UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 30, 2015
RemSleep Holdings, Inc.
(Exact name of registrant as specified in its charter)
Nevada | 000-53450 | 83-0375241 |
(State or other jurisdiction | (Commission | (IRS Employer |
of incorporation) | File Number) | Identification Number) |
1149 Topsail Rd., Mount Pearl, Newfoundland | A1N 5G2 |
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (709) 368-9223
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 communications pursuant to Rule 425 under the Securities Act
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
1
Item 1.01 Entry into a Material Definitive Agreement.
On March 30, 2015, RemSleep Holdings, Inc. entered into an exchange agreement to purchase 100% of the outstanding interests of RemSleep LLC in exchange for 50,000,000 common shares of RemSleep Holdings, Inc.s stock. RemSleep LLC is now a wholly-owned subsidiary of RemSleep Holdings, Inc. and RemSleep Holdings, Inc. has acquired the business and operations of RemSleep LLC. The Exchange Agreement contains customary representations, warranties, and conditions. The Exchange Agreement is attached hereto as Exhibit 99.
Info on RemSleep Holdings, LLC
Sleep apnea is a condition that affects millions of people in the United States alone. An increasingly sedentary lifestyle and bad working habits has led to obesity and otherwise poor cardiac and aerobic health. This has led to a fast-growing epidemic of obstructive sleep apnea (OSA), which greatly reduces the quality of sleep one gets and can ultimately result in hypertension, heart failure, stroke, and at the least, reduced performance in everyday life.
RemSleep, Inc. (the Company) has patented a new, innovative sleep apnea product that will meet multiple market needs and be able to reach a large percentage of patients worldwide. RemSleep was founded by three principals with over 35 years of sleep-industry experience, including working at some of the pioneering companies. They have substantial direct knowledge of all current continuous positive airway pressure (CPAP) equipment on the market and what it is lacking. This expertise led to the invention of the DeltaWave CPAP interface.
The goal of RemSleep is to achieve optimum compliance and comfort for CPAP patients. Years of research and development have led to the revolutionary DeltaWave CPAP interface, a design that addresses the stubborn issues that continue to affect a patients ability to comply with treatment. The DeltaWave interface does not disrupt normal breathing mechanics, is not claustrophobic, causes virtually zero work of breathing (WOB), minimizes or eliminates drying of the sinuses, uses less driving pressure, and allows users to feel safe and secure while sleeping.
RemSleep is confident that DeltaWaves unique design will provide patients with a more compliant CPAP interface that provides improved comfort, ease of use, and encourages deep restful sleep. The market for sleep treatment and equipment was $7.96 billion in 2011 and will reach a projected $19.72 billion by 2017, with North America accounting for a majority of the market. More than 8 million CPAP interfaces are sold annually in the U.S., with another 2.5 million globally. There are also an estimated 80 million people with undiagnosed sleep apnea.
The DeltaWave will be launched into the U.S. market first, while CE marking is obtained. RemSleep has already begun discussions with potential industry distributor partners in the U.S., and has received strong interest from a potential distribution partner in Germany that has sales channels/distribution partners throughout the EU. They have no current product like the RemSleep DeltaWave and are awaiting samples for evaluation. RemSleep has also been in contact with two internet retailers. One sells directly to patients online (the largest internet reseller of sleep products), and the other is working with trucking firms (selling direct to drivers).
2
RemSleeps founders have extensive experience in the sleep industry, and have direct experience in starting companies and introducing unique products. CEO Russell Bird, for example, found great success with start-ups Medical Gases Australia and Medical Industries America (both started out of garages before being multimillion-dollar ventures). Tom Wood has product-development experience with 18 US patents. The two founders have worked in collaboration for more than 10 years and are now focused on bringing to market the best-in-class DeltaWave CPAP interface, with the goal of becoming a leading product manufacturer and distributor in this fast-growing global market.
Sleep apnea results in numerous afflictions that affect peoples day-to-day lives and can eventually contribute to serious health conditions. While peoples knowledge of this affliction has grown strongly in recent years, and the market is expanding fast nationwide, up to 80% of people with sleep apnea may be undiagnosed[1] a market of millions of new potential users. Even those who are tested and prescribed a sleep apnea machine often give up after a short time due to discomfort or what is called the work of breathing with traditional machines. In fact, over 50% of patients give up on using CPAP therapy after 6 months. This is a major waste of resources and a very telling statistic.
A major challenge in the current market is not only to get more patients diagnosed but to also increase CPAP compliance. According to market analyst Frost & Sullivan, The development of finer and ergonomic CPAP devices will help increase patient ability to adhere to sleep therapy. The market is also seeing a rise in newer technologies that replace elaborate practices, target patient comfort to improve compliance, and help drive acceptance of sleep monitoring devices.
A growing knowledge of sleep apnea and its treatment has helped to increase awareness with the general public. In addition to making the use of a CPAP or related device less intimidating, a move toward affordable and prescription-based technology can greatly expand the market Evolving technologies will also influence patient preferences for products, treatment modalities, and diagnostic locations, states Frost & Sullivan. As such, the global sleep apnea treatment market is expected to shift to home-based diagnostics for early identification and treatment of patients as well as portable devices that can reduce sleep apnea with minimal inconvenience.[2]
Sleep apnea causes breathing interruptions of between 10 to 20 seconds that can occur hundreds of times during a night, disrupting the natural sleep rhythm and depriving people of the restorative sleep they need to be energetic, mentally sharp, and productive the next day. CPAP can be a very effective method used to treat sleep apnea, but as noted, noncompliance remains a stubborn issue for both physicians and patients. CPAP technology therefore is constantly being updated and improved, and the new CPAP devices are lighter, quieter, and more comfortable.
RemSleep Holdings has developed an innovative new device to treat patients with sleep apnea.
[1] Markets & Markets. Global Sleep Apnea Diagnostics & Therapeutic Devices Market. http://www.marketsandmarkets.com/PressReleases/sleep-apnea-devices.asp [2] Frost & Sullivan. Sleep apnea market is in need of finer, ergonomic treatments. June 4, 2014. http://www.frost.com/prod/servlet/press-release.pag?docid=290951848 |
3
The patent-pending DeltaWave product is a nasal-pillows type interface that will result in better comfort and, therefore, better compliance. The Delta Wave is specifically designed with unique airflow characteristics to enable patients with sleep apnea to breathe normally. A survey that appeared in DME Business found that 89% of patients stated that mask-interface comfort was their primary concern. The primary issue that RemSleep Holdings has addressed with the DeltaWave is the work of breathing component. RemSleep Holdings has virtually eliminated this issue with its unique design (illustrated below), which is a major breakthrough.
Health care spending continues to grow rapidly on an annual basis in the United States. Spending was $2.7 trillion in 2011 and, in 2013, it reached over $3.6 trillion. It is projected to reach over $4 trillion by 2015. By 2022, spending is projected to reach $5 trillion, or around 20% of GDP, according to the Centers for Medicare and Medicaid Services.[3] Growing alongside this market is the U.S. life science industry, which will grow an estimated 2.2% in 2014 to $93 billion. This includes R&D spending, with growth primarily from smaller biopharmaceutical innovators and medical device manufacturers. The global life science industry will reach $201 billion in 2014.[4]
Within this market, sleep apnea products have experienced rapid growth. In the past couple decades there has been a rapid increase in the technological developments in the field of sleep apnea diagnosis and treatment. The result has been strong growth for sleep apnea devices globally. Demand for new and innovative treatment methodologies is driving growth, helping to provide patients with a healthy lifestyle. Obstructive sleep apnea is destroying the health of millions of Americans, and the problem has only gotten worse over the last two decades, according to American Academy of Sleep Medicine President Dr. Timothy Morgenthaler. The effective treatment of sleep apnea is one of the keys to success as our nation attempts to reduce health care spending and improve chronic disease management.[5]
Sleep problems are considered a global epidemic, with sleep apnea as a major contributor to the disorder. An estimated 100 million people worldwide have sleep apnea, though more than 80% of these people are undiagnosed. The market for sleep apnea diagnostic and therapeutic devices on a global level was $7.96 billion in 2011 and will reach a projected $19.72 billion by 2017, according to a study from Markets & Markets.[6]
According to a recent study from San Francisco-based Grand View Research, diagnostic sleep apnea devices account for over 50% of the overall market:[7]
[3] Forbes. Annual U.S. Healthcare Spending Hits $3.8 Trillion. Feb. 2, 2014. http://www.forbes.com/sites/danmunro/2014/02/02/annual-u-s-healthcare-spending-hits-3-8-trillion/ [4] Battelle/R&D Magazine. Life Sciences. Dec. 2013. http://www.rdmag.com/articles/2013/12/industry-breakout-life-sciences [5] American Academy of Sleep Medicine. Rising prevalence of sleep apnea in U.S. threatens public health. Sept. 2014. http://www.aasmnet.org/articles.aspx?id=5043 [6] Markets & Markets. Global Sleep Apnea Diagnostics & Therapeutic Devices Market. http://www.marketsandmarkets.com/PressReleases/sleep-apnea-devices.asp [7] Grand View Research. Sleep Apnea Devices Market Demand to Grow in Therapeutic Devise Application Segment. Nov. 2014. http://globenewswire.com/news-release/2014/11/06/680563/10106747/en/Sleep-Apnea- |
4
v
However, diagnostic devise are expected to lose market share to therapeutic devices by 2020, which are projected to overtake market share.
v
PSG devices contribute over 25% to the overall diagnostic sleep apnea devices market revenue. PAP devices account for over 20% of the overall therapeutic sleep apnea devices market. Oral appliances are expected to gain therapeutic devices market share.
v
North America dominates the market, accounting for approximately 75% of overall revenue. This can be attributed to increased sleep apnea awareness, increased obesity among the population, sophisticated healthcare infrastructure and high insurance coverage in the region.
v
The Asia Pacific sleep apnea devices market is relatively untapped and has high growth potential over the forecast period, with the level of awareness projected to increase among patients and the medical fraternity.
