NUZE NuZee Inc

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): June 6, 2024

 

 

NUZEE, INC.

(Exact name of registrant as specified in its charter)

 

Nevada		001-39338		38-3849791
(State or other jurisdiction of incorporation or organization		(Commission File No.)		(IRS Employer Identification No.)

 

2865 Scott St. Suite 107, Vista, California 92081

(Address of principal executive offices)

 

(760) 295-2408

(Registrant’s telephone number, including area code)

 

N/A

(Former name or former address, if changed since last report)

 

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

 

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

 

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

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, $0.00001 par value		NUZE		The Nasdaq Stock Market LLC

 

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

 

Emerging growth company ☐

 

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

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

 

On June 7, 2024, the Company entered into a Share Purchase Agreement with Masa Higashida. Pursuant to the terms of the Share Purchase Agreement the Company sold all the issued and outstanding shares of its wholly-owned subsidiaries, NuZee KOREA Ltd. and NuZee Investment Co., Ltd. to Mr. Higashida for a purchase price of $10,000. The closing of the sale of the shares is set to take place on or before June 30, 2024.

 

The Share Purchase Agreement may be terminated at any time prior to the closing (a) by the mutual written consent of the Company and Mr. Higashida or (b) by either the Company or Mr. Higashida if (i) a breach of any provision of the agreement has been committed by the other party and such breach has not been cured within 30 days following receipt by the breaching party of written notice of such breach, or (ii) the closing does not occur by June 30, 2024.

 

The Share Purchase Agreement contains customary representations and warranties and covenants by each party.

 

This summary is qualified in its entirety by reference to the Share Purchase Agreement, a copy of which is included as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference herein.

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Resignation of Directors

 

On June 6, 2024, Masateru Higashida and Kevin J. Conner resigned from the board of directors of the Company (the “Board”) and any committee of the Board of which they were a member. Mr. Higashida also resigned from his positions of Chairman of the Board, Chief Executive Officer, Secretary, and Treasurer. Neither Mr. Higashida’s nor Mr. Conner’s resignation was due to any disagreement with the Company on any matter relating to the Company’s operations, policies or practices.

 

Appointment of Directors; Chairman

 

Also on June 6, 2024, Jianshuang Wang and Yanli Hou were appointed to the Board as directors to fill the vacancies created by Mr. Higashida’s and Mr. Conner’s resignations. It has not yet been determined on which committees of the Board Ms. Wang or Ms. Hou will serve, however, Ms. Wang will serve as the Chairman of the Board.

 

Ms. Wang has been serving as a legal representative of a Chinese company and a director of a Hong Kong company since joining a US listed company (WETG. US) in 2021. During her tenure, she not only dabbled in human resources management, but also supervised administrative work and assisted in operational management.

 

Ms. Wang Jianshuang graduated from Hebei University of Economics and Trade with a major in Human Resource Management in 2001. From 2001 to 2012, she worked as a human resources supervisor at Beijing Yuanzhou Decoration Co., Ltd. and Beijing Dingzhi Huihai Management Consulting Co., Ltd.

 

From 2012 to 2020, Ms. Wang Jianshuang served as the Director of Human Resources at Zhongrong Minxin Capital Management Co., Ltd., Shuyun Puhui Technology Co., Ltd., and Beijing Meixin Technology Co., Ltd. She coordinated the company’s human resources and administrative management, participated in the company’s business management and major issue decision-making, and enhanced the company’s effectiveness by strengthening the professionalism and standardization of human resources and administrative management.

 

Ms. Hou is an Executive Director of Daren International (01957. HK).

 

 

From August 2021 to October 2022, Ms. Hou Yanli served as the CEO of Daren Group. Daren Group is a national high-tech enterprise invested by state-owned civil aviation investment funds and well-known investment institutions.

 

From March 2019 to July 2021, Ms. Hou Yanli served as the President of the Live Streaming Business Group of Yueshang Group (US: WETG), contributing to the live streaming business of Yueshang Group.

 

From January 2014 to March 2019, Ms. Hou Yanli served as the co-founder of 3Q Children’s Business School, responsible for the overall operation and development of the company. 3Q Children’s Business School is a brand under Henan Aishang International Education Consulting Co., Ltd. Henan Aishang International Education Consulting Co., Ltd. is a listed enterprise listed on the Zhongyuan Equity Trading Center, with enterprise code 204424.

 

Ms. Hou Yanli studied at Shandong University of Finance and Economics from 2002 to 2006, obtaining a Bachelor’s degree in Financial Management. After graduation, She joined Tianan Insurance Company and worked for eight years. She has held various positions including financial accounting, auditing, head of fund settlement center, assistant to general manager, and group finance manager. She resigned and started his own business in 2014.

 

She is also a renowned early childhood education expert, franchise chain operation planner, and enterprise digital transformation expert. She has multiple entrepreneurial experiences and is skilled in market development and project operation management.

 

Neither Ms. Wang nor Ms. Hou, nor either of their immediate family members (within the meaning of Item 404 of Regulation S-K), had or will have a direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.

 

Appointment of Co-Chief Executive Officers; Secretary; and Treasurer

 

Further, effective on June 6, 2024, Ms. Wang and Randell Weaver, the existing Chief Financial Officer, Chief Operating Officer, and President of the Company, were both appointed to the Company as Co-Chief Executive Officers to fill the vacancy created by Mr. Higashida’s resignation. Mr. Weaver will also serve as Secretary and Treasurer to fill the vacancies created by Mr. Higashida’s resignation.

 

Randell Weaver Amended and Restated Employment Agreement

 

On June 7, 2024, the Company and Randell Weaver, President, Co-Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Secretary, and Treasurer of the Company, entered into a Second Amended and Restated Employment Agreement (the “Second Amended and Restated Employment Agreement”). The Second Amended and Restated Employment Agreement amends and restates, and replaces in its entirety, the First Amended and Restated Employment Agreement between the Company and Mr. Weaver that was effective as of April 26, 2024 (the “First Amended and Restated Employment Agreement”). The First Amended and Restated Employment Agreement amends and restates, and replaces in its entirety, the Employment Agreement between the Company and Mr. Weaver that was effective as of August 16, 2023 (the “Original Employment Agreement”). In accordance with terms of the First Amended and Restated Employment Agreement, the Company’s Board unanimously approved the Second Amended and Restated Employment Agreement upon the recommendation of the Compensation Committee of the Board.

 

The Second Amended and Restated Employment Agreement provides for a term until August 31, 2024 and a base salary of $325,000 per year. In addition, Mr. Weaver is eligible to receive a one-time cash bonus equal to $162,500 and restricted stock units with the value of $243,750, to be issued on his termination date and which shall vest on April 30, 2025.

