SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 26, 2017 (January 9, 2017)
REALBIZ MEDIA GROUP, INC.
(Exact name of registrant as specified in its charter)
(State or other
jurisdiction of incorporation)
9711 Washingtonian Boulevard, #550
Gaithersburg, MD 20850
(Address of principal executive offices) (zip code)
(Registrant’s telephone number, including area code)
(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))
Item 3.02 Unregistered Sales of Equity Securities
Exercise of Warrants
On January 10, 2017, RealBiz Media Group, Inc. (the “Company”) received an election to purchase notice (the “Notice”) from Anshu Bhatnagar, our Chief Executive Officer and a member of the Board of Directors. Pursuant to the Notice, Mr. Bhatnagar elected to exercise his warrants on a cashless basis resulting in the issuance of 9,249,629 shares of the Company’s common stock (the “Shares”). At this time, the Company does not have enough authorized capital stock to issue Mr. Bhatnagar the Shares. On November 18, 2016, the Company filed an amendment to its Certificate of Incorporation with the Delaware Secretary of State in order to effectuate a reverse stock split of the Company’s issued and outstanding common stock on a one (1) for two hundred (200) basis which amendment became effective with the state on November 19, 2016 (the “Reverse Stock Split”). The Reverse Stock Split has not yet become effective with The OTC Markets. The Company will issue the Shares to Mr. Bhatnagar after the Reverse Stock Split is effective with The OTC Markets.
Issuance of Series A Preferred Stock
On January 9, 2016, the Company issued 100,000 shares of Series A Preferred Stock to Mr. Bhatnagar for $610.
The Shares and Series A Preferred Stock have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or the securities laws of any state, and were offered and issued in reliance on the exemption from registration under the Securities Act afforded by Section 4(a)(2).
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Appointment of Mark Lucky
Effective January 9, 2017, Mark B. Lucky, age 58, was appointed as our Acting Chief Financial Officer.
Mr. Lucky is a certified public accountant and has more than 15 years of experience serving as a public company Chief Financial Officer. Since May 2014, Mr. Lucky has been a principal at Mid-Atlantic CFO Advisory Services, LLC (“Mid-Atlantic”) and through Mid-Atlantic has served as a consultant to the Company as well as served as an interim Chief Financial Officer to NuState Energy Holdings, Inc., Intelligent Living America, Inc., and Ronn Motor Group, Inc. From March 2007 until May 2014, Mr. Lucky served as the Chief Financial Officer of IceWeb Inc., and from March 2009 to April 2011 he served as a director and Chief Financial Officer of HASCO Medical, Inc. In addition, Mr. Lucky previously worked in several senior finance positions. Mr. Lucky served as Senior Director of Finance and interim Chief Financial Officer at Axys Pharmaceuticals, Inc., Manager of Operations Planning at The Walt Disney Company, Senior Consultant at PriceWaterhouseCoopers, LLC and Senior Auditor at KPMG. Mr. Lucky received a B.A. degree in Economics from the University of California, Los Angeles.
Mr. Lucky has been engaged by the Company as a consultant since September 2015. Pursuant to Mr. Lucky’s Consulting Agreement dated January 2, 2017, Mr. Lucky will receive (i) $8,000 per month for his consulting services through March, 31, 2017 and (ii) a bonus equal to 1.5% of the gross proceeds from any financing resulting from efforts/introductions made by Mr. Lucky for a period of 12 months from the effective date of the Consulting Agreement; provided, however, that such bonus shall not exceed $300,000. In addition, Mr. Lucky received a 5 year warrant to purchase up to 3,000,000 shares of the Company’s common stock at an exercise price of $0.006 per share. The warrant shall vest in full on April 1, 2017.
The foregoing descriptions of the Consulting Agreement is not complete and is qualified in its entirety by reference to the full text of the Consulting Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report and incorporated by reference herein.
Mr. Lucky does not have a family relationship with any of the executive officers or directors of the Company. Except for the compensation arrangement described above, there are no arrangements or understandings between Mr. Lucky and any other person pursuant to which he was appointed as interim Chief Financial Officer of the Company.
Item 7.01 Regulation FD Disclosure
The Company has made available a presentation about its current business plan, a copy of which is filed as Exhibit 99.1 to this Current Report on Form 8-K and is hereby incorporated by reference.