Currently, according to industry insiders, and journals, there are about 8 million interface products sold in the U.S. annually, with another 2.5 million being sold in the rest of the world. The growth rate within this space had dropped, but it still increasing at a rate of 12-15% annually.
4.1 Market Segmentation
End users in the U.S. and internationally include the hundreds of thousands of patients on nasal CPAP therapy that are unhappy with their interface. The majority of these CPAP users reside in the U.S. There are also millions of people in the US who are undiagnosed and should be on CPAP if for no other reason than to prevent the comorbidities of sleep apnea (such as heart disease). People with adult sleep apnea starve their vital organs of oxygen at night when they stop breathing, and over the years this can and most likely will lead to a shorter life span.
Customers need the DeltaWave so that they can breathe comfortably while on CPAP therapy. An estimated 50-70 million U.S. adults have sleep or wakefulness disorder, according to the CDC.[8] In addition:[9]
[8] CDC. Insufficient Sleep is a Public Health Epidemic. http://www.cdc.gov/features/dssleep/ [9] RestMed. Sleep Apnea Facts and Figures. http://www.resmed.com/us/dam/documents/products/dental/Narval-CC/facts-and-figures/1015527r3_narval-cc-mrd_facts-and-figures_amer_eng.pdf |
5
v
Approximately 42 million American adults have sleep-disordered breathing (SDB)
v
1 in 5 adults has mild obstructive sleep apnea (OSA)
v
1 in 15 has moderate to severe OSA
v
9% of middle-aged women and 25% of middle-aged men suffer from OSA
v
Prevalence similar to asthma (20 million) and diabetes (23.6 million) in U.S. population
v
75% of severe SDB cases remain undiagnosed
v
Undiagnosed moderate to severe sleep apnea in middle-aged adults may cause $3.4 billion in additional medical costs in the U.S.
v
Total economic cost of sleepiness = approximately $4356 billion
For RemSleep, customers in the U.S. will typically be distributors, home care dealers, private sleep labs, internet providers, physicians and the end users. Internationally, as noted, the Company will rely on established distributor networks. Nationwide in the U.S., there are more than 1,600 businesses in the Sleep Disorder Clinics market, according to research firm IBISWorld. These businesses have combined annual revenue of $7 billion and have maintained a combined annual growth rate (CAGR) of 9.8% from 2008 to 2013. Sleep clinics have gained exposure during the period due to the rising number of sleep disorders, states IBISWorld. Moreover, health insurance policies are increasingly covering all or at least part of the costs of tests and, as more patients have been able to gain greater access to specialized sleep clinics, industry revenue grows.[10]
There are also more than 972,000 physicians and 365,000 doctors offices,[11] as well as nearly 5,800 hospitals.[12] In addition, the market for U.S. home healthcare is served by about 30,000 businesses with combined annual revenue of $59 billion. The market includes medical and skilled nursing services; medical equipment, supplies, and medication services; personal care; and therapeutic services (like physical and respiratory therapy).[13]
The sleep apnea devices market is highly consolidated, with ResMed and Philips Respironics accounting for a considerable percentage of the overall revenue. Other manufacturers include Natus Medical, Fisher & Paykel Healthcare, DeVilbiss Healthcare, and CareFusion.
For instance, ResMed is the market leader (with ~45% of market share), followed by Philips (30%), and Fisher/Paykel (12%). The remaining 13% of the market space is being divided up between many other small players (InnoMed, DeVilbiss, Drive, and TAP, just to name a few). These companies all focus on a full range of sleep products.
[10] IBISWorld. Sleep Disorder Clinics in the U.S. Aug. 2014. http://www.ibisworld.com/industry/sleep-disorder-clinics.html [11] AMA. Physician Characteristics and Distribution in the US. http://wdn.ipublishcentral.net/impelsys549/viewinside/1762471537873 [12] American Hospital Association. Fast Facts on US Hospitals. http://www.aha.org/aha/resource-center/Statistics-and-Studies/fast-facts.html [13] First Research. Home Health Services. Oct. 2014. http://www.firstresearch.com/Industry-Research/Home-Health-Care-Services.html |
6
RemSleep will be competitive with these companies and others in the area of performance, with the superiority of the DeltaWave a clear differentiating factor. Once distribution begins, distributors, sleep clinics, and end users will benefit from the increased comfort and resulting compliance from using the DeltaWave. If necessary, the Company can also compete pricewise due to the low manufacturing and distribution cost of the DeltaWave; however, it will be priced as a premium product initially.
Management
RemSleep is operated by a team of highly skilled, entrepreneurial-minded leaders who are accomplished sleep-industry professionals with a track record of results-driven success in building businesses and developing new products. They bring with them exceptional business acumen, coupled with an in-depth knowledge and understanding of the sleep industry, sleep apnea products, and their market dynamics.
Co-founders Russell Bird and Tom Wood combined have more than 35 years experience in the sleep industry and specifically with CPAP therapy. They have an extensive knowledge and understanding of CPAP and the challenges of patient compliance. Russell Bird and Tom Wood have been working on the design and development of the DeltaWave for approximately 30 months. During this period Russell has invested approximately $200,000 in finalizing the design with the assistance of Jonathan Lane. Final tooling in China is pending, with latest designed samples arriving in February 2015.
Management is further detailed below:
v
Russell Bird, President and CEO: Highly successful owner and operator of multiple businesses, offering sleep apnea interfaces, devices, and other respiratory equipment and supplies. In 1979 he founded Medical Gases Australia, growing it into a thriving national business by 1984. During this time he met Dr. Collin Sullivan, who became the Grandfather of CPAP therapy. In partnership with him, Medical Gases Australia placed the first patients in the world on CPAP therapy. He then started Medical Industries of America in 1985 and began to design, build, manufacture, market and sell its own products. The company grew from zero sales to a $25M company in 15 years.
v
Ken Godish, MBA Senior sales management and business development specialist. High level successful experience with top therapy and diagnostic device manufacturers in the Sleep Disordered Breathing (SDB) delivering product solutions through OEM, indirect and direct distribution. Substantial expertise in market research and channels planning to enable successful Go-To-Market planning, resourcing and implementation. Verifiable track record of sales achievements and profitability
v
Tom Wood, Product Development: Tom has been awarded several U.S. patents. He is the inventor and developer of Nasal Aire, which won the 2004 Frost and Sullivan Award for Product Innovation. US Patents also include the Nasal Aire II and Petite Nasal Aire, among any others. Tom has 25 years of experience as a respiratory therapist in the ICU at Baylor Medical Center and Parkland Memorial hospitals in Dallas, TX. He also worked for two years with the Muscular Dystrophy Association, responsible for respiratory care for patients with Amyotrophic Lateral Sclerosis.
7
v
Jon Lane, Chief Engineer: Worked for various Fortune 500 companies. He has over 30 years of experience providing engineering/designing services for: Boeing-Rockwell, Gulfstream Aerospace, General Dynamics, Bell Helicopter, Lockheed-Martin Missile and Space Systems, NASA, Northrop-Grumman, Shaw Aero, Sikorsky Helicopter, United Space Alliance, and Invacare.