 

Mr. Weaver may terminate the Second Amended and Restated Employment Agreement whether for any reason or no reason by giving thirty (30) days written notice to the Company. Upon such termination, Mr. Weaver shall only be entitled to (i) accrued but unpaid base salary; and (ii) reimbursement for any unreimbursed business expenses properly incurred by Mr. Weaver through the effective date of termination.

 

 

The Second Amended and Restated Employment Agreement contains post-employment nonsolicitation restrictions. Under such provisions, for a period of 12 months following the termination of Mr. Weaver’s employment, he will not solicit, divert or take away or attempt to solicit, divert or take away, any of the employees of the Company.

 

This summary is qualified in its entirety by reference to the Second Amended and Restated Employment Agreement, a copy of which is included as Exhibit 10.2 to this Current Report on Form 8-K and incorporated by reference herein.

 

Masa Higashida Termination and Release Agreement

 

On August 15, 2017, the Company and Masa Higashida entered into an Executive Employment Agreement. On June 7, 2024, the Company and Mr. Higashida entered into a Termination and Release Agreement to terminate the Executive Employment Agreement. The Executive Employment Agreement will be of no further force or effect, and the rights and obligations of the Company and Mr. Higashida thereunder shall terminate. In consideration of the Termination and Release Agreement, on or before June 30, 2024, the Company shall pay Mr. Higashida an amount equal to $175,500 and issue a certain number of shares of restricted stock units of the Company with the value of $175,500, which shall vest on April 30, 2025.

 

This summary is qualified in its entirety by reference to the Termination and Release Agreement, a copy of which is included as Exhibit 10.3 to this Current Report on Form 8-K and incorporated by reference herein.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit		Description
10.1		Share Purchase Agreement by and between the Company and Masa Higashida dated as of June 7, 2024.
10.2		Second Amended and Restated Employment Agreement by and between the Company and Randell Weaver dated as of June 7, 2024.
10.3		Termination and Release Agreement by and between the Company and Masa Higashida dated as of June 7, 2024.
104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

 

SIGNATURE

 

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 thereunto duly authorized.

 

	NUZEE, INC.
Dated: June 7, 2024	By:	/s/ Randell Weaver
	Name:	Randell Weaver
	Title:	Co-Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer Secretary, and Treasurer (Co-Principal Executive Officer and Principal Financial Officer and Principal Accounting Officer)

 

 

 

Exhibit 10.1

 

SHARE PURCHASE AGREEMENT

 

THIS SHARE PURCHASE AGREEMENT (this “Agreement”), dated as of June 7, 2024, is entered into between Nuzee, Inc., a corporation incorporated in Nevada (the “Seller”), and Masateru Higashida, an individual with address at 1350 East Arapaho Road, Suite #230, Richardson, Texas 75081 (the “Buyer”).

 

WHEREAS, Seller owns all of the issued and outstanding ordinary shares of (1) NuZee KOREA Ltd, a company incorporated in Korea and a wholly-owned subsidiary of Seller and (2) NuZee Investment Co., Ltd, a company incorporated in Japan and a wholly-owned subsidiary of Seller (collectively the “Sale Shares”); and

 

WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, all of the Sale Shares, subject to the terms and conditions set forth herein;

 

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

 

1. Purchase and Sale. Subject to the terms and conditions set forth herein, at the Closing (as defined in Section 2), Seller shall sell, transfer and assign to Buyer, and Buyer shall purchase from Seller, all of Seller’s right, title and interest in and to the Sale Shares. The aggregate purchase price for the Sale Shares shall be $10,000 (the “Purchase Price”), and in connection herewith, Buyer agrees that his compensation due from Seller as a director and chief executive officer of Seller shall be reduced by $285,000 and Buyer and Seller shall enter into a separate termination and release agreement concurrently with this Agreement to reflect such reduction.

 

2. Closing. Subject to the terms and conditions contained in this Agreement, the purchase and sale of the Sale Shares contemplated hereby shall take place at a closing (the “Closing”) to be held on a date before June 30, 2024 or such other date to be determined by the parties to this Agreement (the “Closing Date”) remotely by exchange of documents and signatures (or their electronic counterparts), or at such other place or on such other date as Buyer and Seller may mutually agree upon in writing. At the Closing, Seller shall deliver to Buyer share certificates evidencing the Sale Shares, free and clear of all Encumbrances (as defined herein), accompanied by instruments of transfer duly executed in blank, and such other documents as are required to transfer title to the Sale Shares to Buyer, and Buyer shall deliver to Seller the Purchase Price by wire transfer of immediately available funds to an account designated in writing by Seller to Buyer before the Closing.

 

3. Closing Conditions.

 

(a) The obligation of Seller to sell, transfer and assign the Sale Shares to Buyer hereunder is subject to the satisfaction of the following conditions as of the Closing:

 

(i) the representations and warranties of Buyer in Section 5 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

 

[Signature page to the share purchase agreement]

 

 

(ii) Buyer shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; and

 

(iii) Buyer shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein.

 

(b) The obligation of Buyer to purchase the Sale Shares from Seller is subject to the satisfaction of the following conditions as of the Closing:

 

(i) the representations and warranties of Seller in Section 4 shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;

 

(ii) Seller shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; and

 

(iii) Seller shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein.

 

4. Representations and Warranties of Seller. Seller hereby represents and warrants to Buyer as follows:

 

(a) Seller is a corporation duly organized, validly existing and in good standing under the laws of Nevada.

 

(b) Seller has all requisite power and authority to execute and deliver this Agreement, to carry out its obligations hereunder, and to consummate the transactions contemplated hereby. Seller has obtained all necessary corporate approvals for the execution and delivery of this Agreement, the performance of its obligations hereunder, and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by Seller and (assuming due execution and delivery by Buyer) constitutes Seller’s legal, valid and binding obligation, enforceable against Seller in accordance with its terms.

 

(c) The Sale Shares have been duly authorized, are validly issued, fully paid and non-assessable, and are owned of record and beneficially by Seller, free and clear of all liens, pledges, security interests, charges, claims, encumbrances, agreements, options, voting trusts, proxies and other arrangements or restrictions of any kind (“Encumbrances”). Upon consummation of the transactions contemplated by this Agreement, Buyer shall own the Sale Shares, constituting all of the issued and outstanding shares of NuZee KOREA Ltd and NuZee Investment Co., Ltd, free and clear of all Encumbrances.

 

 

(d) No governmental, administrative or other third-party consents or approvals are required by or with respect to Seller in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

 

(e) There are no actions, suits, claims, investigations or other legal proceedings pending or, to the knowledge of Seller, threatened against or by Seller that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.

 

(f) No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller.

 

5. Representation and Warranties of Buyer.

 

(a) Buyer is an individual and in his capacity as an officer and director (or ex-officer and ex-director) of Seller, confirms that Seller is the sole shareholder of NuZee KOREA Ltd and NuZee Investment Co., Ltd, and has no knowledge of any matter that may render any representations and warranties of the Seller pursuant to this Agreement untrue.

