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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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(800) 379-0226
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(Company's Telephone Number)
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Exhibit No.
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Description
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99.1
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Notice of Pendency and Proposed Settlement of Stockholder Derivative Action
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99.2
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Stipulation of Settlement, dated September 21, 2020
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Eco Science Solutions Inc.
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Date: October 1, 2020
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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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IN RE ECO SCIENCE SOLUTIONS, INC. SHAREHOLDER DERIVATIVE LITIGATION
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Lead Civil No. 1:17-00530-LEK-WRP
(Consolidated with No. 1:18-cv-00016)
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This Document Relates To:
ALL ACTIONS
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I.
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FACTUAL AND PROCEDURAL BACKGROUND
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A.
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The Action
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II.
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PLAINTIFFS' CLAIMS AND THE BENEFITS OF SETTLEMENT
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IV.
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TERMS OF THE SETTLEMENT
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V.
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DISMISSAL AND RELEASES
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VI.
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PLAINTIFFS' ATTORNEYS' FEES AND EXPENSES
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VII.
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THE SETTLEMENT HEARING AND YOUR RIGHT TO BE HEARD
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VIII.
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EXAMINATION OF PAPERS AND INQUIRIES
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IN RE ECO SCIENCE SOLUTIONS, INC. SHAREHOLDER DERIVATIVE LITIGATION
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Lead Civil No. 1:17-00530-LEK-WRP
(Consolidated with No. 1:18-cv-00016)
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This Document Relates To:
ALL ACTIONS
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STIPULATION OF SETTLEMENT
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I.
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BACKGROUND
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A.
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Plaintiffs' Allegations
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B.
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Relevant Procedural History
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C.
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Settlement Efforts
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II.
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PLAINTIFFS' CLAIMS AND THE BENEFITS OF SETTLEMENT
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III.
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DEFENDANTS' DENIALS OF WRONGDOING AND LIABILITY
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IV.
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TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT
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1.
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Definitions
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2.
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Terms of the Settlement
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2.1
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Economic Consideration:
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2.2
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Ombudsman:
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2.3
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Corporate Governance Reforms and Funding Commitment:
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2.4
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Reconstitution of the Board
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3.
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Approval and Notice
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4.
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Attorneys' Fees and Expenses
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5.
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Releases
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6.
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Conditions of Settlement; Effect of Disapproval, Cancellation, or Termination
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7.
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Miscellaneous Provisions
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Dated: _____________, 2020
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GREENBERG TRAURIG, LLP
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JOEL MAX EADS (pro hac vice)
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KATHLEEN M. KLINE (pro hac vice)
1717 Arch Street, Suite 400
Philadelphia, PA 19103
Telephone: (215) 988-7856
Facsimile: (215) 988-7801
E-mail: eadsj@gtlaw.com
klineka@gtlaw.com
MIRIAM G. BAHCALL (pro hac vice)
77 West Wacker Drive, Suite 3100
Chicago, IL 60601
Telephone: (312) 476-5135
Facsimile: (312) 988-0437
E-mail: bahcallm@gtlaw.com
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MILLER SHEA LLLC
PATRICK K. SHEA (8387)
1001 Bishop Street, Suite 2925
Honolulu, HI 96813
Telephone: (808) 536-2442
E-mail: patrick@millershealaw.com
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Attorneys for Defendants Jeffery Taylor, Don Lee Taylor, L. John Lewis, S. Randall Oveson, Gannon Giguiere and Eco Science Solutions, Inc.
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I.
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PHASE 1 – PRIORITY GOVERNANCE REFORMS
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A.
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Directors' and Officers' Insurance
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B.
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Appointment of Two New, Independent Directors
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C.
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Creation of a Board-Level Governance Committee
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(a)
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identifying criteria for selecting new directors. Such criteria shall include the independence of director candidates, possession of such
knowledge, experience, skills, expertise and diversity as may enhance the Board's ability to manage and direct the affairs and business of the Company, including the ability of committees of the Board to fulfill their duties;
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(b)
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recommending to the Board director nominees for election by the shareholders or appointment by the Board pursuant to the By-Laws of the
Company;
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(c)
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reviewing the suitability for continued service as a director of each Board member when his/her term expires and when he or she has a
significant change in status, including but not limited to an employment change, and to recommend whether or not the director should be re-nominated.