EXECUTIVE COMPENSATION
Summary Compensation Table
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| Restricted |
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| LTIP |
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| All Other |
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Russell Bird, President and CEO |
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| 2014 |
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| - |
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| - |
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| - |
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| - |
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| - |
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| - |
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| - |
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| 2013 |
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| - |
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| - |
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| - |
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| - |
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| - |
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| - |
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| - |
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Ken Godish, Director of Sales and Marketing |
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| 2014 |
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| - |
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| - |
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| - |
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| - |
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| - |
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| - |
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| - |
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| 2013 |
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| - |
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| - |
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| - |
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| - |
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| - |
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Tom Wood, Product Development |
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| 2014 |
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| - |
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| - |
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| - |
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| - |
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| 2013 |
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Jon Lane, Chief Engineer |
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| 2014 |
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| - |
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| - |
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| - |
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| - |
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| - |
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| 2013 |
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information as of the date of this offering with respect to the beneficial ownership of our common stock by all persons known to us to be beneficial owners of more than five percent (5.0%) of any such outstanding classes, and by each director and executive officer, and by all officers and directors as a group. Unless otherwise specified, the named beneficial owner has, to our knowledge, either sole or majority voting and investment power.
8
Title Of |
| Name, Title and Address of Beneficial Owner of Shares |
| Amount of |
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| |
Membership Interest |
| Russell Bird, President and CEO |
|
| 50% |
|
Membership Interest |
| Ken Godish, Director of Sales and Marketing |
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| 0% |
|
Membership Interest |
| Tom Wood, Product Development |
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| 50% |
|
Membership Interest |
| Jon Lane, Chief Engineer |
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| 0% |
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| All Directors and Officers as a group |
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| 100% |
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Footnotes
(1) As used in this table, "beneficial ownership" means the sole or shared power to vote, or to direct the voting of, a security, or the sole or share investment power with respect to a security (i.e., the power to dispose of, or to direct the disposition of a security).
Exhibits
No. Exhibits
--- --------
3. Exchange Agreement
9
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated March 30, 2015
RemSleep Holdings, Inc.
By: /s/ Ken Stead
Ken Stead, President and
Chief Executive Officer
10
EXHIBIT INDEX
No. Exhibits
--- --------
3. Exchange Agreement
11
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (the Agreement) made this 31st day of March, 2015 by and among, RemSleep Holdings, Inc., a Nevada corporation, with offices located at 4920 El Camino Real, Suite 100, Los Altos, CA 94022 (RemSleep Holdings) and RemSleep, LLC, a California corporation, with offices located at 5872 Owens Ave. Suite 200. Carlsbad, CA, 92008, (REMSLEEP, LLC or the Company) on behalf of its shareholders, both parties hereinafter referred to as the Parties.
.
BACKGROUND:
A.
The Boards of Directors of RemSleep Holdings and REMSLEEP, LLC have determined that an acquisition of 100% of the outstanding shares in REMSLEEP, LLC by RemSleep Holdings through a share exchange upon the terms and subject to the conditions set forth in this Agreement, would be fair and in the best interests of RemSleep Holdings and REMSLEEP, LLCs interest holders, and the Boards of Directors of RemSleep Holdings and REMSLEEP, LLC have approved such Exchange, pursuant to which all of the right, title and interest in and to 100% of the membership interests in REMSLEEP, LLC (the Shares) will be exchanged for the right to receive 50,000,000 shares of common stock of RemSleep Holdings (the Exchange Shares).
B.
RemSleep Holdings and REMSLEEP, LLC desire to make certain representations, warranties, covenants and agreements in connection with the Exchange and also to prescribe various conditions to the Exchange.
C.
For federal income tax purposes, the Parties intend that the Exchange shall qualify as reorganization under the provisions of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the Code).
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, the Parties agree as follows:
ARTICLE I
THE EXCHANGE
1.01
Exchange
Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the Nevada Revised Statutes (Nevada Statutes), at the Closing (as hereinafter defined), the Parties shall do the following:
(a)
The interest holders of REMSLEEP, LLC will sell, convey, assign, and transfer the membership interests to RemSleep Holdings by delivering to RemSleep Holdings executed and transferable certificates. The membership interests transferred to RemSleep Holdings at the Closing shall constitute 100% of all issued and outstanding membership interests in the Company.
1
(b)
As consideration for its acquisition of the membership interests, RemSleep Holdings shall issue the Exchange Shares to REMSLEEP, LLC by delivering a share certificate to REMSLEEP, LLC evidencing the Exchange Shares (the Exchange Shares Certificate).
(c)
For federal income tax purposes, the Exchange is intended to constitute a reorganization within the meaning of Section 368 of the Code, and the Parties shall report the transactions contemplated by the this Agreement consistent with such intent and shall take no position in any Tax filing or legal proceeding inconsistent therewith. The Parties to this Agreement hereby adopt this Agreement as a Plan of Reorganization within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations. None of RemSleep Holdings or REMSLEEP, LLC has taken or failed to take, and after the Effective Time (as defined below), RemSleep Holdings shall not take or fail to take, any action which reasonably could be expected to cause the Exchange to fail to qualify as a reorganization within the meaning of Section 368(a) of the Code.
1.02
Effect of the Exchange
The Exchange shall have the effects set forth in the applicable provisions of the Nevada Statutes.
1.03
Closing
Unless this Agreement shall have been terminated and the transactions herein contemplated shall have been abandoned pursuant to Article VI and subject to the satisfaction or waiver of the conditions set forth in Article V, the closing of the Exchange (the Closing) will take place at 10:00 a.m. U.S. Pacific Standard Time on the business day upon satisfaction of the conditions set forth in Article V (or as soon as practicable thereafter following satisfaction or waiver of the conditions set forth in Article V) (the Closing Date), at the offices of Gewerter & Dowling, 1212 S. Casino Center, Las Vegas, NV 89104, unless another date, time or place is agreed to in writing by the Parties hereto.
1.04
Effective Time of Exchange
As soon as practicable following the satisfaction or waiver of the conditions set forth in Article V, the Parties shall make all filings or recordings required under Nevada Statutes. The Exchange shall become effective at such time as is permissible in accordance with Nevada Statutes (the time the Exchange becomes effective being the Effective Time). RemSleep Holdings and the Company shall use reasonable efforts to have the Closing Date and the Effective Time to be the same day.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01
Representations and Warranties of the Company
Except as set forth in the disclosure schedule delivered by the REMSLEEP, LLC to RemSleep Holdings at the time of execution of this Agreement (the Company Disclosure Schedule), the Company represents and warrants to RemSleep Holdings as follows:
2
(a)
Organization, Standing and Power
The Company is duly organized, validly existing and in good standing under the laws of the State of Nevada and has the requisite power and authority and all government licenses, authorizations, permits, consents and approvals required to own, lease and operate its properties and carry on its business as now being conducted. The Company is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed (individually or in the aggregate) would not have a material adverse effect (as defined in Section 8.02).
(b)
Subsidiaries
The Company does not own directly or indirectly, any equity or other shares in any company, corporation, partnership, joint venture or otherwise.
(c)
Membership Interests
The Membership Interests represent 100% of the issued and outstanding shares of the Company. There are no outstanding bonds, debentures, notes or other indebtedness or other securities of the Company. There are no rights, commitments, agreements, arrangements or undertakings of any kind to which the Company is a party or by which it is bound obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of the Company or obligating the Company to issue, grant, extend or enter into any such right, commitment, agreement, arrangement or undertaking. There are no outstanding contractual obligations, commitments, understandings or arrangements of the Company to repurchase, redeem or otherwise acquire or make any payment in respect of the shares of the Company.
(d)
Authority; Noncontravention
The Company has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been (or at Closing will have been) duly authorized by all necessary action on the part of the Company. This Agreement has been duly executed and when delivered by the Company shall constitute a valid and binding obligation of the Company, enforceable against the Company and the selling shareholders, as applicable, in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors rights generally or by general principles of equity. The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions hereof will not, conflict with, or result in any breach or violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of or put right with respect to any obligation or to a loss of a material benefit under, or result in the creation of any lien upon any of the properties or assets of the Company under, (i) the Companys articles of incorporation or bylaws, if any, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to the Company, its properties or assets,
3
or (iii) subject to the governmental filings and other matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule, regulation or arbitration award applicable to the Company, its properties or assets, other than, in the case of clauses (ii) and (iii), any such conflicts, breaches, violations, defaults, rights, losses or liens that individually or in the aggregate could not have a material adverse effect with respect to the Company or could not prevent, hinder or materially delay the ability of the Company to consummate the transactions contemplated by this Agreement.
(e)
Governmental Authorization
No consent, approval, order or authorization of, or registration, declaration or filing with, or notice to, any United States court, administrative agency or commission, or other federal, state or local government or other governmental authority, agency, domestic or foreign (a Governmental Entity), is required by or with respect to the Company in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby, except, with respect to this Agreement, any filings under the Securities Act of 1933, as amended (the Securities Act) or Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the Exchange Act).