 

(b) Buyer has all requisite power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by Buyer and (assuming due authorization, execution and delivery by Seller) this Agreement constitutes a legal, valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms.

 

(c) Buyer is acquiring the Sale Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Buyer acknowledges that the Sale Shares are not registered under the Securities Act of 1933, as amended, or any state securities laws, and that the Sale Shares may not be transferred or sold except pursuant to the registration provisions of the Securities Act of 1933, as amended or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable.

 

(d) No governmental, administrative or other third party consents or approvals are required by or with respect to Buyer in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

 

(e) There are no actions, suits, claims, investigations or other legal proceedings pending or, to the knowledge of Buyer, threatened against or by Buyer that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.

 

 

(f) No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer.

 

6. Survival. All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Closing hereunder.

 

7. Further Assurances. Following the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances, and take such further actions as may be required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.

 

8. Termination. This Agreement may be terminated at any time prior to the Closing (a) by the mutual written consent of Buyer and Seller or (b) by either Buyer or Seller if (i) a breach of any provision of this Agreement has been committed by the other party and such breach has not been cured within 30 days following receipt by the breaching party of written notice of such breach, or (ii) the Closing does not occur by June 30, 2024. Upon termination, all further obligations of the parties under this Agreement shall terminate without liability of any party to the other parties to this Agreement, except that no such termination shall relieve any party from liability for any fraud or willful breach of this Agreement.

 

9. Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.

 

10. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and may be addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid).

 

11. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

 

12. Successor and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign any of its rights or obligations hereunder without the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed.

 

13. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

 

14. Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

 

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

 

16. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and any county thereof, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[signature page follows]

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.

 

	Buyer, Masateru Higashida
	By
	Name:	Masateru Higashida
	Seller, Nuzee, Inc.
	For and on behalf of Seller
	By
	Name:	Randell Weaver
	Title:	Chief Financial Officer

 

[Signature page to the share purchase agreement]

 

 

 

Exhibit 10.2

 

Employment Agreement

 

THIS SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of June 7, 2024 (the “Commencement Date”), by and between NuZee, Inc., a Nevada Corporation (the “Company”) and Randy Weaver (“Employee”).

 

A. WHEREAS, the Company is in the business of developing, manufacturing and marketing of high-end consumer coffee products;

 

B. WHEREAS, the Company and Employee entered into an Employment Agreement (the “Original Agreement”), dated as of August 16, 2023 (the “Original Commencement Date”), setting forth the terms and conditions of the Employee’s employment with the Company from and after August 16, 2023;

 

C. WHEREAS, the Company and Employee entered into an Employment Agreement (the “First Amendment”), dated as of April 26, 2024 (the “First Amendment Commencement Date”), setting forth the terms and conditions of the Employee’s employment with the Company from and after April 26, 2024;

 

D. WHEREAS, the Company and Employee desire to enter into this Agreement to amend and restate the terms and conditions of Employee’s employment with the Company from and after the Commencement Date, and agree that this Agreement shall supersede all prior employment terms and conditions, whether or not in writing, including the Original Agreement and the First Amendment.

 

NOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement and such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1. Recitations. The above recitations are true and correct and are incorporated herein by this reference.

 

2. Employment.

 

2.1 Position of Employment. The Company hereby employs Employee as the President, Chief Financial Officer (“CFO”) and Chief Operating Officer (“COO”), and Co-Chief Executive Officer (“Co-CEO”), upon all of the terms and conditions hereinafter set forth. Employee shall have such duties, authority and responsibilities as shall be determined from time to time by the CEO and/or President, which duties, authority and responsibilities are consistent with Employee’s position. Employee will conduct his activities in accordance with the high standards of the Company. All actions shall be subject and subordinate to review and approval of the Company’s CEO and/or President and Board of Directors, and in accordance with the terms and conditions as prescribed in the Employee Handbook, as may be revised from time to time. Employees are encouraged to familiarize themselves with the Employee Handbook.

 

2.2 Place of Employment. Effective March 1, 2024, the principal place of Employee’s employment shall be the Employee’s home address; provided that, the Employee may be required from time to time to travel on Company business to other locations as directed by the Company. In the event that the Employee travels to another location, he shall be reimbursed for travel costs..

 

 

2.3 Devotion of Time. During the term of Employee’s employment, Employee shall devote his full, exclusive business time, ability and attention to the business affairs of the Company and shall use his best efforts to perform faithfully and efficiently such responsibilities.

 

3. Term of Employment.

 

The term of this Agreement shall begin effective on the Commencement Date and shall terminate on August 31, 2024 (“Termination Date”) unless any one or more of the following events set forth in Section 3.1 and 3.3 occurs earlier than the Termination Date:

 

3.1 Termination of Employment by the Company for Cause. The Company may terminate Employee’s employment effective immediately, if such termination is for “Cause.” For purposes of this Agreement, “Cause” shall include:

 

(a) death of Employee;

 

(b) a default or breach by Employee of any of the provisions of this Agreement;

 

(c) actions by Employee constituting fraud, embezzlement or dishonesty;

 

(d) furnishing false, misleading, or omissive information or omitting to furnish material information to the Company in the reasonable judgment of the Company;

 

(e) any action which constitutes a breach of the confidentiality and/or trade secrets of the Company;

 

(f) the commission of an act by Employee involving moral turpitude; or

 

(g) refusal to follow reasonable and lawful directives of the Company’s CEO and/or the board of directors (the “Board”).

 

In the event that the Employee is terminated for Cause as stated above, the Employee shall not be entitled to receive any further compensation or incentive payment other than (i) accrued but unpaid Base Salary (as then in effect) and accrued but unused vacation through the effective date of such termination; and (ii) reimbursement for any unreimbursed business expenses properly incurred by Employee, which shall be subject to and paid in accordance with the Company’s expense reimbursement policy.

 

3.2 Reserved.

 

3.3 Termination by Employee. Employee may terminate this Agreement whether for any reason or no reason by giving thirty (30) days written notice to the Company. Upon such termination, Employee shall only be entitled to (i) accrued but unpaid Base Salary (as then in effect); and (ii) reimbursement for any unreimbursed business expenses properly incurred by Employee through the effective date of termination. Notwithstanding any termination herein, the provisions of Paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14 shall remain in full force and effect.

