ESSI 8-K
Eco Science Solutions, Inc. (ESSI)
8-K
2021-02-04
For: 2021-01-28
View Original
Added on
April 06, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): January 28, 2021
ECO SCIENCE SOLUTIONS, INC.
(Exact name of Company as specified in its charter)
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Nevada
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333-166487
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46-4199032
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(State or other jurisdiction
of Incorporation)
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(Commission File Number)
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(IRS Employer Identification
Number)
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1135 Makawao Avenue, Suite 103-188
Makawao, Hawaii 96768
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(Address of principal executive offices)
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(833) 464-3726
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(Company's Telephone Number)
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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 (see General Instruction A.2. below):
|_| 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))
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. [ ]
Securities registered pursuant to Section 12(b) of the Act: None
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Section 1 – Registrant’s Business and Operations
Item 1.01 – Entry into a Material Definitive Agreement
On January 28, 2021, the Company entered into an Asset Purchase Agreement with Haiku Holdings, LLC, a limited liability company owned by The Rountree Trust, of which Michael Rountree is the
Trustee, wherein the Company purchased an enterprise software platform, coupling the Company’s consumer engagement applications and e-commerce platform to this proprietary enterprise accounting, inventory management, customer relationship management,
and overall business operations (the “Software”), of which was developed by Haiku Holdings, LLC. The terms of the Asset Purchase Agreement are such that ESSI shall deliver to the Seller and/or it’s assigns an
aggregate of 1,500,000 shares of its restricted common stock (the “Shares”). Further, ESSI will not assume and shall have no responsibility for any of the Seller’s obligations related to the Purchased Assets
(including leases and liabilities of any type, kind or nature), whether fixed, accrued, contingent or otherwise, and whether arising in contract, in tort, by violation of law, by operation of law, or otherwise, and all such obligations, past,
present, or arising in the future, shall remain with the Seller. A fully detailed description of the asset purchased and its applicability to the Cannabis category specifically, is attached as Schedule 1 to the Asset Purchase Agreement attached.
On January 28, 2021, the Company entered into an Executive Employment Agreement (“Agreement”), effective January 31, 2021, with Michael Rountree, the Company’s current Chief
Operating Officer. Michael will serve as the Chief Executive Officer, as well as the Chief Financial Officer. The term of the Agreement is for three years. Mr. Rountree will receive the minimum wage for an exempt employee, until the Company reaches
a Financial Threshold, at which time, he will receive $175,000 per year, for the first six months, $225,000 per year for the next six months, and $250,000 per year going forward. Additionally, Mr. Rountree will be issued 3,000,000 shares of Company
common stock. The Employment Term and the Executive's employment may be terminated by either the Company or the Executive at any time and for any reason or for no particular reason. Upon termination of the Executive's employment during the Employment
Term, the Executive shall be entitled to the compensation and benefits set forth in the Employment Agreement and shall have no further rights to any compensation or any other benefits from the Company or any of its affiliates.
On January 28, 2021, the Company entered into an Indemnification Agreement with Michael Rountree; the Company finds it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance expenses on behalf of Mr. Rountree, in his positions as the Chief Executive Officer and Chief Financial Officer, to the fullest extent permitted by applicable law so that he will serve,
and continue to serve, the Company free from undue concern that he will not be so indemnified.
On January 28, 2021, the Company entered into a Debt Settlement and Share Purchase Agreement with Rountree Consulting, Inc., owned by The Rountree Trust, wherein Rountree Consulting, Inc. has agreed to accept 500,000
unregistered, restricted shares of the Company’s common stock at a price of US $.50 per share (collectively, the “Shares”), in settlement of a portion, in the amount of
$250,000 (the Settled Debt) of the total debt owed to Rountree Consulting, Inc. by the Company.
Section 2 – Financial Information
Item 2.01 – Completion of Acquisition or Disposition of Assets
On January 28, 2021, the Company executed an Asset Purchase Agreement with Haiku Holdings, LLC, a limited liability company owned by The Rountree Trust, of which Michael Rountree, our Chief Executive Officer and Chief
Financial Officer, is the Trustee. In consideration of the purchase of the assets of Haiku Holdings, LLC, 1,500,000 shares of the Company’s restricted common stock are to be issued to Haiku Holdings, LLC, or its assigns.
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Section 3 – Securities and Trading Markets
Item 3.02 – Unregistered Sales of Equity Securities
Pursuant to the terms of the Asset Purchase Agreement, 1,500,000 shares of its common stock (the “Shares”), shall be issued to Haiku
Holdings, LLC.
Pursuant to the terms of the Debt Settlement and Stock Purchase Agreement, 500,000 shares of the Company’s common stock shall be issued to Rountree Consulting, Inc. pursuant to
the Debt Settlement and Stock Purchase Agreement.
Pursuant to the terms of the Executive Employment Agreement, the Executive will be issued 3,000,000 shares of Company common stock.
The three million shares will be subject to a 3 year lock up agreement. In addition, during the Employment Term, the Executive shall be eligible to participate in the Company’s
2021 Equity Incentive Plan or any successor plan, subject to the terms of the Company’s 2021 Equity Incentive Plan or successor plan, as determined by the Board or the Compensation Committee, in its discretion.
The Securities above will not be registered under the 1933 Act in reliance upon the exemption from registration afforded by Section 3(b) and/or Section 4(6) of the 1933 Act.
Section 5 – Corporate Governance and Management
Item 5.02 – Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
On January 28, 2021, the Board of Directors accepted the resignation of Jeffery Taylor as Chief Executive Officer, effective January 31, 2021, and Michael Rountree accepted the appointment of Chief Executive Officer of
the Company, effective January 31, 2021; Michael Rountree will hold the positions of Chief Executive Officer and Chief Financial Officer. Mr. Jeffery Taylor will remain active in the Company.
The Company has entered into an Executive Employment Agreement with Michael Rountree as referenced in Item 1.01
Michael D Rountree, C.P.A. M.B.T.
Mr. Rountree, age 50, is a Certified Public Accountant (CPA), and has more than 25 years of business planning, operational execution and corporate finance experience in both public and private
companies. He is the President of Rountree Consulting, Inc. a company which he founded in August 1997. Rountree Consulting provides its Clients business planning, corporate finance, and growth strategy consulting services with the goal of
increasing top line sales, while also actively lowering expenses through streamlining operational efficiencies. Prior to forming Rountree Consulting, Mr. Rountree spent time with Deloitte and Touche, and Price Waterhouse, working on multi-state tax
and financial accounting engagements for large Fortune 500 and Global 2000 clients. Mr. Rountree also spent 3 years at the State of California Franchise Tax Board. His initial work was with the traditional corporate and individual audit group, but
he was quickly promoted to the forensics audit practice where he handled complex financial, tax and audit engagements. Mr. Rountree holds a BS degree with an emphasis in Accountancy from C.S.U. Long Beach and a Masters in Business Taxation from the
Leventhal School of Accounting at the University of Southern California.
Section 9 – Financial Statements and Exhibits
Item 9.01 – Financial Statements and Exhibits
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Item No.
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Description
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| 10.2 | Indemnification Agreement | |
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| 10.4 |
Asset Purchase Agreement between Eco Science Solutions and Haiku Holdings, LLC |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Eco Science Solutions Inc.
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Date: February 3, 2021
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By:
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/s/Jeffery Taylor |
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Name: Jeffery Taylor
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Title: President
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EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as of January 28, 2021, by and between Michael D Rountree (the "Executive") and Eco Science Solutions
Inc., a Nevada corporation (the "Company").
WHEREAS, the Company desires to employ the Executive on the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual covenants, promises, and obligations set forth herein, the parties agree as follows:
1. Term. Subject to Section 4 of this Agreement, the
Executive's initial term of employment hereunder shall be from the period beginning on January 31st, 2021 (the "Effective Date") through January 31st, 2024 (the "Initial Term"). Thereafter, the Agreement
shall be deemed to be automatically extended, upon the same terms and conditions, for successive periods of one year, unless either party provides written notice of its intention not to extend the term at least 60 days prior to the end of the Initial
Term or one-year extension thereof. The period during which the Executive is employed by the Company hereunder is hereinafter referred to as the "Employment Term."
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3.2
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Financing Threshold. The Financing Threshold shall be deemed satisfied as of the date on which the Board reasonably determines that the Company is in a financial position to pay
the Executive’s Base Salary without jeopardizing the Company’s ability to continue as a going concern.
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(b)
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(c)
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and will be subject to a 3 year lock up agreement. In addition during the Employment Term, the Executive shall be eligible to participate in the Company’s
2021 Equity Incentive Plan or any successor plan, subject to the terms of the Company’s 2021 Equity Incentive Plan or successor plan, as determined by the Board or the Compensation Committee, in its discretion.
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3.5
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3.9
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4. Termination of Employment. The Employment Term and the Executive's employment hereunder may be terminated by either the Company or the Executive at any time
and for any reason or for no particular reason. Upon termination of the Executive's employment during the Employment Term, the Executive shall be entitled to the compensation and benefits described in this Section 4 and shall have no further rights
to any compensation or any other benefits from the Company or any of its affiliates.
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(a)
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The Executive's employment hereunder may be terminated upon either party's failure to renew the Agreement in accordance with Section 1, by
the Company for Cause, or by the Executive without Good Reason and the Executive shall be entitled to receive:
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(i)
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(ii)
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(i)
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(iii)
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(iv)
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(v)
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(vi)
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(vii)
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Except for a failure, breach, or refusal which, by its nature, cannot reasonably be expected to be cured, the Executive shall have 10 business days from the delivery
of written notice by the Company within which to cure any acts constituting Cause.
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(c)
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(i)
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(iii)
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To terminate her employment for Good Reason, the Executive must provide written notice to the Company of the existence of the circumstances providing grounds for
termination for Good Reason within 30 days of the initial existence of such grounds and the Company must have at least 30 days from the date on which such notice is provided to cure such circumstances. If the Executive does not terminate her
employment for Good Reason within 60 days after the first occurrence of the applicable grounds, then the Executive will be deemed to have waived her right to terminate for Good Reason with respect to such grounds.
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be eligible to receive such reimbursement until the earliest of: (i) the twelve-month anniversary of the date of the Executive's termination; (ii) the date the Executive is no longer
eligible to receive COBRA continuation coverage; and (iii) the date on which the Executive becomes eligible to receive substantially similar coverage from another employer or other source. Notwithstanding the foregoing, if the Company's
making payments under this Section 4.2(b) would violate the nondiscrimination rules applicable to non-grandfathered, insured group health plans under the Affordable Care Act (the "ACA"), or result in the imposition of penalties under the
ACA and the related regulations and guidance promulgated thereunder, the parties agree to reform this Section 4.2(b) in a manner as is necessary to comply with the ACA.
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(c)
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(a)
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(b)
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5. Confidential Information and Restrictive Covenants. As a condition of
the Executive's employment with the Company, the Executive shall enter into and abide by the Company's Employee Non-Compete Agreement/Employee Confidentiality and Proprietary Rights Agreement.