(f)
Absence of Certain Changes or Events
Except as set forth on Schedule 2.01(g), since the Company Balance Sheet Date, the Company has conducted its business only in the ordinary course consistent with past practice, and there is not and has not been any:
(i)
material adverse change with respect to the Company;
(ii)
event which, if it had taken place following the execution of this Agreement, would not have been permitted by Section 3.01 without prior consent of RemSleep Holdings;
(iii)
condition, event or occurrence which could reasonably be expected to prevent, hinder or materially delay the ability of the Company to consummate the transactions contemplated by this Agreement;
(iv)
incurrence, assumption or guarantee by the Company of any indebtedness for borrowed money other than in the ordinary course and in amounts and on terms consistent with past practices or as disclosed to RemSleep Holdings in writing;
(v)
creation or other incurrence by the Company of any lien on any asset other than in the ordinary course consistent with past practices;
(vi)
transaction or commitment made, or any contract or agreement entered into, by the Company relating to its assets or business (including the acquisition or disposition of any assets) or any relinquishment by the Company of any contract or other right, in either case, material to the Company, other than transactions and commitments in the ordinary course consistent with past practices and those contemplated by this Agreement;
4
(vii)
labor dispute, other than routine, individual grievances, or, to the knowledge of the Company, any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any lockouts, strikes, slowdowns, work stoppages or threats by or with respect to such employees;
(viii)
payment, prepayment or discharge of liability other than in the ordinary course of business or any failure to pay any liability when due;
(ix)
write-offs or write-downs of any assets of the Company;
(x)
creation, termination or amendment of, or waiver of any right under, any material contract of the Company;
(xi)
damage, destruction or loss having, or reasonably expected to have, a material adverse effect on the Company;
(xii)
other condition, event or occurrence which individually or in the aggregate could reasonably be expected to have a material adverse effect or give rise to a material adverse change with respect to the Company; or
(xiii)
agreement or commitment to do any of the foregoing.
(g)
Certain Fees
Except as set forth on Schedule 2.01(h), no brokerage or finders fees or commissions are or will be payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other person with respect to the transactions contemplated by this Agreement.
(h)
Litigation; Labor Matters; Compliance with Laws
(i)
There is no suit, action or proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company or any basis for any such suit, action, proceeding or investigation that, individually or in the aggregate, could reasonably be expected to have a material adverse effect with respect to the Company or prevent, hinder or materially delay the ability of the Company to consummate the transactions contemplated by this Agreement, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against the Company having, or which, insofar as reasonably could be foreseen by the Company, in the future could have, any such effect.
(ii)
The Company is not a party to, or bound by, any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization, nor is it the subject of any proceeding asserting that it has committed an unfair labor practice or seeking to compel it to bargain with any labor organization as to wages or conditions of employment nor is there any strike, work stoppage or other labor dispute involving it pending or, to its knowledge, threatened, any of which could have a material adverse effect with respect to Company.
5
(iii)
The conduct of the business of the Company complies with all statutes, laws, regulations, ordinances, rules, judgments, orders, decrees or arbitration awards applicable thereto.
(i)
Benefit Plans
The Company is not a party to any Benefit Plan under which the Company currently has an obligation to provide benefits to any current or former employee, officer or director of the Company. As used herein, Benefit Plan shall mean any employee benefit plan, program, or arrangement of any kind, including any defined benefit or defined contribution plan, ownership plan with respect to any membership interest, executive compensation program or arrangement, bonus plan, incentive compensation plan or arrangement, profit sharing plan or arrangement, deferred compensation plan, agreement or arrangement, supplemental retirement plan or arrangement, vacation pay, sickness, disability, or death benefit plan (whether provided through insurance, on a funded or unfunded basis, or otherwise), medical or life insurance plan providing benefits to employees, retirees, or former employees or any of their dependents, survivors, or beneficiaries, severance pay, termination, salary continuation, or employee assistance plan.
(j)
Tax Returns and Tax Payments.
(i)
The Company has timely filed with the appropriate taxing authorities all Tax Returns required to be filed by it (taking into account all applicable extensions). All such Tax Returns are true, correct and complete in all respects. All Taxes due and owing by the Company has been paid (whether or not shown on any Tax Return and whether or not any Tax Return was required). The Company is not currently the beneficiary of any extension of time within which to file any Tax Return or pay any Tax. No claim has ever been made in writing or otherwise addressed to the Company by a taxing authority in a jurisdiction where the Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. The unpaid Taxes of the Company did not, as of the Company Balance Sheet Date, exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the financial statements (rather than in any notes thereto). Since the Company Balance Sheet Date, neither the Company nor any of its subsidiaries has incurred any liability for Taxes outside the ordinary course of business consistent with past custom and practice. As of the Closing Date, the unpaid Taxes of the Company and its subsidiaries will not exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the books and records of the Company.
(ii)
No material claim for unpaid Taxes has been made or become a lien against the property of the Company or is being asserted against the Company, no audit of any Tax Return of the Company is being conducted by a tax authority, and no extension of the statute of limitations on the assessment of any Taxes has been granted by the Company and is currently in effect. The Company has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
6
(iii)
As used herein, Taxes shall mean all taxes of any kind, including, without limitation, those on or measured by or referred to as income, gross receipts, sales, use, ad valorem, franchise, profits, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium value added, property or windfall profits taxes, customs, duties or similar fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts imposed by any governmental authority, domestic or foreign. As used herein, Tax Return shall mean any return, report or statement required to be filed with any governmental authority with respect to Taxes.
(k)
Environmental Matters
The Company is in compliance with all Environmental Laws in all material respects. The Company has not received any written notice regarding any violation of any Environmental Laws, including any investigatory, remedial or corrective obligations. The Company holds all permits and authorizations required under applicable Environmental Laws, unless the failure to hold such permits and authorizations would not have a material adverse effect on the Company. The Company is in compliance with all terms, conditions and provisions of all such permits and authorizations in all material respects. No releases of Hazardous Materials have occurred at, from, in, to, on or under any real property currently or formerly owned, operated or leased by the Company or any predecessor thereof and no Hazardous Materials are present in, on, about or migrating to or from any such property which could result in any liability to the Company. The Company has not transported or arranged for the treatment, storage, handling, disposal, or transportation of any Hazardous Material to any off-site location which could result in any liability to the Company. The Company has no liability, absolute or contingent, under any Environmental Law that if enforced or collected would have a material adverse effect on the Company. There are no past, pending or threatened claims under Environmental Laws against the Company and Company is not aware of any facts or circumstances that could reasonably be expected to result in a liability or claim against the Company pursuant to Environmental Laws. Environmental Laws means all applicable foreign, federal, state and local statutes, rules, regulations, ordinances, orders, decrees and common law relating in any manner to contamination, pollution or protection of human health or the environment, and similar state laws. Hazardous Material means any toxic, radioactive, corrosive or otherwise hazardous substance, including petroleum, its derivatives, by-products and other hydrocarbons, or any substance having any constituent elements displaying any of the foregoing characteristics, which in any event is regulated under any Environmental Law.
(l)
Material Contract Defaults
The Company is not, or has not received any notice or has any knowledge that any other party is, in default in any respect under any Material Contract; and there has not occurred any event that with the lapse of time or the giving of notice or both would constitute such a material default. For purposes of this Agreement, a Material Contract means any contract, agreement or commitment that is effective as of the Closing Date to which the Company is a party (i) with expected receipts or expenditures in excess of $50,000, (ii) requiring the Company to indemnify any person, (iii) granting exclusive rights to any party, (iv) evidencing indebtedness for borrowed or loaned money in excess of $50,000 or more, including guarantees of such indebtedness, or (v) which, if breached by the Company in such a manner would (A) permit any other party to cancel or terminate the same (with or without notice of passage of time) or
7
(B) provide a basis for any other party to claim money damages (either individually or in the aggregate with all other such claims under that contract) from the Company or (C) give rise to a right of acceleration of any material obligation or loss of any material benefit under any such contract, agreement or commitment.
(m)
Accounts Receivable
All of the accounts receivable of the Company that are reflected on the Company Financial Statements or the accounting records of the Company as of the Closing (collectively, the Accounts Receivable) represent or will represent valid obligations arising from sales actually made or services actually performed in the ordinary course of business and are not subject to any defenses, counterclaims, or rights of set off other than those arising in the ordinary course of business and for which adequate reserves have been established. The Accounts Receivable are fully collectible to the extent not reserved for on the balance sheet on which they are shown.
(n)
Properties
The Company has valid land use rights for all real property that is material to its business and good, clear and marketable title to all the tangible properties and tangible assets reflected in the latest balance sheet as being owned by the Company or acquired after the date thereof which are, individually or in the aggregate, material to the Companys business (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all material liens, encumbrances, claims, security interest, options and restrictions of any nature whatsoever. Any real property and facilities held under lease by the Company is held by it under valid, subsisting and enforceable leases of which the Company is in compliance, except as could not, individually or in the aggregate, have or reasonably be expected to result in a material adverse effect.
