1.2 Assignment and Assumption of Liabilities. Seller hereby assigns to B.E. Global, and B.E. Global hereby assumes and agrees to pay, honor and discharge all debts, adverse claims, liabilities, judgments and obligations, including tax obligations (but excluding those related to the Subsidiaries (as defined in a Split-Off Agreement between Seller and Quintel Holdings, Inc., dated the date hereof)), of Seller as of the Closing Date immediately prior to the closing of the Merger, whether accrued, contingent or otherwise and whether known or unknown, including those arising under any law (including the common law) or any rule or regulation of any Governmental Entity or imposed by any court or any arbitrator in a binding arbitration resulting from, arising out of or relating to the assets, activities, operations, actions or omissions of Seller, or products manufactured or sold thereby or services provided thereby, or under contracts, agreements (whether written or oral), leases, commitments or undertakings thereof (all of the foregoing being referred to herein as the Assigned Liabilities), but excluding in all cases the obligations of Seller under the Transaction Documents .
The assignment and assumption of Sellers assets and liabilities provided for in this Article I is referred to as the Assignment.
II. CLOSING.
2.1 Closing. The closing of the transactions contemplated in this Agreement (the Closing) shall take place immediately after the closing of the Merger. The date on which the Closing occurs shall be referred to herein as the Closing Date.
2.2 Transfer of Interests. The parties agree this Agreement vests B.E. Global with good and marketable title to such Interests, free and clear of all liens and encumbrances without need for the production or delivery of any further documents.
2.3 Management. Immediately after the Closing, Seller shall hereby be deemed to have resigned from any management position that it may have held with MomSpot LLC, if it held any such position.
III. REPRESENTATIONS AND WARRANTIES OF ALL PARTIES. Each party hereto represents and warrants to each other party that:
3.1 Capacity and Enforceability. It has the legal capacity to execute and deliver this Agreement and the documents to be executed and delivered by it at the Closing pursuant to the transactions contemplated hereby. This Agreement and all such documents constitute valid and binding agreements of such party, enforceable in accordance with their terms.
2
3.2 Organization and Good Standing. If an entity, it is duly incorporated or otherwise organized, validly existing, and in good standing under the laws of its state of incorporation or organization.
3.3 Compliance. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby by B.E. Global will result in the breach of any term or provision of, or constitute a default under, or violate any agreement, indenture, instrument, order, law or regulation to which it is a party or by which it is bound.
| IV. | B.E. GLOBALS S REPRESENTATIONS AND WARRANTIES. B.E. Global represents and warrants to Seller that: |
4.1 Purchase for Investment. B.E. Global is financially able to bear the economic risks of acquiring the Interests and the other transactions contemplated hereby and has no need for liquidity in its investment in the Interests. B.E. Global has such knowledge and experience in financial and business matters in general, and with respect to businesses of a nature similar to the business of MomSpot, so as to be capable of evaluating the merits and risks of, and making an informed business decision with regard to, the acquisition of the Interests and the other transactions contemplated hereby. B.E. Global is acquiring the Interests solely for its own account and not with a view to or for resale in connection with any distribution or public offering thereof, within the meaning of any applicable securities laws and regulations, unless such distribution or offering is registered under the Securities Act of 1933, as amended (the Securities Act), or an exemption from such registration is available. B.E. Global has (i) received all the information it has deemed necessary to make an informed decision with respect to the acquisition of the Interests and the other transactions contemplated hereby; (ii) had an opportunity to make such investigation as he has desired pertaining to MomSpot and the acquisition of an interest therein and the other transactions contemplated hereby, and to verify the information which is, and has been, made available to him or her; and (iii) had the opportunity to ask questions of Seller concerning MomSpot. B.E. Global has received no public solicitation or advertisement with respect to the offer or sale of the Interests. B.E. Global realizes that the Interests are restricted securities as that term is defined in Rule 144 promulgated by the Securities and Exchange Commission under the Securities Act, the resale of the Interests is restricted by federal and state securities laws and, accordingly, the Interests must be held indefinitely unless their resale is subsequently registered under the Securities Act or an exemption from such registration is available for their resale. B.E. Global understands that any resale of the Interests by him must be registered under the Securities Act (and any applicable state securities law) or be effected in circumstances that, in the opinion of counsel for MomSpot at the time, create an exemption or otherwise do not require registration under the Securities Act (or applicable state securities laws). B.E. Global acknowledges and consents that certificates now or hereafter issued for the Interests will bear a legend substantially as follows:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS (THE STATE ACTS), HAVE BEEN ACQUIRED FOR
3
INVESTMENT AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND QUALIFICATION UNDER THE STATE ACTS OR PURSUANT TO EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS (INCLUDING, IN THE CASE OF THE SECURITIES ACT, THE EXEMPTIONS AFFORDED BY SECTION 4(1) OF THE SECURITIES ACT AND RULE 144 THEREUNDER). AS A PRECONDITION TO ANY SUCH TRANSFER, THE ISSUER OF THESE SECURITIES SHALL BE FURNISHED WITH AN OPINION OF COUNSEL OPINING AS TO THE AVAILABILITY OF EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION AND/OR SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY THERETO THAT ANY SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES LAWS.
