UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ECO SCIENCE SOLUTIONS, INC.
(Exact name of registrant as specified in its charter)
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Nevada
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333-1666487
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27-4387595
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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2016 EQUITY INCENTIVE PLAN
(Full titles of plans)
1135 Makawao Avenue, Suite 103-188
Makawao, Hawaii 96768
(800) 379-0226
(Address and telephone number of principal executive offices)
National Registered Agents, Inc. of NV
701 Carson Street, Suite 200
Carson City, Nevada 89701
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Sharon D. Mitchell, Esq.
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Jeffery Taylor
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SD Mitchell & Associates, PLC
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Chief Executive Officer
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825 Harcourt Rd.
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1135 Makawao Avenue, Suite 103-188
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Grosse Pointe Park, Michigan 48230
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Makawao, Hawaii 96768
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(248) 515-6035
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(800) 379-0226
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer a non-accelerated filer, or a smaller reporting company.
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Large accelerated filer
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[ ]
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Accelerated filer
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[ ]
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Non-accelerated filer
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Smaller reporting company
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[X]
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount
to be
registered (1)
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Proposed
maximum
offering price
per share
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Proposed
maximum
aggregate
offering price
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Amount of
registration
fee (2)
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Eco Science Solutions, Inc. 2016 Equity Incentive Plan Common Stock, $0.00001 par value per share
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5,000,000
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$1.53
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$7,650,000.00
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$886.64
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan(s) described herein.
(2) This estimate is made pursuant to Rule 457(h) and Rule 457(c) of the Securities Act solely for the purpose of calculating the registration fee, and is based on the average reported closing market prices for shares of Eco Science Solutions, Inc. common stock for the five days preceding, and including November 18, 2016.
EXPLANATORY NOTE
This registration statement registers shares of common stock, par value $0.00001 per share (“Common Stock”), of Eco Science Solutions, Inc. (the “Registrant”) that may be issued pursuant to a Letter of Agreement (“Agreement”) entered into on January 1, 2016.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Items 1 and 2 of Part I of this Registration Statement on Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of the Registration Statement. The documents containing the information specified in Part I have been or will be delivered to the participants in the Plan covered by this Registration Statement as required by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):
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The registrant’s Annual Report on Form 10-K/A for the quarter ended January 31, 2016, filed with the Commission on June 22, 2016 (originally filed on May 17, 2016, and June 20, 2016);
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The registrant’s first quarter Quarterly Report on Form 10-Q/A for the quarter ended April 30, 2016 filed with the Commission on June 22, 2016 (originally filed on June 20, 2016);
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The registrant’s second quarter Quarterly Report on Form 10-Q for the quarter ended July 31, 2016, filed with the Commission on September 19, 2016;
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All documents filed by the registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date hereof and prior to the filing of a post-effective amendment which indicates that all of the securities offered hereby have been sold or which deregisters all of the securities covered hereby then remaining unsold, shall also be deemed to be incorporated by reference into this Registration Statement and to be a part hereof commencing on the respective dates on which such documents are filed.
Any statement incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that also is or i9s deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Sections 78.751 and 78.752 of the Nevada Revised Statutes, the Company has broad powers to indemnify and insure its directors and officers against liabilities they may incur in their capacities as such, and provide that:
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a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding if he or she acted 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 corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful;
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a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by him or her in connection with the defense or settlement of the action or suit if he or she acted 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 corporation. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper; and
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to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding, or in defense of any claim, issue or matter therein, the corporation must indemnify him or her against expenses, including attorneys’ fees, actually and reasonably incurred by him or her in connection with the defense.
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Nevada Revised Statutes provide that we may make any discretionary indemnification only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances. The determination must be made:
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by our board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding;
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if a majority of vote of a quorum consisting of directors who were not parties to the action, suit or proceeding, so orders, by independent legal counsel in a written opinion;
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if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained by independent legal counsel in a written opinion; or
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Nevada Revised Statutes provide that a corporation may purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise for any liability asserted against him and liability and expenses incurred by him in his capacity as a director, officer, employee or agent, or arising out of his status as such, whether or not the corporation has the authority to indemnify him against such liability and expenses.
Our bylaws allow us to indemnify our directors, officers and employees. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons, we have been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The exhibits listed below in the “Index to exhibits” are part of this Registration Statement on Form S-8 and are numbered in accordance with Item 601 of Regulation S-K.
Item 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement;
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement.
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, executive officers and controlling persons of the Registrant pursuant to the provisions described in Item 6 above, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
[SIGNATURE PAGE TO FOLLOW]
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Form S-8 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Makawao, State of Hawaii, on November 22, 2016.
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Eco Science Solutions, Inc. |
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By:
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/s/Jeffery Taylor |
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Jeffery Taylor |
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President |
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jeffery Taylor, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/Jeffery Taylor
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Chief Executive Officer, Director, President, Chairman
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November 22, 2016
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/s/Don Taylor
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Chief Financial Officer, Director
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November 22, 2016
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EXHIBIT INDEX
Exhibit
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4.1
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Letter of Agreement between Eco Science Solutions, Inc. and Separation Degrees – One, Inc.
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5.1
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Opinion of SD Mitchell & Associates, PLC
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10.4
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Eco Science Solutions, Inc. 2016 Equity Incentive Plan
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23.2
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Consent of SD Mitchell & Associates, PLC (included as part of Exhibit 5.1)
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24.1
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Power of Attorney (included on the Signature Page to this Registration Statement)
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January 1, 2016
Eco Sciences Solutions, Inc.
Jeffery Taylor, CEO
1135 Makawao Ave
Suite 103-188
Makawao, HI 96768
Dear Jeffery,
The purpose of this letter (the “Agreement”) is to confirm a technology licensing and marketing support agreement between Separation Degrees – One, Inc. (“SDOI”) and Eco Sciences Solutions, Inc. (“ESSI”) commencing on January 4, 2016 to pursue mutual beneficial opportunities that result in the development, licensing / acquisition of, and management of on-going technology solutions and marketing campaigns for ESSI’s initiatives (“BUSINESS”) as outlined below.