6. Arbitration. Any dispute, controversy, or claim arising out of or related to the Executive's employment by the Company, or termination of employment, including but not
limited to claims arising under or related to this Agreement or any breach of this Agreement, and any alleged violation of federal, state, or local statute, regulation, common law, or public policy, shall be submitted to and decided by binding
arbitration. Arbitration shall be administered exclusively by JAMS and shall be conducted in Orange County, California consistent with the rules of JAMS in effect at the time the arbitration is commenced and applying California law, except as
modified by this Agreement. The Parties can obtain a copy of the JAMS Rules (i) on the JAMS’ website (https://www.jamsadr.com/rules-employment); (ii) by calling JAMS directly at (800) 352-5267; or (iii)
from the Company’s Human Resources Department. The JAMS Rules are incorporated herein by reference. The arbitrator shall administer and conduct any arbitration in accordance with California law, including the California Code of Civil Procedure,
and the arbitrator shall apply substantive and procedural California law to any Claim, without references to conflict-of-law provisions of any jurisdiction. To the extent that the JAMS Rules are in irreconcilable conflict with California law,
California law shall take precedence over the JAMS Rules. In the event of the requirement to arbitrate hereunder, the Parties shall mutually agree on single arbitrator, and in the event that they cannot agree then each of them shall agree on an
arbitrator and those two arbitrators shall appoint a third. Except for Excluded Claims (as defined below in Section 6.1), the Parties waive all rights to have their disputes heard or decided by a jury or in a court trial and
the right to pursue any class or collective action or representative claims against each other in court, arbitration, or any other proceeding. Any arbitral award determination shall be final and binding upon the Parties.
With respect to costs associated with the arbitration under this Section 6, Executive shall only pay the JAMS filing or administrative fee up to the equivalent amount of the initial filing Executive would have paid to commence an action in the
California Superior Court, county of Orange. The Company will pay any other JAMS administrative fees, arbitrator’s fees, and any additional fees unique to arbitration.
7. Governing Law, Jurisdiction, and Venue. This Agreement, for all purposes, shall be construed in accordance with the laws of California without regard to conflicts of
law principles. Any action or proceeding by either of the parties to enforce this Agreement shall be brought only in a state or federal court located in the state of California, county of Orange. The parties hereby irrevocably submit to the
exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.
8. Entire Agreement. Unless specifically provided herein, this Agreement, together with the Employee Non-Compete Agreement/Employee Confidentiality and Proprietary Rights
Agreement and Indemnification Agreement contains all of the understandings and representations between the Executive and the Company pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements,
representations and warranties, both written and oral, with respect to such subject matter.
9. Modification and Waiver. No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by the
Executive and by the Chairman of the Board. No waiver by either of the parties of any breach by the other party hereto of any condition or provision of this Agreement to be performed by the other party hereto shall be deemed a waiver of any
similar or dissimilar provision or condition at the same or any prior or subsequent time.
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10. Severability. Should any provisions of this Agreement be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had not been set forth herein.
11. Captions.
Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.
12. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one
and the same instrument.
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13.3
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(a)
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the amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits
to be provdied, in any other calendar year;
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(b)
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(c)
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14. Successors and Assigns. This Agreement is personal to the Executive and shall not be assigned by the Executive. Any purported assignment by the Executive shall be null
and void from the initial date of the purported assignment. The Company may assign this Agreement to any successor or assign (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business
or assets of the Company. This Agreement shall inure to the benefit of the Company and permitted successors and assigns.
15.Notice. Notices and all other communications provided for in this Agreement
shall be given in writing by personal delivery, electronic delivery, or by registered mail to the parties at the addresses set forth below (or such other addresses as specified by the parties by like notice):
Eco Science Solutions Inc.
1135 Makawao Avenue, Suite 103-188
Makawao, HI 96768
1135 Makawao Avenue, Suite 103-188
Makawao, HI 96768
Michael D Rountree
300 S. El Camino Real #206
San Clemente, CA 92672
If to the Chairman of the Board:
A Carl Mudd
172 Eagles Peak S.
Bullard, TX 75757
16. Representations of the Executive. The Executive
represents and warrants to the Company that:
The Executive's acceptance of employment with the Company and the performance of his duties hereunder will not conflict with or result in a violation of, a
breach of, or a default under any contract, agreement, or understanding to which she is a party or is otherwise bound.
The Executive's acceptance of employment with the Company and the performance of his duties hereunder will not violate any non-solicitation, non-competition, or
other similar covenant or agreement of a prior employer or third-party.
17. Withholding. The Company shall have the right to
withhold from any amount payable hereunder any Federal, state, and local taxes in order for the Company to satisfy any withholding tax obligation it may have under any applicable law or regulation.
18. Survival. Upon the expiration or
other termination of this Agreement, the respective rights and obligations of the parties hereto shall survive such expiration or other termination to the extent necessary to carry out the intentions of the parties under this Agreement.
19. Acknowledgement of Full
Understanding. THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT HE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT HE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN
ATTORNEY OF HIS CHOICE BEFORE SIGNING THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
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COMPANY:
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ECO SCIENCE SOLUTIONS INC.
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By:
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/s/Jeffery Taylor |
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Name:
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Jeffery Taylor
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Title:
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CEO
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Address:
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1135 Makawao Ave #103-188
Makawao, HI 96768
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EXECUTIVE:
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By:
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/s/Michael D. Rountree |
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Name:
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Michael D Rountree
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Address:
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300 S. El Camino Real #206
San Clemente, CA 92672
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Ombudsman Approved:
By: /s/A Carl Mudd
A Carl Mudd
172 Eagles Peak S.
Bullard, TX 75757
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ECO SCIENCE SOLUTIONS INC.
a NEVADA CORPORATION
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the “Agreement”) is made and entered into effective as of January 28, 2021 by and between Eco Science Solutions Inc., a Nevada
corporation (the “Company”), and Michael Rountree (“Indemnitee”). The Company and the Indemnitee shall sometimes hereafter be referred to individually as a “Party” and together as the “Parties”.
WHEREAS, highly competent persons have become more reluctant to serve corporations as officers or in other capacities unless they are provided with adequate protection through
insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an
ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities;
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s stockholders and
that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest
extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified;
WHEREAS, this Agreement is a supplement to and in furtherance of the Articles of Incorporation of the Company and the Bylaws of the Company (collectively, the “Constituent
Documents”) and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that he or she be so indemnified.
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve as an officer, director, or both from and after the date hereof, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
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(a)
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“Change in Control” shall be deemed to have occurred if:
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1
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(i)
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any “person,” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”), other
than (a) a trustee or other fiduciary holding securities under an employee benefit plan of the Company; (b) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company; or (c) any current beneficial stockholder or group, as defined by Rule 13d-5 of the Exchange Act, including the heirs, assigns and successors thereof, of beneficial ownership, within the meaning of Rule
13d-3 of the Exchange Act, of securities possessing more than 50% of the total combined voting power of the Company’s outstanding securities;
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(ii)
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during any period of two consecutive years, individuals who at the beginning of such period constitute the Board and any new director whose election by the Board or nomination for
election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then in office who either were directors at the beginning of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof; or
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(iii)
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the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting
Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power
represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company, in one transaction or a series of transactions, of all or substantially all of the Company’s assets.
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(b)
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“Corporate Status” describes the status of a person who is or was a director, officer, employee, agent or fiduciary of the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise that such person is or was serving at the express written request of the Company.
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(c)
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“Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
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(d)
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“Enterprise” shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the
express written request of the Company as a director, officer, employee, agent or fiduciary.
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(e)
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“Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or
being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting from any
Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by
Indemnitee or the amount of judgments or fines against Indemnitee.
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(f)
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“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five (5) years has been,
retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification
agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would
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have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable
fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
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(g)
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“Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other
actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party or
otherwise, by reason of his or her Corporate Status, by reason of any action taken by him or her or of any inaction on his or her part while acting in his or her Corporate Status; in each case whether or not he or she is acting or serving
in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement; including one pending on or before the date of this Agreement, but excluding one initiated by an
Indemnitee pursuant to Section 9 of this Agreement to enforce his or her rights under this Agreement.
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(h)
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“Voting Securities” shall mean any securities of the Company which vote generally in the election of directors.
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2. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by law, as such may be amended from time to time. In
furtherance of the foregoing indemnification, and without limiting the generality thereof:
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(a)
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Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 2(a) if, by reason of
his or her Corporate Status (as hereinafter defined), the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant
to this Section 2(a), Indemnitee shall be indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her, or on his or her behalf, in
connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect
to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful.
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(b)
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Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 2(b) if, by reason of his or her Corporate
Status, the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding brought by or in the right of the Company. Pursuant to this Section 2(b), Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by the Indemnitee, or on the Indemnitee’s behalf, in connection with such Proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests
of the Company; provided, however, if applicable law so provides, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be
liable to the Company unless and to the extent that an appropriate court of the State of Nevada shall determine that such indemnification may be made.
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(c)
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Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of
his or her Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, he or she shall be indemnified to the maximum extent permitted by law, as such may be amended from time to time, against all Expenses
actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection with each successfully resolved claim, issue or
matter. For purposes of this Section 2(c) and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue
or matter.
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3
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3.
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Additional Indemnity. In addition to, and without regard to any limitations on, the indemnification provided for in Section 2 of this Agreement, the Company shall and hereby does
indemnify and hold harmless Indemnitee against all Expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her or on his or her behalf if, by reason of his or her Corporate Status, he
or she is, or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company), including, without limitation, all liability arising out of the negligence or active or passive
wrongdoing of Indemnitee. The only limitation that shall exist upon the Company’s obligations pursuant to this Agreement shall be that the Company shall not be obligated to make any payment to Indemnitee that is finally determined (under
the procedures, and subject to the presumptions, set forth in Sections 7 and 8 hereof) to be unlawful.
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4. Contribution.
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(a)
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Whether or not the indemnification provided in Sections 2 and 3 hereof is available, in respect of any threatened, pending or completed action, suit or proceeding in which the Company is
jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such action, suit or proceeding without requiring
Indemnitee to contribute to such payment and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee, unless indemnitee acts with gross negligence, commits fraudulent acts, or participates in
criminal activities. The Company shall not enter into any settlement of any action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding) unless such settlement
provides for a full and final release of all claims asserted against Indemnitee.
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(b)
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Without diminishing or impairing the obligations of the Company set forth in the preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any
portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall
contribute to the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers,
directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction or
events from which such action, suit or proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative
fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the
other hand, in connection with the transaction or events that resulted in such expenses, judgments, fines or settlement amounts, as well as any other equitable considerations which applicable law may require to be considered. The relative
fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the
other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree
to which their conduct is active or passive.
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(c)
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The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers, directors or employees of the Company, other
than Indemnitee, who may be jointly liable with Indemnitee.
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4
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(d)
|
To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu
of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to
an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as
a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
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5. Indemnification for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a witness, or is made (or asked) to respond to discovery requests, in any Proceeding to which Indemnitee is not a
party, he or she shall be indemnified against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection therewith.
6. Advancement of Expenses. Notwithstanding
any other provision of this Agreement, the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the receipt by the
Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses
incurred by Indemnitee and shall include or be preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified
against such Expenses. Any advances and undertakings to repay pursuant to this Section 6 shall be unsecured and interest free.
7. Procedures and Presumptions for Determination
of Entitlement to Indemnification. It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are as favorable as may be permitted under Chapter 78 of the Nevada Revised Statutes (the “NRS”) and public policy of the
State of Nevada. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
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(a)
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To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board in writing that Indemnitee has requested indemnification. Notwithstanding the foregoing, any failure of Indemnitee to provide such a request to the Company, or to provide such a request in a timely
fashion, shall not relieve the Company of any liability that it may have to Indemnitee unless, and to the extent that, such failure actually and materially prejudices the interests of the Company.
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(b)
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Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 7(a) hereof, a determination with respect to Indemnitee’s entitlement thereto shall be
made in the specific case by one of the following four methods, which shall be at the election of the Board: (1) by the Board by majority vote of a quorum consisting of disinterested directors, (2) if a majority vote of a quorum consisting
of disinterested directors so orders, by Independent Counsel (as hereinafter defined) in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee, (3) if a quorum consisting of independent directors cannot be
obtained, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee, or (4) if so directed by the Board, by the stockholders of the Company. For purposes hereof, disinterested directors
are those members of the Board who are not parties to the action, suit or proceeding in respect of which indemnification is sought by Indemnitee.