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(d)
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periodically reviewing the Corporate Governance section of the Company's website to ensure public access to, at a minimum: (1) biographical
information regarding the Company's officers and directors sufficient to ascertain his/her qualifications; (2) committee charters; (3) the Company's Corporate Governance Guidelines; and (4) the Code of Ethics. The Governance Committee
shall annually evaluate the Corporate Governance section of the website to determine whether the posting of additional policies and procedures is appropriate;
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(e)
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developing and recommending to the Board a set of Corporate Governance Guidelines applicable to the Company, which shall be consistent with any
applicable laws, regulations and listing standards and address the matters discussed supra at E;
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(f)
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reviewing periodically, and at least annually, the Corporate Governance Guidelines and Code of Ethics adopted by the Board;
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(g)
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monitoring emerging corporate governance trends and overseeing and evaluating the Company's corporate governance policies and programs and
recommend to the Board such changes the Company believes necessary or desirable;
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(h)
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evaluating and making recommendations to the Board regarding the compensation and benefits for non-employee directors;
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(i)
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maintaining the Governance Committee Charter on the Company's website;
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(j)
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retaining legal or other consultants, including search firms to identify director candidates;
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(k)
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requesting that any of the Company's officers, employees and/or directors, outside counsel or other consultants attend a meeting of the
Governance Committee or meet with any of the Governance Committee's members or consultants; and
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D.
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Adoption of Written Corporate Governance Guidelines and Code of Ethics
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(a)
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Board composition requirements;
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(b)
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Director qualification standards;
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(c)
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Director responsibilities;
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(e)
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Director compensation, including principles for determining the form and amount of director compensation, and for reviewing those principles at
least annually;
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(f)
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Director orientation and Director Continuing Education (discussed below); and
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(g)
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Management succession.
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(a)
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compliance with laws, rules and regulations;
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(b)
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conflicts of interest;
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(c)
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usurping of corporate opportunities;
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(d)
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confidential information obligations;
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(e)
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fair dealing;
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(f)
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insider trading;
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(g)
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investor and media relations policies and procedures;
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(h)
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reporting violations of the Code of Ethics; and
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(i)
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consequences of violation of the Corporate Governance Guidelines and/or Code of Ethics.
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E.
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Creation of an Audit Committee
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(a)
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The Committee will provide assistance to the Board in fulfilling its oversight responsibility to the shareholders, potential shareholders, the
investment community and others relating to: (1) the integrity of the Company's financial statements; (2) the effectiveness of the Company's internal control over financial reporting; (3) the Company's compliance with legal and regulatory
requirements; (4) the independent auditor's qualifications and independence; and (5) the performance of the Company's internal audit function (if any) and independent auditor.
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(b)
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The Audit Committee will prepare the Audit Committee report that U.S. Securities and Exchange Commission ("SEC") proxy rules require to be
included in the Company's annual proxy statement. In fulfilling its purpose, the Audit Committee is responsible for maintaining free and open communication between itself, the independent auditor, the internal auditor (if any) and
management of the Company, and for determining that all parties are aware of their responsibilities.