Section 1. Initiatives; Roles & Responsibilities. SDOI and ESSI’s respective roles and responsibilities related to this Agreement for each initiative of the BUSINESS shall be outlined in subsequent addendums that will address each specific initiative opportunity.
Section 2. Compensation. In addition to any defined and mutually agreed upon development and licensing fees paid to SDOI by ESSI, SDOI and ESSI shall pursue revenue sharing opportunities from all revenues generated from the BUSINESS. SDOI and ESSI shall split NET PROFITS (NET PROFITS is defined as Gross Profits less Cost of Acquisition on any media spend by either party) that are generated from any and all opportunities developed from the BUSINESS. Revenue sharing percentages from the BUSINESS shall be established in each subsequent addendum hereafter.
SDOI will be issued Series A Preferred Stock initially equal to the current total authorized common shares outstanding of 650,000,000. Additionally, if ESSI were to increase it authorized shares outstanding, the Series A Preferred Stock issued to SDOI would be adjusted within 2 business days to equal the new amount of common stock authorized. ESSI is prohibited to create any new class of Preferred or Common Stock without written consent of SDOI.
Section 3. Expenses. SDOI and ESSI will be responsible for their respective expenses related to the operations of their respective business entities (office, personnel, travel, etc.). In the event that either SDOI and ESSI provides capital to fund (“BUSINESS EXPENSE”) an initiative related to the BUSINESS that is mutually agreed upon in advance by both parties, then the amount of the BUSINESS EXPENSE shall be reimbursed to the contributing party out of GROSS PROFITS.
Separation Degrees – One, Inc.
77 Geary Street, 5th Floor * San Francisco, CA * 94108
CONFIDENTIAL * Technology Licensing and Marketing Agreement
Section 4. Payment of Fees and Expenses. Payment of development and licensing fees shall be defined in each subsequent addendum that is related to the specific initiative opportunity.
Section 5. Ownership of Work. ESSI shall retain ownership to the existing products and services related to the BUSINESS; provided, however, that SDOI shall retain exclusive, full ownership of all proprietary processes, technology development, analysis tools, graphical images and drawings, lead generation and demand generation development tools and web assets, and any other items that are part of SDOI’s work that have been developed for the BUSINESS and its related initiatives.
Section 6. Confidentiality. Each party to this Agreement shall maintain as strictly confidential and not disclose to any third party any financial or other proprietary information (the “CONFIDENTIAL INFORMATION”) provided that party by the other party to this Agreement.
The non-disclosing party shall be excepted from the obligations of this section with respect to any portion of CONFIDENTIAL INFORMATION to the extent that portion of CONFIDENTIAL INFORMATION:
(a) is within the knowledge of the non-disclosing party prior to the Start Date of this Agreement;
(b) or is within the public domain or enters the public domain through no fault of the non-disclosing party;
(c) or is rightfully disclosed to the non-disclosing party by a third party without obligation of confidentiality, but only to the extent rightfully permitted by the third party.
The obligations of the non-disclosing party under this section with regard to any portion of CONFIDENTIAL INFORMATION shall continue for a term of twelve (12) months from the Start Date of this Agreement, or until one of the exceptions identified above applies to that portion of CONFIDENTIAL INFORMATION.
Section 7. Term; Termination of Engagement.
(a) SDOI’s engagement and all rights and obligations of the parties hereto shall commence upon SDOI’s receipt of a signed copy of the Agreement, of which has a start date of December 15, 2015. The Term of the Engagement shall be one (1) year with automatic one (1) year renewals (“ENGAGEMENT TERM”). The Term of each Initiative as outlined in their respective Addendum shall be one (1) year from the launch date of each initiative (“INITIATIVE INITIAL TERM”), with automatic one (1) year renewals (“INITIATIVE RENEWAL TERM”).
(b) Either SDOI or ESSI may terminate this engagement at any time, with or without cause, upon a ninety (90) day advance written notice; provided, however, that notwithstanding any such termination, SDOI and ESSI shall continue to share compensation as outlined in the subsequent Addendums for each initiative that has launched for the INITIATIVE INITIAL TERM, and if the initiative has been renewed, then for the INITIATIVE RENEWAL TERM.
In addition to the foregoing, the provisions in this Agreement related to indemnification shall survive termination of this Agreement.
Section 8. Successors and Assigns. The benefits of this Agreement shall inure to the respective successors and permitted assigns of the parties hereto and of the indemnified parties hereunder and their successors and permitted assigns and representatives, and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their respective successors and permitted assigns.
Section 9. Indemnity. The indemnification provisions attached hereto as Exhibit A are incorporated herein and made a part hereof.
Section 10. Arbitration. Unless the Parties mutually agree otherwise in writing, all claims, disputes or other matters in question between the Parties to this Agreement, arising out of or relating to this Agreement or the breach thereof, shall be subject to and decided by arbitration, in accordance with the commercial arbitration rules of the American Arbitration Association then in effect. The decision of the arbitrator shall be final and binding on each party, and judgment upon the arbitration award may be entered in any court having jurisdiction over the matter. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of laws rules thereof, and any arbitration shall be brought in Orange County, California using California laws.
Section 11. Force Majeure. Any failure or delay by either the ESSI or SDOI in the performance of its obligations under this Agreement is not a default or breach of the Agreement or a ground for termination under this Agreement to the extent the failure or delay is due to elements of nature or acts of God, acts of war, terrorism, riots, revolutions, legal actions, strikes or other factors beyond the reasonable control of a party (each, a “Force Majeure Event”). The party failing or delaying due to a Force Majeure Event agrees to give notice to the other party which describes the Force Majeure Event and includes a good faith estimate as to the impact of the Force Majeure Event upon its responsibilities under this Agreement, including, but not limited to, any scheduling changes. If the Force Majeure Event causes all or a portion of the services to be delayed, or otherwise causes a failure to comply with this Agreement, and continues to occur for more than thirty (30) days after notice of the Force Majeure Event the Term shall be extended for the specific time delay.
Section 12. Miscellaneous.
(a) ESSI expressly acknowledges that all opinions and advice (written or oral) given by SDOI to ESSI in connection with SDOI’s work related to the BUSINESS are intended solely for the benefit and use of ESSI.