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5
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(c)
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If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 7(b) hereof, the Independent Counsel shall be selected as provided in this
Section 7(c). The Independent Counsel shall be selected by the Board. Indemnitee may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company a written objection to such selection;
provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 1(f) of this Agreement, and the objection shall
set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, the Independent Counsel
selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written request for
indemnification pursuant to Section 7(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition an appropriate court of the State of Nevada or other court of competent
jurisdiction for resolution of any objection which shall have been made by the Indemnitee to the Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other
person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 7(b) hereof. The Company shall pay any and all reasonable
fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 7(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section
7(c), regardless of the manner in which such Independent Counsel was selected or appointed.
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(d)
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In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors
or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor
an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met
the applicable standard of conduct.
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(e)
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Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial
statements, or on information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise
by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of
the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 7(e) are satisfied, it shall in any event be presumed
that Indemnitee has at all times acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and
the burden of persuasion by clear and convincing evidence.
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(f)
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If the person, persons or entity empowered or selected under Section 7 to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty
(60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that
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6
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such sixty (60)-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect to
entitlement to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 7(f) shall not apply if
the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 7(b) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the
Board or the Disinterested Directors (as hereinafter defined), if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within seventy-five (75) days after such
receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty
(60) days after having been so called and such determination is made thereat.
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(g)
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Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person,
persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any
costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
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(h)
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The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and
uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or
proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall
have the burden of proof and the burden of persuasion by clear and convincing evidence.
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(i)
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The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
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8. Remedies of Indemnitee.
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(a)
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In the event that (i) a determination is made pursuant to Section 7 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 6 of this Agreement, (iii) no determination of entitlement to indemnification is made pursuant to Section 7(b) of this Agreement within ninety (90) days after receipt by the Company of the
request for indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten (10) days after receipt by the Company of a written request therefor or (v) payment of indemnification is not made within ten
(10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to Section 7 of this Agreement, Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of Nevada, or in any other court of competent jurisdiction, of Indemnitee’s entitlement to such indemnification. Indemnitee shall commence such proceeding
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7
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(b)
|
seeking an adjudication within one hundred eighty (180) days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 8(a). The
Company shall not oppose Indemnitee’s right to seek any such adjudication.
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(c)
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In the event that a determination shall have been made pursuant to Section 7(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced
pursuant to this Section 8 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 7(b).
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(d)
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If a determination shall have been made pursuant to Section 7(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section 8, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s misstatement not materially misleading in connection with
the application for indemnification, or (ii) a prohibition of such indemnification under applicable law.
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(e)
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In the event that Indemnitee, pursuant to this Section 8, seeks a judicial adjudication of his or her rights under, or to recover damages for breach of, this Agreement, or to recover
under any directors’ and officers’ liability insurance policies maintained by the Company, the Company shall pay on his or her behalf, in advance, any and all expenses (of the types described in the definition of Expenses in Section 1(e) of
this Agreement) actually and reasonably incurred by him or her in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
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(f)
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The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 8 that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement. The Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall
(within ten (10) days after receipt by the Company of a written request therefor) advance, to the extent not prohibited by law, such expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by
Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advancement of Expenses or insurance recovery, as the case may be.
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(g)
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Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding.
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9.
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Non-Exclusivity; Insurance; Primacy of Indemnification; Subrogation; No Duplication of Payments.
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(a)
|
Non-Exclusivity. The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Constituent Documents, any agreement, a vote of stockholders, a resolution of directors of the Company, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or
restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in the NRS,
whether by statute or judicial decision, permits greater indemnification than would be afforded currently under the Constituent Documents and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,shall not prevent the concurrent assertion or employment of any
other right or remedy.
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8
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(b)
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Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of
the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the
terms hereof, the Company has directors’ and officers’ liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.
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(c)
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Primacy of Indemnification. Notwithstanding that the Indemnitee may have certain rights to indemnification, advancement of expenses and/or insurance provided by other persons
(collectively, the “Other Indemnitors”), the Company: (i) shall be the indemnitor of first resort (i.e., its obligations to the Indemnitee are primary and any obligation of the Other Indemnitors to advance expenses or to provide
indemnification for the same expenses or liabilities incurred by the Indemnitee are secondary); (ii) shall be required to advance the full amount of expenses incurred by the Indemnitee and shall be liable for the full amount of all
Expenses, without regard to any rights the Indemnitee may have against any of the Other Indemnitors; and (iii) irrevocably waives, relinquishes and releases the Other Indemnitors for any and all claims against the Other Indemnitors for
contribution, subrogation or any other recovery of any kind in respect thereof. No advancement or payment by the Other Indemnitors on behalf of the Indemnitee with respect to any claim for which the Indemnitee has sought indemnification
from the Company shall affect the immediately preceding sentence, and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of the
Indemnitee against the Company. The Company and the Indemnitee agree that the Other Indemnitors are express third party beneficiaries of the terms of this Section 9(c).
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(d)
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Subrogation. In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
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(e)
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No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
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(f)
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The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any
other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise.
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10. Exception to Right of Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with
any claim made against Indemnitee:
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(a)
|
for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid
under any insurance policy or other indemnity provision; or
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9
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(b)
|
for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act, as
amended, or similar provisions of state statutory law or common law; or
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(c)
|
in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the
Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable law.
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11. Settlement of Claims. The Company shall
not be liable to indemnify the Indemnitee under this Agreement (a) for any amounts paid in settlement of any action or claim effected without the Company’s written consent, which consent shall not be unreasonably withheld; or (b) for any judicial
award if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action.
12. Duration of Agreement. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee is an officer or director of the Company (or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) and shall continue thereafter for one year after the final termination of any Proceeding (including all appeals in
connection therewith) to which Indemnitee is subject (or any proceeding commenced under Section 8 hereof) by reason of his or her Corporate Status, whether or not he or she is acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided under this Agreement.
13. Period of Limitations. No legal action
shall be brought and no cause of action shall be asserted by or on behalf of the Company or any affiliate of the Company against the Indemnitee, the Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of
two (2) years from the date of accrual of such cause of action, or such longer period as may be required by state law under the circumstances, and any claim or cause of action of the Company or its affiliate shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action, such shorter period shall govern.
14. Enforcement.
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(a)
|
The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer or
director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as an officer or director of the Company.
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(b)
|
This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written
and implied, between the parties hereto with respect to the subject matter hereof.
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(c)
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15. Change in Control. The Company
agrees that if there is a Change in Control of the Company, other than a Change in Control which has been approved by a majority of the Company’s Board who were directors immediately prior to such Change in Control, then with respect to all matters
thereafter arising concerning the rights of the Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or under applicable law or the Company’s Constituent Documents now or hereafter in effect
relating to
10
indemnification for an indemnifiable event, the Company shall seek legal
advice only from Independent Counsel selected by the Indemnitee and approved by the Company, which approval shall not be unreasonably withheld. Such counsel, among other things, shall render its written opinion to the Company and the Indemnitee as
to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law.
16. Binding Effect. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the Parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of
the business and/or assets of the Company, spouses, heirs, and personal and legal representatives. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially
all, or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to the Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession had taken place. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director or officer of the Company or of any other enterprise
at the Company’s request.
17. Severability. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to
the fullest extent permitted by applicable laws. In the event any provision hereof conflicts with any applicable law, such provision shall be deemed modified, consistent with the aforementioned intent, to the extent necessary to resolve such
conflict.
18. Consent and Waiver by Third Parties. The
Indemnitee hereby represents and warrants that he or she has obtained all waivers and/or consents from third parties which are necessary for his or her employment with the Company on the terms and conditions set forth herein and to execute and
perform this Agreement without being in conflict with any other agreement, obligation or understanding with any such third party. The Indemnitee represents that he or she is not bound by any agreement or any other existing or previous business
relationship which conflicts with, or may conflict with, the performance of his or her obligations hereunder or prevent the full performance of his or her duties and obligations hereunder.
19. Modification and Waiver. No supplement,
modification, termination or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
20. Notice by Indemnitee. Indemnitee agrees
promptly to notify the Company in writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to
indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay
materially prejudices the Company.
21. Notices. All notices and other
communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) ten (10) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) three (3) day after deposit
with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent:
|
(a)
|
To Indemnitee at the address set forth below Indemnitee signature hereto.
|
|
(b)
|
To the Company at:
|
11
Eco Science Solutions Inc.
1135 Makawao Avenue #103-188
Makawao, HI 96768
To the Chairman of the Board:
Mr. A Carl Mudd
172 Eagles Peak S
Bullard, TX 75757
With a copy (which shall not constitute notice) to:
Greenberg Trauig, LLP
1201 K Street, Suite 1100
Sacramento, CA 95814
Attention: Mark Lee
Email: [email protected]
or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
23. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same
Agreement. This Agreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
24. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction
thereof.
25. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Nevada applicable to contracts made and to be performed in such
State without giving effect to the principles of conflicts of laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS]
12
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement on and as of the day and year first above written.
|
COMPANY:
|
|||
|
ECO SCIENCE SOLUTIONS INC
|
|||
|
By:
|
/s/ Jeffery Taylor |
||
|
Name:
|
Jeffery Taylor
|
||
|
Title:
|
CEO
|
||
|
Address:
|
1135 Makawao Ave #103-188
Makawao HI 96768
|
||
|
INDEMNITEE:
|
|||
|
By:
|
/s/ Michael D Rountree |
||
|
Name:
|
Michael D Rountree
|
||
|
Address:
|
300 S. El Camino Real #206
San Clemente, CA 92672
|
||
Approved by Ombudsman
By: /s/ A Carl Mudd
A Carl Mudd
172 Eagles Peak S
Bullard, TX 75757
13
DEBT SETTLEMENT AND SUBSCRIPTION AGREEMENT
Dated: 28 January 2021
BETWEEN:
Eco Science Solutions, Inc. (the “Company”), a company incorporated under the laws of the State of Nevada, with an address for business at
1135 Makawao Avenue Suite 103-188, Makawao, Hawaii 96768-7402;
AND:
Rountree Consulting, Inc. (the “Subscriber”), a company incorporated under the laws of the State of California, with a business address of 300 S. El Camino
Real Suite 206 San Clemente, CA 92672.
WHEREAS:
A. Subscriber is owed funds with respect to certain advances and loans to the Company (the “Total Debt”) as
evidenced by promissory notes (the “Promissory Notes”) previously disclosed into the public market.
B. The Subscriber has agreed to accept 500,000 unregistered, restricted shares of the Company’s common stock
at a price of US $.50 per share (collectively, the “Shares”), in settlement of a portion of the Subscriber’s Total Debt, in the amount of $250,000 (the Settled Debt)
pursuant to the terms and conditions set forth in this Agreement.
NOW THEREFORE THIS AGREEMENT witnesses that, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
|
1.
|
Interpretation
|
1.1 In this Agreement, words importing the singular number only shall include the plural and vice versa,
words importing gender shall include all genders and words importing persons shall include individuals, corporations, partnerships, associations, trusts, unincorporated organizations, governmental bodies and other legal or business entities of any
kind whatsoever.
1.2 Any reference to currency is to the currency of the United States of America unless otherwise indicated.
|
2.
|
Acknowledgement of Indebtedness
|
2.1 The Company and the Subscriber acknowledge and agree that the Company is indebted to the Subscriber, and
the Subscriber does hereby warrant that the debt relative to this Agreement is not currently in breach, has not been exchanged, transferred, pledged or assigned,
2.2 The Company’s Board of Directors further acknowledge that any remaining debt held by Subscriber shall be
consolidated into one Note separate from this Agreement, having new terms and conditions as approved by the Company’s Board of Directors.
|
3.
|
Payment of Indebtedness
|
3.1 As full and final payment of the Settlement Amount, the Company will on the Closing Date (as defined
herein) issue to the Subscriber the Shares, as fully paid and non-assessable, and the Subscriber will accept the Shares as full and final payment of the Settled Debt.
