Exhibit 10.6
STRATEGIC PARTNERSHIP AGREEMENT
THIS AGREEMENT is dated effective November 28, 2021 (the “Effective Date”)
BETWEEN:
DEVVIO, INC., a corporation incorporated under the laws of Delaware with an address at 6300 Riverside Plaza Ln NW, Suite 100, Albuquerque, NM, USA, 87120 (“Devvio”)
AND:
DEVVESG STREAMING, INC., a corporation incorporated under the laws of Delaware with an address at 1050 – 400 Burrard Street, Vancouver, BC, Canada V6C 3A6 (“DESI”)
(the “Parties”, and each a “Party”)
WHEREAS
(A)
Devvio created, maintains and owns the Platform where environmental, social and governance (“ESG”) Data is created, securely stored and tracked with full provenance under Devvio’s blockchain, and
also provides affiliated services through various partnerships to improve ESG ratings (the “Platform” is further as defined in Section 1.1 below);
(B)
DESI carries on the Streaming Business (as further defined herein), which principally includes investing in energy saving or carbon emission reducing projects for the purpose of creating long term ownership rights to greenhouse gas
emission or climate change related credits or offsets, such as carbon, plastic, and methane credits (“Green Credits”), and managing the purchase and sale of Green Credits to parties looking to
improve their ESG ratings or to the general public through trading marketplaces;
(C)
The Parties wish for DESI to become Devvio’s principal business partner to source project financing for Devvio’s clients in connection with acquiring rights related to Green Credits;
(D)
Devvio and DESI also wish to work together to provide Devvio’s clients with carbon footprint reduction solutions through the purchase of Green Credits, and provide validation, storage and certification services to DESI for
its Green Credit assets, particularly where those efforts can lead to carbon offsets and Green Credits that DESI can leverage under the Streaming Business (altogether, the “Strategic
Partnership”); and
(E)
The Strategic Partnership will be created by certain obligations set out herein, which shall include: a share payment, a cash payment, a collaboration, a right of first refusal, and a license from Devvio to DESI for
perpetual use of the Platform and related Data to conduct the Streaming Business.
NOW THEREFORE IN CONSIDERATION OF the mutual premises and covenants herein, and other good and valuable consideration (the receipt and sufficiency of which is hereby mutually
acknowledged), the Parties agree as follows:
PART 1—INTERPRETATION
1.1
Definitions. In this Agreement, including the recitals, except as otherwise expressly provided or unless the context otherwise requires,
capitalized terms have the meaning ascribed to the phrase or phrases immediately preceding them or as follows:
(a)
“Applicable Law” means, in respect of any person, property, transaction, event or other matter, any law, statute, regulation,
code, ordinance, principle of common law or equity, municipal by-law, treaty or order, domestic or foreign, applicable to that person, property, transaction, event or other matter and all applicable requirements, requests, official directives,
rules, consents, approvals, authorizations, guidelines and policies of any governmental authority having or purporting to have authority over that Person, property, transaction, event or other matter and regarded by such governmental authority as
requiring compliance;
(b)
“Change of Control” means (i) any transaction (whether by purchase, merger or otherwise) whereby a person or persons acting
jointly or in concert directly or indirectly acquires the right to exercise more than 50% of the control or direction of the entity in any way whatsoever; (ii) the amalgamation, consolidation or merger with or into any other person or entity,
unless the holders of votes immediately prior to such amalgamation, consolidation or merger have the right to exercise more than 50% of the control or direction of the successor entity upon completion of the amalgamation, consolidation or
merger; or (iii) any conveyance, transfer, sale, lease or other disposition of all or substantially all of the assets and properties, taken as a whole, to another arm’s length person or entity;
(c)
“Confidential Information” means any information in any form whatsoever (including written, oral, visual, sensory,
electronic, tangible or intangible) that is (i) by its nature or the nature of its disclosure, indicated as, or ought reasonably be known as, as a trade secret, confidential or proprietary information of the Discloser, any affiliates (other