(b) ESSI shall be under no obligation to enter into or execute any transaction, partnership or other agreement or arrangement with any party as a result of this Agreement and the entry into any transaction; partnership or other agreement or arrangement shall be in the sole discretion of ESSI.
(c) ESSI acknowledges that SDOI’s work does not represent and guarantee any success for the BUSINESS.
(d) ESSI is a sophisticated business enterprise that has engaged SDOI for the limited purposes set forth in this Agreement, and the parties acknowledge and agree that their respective rights and obligations are contractual in nature. In the event of any business transaction or engagement, each party disclaims an intention to impose fiduciary obligations on the other by virtue of the engagement contemplated by the Agreement, and each party agrees that there is no fiduciary relationship between them.
(e) ESSI represents and warrants to SDOI that SDOI's engagement hereunder has been duly authorized and approved by all corporate action by ESSI and this letter Agreement has been duly executed and delivered by ESSI and constitutes a legal, valid and binding obligation of ESSI. SDOI represents and warrants to ESSI that SDOI’s engagement hereunder has been duly authorized and approved by all necessary corporate action by SDOI and this letter Agreement has been duly executed and delivered by SDOI and constitutes a legal, valid and binding obligation of SDOI.
(f) SDOI shall have the right to include ESSI and the BUSINESS’s name, logo and any non-confidential information relating to the engagement in SDOI’s website and marketing materials.
(g) The ESSI acknowledges that it is not relying on the advice of SDOI for tax, legal or accounting matters it is seeking, and will rely on the advice of its own professionals and advisors for such matters.
(h) This Agreement may be executed in one or more counterparts, which together shall constitute the same agreement.
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This Agreement and the exhibit attached hereto shall constitute the full scope of the relationship between SDOI and ESSI. Please sign this letter at the place indicated below, whereupon it will constitute our mutually binding agreement with respect to the matters contained herein.
Sincerely,
SEPARATION DEGREES – ONE, INC.
By: /s/Gannon Giguiere
Gannon Giguiere
CEO
Agreed to and accepted:
ECO SCIENCES SOLUTIONS, INC.
Jeffery Taylor, CEO
EXHIBIT A – INDEMNIFICATION PROVISION
Eco Sciences Solutions, Inc. (“ESSI”) agrees to indemnify and hold harmless Eventure Interactive, Inc. (“SDOI”) and its affiliated entities, partners, employees, consultants, legal counsel, agents, members, managers, representatives, and agents (collectively the “Indemnified Parties”) from and against any and all losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses and disbursements (and any and all actions, suits, proceedings and investigations in respect thereof and any and all reasonable legal and other costs, expenses and disbursements in giving testimony or furnishing documents in response to a subpoena or otherwise), including, without limitation, the reasonable costs, expenses and disbursements, as and when incurred, of investigating, preparing or defending any such action, suit, proceeding or investigation (whether or not in connection with litigation in which any of the Indemnified Parties is a party), directly or indirectly, caused by, relating to, based upon, arising out of, or in connection with, the Indemnified Parties’ performance or nonperformance of its obligations under the letter agreement between ESSI and SDOI to which these provisions are attached and form a part (the “Agreement”); provided, however, that ESSI shall not be obligated to indemnify, defend or hold harmless Indemnified Parties for losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses and disbursements suffered by or paid by Indemnified Parties as a result of acts or omissions of Indemnified Parties which have been made or not made in bad faith or which constitute willful misconduct.
These indemnification provisions shall be in addition to any liability, which ESSI may otherwise have to Indemnified Parties. In order to provide for just and equitable contribution, if a claim for indemnification pursuant to these indemnification provisions is made but it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that such indemnification may not be enforced in such case, even though the express provisions hereof provide for indemnification in such case, then ESSI, on the one hand, and the applicable Indemnified Parties, on the other hand, shall contribute to the losses involved in such proportion as is appropriate to reflect (i) the relative benefits received by ESSI, on the one hand, and the applicable Indemnified Parties, on the other hand, (ii) the relative fault of ESSI, on the one hand, and the applicable Indemnified Parties, on the other hand, in connection with the statements, acts or omissions which resulted in such losses, and (iii) relevant equitable considerations. Neither termination nor completion of the engagement of SDOI under this Agreement, shall affect these indemnification provisions which shall then remain operative and in full force and effect.
The foregoing provisions are in addition to any rights the parties may have at common law or otherwise and shall be binding on and inure to the benefit of any successor, assigns, and personal representatives of the indemnifying party and each indemnified party. The provisions of this Exhibit shall remain in full force and effect notwithstanding (i) any investigation made by or on behalf of SDOI or (ii) the completion or termination of the engagement.
ADDENDUM 1 TO AGREEMENT
This document is in reference to a contract agreement dated January 1, 2016, between Separation Degrees – One, Inc. (“SDOI”) and Eco Sciences Solutions, Inc. (“ESSI”).
May it be known that the undersigned parties, for good consideration, do hereby agree to make the following changes and / or additions that are outlined below. These additions shall be made valid as if they are included in the original stated contract.
Stated Contract for:
The issuance and DWAC of $35,000 worth of S-8 shares in ESSI Common Stock (issued at a 30% discount to the market VWAP on the date of payment due (the 1st of every month), or a share price of $0.01 whichever is greater), to SDOI for ongoing project planned technical development/maintenance, production and staging server administration, ongoing marketing services and monthly advertising management. DWAC distribution is to occur on or before the 1st business day of each calendar month for services provided by SDOI.
The issuance of 500,000 shares in Common Stock, with Piggy Back Registration Rights for the acquisition of SDOI’s discrete communications software platform, including custom developed libraries name “Communications Platform Asset Purchase Agreement, Dated January 4, 2016. DWAC distribution is to occur on or before the March 1, 2016. Both parties agree that SDOI has the right to request that the shares owed to them be delivered in increments less than the total amount of 500,000.
No other terms or conditions of the above mentioned contract shall be negated or changed as a result of this here stated addendum.
Agreed to and accepted:
SEPARATION DEGREES – ONE, INC.
Gannon Giguiere
CEO
ECO SCIENCES SOLUTIONS, INC.