(o)
Intellectual Property
(i)
As used in this Agreement, the term Trademarks means trademarks, service marks, trade names, internet domain names, designs, slogans, and general intangibles of like nature; the term Trade Secrets means technology; trade secrets and other confidential information, know-how, proprietary processes, formulae, algorithms, models, and methodologies; the term Intellectual Property means patents, copyrights, Trademarks, applications for any of the foregoing, and Trade Secrets; the term Company License Agreements means any license agreements granting any right to use or practice any rights under any Intellectual Property (except for such agreements for off-the-shelf products that are generally available for less than $25,000), and any written settlements relating to any Intellectual Property, to which the Company is a party or otherwise bound; and the term Software means any and all computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code.
8
(ii)
The Company owns or has valid rights to use the Trademarks, trade names, domain names, copyrights, patents, logos, licenses and computer software programs (including, without limitation, the source codes thereto) that are necessary for the conduct of its respective businesses as now being conducted. To the knowledge of the Company, none of the Companys Intellectual Property or Company License Agreements infringe upon the rights of any third party that may give rise to a cause of action or claim against the Company or its successors.
(p)
Undisclosed Liabilities
The Company has no liabilities or obligations of any nature (whether fixed or unfixed, secured or unsecured, known or unknown and whether absolute, accrued, contingent, or otherwise) except for liabilities or obligations reflected or reserved against in the Company Financial Statements incurred in the ordinary course of business or such liabilities or obligations disclosed in Schedule 2.01(g).
(q)
Full Disclosure
All of the representations and warranties made by the Company in this Agreement, and all statements set forth in the certificates delivered by the Company at the Closing pursuant to this Agreement, are true, correct and complete in all material respects and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make such representations, warranties or statements, in light of the circumstances under which they were made, misleading. The copies of all documents furnished by the Company pursuant to the terms of this Agreement are complete and accurate copies of the original documents. The schedules, certificates, and any and all other statements and information, whether furnished in written or electronic form, to RemSleep Holdings or its representatives by or on behalf of any of the Company or its affiliates in connection with the negotiation of this Agreement and the transactions contemplated hereby do not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading.
2.02
Representations and Warranties of RemSleep Holdings
Except as set forth in the disclosure schedule delivered by RemSleep Holdings to the Company at the time of execution of this Agreement (the RemSleep Holdings Disclosure Schedule), RemSleep Holdings represents and warrants to the Company as follows:
(a)
Organization, Standing and Corporate Power
RemSleep Holdings is duly organized, validly existing and in good standing under the laws of the State of Nevada and has the requisite corporate power and authority and all government licenses, authorizations, permits, consents and approvals required to own, lease and operate its properties and carry on its business as now being conducted. RemSleep Holdings is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed (individually or in the aggregate) would not have a material adverse effect with respect to RemSleep Holdings.
9
(b)
Subsidiaries
RemSleep Holdings does not own directly or indirectly, any equity or other shares in any company, corporation, partnership, joint venture or otherwise.
(c)
Capital Structure of RemSleep Holdings
As of the date of this Agreement, the authorized capital stock of RemSleep Holdings consists of 75,000,000 shares of RemSleep Holdings Common Stock, $0.001 par value. There are no other shares of RemSleep Holdings stock issuable upon the exercise of outstanding warrants, convertible notes, options and otherwise. Except as set forth above, no shares of capital stock or other equity securities of RemSleep Holdings are issued, reserved for issuance or outstanding. All shares which may be issued pursuant to this Agreement will be, when issued, duly authorized, validly issued, fully paid and nonassessable, not subject to preemptive rights, and issued in compliance with all applicable state and federal laws concerning the issuance of securities. Both parties understand and acknowledge that these shares cannot not be issued until and unless the shareholders of RemSleep Holdings approve increasing the authorized shares of the corporation sufficiently to allow for such issuance.
(d)
Corporate Authority; Noncontravention
RemSleep Holdings has all requisite corporate and other power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by RemSleep Holdings and the consummation by RemSleep Holdings of the transactions contemplated hereby have been (or at Closing will have been) duly authorized by all necessary corporate action on the part of RemSleep Holdings. This Agreement has been duly executed and when delivered by RemSleep Holdings shall constitute a valid and binding obligation of RemSleep Holdings, enforceable against RemSleep Holdings in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors rights generally or by general principles of equity. The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions hereof will not, conflict with, or result in any breach or violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of or put right with respect to any obligation or to loss of a material benefit under, or result in the creation of any lien upon any of the properties or assets of RemSleep Holdings under, (i) its articles of incorporation, bylaws, or other charter documents of RemSleep Holdings (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to RemSleep Holdings, its properties or assets, or (iii) subject to the governmental filings and other matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule, regulation or arbitration award applicable to RemSleep Holdings, its properties or assets, other than, in the case of clauses (ii) and (iii), any such conflicts, breaches, violations, defaults, rights, losses or liens that individually or in the aggregate could not have a material adverse effect with respect to RemSleep Holdings or could not prevent, hinder or materially delay the ability of RemSleep Holdings to consummate the transactions contemplated by this Agreement.
10
(e)
Government Authorization
No consent, approval, order or authorization of, or registration, declaration or filing with, or notice to, any Governmental Entity, is required by or with respect to RemSleep Holdings in connection with the execution and delivery of this Agreement by RemSleep Holdings, or the consummation by RemSleep Holdings of the transactions contemplated hereby, except, with respect to this Agreement, any filings under the Nevada Statutes, the Securities Act or the Exchange Act.
(f)
Financial Statements
(i)
The consolidated financial statements of RemSleep Holdings included in the reports, schedules, forms, statements and other documents filed by RemSleep Holdings with the SEC (collectively, and in each case including all exhibits and schedules thereto and documents incorporated by reference therein, the RemSleep Holdings SEC Documents), such RemSleep Holdings SEC Documents comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with U.S. generally accepted accounting principles (except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present the consolidated financial position of RemSleep Holdings and its consolidated subsidiaries as of the dates thereof and the consolidated results of operations and changes in cash flows for the periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments as determined by RemSleep Holdingss independent accountants). Except as set forth in the RemSleep Holdings SEC Documents, at the date of the most recent audited financial statements of RemSleep Holdings included in the RemSleep Holdings SEC Documents, RemSleep Holdings has not incurred any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) which, individually or in the aggregate, could reasonably be expected to have a material adverse effect with respect to RemSleep Holdings.
(g)
Absence of Certain Changes or Events
Except as disclosed in the RemSleep Holdings SEC Documents or as set forth on Schedule 2.02(g), since Sept. 30, 2012 (the RemSleep Holdings Balance Sheet Date) RemSleep Holdings has conducted its business only in the ordinary course consistent with past practice in light of its current business circumstances, and there is not and has not been any:
(i)
material adverse change with respect to RemSleep Holdings;
(ii)
event which, if it had taken place following the execution of this Agreement, would not have been permitted by Section 3.01 without prior consent of the Company;
(iii)
condition, event or occurrence which could reasonably be expected to prevent, hinder or materially delay the ability of RemSleep Holdings to consummate the transactions contemplated by this Agreement;
11
(iv)
incurrence, assumption or guarantee by RemSleep Holdings of any indebtedness for borrowed money other than in the ordinary course and in amounts and on terms consistent with past practices or as disclosed to the Company in writing;
(v)
creation or other incurrence by RemSleep Holdings of any lien on any asset other than in the ordinary course consistent with past practices;
(vi)
transaction or commitment made, or any contract or agreement entered into, by RemSleep Holdings relating to its assets or business (including the acquisition or disposition of any assets) or any relinquishment by RemSleep Holdings of any contract or other right, in either case, material to RemSleep Holdings, other than transactions and commitments in the ordinary course consistent with past practices and those contemplated by this Agreement;
(vii)
labor dispute, other than routine, individual grievances, or, to the knowledge of RemSleep Holdings, any activity or proceeding by a labor union or representative thereof to organize any employees of RemSleep Holdings or any lockouts, strikes, slowdowns, work stoppages or threats by or with respect to such employees;
(viii)
payment, prepayment or discharge of liability other than in the ordinary course of business or any failure to pay any liability when due;
(ix)
write-offs or write-downs of any assets of RemSleep Holdings;
(x)
creation, termination or amendment of, or waiver of any right under, any material contract of RemSleep Holdings;
(xi)
damage, destruction or loss having, or reasonably expected to have, a material adverse effect on RemSleep Holdings;
(xii)
other condition, event or occurrence which individually or in the aggregate could reasonably be expected to have a material adverse effect or give rise to a material adverse change with respect to RemSleep Holdings; or
(xiii)
agreement or commitment to do any of the foregoing.
(h)
Certain Fees
Except as set forth on Schedule 2.02(h), no brokerage or finders fees or commissions are or will be payable by RemSleep Holdings to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other person with respect to the transactions contemplated by this Agreement.