than the Recipient) or their respective licensors, (ii) marked or indicated as a trade secret, proprietary or confidential, or (iii) not in the public domain prior to its disclosure hereunder; and in any event Confidential Information includes:
financial, technical and business information; trade secrets; research and development information; source code; service, production and manufacturing and engineering processes; costs, profit or margin information; personally-identifiable
information; employee skills and salaries; financial information; supplier, distributor, client and customer information and data (whether past, present or prospective); marketing information; third-party information; and business plans;
(d)
“Data” means any and all information, reports, details or other output produced through the Platform in any way related to
ESG or any Transaction;
(e)
“Discloser” has the meaning set out in Sec.6.1;
(f)
“Effective Date” has the meaning set out on the first page of this Agreement;
PART 2—RESPONSIBILITIES OF DEVVIO
2.1
Platform Ownership. The parties acknowledge and agree that Devvio owns or has all rights necessary to grant to DESI the licenses contemplated
herein, to the Platform and that DESI shall have no rights, title and interest in, to or associated with the Platform other than the license rights set out in this Agreement
2.2
License. Subject to the terms of this Agreement, Devvio hereby grants to DESI effective as of the Effective Date, a non-exclusive,
non-transferable, non-sublicensable, royalty- free right and license throughout the entire Territory during the Term of this Agreement to use, access, and otherwise utilize the Platform, and process, manipulate, copy, aggregate or otherwise use
any Data created, owned, produced or provided by DESI and compiled by or through the Platform, as reasonably required to conduct the Streaming Business.
2.3
License and not Sale. This Agreement constitutes a license and not a sale of the Platform, any Intellectual Property Rights associated in
any way with the Platform, and all ESG Data contemplated hereunder. Nothing in this Agreement grants to DESI any right, title or interest in, to or associated with the Platform or the ESG Data except as expressly set out herein. The terms of this
Agreement set out all the terms of the license granted hereunder and there are no implied terms.
2.4
Platform Operation and Maintenance. Devvio shall operate and maintain the Platform so as to ensure that the Platform remains available 24
hours a day, 7 days a week, except for any and all planned downtime, the amount of which and schedule therefor shall be agreed between the Parties in advance to ensure minimal disruption to the Streaming Business.
2.5
Right of First Refusal. During the Term of this Agreement and while DESI is actively maintaining its client data on the Platform, in the
event that Devvio is approached, becomes aware of, or has any opportunity to pursue a potential Referral initiating from the Platform that is based in or materially connected to North America which DESI could support via its Streaming Business
(each, a “Platform Opportunity”), then Devvio shall promptly but in any event within five (5) business days of becoming aware of such Platform Opportunity notify DESI in writing of such Platform Opportunity
and Devvio hereby grants to DESI and DESI shall have an exclusive right of first refusal to pursue, negotiate and/or engage such Platform Opportunity (the “ROFR”). DESI shall have a period of ten (10)
business days to exercise the ROFR and inform Devvio in writing of its intention to exercise the ROFR (“ROFR Acceptance Notice”). If DESI fails to notify Devvio or otherwise exercise the ROFR, Devvio shall
have the right to pursue such Platform Opportunity independent of DESI (either by itself and/or by referring it to a third party) and DESI’s ROFR shall expire for such Platform Opportunity. The Parties acknowledge and agree that DESI may exercise
the ROFR at its sole and exclusive option and discretion. Devvio acknowledges and agrees that it shall have no right to pursue, negotiate or engage any Platform Opportunity whatsoever on its own or refer any such Platform Opportunity to any third
party other than DESI if DESI has delivered to Devvio a ROFR Acceptance Notice provided that, notwithstanding the foregoing, if DESI has failed to take any reasonable steps to action and develop the Platform Opportunity within thirty (30) days
following the delivery by DESI of the ROFR Acceptance Notice to Devvio, then Devvio shall be entitled, upon delivery of written notice to DESI, to withdraw the ROFR and may thereafter pursue, negotiate or engage such Platform Opportunity or refer
it to a third party.