Jeffery Taylor
CEO
AMENDMENT TWO TO TECHNOLOGY LICENSING AND MARKETING
AGREEMENT BETWEEN SEPARATION DEGREES – ONE, INC. AND ECO SCIENCE SOLUTIONS, INC.
THIS AMENDMENT TWO, dated October 1, 2016, is relative to a Technology Licensing and Marketing Agreement (“Agreement”) entered into by and between Separation Degrees – One, Inc. (SDOI), and Eco Science Solutions, Inc. (ESSI), dated January 1, 2016, an Addendum to that Agreement dated the same day, and an Amendment to Technology Licensing and Marketing Agreement between Separation Degrees – One, Inc. and Eco Science Solutions, Inc. dated June 1, 2016 (“Amendment 1”).
This Amendment Two is entered into in so far as to the dollar amount of the issuance of S-8 shares of ESSI Common Stock, as stated terms of “Section 2. Compensation”, and with regard to both the Agreement, the Addendum, and the Amendment.
This Amendment Two increases the issuance of $35,000 worth of S-8 shares of ESSI Common Stock to $42,000 worth of S-8 shares of ESSI Common Stock effective October 1, 2016.
All other terms and conditions remain the same, and no terms shall be negated or changed as a result of this Amendment Two.
The undersigned, by signing below, do hereby acknowledge the receipt, review and understanding of the Amendment and do hereby agree to the increase from the issuance of S-8 Shares from $35,000 to $42,000 S-8 Shares.
SEPARATION DEGREES – ONE, INC.
Gannon Giguiere Date: October 1, 2016
CEO
ECO SCIENCES SOLUTIONS, INC.
Jeffery Taylor Date: October 1, 2016
CEO
Sharon D. Mitchell, Attorney at Law
SD Mitchell & Associates, PLC
829 Harcourt Rd. ∙ Grosse Pointe Park, Michigan 48230
57492 Onaga Trail ∙ Yucca Valley, California 92284
(248) 515-6035 (Telephone) ∙ (248) 751-6030 (Facsimile) ∙ sharondmac2013@gmail.com
22 November 2016
Mr. Jeffery Taylor
Chief Executive Officer
Eco Science Solutions, Inc.
1135 Makawao Avenue, Suite 103-188
Makawao, Hawaii 96768
Re: Form S-8 Registration Statement; Eco Science Solutions, Inc. 2016 Equity Incentive Plan
Dear Mr. Taylor:
I have acted as special counsel to Eco Science Solutions, Inc., a Nevada corporation (the “Company”) in connection with the registration by the Company of 5,000,000 shares (the “Shares”) of its common stock, $0.00001 par value (“Common Stock”) that may be issued pursuant to the Company’s 2016 Equity Incentive Plan (the “Plan”) on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (“Securities Act”) covered by a Form S-8 Registration Statement (“Registration Statement”), as filed with the Securities and Exchange Commission (“Commission”).
In connection with this opinion, I have examined the corporate records of the Company, including the Company’s Certificate of Incorporation, Bylaws, the Registration Statement, the Plan, and certain resolutions of the Board of Directors of the Company relating to the adoption of the Plan. I have also examined originals or copies, certified or otherwise identified to my satisfaction, of such records of the Company and others, and such other documents, certificates, and records as I deemed relevant in order to render this opinion.
In my examination, I have assumed legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed, photostatic or facsimile copies and the authenticity of the originals of such copies. I have relied upon the accuracy and completeness of the information, factual matters, representations, and warranties contained in such documents. In my examination of documents, I have assumed that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and, other than with respect to the Company the due authorization by all requisite action, corporate or other, the execution and delivery by all parties of the documents, and the validity and binding effect thereof on such parties.
Mr. Jeffery Taylor
Eco Science Solutions, Inc.
22 November 2016
Page 2 of 2
In rendering the opinions set forth below, I have also assumed that:
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(a)
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at or prior to the time of issuance and delivery, the Shares will be registered by the transfer agent and registrar of such Shares;
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(b)
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the Company will keep reserved a sufficient number of shares of its Common Stock to satisfy its obligations for issuances of Shares under the plan;
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(c)
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upon issuance of any of the Shares, the total number of shares of the Company’s Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under its Articles of Incorporations;
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(d)
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and each stock grant, and security exercisable or exchangeable under the Plan has been, or will be, duly authorized, validly granted, and duly exercised or exchanged in accordance with the terms of the Plan, at the time of any grant of a Share or other security under the Plan.
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Based on the forgoing and in reliance thereon, and subject to the qualification and limitations set forth below, I am of the opinion that the Company is duly organized in the State of Nevada, validly existing and in good standing as a corporation under the laws of the State of Nevada.
Based on my examination, I am of the opinion that:
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(a)
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the Shares that have been or that may be issued under the Plan are duly authorized shares of the Company’s Common Stock; and
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(b)
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if, as, and when issued against receipt of the consideration therefor in accordance with the provisions of the Plan and in accordance with the Registration Statement, the Shares will be validly issued, fully paid, and nonassessable.
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Nothing herein shall be deemed to relate to or to constitute an opinion concerning any matters not specifically set forth above. The foregoing opinions relate only to matters of the internal law of the State of Nevada without reference to conflict of laws and to matters of federal law, and I do not purport to express any opinion on the laws of any other jurisdiction.
I hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement and further consent to the reference of my name wherever it appears in the Registration Statement.
With best regards,
/s/Sharon D. Mitchell
Sharon D. Mitchell
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ECO SCIENCE SOLUTIONS, INC.
2016 EQUITY INCENTIVE PLAN
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Article 1.
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Establishment & Purpose
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1.1 Purpose of this Plan. The purpose of this Plan is to attract, retain and motivate the officers, directors, employees and consultants of the Company and its Subsidiaries and Affiliates, as well as provide a means of compensation for consultants, and to promote the success of the Company’s business by providing them with appropriate incentives and rewards either through a proprietary interest in the long-term success of the Company or compensation based on fulfilling certain performance goals.
1.2 Effective Date of Plan. The Plan shall become effective and Awards may be granted on and after January 1, 2016 (the “Effective Date”). Any Awards of incentive stock options granted under the Plan are granted subject to approval of the Plan by the stockholders of the Company within twelve (12) months after the Effective Date. If such approval has not been obtained within such twelve (12) month period, grants of incentive stock options shall be deemed to have been grants of non-qualified stock options.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth below.