 

3.4 Reserved.

 

 

3.5 Reserved.

 

3.6 Release. Notwithstanding any other provision in this Agreement to the contrary, Employee shall be eligible to receive the restrictive stock units package (the “RSU Package,” as defined below in Section 4.6), only if Employee has executed and not revoked a release of all claims in a form acceptable to Company (the “Release”), which Release shall release Company and its affiliates, and the foregoing entities’ respective shareholders, members, partners, officers, managers, directors, fiduciaries, employees, representatives, agents and benefit plans (and fiduciaries of such plans) (collectively referred to as the “Released Parties”) from any and all claims, including any and all causes of action arising out of the Employee’s employment with Company or any of its affiliates or the termination of such employment, but excluding all claims to the RSU Package (or portion thereof) that Employee may have, any claims with respect to any vested benefits, indemnification rights Employee had for any actions or omissions occurring while employed by Company, any claims Employee may have for workers’ compensation benefits, and any other claims against any third party not included amongst the Released Parties. To be entitled to receive the RSU Package, the time period during which Employee can revoke the Release must expire before the 60th day after the effective date of termination. If Employee has not executed without revoking a Release and the time period during which Employee can revoke the Release has not expired before the 60th day after the effective date of termination, Employee shall immediately forfeit his rights to the RSU Package.

 

3.7 Death of Employee. In the event that (1) the Employee is entitled to receive any of the post-termination benefits set forth in the Section 4.6, and (2) the Employee thereafter dies prior to receiving full payment of any such post-termination benefits, then the Employee’s designated beneficiaries (or in the absence of any of Employee’s surviving designated beneficiaries, the Employee’s estate) shall thereafter be entitled to receive payment of any and all remaining unpaid benefits to which the Employee was otherwise entitled.

 

3.8 Reserved.

 

4. Compensation and Benefits.

 

Company shall pay to Employee compensation during the term of this Agreement as initially determined by the CEO and/or President from time to time and as approved by the Compensation Committee (the “Compensation Committee”) of the Board of Directors of the Company; which compensation shall be initially as follows:

 

4.1 Base Salary. The Employee’s base salary (“Base Salary”) is $325,000 per year, effective April 26, 2024, and shall end on the Termination Date.

 

4.2 The Base Salary (as then in effect) is payable semi-monthly or in accordance with such other payment schedule as may be approved by the CEO and/or President; it being further understood that at the election of the CEO and/or President, Employee’s Base Salary, as then in effect (and other compensation, as may be applicable), may be revisited in the discretion of the Compensation Committee of the Board of Directors.

 

4.3 Reserved.

 

4.4 Cash Bonus Opportunity.

 

 

The Employee shall be eligible to receive a one-time cash bonus (the “Cash Bonus”) equal to $162,500. The Employee shall be entitled to receive the Cash Bonus at the end of his Term of employment, provided that the Employee completes the work assigned by the Board of Directors.

 

4.5 Reserved.

 

4.6 Issuance of Restricted Stock Units. As part of Employee’s compensation, and subject to the approval of the Compensation Committee, Employee will be granted and issued that certain number of shares of restricted stock units (the “RSU Package”) with the value of $243,750, to be issued on the Termination Date (the “Issuance Date”), which shall be vested on April 30, 2025.

 

4.7 Employee shall accrue twenty (20) days of vacation during each twelve (12) month period of employment, subject to the terms set forth in the Company’s vacation policy in NuZee, Inc.’s Employee Handbook.

 

4.8 Commencing immediately following the date of Employee’s actual employment, Employee shall be entitled to participate in all employee benefit plans, practices, and programs maintained by the Company, including any health and profit-sharing plans made available to the employees, as in effect from time to time (collectively, “Employee Benefit Plans”), on a basis which is no less favorable than is provided to other similarly situated executives of the Company. The Company reserves the right to amend or terminate any Employee Benefit Plans at any time in its sole discretion, subject to the terms of such Employee Benefit Plan and applicable law.

 

4.9 Employee shall be entitled to receive reimbursement for any expenses made on behalf of Company, which expenditures must first have been pre-approved in writing. Employee’s pre-approved travel expenses and accommodations will be reimbursed or paid by Company.

 

5. Vacation Policy. The purpose of the Company’s vacation policy is to allow its employees to take periodic breaks from work and is more fully described in the NuZee, Inc. Employee Handbook.

 

6. Nonsolicitation. During the period of his employment by the Company and for a period of one (1) year after termination of such employment (for any reason, whether voluntarily or involuntarily), Employee agrees that he will not directly or indirectly, whether alone or for himself or for any other person, business, partnership, association, firm, company or corporation, call upon, solicit, divert or take away or attempt to solicit, divert or take away, any of the employees of Company in existence at the time of the termination of Employee’s employment.

 

7. Confidential Information. Employee understands and acknowledges that during the term of employment, Employee will have access to and learn about Confidential Information, as defined below.

 

7.1 Confidential Information Defined.

 

(a) Definition. For purposes of this Agreement, “Confidential Information” includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, work-in- process, databases, device configurations, embedded data, compilations, metadata, technologies, manuals, records, articles, systems, material, sources of material, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, advertising information, pricing information, credit information, design information, payroll information, staffing information, personnel information, employee lists, supplier lists, vendor lists, developments, reports, internal controls, security procedures, graphics, drawings, sketches, market studies, sales information, revenue, costs, formulae, notes, communications, algorithms, product plans, designs, styles, models, ideas, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, customer lists, client information, client lists, manufacturing information, factory lists, distributor lists, and buyer lists of the Company or its businesses or any existing or prospective customer, supplier, investor or other associated third party or of any other person or entity that has entrusted information to the Company in confidence.

 

 

Employee understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used.

 

Employee understands and agrees that Confidential Information includes information developed by Employee in the course of employment by the Company as if the Company furnished the same Confidential Information to Employee in the first instance. Confidential Information shall not include information that is generally available to and known by the public at the time of disclosure to Employee; provided that, such disclosure is through no direct or indirect fault of Employee or person(s) acting on Employee’s behalf.

 

(b) Company Creation and Use of Confidential Information. Employee understands and acknowledges that Company has invested, and continues to invest, substantial time, money, and specialized knowledge into developing its resources, creating a customer base, generating customer and potential customer lists, training its employees, and improving its offerings in the field of high-end consumer coffee products. Employee understands and acknowledges that as a result of these efforts, the Company has created, and continues to use and create Confidential Information. This Confidential Information provides the Company with a competitive advantage over others in the marketplace.

 

(c) Disclosure and Use Restrictions. Employee agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, communicate, publish or make available Confidential Information, or allow it to be disclosed, published, communicated, or made available, in whole or part, to any entity or person whatsoever (including other employees of the Company) not having a need to know and authority to know and use the Confidential Information in connection with the business of the Company and, in any event, not to anyone outside of the direct employ of the Company except as required in the performance of Employee’s authorized employment duties to the Company or with the prior consent of CEO and/or President acting on behalf of the Company in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent); and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of the Company, except as required in the performance of Employee’s authorized employment duties to the Company.

 

 

(d) Permitted Disclosures. Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order.