1
|
4.
|
Release
|
4.1 The Subscriber hereby agrees that upon delivery of the Shares by the Company in accordance with the
provisions of this Agreement, the Settled Debt will be fully satisfied and extinguished, and the Subscriber will remise, release and forever discharge the Company and its respective directors, officers, employees, successors, solicitors, agents and
assigns from any and all obligations relating to the Settled Debt.
|
5.
|
Documents Required from Subscriber
|
5.1 The Subscriber must complete, sign and return to the Company:
|
(a)
|
two (2) executed copies of this Agreement;
|
5.2 The Subscriber shall complete, sign and return to the Company as soon as possible, on request by the
Company, any documents, questionnaires, notices and undertakings as may be required by regulatory authorities, the OTC Bulletin Board, stock exchanges and applicable law.
|
6.
|
Closing
|
6.1 Closing of the offering of the Shares (the “Closing”) shall occur
on such date as may be determined by the Company and the Subscriber (the “Closing Date”).
7.1 The Subscriber acknowledges and agrees that:
|
(a)
|
Investment Purpose. As of the date hereof, the Subscriber is purchasing the Common Stock for its own account and not with a present view towards the public sale or distribution
thereof, except pursuant to sales registered or exempted from registration under the 1933 Act; provided, however, except as otherwise set forth in this Agreement, that by making the representations herein, the Subscriber
does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the 1933
Act.
|
|
(b)
|
Accredited Investor Status. The Subscriber is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D of the 1933 Act (an “Accredited Investor”).
|
|
(c)
|
Reliance on Exemptions. The Subscriber understands that the Securities are being offered and sold to it in reliance upon specific exemptions from the registration requirements of
federal and state securities laws and that the Company is relying upon the truth and accuracy of, and the Subscriber’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Subscriber set
forth herein in order to determine the availability of such exemptions and the eligibility of the Subscriber to acquire the Securities.
|
|
(d)
|
Information. The Subscriber has been furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the
Securities which have been requested by the Subscriber. The Subscriber has been afforded the opportunity to ask questions of, and to receive answers from, representatives of the Company. Neither such inquiries nor any other due diligence
investigation conducted by Subscriber or any of its advisors or representatives shall modify, amend or affect Subscriber’s right to rely on the Company’s representations and warranties contained in Section 3 below. The Subscriber
understands that its investment in the Securities involves a significant degree of risk. The Subscriber is not aware of any facts that may constitute a breach of any of the Company's representations and warranties made herein.
|
2
|
(e)
|
Governmental Review. The Subscriber understands that no United States federal or state agency or any other government or governmental agency has passed upon or made any recommendation
or endorsement of the Securities.
|
|
(f)
|
Transfer or Re-sale. The Subscriber understands that the sale or re-sale of the Securities has not been and is not being registered under the 1933 Act or any applicable state
securities laws, and the Securities may not be transferred unless the Securities are sold pursuant to an effective registration statement under the 1933 Act, the Subscriber shall have delivered to the Company, at the cost of the Subscriber,
an opinion of counsel that shall be in form, substance and scope customary for opinions of counsel in comparable transactions to the effect that the Securities to be sold or transferred may be sold or transferred pursuant to an exemption
from such registration, which opinion shall be accepted by the Company, the Securities are sold or transferred to an “affiliate” (as defined in Rule 144 promulgated under the 1933 Act (or a successor rule) (“Rule 144”) of the Subscriber who
agrees to sell or otherwise transfer the Securities only in accordance with this Section 7(f) and who is an Accredited Investor, the Securities are sold pursuant to Rule 144, or the Securities are sold pursuant to Regulation S under the
1933 Act (or a successor rule) (“Regulation S”), and the Subscriber shall have delivered to the Company, at the cost of the Subscriber, an opinion of counsel that shall be in form, substance and scope customary for opinions of counsel in
corporate transactions, which opinion shall be accepted by the Company; (ii) any sale of such Securities made in reliance on Rule 144 may be made only in accordance with the terms of said Rule and further, if said Rule is not applicable,
any re-sale of such Securities under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other
exemption under the 1933 Act or the rules and regulations of the SEC thereunder; and (iii) neither the Company nor any other person is under any obligation to register such Securities under the 1933 Act or any state securities laws or to
comply with the terms and conditions of any exemption thereunder (in each case).
|
Legends. The Subscriber understands that the Securities will bear a restrictive legend stating the following:
The Securities represented by this certificate have not been registered under the Securities Act of 1933, as amended. No sale or distribution may be effected without an effective registration
statement or a legal opinion, in a form satisfactory to the Company, that such registration is not required under the Securities Act of 1933.
(and that stop-transfer orders may be placed against transfer of the certificates for such Securities).
|
(g)
|
No Short-Sales. For a period of twenty-four (24) months from the date of this Agreement, Subscriber will not, directly or through an affiliate, engage in any open market Short Sale
(as defined below) of any shares of Company’s common stock. As used herein, “Short Sale” has the meaning provided in Rule 3b-3 under the Securities Exchange Act of 1934, as amended.
|
|
(h)
|
Authorization; Enforcement. This Agreement has been duly and validly authorized. This Agreement has been duly executed and delivered on behalf of the Subscriber, and this Agreement
constitutes a valid and binding agreement of the Subscriber enforceable in accordance with its terms.
|
3
|
(i)
|
Confidentiality; Material Non-Public Information. The Subscriber expressly acknowledges and agrees that certain of the Confidential Information disclosed to it, including, but not limited
to, the information concerning this private placement, or the terms, conditions or other facts relating thereto or the fact that Confidential Information has been made available to the Subscriber, includes material non-public information
that has not been publicly disclosed by the Company. In addition, the Subscriber expressly acknowledges and agrees that it is an “insider” of the Company and may from time to time receive or be aware of certain Confidential Information that
may represent material non-public information that has not been publicly disclosed by the Company. The Subscriber understands that federal securities laws impose restrictions on trading based on information regarding this offering or any
other material non-public information. The Subscriber expressly agrees that until such time as the Confidential Information is disclosed to the public by the Company, the Recipient will hold in confidence and not disclose or make use of, or
in any way disseminate within his own organization or to any third party, any Confidential Information of the Company which is supplied to or obtained by him. In addition, the Subscriber agrees that he will (i) not use the Confidential
Information in such a way as to violate the 1933 Act, the Securities Exchange Act of 1934, as amended (the “1934 Act”), and any other rules or regulations promulgated thereunder; (ii) communicate only with the designated representatives of
the Company concerning the Confidential Information; (iii) keep all Confidential Information confidential and in his sole possession; and (iv) not engage in any trading activity involving any securities of the Company, including, but not
limited to options, short sales, hedging or any other derivatives or positions concerning securities of the Company.
|
“Confidential Information’’ as used in this Agreement shall mean any and all documents, materials, data and/or information, in whatever form or format (including, without
limitation, electronic media) which relates to the business of the Company or its affiliates provided or disclosed to the Subscriber and that is either confidential, proprietary or otherwise not generally available to the public, whether or not
marked confidential. Confidential Information includes, by way of example and without limitation, the Company’s confidential and/or proprietary information, any material non- public information (within the meaning of Regulation FD promulgated under
the 1933 Act and the 1934 Act) and/or trade secrets that have been developed or used and/or will be developed and that cannot be obtained readily by third parties from outside sources; financial information; corporate information; business plans;
budgets; valuations; financial projections; records; customer lists; business forecasts; information regarding the Company's internal operations; plans and strategies for development, expansion, divestitures or acquisitions, or any proposals, bids or
letters of intent for such; executive summaries; business models; and business, sales and marketing plans of the Company and its affiliates. Notwithstanding the foregoing, the term “Confidential Information” shall not include information which
becomes or is generally available to the public other than as a result of a disclosure by or through Subscriber, or that the Subscriber is legally required to disclose; provided, however, that if the Subscriber is requested or ordered to disclose any
such information pursuant to any court or other government order or any other applicable legal procedure, it shall provide the Company with prompt notice of any such request or order in time sufficient to enable the Company to seek an appropriate
protective order.
|
8.
|
Representations and Warranties of the Company. The Company represents and warrants to the Subscriber that:
|
|
(a)
|
Organization and Qualification. The Company and each of its subsidiaries, if any, is a corporation duly organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated, with full power and authority (corporate and other) to own, lease, use and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted.
|
4
|
(b)
|
Authorization; Enforcement. (i) The Company has all requisite corporate power and authority to enter into and perform this Agreement and to consummate the transactions contemplated
hereby and thereby and to issue the Securities, in accordance with the terms hereof and thereof, (ii) the execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby
have been duly authorized by the Company’s Board of Directors and no further consent or authorization of the Company, its Board of Directors, or its shareholders is required, and (iii) this Agreement has been duly executed and delivered by
the Company by its authorized representative, and such authorized representative is the true and official representative with authority to sign this Agreement and the other documents executed in connection herewith and bind the Company
accordingly.
|
|
(c)
|
Acknowledgment Regarding Purchase of Securities. The Company acknowledges and agrees that the Subscriber is acting solely in the capacity of arm’s length purchasers with respect to
this Agreement and the transactions contemplated hereby. The Company further acknowledges that the Subscriber is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and
the transactions contemplated hereby and any statement made by the Subscriber or any of its respective representatives or agents in connection with this Agreement and the transactions contemplated hereby is not advice or a recommendation
and is merely incidental to the Subscriber’ purchase of the Securities. The Company further represents to the Subscriber that the Company’s decision to enter into this Agreement has been based solely on the independent evaluation of the
Company and its representatives.
|
|
(d)
|
No Integrated Offering. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales in any
security or solicited any offers to buy any security under circumstances that would require registration under the 1933 Act of the issuance of the Securities to the Subscriber. The issuance of the Securities to the Subscriber will not be
integrated with any other issuance of the Company’s securities (past, current or future) for purposes of any shareholder approval provisions applicable to the Company or its securities.
|
|
(e)
|
Bad Actor. No officer or director of the Company would be disqualified under Rule 506(d) of the Securities Act as amended on the basis of being a "bad actor" as that term is
established in the September 19, 2013 Small Entity Compliance Guide published by the Securities and Exchange Commission.
|
|
9.
|
Costs
|
9.1 The Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including
any fees and disbursements of any special counsel retained by the Subscriber) relating to the acquisition of the Shares shall be borne by the Subscriber.
|
10.
|
Governing Law; Miscellaneous.
|
10.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of
Nevada without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of Nevada or in the federal courts
located in the state of Nevada. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. The prevailing party shall be entitled to recover from the other party its reasonable attorney's fees and costs.
5
10.2 Counterparts; Signatures by Facsimile. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which shall constitute one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other party hereto by facsimile transmission of a copy of this Agreement bearing the signature of the party so delivering this Agreement.
10.3 Headings. The headings of this Agreement are for convenience of reference only
and shall not form part of, or affect the interpretation of, this Agreement.
10.4 Severability. In the event that any provision of this
Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law.
Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.
10.5 Entire Agreement; Amendments. This Agreement and the instruments referenced
herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Subscriber makes any representation, warranty, covenant
or undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by the majority in interest of the Subscriber.
10.6 Notices. All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered
by reputable air courier service with charges prepaid, (iv) via electronic mail or (v) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently by
written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at
the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received) or delivery via electronic mail, or the first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such
mailing, whichever shall first occur. The addresses for such communications shall be:
If to the Company, to:
Eco Science Solutions, Inc.