2.1 “Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. Unless otherwise specifically indicated, when used herein, the term Affiliate shall refer to an Affiliate of the Company.
2.2 “Award” means any Option, Stock Appreciation Right, Restricted Stock or Other Stock-Based Award that is granted under this Plan.
2.3 “Award Agreement” means either (a) a written agreement entered into by the Company and a Participant setting forth the terms and provisions applicable to an Award, or (b) a written statement signed by an authorized officer of the Company to a Participant describing the terms and provisions of the actual grant of such Award.
2.4 “Board” means the Board of Directors of the Company.
2.8 “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.
2.9 “Committee” means the Board, or any committee designated by the Board to administer this Plan in accordance with Article 3 of this Plan.
2.10 “Consultant” means any person who provides bona fide services to the Company or any Affiliate or Subsidiary as a consultant or advisor, excluding any Employee or Director.
2.11 “Director” means a member of the Board who is not an Employee.
2.12 “Employee” means an officer or other employee of the Company or any Subsidiary or Affiliate, including a member of the Board who is such an employee.
2.13 “Incentive Stock Option” means an Option intended to meet the requirements of an incentive stock option as defined in Section 422 of the Code and designated as an Incentive Stock Option in accordance with Article 6 of this Plan.
2.14 “Non-Restricted Employee Benefit Plan Stock” means Shares that are issued pursuant to a qualified employee benefit.
2.15 “Other Stock-Based Award” means any Award granted under Article 9 of this Plan.
2.16 “Participant” means any eligible person as set forth in Section 4.1 to whom an Award is granted.
2.17 “Person” means any natural person, sole proprietorship, general partnership, limited partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, governmental authority or any other organization, irrespective of whether it is a legal entity and includes any successor (by merger or otherwise) of such entity.
2.18 “Restricted Stock” means any Award granted under Article 8 of this Plan.
2.19 “Restriction Period” means the period during which Restricted Stock awarded under Article 8 of this Plan is restricted.
2.20 “Share” means a share of common stock of the Company, par value $0.01 per share, or such other class or kind of shares or other securities resulting from the application of Article 11 of this Plan.
2.21 “Subsidiary” means, with respect to any entity (the “parent”), any corporation, limited liability company, company, firm, association or trust of which such parent, at the time in respect of which such term is used, (i) owns directly or indirectly more than fifty percent (50%) of the equity, membership interest or beneficial interest, on a consolidated basis, or (ii) owns directly or controls with power to vote, directly or indirectly through one or more Subsidiaries, shares of the equity, membership interest or beneficial interest having the power to elect more than fifty percent (50%) of the directors, trustees, managers or other officials having powers analogous to that of directors of a corporation. Unless otherwise specifically indicated, when used herein, the term Subsidiary shall refer to a direct or indirect Subsidiary of the Company.
2.22 “Ten-Percent Shareholder” means a person who on any given date owns, either directly or indirectly (taking into account the attribution rules contained in Section 424(d) of the Code), stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or a Subsidiary or Affiliate.
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Article 3.
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Administration
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3.1 Authority of the Committee. This Plan shall be administered by the Committee, which shall have full power to interpret and administer this Plan and full authority to select the Directors, Employees and Consultants to whom Awards will be granted and determine the type and amount of Awards to be granted to each such Director, Employee or Consultant, the terms and conditions of such Awards. Without limiting the generality of the foregoing, the Committee may, in its sole discretion, interpret, clarify, construe or resolve any ambiguity in any provision of this Plan or any Award Agreement, accelerate or waive vesting of Awards and exercisability of Awards, extend the term or period of exercisability of any Awards or waive any terms or conditions applicable to any Award, subject to the limitations set forth in Section 12.2 of this Plan. Awards may, in the discretion of the Committee, be made under this Plan in assumption of, or in substitution for, outstanding awards previously granted by the Company or an Affiliate or a company acquired by the Company or with which the Company combines. The Committee shall have full and exclusive discretionary power to adopt rules, forms, instruments and guidelines for administering this Plan as the Committee deems necessary or proper, subject to the limitations set forth in Section 12.2 of this Plan. Subject to Section 12.2, all actions taken and all interpretations and determinations made by the Committee or by the Board (or any other committee or sub-committee thereof), as applicable, shall be final and binding upon the Participants, the Company and all other interested individuals.
3.2 Delegation. The Committee may delegate to one or more of its members, one or more officers of the Company or any Subsidiary, or one or more agents or advisors such administrative duties or powers as it may deem advisable.
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Article 4.
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Eligibility and Participation
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4.1 Eligibility. Participants will consist of such Employees, Directors and Consultants as the Committee in its sole discretion determines and whom the Committee may designate from time to time to receive Awards under this Plan; provided, however, that Options and Stock Appreciation Rights may only be granted to those Employees, Directors and Consultants with respect to whom the Company is an “eligible issuer” within the meaning of Section 409A of the Code. The designation of an individual as a Participant in any year shall not require that the Committee designate such individual to receive an Award in any other year or to receive the same type or amount of Award in any other year.
4.2 Type of Awards. Awards under this Plan may be granted in any one or a combination of: (a) Non-Restricted Employee Benefit Plan Stock; (b) Restricted Stock; and (c) Other Stock-Based Awards. Awards granted under this Plan shall be evidenced by Award Agreements (which need not be identical) that provide additional terms and conditions associated with such Awards, including, without limitation, restrictive covenants, as determined by the Committee in its sole discretion; provided, however, that in the event of any conflict between the provisions of this Plan and any such Award Agreement, the provisions of the Plan shall prevail unless otherwise indicated in the Award Agreement.
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Article 5.
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Shares Subject to this Plan
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5.1 Number of Shares Available. Subject to adjustment as provided in this Article 5 and Article 11 of the Plan, the maximum number of Shares available for issuance to Participants pursuant to Awards under the Plan shall be 4.9% of the issued and outstanding common stock at any one time. The Shares available for issuance under the Plan may consist, in whole or in part, of authorized and unissued Shares or treasury Shares. Any Shares tendered to or withheld by the Company as part or full payment for the purchase price, Option Price or grant price of an Award or to satisfy all or part of the Company’s tax withholding obligation with respect to an Award shall not be available for the issuance of additional Awards.