2.6
Participation Rights. During the Term of this Agreement, in the event that Devvio is approached, becomes aware of, or has any opportunity to
pursue a potential Referral initiating from the Platform, which DESI could support via its Streaming Business (each, a “Global Opportunity”), then Devvio shall grant to DESI and DESI shall have the right to
participate in a pro-rata share of 20% of the economics in any such Global Opportunity amongst other streaming entities using the Platform who are geographical exclusive partners with Devvio (“Platform Partners”),
each of which getting equal share. DESI’s pro rata participation rights to a Global Opportunity shall be a minimum of four percent (4%) of such economics. During the Term of this Agreement, in the event that DESI exercises a ROFR (each, a “DESI Accepted Platform Opportunity”), DESI shall grant to Devvio and Devvio shall have the right to participate in forty percent (40%) of the economics in any such DESI Accepted Platform Opportunity, twenty
percent (20%) of which shall be available to Devvio, and twenty percent (20%) of which shall be available to other Platform Partners on a pro-rata basis.
2.7
DESI Projects. Any business activity of DESI using the Platform which is not a Platform Opportunity or Global Opportunity shall be under no
obligations to be shared economically or commercially or presented to other Devvio affiliates, clients or partners.
2.8
Exclusivity. During the Term of this Agreement, Devvio shall ensure that it does not have an ownership position equal to or greater than
five percent (5%) in any other company listed on a North American stock exchange conducting a similar or competing business to the Streaming Business.
2.9
DevvE Tokens. Upon the date of a Token Generation Event, Devvio shall issue to DESI an option to purchase 25,000 DevvE Tokens at a strike
price of USD$40.00 and a term of 10 years. The option shall be available after one year after the Effective Date and shall vest 1/12 each month for 12 months starting on the anniversary of the Effective Date. In this Section 2.9, “DevvE Tokens” means fungible tokens recorded on the DevvX blockchain platform that have a focus on ESG applications and the Platform’s initiatives, with a total available supply limited to 21,000,000 tokens
through 2030, as described in Devvio’s current DevvE literature.
PART 3—CONSIDERATION
3.1
Consideration. In exchange for Devvio granting to DESI the DevvE Tokens, exclusive ROFR and license rights to the Platform and the Data
contemplated herein:
(a)
Consideration Shares—DESI shall issue to Devvio four million six-hundred fifty thousand (4,650,000) Multiple Voting Shares (“MVS”) in DESI
(the “Issued Shares”) as further set out in the Capitalization Table in Schedule B, within five (5) business days of the Effective Date of this Agreement, or such other period of time
as agreed between the parties. Prior to the issuance of the Issued Shares as contemplated herein, DESI represents and warrants that it will have 13,500,000 Subordinate Voting Shares (“SVS”)
and 4,000,000 warrants, with each warrant entitling the holder to purchase one SVS at CAD$0.20 per share, and no other securities issued and outstanding;
(b)
Sale Fees—DESI will pay Devvio a fee (the “Sale Fee”) of five percent (5%) of all Sale Revenue. The Sale Fee shall be calculated in US
dollars; and
(c)
Advance Payment—within five (5) business days of DESI closing a going public financing transaction and raising a minimum of ten million Canadian dollars (CAD$10,000,000), then DESI
shall pay an amount of two million Canadian dollars (CAD$2,000,000) to Devvio (the “Prepaid Amount”) as advance payment of Sale Fees by way of wire transfer, certified cheque, or other
form of payment as agreed between the Parties, acting reasonably.