(i)
Litigation; Labor Matters; Compliance with Laws
12
(i)
There is no suit, action or proceeding or investigation pending or, to the knowledge of RemSleep Holdings, threatened against or affecting RemSleep Holdings or any basis for any such suit, action, proceeding or investigation that, individually or in the aggregate, could reasonably be expected to have a material adverse effect with respect to RemSleep Holdings or prevent, hinder or materially delay the ability of RemSleep Holdings to consummate the transactions contemplated by this Agreement, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against RemSleep Holdings having, or which, insofar as reasonably could be foreseen by RemSleep Holdings, in the future could have, any such effect.
(ii)
RemSleep Holdings is not a party to, or bound by, any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization, nor is it the subject of any proceeding asserting that it has committed an unfair labor practice or seeking to compel it to bargain with any labor organization as to wages or conditions of employment nor is there any strike, work stoppage or other labor dispute involving it pending or, to its knowledge, threatened, any of which could have a material adverse effect with respect to RemSleep Holdings.
(iii)
The conduct of the business of RemSleep Holdings complies with all statutes, laws, regulations, ordinances, rules, judgments, orders, decrees or arbitration awards applicable thereto.
(j)
Benefit Plans
RemSleep Holdings is not a party to any Benefit Plan under which RemSleep Holdings currently has an obligation to provide benefits to any current or former employee, officer or director of RemSleep Holdings.
(k)
Certain Employee Payments
RemSleep Holdings is not a party to any employment agreement which could result in the payment to any current, former or future director or employee of RemSleep Holdings of any money or other property or rights or accelerate or provide any other rights or benefits to any such employee or director as a result of the transactions contemplated by this Agreement, whether or not (i) such payment, acceleration or provision would constitute a parachute payment (within the meaning of Section 280G of the Code), or (ii) some other subsequent action or event would be required to cause such payment, acceleration or provision to be triggered.
(l)
Tax Returns and Tax Payments
(i)
RemSleep Holdings has timely filed with the appropriate taxing authorities all Tax Returns required to be filed by it (taking into account all applicable extensions). All such Tax Returns are true, correct and complete in all respects. All Taxes due and owing by RemSleep Holdings has been paid (whether or not shown on any Tax Return and whether or not any Tax Return was required). RemSleep Holdings is not currently the beneficiary of any extension of time within which to file any Tax Return or pay any Tax. No claim has ever been made in writing or otherwise addressed to RemSleep Holdings by a taxing authority in a jurisdiction where
13
RemSleep Holdings does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. The unpaid Taxes of RemSleep Holdings did not, as of the RemSleep Holdings Balance Sheet Date, exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the financial statements (rather than in any notes thereto). Since the RemSleep Holdings Balance Sheet Date, neither the Company nor any of its subsidiaries has incurred any liability for Taxes outside the ordinary course of business consistent with past custom and practice. As of the Closing Date, the unpaid Taxes of RemSleep Holdings and its subsidiaries will not exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the books and records of RemSleep Holdings.
(ii)
No material claim for unpaid Taxes has been made or become a lien against the property of RemSleep Holdings or is being asserted against RemSleep Holdings, no audit of any Tax Return of RemSleep Holdings is being conducted by a tax authority, and no extension of the statute of limitations on the assessment of any Taxes has been granted by RemSleep Holdings and is currently in effect. RemSleep Holdings has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(m)
Environmental Matters
RemSleep Holdings is in compliance with all Environmental Laws in all material respects. RemSleep Holdings holds all permits and authorizations required under applicable Environmental Laws, unless the failure to hold such permits and authorizations would not have a material adverse effect on RemSleep Holdings. RemSleep Holdings is compliance with all terms, conditions and provisions of all such permits and authorizations in all material respects. No releases of Hazardous Materials have occurred at, from, in, to, on or under any real property currently or formerly owned, operated or leased by RemSleep Holdings or any predecessor thereof and no Hazardous Materials are present in, on, about or migrating to or from any such property which could result in any liability to RemSleep Holdings. RemSleep Holdings has not transported or arranged for the treatment, storage, handling, disposal, or transportation of any Hazardous Material to any off-site location which could result in any liability to RemSleep Holdings. RemSleep Holdings has no liability, absolute or contingent, under any Environmental Law that if enforced or collected would have a material adverse effect on RemSleep Holdings. There are no past, pending or threatened claims under Environmental Laws against RemSleep Holdings and RemSleep Holdings is not aware of any facts or circumstances that could reasonably be expected to result in a liability or claim against RemSleep Holdings pursuant to Environmental Laws.
(n)
Material Contract Defaults
RemSleep Holdings is not, or has not, received any notice or has any knowledge that any other party is, in default in any respect under any RemSleep Holdings Material Contract; and there has not occurred any event that with the lapse of time or the giving of notice or both would constitute such a material default. For purposes of this Agreement, a RemSleep Holdings Material Contract means any contract, agreement or commitment that is effective as of the Closing Date to which RemSleep Holdings is a party (i) with expected receipts or expenditures in excess of $5,000, (ii) requiring RemSleep Holdings to indemnify any person, (iii) granting exclusive rights to any party,
14
(iv) evidencing indebtedness for borrowed or loaned money in excess of $5,000 or more, including guarantees of such indebtedness, or (v) which, if breached by RemSleep Holdings in such a manner would (A) permit any other party to cancel or terminate the same (with or without notice of passage of time) or (B) provide a basis for any other party to claim money damages (either individually or in the aggregate with all other such claims under that contract) from RemSleep Holdings or (C) give rise to a right of acceleration of any material obligation or loss of any material benefit under any such contract, agreement or commitment.
(o)
Properties
RemSleep Holdings has valid land use rights for all real property that is material to its business and good, clear and marketable title to all the tangible properties and tangible assets reflected in the latest balance sheet as being owned by RemSleep Holdings or acquired after the date thereof which are, individually or in the aggregate, material to RemSleep Holdingss business (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all material liens, encumbrances, claims, security interest, options and restrictions of any nature whatsoever. Any real property and facilities held under lease by RemSleep Holdings are held by them under valid, subsisting and enforceable leases of which RemSleep Holdings is in compliance, except as could not, individually or in the aggregate, have or reasonably be expected to result in a material adverse effect.
(p)
Intellectual Property
RemSleep Holdings owns or has valid rights to use the Trademarks, trade names, domain names, copyrights, patents, logos, licenses and computer software programs (including, without limitation, the source codes thereto) that are necessary for the conduct of its business as now being conducted. All of RemSleep Holdingss licenses to use Software programs are current and have been paid for the appropriate number of users. To the knowledge of RemSleep Holdings, none of RemSleep Holdingss Intellectual Property or RemSleep Holdings License Agreements infringe upon the rights of any third party that may give rise to a cause of action or claim against RemSleep Holdings or its successors.
(q)
Board Determination
The Board of Directors of RemSleep Holdings has unanimously determined that the terms of the Exchange are fair to and in the best interests of RemSleep Holdings and its stockholders.
(r)
Required RemSleep Holdings Share Issuance Approval
RemSleep Holdings represents that the issuance of the Exchange Shares to the Selling Member will be in compliance with the Nevada Statutes and the Bylaws of RemSleep Holdings. Both parties understand and acknowledge that these shares cannot not be issued until and unless the shareholders of RemSleep Holdings approve increasing the authorized shares of the corporation sufficiently to allow for such issuance.
15
(s)
Undisclosed Liabilities
RemSleep Holdings has no liabilities or obligations of any nature (whether fixed or unfixed, secured or unsecured, known or unknown and whether absolute, accrued, contingent, or otherwise) except for liabilities or obligations reflected or reserved against in the RemSleep Holdings SEC Documents incurred in the ordinary course of business.
(t)
Full Disclosure
All of the representations and warranties made by RemSleep Holdings in this Agreement, and all statements set forth in the certificates delivered by RemSleep Holdings at the Closing pursuant to this Agreement, are true, correct and complete in all material respects and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make such representations, warranties or statements, in light of the circumstances under which they were made, misleading. The copies of all documents furnished by RemSleep Holdings pursuant to the terms of this Agreement are complete and accurate copies of the original documents. The schedules, certificates, and any and all other statements and information, whether furnished in written or electronic form, to the Company or its representatives by or on behalf of RemSleep Holdings and the RemSleep Holdings Stockholders in connection with the negotiation of this Agreement and the transactions contemplated hereby do not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading.
