true
Amendment No. 1
0001538495
0001538495
2023-11-08
2023-11-08
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xbrli:shares
iso4217:USD
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K/A
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): November 8, 2023
Earth
Science Tech, Inc.
(Exact
name of registrant as specified in its charter)
| Florida |
|
000-55000 |
|
80-0961484 |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification No.) |
8950
SW 74th Court
Suite
101
Miami,
FL 33156
(Address
of principal executive offices)
(305)
724-5684
Registrant’s
telephone number, including area code
NA
(Former
name or former address, if changed since last report)
Securities registered pursuant to Section 12(g) of
the Act:
| Title of Each Class |
|
Trading Symbol |
|
Name of each exchange on which registered |
| Common Stock $0.001 par value |
|
ETST |
|
Over the Counter Bulletin Board |
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
| ☐ |
Written
communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
|
| ☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
5.02(d) Election of Certain Directors
On
November 7, 2023, a voting majority entitled by action without meeting of Earth Science Tech, Inc. (the “Company”), the Company’s
shareholders elected Yovan Sanchez as the Company’s Director of the Board. Sanchez will be compensated $2,000 per board of Directors
meeting attended for all services rendered.
Biological
Information
Yovan
Sanchez, - Age 42
Mr.
Sanchez is
a seasoned firefighter/paramedic and a driven entrepreneur. With more than two decades of dedicated service in the firefighting and paramedic
field, he has been a stalwart in his community. In addition to his public service, Yovan is also a real estate owner and manager in South
Florida. In 2011, he took the initiative to establish Hot Box Incubators Corp. Yovan’s commitment to community development extends
to supporting youth programs, culminating in the creation of Miami Springs Jiu Jitsu in 2022. Furthermore, he possesses over 20
years of valuable experience in the boat and yacht industry, specializing in identifying opportunities and harnessing them to his advantage.
His extensive network of connections across various industries bolsters his ability to make the most of these opportunities.
On
November 7, 2023, a voting majority entitled by action without meeting of the Company’s shareholders elected Emaliano Curia
as the Company’s Independent Director of the Board. Curia will be compensated $2,000 per board of Directors meeting attended for
all services rendered.
Biological
Information
Emaliano
Curia, - Age 44
Dr.
Curia is a
physical medicine and rehabilitation physician with expertise in musculoskeletal disorders and neuro-rehabilitation after injuries or
illness. He completed his residency at
Jackson Memorial Hospital and Larkin Community Hospital, where he also served as Chief Resident. Prior to residency he served as medical
research director for multiple pharmaceutical clinical trials and orthopedic technology development and implementation. He participated
in multiple community outreach programs and developed quality improvement protocols for underserved populations in Miami Dade county.
Dr Curia currently treats patient with musculoskeletal disorders, athletes and amputees.
Item
9.01(d) Financial Statements and Exhibits
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
| |
EARTH SCIENCE TECH, INC. |
| |
|
|
| Dated:
November 8, 2023 |
By: |
/s/
Giorgio R. Saumat |
| |
|
Giorgio
R. Saumat
CEO,
Director |
Exhibit
10.1
Earth
Science Tech, Inc.
Director
Of THE BOARD Agreement
Dated
as of November 8, 2023
This
Director of the Board Agreement (this “Agreement”) will be made effective as of the date first set forth above (the “Effective
Date”), is entered into by and between Earth Science Tech, Inc., a Florida corporation (“Company”), and Yovan Sanchez
(“Director”). The Company and Director may be referred to herein individually as a “Party” or collectively as
the “Parties.”
WHEREAS,
the Company’s shareholders representing a majority of the shares entitled to vote by action without meeting has elected the Director
to the Board of Directors of Company (the “Board”) through a shareholder consent and now desires to enter into an agreement
with the Director with respect to Director’s continuing service as a director of Company; and
WHEREAS,
the Director is willing to continue serving as a director of Company upon the terms and conditions set forth herein and in accordance
with the provisions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged. the Parties hereby agree as follows:
| 1. | Defined
Terms. Wherever the following terms are used in this Agreement, they shall have the meanings
ascribed to them below, unless the context clearly indicates otherwise. Other capitalized
terms in this Agreement are defined in the text hereof. |
| (a) | “Affiliate”
means, with reference to Company, any other Person controlling, controlled by or under the
common control of Company. For purposes hereof, the term “control” (or any equivalent
term) means having ownership of more than fifty percent (50%) of the voting securities of
a Person or the power, whether through voting power or otherwise, to control the management
policies of such Person. |
| (b) | “Person”
means any natural person, corporation, company, partnership (including both general and limited
partnerships), limited liability company, sole proprietorship, association, joint stock company,
firm, trust, trustee, joint venture, unincorporated organization, executor, administrator,
legal representative, or other legal entity, including any governmental authority, entity
or instrumentality. |
| (a) | Director
agrees to the Company and to devote as much time as is reasonably necessary to perform his
duties as a Director of the Company, including duties as a member of one or more committees
of the Board, to which the Director may hereafter be appointed. The Director will perform
such duties described herein in accordance with the general fiduciary duty of directors.
The Company acknowledges that Director currently holds other positions (“Other Employment”)
and agrees that Director may maintain such positions. The Company also acknowledges that
Director may from time to time provide consulting or advisory services for business entities
other than the Company which are not competitors of the Company and that Director may sit
on the board of directors of other entities, subject to any limitations set forth by the
Sarbanes-Oxley Act of 2002 and applicable fiduciary duties owed to the Company, and limitations
related thereto, including those provided by any exchange or quotation service on which the
Company’s common stock is listed or traded. Notwithstanding the same, the Director
will provide the Company with prior written notice of any future commitments to such entities
which are material in nature, and use reasonable business efforts to coordinate his respective
commitments so as to fulfill his obligations to the Company and, in any event, will fulfill
his legal obligations as a director. Other than as set forth above, the Director will not,
without the prior notification to the Board, engage in any other business activity which
could materially interfere with the performance of his duties, services and responsibilities
hereunder or which is in violation of the reasonable policies established from time to time
by the Company, provided that the foregoing shall in no way limit his activities on behalf
of (i) any current employer and its affiliates or (ii) the board of directors of any entities
on which he currently sits. At such time as the Board receives such notification, the Board
may require the resignation of the Director if it determines that such business activity
does in fact materially interfere with the performance of the Director’s duties, services
and responsibilities hereunder. The Company currently intends to hold at least one regular
meeting of the Board and each Committee each quarter, together with additional meetings of
the Board and Committees as may be required by the business and affairs of the Company. Director
shall be given reasonable advance notice of such meetings, and they will be scheduled at
times when Director is available. Director shall make reasonable business efforts to attend
(either in person or telephonically) all Board meetings and all pre-scheduled Board committees
and subcommittees as reasonably requested and agreed upon by the Board and make himself available
to the Company at mutually convenient times and places, as appropriate and convenient. |
| (b) | Director
is an with respect to the Company (as such term has been construed under Florida law with
respect to directors of Florida corporations and the OTC Markets, the NASDAQ Stock Exchange
and the New York Stock Exchange). Director confirms that, as of the Effective Date, to Director’s
knowledge, (a) Director does not possess material business, close personal relationships
or other affiliations, or any history of any such material business, close personal relationships
or other affiliations, with the Company’s significant equity or debt holders or any
of their respective corporate affiliates that would cause Director to be unable to (i) exercise
judgment based on the best interests of the Company or (ii) make decisions and carry out
Director’s responsibilities as a Director of the Company, in each case in accordance
with the terms of the Certificate of Incorporation and Bylaws of the Company and applicable
law, and (b) Director has no existing relationship or affiliation of any kind with any entity
Director known to be a competitor of the Company. |
| (c) | In
addition to Director’s service on the Board, Director agrees that, if so selected by
the Board, Director shall serve on certain committees of the Board. |
| (d) | By
execution of this Agreement, Director accepts Director’s appointment or election as
a Director of the Company, and agrees to serve in such capacity, subject to the terms of
this Agreement, until Director’s successor is duly elected and qualified or until Director’s
earlier death, resignation or removal. The Parties acknowledge and agree that Director is
being engaged to serve as a Director of the Company only and is not being engaged to serve,
and shall not serve, the Company in any other capacity. |
| 3. | Term.
