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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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Item No.
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Description
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10.2 | Indemnification Agreement | |
10.3
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10.4
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Asset Purchase Agreement between Eco Science Solutions and Haiku Holdings, LLC |
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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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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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3.5
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3.9
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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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(c)
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(i)
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(iii)
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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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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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(c)
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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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(a)
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“Change in Control” shall be deemed to have occurred if:
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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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(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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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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(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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(d)
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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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(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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(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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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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(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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(b)
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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)
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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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(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.
|
(c)
|
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).
|
(d)
|
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.
|
(e)
|
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.
|
(f)
|
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.
|
(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
|
(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
|
(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.
|
(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.
|
(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.
|
(c)
|
(a)
|
To Indemnitee at the address set forth below Indemnitee signature hereto.
|
(b)
|
To the Company at:
|
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
|
1.
|
Interpretation
|
2.
|
Acknowledgement of Indebtedness
|
3.
|
Payment of Indebtedness
|
4.
|
Release
|
5.
|
Documents Required from Subscriber
|
(a)
|
two (2) executed copies of this Agreement;
|
6.
|
Closing
|
(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.
|
(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).
|
(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.
|
(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.
|
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.
|
(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
|
10.
|
Governing Law; Miscellaneous.
|
1.
|
Delivery - please deliver the certificates to:
|
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
|
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
|
|
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
|
Exhibits
|
Description
|
|
Exhibit A
|
Certain Definitions
|
|
Exhibit B
Exhibit C
|
Bill of Sale and Assignment
Intellectual Property Assignment
|
Buyer
Schedules
|
Description
|
|
1.0
|
Purchased Assets
|
Buyer
|
|||
ECO SCIENCE SOLUTIONS, INC.
|
|||
/s/Jeffery Taylor
|
|||
Jeffery Taylor
|
|||
Chief Executive Officer
|
|||
Seller
|
|||
HAIKU HOLDIGD LLC
|
|||
/s/Michael D. Rountree
|
|||
Michael D. Rountree
|
|||
Manager | |||
Ombudsman Approved: | |||
By: /s/A. Carl Mudd
|
|||
A. Carl Mudd
|
a.
|
Business Enterprise Platform containing, but not limited to, the following features (the “Software”):
|
i.
|
Accounting;
|
ii.
|
Inventory Management;
|
iii.
|
Customer Relationship Management; and
|
iv.
|
Overall Enterprise-wide Operational Management.
|
v.
|
Inclusive of the following:
|
b.
|
All Intellectual Property associated with the Software and Intellectual Property Rights in the Software, as is.
|
c.
|
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.
|