B.E. Global understands that the Interests are being sold to it pursuant to the exemption from registration under the Securities Act and that Seller is relying upon the representations made herein as one of the bases for claiming the exemption.
4.2 Liabilities. Following the Closing, Seller will have no liability for any debts, liabilities or obligations of MomSpot, or its business or activities. There are no outstanding guaranties, performance or payment bonds, letters of credit or other contingent contractual obligations that have been undertaken by Seller directly or indirectly in relation to MomSpot, or its business or activities.
V. SELLERS REPRESENTATIONS AND WARRANTIES. Seller and MomSpot, as applicable, represent and warrant to B.E. Global that Seller is the sole record and beneficial owner of the Interests. At Closing, Seller will have good and marketable title to the Interests, which Interests are, and at the Closing will be, free and clear of all options, warrants, pledges, claims, liens and encumbrances, and any restrictions or limitations prohibiting or restricting transfer to B.E. Global, except for restrictions on transfer as contemplated by Section 4.1 above. The Interests constitute 51% of the outstanding membership interests of MomSpot.
VI. OTHER AGREEMENTS.
6.1 Access to Information Post-Closing; Cooperation.
(a) Following the Closing, B.E. Global and MomSpot shall afford to Seller and its authorized accountants, counsel and other designated representatives, reasonable access (and including using reasonable efforts to give access to persons or firms possessing information) and duplicating rights during normal business hours to allow records, books, contracts, instruments, computer data and other data and information (collectively, Information) within the possession or control of B.E. Global or MomSpot insofar as such access is reasonably required by Seller. Information may be requested under this Section 6.1 for, without limitation, audit, accounting, claims, litigation and tax purposes, as well as for purposes of fulfilling disclosure and reporting obligations and performing this Agreement and the transactions contemplated hereby. No files, books or records of MomSpot existing at the Closing Date shall be destroyed by B.E. Global or MomSpot for three years after Closing.
4
(b) Following the Closing, Seller shall afford to MomSpot and its authorized accountants, counsel and other designated representatives reasonable access (including using reasonable efforts to give access to persons or firms possessing information) and duplicating rights during normal business hours to Information within Sellers possession or control relating to the business of MomSpot insofar as such access is reasonably required by B.E. Global. Information may be requested under this Section 6.1 for, without limitation, audit, accounting, claims, litigation and tax purposes as well as for purposes of fulfilling disclosure and reporting obligations and for performing this Agreement and the transactions contemplated hereby. No files, books or records of MomSpot existing at the Closing Date shall be destroyed by Seller for three years after Closing.
(c) At all times following the Closing, Seller, B.E. Global and MomSpot shall use their reasonable efforts to make available to the other on written request, the current and former officers, directors, employees and agents of Seller or MomSpot for any of the purposes set forth in Section above or as witnesses to the extent that such persons may reasonably be required in connection with any legal, administrative or other proceedings in which Seller or MomSpot may from time to be involved.
(d) The party to whom any Information or witnesses are provided under this Section shall reimburse the provider thereof for all out-of-pocket expenses actually and reasonably incurred in providing such Information or witnesses.
(f) Seller, B.E. Global and MomSpot shall each use their best efforts to forward promptly to the other party all notices, claims, correspondence and other materials which are received and determined to pertain to the other party.
6.2 Filings and Consents. B.E. Global, at its risk, shall determine what, if any, filings and consents must be made and/or obtained prior to Closing to consummate the purchase and sale of the Interests. B.E. Global shall indemnify the Seller Indemnified Parties (as defined below) against any Losses (as defined in below) incurred by such Seller Indemnified Parties by virtue of the failure to make and/or obtain any such filings or consents.