1135 Makawao Avenue Suite 103-188
Makawao, HI 96768
If to the Subscriber to:
Rountree Consulting, Inc.
300 S. El Camino Real Suite 206
San Clemente, CA 92672
If to the Chairman of the Board:
A Carl Mudd
172 Eagles Peak S
Bullard, TX 75757
Each party shall provide notice to the other party of any change in address.
6
10.7 Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties and their successors and assigns. Neither the Company nor the Subscriber shall assign this Agreement or any rights or obligations hereunder without the prior written consent of the other. Notwithstanding the foregoing, the
Subscriber may assign its rights hereunder to any person that purchases Securities in a private transaction from the Subscriber or to any of its “affiliates,” as that term is defined under the 1934 Act, without the consent of the Company.
10.8 Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
10.9 Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and
things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
IN WITNESS WHEREOF the Subscriber has duly executed this Agreement as of the date first above mentioned.
DELIVERY INSTRUCTIONS
|
1.
|
Delivery - please deliver the certificates to:
|
Rountree Consulting, Inc. 300 S. El Camino Real #206 San Clemente, CA 92672
The undersigned hereby acknowledges that it will deliver to the Company all such additional completed form in respect of the Subscriber’s acquisition of the Shares as may be required for filing
with the appropriate securities commissions and regulatory authorities.
Rountree Consulting, Inc.
(Name of Subscriber – Please type or print)
(Name of Subscriber – Please type or print)
/s/Michael Rountree
/s/
300 S. El Camino Real #206
San Clemente, CA 92672
United States
Eco Science Solutions, Inc.
By: /s/Jeffery Taylor
Jeffery Taylor, CEO
1135 Makawao Avenue Suite 103-188
Makawao, HI 96768
7
ACCEPTANCE
The above-mentioned Agreement in respect of the Shares is hereby accepted by the Company.
DATED this 28th day of January 2021.
Per: /s/A Carl Mudd
A Carl Mudd
Ombudsman
8
EX 10.4
ASSET PURCHASE AGREEMENT
AMONG
ECO SCIENCE SOLUTIONS, INC.
AND
HAIKU HOLDINGS, LLC
DATED:
JANUARY 28, 2021
1
TABLE OF CONTENTS
| PAGE | |
|
BACKGROUND
|
1
|
|
ARTICLE I – SALE AND PURCHASE OF ASSETS
|
1
|
|
Section 1.01 Purchased Assets
|
1
|
|
Section 1.02 No Assumed Obligations
|
1
|
|
Section 1.03 Consideration
|
1
|
|
Section 1.04 Reporting of Asset Sale
|
1
|
|
ARTICLE II – CLOSING; DOCUMENTS OF CONVEYANCE
|
2
|
|
Section 2.01 Closing
|
2
|
|
Section 2.02 Actions to be Taken at the Closing
|
2
|
|
Section 2.03 Transfer of Possession
|
2
|
|
ARTICLE III – REPRESENTATIONS AND WARRANTIES OF BUYER
|
2
|
|
Section 3.01 Organization, Qualification and Corporate Power
|
2
|
|
Section 3.02 Legal Proceedings
|
3
|
|
Section 3.03 Authority; Binding Nature of Agreement
|
3
|
|
Section 3.04 Non-Contravention
|
3
|
|
Section 3.05 Valid Issuance
|
3
|
|
Section 3.06 No Additional Agreements
|
3
|
|
ARTICLE IV – REPRESENTATIONS AND WARRANTIES OF SELLER 3
|
3
|
|
Section 4.01 Legal Proceedings
|
3
|
|
Section 4.02 Assets
|
4
|
|
Section 4.03 Compliance with Laws
|
4
|
|
Section 4.04 Authority; Binding Nature of Agreement
|
4
|
|
Section 4.05 Non-Contravention
|
4
|
|
Section 4.06 Intellectual Property
|
4
|
|
Section 4.07 Royalties, Commissions, Fees
|
6
|
|
Section 4.08 Absence of Certain Changes or Events
|
6
|
|
|
6
|
2
|
Section 4.9 Brokers
|
6
|
|
Section 4.10 Full Disclosure
|
6
|
|
ARTICLE V – CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
|
6
|
|
Section 5.01 Accuracy of Representations
|
6
|
|
Section 5.02 Performance of Covenants
|
6
|
|
Section 5.03 Consents
|
6
|
|
Section 5.04 Release of Liens and Security Interests
|
7
|
|
Section 5.05 Agreements and Documents
|
7
|
|
Section 5.06 No Legal Proceedings
|
7
|
|
Section 5.07 Due Diligence Review
|
7
|
|
ARTICLE VI – CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER 7
|
7
|
|
Section 6.01 Accuracy of Representations
|
7
|
|
Section 6.02 Performance of Covenants
|
7
|
|
Section 6.03 Consents, Waivers, Releases
|
7
|
|
Section 6.04 Agreements and Documents
|
7
|
|
ARTICLE VII – SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
|
7
|
|
Section 7.01 Survival
|
7
|
|
Section 7.02 Seller’s Agreement to Indemnify
|
8
|
|
ARTICLE VIII – COVENANTS; CONDUCT OF THE PARTIES AFTER CLOSING
|
8
|
|
Section 8.01 Cooperation.
|
8
|
|
ARTICLE IX – TERMINATION
|
8
|
|
Section 9.01 Termination of Agreement
|
8
|
|
Section 9.02 Termination Procedure; Effect of Termination
|
9
|
|
ARTICLE X – MISCELLANEOUS
|
9
|
|
Section 10.01 Further Assurances
|
9
|
|
Section 10.02 Fees and Expenses
|
9
|
|
Section 10.03 Notices
|
9
|
|
Section 10.04 Severability
|
10
|
|
|
3
|
Section 10.05 Headings
|
10
|
|
Section 10.06 Counterparts
|
10
|
|
Section 10.07 Governing Law
|
10
|
|
Section 10.08 Successors and Assigns
|
10
|
|
Section 10.09 Remedies Cumulative; Specific Performance
|
10
|
|
Section 10.11 Waiver
|
10
|
|
Section 10.12 Amendments
|
11
|
|
Section 10.13 Entire Agreement
|
11
|
4
EXHIBITS
|
Exhibits
|
Description
|
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Exhibit A
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Certain Definitions
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Exhibit B
Exhibit C
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Bill of Sale and Assignment
Intellectual Property Assignment
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SCHEDULES
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Buyer
Schedules
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Description
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1.0
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Purchased Assets
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the “Agreement”) is made as of the 28th day of January, 2021, by and among, ECO SCIENCE SOLUTIONS, INC., having a business address at
1135 Makawao Avenue, Suite 103-188 Makawao, HI 96768 (hereafter, “ESSI” or “Buyer”), and HAIKU HOLDINGS, LLC, having
an address at 300 S. El Camino Real #206 San Clemente, CA 92672 (hereafter, “HH” or “Seller”).
WHEREAS, Seller has developed a proprietary Software platform and intellectual properties in the business of
enterprise accounting, inventory management, customer relationship management, and overall business operations (the “Software”);
WHEREAS, Buyer desires to purchase certain assets from Seller; and
WHEREAS, Seller desires to sell such assets under the terms and conditions set forth in this Agreement, and Buyer
has agreed to purchase such assets under such terms and conditions; and
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises, covenants, representations,
warranties, and agreements contained herein, and intending to be legally bound, Seller, and Buyer agree as follows:
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1.01 Purchased Assets. Subject to the terms and conditions of this Agreement, on the Closing Date (as defined in Section 2.01), Seller hereby assigns and
transfers to Buyer, and Buyer will purchase, acquire and take assignment from Seller (the “Acquisition”), the assets of Seller set forth on Schedule 1.0 (the “Purchased Assets”), free and clear of all security interests, liens, restrictions, claims, encumbrances or charges of
any kind (“Encumbrances”).
Section 1.02 No Assumed Obligations. The Buyer does not assume and shall have no responsibility for any of the
Seller obligations related to the Purchased Assets (including leases and liabilities of any type, kind or nature), whether fixed, accrued, contingent or otherwise, and whether arising in contract, in tort, by violation of law, by operation of law,
or otherwise, and all such obligations, past, present, or arising in the future, shall remain with the Seller.
Section 1.03 Consideration. At the Closing (as defined in Section 2.01), ESSI shall deliver to Seller and/or
their assigns an aggregate of 1,500,000 shares of its common stock (the “Shares”), which shall bear a legend stating the following:
The Securities represented by this certificate have not been registered under the Securities
Act of 1933, as amended. No sale or distribution may be effected without an effective registration statement or a legal opinion, in a form satisfactory to the Company, that such registration is not required under the Securities Act of 1933.
Section
1.04 Reporting of Asset Sale. Each party agrees to report the purchase and sale contemplated herein on Internal Revenue Service Form 8594 or such other form
as appropriate. Any adjustment to the aggregate consideration to be paid by the Buyer hereunder shall result in an appropriate adjustment to the purchase price. Any software included in the Purchased Assets or any copy thereof shall, when
delivered to the Buyer by the Seller, be delivered by remote telecommunications from the Seller’s place of business, to the Buyer’s computer server, and the Buyer will not obtain possession of a copy of such Software in any tangible storage media,
so that the transfer of such Software will be exempt from California sales and use tax pursuant to Cal. Code Regs. Section 1502(f)(1)(D).
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Section
2.01 Closing. Subject to the satisfaction of the conditions set forth in Articles V and VI, the purchase and sale contemplated hereby shall be consummated at
a closing (referred to herein as the “Closing”) to be held at
the offices of ESSI or such other place as the parties shall mutually agree, on the earliest reasonably possible date after all conditions to Closing have been satisfied or waived, or such other date as the parties shall mutually agree (the “Closing Date”). The purchase and sale shall be deemed effective for all
purposes as of 5 p.m. Pacific time on the Closing Date (the “Effective Time”).
Section
2.02 Actions to be Taken at the Closing. At or contemporaneously with the Closing, the parties shall take or will have taken the following actions and shall
deliver or shall have delivered the following documents:
(a) Seller shall execute and deliver to Buyer a Bill of Sale and Assignment Agreement substantially in the form attached hereto as Exhibit B (the “Bill of Sale”) and an Intellectual
Property Assignment substantially in the form attached hereto as Exhibit C (the “IP Assignment”), together with such other instruments of conveyance and evidence of the transfer of title to the Purchased Assets from Seller.
(b) Buyer shall have caused to be delivered to Seller certificates representing the Shares.
(c) Buyer and Seller shall each deliver to the other (to the extent applicable), all other Transaction Documents, including consents, releases,
waivers and approvals (including, without limitation, resolutions and incumbency certificates of the directors and officers of each, and necessary minutes or resolutions of the stockholders of each) required for each party to enter into this
Agreement and consummate the transactions described herein and referred to in Articles V and VI.
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2.03 Transfer of Possession. Upon the date of the Closing, Seller
shall deliver to the Buyer full possession and enjoyment of the Purchased Assets. Buyer shall have the sole and exclusive world-wide right to use the Purchased Assets from the date of this Agreement.
Buyer represents and warrants to Seller that the statements contained in this Article III are true and correct, to
the best of Buyer’s knowledge, as of the date hereof and as of the Closing, except as set forth in the disclosure schedule which may be provided by Buyer to Seller on the date hereof and accepted in writing by Seller (the “Buyer Disclosure Schedule”). The Buyer Disclosure Schedule, if any, shall be arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in
this Article III; and to the extent that it is clear from the context thereof that such disclosure also applies to any other numbered paragraph contained in this Article III, the disclosures in any numbered paragraph of the Buyer Disclosure Schedule
shall qualify such other corresponding numbered paragraph in this Article III. For purposes of this Article III, the phrase “to the knowledge of
Buyer” or any phrase of similar import shall be deemed to refer to any and all information actually known by any officer or director of Buyer or which such officer or director would have known after reasonable inquiry and investigation.