5.2 Additional Shares. In the event that any outstanding Award expires or is forfeited, cancelled or otherwise terminated without consideration (i.e., Shares or cash) therefor, the Shares subject to such Award, to the extent of any such forfeiture, cancellation, expiration or termination, shall again be available for Awards under this Plan. If the Committee authorizes the assumption under this Plan, in connection with any merger, consolidation, reorganization or acquisition of property or stock, of awards granted under another plan, such assumption shall not reduce the maximum number of Shares available for issuance under this Plan.
Article 6. Non-Restricted Employee Benefit Plan Stock
6.1 Grant of Non-Restricted Employee Benefit Plan Stock. The Committee is hereby authorized to grant Non-Restricted Employee Benefit Plan Stock. Non-Restricted Employee Benefit Plan Stock shall be evidenced by Written Agreements that shall conform to the requirements of the Plan and may contain such other provisions as the Committee shall deem advisable. Subject to the terms of the Plan and any applicable Plan, a Non-Restricted Employee Benefit may be granted under the Plan and shall confer on the holder thereof a right to receive Non-Restricted Common Stock, as the Committee shall determine in its sole discretion.
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Article 7.
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Restricted Stock
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7.1 Grant of Restricted Stock. The Committee is hereby authorized to grant Restricted Stock to Participants. An Award of Restricted Stock is a grant by the Committee of a specified number of Shares to the Participant, which Shares are subject to forfeiture upon the occurrence of specified events. Participants shall be awarded Restricted Stock in exchange for consideration not less than the minimum consideration required by applicable law. Restricted Stock shall be evidenced by an Award Agreement, which shall conform to the requirements of the Plan and may contain such other provisions as the Committee shall deem advisable.
7.2 Terms of Restricted Stock Awards. Each Award Agreement evidencing a Restricted Stock grant shall specify the Restriction Period(s), the number of Shares of Restricted Stock subject to the Award, the purchase price, if any, of the Restricted Stock, the performance, employment or other service or other conditions (including the termination of a Participant’s employment or other service, whether due to death, Disability or other reason) under which the Restricted Stock may be forfeited to the Company and such other provisions as the Committee shall determine. Any Restricted Stock granted under the Plan shall be evidenced in such manner as the Committee may deem appropriate, including book-entry registration or issuance of a stock certificate or certificates (in which case, the certificate(s) representing such Shares shall be legended as to sale, transfer, assignment, pledge or other encumbrances during the Restriction Period and deposited by the Participant, together with a stock power endorsed in blank, with the Company, to be held in escrow during the Restriction Period). At the end of the Restriction Period, the restrictions imposed hereunder and under the Award Agreement shall lapse with respect to the number of Shares of Restricted Stock as determined by the Committee, and, except as provided in Section 14.6, the legend required by this Section 8.2 shall be removed and such number of Shares delivered to the Participant (or, where appropriate, the Participant’s legal representative).
7.3 Voting and Dividend Rights. The Committee shall determine and set forth in a Participant’s Award Agreement whether or not a Participant holding Restricted Stock granted hereunder shall have the right to exercise voting rights with respect to the Restricted Stock during the Restriction Period (the Committee may require a Participant to grant an irrevocable proxy and power of substitution) and/or have the right to receive dividends on the Restricted Stock during the Restriction Period (and, if so, on what terms).
7.4 Performance Goals. The Committee may condition the grant of Restricted Stock or the expiration of the Restriction Period upon the Participant’s achievement of one or more performance goals specified in the Award Agreement. If the Participant fails to achieve the specified performance goal(s), the Committee shall not grant the Restricted Stock to such Participant or the Participant shall forfeit the Award of Restricted Stock to the Company, as applicable.
8.5 Section 83(b) Election. If a Participant makes an election pursuant to Section 83(b) of the Code concerning Restricted Stock, the Participant shall be required to file promptly a copy of such election with the Company.
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Article 8.
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Other Stock-Based Awards
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The Committee, in its sole discretion, may grant Awards of Shares and Awards that are valued, in whole or in part, by reference to, or are otherwise based on the Fair Market Value of, Shares, including, without limitation, restricted stock units, dividend equivalent rights and other phantom awards. Such Other Stock-Based Awards shall be in such form and dependent on such conditions as the Committee shall determine, including, without limitation, the right to receive one or more Shares (or the equivalent cash value of such Shares) upon the completion of a specified period of employment or other service, the occurrence of an event and/or the attainment of performance objectives. Subject to the provisions of the Plan, the Committee shall determine to whom and when Other Stock-Based Awards will be made, the number of Shares to be awarded under (or otherwise related to) such Other Stock-Based Awards, whether such Other Stock-Based Awards shall be settled in cash, Shares or a combination of cash and Shares and all other terms and conditions of such Awards (including, without limitation, the vesting provisions thereof and provisions ensuring that all Shares so awarded and issued shall be fully paid and non-assessable). Each Other Stock-Based Award grant shall be evidenced by an Award Agreement, which shall conform to the requirements of the Plan.
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Article 9.
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Compliance with Section 409A of the Code
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9.1 General. The Company intends that the Plan and all Awards be construed to avoid the imposition of additional taxes, interest and penalties pursuant to Section 409A of the Code (together with all regulations, guidance, compliance programs and other interpretative authority thereunder, “Section 409A”). Notwithstanding the Company’s intention, in the event that any Award is subject to such additional taxes, interest or penalties pursuant to Section 409A, the Committee may, in its sole discretion and without a Participant’s prior consent, amend the Plan and/or Awards, adopt policies and procedures or take any other actions (including amendments, policies, procedures and actions with retroactive effect) as are necessary or appropriate to (a) exempt the Plan and/or any Award from the application of Section 409A, (b) preserve the intended tax treatment of any such Award or (c) comply with the requirements of Section 409A, including, without limitation, any such regulations, guidance, compliance programs and other interpretative authority that may be issued after the date of the grant. Neither the Company nor any of its Subsidiaries or Affiliates shall be liable for any additional tax, interest or penalties that may be imposed on a Participant under Section 409A or any damages that may be imposed on a Participant or any other Person for failing to comply with Section 409A, but only if Awards are granted, administered and settled in accordance with the terms of this Plan and the underlying Award Agreements.
