hereof or were otherwise breached and that each Party shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of the provisions hereof and to enforce specifically the terms and provisions hereof, without the proof of actual damages, in addition to any other remedy to which they are entitled at law or in equity. Each Party agrees to waive any requirement for the security or posting of any bond in connection with any such equitable remedy, and agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that (a) any other Party has an adequate remedy at law, or (b) an award of specific performance is not an appropriate remedy for any reason at law or equity.

 

7.11.

Entire Agreement. This Agreement and the Termination Agreement represent the entire understanding and agreement between the Parties regarding the subject matter hereof and supersede all prior agreements, representations, warranties, and negotiations between the Parties. This Agreement may be amended, supplemented, or changed only by an agreement in writing that makes specific reference to this Agreement or the agreement delivered pursuant to it, and must be signed by all of the Parties. This Agreement may not be amended by email or other electronic communications.

 

7.12.

Interpretation. The Parties have jointly participated in the drafting and negotiation of this Agreement and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption of burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any provision in this Agreement.

 

7.13.

Severability. Whenever possible, each provision of this Agreement shall be interpreted in a manner to be effective and valid under applicable law, but if one or more of the provisions of this Agreement is subsequently declared invalid or unenforceable, the invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions of this Agreement. In the event of the declaration of invalidity or unenforceability, this Agreement, as modified, shall be applied and construed to reflect substantially the intent of the Parties and achieve the same economic effect as originally intended by its terms. In the event that the scope of any provision to this Agreement is deemed unenforceable by a court of competent jurisdiction, or by an arbitrator, the Parties agree to the reduction of the scope of the provision as the court or arbitrator shall deem reasonably necessary to make the provision enforceable under the circumstances.

 

 

7.14.

Headings. The headings contained in this Agreement are intended solely for convenience and shall not affect the rights of the Parties.

 

7.15.

Counsel. The Parties acknowledge and agree that Anthony L.G., PLLC (“Counsel”) has acted as legal counsel to the Company, and that Counsel has prepared this Agreement at the request of the Company, and that Counsel is not legal counsel to Stockholder individually. Each of the Parties acknowledges and agrees that they are aware of, and have consented to, the Counsel acting as legal counsel to the Company and preparing this Agreement, and that Counsel has advised each of the Parties to retain separate counsel to review the terms and conditions of this Agreement and the other documents to be delivered in connection herewith, and each Party has either waived such right freely or has otherwise sought such additional counsel as it has deemed necessary. Each of the Parties acknowledges and agrees that Counsel does not owe any duties to Stockholder in Stockholder’s individual capacity in connection with this Agreement and the transactions contemplated herein. Each of the Parties hereby waives any conflict of interest which may apply with respect to Counsel’s actions as set forth herein, and the Parties confirm that the Parties have previously negotiated the material terms of the agreements as set forth herein.

 

7.16.

Waiver. Waiver of any term or condition of this Agreement by any Party shall only be effective if in writing and shall not be construed as a waiver of any subsequent breach or failure of the same term or condition, or a waiver of any other term or condition of this Agreement.

 

7.17.

Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. The signature of any Party which is transmitted by any reliable electronic means such as, but not limited to, a photocopy, electronically scanned or facsimile machine, for purposes hereof, is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature or an original document.

 

[Remainder of page intentionally left blank – Signature pages follow]

 

 

IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the Effective Date.

 

	Clubhouse Media Group, Inc.
	By:	/s/ Amir Ben-Yohanan
	Name:	Amir Ben-Yohanan
	Title:	Chief Executive Officer
	Stockholder: Dmitry Kaplun
	By:	/s/ Dmitry Kaplun
	Name:	Dmitry Kaplun

 

 

Exhibit A

 

IRREVOCABLE STOCK POWER

[Clubhouse Media Group, Inc.]