The term of this Agreement shall continue from the Effective Date until the earliest of (a)
such time as Director resigns or is removed in accordance with the Certificate of Incorporation
and Bylaws of the Company, and (b) the death of the Director (the “Term”). |
| 4. | Compensation.
For all services to be rendered by Director hereunder, and so long as the Director remains
a Director of the Company, the Company shall, during the Term compensate $2,000.00 (two thousand)
dollars per Board of Directors meeting attended. |
| (a) | Company
shall reimburse Director for all reasonable out-of-pocket expenses incurred by Director in
attending any in-person meetings or incurred in good faith in connection with the performance
of the Director’s duties for the Company, provided that Director complies with the
generally applicable policies, practices and procedures of the Company for submission of
expense reports, receipts or similar documentation of such expenses. |
| (a) | Definition.
For purposes of this Agreement, “Confidential Information” shall mean all
Company Work Product (as hereinafter defined) and all non-public written, electronic, and
oral information or materials of Company communicated to or otherwise obtained by Director
in connection with this Agreement, which is related to the products, business and activities
of Company, its Affiliates, and subsidiaries, and their respective customers, clients, suppliers,
and other entities with which such party does business, including: (i) all costing, pricing,
technology, software, documentation, research, techniques, procedures, processes, discoveries,
inventions, methodologies, data, tools, templates, know how, intellectual property and all
other proprietary information of Company; (ii) the terms of this Agreement; and (iii) any
other information identified as confidential in writing by Company. Confidential Information
shall not include information that: (a) was lawfully known by Director without an obligation
of confidentiality before its receipt from Company; (b) is independently developed by Director
without reliance on or use of Confidential Information; (c) is or becomes publicly available
without a breach by Director of this Agreement; or (d) is disclosed to Director by a third
party which is not required to maintain its confidentiality. An “Affiliate” of
a Party shall mean any entity directly or indirectly controlling, controlled by, or under
common control with, such Party at any time during the Term for so long as such control exists. |
| (b) | Company
Ownership. Company shall retain all right, title, and interest to the Confidential Information,
including all copies thereof and all rights to patents, copyrights, trademarks, trade secrets
and other intellectual property rights inherent therein and appurtenant thereto. Subject
to the terms and conditions of this Agreement, Company hereby grants Director a non-exclusive,
non-transferable, license during the Term to use any Confidential Information solely to the
extent that such Confidential Information is necessary for the performance of Director’s
duties hereunder. Director shall not, by virtue of this Agreement or otherwise, acquire any
proprietary rights whatsoever in Confidential Information, which shall be the sole and exclusive
property and confidential information of Company. No identifying marks, copyright or proprietary
right notices may be deleted from any copy of Confidential Information. Nothing contained
herein shall be construed to limit the rights of Company from performing similar services
for, or delivering the same or similar deliverable to, third parties using the Confidential
Information and/or using the same personnel to provide any such services or deliverables. |
| (c) | Confidentiality
Obligations. Director agrees to hold the Confidential Information in confidence and not
to copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such
Confidential Information to any Person or to use the Confidential Information for any purposes
whatsoever, without the express written permission of Company, other than disclosure to Director’s,
partners, principals, directors, officers, employees, subcontractors and agents on a “need-to-know”
basis as reasonably required for the performance of Director’s obligations hereunder
or as otherwise agreed to herein. Director shall be responsible to Company for any violation
of this Section 5 by Director’s employees, subcontractors, and agents. Director shall
maintain the Confidential Information with the same degree of care, but no less than a reasonable
degree of care, as Director employs concerning its own information of like kind and character. |
| (d) | Required
Disclosure. If Director is requested to disclose any of the Confidential Information
as part of an administrative or judicial proceeding, Director shall, to the extent permitted
by applicable law, promptly notify Company of that request and cooperate with Company, at
Company’s expense, in seeking a protective order or similar confidential treatment
for the Confidential Information. If no protective order or other confidential treatment
is obtained, Director shall disclose only that portion of Confidential Information which
is legally required and will reasonably support, at Company’s expense, all reasonable
efforts by the Company to obtain reliable assurances that confidential treatment will be
accorded the Confidential Information which is required to be disclosed. |
| (e) | Enforcement.
Director acknowledges that the Confidential Information is unique and valuable, and that
remedies at law will be inadequate to protect Company from any actual or threatened breach
of this Section 5 by Director and that any such breach may cause irreparable and continuing
injury to Company. Therefore, Director agrees that Company shall be entitled to seek equitable
relief with respect to the enforcement of this Section 5 without any requirement to post
a bond, including, without limitation, injunction and specific performance, without proof
of actual damages or exhausting other remedies, in addition to all other remedies available
to Company at law or in equity. For greater clarity, in the event of a breach or threatened
breach by Director of any of the provisions of this Section , in addition to and not in limitation
of any other rights, remedies or damages available at law or in equity, Company shall be
entitled to a permanent injunction or other like remedy in order to prevent or restrain any
such breach or threatened breach by Director, and Director agrees that an interim injunction
may be granted against Director immediately on the commencement of any action, claim, suit
or proceeding by Company to enforce the provisions of this Section , and Director further
irrevocably consents to the granting of any such interim or permanent injunction or any like
remedy. If any action at law or in equity is necessary to enforce the terms of this Section,
Director, if it is determined to be at fault, shall pay Company’s reasonable legal
fees and expenses on a substantial indemnity basis. |
| (f) | Related
Duties. Director shall: (i) promptly destroy or deliver to Company upon Company’s
request all materials in Director’s possession which contain Confidential Information;
(ii) use its best efforts to prevent any unauthorized use or disclosure of the Confidential
Information; (iii) notify Company in writing immediately upon discovery of any such unauthorized
use or disclosure; and (iv) cooperate in every reasonable way to regain possession of any
Confidential Information and to prevent further unauthorized use and disclosure thereof.
|
| (g) | Legal
Exceptions. Further notwithstanding the foregoing provisions of this Section 5, Director
may disclose confidential information as may be expressly required by law, governmental rule,
regulation, executive order, court order, or in connection with a dispute between the Parties;
provided that prior to making any such disclosure, subject to applicable law, Director shall
use its best efforts to: (i) provide Company with prior written notice as soon as reasonably
possible setting forth with specificity the reason(s) for such disclosure, supporting documentation
therefor, and the circumstances giving rise thereto; and (ii) limit the scope and duration
of such disclosure to the strictest possible extent. |
| (h) | Limitation.
Except as specifically set forth herein, no licenses or rights under any patent, copyright,
trademark, or trade secret are granted by Company to Director hereunder, or are to be implied
by this Agreement. Except for the restrictions on use and disclosure of Confidential Information
imposed in this Agreement, no obligation of any kind is assumed or implied against either
Party or their Affiliates by virtue of meetings or conversations between the Parties hereto
with respect to the subject matter stated above or with respect to the exchange of Confidential
Information. Each Party further acknowledges that this Agreement and any meetings and communications
of the Parties and their affiliates relating to the same subject matter shall not: (i) constitute
an offer, request, invitation or contract with the other Party to engage in any research,
development or other work; (ii) constitute an offer, request, invitation or contract involving
a buyer-seller relationship, joint venture, teaming or partnership relationship between the
Parties and their affiliates; or (iii) constitute a representation, warranty, assurance,
guarantee or inducement with respect to the accuracy or completeness of any Confidential
Information or the non-infringement of the rights of third persons. |
| 6. | Intellectual
Property Rights. |
| (a) | Disclosure
of Work Product. As used in this Agreement, the term “Work Product” means
any invention, whether or not patentable, know-how, designs, mask works, trademarks, formulae,
processes, manufacturing techniques, trade secrets, ideas, artwork, software or
any copyrightable or patentable works. Director agrees
to disclose promptly in writing to Company, or any Person designated by Company, all Work
Product that is solely or jointly conceived, made, reduced to practice, or learned by Director
as a result of Director’s services as a director to the Company (“Company Work
Product”). Director agrees (a) to use Director’s best efforts to maintain such
Company Work Product in trust and strict confidence; (b) not to use Company Work Product
in any manner or for any purpose not expressly set forth in this Agreement; and (c) not to
disclose any such Company Work Product to any third party without first obtaining Company’s
express written consent on a case-by-case basis. |
| (b) | Ownership
of Company Work Product. Director agrees that any and all Company Work Product conceived,
written, created or first reduced to practice as a result of Director’s services as
a director to the Company shall be deemed “work for hire” under applicable law
and shall be the sole and exclusive property of Company. |
| (c) | Assignment
of Company Work Product. Director irrevocably assigns to Company all right, title and
interest worldwide in and to the Company Work Product and all applicable intellectual property
rights related to the Company Work Product, including without limitation, copyrights, trademarks,
trade secrets, patents, moral rights, contract and licensing rights (the “Proprietary
Rights”). Except as set forth below, Director retains no rights to use the Company
Work Product and agrees not to challenge the validity of Company’s ownership in the
Company Work Product. Director hereby grants to Company a perpetual, non-exclusive, fully
paid-up, royalty-free, irrevocable and world-wide right, with rights to sublicense through
multiple tiers of sublicensees, to reproduce, make derivative works of, publicly perform,
and display in any form or medium whether now known or later developed, distribute, make,
use and sell any and all Director owned or controlled Work Product or technology that Director
uses to complete the services and which is necessary for Company to use or exploit the Company
Work Product. |
| (d) | Assistance.