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(a)
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overseeing the Company's policies on risk assessment and risk management, including the risk of fraud and discussing the Company's major
financial risk exposures and the steps management has taken to monitor and control such exposures;
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(b)
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reviewing with senior management the Company's antifraud programs and controls;
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(c)
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overseeing the appropriateness of the accounting principles and reporting policies that are used by the Company;
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(d)
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reviewing and discussing the quarterly financial statements, including Management's Discussion and Analysis of Financial Condition and Results
of Operations, with management and the independent auditor prior to the filing of the Company's Quarterly Report on Form 10-Q;
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(e)
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establishing and maintaining internal control over financial reporting including: (1) a review of the financial statements for major issues
regarding accounting principles such as significant changes in the Company's selection or application of accounting principles, major issues as to the adequacy and effectiveness of the Company's internal controls over financial reporting
and any specific remedial actions adopted in light of significant deficiencies or material weaknesses; (2) discussions with management and the independent auditor regarding significant financial reporting issues and judgments made about the
preparation of the financial statements and the reasonableness of those judgments, including analyses of the effects of alternative GAAP methods on the financial statements; (3) consideration of the effect of regulatory and accounting
initiatives, as well as off-balance sheet structures, on the financial statements; (4) consideration of the judgment of management and the independent auditor about the quality, not just the acceptability, of accounting principles; and (5)
the completeness and clarity of the disclosures in the financial statements;
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(f)
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reviewing and discussing with the independent auditor and management, before the filing of the Company's Annual Report on Form 10-K (or the
annual report to shareholders if distributed prior to the filing of Form 10-K), (1) Management's Discussion and Analysis of Financial Condition and Results of Operations, (2) all critical accounting policies and practices of the Company,
and (3) all material written communications between the independent auditor and management;
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(g)
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maintaining a written policy and set of procedures regarding related party transactions and for reviewing, and approving if appropriate, all
related party transactions required to be disclosed according to SEC Regulation S-K, Item 404. The Audit Committee shall discuss with management the business rationale for the transactions and whether appropriate disclosures have been
made;
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(h)
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reviewing and discussing earnings press releases, as well as financial information and earnings guidance provided to analysts and rating
agencies;
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(i)
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reviewing and discussing with management and the internal auditors, management's process for assessing the effectiveness of internal control
over financial reporting under Section 404 of the Sarbanes-Oxley Act of 2002 ("SOX"), including any material weaknesses or significant deficiencies identified;
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(j)
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reviewing management's report on its assessment of the effectiveness of internal control over financial reporting at the end of each fiscal
year and the independent auditor's report on the effectiveness of internal control over financial reporting;
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(k)
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discussing with the independent auditor the characterization of deficiencies in internal control over financial reporting and discuss with
management, management's remediation plan to address internal control deficiencies. The Audit Committee shall review for accuracy, clarity and completeness, disclosures describing any identified material weaknesses and management's
remediation plans;
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(l)
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overseeing the process for performing required quarterly certifications under Section 302 of the SOX, including the evaluation of the
effectiveness of disclosure controls by the Chief Executive Officer ("CEO") and Chief Financial Officer ("CFO");
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(m)
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overseeing the appointment, compensation, retention and work of the independent auditor in preparing or issuing an audit report, performing any
other audit, review or attest services for the Company. The independent auditor must report directly to the Audit Committee;
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(n)
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determining the appropriate funding needed for payment of compensation to the independent auditor engaged for preparing or issuing audit
reports or performing other audit, review or attest services for the Company;
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(o)
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the Audit Committee shall obtain and review, at least annually, a report by the independent auditor describing: (1) the firm's internal quality
control procedures; (2) any material issues raised by the most recent internal quality control review or by any inquiry or investigation by governmental or professional authorities within the preceding five years with respect to any
independent audits carried out by the firm, and any steps taken to address such issues; (3) all relationships between the independent auditor and the Company to assess the auditors' independence;
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(p)
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approving all audit and non-audit services providing by the independent auditor;
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(q)
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reviewing with the independent auditor any audit problems or difficulties encountered during the course of the audit work, including any
restrictions on the scope of the independent auditor's activities or access to requested information, and management's response. The Committee should review differences that were noted or proposed by the auditors, but were passed (as
immaterial or otherwise) and any management or internal control letter issued, or proposed to be issued, by the audit firm to the Company that is in addition to its audit report on the effectiveness of internal control over financial
reporting;
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(r)
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reviewing the Company's compliance and ethics programs, including legal and regulatory requirements, and review with management its periodic
evaluation of the effectiveness of such programs;
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(s)
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reviewing the Company's Code of Conduct and programs that management has established to monitor compliance with such code;
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(t)
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receiving and reviewing any corporate attorneys' reports of material violation of securities laws or breaches of fiduciary duty by the Company;
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(u)
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establishing procedures for the receipt, retention and treatment of complaints received by the Company about accounting, internal accounting
controls or auditing matters, and the confidential, anonymous submission by Company employees of concerns regarding questionable accounting or auditing matters;
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(v)
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retaining outside counsel, accountants, experts and other advisors that it deems appropriate to assist the Audit Committee in performing its
functions. The Committee shall be provided with appropriate funding, as determined by the Committee, for payment of compensation to such outside counsel, accountants, experts and other advisors;
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(w)
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performing any evaluation of its performance at least annually to determine whether the Audit Committee is functioning effectively, including
discussing with the independent auditor the accountants' observations related to the effectiveness of the Audit Committee;
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(x)
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maintaining the Audit Committee Charter in the Investor Relations section of the Company's website under a tab titled "Corporate Governance";
and
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(y)
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investigating any matter brought to its attention with full access to all Company books, records and personnel, using special counsel or
outside experts when necessary or appropriate.