3.2
Payment of the Sale Fee. The Sale Fee is payable as follows:
(a)
Notice and Payment—within ten (10) business days of the end of each month during the Term, DESI will notify Devvio of any Sale Revenue which DESI has collected
during the previous month in aggregate with such sufficient detail to calculate, set out, and verify the calculation of the Sale Fee. The Parties acknowledge and agree that the Sale Fee will be deducted from the Prepaid Amount
until such time as the aggregate and cumulative Sale Fees exceed the Prepaid Amount and the value of the Prepaid Amount has been reduced to zero dollars ($0), after which point DESI will remit payment of the Sale Fees to
Devvio on a monthly basis as agreed between the Parties acting reasonably; and
(b)
Withholdings—Devvio acknowledges and agrees that payments of the Sale Fee hereunder may be subject to withholdings required by Applicable Law, and DESI will make
any applicable withholding payments due on behalf of Devvio and will provide Devvio upon request with such written documentation regarding any such payment as available to DESI relating to an application by Devvio for a
foreign tax credit for such payment with the appropriate taxation authorities.
3.2
Records, Review and Audit. DESI will keep complete and accurate records of its Streaming Business, the Sale Revenue and all Sale Fee calculations and payments made to Devvio for at least two (2)
years from the end of the calendar year to which they pertain in sufficient detail to allow the accuracy and calculation of the payments hereunder to be confirmed. During such period, at the request of Devvio upon a minimum of ten (10)
business days’ prior written notice, DESI will permit Devvio to inspect, review and audit the relevant records required to be maintained by DESI hereunder specific to the calculation and payment of the Sale Fees, and DESI shall pay to Devvio
within fifteen (15) business days of Devvio completing such audit any discrepancies between the Sale Revenue reported and the Sale Fees calculated and paid therefrom discovered as a result of such audit.
PART 6—CONFIDENTIALITY
6.1
Obligations. Without restricting in any matter any confidentiality obligations of either party under any separate, written agreement,
during and after the Term of this Agreement, each party (in such context, a “Recipient”) will protect and keep strictly confidential the Confidential Information of the other party (in such context, a “Discloser”) using the same standard of care that it would protect its own, similar rights (but in no event less than a reasonable standard of care). In connection therewith, each Recipient will:
(a)
Disclosures—only disclose the Discloser’s Confidential Information or any part thereof to those of its directors, officers, employees, contractors, agents or
other representatives who have (i) a need to know such Confidential Information in order to perform its duties and responsibilities under this Agreement, and (ii) a legally enforceable duty of confidentiality no less
restrictive than this Part, in each case on the understanding that Recipient will be responsible for all acts and omissions of such persons as if they were Recipient’s own;
(b)
Use—only use the Discloser’s Confidential Information in connection with its performance (or the proper exercise of its license rights) hereunder, subject at
all times to the provisions of this Agreement; and
(c)
No Intermingling—not intermingle the Confidential Information with non- confidential information or the information of other parties except as expressly
permitted hereunder or as reasonably required to effect the provisions of this Agreement.
6.2
Exceptions. A Recipient’s obligations of confidentiality set out herein will not apply in respect of uses or disclosures of Confidential
Information where:
(a)
Consent—the Discloser consents in writing prior to such use or disclosure;
(b)
Required Disclosure—disclosure is required to comply with any Applicable Law mandating any such disclosure provided that such disclosure is limited to the
strict disclosure required under such law, order or directive and the Recipient gives the Discloser as much advance notice as is practicable in the circumstances so that the Discloser may request restrictions upon, or
contest, the disclosure to such body; or
(c)
Other—except as a result of a breach of this Agreement, the Recipient can establish through documentary evidence that every part of the Confidential
Information proposed for disclosure (i) is available in the public domain, (ii) was disclosed by a third party to the Discloser without violating any obligation of confidentiality, or (iii) was already known, or
independently developed, by the Recipient without any direct or indirect use whatsoever of Confidential Information.
6.3
Confidential Information Inclusions. Each Recipient acknowledges and agrees that additional obligations may apply with respect to
Confidential Information supplied to the Discloser by third parties, and that the highest standard of confidentiality applicable thereto (whether under the third party confidentiality agreement with the Discloser, or under the provisions of this
Agreement) will apply to such third-party Confidential Information. For greater certainty, DESI acknowledges and agrees that all information about the Platform licensed hereunder is considered Devvio’s Confidential Information unless the
exception in Sec.6.2(c) applies.