Director agrees to reasonably cooperate with Company or its designee(s), both during
and after the Term and at Company’s sole expense, in the procurement and maintenance
of Company’s rights in Company Work Product and to execute, when requested, any other
documents deemed necessary by Company to carry out the purpose of this Agreement. Director
will reasonably assist Company, at Company’s sole expense, to obtain, and from time
to time enforce, United States and foreign Proprietary Rights relating to Company Work Product
in any and all countries. Director’s obligation to assist Company with respect to Proprietary
Rights relating to such Company Work Product in any and all countries shall continue beyond
the termination of this Agreement, but Company shall compensate Director at a reasonable
rate to be mutually agreed upon for the time actually spent by Director at Company’s
request on such assistance. |
| 7. | Director’s
General Representations and Acknowledgment. Director represents to the Company that Director’s
execution and performance of this Agreement shall not be in violation of any agreement or
obligation (whether or not written) that Director may have with or to any Person, including
without limitation, any prior or current employer. The Director hereby acknowledges and agrees
that this Agreement (and any other agreement or obligation referred to herein) shall be an
obligation solely of the Company, and the Director shall have no recourse whatsoever against
any shareholder of Company or any of any of its affiliate or subsidiary companies with respect
to any matter arising under this Agreement. |
| 8. | Representations
and Warranties Related to Securities. The Shares, any other shares of Common Stock or
other securities of the Company that may be issued or granted to the Director hereunder or
pursuant to any other agreement between the Company and the Director in connection with the
transactions contemplated herein may be referred to as the “Securities”, and
Director represents and warrants to the Company as set forth in this Section 8 with respect
to the Securities and Director’s receipt thereof, as of the Effective Date and as of
the date of any issuance or granting of any Securities. |
| (a) | Director
hereby represents that the Securities awarded pursuant to this Agreement are being acquired
for Director’s own account and not for sale or with a view to distribution thereof.
Director acknowledges and agrees that any sale or distribution
of Securities which have vested may be made only pursuant to either (a) a registration
statement on an appropriate form under the Securities Act of 1933, as amended (the “Securities
Act”), which registration statement has become effective and is current with regard
to the shares being sold, or (b) a specific exemption from the registration requirements
of the Securities Act that is confirmed in a favorable written opinion of counsel, in form
and substance satisfactory to counsel for the Company, prior to any such sale or distribution.
Director hereby consents to such action as the Board or the Company deems necessary or appropriate
from time to time to prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act or to implement the provisions of this Agreement, including
but not limited to placing restrictive legends on certificates evidencing shares of Securities
(whether or not the Restrictions applicable thereto have lapsed) and delivering stop transfer
instructions to the Company’s stock transfer agent. |
| (b) | Director
understands that the Securities are being offered and sold to Director in reliance upon specific
exemptions from the registration requirements of United States federal and state securities
laws and that the Company is relying upon the truth and accuracy of, and Director’s
compliance with, the representations, warranties, agreements, acknowledgments and understandings
of the Director set forth herein in order to determine the availability of such exemptions
and the eligibility of the Director to acquire the Securities. |
| (c) | Director
has been furnished with all documents and materials relating to the business, finances and
operations of the Company and information that Director requested and deemed material to
making an informed investment decision regarding its acquisition of the Securities. Director
has been afforded the opportunity to review such documents and materials and the information
contained therein. Director has been afforded the opportunity to ask questions of the Company
and its management. Director understands that such discussions, as well as any written information
provided by the Company, were intended to describe the aspects of the Company’s business
and prospects which the Company believes to be material, but were not necessarily a thorough
or exhaustive description and the Company makes no representation or warranty with respect
to the completeness of such information and makes no representation or warranty of any kind
with respect to any information provided by any entity other than the Company. Some of such
information may include projections as to the future performance of the Company, which projections
may not be realized, may be based on assumptions which may not be correct and may be subject
to numerous factors beyond the Company’s control. Additionally, Director understands
and represents that Director is acquiring the Securities notwithstanding the fact that the
Company may disclose in the future certain material information that the Director has not
received. Director has sought such accounting, legal and tax advice as Director has considered
necessary to make an informed investment decision with respect to Director’s investment
in the Securities. Director has full power and authority to make the representations referred
to herein, to acquire the Securities and to execute and deliver this Agreement. Director,
either personally, or together with Director’s advisors has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and risks of
an investment in the Securities, is able to bear the risks of an investment in the Securities
and understands the risks of, and other considerations relating to, a purchase of the Securities.
The Director and Director’s advisors have had a reasonable opportunity to ask questions
of and receive answers from the Company concerning the Securities. Director’s financial
condition is such that Director is able to bear the risk of holding the Securities that Director
may acquire pursuant to this Agreement for an indefinite period of time, and the risk of
loss of Director’s entire investment in the Company. Director has investigated the
acquisition of the Securities to the extent Director deemed necessary or desirable and the
Company has provided Director with any reasonable assistance Director has requested in connection
therewith. No representations or warranties have been made to Director by the Company, or
any representative of the Company, or any securities broker/dealer, other than as set forth
in this Agreement. |
| (d) | Director
also acknowledges and agrees that an investment in the Securities is highly speculative and
involves a high degree of risk of loss of the entire investment in the Company and there
is no assurance that a public market for the Securities will ever develop and that, as a
result, Director may not be able to liquidate Director’s investment in the Securities
should a need arise to do so. Director is not dependent for liquidity on any of the amounts
Director is investing in the Securities. Director has full power and authority to make the
representations referred to herein, to acquire the Securities and to execute and deliver
this Agreement. Director understands that the representations and warranties herein are to
be relied upon by the Company as a basis for the exemptions from registration and qualification
of the issuance and sale of the Securities under the federal and state securities laws and
for other purposes. |
| (e) | Director
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) | Director
understands that until such time as the Securities have been registered under the Securities
Act or may be sold pursuant to Rule 144, Rule 144A under the Securities Act or Regulation
S without any restriction as to the number of securities as of a particular date that can
then be immediately sold, the Securities may bear a restrictive legend in substantially the
following form (and a stop-transfer order may be placed against transfer of the certificates
for such Securities): |
“NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF
(A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL
(WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR
(II) UNLESS SOLD PURSUANT TO RULE 144, RULE 144A OR REGULATION S UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
| 9. | Effect
of Waiver. The waiver by either Party of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach hereof. No waiver
shall be valid unless in writing. |
| 10. | Assignment.
No Party shall have any power or any right to assign or transfer, in whole or in part, this
Agreement, or any of its rights or any of its obligations hereunder, including, without limitation,
any right to pursue any claim for damages pursuant to this Agreement or the transactions
contemplated herein, or to pursue any claim for any breach or default of this Agreement,
or any right arising from the purported assignor’s due performance of its obligations
hereunder, without the prior written consent of the other Party and any such purported assignment
in contravention of the provisions herein shall be null and void and of no force or effect,
provided that, notwithstanding the foregoing, the Company may transfer, assign or delegate
to any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Company any of Company’s
rights, obligations or duties hereunder. |
| 11. | No
Third-Party Rights. Except as expressly provided in this Agreement, this Agreement is
intended solely for the benefit of the Parties hereto and is not intended to confer any benefits
upon, or create any rights in favor of, any Person other than the Parties hereto. |
| 12. | Entire
Agreement; Effectiveness of Agreement. This Agreement sets forth the entire agreement
of the Parties hereto with respect to the subject matter herein (other than the Indemnification
Agreement or similar agreement entered into by the Parties) and shall supersede any and all
prior agreements and understandings between the Director and the Company. This Agreement
may be changed only by a written document signed by the Director and the Company. |
| 13. | Survival.