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F.
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Enhanced Board Independence
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(b)
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have not been employed by the Company, its subsidiaries, affiliates, or its investment advisor or affiliates thereof, within the last five
calendar years;
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(c)
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have not received (during the current calendar year or any of the three (3) immediately preceding calendar years) remuneration, directly or
indirectly, other than de minimus remuneration, as a result of service as, or compensation paid to an entity affiliated with the
individual who serves as: (i) an advisor, consultant, or legal counsel to the Company or to a member of the Company's senior management; (ii) a significant customer or supplier of the Company; or (iii) a creditor of the Company or its
affiliates;
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(d)
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have no personal services contract(s) with the Company, or any member of the Company's senior management;
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(e)
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are not affiliated with a not-for-profit entity that receives significant contributions from the Company;
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(f)
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have not had any of the relationships described above, with any affiliate of the Company; and
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(g)
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are not members of the immediate family of any person who fails to satisfy the qualifications described above.
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G.
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Termination of Existing Compensation Plans
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H.
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Immediate Cessation of Current and Future Business Dealings with Third Party Stock Promoters
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I.
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Executive Reports
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J.
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The Company's Website
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II.
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PHASE 2 – REFORMS TO BE IMPLEMENTED IN SUBSEQUENT STAGES UNDER THE PURVIEW AND AT THE DIRECTION OF THE OMBUDSMAN AND/OR THE
RECONSTITUTED BOARD
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A.
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Creation of an Investor Relations Officer
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(a)
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Leading the development and execution of strategies for effective and legally compliant investor communications;
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(b)
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Working with the CFO to develop investor relations policies and controls to ensure compliance with all federal and state laws and regulations;
and
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(c)
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Working directly with the Audit Committee and the CFO to ensure that all investor relations documents, such as talking points, Q&As, press
packages, corporate presentation materials, and similar materials, as well as agreements with vendors and consultants employed to support investor relations comply with Company policies and federal and state laws and regulations.
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B.
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In-House Counsel / General Counsel
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(a)
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Participate in the definition and development of corporate policies, procedures and programs and provides continuing counsel and guidance on
legal matters and on legal implications of all matters;
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(b)
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Serve as a key lawyer/legal advisor on all major business transactions, including acquisitions, divestitures and joint ventures;
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(c)
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Assume and bear ultimate responsibility for ensuring that the Company conducts its business in compliance with all applicable federal and state
laws and regulations;
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(d)
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Structure and manage the Company's internal legal function and staff;
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(e)
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Oversee the selection, retention, management and evaluation of all outside counsel; and
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(f)
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Advise on legal aspects of the Company's financing, including assessing and advising on current and future business structures and legal
entities.
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C.