 

(e) Notice of Immunity Under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016 (“DTSA”). Notwithstanding any other provision of this Agreement:

 

(I) Employee will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:

 

(i) is made (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating a suspected violation of law; or

 

(ii) is made in a complaint or other document filed under seal in a lawsuit or other proceeding.

 

(f) If Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee may disclose the Company’s trade secrets to Employee’s attorney and use the trade secret information in the court proceeding if Employee:

 

(I) files any document containing trade secrets under seal; and

 

(II) does not disclose trade secrets, except pursuant to court order.

 

8. Absence of Conflicting Agreements. Employee understands the Company does not desire to acquire from him any trade secrets, know-how or confidential business information that he may have acquired from others. Accordingly, Employee represents and warrants that he is free to divulge to Company, without any obligation to, or violation of any right of others, any and all information, practices and techniques which he will use, describe, demonstrate or divulge or in any other manner make known to the Company during the course of his employment. Employee represents that he is not bound by any agreement or any other existing or previous business relationship which conflicts with or prevents the full performance of his duties and obligations to the Company during his course of employment by Company.

 

9. Remedies Upon Breach. Employee agrees that any breach of this Agreement by him could cause irreparable damage to Company and that in the event of such breach, Company shall have, in addition to any and all remedies at law, the right to an injunction, specific performance or other equitable relief to prevent any violation or threatened violation of Employee’s obligations hereunder.

 

 

10. No Employment Obligation. Employee understands that this Agreement does not create any obligation on the Company or any other person to continue his employment. The Employee understands that the Employee is an employee subject to termination as set forth in Paragraph 3 above.

 

11. Business Opportunities. During the term of this Agreement, Employee agrees to bring all business opportunities to the Company relating to or otherwise associated with the business or businesses then conducted by the Company or any affiliate thereof, or business or businesses proposed to be conducted by the Company or any such affiliate in the future. Employee further agrees not to pursue any such business opportunity or opportunities for his own account or for the account of any third party irrespective of the Company’s decision to exploit or not to exploit any such business opportunity.

 

12. Proprietary Rights.

 

12.1 Work Product. Employee acknowledges and agrees that all right, title, and interest in and to all writings, works of authorship, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived, or reduced to practice by Employee individually or jointly with others during the employment term and relate in any way to the business or contemplated business, products, activities, research, or development of the Company or result from any work performed by Employee for the Company (in each case, regardless of when or where prepared or whose equipment or other resources is used in preparing the same), all rights and claims related to the foregoing, and all printed, physical and electronic copies, and other tangible embodiments thereof (collectively, “Work Product”) as well as any and all rights in and to US and foreign (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights, all improvements thereto and all similar or equivalent rights or forms of protection in any part of the world (collectively, “Intellectual Property Rights”), shall be the sole and exclusive property of the Company.

 

For purposes of this Agreement, Work Product includes, but is not limited to, Company information, including plans, publications, research, strategies, techniques, agreements, documents, contracts, terms of agreements, negotiations, know-how, computer programs, computer applications, software design, web design, work in process, databases, manuals, results, developments, reports, graphics, drawings, sketches, market studies, formulae, notes, communications, algorithms, product plans, product designs, styles, models, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, client information, customer lists, client lists, manufacturing information, marketing information, advertising information, and sales information.

 

12.2 Work Made for Hire; Assignment. Employee acknowledges that, by reason of being employed by the Company at the relevant times, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in 17 U.S.C. § 101 and such copyrights are therefore owned by the Company. To the extent that the foregoing does not apply, Employee hereby irrevocably assigns to the Company, for no additional consideration, Employee’s entire right, title, and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Company’s rights, title, or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than that the Company would have had in the absence of this Agreement. Nothing in this Section is intended to apply to any Work Product or Intellectual Property Rights which qualify fully under the provisions of Section 2870 of the California Labor Code, a copy of which is attached to this Agreement as Exhibit 1.

 

 

12.3 Further Assurances: Power of Attorney. During and after the employment term, the Employee agrees to reasonably cooperate with the Company to (a) apply for, obtain, perfect, and transfer to the Company the Work Product as well as any and all Intellectual Property Rights in the Work Product in any jurisdiction in the world; and (b) maintain, protect and enforce the same, including, without limitation, giving testimony and executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments, and other documents and instruments as shall be requested by the Company. Employee hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on Employee’s behalf in his name and to do all other lawfully permitted acts to transfer the Work Product to the Company and further the transfer, prosecution, issuance, and maintenance of all Intellectual Property Rights therein, to the full extent permitted by law, if Employee does not promptly cooperate with the Company’s request (without limiting the rights the Company shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be affected by Employee’s subsequent incapacity.

 

12.4 No License. Employee understands that this Agreement does not, and shall not be construed to, grant the Employee any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software, or other tools made available to Employee by the Company.

 

13. Appearance Release. Employee irrevocably agrees that the Company may interview, tape and photograph Employee, and make audio and visual recordings of his voice, conversation and sounds for use on and in connection with the Company, its Website(s), its business(es), and the advertising and promotion thereof, and that Company shall be the exclusive owner of the results and proceeds of such taping, photography and recording with the right, throughout the universe, in any media now known or hereafter devised, an unlimited number of times in perpetuity, to copyright, to use and to license others to use, in any manner, all or any portion thereof or of a reproduction thereof in connection the same or otherwise. Employee represents that any statements made by him during his appearance are true, to the best of his knowledge, and that neither they nor his appearance will violate or infringe upon the rights of any third party.

 

14. Compliance with Company Non-Disclosure Obligation. Employee hereby acknowledges that Company may hereafter be subject to nondisclosure agreements with third persons pursuant to which Company must protect or refrain from the use of proprietary information which is the property of such third persons. Employee hereby agrees upon the directive of the Company to be bound by the terms of such agreements in the event he has access to the proprietary information protected thereunder to the same extent as if he were an original individual signatory thereto.

 

 

15. Clawback Provisions. Notwithstanding any other provisions in this Agreement to the contrary, any incentive-based or other compensation paid to the Employee under this Agreement or any other agreement or arrangement with the Company which is subject to recovery under any law, government regulation, or stock exchange listing requirement will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation, or stock exchange listing requirement (or any policy adopted by the Company pursuant to any such law, government regulation or stock exchange listing requirement).

 

16. Indemnification; Insurance. On the Original Commencement Date, the Employee and the Company entered into an indemnification agreement on the Company’s customary terms and conditions. In addition, the Company shall defend and indemnify Employee to the fullest extent allowed by law, and to provide him with coverage under any directors’ and officers’ liability insurance policies, in each case on terms not less favorable than those provided to any of its other directors and officers as in effect from time to time. In the event of any inconsistency or conflict between the provisions in this Section and any provision in any other indemnity agreement or other agreement between the parties, the provision in such other agreement shall control.