The provisions of Section 5, Section 6, and Section 10 through Section 23, inclusive, shall
survive any termination or expiration of this Agreement, and provided that any expiration
or termination of this Agreement shall not excuse a Party from compliance with, or fulfillment
of, any obligations or conditions which arose prior to such expiration or termination. |
| 14. | Severability.
If any one or more of the provisions, or portions of any provision, of the Agreement shall
be held to be invalid, illegal or unenforceable, the validity, legality or enforceability
of the remaining provisions or parts hereof shall not in any way be affected or impaired
thereby. |
| 15. | Director
and Officer Insurance; Indemnification; Governing Law and Waiver of Jury Trial. |
| (a) | Director
shall be covered by the Company’s insurance policy or policies providing directors’
and officers’ liability insurance, in accordance with its or their terms, to the maximum
extent of the coverage available for any of the Company’s directors or officers. The
Company shall indemnify, defend and hold harmless the Director, to the full extent allowed
by the law of the State of Florida and other applicable law, and as provided by, or granted
pursuant to, any charter provision, bylaw provision, agreement (including, without limitation,
the Indemnification Agreement executed herewith), vote of stockholders or disinterested directors
or otherwise, both as to action in the Director’s official capacity and as to action
in another capacity while holding such office. |
| (b) | All
questions concerning the construction, validity, enforcement and interpretation of this Agreement
shall be determined, and this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Florida, and for all purposes shall be
construed in accordance with the laws of such state, without giving effect to the choice
of law provisions of such state. |
| (c) | Subject
to Section 16, each Party agrees that all legal proceedings concerning this Agreement shall
be commenced SOLELY IN THE FEDERAL COURTS OF THE UNITED
STATES OF AMERICA OR THE COURTS OF THE STATE OF FLORIDA, IN EACH CASE LOCATED IN Dade COUNTY,
FLORIDA (the “Selected Courts”). Each Party hereto hereby irrevocably
submits to the exclusive jurisdiction of the Selected Courts for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated hereby or
discussed herein (including with respect to the enforcement of the rights of a Party under
this Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action
or proceeding, any claim that it is not personally subject to the jurisdiction of such Selected
Courts, or such Selected Courts are improper or inconvenient venue for such proceeding. Each
Party hereby irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such Party at the address
in effect for notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any other manner permitted by
applicable law. |
| (d) | TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 15(d). |
| (e) | Subject
to the provisions of Section 16, if any Party shall commence an action or proceeding to enforce
any provisions of this Agreement, then the prevailing Party in such action or proceeding
shall be reimbursed by the other Party for its attorney’s fees and other costs and
expenses incurred in the investigation, preparation and prosecution of such action or proceeding
; provided, however, that the Director shall only be required to reimburse the Company for
its fees and expenses incurred in connection with any such action or proceeding if the Director’s
position in such action or proceeding was found by the court, arbitrator or other person
or entity presiding over the dispute to be frivolous or advanced not in good faith. |
| 16. | Arbitration.
Any controversy, claim or dispute arising out of or relating to this Agreement or the Director’s
services to the Company, including, but not limited to, common law and statutory claims for
discrimination, wrongful discharge, and unpaid wages, shall be resolved by arbitration in
Dade County, Florida pursuant to then-prevailing National Rules for the Resolution of Employment
Disputes of the American Arbitration Association. The arbitration shall be conducted by three
arbitrators, with one arbitrator selected by each Party and the third arbitrator selected
by the two arbitrators so selected by the Parties. The arbitrators shall be bound to follow
the applicable Agreement provisions in adjudicating the dispute. It is agreed by both Parties
that the arbitrators’ decision is final, and that no Party may take any action, judicial
or administrative, to overturn such decision. The judgment rendered by the arbitrators may
be entered in the Selected Courts. Each Party will pay its own expenses of arbitration and
the expenses of the arbitrators will be equally shared provided that, if in the opinion of
the arbitrators any claim, defense, or argument raised in the arbitration was unreasonable,
the arbitrators may assess all or part of the expenses of the other Party (including reasonable
attorneys’ fees) and of the arbitrators as the arbitrators deem appropriate. The arbitrators
may not award either Party punitive or consequential damages. |
| 17. | General
Remedies. Each Party acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to the other Party, and thus each Party acknowledges that the remedy
at law for a breach of its obligations under this Agreement will be inadequate and agrees,
in the event of a breach or threatened breach by such Party of the provisions of this Agreement,
that the other Party shall be entitled, in addition to all other available remedies at law
or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions
restraining, preventing or curing any breach of this Agreement and to enforce specifically
the terms and provisions hereof, without the necessity of showing economic loss and without
any bond or other security being required. |
| 18. | Expenses.
Other than as specifically set forth herein, each of the Parties will bear their own respective
expenses, including legal, accounting and professional fees, incurred in connection with
this Agreement and the transactions contemplated herein. |
| 19. | Notices.
All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other Party, or by registered or certified mail, return receipt requested,
postage prepaid, or by email with return receipt requested and received or nationally recognized
overnight courier service, addressed as set forth below or to such other address as either
Party shall have furnished to the other in writing in accordance herewith. All notices, requests,
demands and other communications shall be deemed to have been duly given (i) when delivered
by hand, if personally delivered, (ii) when delivered by courier or overnight mail, if delivered
by commercial courier service or overnight mail, and (iii) on receipt of confirmed delivery,
if sent by email. |
If
to the Company:
Earth
Science Tech, Inc.
Attention:
Giorgio R. Saumat
8950
SW 74th Court
Suite
102
Miami,
FL 33156
Email:
grsamaut@gmail.com
With
a copy, which shall not constitute notice, to:
Law
Office of Carl P. Ranno
Attn:
Carl Ranno
2733
East Drive
Phoenix,
Arizona 85032
Email:
carlranno@cox.net
If
to Director, to the address for notice as set forth in the books and records of the Company.
| 20. | Headings.
The section headings contained in this Agreement are inserted for convenience only and shall
not affect in any way the meaning or interpretation of this Agreement. |
| 21. | Counsel.
The Parties acknowledge and agree that Law Office of Carl P. Ranno (“Counsel”)
has acted as legal counsel to the Company, and that Counsel has prepared this Agreement at
the request of the Company, and that Counsel is not legal counsel to Director individually.
Each of the Parties acknowledges and agrees that they are aware of, and have consented to,
the Counsel acting as legal counsel to the Company and preparing this Agreement, and that
Counsel has advised each of the Parties to retain separate counsel to review the terms and
conditions of this Agreement and the other documents to be delivered in connection herewith,
and each Party has either waived such right freely or has otherwise sought such additional
counsel as it has deemed necessary. Each of the Parties acknowledges and agrees that Counsel
does not owe any duties to Director in Director’s individual capacity in connection
with this Agreement and the transactions contemplated herein. Each of the Parties hereby
waives any conflict of interest which may apply with respect to Counsel’s actions as
set forth herein, and the Parties confirm that the Parties have previously negotiated the
material terms of the agreements as set forth herein. |
| 22. | Rule
of Construction. The general rule of construction for interpreting a contract, which
provides that the provisions of a contract should be construed against the Party preparing
the contract, is waived by the Parties hereto. Each Party acknowledges that such Party was
represented by separate legal counsel in this matter who participated in the preparation
of this Agreement or such Party had the opportunity to retain counsel to participate in the
preparation of this Agreement but elected not to do so. |
| 23. | Indemnity.