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3.01 Organization, Qualification and Corporate Power. ESSI is a corporation duly organized, validly existing and in corporate and tax good standing
under the laws of the State of Nevada. Buyer is duly qualified to conduct business and is in corporate and tax good standing under the laws of each jurisdiction in which the nature of its businesses or the ownership or leasing of its properties
requires such qualification, except where the failure to be so qualified or in good standing, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Buyer has all requisite corporate
power and authority to carry on the businesses in which it is engaged and to own and use the properties owned and used by it. Buyer has furnished or made available to Seller complete and accurate copies of its certificate of incorporation and bylaws.
Buyer is not in default under or in violation of any provision of its certificate of incorporation, as amended to date, or its bylaws, as amended to date.
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Section
3.02 Legal Proceedings. There is no pending Legal Proceeding, and, to the best of the knowledge of Buyer, no Person has threatened to commence any Legal
Proceeding that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with any of the transactions contemplated by this Agreement.
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3.03 Authority; Binding Nature of Agreement. Buyer has all requisite power and authority to enter into and to perform its obligations under the Transaction
Documents; the execution, delivery and performance by Buyer of the Transaction Documents have been duly authorized by all necessary action on the part of Buyer and their board of directors; and the approval of Buyer shareholders is not required.
The Transaction Documents constitute the legal, valid and binding obligation of Buyer, enforceable against them in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors,
and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. At the Closing, Buyer will deliver to Seller such evidence of the authorization of its execution, delivery, and performance of the Transaction
Documents as Seller may reasonably request.
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3.04 Non-Contravention. Neither (i) the execution delivery or performance of the Transaction Documents, nor (ii) the consummation of any of the transactions
contemplated by this Agreement, will directly or indirectly (with or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of (i) the provisions of the respective articles of incorporation or bylaws of Buyer, or (ii) any
resolution adopted by the shareholders or board of directors of Buyer; or
(b) contravene, conflict with or result in a violation of, or give any Governmental Body or any Person the right to challenge any of the transactions
contemplated by this Agreement or to exercise any remedy or obtain any relief under, any Legal Requirement or any order, writ, injunction, judgment, or decree to which Buyer, or any of the assets owned or used by them, is subject.
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3.05 Valid Issuance. The Shares will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable.
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3.06 No Additional Agreements. Buyer does not have any understanding with Seller with respect to the transactions contemplated by this Agreement other than as specified in this Agreement, and the other Transaction Documents.
Seller represents and warrants to Buyer that the statements contained in this Article IV are true and correct, to
the best of Sellers’s knowledge, except as set forth in the disclosure schedule, which is to be provided by Seller to Buyer on the date hereof and accepted in writing by Buyer (the “Seller Disclosure Schedule”), inclusive of Software warranty provisions. The Seller Disclosure Schedule shall be arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in this
Article IV; and to the extent that it is clear from the context thereof that such disclosure also applies to any other numbered paragraph contained in this Article IV, the disclosures in any numbered paragraph of the Seller Disclosure Schedule shall
qualify such other corresponding numbered paragraph in this Article IV. For purposes of this Article IV, the phrase “to the knowledge of Seller”
or any phrase of similar import shall be deemed to refer to any and all information actually known by Seller or which Seller would have known after reasonable inquiry and investigation.
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4.01 Legal Proceedings. There is no pending Legal Proceeding, and, to the best of the knowledge of Seller, no Person has threatened to commence any Legal Proceeding: (i) that involves Seller or any of the Purchased Assets; or (ii) that
challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with any of the transactions contemplated by this Agreement.
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Section
4.02 Assets. Seller has, and will have at the Closing, good, valid and marketable title to all of the Purchased Assets, free and clear of any and all Encumbrances. Seller has not sold, transferred, assigned or conveyed any of its
right, title and interest, or granted or entered into any option to purchase or acquire any of its right, title or interest, in and to any of the Purchased Assets. No third party has any option or right to acquire any of the Purchased Assets. The
Software was created exclusively by employees, shareholders and/or independent contractors of Seller acting within the scope of their employment or engagement with Seller.
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4.03 Compliance with Laws. Seller has at all times conducted its business related to the Purchased Assets, to the best of Seller’s knowledge, in compliance with all applicable laws, regulations, ordinances and other requirements of all
Governmental Bodies (including applicable federal, state and local laws, rules and regulations respecting occupational safety and health standards). Seller has not received any notice, advice, claim or complaint from any employee or Governmental Body
that Seller has not conducted, or is not presently conducting, its business and operations, if any, related to the Purchased Assets in accordance with all applicable laws and other requirements of Governmental Bodies.
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4.04 Authority; Binding Nature of Agreement. Seller has the absolute and unrestricted right, power and authority to enter into and to perform its obligations under the Transaction Documents. The Transaction Documents constitute the
legal, valid and binding obligation of the Seller, enforceable against each the Seller in accordance with their terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief and other equitable remedies. At the Closing, the Seller will deliver to Buyer such evidence of the authorization of Seller’s execution, delivery, and performance of the Transaction Documents as Buyer
may reasonably request.
Section
4.05 Non-Contravention. Neither (i) the execution, delivery or performance of this Agreement or any of the other Transaction Documents, nor (ii) the consummation of any of the transactions contemplated by this Agreement, will directly
or indirectly (with or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of, or give any Governmental Body or other Person the right to challenge any of the transactions
contemplated by this Agreement or to exercise any remedy or obtain any relief under, any Legal Requirement or any order, writ, injunction, judgment or decree to which Seller, or any of the Purchased Assets are subject; or
(b) contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any contract to which Seller or the
Purchased Assets are subject, or give any Person the right to (i) declare a default or exercise any remedy under any such contract, (ii) accelerate the maturity or performance of any such contract, or (iii) cancel, terminate or modify any such
contract.
(a) Seller has the valid and exclusive right to use all Intellectual Property (as defined below) related to the Purchased Assets. No other Person has any
rights to any of the Intellectual Property related to the Purchased Assets, and no Person or Entity is infringing, violating or misappropriating any of the Intellectual Property that Seller has an exclusive right to use. For purposes of this
Agreement, “Intellectual Property” means, among other things, all (a) patents, patent applications, registrations, patent disclosures and all related continuations,
continuations-in-part, divisions, reissues, and reexaminations, utility models, certificates of invention and design patents, and all improvements thereon and extensions thereof, (b) trademarks, service marks, trade dress, logos, slogans,
corporate names, trade names, domain names, web-based technology and website content, social media, including social media accounts and handles, and other
designations of source, origin, sponsorship, endorsement or certification of the intellectual property, together with the goodwill associated with any of the foregoing, and all applications and registrations therefor, (c) copyrights and
registrations and applications therefor, together with all translations, adaptations, derivations and combinations therefor, works of authorship, publications, website content, and moral rights, (d) confidential and proprietary information,
including, without limitation, trade secrets, concepts, ideas, research and development, financial, marketing and business data, pricing and
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cost information, business and marketing plans,
algorithms, know-how, formulae, inventions (whether or not patentable), processes, techniques, technical data, designs, drawings, specifications, databases, and customer and supplier lists and information, (e) computer programs, software, including
any and all software implementations of algorithms, hardware, models and methodologies, whether in source code or object code, operating systems, design documents, website code, operating systems and specifications, flow-charts, user manuals and
training materials relating thereto and any translations thereof, (f) other intellectual property or similar, corresponding or equivalent right to any of the foregoing, whether or not any of these is registered and including any
registrations and applications for registration of any of the foregoing in (a) through (e), (g) all rights of privacy and publicity, including rights to the use of
names, likenesses, images, voices, signatures and biographical information of real persons, as well as all suits, actions or other proceedings and rights to sue at law or in equity for any past, present or future infringements, misappropriations or
other impairment of any of the foregoing in (a) through (g), including the right to receive all proceeds and damages therefrom, and all rights of protection of interest therein under the laws of all jurisdictions, and (h) copies and tangible embodiments or descriptions of any and all of the foregoing (in whatever form or medium).
(b) The use, manufacture, copying, distribution, offering for sale, importing or sale of the Purchased Assets does not, and will not, infringe or
misappropriate any Intellectual Property Right of any third party. Seller has not received any written complaint, claim or notice alleging any such infringement, violation or misappropriation of any Intellectual Property of any other Person or
Entity, and to the knowledge of Seller there is no basis for such claims.
(c) Seller has no agreements with any Person or Entity pursuant to which Seller may obtain rights to Intellectual Property material to the Purchased
Assets that is owned by a Person or Entity other than Seller. Seller is not obligated to pay any royalties or other compensation to any third party in respect of the ownership, use or license of any of the Purchased Assets.
(d) Seller has taken commercially reasonable precautions (i) to protect their rights in and confidentiality of the Purchased Assets and (ii) to maintain
the confidentiality of their trade secrets and know-how. There have been no acts or omissions by Seller or their agents, the result of which would be to materially compromise the rights of Seller to apply for or enforce appropriate legal protection
of the Purchased Assets.
(e) Seller has not licensed any Intellectual Property Right in or to any Purchased Asset to any third party. There are no other contracts, licenses or
agreements between Seller and any other person with respect to any Purchased Asset.
(f) Schedule 1.0 lists all Registered Intellectual Property relating to the Purchased Assets, including the jurisdictions in which each Registered
Intellectual Property right has been issued or registered or in which any application for such issuance or registration has been filed. Seller has taken all actions necessary to maintain the Registered Intellectual Property, including payment of
applicable maintenance fees, filing of applicable statements of use, timely response to office actions and disclosure of any required information, and all assignments (and licenses where required) of the Registered Intellectual Property have been
duly recorded with the appropriate governmental authorities. Schedule 1.0 sets forth, as of the date of this Agreement, a true and complete list of all material actions that must be taken within 90 days of the date hereof with respect to any of
the Registered Intellectual Property. Seller has complied with all applicable notice and marking requirements for the Registered Intellectual Property. None of the Registered Intellectual Property rights has been adjudged invalid or unenforceable
in whole or part and all Registered Intellectual Property rights are subsisting, and to Seller's knowledge, are valid and enforceable. Seller has not received any written document or communication, and Seller has no knowledge of any oral or other
communication, questioning or challenging the patentability or validity of any claims of any of the foregoing registrations and applications.
(g) The Software is in conformity in all material respects with all applicable documentation, including without limitation documentation which is part of
the Purchased The Software and to the best of sellers knowledge is free of all “viruses”, “worms”, “faults”, “errors”, “trojan horses”, “time bombs”, “back
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doors”, and other errors, defects, infections or harmful routines that could disrupt, disable, harm, distort or otherwise impede in
any manner the operation of the Software, or any other associated software, firmware, hardware, computer system or network. No source code for the Software has ever been placed into an escrow for the benefit of any third party or subject to any
similar arrangement. The manner and form in which Seller uses and distributes any Open Source material with or in the Software (A) does not require that the source code of any Software be disclosed or distributed and (B) complies with the terms of
the applicable licenses for such Open Source material.
(h) The Purchased Assets constitute all of the assets and properties used and necessary to permit the Buyer to use the Software following the Closing in
the same manner as presently conducted and proposed by Buyer to be conducted.
Section
4.07 Royalties, Commissions, Fees. As of the Closing Date, there shall be no Entity or Person due or owed any continuing interest, including any royalty, commission fee or other payment related to the Purchased Assets.