9.2 Payments to Specified Employees. Notwithstanding any contrary provision in the Plan or Award Agreement, any payment(s) of nonqualified deferred compensation (within the meaning of Section 409A) that are otherwise required to be made under the Plan to a “specified employee” (as defined under Section 409A) as a result of his or her separation from service (other than a payment that is not subject to Section 409A) shall be delayed for the first six (6) months following such separation from service (or, if earlier, until the date of death of the specified employee) and shall instead be paid (in a manner set forth in the Award Agreement) on the day that immediately follows the end of such six-month period or as soon as administratively practicable thereafter. Any remaining payments of nonqualified deferred compensation shall be paid without delay and at the time or times such payments are otherwise scheduled to be made.
9.3 Separation from Employment or Other Service. A termination of employment or other service shall not be deemed to have occurred for purposes of any provision of the Plan or any Award Agreement providing for the payment of any amounts or benefits that are considered nonqualified deferred compensation under Section 409A upon or following a termination of employment or other service, unless such termination is also a “separation from service” within the meaning of Section 409A and the payment thereof prior to a “separation from service” would violate Section 409A. For purposes of any such provision of the Plan or any Award Agreement relating to any such payments or benefits, references to a “termination,” “termination of employment,” “termination of service,” or like terms shall mean “separation from service.”
10.1 Adjustments in Authorized Shares. In the event of any corporate event or transaction involving the Company, a Subsidiary and/or an Affiliate (including, but not limited to, a change in the Shares of the Company or the capitalization of the Company), such as a merger, consolidation, reorganization, recapitalization, partial or complete liquidation, reclassification, separation, stock dividend, stock split, reverse stock split, split up, spin-off, combination of Shares, exchange of Shares, dividend in kind, cash dividend, amalgamation or other like change in capital structure, distribution of any kind or any similar corporate event or transaction, the Committee, to prevent dilution or enlargement of Participants’ rights under the Plan, shall choose, in its sole discretion, one or more of the following actions, which the Committee shall take in an equitable manner, (a) substitute or adjust the number and kind of Shares or other property that may be issued under the Plan or under particular forms of Awards, (b) substitute or adjust the number and kind of Shares or other property subject to outstanding Awards, (c) adjust the Option Price, grant price or purchase price applicable to outstanding Awards and/or other value determinations (including performance conditions) applicable to the Plan or outstanding Awards, (d) permit the holders of outstanding Awards to participate in the corporate event or transaction, or (e) issue additional Awards or Shares or make cash payments to the holders of outstanding Awards. All adjustments shall be made in good faith compliance with Section 409A.
10.2 Change of Control. Upon the occurrence of a Change of Control after the Effective Date, unless otherwise specifically prohibited under applicable laws or by the rules and regulations of any governing governmental agencies or national securities exchanges, or unless the Committee shall specify otherwise in the Award Agreement, the Committee shall choose, in its sole discretion, to make one or more of the following adjustments in the terms and conditions of outstanding Awards (which, for the avoidance of doubt, shall exclude any Options or any portions thereof for which a notice of exercise has been received by the Company): (a) continuation or assumption of such outstanding Awards under the Plan by the Company (if it is the surviving company or corporation) or by the surviving company or corporation or its parent; (b) substitution by the surviving company or corporation or its parent of awards with substantially equivalent terms for outstanding Awards; (c) accelerated exercisability, vesting and/or lapse of restrictions under outstanding Awards immediately prior to the occurrence of such event; (d) upon written notice, provision that any outstanding Awards must be exercised, to the extent then exercisable, during a reasonable period of time immediately prior to the scheduled consummation of the event or such other period as determined by the Committee (contingent upon the consummation of the event), and at the end of such period, such Awards shall terminate to the extent not so exercised within the relevant period, provided, that, the Participant is able to sell any Shares acquired upon such exercise for cash or liquid securities in the transaction that causes the Change of Control; (e) cancellation of all or any portion of a Participant’s outstanding Awards for consideration (in the form of cash or liquid securities) equal to the Fair Market Value of the Shares subject to such Award (or the portion thereof being canceled), provided, that, in the case of Options and Stock Appreciation Rights or similar Awards, the Participant shall be entitled to the excess, if any, of the aggregate Fair Market Value of the Shares subject to such outstanding Awards (or the portion thereof being canceled) over the aggregate Option Price or grant price, as applicable, with respect to such Awards or portion thereof being canceled; or (f) in the event of a sale of at least 80% of the outstanding Shares or all or substantially all of the assets of the Company, cancellation of any unvested Awards or any unvested portions of any Awards for no consideration. For the avoidance of doubt, in the event of a sale of less than 80% of the outstanding Shares or less than substantially all of the assets of the Company, as applicable, any unvested Awards or any unvested portions of any Awards will remain, subject to clauses (a) through (e) of this Section 11.2.
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Article 11.
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General Provisions
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11.1 No Right to Employment or Other Service or Award. The granting of an Award under the Plan shall impose no obligation on the Company, any Subsidiary or any Affiliate to continue the employment or other service of a Participant and shall not lessen or affect any right that the Company, any Subsidiary or any Affiliate may have to terminate the employment or other service of such Participant. No Participant or other Person shall have any claim to be granted any Award, and there is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards. The terms and conditions of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same with respect to each Participant (whether or not such Participants are similarly situated).
11.2 Settlement of Awards. Each Award Agreement shall establish the form in which the Award shall be settled. The Committee shall determine whether cash, Awards, other securities or other property shall be issued or paid in lieu of fractional Shares or whether such fractional Shares or any rights thereto shall be issued, rounded, forfeited or otherwise eliminated.
11.3 Tax Withholding. The Company shall have the power and the right to deduct or withhold automatically from any amount deliverable under the Award or otherwise, or to require a Participant to remit to the Company, the minimum statutory amount to satisfy federal, state and local taxes, domestic or foreign, required by law or regulation to be withheld with respect to any taxable event arising as a result of the Plan. Participants may elect, subject to the approval of the Committee, in its sole discretion, to satisfy the withholding requirement, in whole or in part, by having the Company withhold Shares having a Fair Market Value equal to the minimum statutory total tax that could be imposed in connection with any such taxable event.