 

FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, Dmitry Kaplun (“Seller”) hereby assigns, transfers, and conveys to Clubhouse Media Group, Inc., a Nevada corporation (the “Company”), all of Seller’s right, title, and interest in and to 29,412 shares of common stock, par value $0.001 per share, of the Company, which are uncertificated, and hereby irrevocably appoints the Chief Executive Officer of the Company, as Seller’s attorney-in-fact to transfer said shares on the books of the Company, with full power of substitution in the premises.

 

Date: May 27, 2022

 

Seller Name: Dmitry Kaplun
By:
Name:	Dmitry Kaplun

 

 

Exhibit 99.1

 

Clubhouse Media Group, Inc. Announces Scott Hoey as New CFO, Dmitry Kaplun to Assume Consulting Role

 

LOS ANGELES, May 27, 2022 /PRNewswire/ — Clubhouse Media Group, Inc. (OTCMKTS: CMGR) (“CMGR”), an influencer-based social media firm and digital talent management agency, today announced that Scott Hoey will take over as Chief Financial Officer of CMGR, following the resignation of Dmitry Kaplun. Mr. Kaplun will become a financial consultant to the company.

 

“Dmitry has done a great job during his time with the company,” said Amir Ben-Yohanan, CEO of CMGR. “Under his strategic direction, the company accomplished very important objectives. We secured long-term funding, cut our cash burn, and streamlined financial reporting. Additionally, we built a world class sales team as we pivoted from high capital-intensive content houses to a digital agency business model. We wish Dmitry all the best going forward. Scott has been a valuable member of the CMGR team this past year and will be able to hit the ground running as CFO.”

 

“I feel good about what we were able to achieve as a company during my time here,” added Mr. Kaplun. “For family reasons, today I am stepping down as the CFO of the company. I want to thank Amir, the entire CMGR board, and the management team for their guidance during this time. The company will be in good hands with Scott Hoey as the new CFO, and I will stay on as a consultant to oversee the transition. I look forward to continuing my work with the management team to help the company going forward.”

 

“I’m grateful for this opportunity and for the amazing support I’ve received from the CMGR team,” said Mr. Hoey, CFO of CMGR. “I look forward to aiding in the growth of the operation for the benefit of the company and its shareholders.”

 

About Clubhouse Media Group, Inc.

 

CMGR offers management, production, and deal-making services to its handpicked influencers, a management division for individual influencer clients, and an investment arm for joint ventures and acquisitions for companies in the social media influencer space.

 

Follow CMGR on Twitter: https://twitter.com/ClubhouseCMGR.

 

Forward-Looking Statements

 

This release contains “forward-looking statements.” Forward-looking statements also may be included in other publicly available documents issued by CMGR and in oral statements made by our officers and representatives from time to time. These forward-looking statements are intended to provide management’s current expectations or plans for our future operating and financial performance, based on assumptions currently believed to be valid. They can be identified by the use of words such as “anticipate,” “intend,” “plan,” “goal,” “seek,” “believe,” “project,” “estimate,” “expect,” “strategy,” “future,” “likely,” “may,” “should,” “would,” “could,” “will” and other words of similar meaning in connection with a discussion of future operating or financial performance.

 

Examples of forward-looking statements include, among others, statements relating to future sales, earnings, cash flows, results of operations, uses of cash and other measures of financial performance.

 

Because forward-looking statements relate to the future, they are subject to inherent risks, uncertainties, and other factors that may cause CMGR’s actual results and financial condition to differ materially from those expressed or implied in the forward-looking statements, including those set forth in the Risk Factors section of CMGR’s Annual Report on Form 10-K filed with the Securities and Exchange Commission (“SEC”) on March 29, 2022 and our subsequent SEC filings, as amended or updated from time to time. Copies of CMGR’s filings with the SEC are available on the SEC’s website at www.sec.gov. Such risks, uncertainties and other factors include, but are not limited to economic conditions, changes in the laws or regulations, demand for CMGR’s products and services, the effects of competition and other factors that could cause actual results to differ materially from those projected or represented in the forward-looking statements. Any forward-looking information provided in this release should be considered with these factors in mind. We assume no obligation to update any forward-looking statements contained in this press release.

 

Contact:

 

[email protected]

 

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