The Company and the Director agree that indemnification with respect to the Director’s
service on the Board shall be governed by that certain Indemnification Agreement attached
as Exhibit A hereto the (“Indemnification Agreement”). |
| 24. | Execution
in Counterparts, Electronic Transmission. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original. The signature of any Party which
is transmitted by any reliable electronic means such as, but not limited to, a photocopy,
electronically scanned or facsimile machine, for purposes hereof, is to be considered as
an original signature, and the document transmitted is to be considered to have the same
binding effect as an original signature or an original document. |
[Signatures
appear on following page]
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| |
Earth Science Tech, Inc. |
| |
|
| |
By: |
/s/ Giorgio R. Saumat |
| |
Name: |
Giorgio R. Saumat |
| |
Title: |
CEO and Chairman of the Board |
| |
By: |
/s/ Jeff P. H. Cazeau |
| |
Title: |
Independent Director |
| |
Title: |
President and Director of the Board |
| |
Title: |
Director of the Board |
Exhibit
A
INDEMNIFICATION
AGREEMENT
EXHIBIT
10.2
Earth
Science Tech, Inc.
Independent
Director Agreement
Dated
as of November 8, 2023
This
Independent Director Agreement (this “Agreement”) will supersede any previous agreement made and effective as of the date
first set forth above (the “Effective Date”), is entered into by and between Earth Science Tech, Inc., a Florida corporation
(“Company”), and Emiliano Curia (“Director”). The Company and Director may be referred to herein individually
as a “Party” or collectively as the “Parties.”
WHEREAS,
the Company’s shareholders representing a majority of the shares entitled to vote by action without meeting has elected the Director
to the Board of Directors of Company (the “Board”) through a shareholder consent and now desires to enter into an agreement
with the Director with respect to Director’s continuing service as a director of Company; and
WHEREAS,
the Director is willing to continue serving as a director of Company upon the terms and conditions set forth herein and in accordance
with the provisions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged. the Parties hereby agree as follows:
| 1. | Defined
Terms. Wherever the following terms are used in this Agreement, they shall have the meanings
ascribed to them below, unless the context clearly indicates otherwise. Other capitalized
terms in this Agreement are defined in the text hereof. |
| (a) | “Affiliate”
means, with reference to Company, any other Person controlling, controlled by or under the
common control of Company. For purposes hereof, the term “control” (or any equivalent
term) means having ownership of more than fifty percent (50%) of the voting securities of
a Person or the power, whether through voting power or otherwise, to control the management
policies of such Person. |
| (b) | “Person”
means any natural person, corporation, company, partnership (including both general and limited
partnerships), limited liability company, sole proprietorship, association, joint stock company,
firm, trust, trustee, joint venture, unincorporated organization, executor, administrator,
legal representative or other legal entity, including any governmental authority, entity
or instrumentality. |
| (a) | Director
agrees to serve as an independent Director of the Company and to devote as much time as is
reasonably necessary to perform his duties as a Director of the Company, including duties
as a member of one or more committees of the Board, to which the Director may hereafter be
appointed. The Director will perform such duties described herein in accordance with the
general fiduciary duty of directors. The Company acknowledges that Director currently holds
other positions (“Other Employment”) and agrees that Director may maintain such
positions. The Company also acknowledges that Director may from time to time provide consulting
or advisory services for business entities other than the Company which are not competitors
of the Company and that Director may sit on the board of directors of other entities, subject
to any limitations set forth by the Sarbanes-Oxley Act of 2002 and applicable fiduciary duties
owed to the Company, and limitations related thereto, including those provided by any exchange
or quotation service on which the Company’s common stock is listed or traded. Notwithstanding
the same, the Director will provide the Company with prior written notice of any future commitments
to such entities which are material in nature, and use reasonable business efforts to coordinate
his respective commitments so as to fulfill his obligations to the Company and, in any event,
will fulfill his legal obligations as a director. Other than as set forth above, the Director
will not, without the prior notification to the Board, engage in any other business activity
which could materially interfere with the performance of his duties, services and responsibilities
hereunder or which is in violation of the reasonable policies established from time to time
by the Company, provided that the foregoing shall in no way limit his activities on behalf
of (i) any current employer and its affiliates or (ii) the board of directors of any entities
on which he currently sits. At such time as the Board receives such notification, the Board
may require the resignation of the Director if it determines that such business activity
does in fact materially interfere with the performance of the Director’s duties, services
and responsibilities hereunder. The Company currently intends to hold at least one regular
meeting of the Board and each Committee each quarter, together with additional meetings of
the Board and Committees as may be required by the business and affairs of the Company. Director
shall be given reasonable advance notice of such meetings and they will be scheduled at times
when Director is available. Director shall make reasonable business efforts to attend (either
in person or telephonically) all Board meetings and all pre-scheduled Board committees and
subcommittees as reasonably requested and agreed upon by the Board and make himself available
to the Company at mutually convenient times and places, as appropriate and convenient. |
| (b) | Director
is an “independent director” with respect to the Company (as such term has been
construed under Florida law with respect to directors of Florida corporations and the OTC
Markets, the NASDAQ Stock Exchange and the New York Stock Exchange). Director confirms that,
as of the Effective Date, to Director’s knowledge, (a) Director does not possess material
business, close personal relationships or other affiliations, or any history of any such
material business, close personal relationships or other affiliations, with the Company’s
significant equity or debt holders or any of their respective corporate affiliates that would
cause Director to be unable to (i) exercise independent judgment based on the best interests
of the Company or (ii) make decisions and carry out Director’s responsibilities as
a Director of the Company, in each case in accordance with the terms of the Certificate of
Incorporation and Bylaws of the Company and applicable law, and (b) Director has no existing
relationship or affiliation of any kind with any entity Director known to be a competitor
of the Company. |
| (c) | In
addition to Director’s service on the Board, Director agrees that, if so selected by
the Board, Director shall serve on certain committees of the Board. |
| (d) | By
execution of this Agreement, Director accepts Director’s appointment or election as
an independent Director of the Company, and agrees to serve in such capacity, subject to
the terms of this Agreement, until Director’s successor is duly elected and qualified
or until Director’s earlier death, resignation or removal. The Parties acknowledge
and agree that Director is being engaged to serve as an independent Director of the Company
only and is not being engaged to serve, and shall not serve, the Company in any other capacity. |
| (e) | Director’s
status during the Term (as defined below) shall be that of an independent contractor and
not, for any purpose, that of an employee or agent with authority to bind the Company in
any respect. All payments and other consideration made or provided to the Director hereunder
shall be made or provided without withholding or deduction of any kind, and the Director
shall assume sole responsibility for discharging all tax or other obligations associated
therewith. |
| 3. | Term.
The term of this Agreement shall continue from the Effective Date until the earliest of (a)
such time as Director resigns or is removed in accordance with the Certificate of Incorporation
and Bylaws of the Company, and (b) the death of the Director (the “Term”). |
| 4. | Compensation.
For all services to be rendered by Director hereunder, and so long as Director remains a
Director of the Company, the Company shall, during the Term compensate $2,000.00 (two thousand)
dollars per Board of Directors meeting attended. |
| (a) | Company
shall reimburse Director for all reasonable out-of-pocket expenses incurred by Director in
attending any in-person meetings or incurred in good faith in connection with the performance
of the Director’s duties for the Company, provided that Director complies with the
generally applicable policies, practices and procedures of the Company for submission of
expense reports, receipts or similar documentation of such expenses. |
| (a) | Definition.