Section
4.08 Absence of Certain Changes or Events. Except as would not have a Material Adverse Effect, from the date of this Agreement through the Closing, there will not be:
(a) any damage, destruction or loss relating to the Purchased Assets, whether or not covered by insurance, that would have a Material Adverse Effect; or
(b) any mortgage, pledge, transfer of a security interest in, or lien, created by Seller, with respect to any of the Purchased Assets, except liens for
taxes not yet due or payable and liens that arise in the ordinary course of business and do not materially impair Seller’s ownership or use of such property or assets;
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4.9 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s, investment banker’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.
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4.10 Full Disclosure. The Transaction Documents delivered by Seller to Buyer in connection with the transactions contemplated herein, do not (i) contain any representation, warranty or information that is false or misleading with
respect to any material fact, or (ii) omit to state any material fact necessary in order to make the representations, warranties and information contained and to be contained herein and therein not false or misleading.
The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to the
satisfaction, at or prior to the Closing, of each of the following conditions:
Section
5.01 Accuracy of Representations. Each of the representations and warranties made by Seller in this Agreement and in each of the other Transaction Documents delivered to Buyer in connection with the transactions contemplated by this
Agreement shall have been accurate in all respects as of the Closing.
Section
5.02 Performance of Covenants. Each covenant or obligation that Seller is required to comply with or to perform at or prior to the Closing shall have been complied with and performed in all respects.
Section
5.03 Consents. All necessary board, stockholder, and third-party consents, waivers and releases required to be obtained in connection with the transactions contemplated by this Agreement shall have been obtained (and copies thereof
shall have been provided to Buyer) and shall be in full force and effect.
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Section
5.04 Release of Liens and Security Interests. All liens and security interests on the Purchased Assets, if any, shall be released and all related discharge of lien notices and forms shall be filed and recorded in the appropriate
government offices in accordance with the requirements of the Uniform Commercial Code and copies of such notices and forms shall have been provided to Buyer.
Section
5.05 Agreements and Documents. Buyer shall have received a certificate executed by Seller containing the representation and warranty of Seller that each of the representations and warranties set forth in Article IV is accurate in all
material respects as of the Closing Date and that the conditions set forth in Article V have been duly satisfied.
Section 5.06 No Legal Proceedings. No Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation
or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree,
stipulation or injunction shall be in effect.
Section
5.07 Due Diligence Review. Buyer shall have reviewed and approved all materials in the possession and control of Seller, which are germane to the decision of Buyer to proceed with the Asset Purchase. Buyer and their advisors shall have
had a reasonable opportunity to perform the searches and other due diligence reasonable and customary in a transaction of a similar nature to the Acquisition and both Buyer and their advisors shall have been satisfied with the results of such due
diligence.
The obligations of Seller to consummate the transactions contemplated by this Agreement are subject to the
satisfaction, at or prior to the Closing, of the following conditions:
Section
6.01 Accuracy of Representations. Each of the representations and warranties made by Buyer in this Agreement and in each of the other Transaction Documents delivered to Seller in connection with the transactions contemplated by this
Agreement shall have been accurate in all respects as of the Closing.
Section
6.02 Performance of Covenants. All of the covenants and obligations that Buyer are required to comply with or to perform at or prior to the Closing shall have been complied with and performed in all respects.
Section
6.03 Consents, Waivers, Releases. All consents, waivers and releases required to be obtained in connection with the transactions contemplated by this Agreement shall have been obtained and shall be in full force and effect.
Section
6.04 Agreements and Documents. Seller shall have received a certificate executed by Buyer containing the representation and warranty that each of the representations and warranties set forth in Article III are accurate in all material
respects as of the Closing Date and that the conditions set forth in Article VI have been duly satisfied.
Section
7.01 Survival. The right to bring claims or assert causes of action for breach of any covenants, agreements, representations and warranties of the parties contained in this Agreement or in any certificate or other writing delivered
pursuant hereto or in connection herewith shall survive the Closing Date, provided, however, that (i) the covenants and agreements which by their terms do not contemplate performance after the Closing shall terminate as of the Closing; and (ii) the
covenants and agreements which by their terms contemplate performance after the Closing shall survive until the date specified in this Agreement or the Transaction Documents as the termination date for such covenants and agreements, or
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if no such date is specified, then such covenants and agreements shall survive until the expiration of any statute of limitations.
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7.02 Seller’s Agreement to Indemnify. Subject to the terms, conditions and limitations of this Agreement, Seller agrees to indemnify, defend and hold harmless Buyer, its officers, employees, directors, stockholders, agents, successors
and assigns (the “Buyer Indemnitees”) from and against all Damages to which any Buyer Indemnitee may become subject as a result of, arising out of,
or based on any of the following:
(a) any inaccuracy or breach of any representation or warranty made by Seller in this Agreement or any other Transaction Document, notwithstanding it is mutually understood that the
Software is being purchased from Seller by Buyer is being purchased in a state of completion (“As Is”);
(b) any breach, non-compliance, violation or non-fulfillment of any covenant or agreement contained in or made by Seller in this Agreement or any other Transaction Document;
(c) liabilities, obligations, or claims related to the Purchased Assets arising out of facts, conditions or circumstances occurring prior to the Closing Date; and
(d) any claim or liability for brokerage commissions or finder’s fees incurred by reason of any action taken by Seller.
Buyer and Seller will cooperate upon and after the Closing Date in effecting the orderly transfer of the Purchased Assets to Buyer.
Seller will make all Software available to Buyer and will facilitate the transfer of all Purchased Assets to Buyer of which Buyer assumes all cost to the Software transfer. Without limiting the generality of the foregoing, Seller, at the request of
Buyer and without additional consideration, will execute and deliver from time to time such further instruments of assignment, conveyance and transfer, will sign any documents necessary or useful to ensure that all of the right, title and interest in
and to the Purchased Assets vests in Buyer, and will take such other actions as may reasonably be required to convey and deliver to Buyer more effective title to the Purchased Assets, or to confirm and perfect Buyers’ title thereto, as contemplated
by this Agreement.
(a) prior to the Closing by mutual agreement of the parties; or
(b) prior to the Closing by Buyer upon a breach of or failure to perform in any material respect any representation, warranty, covenant or agreement on the part of Seller set forth
in this Agreement, such that the conditions set forth in Article VI cannot be satisfied on or prior to March 31, 2021; or
(c) prior to the Closing by Seller upon a breach of or failure to perform in any material respect any representation, warranty, covenant or agreement on the part of Buyer set forth
in this Agreement, such that the conditions set forth in Article VII cannot be satisfied on or prior to March 31, 2021; or
(d) by either party after March 31, 2021 if the Closing has not occurred on or prior to such date, provided that the party giving notice of termination is not responsible for the
failure to close on or prior to such date. Additionally, the Parties may mutually agree to extend this date to a period to be later defined.
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(a) In the event of termination by Seller or Buyer, or by the mutual agreement of Seller and Buyer, pursuant to Section 9.01 of this Agreement, written notice thereof shall
forthwith be given to the other party and the transactions contemplated by this Agreement shall be terminated, without further action or liability by either party or parties to the other (except for liability of any party for the willful breach of
this Agreement).
(b) If the transactions contemplated by this Agreement are terminated as provided herein, Seller and Buyer shall return the Purchased Assets to Seller and all documents, work papers
and other material of any other party relating to the transactions contemplated hereby, whether so obtained before or after the execution of this Agreement, to the party furnishing the same. Seller shall return to Buyer any Cash or Shares that had
been advanced by Buyer.
(c) In the event this Agreement is terminated, each party will keep confidential any information (unless such information is public information or is otherwise required by law to be
disclosed) obtained from the other party in connection with the transactions contemplated hereby and will not use, develop or disclose any such information in any manner whatsoever based on information provided by the other for a period of two (2)
years.
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10.01 Further Assurances. Each party hereto shall execute and cause to be delivered to each other party hereto such instruments and other documents, and shall take such other actions, as such other party may reasonably request (prior
to, at, or after the Closing) for the purpose of carrying out or evidencing any of the transactions contemplated by this Agreement.
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10.02 Fees and Expenses. All fees, costs and expenses (including legal fees and accounting fees) that have been incurred or that are incurred in the future by any party in connection with the transactions contemplated by this
Agreement, including all fees, costs and expenses incurred by such party in connection with or by virtue of (a) any investigation and review conducted by such party of the other party's business (and the furnishing of information in connection with
such investigation and review), (b) the negotiation, preparation and review of this Agreement and all agreements, certificates, opinions and other instruments and documents delivered or to be delivered in connection with the transactions contemplated
by this Agreement, (c) the preparation and submission of any filing or notice required to be made or given in connection with any of the transactions contemplated by this Agreement, and the obtaining of any Consent required to be obtained in
connection with any of such transactions, and (d) the consummation of the transactions contemplated hereby shall be paid: (i) by Buyer, if incurred by Buyer; and (ii) by Seller, if incurred by Seller.
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10.03 Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the address or facsimile telephone number set forth beneath the name of such party below (or to such other address or facsimile telephone number as such party shall have
specified in a written notice given to the other party hereto):
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if to Buyer:
Eco Science Solutions, Inc.
1135 Makawao Avenue Suite 103-188
Makawao, HI 96768
if to Seller:
Haiku Holdings, LLC
300 S. El Camino Real Suite 206
San Clemente, CA 92672
if to Chairman of the Board:
A Carl Mudd
172 Eagles Peak S
Bullard, TX 75757
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10.04 Severability. In the event that any provision of this Agreement, or the application of any such provision to any Person, Entity or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Agreement, and the application of such provision to Persons, Entities or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent permitted by law.
Section
10.05 Headings. The Section headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
Section
10.06 Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Nevada (without giving effect
to principles of conflicts of laws).
Section
10.08 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement may not be assigned by any party, unless mutually agreed to
by the Parties.
Section
10.09 Remedies Cumulative; Specific Performance. The rights and remedies of the parties hereto shall be cumulative (and not alternative). The parties to this Agreement agree that, in the event of any breach or threatened breach by any
party to this Agreement of any covenant, obligation or other provision set forth in this Agreement for the benefit of any other party to this Agreement, such other party shall be entitled (in addition to any other remedy that may be available to it)
to (a) a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other provision, and (b) an injunction restraining such breach or threatened breach.
(a) No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party in
exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or
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partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy.
(b) No party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless
the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument mutually agreed to by the Parties and duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or
have any effect except in the specific instance in which it is given.
Section
10.12 Amendments. This Agreement may not be amended, modified, altered or supplemented other than by means of a written instrument duly executed and delivered on behalf of all of the parties hereto.
Section
10.13 Entire Agreement. This Agreement and the attached Exhibits and Schedules set forth the entire understanding of the parties hereto relating to the subject matter hereof and thereof and supersedes all prior agreements and
understandings among or between any of the parties relating to the subject matter hereof.
[Signature page to follow]
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The parties hereto have caused this Agreement to be executed and delivered as of the date first above written.
| Buyer |
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| ECO SCIENCE SOLUTIONS, INC. |
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/s/Jeffery Taylor
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Jeffery Taylor
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Chief Executive Officer
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| Seller |
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| HAIKU HOLDIGD LLC |
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| /s/Michael D. Rountree |
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| Michael D. Rountree |
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| Manager | |||
| Ombudsman Approved: | |||
| By: /s/A. Carl Mudd |
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| A. Carl Mudd |
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EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement (including this Exhibit A):
CONSENT. “Consent” shall mean any approval, consent, ratification, permission, waiver or authorization (including
from a Governmental Body).
COPYRIGHTS. “Copyrights” means (i) any copyright in any original works of authorship fixed in any tangible medium
of expression as set forth in 17 U.S.C. Section 101 et. seq., whether registered or unregistered, including any applications for registration thereof, (ii) any corresponding foreign copyrights under the laws of any jurisdiction, in each case, whether
registered or unregistered, and any applications for registration thereof, and (iii) moral rights under the laws of any jurisdiction.