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Appointment of a CAO
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(a)
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working with the CFO to determine accounting and tax implications
for all material business decisions;
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(b)
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reviewing all documentation and contracts in order to develop and improve internal controls;
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(c)
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assisting with quarterly financial reporting, including drafting and reviewing SEC documents, ensuring quality, and administering strict
timeline;
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(d)
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managing transaction accounting, SOX, the closing process, and other financial controls;
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(e)
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overseeing general ledger functions and assuring accuracy, timeliness, and conformity with professional accounting standards and best practices
in accordance with GAAP;
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(f)
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acting as a liaison to external auditing firms, while owning primary responsibility for the Company's views on technical accounting matters;
|
(g)
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collaborating with senior management and the Board to improve overall company performance;
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(h)
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providing quarterly reports to the Audit Committee that address the critical issues impacting the Company's financial condition, including the
issuance of common stock for tendered services relating to, among other things, technical development/maintenance, production and staging, server administration, ongoing marketing services and advertising management services; and
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(i)
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working with senior management to ensure internal compliance and the creation and maintenance of effective internal controls over accounting
and financial reporting.
|
1.
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The Company's Whistleblower Policy shall:
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(b)
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Communicate effectively that Eco Science is serious about adherence to its corporate governance policies and that whistle blowing is an
important tool in achieving this goal.
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(a)
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Executives are subject to criminal penalties, including imprisonment, for retaliation against whistleblowers;
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(b)
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Whistleblower complaints may be directed to the Audit Committee, Chief Compliance Officer, or the Company's General Counsel, or to the
Whistleblower Hotline, and the complaints will be handled by these parties (with the assistance of Retained Counsel) anonymously and in confidence;
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(c)
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If a whistleblower brings his or her complaint to an outside regulator or other governmental entity, he or she will be protected by the terms
of the Whistleblower Policy just as if he or she directed the complaint to the Audit Committee, the Chief Compliance Officer, the Company's General Counsel, and/or the Whistleblower Hotline;
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(d)
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If an employee is subject to an adverse employment decision as a result of whistle blowing, the employee may file a complaint with the
Department of Labor within 90 days of the alleged violation (a failure to report such claims within the 90-day window does not foreclose any other available legal remedy);
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(e)
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In the performance review process, employees may be rewarded for top performance and satisfying the stated values, business standards, and
ethical standards of the Company; and
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(f)
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It is both illegal and against Eco Science's policy to discharge, demote, suspend, threaten, intimidate, harass or in any manner discriminate
against whistleblowers.
|
E.
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Clawback Policy
|
F.
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Enhanced Conflicts Policies and Practices
|
(a)
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the relevant facts and circumstances of the related party transaction, including if the related party transaction is on terms comparable to
those that could be obtained in arm's length dealings with an unrelated third-party;
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(b)
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the extent of the related person's interest in the related party transaction;
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(c)
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whether the related party transaction contravenes the conflicts of interest and corporate opportunity provisions of the Company's Code of
Ethics and/or Corporate Governance Guidelines;
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(d)
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whether the relationship underlying the related party transaction at issue is believed to serve the best interest of the Company and its
shareholders; and
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(e)
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the effect that a director's related person transaction may have on such director's status as an independent member of the Board and
eligibility to serve on committees of the Board pursuant to SEC rules and applicable stock exchange listing standards.
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G.
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Documentation of Policies and Financial Reporting Checklists
|
H.
|
Management Assessment of Internal Controls
|
I.
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Training
|
(a)
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compliance with GAAP revenue recognition and other financial reporting regulations and policies shall be annual for all appropriate Eco Science
employees, Board members, and independent contractors. In the event that a person is appointed or hired after the annual training for a particular year, a special training session shall be held for such individual as soon as reasonably
practicable after his or her appointment or hiring;
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(b)
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coverage of the Company's Code of Ethics;
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(c)
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discussion of recent developments regarding GAAP, revenue recognition and other financial reporting regulations and policies including changes
in the law; and
|
(d)
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discussion of the Company's Whistleblower Policy to encourage employees to report any wrongdoing as soon as it is detected.
|
J.
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Enhanced Board Oversight of Company Expenditures
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1.
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$50,000 to $200,000: Approval of the Audit Committee Chair.
|
2.
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$200,001 to $400,000: Approval from two of the three main Chairs (Chairman of the Board, Audit Committee Chairman and
Governance Chairman).
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3.