11.4 No Guarantees Regarding Tax Treatment. Participants (or their beneficiaries) shall be responsible for all taxes with respect to any Awards under the Plan. The Committee and the Company make no guarantees to any Person regarding the tax treatment of Awards or payments made under the Plan. Neither the Committee nor the Company has any obligation to take any action to prevent the assessment of any tax on any Person with respect to any Award under Section 409A or 457A of the Code or otherwise, and none of the Company, any of its Subsidiaries or Affiliates or any of their employees or representatives shall have any liability to a Participant with respect thereto.
11.5 Non-Transferability of Awards. Unless otherwise determined by the Committee, an Award shall not be transferable or assignable by the Participant except (a) in the event of the Participant’s death (subject to the applicable laws of descent and distribution) or (b) subject to the approval of the Committee, which approval shall not be unreasonably withheld or delayed, to a family trust or other entity established for estate planning purposes, and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate. No transfer shall be permitted for value or consideration. An award exercisable after the death of a Participant may be exercised by the heirs, legatees, personal representatives or distributees of the Participant. Any permitted transfer of the Awards to heirs, legatees, personal representatives or distributees of the Participant shall not be effective to bind the Company unless the Committee shall have been furnished with written notice thereof and a copy of such evidence as the Committee may deem necessary to establish the validity of the transfer and the acceptance by the transferee or transferees of the terms and conditions hereof.
11.6 Stockholders’ Agreement; Conditions and Restrictions on Shares. Shares received in connection with Awards granted hereunder shall be subject to all of the terms and conditions of the Stockholders’ Agreement, including all transfer restrictions and repurchase rights set forth therein. As a condition to receiving, exercising or settling an Award, each Participant shall sign a joinder agreement pursuant to which the Participant shall become fully bound by the terms set forth in the Stockholders’ Agreement. The certificates for Shares may include any legend that the Committee deems appropriate to reflect any conditions and restrictions applicable to such Shares.
11.7 Shares Not Registered. Shares and Awards shall not be issued under this Plan unless the issuance and delivery of such Shares and any Awards comply with (or are exempt from) all applicable requirements of law, including, without limitation, the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations and the regulations of any stock exchange or other securities market on which the Company’s securities may then be traded. The Company shall not be obligated to file any registration statement under any applicable securities laws to permit the purchase or issuance of any Shares or any Awards under this Plan, and accordingly, any certificates for Shares or documents granting Awards may have an appropriate legend or statement of applicable restrictions endorsed thereon. If the Company deems it necessary to ensure that the issuance of securities under this Plan is not required to be registered under any applicable securities laws, each Participant with respect to whom such security would be purchased or issued shall deliver to the Company an agreement or certificate containing such representations, warranties and covenants as the Company reasonably requires.
11.8 Awards to Non-U.S. Employees or Directors. To comply with the laws in countries other than the United States in which the Company or any Subsidiary or Affiliate operates or has Employees, Directors or Consultants, the Committee, in its sole discretion, shall have the power and authority to: (a) determine which Subsidiaries or Affiliates shall be covered by the Plan; (b) determine which Employees, Directors or Consultants outside the United States are eligible to participate in the Plan; (c) modify the terms and conditions of any Award granted to Employees, Directors or Consultants outside the United States to comply with applicable foreign laws; (d) take any action, before or after an Award is made, that it deems advisable to obtain approval or comply with any necessary local government regulatory exemptions or approvals; and (e) establish subplans and modify exercise procedures and other terms and procedures, to the extent such actions may be necessary or advisable, including in accordance with Appendix I attached hereto.
11.9 Rights as a Stockholder. Except as otherwise provided herein or in the applicable Award Agreement, a Participant shall have none of the rights of a stockholder with respect to Shares covered by any Award until the Participant becomes the record holder of such Shares.
11.10 Severability. If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws, or, if it cannot be so construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person or Award, and the remainder of the Plan and any such Award shall remain in full force and effect.
11.11 Unfunded Plan. Participants shall have no right, title or interest whatsoever in or to any investments that the Company or any of its Subsidiaries or Affiliates may make to aid it in meeting its obligations under the Plan. Nothing contained in the Plan, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind, or a fiduciary relationship between the Company and any Participant, beneficiary, legal representative or other Person. To the extent that any Person acquires a right to receive payments from the Company under the Plan, such right shall be no greater than the right of an unsecured general creditor of the Company. All payments to be made hereunder shall be paid from the general funds of the Company, and no special or separate fund shall be established and no segregation of assets shall be made to assure payment of such amounts. The Plan is not subject to the U.S. Employee Retirement Income Security Act of 1974, as amended from time to time.
11.12 No Constraint on Corporate Action. Nothing in the Plan shall be construed to (a) limit, impair or otherwise affect the Company’s right or power to make adjustments, reclassifications, reorganizations or changes of its capital or business structure or to merge, consolidate, dissolve, liquidate, sell or transfer all or any part of its business or assets; or (b) limit the right or power of the Company to take any action that it deems necessary or appropriate.
11.13 Successors. All obligations of the Company under the Plan with respect to Awards granted hereunder shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation or otherwise, of all or substantially all of the business or assets of the Company.
11.14 Governing Law. This Plan and each Award Agreement and all claims or causes of action or other matters (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Plan or any Award Agreement or the negotiation, execution or performance of this Plan or any Award Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, excluding any conflict-or choice-of-law rule or principle that might otherwise refer construction or interpretation of this Plan to the substantive law of another jurisdiction.
11.15 Effective Date. The Plan shall be effective as of the date of adoption by the Board, which date is set forth below (the “Effective Date”).
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CERTIFICATION
On behalf of the Company, the undersigned hereby certifies that this Eco Science Solutions, Inc. 2016 Equity Incentive Plan has been approved by the Board of Directors of the Company as of January 1, 2016.
ECO SCIENCE SOLUTIONS, INC.
/s/Jeffery Taylor
Jeffery Taylor, Chief Executive Officer
/s/Don Taylor
Don Taylor, Chief Financial Officer