The information contained in the presentation is summary information that should be considered in the context of the Company’s filings with the SEC and other public announcements the Company may make by press release or otherwise from time to time. The presentation speaks as of the date of this Current Report. While the Company may elect to update the presentation in the future to reflect events and circumstances occurring or existing after the date of this Current Report, the Company specifically disclaims any obligation to do so.
The presentation contains forward-looking statements, and as a result, investors should not place undue reliance on these forward-looking statements.
The information set forth in this Report, including without limitation the presentation, is not deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or incorporated by reference in any filing under the Securities Act or the Exchange Act, except as may be expressly set forth by specific reference in such a filing.
Item 9.01 Financial Statements and Exhibits.
The exhibits listed in the following Exhibit Index are filed as part of this Current Report on Form 8-K.
|99.1||RealBiz Media Group, Inc. presentation dated January 2017|
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.
|RealBiz Media Group, Inc.|
|Dated: January 26, 2017||/s/ Anshu Bhatnagar|
|Chief Executive Officer|
|3180 Wheatland Farms Drive|
|Oakton, VA 22124||(703) 400-6392|
This Consulting Agreement, dated effective January 2, 2017, (this “Agreement”), is made and entered into by and among RealBiz Media Group, Inc. (the “Company”) and Mark Lucky (the “Consultant”).
SCOPE OF WORK
1.1 Services. The Company has engaged Consultant to act as interim Chief Financial Officer, and to provide services in connection with the Company’s general business, accounting and financial needs. Consultant will provide accounting, business consulting, and financial support services and such other services as required (collectively, the “consulting services”).
1.2 Time and Availability. Consultant will devote as many hours per week as needed to perform the services for the Company as stated herein. Consultant shall have discretion in selecting the dates and times it performs such consulting services throughout the month giving due regard to the needs of the Company’s business.
1.3 Confidentiality. In order for Consultant to perform the consulting services, it may be necessary for the Company to provide Consultant with Confidential Information (as defined below) regarding the Company’s business and products. The Company will rely heavily upon Consultant’s integrity and prudent judgment to use this information only in the best interests of the Company.
1.4 Standard of Conduct. In rendering consulting services under this Agreement, Consultant shall conform to high professional standards of work and business ethics. Consultant shall not use time, materials, or equipment of the Company without the prior written consent of the Company. In no event shall Consultant take any action or accept any assistance or engage in any activity that would result in any university, governmental body, research institute or other person, entity, or organization acquiring any rights of any nature in the results of work performed by or for the Company.
1.5 Outside Services. Consultant shall not use the service of any other person, entity, or organization in the performance of Consultant’s duties without the prior written consent of an officer of the Company. Should the Company consent to the use by Consultant of the services of any other person, entity, or organization, no information regarding the services to be performed under this Agreement shall be disclosed to that person, entity, or organization until such person, entity, or organization has executed an agreement to protect the confidentiality of the Company’s Confidential Information (as de fined in Article 5) and the Company’s absolute and complete ownership of all right, title, and interest in the work performed under this Agreement.
1.6 Reports. Consultant shall periodically provide the Company with written reports of his or her observations and conclusions regarding the consulting services. Upon the termination of this Agreement, Consultant shall, upon the request of Company, prepare a final report of Consultant’s activities.
2.1 Independent Contractor. Consultant is an independent contractor and is not an employee, partner, or co-venturer of, or in any other service relationship with, the Company. The manner in which Consultant’s services are rendered shall be within Consultant’s sole control and discretion. Consultant is not authorized to speak for, represent, or obligate the Company in any manner without the prior express written authorization from an officer of the Company.
2.2 Taxes. Consultant shall be responsible for all taxes arising from compensation and other amounts paid under this Agreement, and shall be responsible for all payroll taxes and fringe benefits of Consultant. Neither federal, nor state, nor local income tax, nor payroll tax of any kind, shall be withheld or paid by the Company on behalf of Consultant. Consultant understands that he/she is responsible to pay, according to law, Consultant’s taxes and Consultant shall, when requested by the Company, properly document to the Company that any and all federal and state taxes have been paid.
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2.3 Benefits. Consultant will not be eligible for, and shall not participate in, any employee pension, health, welfare, or other fringe benefit plan of the Company. No workers’ compensation insurance shall be obtained by Company covering Consultant.