 

17. Severability. The invalidity of any one or more of the words, phrases, sentences, clauses, sections, subdivisions, subparagraphs, paragraphs or articles contained in this Agreement shall not affect the enforceability of the remaining portions of this Agreement or any part thereof, all of which are inserted conditionally on their being legally valid. In the event that one or more of the words, phrases, sentences, clauses, sections, subdivisions, subparagraphs, paragraphs or articles are determined to be unenforceable and if such invalidity shall be caused by the length of any period of time or the size of any area set forth in any part hereof, such period of time or such area, or both, shall be considered to be reduced to a period or area which would cure such invalidity.

 

18. Notice. Any notices or other communications to any party pursuant to or relating to this Agreement must be in writing and shall be deemed to have been given or delivered when (a) hand-delivered, (b) mailed through the U.S. Postal Service via certified mail, return receipt requested, postage prepaid, (c) through a nationally recognized overnight courier, or (d) electronic mail, provided a “read receipt” is obtained, to the parties at their addresses below:

 

	Company:	NuZee, Inc.
		2865 Scott St. Suite 107
		Vista, California 92081
		Attention: Masateru Higashida, Chief Executive Officer
	with a copy to:	JR Lanis, Esq.
		BakerHostetler
		1900 Avenue of the Stars, Suite 2700
		Los Angeles, CA 90067
	Employee:	Randy Weaver
		[***]
		[***]

 

or such other address given by such party to the other party at any time hereafter.

 

19. Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the subject matter hereof and supersedes any and all other prior written or oral agreements between them as to such subject matter.

 

 

 

20. Amendment. No amendment, waiver or modification of this Agreement or any provisions of this Agreement shall be valid unless in writing and duly executed by both parties.

 

21. Binding Agreement. Except as herein set forth, this Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives.

 

22. Waiver. Any waiver by any party of any breach of any provision of this Agreement shall not be considered as or constitute a continuing waiver or waiver of any other breach of any provision of this Agreement.

 

23. Assignment. This Agreement is personal to Employee and may not be assigned by him without Company’s prior written consent, which consent may be withheld in Company’s sole and absolute discretion.

 

24. Successors and Assigns. This Agreement shall be binding upon the parties hereto and their successors and assigns.

 

25. Captions. Captions contained in this Agreement are inserted only as a matter of convenience or for reference and in no way defines, limits, extends, or describes the scope of this Agreement or the intent of any provisions of this Agreement.

 

26. Dispute Resolution; Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, or Employee’s employment, shall be resolved by arbitration as follows:

 

26.1 Mandatory Arbitration. Company and Employee agree that any claim, complaint, or dispute that relates in any way to this Agreement or Employee’s employment with Company, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, shall be submitted to binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Employment Arbitration Rules & Mediation Procedures, which can be found online at https://adr.org/sites/default/files/EmploymentRules_Web_2.pdf (the “Rules”). If the AAA Rules are inconsistent with the terms of this Agreement, the terms of this Agreement shall govern.

 

26.2 Covered Claims. This Agreement to arbitrate covers all grievances, disputes, claims, or causes of action (collectively, “claims”) in a federal, state or local court or agency under applicable federal, state or local laws, arising out of Employee’s employment with the Company and the termination thereof, including claims Employee may have against the Company or against its officers, directors, supervisors, managers, employees, or agents in their capacity as such or otherwise, or that the Company may have against Employee. The claims covered by this Agreement include, but are not limited to, claims for breach of any contract or covenant (express or implied), tort claims, claims for wrongful termination (constructive or actual) in violation of public policy, claims for discrimination or harassment (including, but not limited to, harassment or discrimination based on race, sex, gender, religion, national origin, age, marital status, medical condition, psychological condition, mental condition, disability, or sexual orientation), claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, including, but not limited to, all claims arising under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans With Disabilities Act, the California Fair Employment and Housing Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, and Employee Retirement Income Security Act. The parties to this Agreement specifically agree that all claims under the California Labor Code, including, but not limited to, claims for overtime, unpaid wages, and claims involving meal and rest breaks shall be subject to this Arbitration Agreement (“Covered Claims”).

 

 

26.3 Claims Not Covered. Claims not covered by this Agreement are claims for workers’ compensation, unemployment compensation benefits, administrative charges for unfair labor practices brought before the National Labor Relations Board, Excluded Claims (defined in Paragraph 24.4 below), or any other claims that, as a matter of law, the Parties cannot agree to arbitrate. Nothing in this Agreement shall be interpreted to mean that employees are precluded from filing complaints with the California Department of Fair Employment and Housing and/or federal Equal Employment Opportunity Commission and National Labor Relations Board.

 

26.4 Waiver of Class Action and Representative Action Claims. Except for representative claims which cannot be waived under applicable law and which are therefore excluded from this Agreement (“Excluded Claims”), Employee and the Company expressly intend and agree that: (a) class action and representative action procedures are hereby waived and shall not be asserted, nor will they apply, in any arbitration pursuant to this Agreement; (b) each will not assert class action or representative action claims against the other in arbitration or otherwise; and (c) Employee and the Company shall only submit their own, individual claims in arbitration and will not seek to represent the interests of any other person. To the extent that the parties’ dispute involves both timely filed Excluded Claims and claims subject to this Agreement, the Parties agree to bifurcate and stay for the duration of the arbitration proceedings any such Excluded Claims.

 

26.5 Waiver of Trial By Jury. The parties understand and fully agree that by entering into this Agreement to arbitrate, they are giving up their constitutional right to have a trial by jury, and are giving up their normal rights of appeal following the rendering of a decision except as California law provides for judicial review of arbitration proceedings. The Parties anticipate that by entering into this Agreement, they will gain the benefits of a speedy and less expensive dispute resolution procedure.

 

26.6 Claims Procedure. Arbitration shall be initiated upon the express written notice of either party. The aggrieved party must give written notice of any claim to the other party. Written notice of an Employee’s claim shall be mailed by certified or registered mail, return receipt requested, to the Company (at the address indicated in Paragraph 16). Written notice of the Company’s claim will be mailed to the last known address of Employee. The written notice shall identify and describe the nature of all claims asserted and the facts upon which such claims are based. Written notice of arbitration shall be initiated within the same time limitations that California law applies to those claim(s).

 

26.7 Arbitrator Selection. The Arbitrator shall be selected as provided in the AAA Rules.

 

26.8 Discovery. The AAA Rules regarding discovery shall apply to arbitration under this Agreement, in addition to California Code of Civil Procedure Section 1280, et seq. (including but not limited to California Code of Civil Procedure Section 1283.05), unless otherwise ordered by the Arbitrator. The Arbitrator selected according to this Agreement shall decide all discovery disputes.

 

26.9 Substantive Law. The Arbitrator shall apply the substantive state or federal law (and the law of remedies, if applicable) as applicable to the claim(s) asserted. The Arbitrator shall conduct and preside over an arbitration hearing of reasonable length, to be determined by the Arbitrator. The Arbitrator shall provide the parties with a written decision explaining his or her findings and conclusions. The Arbitrator’s decision shall be final and binding upon the parties.