6.4
Ownership. All right, title and interest in and to the Discloser’s Confidential Information is and will at all times remain fully vested in
the Discloser. Nothing in this Agreement will in any way grant to the Recipient any right, title or interest in or to the Confidential Information of the other party except for the limited rights explicitly set out herein.
6.5
Return. Upon termination of this Agreement or (to the extent the Confidential Information is not required in connection with the proper
licensing or use of the Platform hereunder) upon the written instruction of the Discloser, the Recipient will return or destroy the requesting party’s Confidential Information and provide an officer’s certificate certifying that it has complied
with this obligation. The Recipient will be deemed to have destroyed electronic Confidential Information stored on non-removable media when it executes an application- or operating system-level, commercially reasonable delete function on it
provided it does not directly or indirectly permit or perform any restoration or recovery thereof, whether through forensics, archives, undeletion or otherwise.
PART 7—LIMITATIONS AND EXCLUSIONS OF LIABILITY
7.1
Limits and Exclusions of Liability. Except for the Parties’ liabilities (including damages and liability for court costs and lawyers’ fees
and disbursements), obligations, losses, penalties, costs, expenses and disbursements (including reasonable legal fees) of any nature or kind, whatsoever and howsoever arising, whether known or unknown, whether under Applicable Law or pursuant to
contract, statute or otherwise (“Liabilities”) for (i) their respective obligations of indemnification expressly set out herein, or (ii) fraud, gross negligence or willful misconduct, in no event will
either party or any of their Representatives be liable to the other party, any affiliates, or their respective Representatives for:
(a)
Exclusion—any indirect, incidental, consequential, exemplary, punitive or special Liabilities, even if that party is notified in advance of such possibility,
arising out of or pertaining to the subject matter of this Agreement, whether under contract, statute, tort (including negligence) or otherwise, or
(b)
Limitation—aggregate direct Liabilities in connection with this Agreement in excess of the greater of the Sale Fees payable to Devvio hereunder during the
trailing twelve (12) month period or one million American dollars (USD$1,000,000).
7.2
Indemnity. Each party (the “Indemnifying Party”) will defend, indemnify and hold harmless the other
party, any affiliates and their respective officers, employees, agents and representatives (collectively, in this context, the “Indemnified Parties”) from and against any and all Third Party Liabilities and
claim, counterclaim, complaint, demand, cause of action, action, suit, proceeding, or hearing of any nature and kind (“Claim”) to the extent arising out of, in connection with or relating to any act or
omission by the Indemnifying Party hereunder, including the following:
(i)
any infringement of the Intellectual Property Rights of any Third Party,
(ii)
any harm or damage caused by the Indemnifying Party to any property or persons;
(iii)
any breaches of the confidentiality obligations hereunder; and
(iv)
DESI’s breach of any of Applicable Laws.
7.3
Exceptions. An Indemnifying Party’s obligations under Sec.7.2 will not apply to the extent:
(a)
Acts of Indemnified Party—the relevant Claim or Liability would not have arisen without:
(i)
in connection with any claim for infringement of a Third Party’s Intellectual Property Rights, (A) any Indemnified Party’s combination of the allegedly infringing materials with software, services or products not
supplied or authorized by the Indemnifying Party, (B) any alteration or modification to the allegedly infringing materials carried out by any Indemnified Party or any Third Party on an Indemnified Party’s behalf without
the Indemnifying Party’s written consent, or (C) any refusal by an Indemnifying Party to use a non-infringing version of the allegedly infringing materials offered by the Indemnified Party under Sec.7.4, or
(ii)
the wilful misconduct or gross negligence of any of any Indemnified Party, or
(iii)
any breach by an Indemnifying Party of any provision of this Agreement applicable to it; and
(b)
Failures of Indemnified Party—the Indemnifying Party is materially prejudiced by
(i)
an Indemnified Party’s failure to notify the Indemnifying Party as soon as reasonably practicable after receiving notice of a Claim or Liability,
(ii)
an Indemnified Party’s failure to provide such information and assistance as reasonably requested by the Indemnifying Party from time to time, or
(iii)
an Indemnified Party’s compromising or settling the Claim or Liability without the Indemnifying Party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
7.4
Infringement Indemnities. If an Indemnifying Party knows or becomes aware of any Claim that results in, or any circumstances in which a
Claim in respect of such provision is threatened or reasonably anticipated that would result in, a Claim for infringement of a Third Party’s Intellectual Property Rights, it may, in its sole discretion, (a) procure, at its expense, the right for
the Indemnified Party to use the allegedly infringing materials, as the case may be, or such infringing part thereof, (b) replace or modify, at its expense, the allegedly infringing materials with materials of at least comparable functionality
that does not breach this Agreement, or (c) if the removal of such allegedly infringing materials, as the case may be, would not be a breach of this Agreement, remove (or require the Indemnified Party to return or destroy, as the case may be)
such materials.