COMPENSATION FOR CONSULTING SERVICES
3.1 Compensation. The Company shall pay to Consultant a monthly cash-based fee of $8,000.00 for services rendered to the Company under this Agreement. Compensation shall be paid on the 1st of every month covered by this agreement. In addition, upon execution of this Agreement, the Company shall issue to Executive a five (5) year warrant to purchase Three Million (3,000,000) shares of it $0.001 par value common stock at an exercise price of $0.006/share. The warrant shall vest as of April 1, 2017, and shall be deemed to be fully earned, fully paid, and non-assessable at that time.
3.2 Success Fee. The Company shall pay to Consultant a bonus calculated as 1.5% of the gross proceeds of any financing completed by the Company up to a maximum Bonus amount of $300,000 (up to the first Twenty Million Dollars ($20,000,000) raised). Such bonus will be paid at the closing of each financing, for each financing that results from efforts/introductions made by Consultant, for a period of twelve months from the date of this Agreement.
3.3 Reimbursement. The Company agrees to reimburse Consultant for all actual reasonable and necessary expenditures, which are directly related to the consulting services. These expenditures include, but are not limited to, expenses related to travel (i.e., airfare, hotel, temporary housing, meals, parking, taxis, mileage, etc.), telephone calls, and postal expenditures. Expenses incurred by Consultant will be reimbursed by the Company within 15 days of Consultant’s proper written request for reimbursement.
TERM AND TERMINATION
4.1 Term. This Agreement shall be effective as of January 2, 2017, and shall continue in full force and effect until March 31, 2017. The Company and Consultant may negotiate to extend the term of this Agreement and the terms and conditions under which the relationship shall continue.
Termination. The Company may terminate this Agreement for “Cause,” after giving Consultant written notice of the reason. Cause means: (1) Consultant has breached the provisions of Article 5 or 7 of this Agreement in any respect, or materially breached any other provision of this Agreement and the breach continues for 30 days following receipt of a notice from the Company; (2) Consultant has committed fraud, misappropriation, or embezzlement in connection with the Company’ s business; (3) Consultant has been convicted of a felony; or (4) Consultant’s use of narcotics, liquor, or illicit drugs has a detrimental effect on his performance, as determined by the Company.
4.2 Responsibility upon Termination. Any equipment provided by the Company to the Consultant in connection with or furtherance of Consultant’s services under this Agreement, including, but not limited to, computers, laptops, and personal management tools, shall, immediately upon the termination of this Agreement, be returned to the Company.
4.3 Survival. The provisions of Articles 5, 6, 7, and 8 of this Agreement shall survive the termination of this Agreement and remain in full force and effect thereafter.
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5.1 Obligation of Confidentiality. In performing consulting services under this Agreement, Consultant may be exposed to and will be required to use certain “Confidential Information” (as hereinafter defined) of the Company. Consultant agrees that Consultant will not and Consultant’s agents, or representatives will not use, directly or indirectly, such Confidential Information for the benefit of any person, entity, or organization other than the Company, or disclose such Confidential Information without the written authorization of the CEO/President of the Company, either during or after the term of this Agreement, for as long as such information retains the characteristics of Confidential Information.
5.2 Definition. “Confidential Information” means information not generally known and proprietary to the Company or to a third party for whom the Company is performing work, including, without limitation, in- formation concerning any patents or trade secrets, confidential or secret designs, processes, formulae, source codes, plans, devices or material, research and development, proprietary software, analysis, techniques, materials, or designs (whether or not patented or patentable), directly or indirectly useful in any aspect of the business of the Company, any vendor names, customer and supplier lists, databases, management systems and sales and marketing plans of the Company, any confidential secret development or research work of the Company, or any other confidential information or proprietary aspects of the business of the Company. All information which Consultant acquires or becomes acquainted with during the period of this Agreement, whether developed by Consultant or by others, which Consultant has a reasonable basis to believe to be Confidential Information, or which is treated by the Company as being Confidential Information, shall be presumed to be Confidential Information.
5.3 Property of the Company. Consultant agrees that all plans, manuals, and specific materials developed by the Consultant on behalf of the Company in connection with services rendered under this Agreement, are and shall remain the exclusive property of the Company. Promptly upon the expiration or termination of this Agreement, or upon the request of the Company, Consultant shall return to the Company all documents and tangible items, including samples, provided to Consultant or created by Consultant for use in connection with services to be rendered hereunder, including, without limitation, all Confidential Information, together with all copies and abstracts thereof.