 

 

26.10 Motions. The Arbitrator shall have jurisdiction to hear and rule on prehearing disputes and is authorized to hold prehearing conferences by telephone or in person as the Arbitrator deems necessary. The Arbitrator shall have the authority to set deadlines for completion of discovery, and for filing motions for summary judgment, and to set briefing schedules for any motions. The Arbitrator shall have the authority to adjudicate any cause of action, or the entire claim, pursuant to a motion for summary adjudication and/or summary judgment, and, in deciding such motions, shall apply the law of the State of California.

 

26.11 Compelling Arbitration/Enforcing Award. Either party may bring an action in court to compel arbitration under this Agreement or to otherwise determine the arbitrability of claims under this Agreement, and to confirm, vacate or enforce an arbitration award, and each party shall bear its own attorney fees and costs and other expenses of such action.

 

26.12 Arbitration Fees and Costs. The Company shall be responsible for the arbitrator’s fees and expenses. Each party shall pay its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim which affords the prevailing party attorneys’ fees and costs, or if there is a written agreement providing for attorneys’ fees and costs, the Arbitrator may award reasonable attorneys’ fees and costs to the prevailing party. Any dispute as to the reasonableness of any fee or cost shall be resolved by the Arbitrator.

 

26.13 Modificatino of Agreement. This Agreement to arbitrate shall survive the termination of Employee’s employment. It can only be revoked or modified in writing signed by both parties that specifically states an intent to revoke or modify this Agreement and is signed by the CEO and/or President.

 

27. Governing Law. This Agreement shall be governed by and construed in accordance with the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) to the extent applicable, and otherwise with the laws of the State of California, without regard to the law of conflicts that would require the laws of any other jurisdiction to apply, including, but not limited, to the fashioning of any federal common law that might apply under ERISA.

 

28. Counterparts/Facsimile. This Agreement may be signed in counterparts which, when considered together, shall be regarded as one completely signed document. This Agreement may be signed by facsimile signature, wherein a facsimile copy will have the same force and effect as an original.

 

29. Further Documents. The parties hereto agree to execute any writings, instruments or applications necessary to carry out the intent of this Agreement.

 

30. Cumulative Remedies. Except as otherwise provided in this contract all rights and remedies herein or otherwise shall be cumulative and none of them shall be in limitation of any other right or remedy.

 

31. Gender/Number. As used herein, the masculine, feminine, or neuter gender, and the singular or plural number shall each be deemed to include the others whenever the context so indicates.

 

32. Construction. This Agreement shall be construed without regard to the identity of the person who drafted the various provisions hereof. Each and every provision of this Agreement shall be construed as though the parties participated equally in the drafting of the same. Consequently, the parties acknowledge and agree that any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.

 

33. Indemnification. Each party hereto agrees to indemnify the other and hold the other harmless from and against any and all damages or liability including attorneys’ fees and court costs occasioned by said other party’s breach of any warranty representation or agreement contained herein.

 

[Signature page to follow on next page.]

 

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.

 

	NuZee, Inc.,
	a Nevada corporation
	By:
	Name:	Masateru Higashida
	Title:	Chief Executive Officer
	Employee
	By:
	Name:	Randy Weaver
	Title:	Chief Financial Officer Last 4 of SSW [***]

 

 

EXHIBIT 1

CALIFORNIA LABOR CODE

SECTION 2870

 

2870. (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:

 

	1.	Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or
	2.	Result from any work performed by the employee for the employer.

 

(a) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.

 

 

 

Exhibit 10.3

 

TERMINATION AND RELEASE AGREEMENT

 

This Termination and Release Agreement, dated June 7, 2024 (the “Termination Agreement”), between NuZee, Inc., a Nevada corporation, having its principal place of business at 2865 Scott St. Suite 107, Vista, California 92081 (the “Company”), and Masateru Higashida, an individual who was the Director and Chief Executive Officer of the Company (“Mr. Higashida” and together with the Company, the “Parties,” and each, a “Party”).

 

WHEREAS, the Parties have entered into an Executive Employment Agreement, dated August 15, 2017 (as amended, amended and restated, supplemented, or otherwise modified from time to time in accordance with its provisions , the “Agreement”);

 

WHEREAS, the Parties hereto desire to terminate the Agreement on the terms and subject to the conditions set forth herein.

 

NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1. Definitions. Capitalized terms used and not defined in this Termination Agreement have the respective meanings assigned to them in the Agreement.

 

2. Termination of the Agreement. Subject to the terms and conditions of this Termination Agreement, the Agreement is hereby terminated as of the date first written above (the “Termination Date”). From and after the Termination Date, the Agreement will be of no further force or effect, and the rights and obligations of each of the Parties thereunder shall terminate, except for (a) any rights and obligations of the Parties that are expressly designated to survive the termination of the Agreement and (b) any other rights and obligations of the Parties that come into being or effect upon the termination of the Agreement, in each case under clause (a) and clause (b), subject to the terms and conditions of this Termination Agreement.

 

3. Certain Rights and Obligations/Termination Payment.

 

As material consideration for the covenants, agreements, and undertakings of the Parties under this Termination Agreement:

 

(a) On or before June 30, 2024 following the full execution of this Termination Agreement, Company shall pay Mr. Higashida an amount equal to $175,500 to such bank account as designated by Mr. Higashida, and issue a certain number of shares of restricted stock units of the Company (the “RSU Package”) with the value of $175,500, which shall be vested on April 30, 2025 (collectively the “Termination Payment”).

 

(b) Mr. Higashida hereby agrees with the Company that all remuneration or compensation arising out of or relating to the Agreement and any other remuneration or compensation owed by the Company to Mr. Higashida shall hereby be extinguished and irrevocably waived by Mr. Higashida.

 

 

4. Mutual Release.

 

(a) In consideration of the covenants, agreements, and undertakings of the Parties under this Termination Agreement, each Party (collectively, “Releasors”) hereby releases, waives, and forever discharges the other Party and its respective present and former, direct and indirect, parents, subsidiaries, affiliates, employees, officers, directors, managers, shareholders, members, agents, representatives, permitted successors, and permitted assigns (collectively, “Releasees”) of and from any and all actions, causes of action, suits, losses, liabilities, rights, debts, dues, sums of money, accounts, reckonings, obligations, costs, expenses, liens, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands, of every kind and nature whatsoever, whether now known or unknown, foreseen or unforeseen, matured or unmatured, suspected or unsuspected, in law, admiralty, or equity (collectively, “Claims”), which any of such Releasors ever had, now have, or hereafter can, shall, or may have against any of such Releasees for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of time through the date of this Termination Agreement arising out of or relating to the Agreement or any other remuneration or compensation owed by the Company to Mr. Higashida, except for any Claims relating to rights and obligations preserved by, created by, or otherwise arising out of this Termination Agreement (including any surviving indemnification obligations under the Agreement).