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Greater than $400,000: Approval from the full Board.
|
IN RE ECO SCIENCE SOLUTIONS, INC. SHAREHOLDER DERIVATIVE LITIGATION
|
Lead Civil No. 1:17-00530-LEK-WRP
(Consolidated with No. 1:18-cv-00016)
|
This Document Relates To:
ALL ACTIONS
|
EXHIBIT B
[PROPOSED] PRELIMINARY ORDER
|
IN RE ECO SCIENCE SOLUTIONS, INC. SHAREHOLDER DERIVATIVE LITIGATION
|
Lead Civil No. 1:17-00530-LEK-WRP
(Consolidated with No. 1:18-cv-00016)
|
This Document Relates To:
ALL ACTIONS
|
I.
|
FACTUAL AND PROCEDURAL BACKGROUND
|
A.
|
The Action
|
II.
|
PLAINTIFFS' CLAIMS AND THE BENEFITS OF SETTLEMENT
|
IV.
|
TERMS OF THE SETTLEMENT
|
V.
|
DISMISSAL AND RELEASES
|
VI.
|
PLAINTIFFS' ATTORNEYS' FEES AND EXPENSES
|
VII.
|
THE SETTLEMENT HEARING AND YOUR RIGHT TO BE HEARD
|
VIII.
|
EXAMINATION OF PAPERS AND INQUIRIES
|
IN RE ECO SCIENCE SOLUTIONS, INC. SHAREHOLDER DERIVATIVE LITIGATION
|
Lead Civil No. 1:17-00530-LEK-WRP
(Consolidated with No. 1:18-cv-00016)
|
This Document Relates To:
ALL ACTIONS
|
EXHIBIT D
|
|
TO: |
ALL RECORD OR BENEFICIAL OWNERS OF ECO SCIENCE SOLUTIONS, INC. SECURITIES AS OF SEPTEMBER 21, 2020 AND THEIR SUCCESSORS:
|
IN RE ECO SCIENCE SOLUTIONS, INC. SHAREHOLDER DERIVATIVE LITIGATION
|
Lead Civil No. 1:17-00530-LEK-WRP
(Consolidated with No. 1:18-cv-00016)
|
This Document Relates To:
ALL ACTIONS
|
EXHIBIT E
[PROPOSED] ORDER AND FINAL JUDGMENT
|
Borrower:
|
Eco Science Solutions, Inc. of 1135 Makawao Ave Suite 103-188, Makawao, HI 96768 (the "Borrower")
|
Lender:
|
Robbins LLP of 5040 Shoreham Place, San Diego, CA 92122 (the "Lender")
|
1.
|
FOR VALUE RECEIVED, Borrower promises to pay to Lender at such address as may be provided
in writing to Borrower, the Principal Sum of $350,000.00 USD, with interest payable on the unpaid principal at the rate of 6.00 percent per annum, calculated monthly (the "Interest Sum").
|
2.
|
PAYMENT AND DUE DATE. Borrower will pay to Lender the entire Principal Sum of $350,000.00
USD and the entire Interest Sum on or before exactly three years from the date of Final Settlement Approval, as defined in the Stipulation of Settlement filed in the action captioned In re Eco Science Solutions, Inc. Shareholder Derivative Litigation, Lead Civil No. 1:17-cv-00530-LEK-WRP (ECF. No. __) ("Stipulation"). At any time while not in default under this
Note, Borrower may pay the outstanding balance then owing under this Note to Lender without further bonus or penalty.
|
3.
|
FAILURE TO PAY. If Lender has not received the full amounts owed on or before the Due
Date, or in the Event of Default, all principal and interest set forth in this Note will become immediately due and collectible, and the interest shall double (i.e., to 12 percent per annum, calculated monthly) (the "Default Interest Amount") until all amounts owed hereunder are paid in full.
|
4.
|
COLLECTION COSTS. If any payment obligation under this Note is late, Borrower promises to
pay all costs of collection, including Lender's reasonable attorneys' fees and costs.
|
5.