7.5
Conduct of Indemnities. The Indemnified Parties will give the Indemnifying Party complete authority for the defence or settlement of Claims
indemnified hereunder, on the understanding that (a) any such defence or settlement must not, without the Indemnified Party’s prior written consent, require that an Indemnified Party be a party to the settlement or admit fault or Liability, or
impose a restriction, obligation or Liability on an Indemnified Party, and (b) the Indemnified Party will have the right (at its own expense) to participate in such defence or settlement through counsel of its choosing.
PART 8—DISPUTES
8.1
Informal Dispute Resolution. The Parties agree to attempt in good faith to settle any dispute, controversy or claim (each a “Dispute”) by way of consultations between the Parties, which consultations will be initiated upon written notice by either party to the other and by following the process set forth in this Part.
8.2
Initial Meeting. Within five (5) business days of the receipt of written notice specifying the Dispute, each party will (a) commit its
position on the Dispute in writing, and (b) have its executives meet to attempt to resolve the Dispute.
8.3
Injunctive Relief. Each party hereby acknowledges and agrees that the other would suffer irreparable and immediate harm in the event of any
breach by it of its obligations under any covenant or restriction hereof, including by exceeding the limits of the license granted hereunder or a breach in respect of Confidential Information, for which monetary relief would be inadequate.
Accordingly, if there occurs any breach or threatened breach by the other party of such covenant or restriction, a party will be entitled to seek injunctive or other temporary equitable relief from a court in any appropriate jurisdiction, without
the need to prove that monetary compensation would be inadequate.
PART 9—GENERAL
9.1
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, United States of
America, without reference to its conflict of laws principles. The Parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods in connection with this Agreement.
9.2
Waiver. No waiver by a party of any default by another party in the timely, strict and literal performance of or compliance with any
provision, condition or requirement of this Agreement will be deemed to be a waiver of timely, strict and literal performance of and compliance with any other such provision, condition or requirement, nor to be a waiver of or in any manner release
the other party from timely, strict and literal compliance with any provision, condition or requirement in the future, nor will any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of such right
accruing to it thereafter.
9.3
Notices. Any notice or other communication required to be given under this Agreement will be deemed properly given if given in writing and
delivered in person or sent by prepaid registered mail, in each case to the address set out above which either party may from time to time change such address by giving the other party reasonable notice of such change in accordance with this
provision.
9.4
Amendment. This Agreement may not be modified except in writing signed by each party to this Agreement.
9.5
Not a Partnership. Nothing contained in this Agreement shall be deemed to constitute either Party as the partner, agent or legal
representative of the other Party, or to create any fiduciary relationship between them, for any purpose whatsoever, except as specifically contemplated in this Agreement. Except as expressly provided in this Agreement, neither Party shall have
any authority to act for or assume any obligation or responsibility on behalf of the other Party, and any act by a Party as an agent, without proper authorization, shall create a separate liability in the Party so acting to any and all third
parties affected. For greater certainty, any contract entered into by a Party that is outside the scope of this Agreement will not be binding on the other Party, and only the Party entering into that contract shall be liable to third parties.