For purposes of this Agreement, “Confidential Information” shall mean all
Company Work Product (as hereinafter defined) and all non-public written, electronic, and
oral information or materials of Company communicated to or otherwise obtained by Director
in connection with this Agreement, which is related to the products, business and activities
of Company, its Affiliates, and subsidiaries, and their respective customers, clients, suppliers,
and other entities with which such party does business, including: (i) all costing, pricing,
technology, software, documentation, research, techniques, procedures, processes, discoveries,
inventions, methodologies, data, tools, templates, know how, intellectual property and all
other proprietary information of Company; (ii) the terms of this Agreement; and (iii) any
other information identified as confidential in writing by Company. Confidential Information
shall not include information that: (a) was lawfully known by Director without an obligation
of confidentiality before its receipt from Company; (b) is independently developed by Director
without reliance on or use of Confidential Information; (c) is or becomes publicly available
without a breach by Director of this Agreement; or (d) is disclosed to Director by a third
party which is not required to maintain its confidentiality. An “Affiliate” of
a Party shall mean any entity directly or indirectly controlling, controlled by, or under
common control with, such Party at any time during the Term for so long as such control exists. |
| (b) | Company
Ownership. Company shall retain all right, title, and interest to the Confidential Information,
including all copies thereof and all rights to patents, copyrights, trademarks, trade secrets
and other intellectual property rights inherent therein and appurtenant thereto. Subject
to the terms and conditions of this Agreement, Company hereby grants Director a non-exclusive,
non-transferable, license during the Term to use any Confidential Information solely to the
extent that such Confidential Information is necessary for the performance of Director’s
duties hereunder. Director shall not, by virtue of this Agreement or otherwise, acquire any
proprietary rights whatsoever in Confidential Information, which shall be the sole and exclusive
property and confidential information of Company. No identifying marks, copyright or proprietary
right notices may be deleted from any copy of Confidential Information. Nothing contained
herein shall be construed to limit the rights of Company from performing similar services
for, or delivering the same or similar deliverable to, third parties using the Confidential
Information and/or using the same personnel to provide any such services or deliverables. |
| (c) | Confidentiality
Obligations. Director agrees to hold the Confidential Information in confidence and not
to copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such
Confidential Information to any Person or to use the Confidential Information for any purposes
whatsoever, without the express written permission of Company, other than disclosure to Director’s,
partners, principals, directors, officers, employees, subcontractors and agents on a “need-to-know”
basis as reasonably required for the performance of Director’s obligations hereunder
or as otherwise agreed to herein. Director shall be responsible to Company for any violation
of this Section 5 by Director’s employees, subcontractors, and agents. Director shall
maintain the Confidential Information with the same degree of care, but no less than a reasonable
degree of care, as Director employs concerning its own information of like kind and character. |
| (d) | Required
Disclosure. If Director is requested to disclose any of the Confidential Information
as part of an administrative or judicial proceeding, Director shall, to the extent permitted
by applicable law, promptly notify Company of that request and cooperate with Company, at
Company’s expense, in seeking a protective order or similar confidential treatment
for the Confidential Information. If no protective order or other confidential treatment
is obtained, Director shall disclose only that portion of Confidential Information which
is legally required and will reasonably support, at Company’s expense, all reasonable
efforts by the Company to obtain reliable assurances that confidential treatment will be
accorded the Confidential Information which is required to be disclosed. |
| (e) | Enforcement.
Director acknowledges that the Confidential Information is unique and valuable, and that
remedies at law will be inadequate to protect Company from any actual or threatened breach
of this Section 5 by Director and that any such breach may cause irreparable and continuing
injury to Company. Therefore, Director agrees that Company shall be entitled to seek equitable
relief with respect to the enforcement of this Section 5 without any requirement to post
a bond, including, without limitation, injunction and specific performance, without proof
of actual damages or exhausting other remedies, in addition to all other remedies available
to Company at law or in equity. For greater clarity, in the event of a breach or threatened
breach by Director of any of the provisions of this Section , in addition to and not in limitation
of any other rights, remedies or damages available at law or in equity, Company shall be
entitled to a permanent injunction or other like remedy in order to prevent or restrain any
such breach or threatened breach by Director, and Director agrees that an interim injunction
may be granted against Director immediately on the commencement of any action, claim, suit
or proceeding by Company to enforce the provisions of this Section , and Director further
irrevocably consents to the granting of any such interim or permanent injunction or any like
remedy. If any action at law or in equity is necessary to enforce the terms of this Section
, Director, if it is determined to be at fault, shall pay Company’s reasonable legal
fees and expenses on a substantial indemnity basis. |
| (f) | Related
Duties. Director shall: (i) promptly destroy or deliver to Company upon Company’s
request all materials in Director’s possession which contain Confidential Information;
(ii) use its best efforts to prevent any unauthorized use or disclosure of the Confidential
Information; (iii) notify Company in writing immediately upon discovery of any such unauthorized
use or disclosure; and (iv) cooperate in every reasonable way to regain possession of any
Confidential Information and to prevent further unauthorized use and disclosure thereof.
|
| (g) | Legal
Exceptions. Further notwithstanding the foregoing provisions of this Section 5, Director
may disclose confidential information as may be expressly required by law, governmental rule,
regulation, executive order, court order, or in connection with a dispute between the Parties;
provided that prior to making any such disclosure, subject to applicable law, Director shall
use its best efforts to: (i) provide Company with prior written notice as soon as reasonably
possible setting forth with specificity the reason(s) for such disclosure, supporting documentation
therefor, and the circumstances giving rise thereto; and (ii) limit the scope and duration
of such disclosure to the strictest possible extent. |
| (h) | Limitation.
Except as specifically set forth herein, no licenses or rights under any patent, copyright,
trademark, or trade secret are granted by Company to Director hereunder, or are to be implied
by this Agreement. Except for the restrictions on use and disclosure of Confidential Information
imposed in this Agreement, no obligation of any kind is assumed or implied against either
Party or their Affiliates by virtue of meetings or conversations between the Parties hereto
with respect to the subject matter stated above or with respect to the exchange of Confidential
Information. Each Party further acknowledges that this Agreement and any meetings and communications
of the Parties and their affiliates relating to the same subject matter shall not: (i) constitute
an offer, request, invitation or contract with the other Party to engage in any research,
development or other work; (ii) constitute an offer, request, invitation or contract involving
a buyer-seller relationship, joint venture, teaming or partnership relationship between the
Parties and their affiliates; or (iii) constitute a representation, warranty, assurance,
guarantee or inducement with respect to the accuracy or completeness of any Confidential
Information or the non-infringement of the rights of third persons. |
| 6. | Intellectual
Property Rights. |
| (a) | Disclosure
of Work Product. As used in this Agreement, the term “Work Product” means
any invention, whether or not patentable, know-how, designs, mask works, trademarks, formulae,
processes, manufacturing techniques, trade secrets, ideas, artwork, software or
any copyrightable or patentable works. Director agrees
to disclose promptly in writing to Company, or any Person designated by Company, all Work
Product that is solely or jointly conceived, made, reduced to practice, or learned by Director
as a result of Director’s services as a director to the Company (“Company Work
Product”). Director agrees (a) to use Director’s best efforts to maintain such
Company Work Product in trust and strict confidence; (b) not to use Company Work Product
in any manner or for any purpose not expressly set forth in this Agreement; and (c) not to
disclose any such Company Work Product to any third party without first obtaining Company’s
express written consent on a case-by-case basis. |
| (b) | Ownership
of Company Work Product. Director agrees that any and all Company Work Product conceived,
written, created or first reduced to practice as a result of Director’s services as
a director to the Company shall be deemed “work for hire” under applicable law
and shall be the sole and exclusive property of Company. |
| (c) | Assignment
of Company Work Product. Director irrevocably assigns to Company all right, title and
interest worldwide in and to the Company Work Product and all applicable intellectual property
rights related to the Company Work Product, including without limitation, copyrights, trademarks,
trade secrets, patents, moral rights, contract and licensing rights (the “Proprietary
Rights”). Except as set forth below, Director retains no rights to use the Company
Work Product and agrees not to challenge the validity of Company’s ownership in the
Company Work Product. Director hereby grants to Company a perpetual, non-exclusive, fully
paid-up, royalty-free, irrevocable and world-wide right, with rights to sublicense through
multiple tiers of sublicensees, to reproduce, make derivative works of, publicly perform,
and display in any form or medium whether now known or later developed, distribute, make,
use and sell any and all Director owned or controlled Work Product or technology that Director
uses to complete the services and which is necessary for Company to use or exploit the Company
Work Product. |
| (d) | Assistance.