 

(b) Each Party, on behalf of itself and each of its respective Releasors, understands that it may later discover Claims or facts that may be different than, or in addition to, those that it or any other Releasor now knows or believes to exist regarding the subject matter of the release contained in this Section 4, and which, if known at the time of signing this Termination Agreement, may have materially affected this Termination Agreement and such Party’s decision to enter into it and grant the release contained in this Section 4. Nevertheless, the Releasors intend to fully, finally, and forever settle and release all Claims that now exist, may exist or previously existed, as set forth in the release contained in this Section 4, whether known or unknown, foreseen or unforeseen, or suspected or unsuspected, and the release given herein is and will remain in effect as a complete release, notwithstanding the discovery or existence of such additional or different facts. The Releasors hereby waive any right or Claim that might arise as a result of such different or additional Claims or facts. The Releasors have been made aware of, and understand, the provisions of California Civil Code Section 1542 (“Section 1542”), which provides: “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.” The Releasors expressly, knowingly, and intentionally waive any and all rights, benefits, and protections of Section 1542 and of any other state or federal statute or common law principle limiting the scope of a general release.

 

 

5. Representations and Warranties. Each Party hereby represents and warrants to the other Party that:

 

(a) It has the full right, power, and authority to enter into this Termination Agreement and to perform its obligations hereunder.

 

(b) The execution of this Termination Agreement by the individual whose signature is set forth at the end of this Termination Agreement on behalf of such Party, and the delivery of this Termination Agreement by such Party, have been duly authorized by all necessary action on the part of such Party.

 

(c) This Termination Agreement has been executed and delivered by such Party and (assuming due authorization, execution, and delivery by the other Party hereto) constitutes the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

 

(d) It (i) knows of no Claims against the other Party relating to or arising out of the Agreement or any other remuneration or compensation owed by the Company to Mr. Higashida that are not covered by the release contained in Section 4 and (ii) has neither assigned nor transferred any of the Claims released herein to any person or entity and no person or entity has subrogated to or has any interest or rights in any Claims.

 

(e) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS TERMINATION AGREEMENT, (A) NEITHER PARTY HERETO NOR ANY PERSON ON SUCH PARTY’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY HERETO ACKNOWLEDGES THAT, IN ENTERING INTO THIS TERMINATION AGREEMENT, IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH OTHER PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5.

 

6. Reserved.

 

7. Confidentiality. Subject to the terms and conditions of Section 8(a), each Party acknowledges the confidential nature of the terms and conditions of this Termination Agreement (collectively, the “Confidential Information”) and agrees that it shall not (a) disclose any of such Confidential Information to any person or entity, except to such Party’s /affiliates, employees, advisors, and other representatives who need to know the Confidential Information to assist such Party, or act on its behalf, to exercise its rights or perform its obligations under this Termination Agreement, or (b) use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Termination Agreement. Each Party shall be responsible for any breach of this Section 7 caused by any of its affiliates, employees, advisors, or other representatives. Notwithstanding the foregoing, if any Confidential Information is permissibly disclosed pursuant to Section 8(a), such information will no longer be deemed “Confidential Information” for the purposes of this Section 7.

 

 

8. Publicity and Announcements.

 

(a) Neither Party shall (orally or in writing) publicly disclose or issue any press release or make any other public statement, or otherwise communicate with the media, concerning the existence of this Termination Agreement or the subject matter hereof, without the prior written approval of the other Party (which shall not be unreasonably withheld or delayed), except to the extent that such Party (based upon the reasonable advice of counsel) is required to make any public disclosure or filing with respect to the subject matter of this Termination Agreement (i) by applicable law, (ii) pursuant to any rules or regulations of any securities exchange of which the securities of such party or any of its affiliates are listed or traded or (iii) in connection with enforcing its rights under this Termination Agreement.

 

(b) Neither Party shall make, publish, or communicate to any person or entity or in any public forum any comments or statements (written or oral) that intentionally seek to denigrate or disparage, or are detrimental to, the reputation or stature of the other Party or its businesses, or any of its employees, directors, officers, or managers, and existing and prospective customers, suppliers, investors, and other associated third parties.

 

9. Miscellaneous.

 

(a) All notices, requests, consents, claims, demands, waivers, summons, and other legal process, and other similar types of communications hereunder (each, a “Notice”) must be in writing and addressed to the relevant Party at the address set forth on the first page of this Termination Agreement (or to such other address that may be designated by the receiving Party from time to time in accordance with this Section 9(a)). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of this Section 9(a).

 

(b) This Termination Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with and enforced under the laws of the State of New York, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding relating to this Agreement must be instituted in the federal or state courts located in New York. Each Party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by certified mail in accordance with Section 9(a) will be effective service of process for any suit, action, or other proceeding brought in any such court.

 

 

(c) This Termination Agreement and each of the terms and provisions hereof may only be amended, modified, waived, or supplemented by an agreement in writing signed by each Party.

 

(d) Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Termination Agreement, without the prior written consent of the other party.

 

(e) This Termination Agreement may be executed in counterparts, each of which is deemed an original, but all of which constitute one and the same agreement. Delivery of an executed counterpart of this Termination Agreement electronically or by facsimile shall be effective as delivery of an original executed counterpart of this Termination Agreement.

 

(f) For purposes of this Termination Agreement, (i) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Termination Agreement as a whole; (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (v) words denoting any gender include all genders. The Parties drafted this Termination Agreement without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

 

(g) The headings in this Termination Agreement are for reference only and do not affect the interpretation of this Termination Agreement.

 

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

 

(i) This Termination Agreement constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

 

(j) Each Party shall pay its own costs and expenses in connection with the drafting, negotiation, and execution of this Termination Agreement (including the fees and expenses of its advisors, accountants, and legal counsel).

 

 

IN WITNESS WHEREOF, the Parties have executed this Termination Agreement on the date first written above.

 

	NuZee, Inc.
	By
	Name:	Randy Weaver
	Title:	Chief Financial Officer
	Masateru Higashida
	By
	Name:	Masateru Higashida

 

 

v3.24.1.1.u2

Cover	Jun. 06, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jun. 06, 2024
Entity File Number	001-39338
Entity Registrant Name	NUZEE, INC.
Entity Central Index Key	0001527613
Entity Tax Identification Number	38-3849791
Entity Incorporation, State or Country Code	NV
Entity Address, Address Line One	2865 Scott St. Suite 107
Entity Address, City or Town	Vista
Entity Address, State or Province	CA
Entity Address, Postal Zip Code	92081
City Area Code	(760)
Local Phone Number	295-2408
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, $0.00001 par value
Trading Symbol	NUZE
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false

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