9.6
Assignment. Neither party shall assign, delegate or otherwise transfer (whether voluntarily, by operation of law or otherwise) the licenses
or rights granted hereunder or this Agreement, or any of its rights or obligations under the Agreement, without the prior written consent of the other party. A direct or indirect Change of Control of a party shall be deemed an assignment by
operation of law for the purposes of this provision. Any attempted or purported assignment, delegation or other transfer not in compliance herewith shall be void and have no effect. Subject to the foregoing, the Agreement shall be binding on the
Parties’ successors and permitted assigns.
9.7
Further Assurances. Each party will from time to time do all acts and things necessary or reasonably desirable, and will execute and deliver
such documents as may reasonably be requested by any other party, to give effect to this Agreement.
9.8
Enurement. This Agreement will enure to the benefit of and be binding upon the Parties and their respective successors and permitted
assigns.
9.9
Survival. Notwithstanding any other provision in this Agreement, the obligations set forth in Part 1, Part 6, Part 7, Part 8, Part 9 shall
survive the termination of this Agreement.
9.10
Severability. Should any provision of this Agreement be void or unenforceable it will be severed from this Agreement and the remainder of
this Agreement will remain in full force and effect and will be interpreted and construed as if the stricken provision had never formed part of this Agreement.
9.11
Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and
understandings, oral or written, by and between any of the Parties with respect to the subject matter of this Agreement. There are no (and neither party is relying on any) oral or written understandings, arrangements, covenants, representations,
representations or agreements not expressly set out herein.
9.12
Counterparts. This Agreement may be delivered and executed in counterparts (including by means of electronic transmission), each of which
will constitute an original and all of which taken together will constitute one and the same instrument.
IN WITNESS WHEREOF the parties have duly executed this Agreement on the dates indicated below, with effect as of the Effective Date.
DEVVIO, INC.
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DEVVESG STREAMING, INC.
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Per:
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(s) "Tom Anderson"
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Per:
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(s) "Danny Matthews"
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Authorized Signatory
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Authorized Signatory
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Name: Tom Anderson
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Name: Danny Matthews
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SCHEDULE A—SALE REVENUE CALCULATION GUIDELINES
When calculating the Sale Revenue and the corresponding Sale Fees, the following guidelines will apply:
•
From the Sale Revenue, there will be deducted (and the Sale Revenue does not include):
o
amounts refunded for a Transaction, but only to the extent such refunded amount had been previously included in Sale Revenue, and
o
the amount of any retail or sales tax imposed by any federal, provincial, state, municipal or other governmental authority directly on the Transaction, to the extent actually collected
from the payee and properly accrued or remitted to the applicable governmental authority; and
•
The Sale Revenue less such deductions is the net Sale Revenue, and the Sale Fee set out in Sec.3.1 will apply thereto;
•
For greater certainty, the calculation of Sale Revenue can never be less than zero but in the event that the Sale Revenue calculation has a negative balance, the
negative portion of the balance shall be carried over and applied in the next month’s calculations. This process shall continue until such time as there are no negative balances remaining;
•
From time to time, the parties may agree upon itemized or particular inclusions or exclusions from the above, and for future interpretive purposes of these
guidelines, those inclusions or exclusions will be used to guide the interpretation hereof;
•
The parties will report to each other from time to time (and as reasonably requested by the other) on each and every item to be included or excluded, or added or
deducted, from the calculation of Sale Revenue; and
•
If there is any Dispute about the guidelines or their interpretation, Part 8 will apply.
SCHEDULE B—PRO FORMA CAPITALIZATION TABLE
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Summary
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Securities
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Subordinate Voting Shares
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13,500,000
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Subordinate Voting Share Warrants
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4,000,000
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Multiple Voting Shares (Issued Shares)
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4,650,000
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Non-Diluted Total SVS and MVS
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18,150,000
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Fully-Diluted Total (assuming conversion of Warrants and MVS to SVS)
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64,000,000
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