ARTICLE III
COVENANTS RELATING TO CONDUCT OF BUSINESS PRIOR TO EXCHANGE
3.01
Conduct of the Company and RemSleep Holdings
From the date of this Agreement and until the Effective Time, or until the prior termination of this Agreement, the Company and RemSleep Holdings shall not, unless mutually agreed to in writing:
(a)
engage in any transaction, except in the normal and ordinary course of business, or create or suffer to exist any lien or other encumbrance upon any of their respective assets or which will not be discharged in full prior to the Effective Time;
(b)
sell, assign or otherwise transfer any of their assets, or cancel or compromise any debts or claims relating to their assets, other than for fair value, in the ordinary course of business, and consistent with past practice;
(c)
fail to use reasonable efforts to preserve intact their present business organizations, keep available the services of their employees and preserve its material relationships with customers, suppliers, licensors, licensees, distributors and others, to the end that its good will and ongoing business not be impaired prior to the Effective Time;
(d)
except for matters related to complaints by former employees related to wages, suffer or permit any material adverse change to occur with respect to the Company and RemSleep Holdings or their business or assets; or
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(e)
make any material change with respect to their business in accounting or bookkeeping methods, principles or practices, except as required by GAAP.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.01
Access to Information; Confidentiality
(a)
The Company shall, and shall cause its officers, employees, counsel, financial advisors and other representatives to, afford to RemSleep Holdings and its representatives reasonable access during normal business hours during the period prior to the Effective Time to its and to the Companys properties, books, contracts, commitments, personnel and records and, during such period, the Company shall, and shall cause its officers, employees and representatives to, furnish promptly to RemSleep Holdings all information concerning its business, properties, financial condition, operations and personnel as such other party may from time to time reasonably request. For the purposes of determining the accuracy of the representations and warranties of RemSleep Holdings set forth herein and compliance by RemSleep Holdings of its obligations hereunder, during the period prior to the Effective Time, RemSleep Holdings shall provide the Company and its representatives with reasonable access during normal business hours to its properties, books, contracts, commitments, personnel and records as may be necessary to enable the Company to confirm the accuracy of the representations and warranties of RemSleep Holdings set forth herein and compliance by RemSleep Holdings of its obligations hereunder, and, during such period, RemSleep Holdings shall, and shall cause its officers, employees and representatives to, furnish promptly to the Company upon its request (i) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities laws and (ii) all other information concerning its business, properties, financial condition, operations and personnel as such other party may from time to time reasonably request. Except as required by law, each of the Company and RemSleep Holdings will hold, and will cause its respective directors, officers, employees, accountants, counsel, financial advisors and other representatives and affiliates to hold, any nonpublic information in confidence.
(b)
No investigation pursuant to this Section 4.01 shall affect any representations or warranties of the Parties herein or the conditions to the obligations of the Parties hereto.
4.02
Best Efforts
Upon the terms and subject to the conditions set forth in this Agreement, each of the Parties agrees to use its best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Exchange and the other transactions contemplated by this Agreement. RemSleep Holdings and the Company shall mutually cooperate in order to facilitate the achievement of the benefits reasonably anticipated from the Exchange.
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4.03
Public Announcements
RemSleep Holdings, on the one hand, and the Company, on the other hand, will consult with each other before issuing, and provide each other the opportunity to review and comment upon, any press release or other public statements with respect to the transactions contemplated by this Agreement and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable law or court process. The Parties agree that the initial press release or releases to be issued with respect to the transactions contemplated by this Agreement shall be mutually agreed upon prior to the issuance thereof.
4.04
Expenses
All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses.
4.05
No Solicitation
Except as previously agreed to in writing by the other party, neither the Company nor RemSleep Holdings shall authorize or permit any of its officers, directors, agents, representatives, or advisors to (a) solicit, initiate or encourage or take any action to facilitate the submission of inquiries, proposals or offers from any person relating to any matter concerning any exchange, merger, consolidation, business combination, recapitalization or similar transaction involving the Company or RemSleep Holdings, respectively, other than the transaction contemplated by this Agreement or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or delay the Exchange or which would or could be expected to dilute the benefits to either the Company or RemSleep Holdings of the transactions contemplated hereby. The Company or RemSleep Holdings will immediately cease and cause to be terminated any existing activities, discussions and negotiations with any Parties conducted heretofore with respect to any of the foregoing.
ARTICLE V
CONDITIONS PRECEDENT
5.01
Conditions to Each Partys Obligation to Effect the Exchange
The obligation of each Party to effect the Exchange and otherwise consummate the transactions contemplated by this Agreement is subject to the satisfaction, at or prior to the Closing, of each of the following conditions:
(a)
No Restraints
No temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the Exchange shall have been issued by any court of competent jurisdiction or any other Governmental Entity having jurisdiction and shall remain in effect, and there shall not be any applicable legal requirement enacted, adopted or deemed applicable to the Exchange that makes consummation of the Exchange illegal.
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(b)
Governmental Approvals
All authorizations, consents, orders, declarations or approvals of, or filings with, or terminations or expirations of waiting periods imposed by, any Governmental Entity having jurisdiction which the failure to obtain, make or occur would have a material adverse effect on RemSleep Holdings or the Company shall have been obtained, made or occurred.
(c)
No Litigation
There shall not be pending or threatened any suit, action or proceeding before any court, Governmental Entity or authority (i) pertaining to the transactions contemplated by this Agreement or (ii) seeking to prohibit or limit the ownership or operation by the Company, RemSleep Holdings or any of its subsidiaries, or to dispose of or hold separate any material portion of the business or assets of the Company or RemSleep Holdings.
5.02
Conditions Precedent to Obligations of RemSleep Holdings
The obligation of RemSleep Holdings to effect the Exchange and otherwise consummate the transactions contemplated by this Agreement are subject to the satisfaction, at or prior to the Closing, of each of the following conditions:
(a)
Representations, Warranties and Covenants
The representations and warranties of the Company in this Agreement shall be true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality or material adverse effect, which representations and warranties as so qualified shall be true and correct in all respects) both when made and on and as of the Closing Date, and (ii) the Company shall have performed and complied in all material respects with all covenants, obligations and conditions of this Agreement required to be performed and complied with by each of them prior to the Effective Time.
(b)
Consents
RemSleep Holdings shall have received evidence, in form and substance reasonably satisfactory to it, that such licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and other third Parties as necessary in connection with the transactions contemplated hereby have been obtained.
(c)
No Material Adverse Change
There shall not have occurred any change in the business, condition (financial or otherwise), results of operations or assets (including intangible assets) and properties of the Company that, individually or in the aggregate, could reasonably be expected to have a material adverse effect on the Company.
(d)
Delivery of the Assignment of Shares
The selling shareholders shall have delivered the share certificates to RemSleep Holdings on the Closing Date.
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(e)
Due Diligence Investigation
RemSleep Holdings shall be reasonably satisfied with the results of its due diligence investigation of the Company in its sole and absolute discretion.
5.03
Conditions Precedent to Obligation of RemSleep, LLC
The obligation of the Company to effect the Exchange and otherwise consummate the transactions contemplated by this Agreement is subject to the satisfaction, at or prior to the Closing, of each of the following conditions:
(a)
Representations, Warranties and Covenants
The representations and warranties of RemSleep Holdings in this Agreement shall be true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality or material adverse effect, which representations and warranties as so qualified shall be true and correct in all respects) both when made and on and as of the Closing Date, and (ii) RemSleep Holdings shall have performed and complied in all material respects with all covenants, obligations and conditions of this Agreement required to be performed and complied with by it prior to the Effective Time.
(b)
Consents
The Company shall have received evidence, in form and substance reasonably satisfactory to it, that such licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and other third Parties as necessary in connection with the transactions contemplated hereby have been obtained.
(c)
No Material Adverse Change
There shall not have occurred any change in the business, condition (financial or otherwise), results of operations or assets (including intangible assets) and properties of RemSleep Holdings that, individually or in the aggregate, could reasonably be expected to have a material adverse effect on RemSleep Holdings.
(d)
Board Resolutions
The Company shall have received resolutions duly adopted by RemSleep Holdingss board of directors approving the execution, delivery and performance of the Agreement and the transactions contemplated by the Agreement.
(e)
Delivery of the Exchange Shares Certificate
The Company shall have received the Exchange Shares Certificate on the Closing Date. Both parties understand and acknowledge that these shares cannot not be issued until and unless the shareholders of RemSleep Holdings approve increasing the authorized shares of the corporation sufficiently to allow for such issuance.
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(f)
Current Report
RemSleep Holdings shall file a Form 8-K with the SEC within four (4) business days of the Closing Date containing information about the Exchange.