Director agrees to reasonably cooperate with Company or its designee(s), both during
and after the Term and at Company’s sole expense, in the procurement and maintenance
of Company’s rights in Company Work Product and to execute, when requested, any other
documents deemed necessary by Company to carry out the purpose of this Agreement. Director
will reasonably assist Company, at Company’s sole expense, to obtain, and from time
to time enforce, United States and foreign Proprietary Rights relating to Company Work Product
in any and all countries. Director’s obligation to assist Company with respect to Proprietary
Rights relating to such Company Work Product in any and all countries shall continue beyond
the termination of this Agreement, but Company shall compensate Director at a reasonable
rate to be mutually agreed upon for the time actually spent by Director at Company’s
request on such assistance. |
| 7. | Director’s
General Representations and Acknowledgment. Director represents to the Company that Director’s
execution and performance of this Agreement shall not be in violation of any agreement or
obligation (whether or not written) that Director may have with or to any Person, including
without limitation, any prior or current employer. The Director hereby acknowledges and agrees
that this Agreement (and any other agreement or obligation referred to herein) shall be an
obligation solely of the Company, and the Director shall have no recourse whatsoever against
any shareholder of Company or any of any of its affiliate or subsidiary companies with respect
to any matter arising under this Agreement. |
| 8. | Representations
and Warranties Related to Securities. The Shares, any other shares of Common Stock or
other securities of the Company that may be issued or granted to the Director hereunder or
pursuant to any other agreement between the Company and the Director in connection with the
transactions contemplated herein may be referred to as the “Securities”, and
Director represents and warrants to the Company as set forth in this Section 8 with respect
to the Securities and Director’s receipt thereof, as of the Effective Date and as of
the date of any issuance or granting of any Securities. |
| (a) | Director
hereby represents that the Securities awarded pursuant to this Agreement are being acquired
for Director’s own account and not for sale or with a view to distribution thereof.
Director acknowledges and agrees that any sale or distribution
of Securities which have vested may be made only pursuant to either (a) a registration
statement on an appropriate form under the Securities Act of 1933, as amended (the “Securities
Act”), which registration statement has become effective and is current with regard
to the shares being sold, or (b) a specific exemption from the registration requirements
of the Securities Act that is confirmed in a favorable written opinion of counsel, in form
and substance satisfactory to counsel for the Company, prior to any such sale or distribution.
Director hereby consents to such action as the Board or the Company deems necessary or appropriate
from time to time to prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act or to implement the provisions of this Agreement, including
but not limited to placing restrictive legends on certificates evidencing shares of Securities
(whether or not the Restrictions applicable thereto have lapsed) and delivering stop transfer
instructions to the Company’s stock transfer agent. |
| (b) | Director
understands that the Securities are being offered and sold to Director in reliance upon specific
exemptions from the registration requirements of United States federal and state securities
laws and that the Company is relying upon the truth and accuracy of, and Director’s
compliance with, the representations, warranties, agreements, acknowledgments and understandings
of the Director set forth herein in order to determine the availability of such exemptions
and the eligibility of the Director to acquire the Securities. |
| (c) | Director
has been furnished with all documents and materials relating to the business, finances and
operations of the Company and information that Director requested and deemed material to
making an informed investment decision regarding its acquisition of the Securities. Director
has been afforded the opportunity to review such documents and materials and the information
contained therein. Director has been afforded the opportunity to ask questions of the Company
and its management. Director understands that such discussions, as well as any written information
provided by the Company, were intended to describe the aspects of the Company’s business
and prospects which the Company believes to be material, but were not necessarily a thorough
or exhaustive description and the Company makes no representation or warranty with respect
to the completeness of such information and makes no representation or warranty of any kind
with respect to any information provided by any entity other than the Company. Some of such
information may include projections as to the future performance of the Company, which projections
may not be realized, may be based on assumptions which may not be correct and may be subject
to numerous factors beyond the Company’s control. Additionally, Director understands
and represents that Director is acquiring the Securities notwithstanding the fact that the
Company may disclose in the future certain material information that the Director has not
received. Director has sought such accounting, legal and tax advice as Director has considered
necessary to make an informed investment decision with respect to Director’s investment
in the Securities. Director has full power and authority to make the representations referred
to herein, to acquire the Securities and to execute and deliver this Agreement. Director,
either personally, or together with Director’s advisors has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and risks of
an investment in the Securities, is able to bear the risks of an investment in the Securities
and understands the risks of, and other considerations relating to, a purchase of the Securities.
The Director and Director’s advisors have had a reasonable opportunity to ask questions
of and receive answers from the Company concerning the Securities. Director’s financial
condition is such that Director is able to bear the risk of holding the Securities that Director
may acquire pursuant to this Agreement for an indefinite period of time, and the risk of
loss of Director’s entire investment in the Company. Director has investigated the
acquisition of the Securities to the extent Director deemed necessary or desirable and the
Company has provided Director with any reasonable assistance Director has requested in connection
therewith. No representations or warranties have been made to Director by the Company, or
any representative of the Company, or any securities broker/dealer, other than as set forth
in this Agreement. |
| (d) | Director
also acknowledges and agrees that an investment in the Securities is highly speculative and
involves a high degree of risk of loss of the entire investment in the Company and there
is no assurance that a public market for the Securities will ever develop and that, as a
result, Director may not be able to liquidate Director’s investment in the Securities
should a need arise to do so. Director is not dependent for liquidity on any of the amounts
Director is investing in the Securities. Director has full power and authority to make the
representations referred to herein, to acquire the Securities and to execute and deliver
this Agreement. Director understands that the representations and warranties herein are to
be relied upon by the Company as a basis for the exemptions from registration and qualification
of the issuance and sale of the Securities under the federal and state securities laws and
for other purposes. |
| (e) | Director
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) | Director
understands that until such time as the Securities have been registered under the Securities
Act or may be sold pursuant to Rule 144, Rule 144A under the Securities Act or Regulation
S without any restriction as to the number of securities as of a particular date that can
then be immediately sold, the Securities may bear a restrictive legend in substantially the
following form (and a stop-transfer order may be placed against transfer of the certificates
for such Securities): |
“NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF
(A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL
(WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR
(II) UNLESS SOLD PURSUANT TO RULE 144, RULE 144A OR REGULATION S UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
| 9. | Effect
of Waiver. The waiver by either Party of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach hereof. No waiver
shall be valid unless in writing. |
| 10. | Assignment.
No Party shall have any power or any right to assign or transfer, in whole or in part, this
Agreement, or any of its rights or any of its obligations hereunder, including, without limitation,
any right to pursue any claim for damages pursuant to this Agreement or the transactions
contemplated herein, or to pursue any claim for any breach or default of this Agreement,
or any right arising from the purported assignor’s due performance of its obligations
hereunder, without the prior written consent of the other Party and any such purported assignment
in contravention of the provisions herein shall be null and void and of no force or effect,
provided that, notwithstanding the foregoing, the Company may transfer, assign or delegate
to any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Company any of Company’s
rights, obligations or duties hereunder. |
| 11. | No
Third-Party Rights. Except as expressly provided in this Agreement, this Agreement is
intended solely for the benefit of the Parties hereto and is not intended to confer any benefits
upon, or create any rights in favor of, any Person other than the Parties hereto. |
| 12. | Entire
Agreement; Effectiveness of Agreement. This Agreement sets forth the entire agreement
of the Parties hereto with respect to the subject matter herein (other than the Indemnification
Agreement or similar agreement entered into by the Parties) and shall supersede any and all
prior agreements and understandings between the Director and the Company. This Agreement
may be changed only by a written document signed by the Director and the Company. |
| 13. | Survival.
The provisions of Section 5, Section 6, and Section 10 through Section 23, inclusive, shall
survive any termination or expiration of this Agreement, and provided that any expiration
or termination of this Agreement shall not excuse a Party from compliance with, or fulfillment
of, any obligations or conditions which arose prior to such expiration or termination. |
| 14. | Severability.