RIGHTS AND DATA
All drawings, models, designs, formulas, methods, documents, and tangible items prepared for and submitted to the Company by Consultant in connection with the services rendered under this Agreement shall belong exclusively to the Company and shall be deemed to be works made for hire (the “Deliverable Items”). To the ex- tent that any of the Deliverable Items may not, by operation of law, be works made for hire, Consultant hereby assigns to the Company the ownership of copyright or mask work in the Deliverable Items, and the Company shall have the right to obtain and hold in its own name any trademark, copyright, or mask work registration, and any other registrations and similar protection which may be available in the Deliverable Items. Consultant agrees to give the Company or its designees all assistance reasonably required to perfect such rights.
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CONFLICT OF INTEREST AND NON-SOLICITATION
7.1 Conflict of Interest. Consultant covenants and agrees not to consult or provide any services in any manner or capacity to a direct competitor of the Company during the duration of this Agreement unless ex- press written authorization to do so is given by the Company’s President. A direct competitor of the Company for purposes of this Agreement is de fined as any individual, partnership, corporation, and/or other business entity that engages in a similar business.
7.2 Non-Solicitation. Consultant covenants and agrees that during the term of this Agreement, Consultant will not, directly or indirectly, through an existing corporation, unincorporated business, affiliated party, successor employer, or otherwise, solicit, hire for employment or work with, on a part-time, consulting, advising, or any other basis, other than on behalf of the Company any employee or independent contractor employed by the Company while Consultant is performing services for the Company.
RIGHT TO INJUNCTIVE RELIEF
Consultant acknowledges that the terms of Articles 5, 6, and 7 of this Agreement are reasonably necessary to protect the legitimate interests of the Company, are reasonable in scope and duration, and are not unduly restrictive. Consultant further acknowledges that a breach of any of the terms of Articles 5, 6, or 7 of this Agreement will render irreparable harm to the Company, and that a remedy at law for breach of the Agreement is inadequate, and that the Company shall therefore be entitled to seek any and all equitable relief, including, but not limited to, injunctive relief, and to any other remedy that may be available under any applicable law or agreement between the parties. Consultant acknowledges that an award of damages to the Company does not preclude a court from ordering injunctive relief. Both damages and injunctive relief shall be proper modes of relief and are not to be considered as alternative remedies.
9.1 Construction of Terms. If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision shall be severed and shall not affect the validity or enforceability of the remaining provisions.
9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws (and not the laws of conflicts) of the State of Virginia.
9.3 Complete Agreement. This Agreement constitutes the complete agreement and sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement and supersedes all prior discussions and understandings in respect to the subject of this Agreement, whether written or oral.
9.4 Dispute Resolution. If there is any dispute or controversy between the parties arising out of or relating to this Agreement, the parties agree that such dispute or controversy will be arbitrated in accordance with proceedings under American Arbitration Association rules, and such arbitration will be the exclusive dispute resolution method under this Agreement. The decision and award determined by such arbitration will be final and binding upon both parties. All costs and expenses, including reasonable attorney’s fees and expert’s fees, of all parties incurred in any dispute that is determined and/or settled by arbitration pursuant to this Agreement will be borne by the party determined to be liable in respect of such dispute; provided, however, that if complete liability is not assessed against only one party, the parties will share the total costs in proportion to their respective amounts of liability so determined. Except where clearly prevented by the area in dispute, both parties agree to continue performing their respective obligations under this Agreement until the dispute is resolved.
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9.5 Modification. No modification, termination, or attempted waiver of this Agreement, or any provision thereof, shall be valid unless in writing signed by the party against whom the same is sought to be enforced.
9.6 Waiver of Breach. The waiver by a party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the party in breach.
9.7 Successors and Assigns. This Agreement may not be assigned by either party without the prior written consent of the other party; provided, however, that the Agreement shall be assignable by the Company without Consultant’s consent in the event the Company is acquired by or merged into another corporation or business entity. The benefits and obligations of this Agreement shall be binding upon and inure to the parties hereto, their successors and assigns.
9.8 No Conflict. Consultant warrants that Consultant has not previously assumed any obligations inconsistent with those undertaken by Consultant under this Agreement.
IN WITNESS WHEREOF, this Agreement is executed as of the date set forth above.
|RealBiz Media Group, Inc.||Consultant|
|By:||/s/ Mark Lucky|
|Mark Lucky, Consultant|
|Its:||Chief Executive Officer|
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