|
EVENT OF DEFAULT. The occurrence of one or more of the following constitutes an Event of
Default under this Note: (i) Borrower fails to pay the Principal Sum and the Interest Amount and any other sums owed hereunder when due; (ii) Borrower files bankruptcy, becomes insolvent, or is otherwise unable to pay its debts as they
come due; (iii) an application for the appointment of a receiver for Borrower is made; or (iv) Borrower fails to comply with any obligations under the terms of this Note. If an Event of Default occurs, Lender will be permitted to
pursue all available rights and remedies allowed by this Note or available at law or in equity.
|
6.
|
PRIORITY. As security for Borrower's obligation to pay Lender in full, Borrower will
provide Lender with a perfected all assets lien on Borrower's assets with the priority set forth herein. In the event Borrower files for bankruptcy or upon the occurrence of any other Event of Default, Borrower's obligations under this
Note shall have priority over: (i) any debts or obligations owed by Lender to Gannon Giguere ("Giguiere") and/or Giguiere's alter egos, affiliates or affiliated persons, or entities controlled or majority owned by Giguiere and any
heirs, executors, personal representatives, estates, administrators, trusts, predecessors, successors, and assigns, or other individual or entity in which Giguiere has a controlling interest; (ii) any debts or obligations owed to any of
Defendants' Counsel as defined in the Stipulation; and (iii) any debts or obligations incurred by Borrower after Final Settlement Approval as defined in the Stipulation (the "Subordinate Obligations"). The Subordinate Obligations shall
be subordinated to the obligations of Borrower to pay Lender all sums due under this Note. Borrower shall give due notice and make any filings and recordings as may be necessary to perfect and maintain the priority of Lender's claims,
rights and privileges under this Note.
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7.
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REMEDIES. At the election of Lender, and upon notice to Borrower, the Principal Sum, the
Interest Amount, any Default Interest Amount, and any other amounts due hereunder, shall be and become immediately due and payable in full upon the occurrence of any Event of Default. Failure to exercise this option shall not
constitute a waiver of the right to exercise same at any later time or in the event of any subsequent Event of Default. No delay or omission by Lender in exercising any right hereunder shall operate as a waiver of such right or
remedy. None of the provisions hereof and none of the rights of Lender shall be deemed to have been waived by acceptance of any past due amount or by any other indulgence granted to Borrower. No holder hereof shall be deemed by any
act or omission to waive any of its rights, remedies or powers hereunder, unless such waiver is in writing and signed by the holder hereof, and then only to the extent specifically set forth in such writing.
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8.
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NOTICES. Any notice that must be given Borrower under this Note shall be given by
delivery or certified mailing to Borrower at Borrower's address above or to the most current address of which Borrower has provided written notice. Any notice that must be given Lender under this Note shall be given by delivery or
certified mailing to Lender at Lender's address above or to the most current address of which Lender has provided written notice. Borrower waives presentment for payment, notice of non-payment, protest and notice of protest.
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9.
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SUCCESSORS AND ASSIGNS. The terms and conditions of this Note shall inure to the benefit
of and shall be binding upon the successors, assigns, heirs, survivors, executors, administrators, and personal representatives of Borrower and Lender.
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10.
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SEVERABILITY. If any term, covenant, condition or provision of this Note is held by a
court of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable
and enforceable and the remainder of the provisions of this Note will in no way be affected, impaired or invalidated as a result.
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11.
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GOVERNING LAW. This Note is governed and controlled as to validity, construction,
enforcement, effect, and in all other respects, by the statutes, laws, and decisions of the State of California, without regard to that state's conflicts of laws provisions. Any action brought under this Note may venue only in the
United States District Court for the District of Hawaii or in the Superior Court of the State of California, County of San Diego.
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12.
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WAIVERS OF DEFENSES. Borrower waives every present and future defense (other than the
defense of full payment), cause of action, counterclaim, or setoff which Borrower may now have or hereafter may have to any action by Lender in enforcing this Note. This provision is a material inducement for the Lender entering into
this agreement and granting any financial accommodation to Borrower.
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SIGNED, SEALED, AND DELIVERED
this ____ day of _______, 2020. |
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Eco Science Solutions, Inc.
Per:
______________________(SEAL)
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