DAMAGES “Damages” shall mean all demands, claims, actions or causes of action, assessments, judgments, fines,
losses, damages, liabilities, costs and expenses, including, without limitation, interest, penalties, punitive and exemplary damages, costs of investigation, clean-up and remediation and reasonable attorneys’ fees and reasonable expenses.
ENTITY. “Entity” shall mean any corporation (including any non-profit corporation), general partnership, limited
partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization or entity.
GOVERNMENTAL BODY. “Governmental Body” shall mean any court, tribunal, arbitrator, authority, agency, commission,
official or other instrumentality of the United States, any foreign country or any domestic or foreign state, county, city, local or other political subdivision.
INTELLECTUAL PROPERTY RIGHTS. “Intellectual Property Rights” means all current and future worldwide common law and
statutory rights, whether arising under the laws of the United States of America or any other state, country, jurisdiction, government, or public legal authority, in, to, or associated with: (i) Copyrights and all other rights in software and other
works of authorship; (ii) rights in or to inventions, invention disclosures, formulae, ideas, concepts, drawings, specifications, designs, plans, trade secrets, proprietary information, industrial models, and know-how; (iii) Patents and Patent
applications; (iv) Trademarks and goodwill associated therewith; (v) all rights in or to data, databases, data collections, and data compilations; (vi) all other proprietary or intellectual property rights; (vii) any rights analogous or similar to
any of the above; (viii) applications for, divisions, continuations, renewals, reissuances, and extensions of the foregoing (as applicable); (ix) rights to apply for, file for, certify, register, record, or perfect any of the foregoing; and (x) all
right, title and interest in and to any and all causes of action and rights of recovery for past infringement, or misappropriation, relating to any of the foregoing.
LEGAL PROCEEDING. “Legal Proceeding” shall mean any action, suit, litigation, arbitration, proceeding (including
any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Body or
any arbitrator or arbitration panel.
LEGAL REQUIREMENT. “Legal Requirement” shall mean any federal, state, local, municipal, foreign or other law,
statute, constitute, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any
Governmental Body.
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MATERIAL ADVERSE EFFECT. A violation or other matter will be deemed to have a “Material Adverse Effect” on a Person
if such violation or other matter (considered together with all other matters that would constitute exceptions to the representations and warranties set forth in the Agreement or in any Closing Certificate but for the presence of “Material Adverse
Effect” or other materiality qualifications, or any similar qualifications, in such representations and warranties) would have a material adverse effect on such Person's business, condition, assets, liabilities, operations, financial performance or
prospects.
OPEN SOURCE MATERIAL. “Open Source Material” shall mean all software or other material that is distributed as
"free software", "open source software" or under a similar licensing or distribution model, including, but not limited to, the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), the Artistic
License (e.g., PERL), the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL), or any other license described by the Open Source Initiative as set forth on www.opensource.org.
PATENTS. “Patents” means patent applications and patents, and all divisions, continuations, continuations‑in‑part,
and substitutions thereof; all foreign patent applications corresponding to the preceding applications; and all U.S. and foreign patents issuing on any of the preceding applications, including extensions, reissues, and re‑examinations.
PERSON. “Person” shall mean any individual, Entity or Governmental Body.
REGISTERED INTELLECTUAL PROPERTY. “Registered Intellectual Property” means all Seller’s United States,
international and foreign: (i) Patents, including applications therefor; (ii) registered Trademarks, applications to register Trademarks, including intent‑to‑use applications, or other registrations or applications related to Trademarks, and domain
name registrations; (iii) Copyrights registrations and applications to register Copyrights; and (iv) any other application, certificate, filing, registration or other document issued by, filed with, or recorded by, any state, government or other
public or private legal authority at any time.
TAX. “Tax” shall mean any tax (including any income tax, franchise tax, capital gains tax, gross receipts tax,
value-added tax, surtax, excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business tax, withholding tax or payroll tax), levy, assessment, tariff, duty (including any customs duty), deficiency or fee, and any
related charge or amount (including any fine, penalty or interest), imposed, assessed or collected by or under the authority of any Governmental Body.
TAX RETURN. “Tax Return” shall mean any return (including any information return), report, statement, declaration,
estimate, schedule, notice, notification, form, election, certificate or other document or information filed with or submitted to, or required to be filed with or submitted to, any Governmental Body in connection with the determination, assessment,
collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any Legal Requirement relating to any Tax.
TRADEMARK. “Trademark” means any trademark, service mark, trade name, domain name, and the like, or other word,
name, symbol or device, or any combination thereof, used or intended to be used to identify and distinguish the source or origin of products or services, including without limitation all registrations and applications therefor throughout the world
and all common law and other rights therein throughout the world.
TRANSACTION DOCUMENTS. “Transaction Documents” shall mean this Agreement and each document, instrument and
agreement executed and delivered in respect of the transactions contemplated hereby.
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EXHIBIT B
BILL OF SALE AND ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS THAT, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the undersigned, HAIKU HOLDINGS, LLC (“Seller”),
does hereby sell, assign, convey, transfer and deliver to ECO SCIENCE SOLUTIONS, INC. (“Buyer”), all of Seller’s worldwide rights, title and
interest in and to the Purchased Assets, as defined in the Asset Purchase Agreement (the “Agreement”) by and among Buyer, Seller dated January ,
2021 which is incorporated herein by reference.
Seller hereby warrants to Buyer, their successors and assigns, that Seller is the rightful owner of the Purchased
Assets conveyed; that Seller is conveying to Buyer good and merchantable title to all of the Purchased Assets conveyed, free and clear of all liabilities, obligations, claims, and encumbrances of any kind or nature; and that Seller (and Seller’s
successors and assigns) will warrant and defend this sale against the claims and demands of all persons whomsoever.
Seller hereby covenants and agrees that he will, at the request of Buyer and without further consideration, execute
and deliver, such other instruments of sale, transfer, conveyance and assignment, and take such other action as may be reasonably necessary to vest in Buyer, its successors and assigns, good and merchantable title to the Purchased Assets conveyed,
free and clear of all liabilities, obligations, claims, and encumbrances of any kind or nature and to put Buyers in control and possession thereof.
Seller does hereby irrevocably constitute Buyer, their successors and assigns, as Seller’s true and lawful
attorney-in-fact, with full power of substitution, in Seller’s or Buyers’ name, to claim, demand, collect and receive the Purchased Assets conveyed.
This instrument is being delivered in connection with the Agreement and is subject to, and is entitled to the
benefits in respect of, the Agreement.
This instrument shall be binding upon Seller and their successors and assigns, and shall inure to the benefit of
Buyers and their successors and assigns.
Dated this day of 20
HAIKU HOLDINGS, LLC
By:
Michael D. Rountree
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EXHIBIT C
INTELLECTUAL PROPERTY ASSIGNMENT
This Intellectual Property Assignment (“Assignment Agreement”) is made by and between HAIKU HOLDINGS, LLC (“Seller”), and ECO SCIENCE SOLUTIONS, INC. (“Buyer”).
Seller hereby confirms having sold, assigned, transferred, conveyed, and delivered pursuant to the Asset Purchase
Agreement by and among Seller and Buyer, dated on the Signing date of January , 2021 (the “Asset Purchase Agreement”) which is incorporated herein by reference, and does hereby sell, assign, transfer, convey, and deliver, to Buyer, and Buyer confirms having purchased, acquired, and accepted,
and does hereby purchase, acquire, and accepted, from Seller, all of Seller’s right, title, and interest in, to, and under the intellectual property set forth on Schedule 1.0 of the Purchase Agreement, including the Intellectual Property Rights in
the Software (the “Assigned IP”), including all goodwill associated therewith, all copyright rights included in the Assigned IP, and all rights of
action and remedies for past, present, and future infringements of any of the Assigned IP, in each case, free and clear of all Liens, the same to be held and fully enjoyed by Buyer, its successors, assigns and other legal representatives. Seller
hereby waives, to the fullest extent permissible in any jurisdiction, any and all moral rights in and to the Assigned IP.
Seller shall execute and deliver any and all instruments and documents and take such further actions as may be
necessary or reasonably requested by Buyer (including any of its successors/assigns) to document and record with the appropriate authorities the aforesaid assignment and transfer, including all steps that may be reasonably necessary to affect the
foregoing assignment of Assigned IP.
This instrument is being delivered in connection with the Agreement and is subject to, and is entitled to the
benefits in respect of, the Agreement.
This instrument shall be binding upon Seller and their successors and assigns, and shall inure to the benefit of
Buyers and their successors and assigns.
Dated this day of 20
HAIKU HOLDINGS, LLC
By:
Michael D. Rountree
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SCHEDULE 1.0
PURCHASED ASSETS
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a.
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Business Enterprise Platform containing, but not limited to, the following features (the “Software”):
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i.
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Accounting;
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ii.
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Inventory Management;
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iii.
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Customer Relationship Management; and
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iv.
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Overall Enterprise-wide Operational Management.
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v.
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Inclusive of the following:
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(1) G Suite
(2) Google Cloud
(3) AWS
(4) Go Daddy
(5) Git Hub
(6) All Productivity Credentials
(7) Apple Store Connect
(8) Google Play
(9) Squarespace
(10) Wordpress.org
(11) Evanto Market Place
(12) Uber Conference
The ESSI Git Hub contains various technical documents, including project plans, white paper overviews, technical schemas that have been created over the
years.
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b.
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All Intellectual Property associated with the Software and Intellectual Property Rights in the Software, as is.
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c.
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All other data, documentation, papers, manuals, graphics, text, applications, code (including, without limitation, all source and object code),
inventions, know-how, formulae, algorithms, methods, processes, specifications, ideas, trade secrets, designs, pictures, audio, video, animations, computerized databases, and other content and works of authorship, enhancements,
improvements, work-flow methods or other materials or any portions of the foregoing, as well as all copyrights, patents, trademarks, trade secret rights and any other intellectual property rights owned by Seller and/or Owner, and all of
Seller’s or Owner’s licensee interests and rights with respect to third party-owned intellectual property, in each case relating to, developed and/or used in connection with, comprising, or embodied in the Software, deliverables, and
related intellectual property, including all software related Intellectual Property Rights and related materials such as, by way of example only, forms, reports, instructional materials that accompany or are used in inputting and collecting
patient data and utilizing the Software, and similar items that are useful in maximizing the value and usefulness of the Software.
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d. Additionally, the following summarize the modules that are either fully developed or continue to be developed upon supporting
existing customer integrations.
E-commerce – Magento and Progressive Web App shopping cart storefronts as well as product catalog integrations into
marketplaces like Amazon.
Merchant processing – Deep integration into the Alliance Financial digital ledger.
Accounting & Taxation – Full accounting stack, from Chart of Accounts through Unitization for management of Tax
Code 280-E.
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Materials Resource Planning (MRP) – Complex MRP platform to assist in the development and management of bill of
materials (BOM) for raw materials and ingredients for formulations and packaging supplies.
Inventory management – Inventory management to support SKUs – from new product load- ins, to replenishments, to
end-of-life product cycles.
Seed-to-Sale Compliancy – Compliant and transparent tracking and monitoring throughout the supply chain of seeds
and plants – where they were planted; when and who harvested them; how they were processed; and ultimately, where were they sold. Additionally, varied integrations into state supported reporting systems
Customer Relationship Management (CRM) – The ability to acquire, retain and engage prospects and customers CRM
solution.
Analytics – Dashboards that provide both an aggregate summary of data and a deep-dive into line-item review for
each of the above listed – Merchant Processing, CRM, Inventory Management, and Accounting, is needed to ensure that owners, decision makers, and stakeholders have adequate views and analysis capabilities to support forecasting and growth
projections.
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