(g)
Due Diligence Investigation
The Company shall be reasonably satisfied with the results of its due diligence investigation of RemSleep Holdings in its sole and absolute discretion.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
6.01
Termination
This Agreement may be terminated and abandoned at any time prior to the Effective Time of the Exchange:
(a)
by mutual written consent of RemSleep Holdings and the Company;
(b)
by either RemSleep Holdings or the Company if any Governmental Entity shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the Exchange and such order, decree, ruling or other action shall have become final and nonappealable;
(c)
by either RemSleep Holdings or the Company if the Exchange shall not have been consummated on or before May 1, 2015 (other than as a result of the failure of the party seeking to terminate this Agreement to perform its obligations under this Agreement required to be performed at or prior to the Effective Time.);
(d)
by RemSleep Holdings, if a material adverse change shall have occurred relative to the Company (and not curable within thirty (30) days);
(e)
by the Company if a material adverse change shall have occurred relative to RemSleep Holdings (and not curable within thirty (30) days);
(f)
by RemSleep Holdings, if the Company willfully fails to perform in any material respect any of its material obligations under this Agreement; or
(g)
by the Company, if RemSleep Holdings willfully fails to perform in any material respect any of its obligations under this Agreement.
6.02
Effect of Termination
In the event of termination of this Agreement by either the Company or RemSleep Holdings as provided in Section 6.01, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of RemSleep Holdings or the Company, other than the provisions of the last sentence of Section 4.01(a) and this Section 6.02. Nothing contained in this Section shall relieve any party for any breach of the representations, warranties, covenants or agreements set forth in this Agreement.
21
6.03
Amendment
This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties upon approval by the party, if such party is an individual, and upon approval of the Board of Director of RemSleep Holdings and of the Company.
6.04
Extension; Waiver
Subject to Section 6.01(c), at any time prior to the Effective Time, the Parties may (a) extend the time for the performance of any of the obligations or other acts of the other Parties, (b) waive any inaccuracies in the representations and warranties contained in this Agreement or in any document delivered pursuant to this Agreement, or (c) waive compliance with any of the agreements or conditions contained in this Agreement. Any agreement on the part of a party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.
6.05
Return of Documents
In the event of termination of this Agreement for any reason, RemSleep Holdings and the Company will return to the other party all of the other partys documents, work papers, and other materials (including copies) relating to the transactions contemplated in this Agreement, whether obtained before or after execution of this Agreement. RemSleep Holdings and the Company will not use any information so obtained from the other party for any purpose and will take all reasonable steps to have such other partys information kept confidential.
ARTICLE VII
INDEMNIFICATION AND RELATED MATTERS
7.01
Survival of Representations and Warranties
The representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive until twelve (12) months after the Effective Time (except for with respect to Taxes, which shall survive for the applicable statute of limitations plus 90 days, and covenants that by their terms survive for a longer period).
7.02
Indemnification
(a)
RemSleep Holdings shall indemnify and hold the selling interest holders and the Company harmless for, from and against any and all liabilities, obligations, damages, losses, deficiencies, costs, penalties, interest and expenses (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever) (collectively, Losses) to which RemSleep Holdings may become subject resulting from or arising out of any breach of a representation, warranty or covenant made by RemSleep Holdings as set forth herein.
22
(b)
The Company and selling interest holders shall jointly indemnify and hold RemSleep Holdings and RemSleep Holdingss officers and directors (RemSleep Holdingss Representatives) harmless for, from and against any and all Losses to which RemSleep Holdings or RemSleep Holdingss Representatives may become subject resulting from or arising out of (1) any breach of a representation, warranty or covenant made by the Company as set forth herein; or (2) any and all liabilities arising out of or in connection with: (A) any of the assets of the Company prior to the Closing; or (B) the operations of the Company prior to the Closing.
7.03
Notice of Indemnification
Promptly after the receipt by any indemnified party (the Indemnitee) of notice of the commencement of any action or proceeding against such Indemnitee, such Indemnitee shall, if a claim with respect thereto is or may be made against any indemnifying party (the Indemnifying Party) pursuant to this Article VII, give such Indemnifying Party written notice of the commencement of such action or proceeding and give such Indemnifying Party a copy of such claim and/or process and all legal pleadings in connection therewith. The failure to give such notice shall not relieve any Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. Such Indemnifying Party shall have, upon request within thirty (30) days after receipt of such notice, but not in any event after the settlement or compromise of such claim, the right to defend, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, that if the Indemnitee determines that there is a reasonable probability that a claim may materially and adversely affect it, other than solely as a result of money payments required to be reimbursed in full by such Indemnifying Party under this Article VII or if a conflict of interest exists between Indemnitee and the Indemnifying Party, the Indemnitee shall have the right to defend, compromise or settle such claim or suit; and, provided, further, that such settlement or compromise shall not, unless consented to in writing by such Indemnifying Party, which shall not be unreasonably withheld, be conclusive as to the liability of such Indemnifying Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party and its counsel shall cooperate in the defense against, or compromise of, any such asserted liability, and in cases where the Indemnifying Party shall have assumed the defense, the Indemnitee shall have the right to participate in the defense of such asserted liability at the Indemnitees own expense. In the event that such Indemnifying Party shall decline to participate in or assume the defense of such action, prior to paying or settling any claim against which such Indemnifying Party is, or may be, obligated under this Article VII to indemnify an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a copy of a final court judgment or decree holding the Indemnitee liable on such claim or, failing such judgment or decree, the terms and conditions of the settlement or compromise of such claim. An Indemnitees failure to supply such final court judgment or decree or the terms and conditions of a settlement or compromise to such Indemnifying Party shall not relieve such Indemnifying Party of any of its indemnification obligations contained in this Article VII, except where, and solely to the extent that, such failure actually and materially prejudices the rights of such Indemnifying Party. If the Indemnifying Party is defending the claim as set forth above, the Indemnifying Party shall have the right to settle the claim only with the consent of the Indemnitee.
23
ARTICLE VIII
GENERAL PROVISIONS
8.01
Notices
Any and all notices and other communications hereunder shall be in writing and shall be deemed duly given to the party to whom the same is so delivered, sent or mailed at addresses and contact information set forth below (or at such other address for a party as shall be specified by like notice.) Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be deemed given and effective on the earliest of: (a) on the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto prior to 5:30 p.m. (Pacific Standard Time) on a business day, (b) on the next business day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a business day or later than 5:30 p.m. (Pacific Standard Time) on any business day, (c) on the second business day following the date of mailing, if sent by a nationally recognized overnight courier service, or (d) if by personal delivery, upon actual receipt by the party to whom such notice is required to be given.
If to RemSleep Holdings:
722 50th Street
DesMoines, Iowa 50312
If to the Company:
722 50th Street
DesMoines, Iowa 50312
8.02
Definitions
For purposes of this Agreement:
(a)
an affiliate of any person means another person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first person;
(b)
material adverse change or material adverse effect means, when used in connection with the Company or RemSleep Holdings, any change or effect that either individually or in the aggregate with all other such changes or effects is materially adverse to the business, assets, properties, condition (financial or otherwise) or results of operations of such party and its subsidiaries taken as a whole (after giving effect in the case of RemSleep Holdings to the consummation of the Exchange);
24
(c)
person means an individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity; and (d) a subsidiary of any person means another person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its board of Directors or other governing body (or, if there are no such voting interests, fifty percent (50%) or more of the equity interests of which) is owned directly or indirectly by such first person.
8.03
Interpretation
When a reference is made in this Agreement to a Section, Exhibit or Schedule, such reference shall be to a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words include, includes or including are used in this Agreement, they shall be deemed to be followed by the words without limitation.
8.04
Entire Agreement; No Third-Party Beneficiaries
This Agreement and the other agreements referred to herein constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter of this Agreement. This Agreement is not intended to confer upon any person other than the Parties any rights or remedies.
8.05
Governing Law
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Nevada, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.
8.06
Assignment
Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the Parties without the prior written consent of the other Parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns.
8.07
Enforcement
The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court of the United States located in the State of Nevada, this being in addition to any other remedy to which they are entitled at law or in equity. In addition, each of the Parties hereto (a) agrees that it will not attempt to deny or defeat such personal jurisdiction or venue by motion or other request for leave from any such court, and (b) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any state court other than such court.
25
8.08
Severability
Whenever possible, each provision or portion of any provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or portion of any provision in such jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.
8.09
Counterparts
This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together will constitute one and the same Agreement. This Agreement, to the extent delivered by means of a facsimile machine or electronic mail (any such delivery, an Electronic Delivery), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto shall re-execute original forms hereof and deliver them in person to all other Parties. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense related to lack of authenticity.
8.10
Attorneys Fees
In the event any suit or other legal proceeding is brought for the enforcement of any of the provisions of this Agreement, the Parties hereto agree that the prevailing party or Parties shall be entitled to recover from the other party or Parties upon final judgment on the merits reasonable attorneys fees, including attorneys fees for any appeal, and costs incurred in bringing such suit or proceeding.
8.11
Currency
All references to currency in this Agreement shall refer to the lawful currency of the United States of America.
[Signature Page Follows]
26
IN WITNESS WHEREOF, the undersigned have caused their duly authorized officers to execute this Agreement as of the date first above written.
RemSleep Holdings, Inc.
By: /s/ Ken Stead
Ken Stead, President and CEO
RemSleep, LLC
By: /s/
Manager
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