If any one or more of the provisions, or portions of any provision, of the Agreement shall
be held to be invalid, illegal or unenforceable, the validity, legality or enforceability
of the remaining provisions or parts hereof shall not in any way be affected or impaired
thereby. |
| 15. | Director
and Officer Insurance; Indemnification; Governing Law and Waiver of Jury Trial. |
| (a) | Director
shall be covered by the Company’s insurance policy or policies providing directors’
and officers’ liability insurance, in accordance with its or their terms, to the maximum
extent of the coverage available for any of the Company’s directors or officers. The
Company shall indemnify, defend and hold harmless the Director, to the full extent allowed
by the law of the State of Florida and other applicable law, and as provided by, or granted
pursuant to, any charter provision, bylaw provision, agreement (including, without limitation,
the Indemnification Agreement executed herewith), vote of stockholders or disinterested directors
or otherwise, both as to action in the Director’s official capacity and as to action
in another capacity while holding such office. |
| (b) | All
questions concerning the construction, validity, enforcement and interpretation of this Agreement
shall be determined, and this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Florida, and for all purposes shall be
construed in accordance with the laws of such state, without giving effect to the choice
of law provisions of such state. |
| (c) | Subject
to Section 16, each Party agrees that all legal proceedings concerning this Agreement shall
be commenced SOLELY IN THE FEDERAL COURTS OF THE UNITED
STATES OF AMERICA OR THE COURTS OF THE STATE OF FLORIDA, IN EACH CASE LOCATED IN Dade COUNTY,
FLORIDA (the “Selected Courts”). Each Party hereto hereby irrevocably
submits to the exclusive jurisdiction of the Selected Courts for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated hereby or
discussed herein (including with respect to the enforcement of the rights of a Party under
this Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action
or proceeding, any claim that it is not personally subject to the jurisdiction of such Selected
Courts, or such Selected Courts are improper or inconvenient venue for such proceeding. Each
Party hereby irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such Party at the address
in effect for notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any other manner permitted by
applicable law. |
| (d) | TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 15(d). |
| (e) | Subject
to the provisions of Section 16, if any Party shall commence an action or proceeding to enforce
any provisions of this Agreement, then the prevailing Party in such action or proceeding
shall be reimbursed by the other Party for its attorney’s fees and other costs and
expenses incurred in the investigation, preparation and prosecution of such action or proceeding
; provided, however, that the Director shall only be required to reimburse the Company for
its fees and expenses incurred in connection with any such action or proceeding if the Director’s
position in such action or proceeding was found by the court, arbitrator or other person
or entity presiding over the dispute to be frivolous or advanced not in good faith. |
| 16. | Arbitration.
Any controversy, claim or dispute arising out of or relating to this Agreement or the Director’s
services to the Company, including, but not limited to, common law and statutory claims for
discrimination, wrongful discharge, and unpaid wages, shall be resolved by arbitration in
Dade County, Florida pursuant to then-prevailing National Rules for the Resolution of Employment
Disputes of the American Arbitration Association. The arbitration shall be conducted by three
arbitrators, with one arbitrator selected by each Party and the third arbitrator selected
by the two arbitrators so selected by the Parties. The arbitrators shall be bound to follow
the applicable Agreement provisions in adjudicating the dispute. It is agreed by both Parties
that the arbitrators’ decision is final, and that no Party may take any action, judicial
or administrative, to overturn such decision. The judgment rendered by the arbitrators may
be entered in the Selected Courts. Each Party will pay its own expenses of arbitration and
the expenses of the arbitrators will be equally shared provided that, if in the opinion of
the arbitrators any claim, defense, or argument raised in the arbitration was unreasonable,
the arbitrators may assess all or part of the expenses of the other Party (including reasonable
attorneys’ fees) and of the arbitrators as the arbitrators deem appropriate. The arbitrators
may not award either Party punitive or consequential damages. |
| 17. | General
Remedies. Each Party acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to the other Party, and thus each Party acknowledges that the remedy
at law for a breach of its obligations under this Agreement will be inadequate and agrees,
in the event of a breach or threatened breach by such Party of the provisions of this Agreement,
that the other Party shall be entitled, in addition to all other available remedies at law
or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions
restraining, preventing or curing any breach of this Agreement and to enforce specifically
the terms and provisions hereof, without the necessity of showing economic loss and without
any bond or other security being required. |
| 18. | Expenses.
Other than as specifically set forth herein, each of the Parties will bear their own respective
expenses, including legal, accounting and professional fees, incurred in connection with
this Agreement and the transactions contemplated herein. |
| 19. | Notices.
All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other Party, or by registered or certified mail, return receipt requested,
postage prepaid, or by email with return receipt requested and received or nationally recognized
overnight courier service, addressed as set forth below or to such other address as either
Party shall have furnished to the other in writing in accordance herewith. All notices, requests,
demands and other communications shall be deemed to have been duly given (i) when delivered
by hand, if personally delivered, (ii) when delivered by courier or overnight mail, if delivered
by commercial courier service or overnight mail, and (iii) on receipt of confirmed delivery,
if sent by email. |
If
to the Company:
Earth
Science Tech, Inc.
Attention:
Giorgio R. Saumat
8950
SW 74th Court
Suite
102
Miami,
FL 33156
Email:
grsamaut@gmail.com
With
a copy, which shall not constitute notice, to:
Law
Office of Carl P. Ranno
Attn:
Carl Ranno
2733
East Drive
Phoenix,
Arizona 85032
Email:
carlranno@cox.net
If
to Director, to the address for notice as set forth in the books and records of the Company.
| 20. | Headings.
The section headings contained in this Agreement are inserted for convenience only and shall
not affect in any way the meaning or interpretation of this Agreement. |
| 21. | Counsel.
The Parties acknowledge and agree that Law Office of Carl P. Ranno (“Counsel”)
has acted as legal counsel to the Company, and that Counsel has prepared this Agreement at
the request of the Company, and that Counsel is not legal counsel to Director individually.
Each of the Parties acknowledges and agrees that they are aware of, and have consented to,
the Counsel acting as legal counsel to the Company and preparing this Agreement, and that
Counsel has advised each of the Parties to retain separate counsel to review the terms and
conditions of this Agreement and the other documents to be delivered in connection herewith,
and each Party has either waived such right freely or has otherwise sought such additional
counsel as it has deemed necessary. Each of the Parties acknowledges and agrees that Counsel
does not owe any duties to Director in Director’s individual capacity in connection
with this Agreement and the transactions contemplated herein. Each of the Parties hereby
waives any conflict of interest which may apply with respect to Counsel’s actions as
set forth herein, and the Parties confirm that the Parties have previously negotiated the
material terms of the agreements as set forth herein. |
| 22. | Rule
of Construction. The general rule of construction for interpreting a contract, which
provides that the provisions of a contract should be construed against the Party preparing
the contract, is waived by the Parties hereto. Each Party acknowledges that such Party was
represented by separate legal counsel in this matter who participated in the preparation
of this Agreement or such Party had the opportunity to retain counsel to participate in the
preparation of this Agreement but elected not to do so. |
| 23. | Indemnity.
The Company and the Director agree that indemnification with respect to the Director’s
service on the Board shall be governed by that certain Indemnification Agreement attached
as Exhibit A hereto the (“Indemnification Agreement”). |
| 24. | Execution
in Counterparts, Electronic Transmission. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original. The signature of any Party which
is transmitted by any reliable electronic means such as, but not limited to, a photocopy,
electronically scanned or facsimile machine, for purposes hereof, is to be considered as
an original signature, and the document transmitted is to be considered to have the same
binding effect as an original signature or an original document. |
[Signatures
appear on following page]
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| |
Earth Science Tech, Inc. |
| |
|
| |
By: |
/s/ Giorgio R. Saumat |
| |
Title: |
CEO and Chairman of the Board |
| |
Title: |
President and Director of the Board |
| |
By: |
/s/ Jeff P. H. Cazeau |
| |
Title: |
Independent Director |
| |
Title: |
Independent Director |
Exhibit
A
INDEMNIFICATION
AGREEMENT
v3.23.3
Cover
|
Nov. 08, 2023 |
| Cover [Abstract] |
|
| Document Type |
8-K/A
|
| Amendment Flag |
true
|
| Amendment Description |
Amendment No. 1
|
| Document Period End Date |
Nov. 08, 2023
|
| Entity File Number |
000-55000
|
| Entity Registrant Name |
Earth
Science Tech, Inc.
|
| Entity Central Index Key |
0001538495
|
| Entity Tax Identification Number |
80-0961484
|
| Entity Incorporation, State or Country Code |
FL
|
| Entity Address, Address Line One |
8950
SW 74th Court
|
| Entity Address, Address Line Two |
Suite
101
|
| Entity Address, City or Town |
Miami
|
| Entity Address, State or Province |
FL
|
| Entity Address, Postal Zip Code |
33156
|
| City Area Code |
(305)
|
| Local Phone Number |
724-5684
|
| Written Communications |
false
|
| Soliciting Material |
false
|
| Pre-commencement Tender Offer |
false
|
| Pre-commencement Issuer Tender Offer |
false
|
| Title of 12(b) Security |
Common Stock $0.001 par value
|
| Trading Symbol |
ETST
|
| Entity Emerging Growth Company |
false
|
| Entity Information, Former Legal or Registered Name |
NA
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