6.3 Agreements Regarding Taxes.
(a) Tax Sharing Agreements. Any tax sharing agreement between Seller and MomSpot is terminated as of the Closing Date and will have no further effect for any taxable year (whether the current year, a future year or a past year).
(b) Returns for Periods Through the Closing Date. Seller will include the income and loss of MomSpot and the Assigned Liabilities (including any deferred income triggered into income by Reg. §1.1502-13 and any excess loss accounts taken into income under Reg. §1.1502-19) on Sellers consolidated federal income tax returns for all periods through the Closing Date and pay any federal income taxes attributable to such income. Seller and MomSpot
5
agree to allocate income, gain, loss, deductions and credits between the period up to Closing (the Pre-Closing Period) and the period after Closing (the Post-Closing Period) based on a closing of the books of MomSpot, and both Seller and MomSpot agree not to make an election under Reg. §1.1502-76(b)(2)(ii) to ratably allocate the years items of income, gain, loss, deduction and credit. Seller, MomSpot and B.E. Global agree to report all transactions not in the ordinary course of business occurring on the Closing Date after B.E. Globals purchase of the Interests on MomSpots tax returns to the extent permitted by Reg. §1.1502-76(b)(1)(ii)(B). MomSpot will furnish tax information to Seller for inclusion in Sellers consolidated federal income tax return for the period which includes the Closing Date in accordance with MomSpots past custom and practice.
(c) Audits. Seller will allow MomSpot and its counsel to participate at MomSpots expense in any audit of Sellers consolidated federal income tax returns to the extent that such audit raises issues that relate to and increase the tax liability of MomSpot. Seller shall have the absolute right, in its sole discretion, to engage professionals and direct the representation of Seller in connection with any such audit and the resolution thereof, without receiving the consent of B.E. Global or MomSpot or any other party acting on behalf of B.E. Global or MomSpot, provided that Seller will not settle any such audit in a manner which would materially adversely affect MomSpot after the Closing Date. In the event that after Closing any tax authority informs B.E. Global or MomSpot of any notice of proposed audit, claim, assessment or other dispute concerning an amount of taxes which pertain to Seller, or to MomSpot during the period prior to Closing, B.E. Global or MomSpot must promptly notify Seller of the same within 15 calendar days of the date of the notice from the tax authority.
(d) Cooperation on Tax Matters. B.E. Global, Seller and MomSpot shall cooperate fully, as and to the extent reasonably requested by any party, in connection with the filing of tax returns pursuant to this Section and any audit, litigation or other proceeding with respect to taxes. Such cooperation shall include the retention and (upon the other partys request) the provision of records and information which are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. MomSpot shall (i) retain all books and records with respect to tax matters pertinent to MomSpot relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by Seller, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any taxing authority, and (ii) give Seller reasonable written notice prior to transferring, destroying or discarding any such books and records and, if Seller so requests, B.E. Global agrees to cause MomSpot to allow Seller to take possession of such books and records.
VII. MISCELLANEOUS.
7.1 Definitions. Capitalized terms used herein without definition have the meanings ascribed to them in the Merger Agreement.
7.2 Notices. All notices and communications required or permitted hereunder shall be in writing and deemed given when received by means of the United States mail, addressed to the
6
party to be notified, postage prepaid and registered or certified with return receipt requested, or personal delivery, or overnight courier, as follows:
| (a) | If to Seller, addressed to: |
Atrinsic, Inc.
149 Fifth Avenue, Suite 500
New York, NY 10010
Attn: Robert Ziroyan, President
Facsimile:<PHONE_NUMBER>
With a copy to (which shall not constitute notice hereunder):
Meister Seelig & Fein LLP
125 Park Avenue, 7th Floor
New York, NY 10017
Attention: Kenneth Goodwin, Esq.
Facsimile:<PHONE_NUMBER>
| (b) | If to B.E. Global or MomSpot, addressed to: |
1221 Avenue of the Americas
Suite 4200
New York, NY 10020
Attention: Barry Eisenberg
or to such other address as any party hereto shall specify pursuant to this Section 8.2 from time to time.
7.3 Exercise of Rights and Remedies. Except as otherwise provided herein, no delay of or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.
7.4 Reformation and Severability. In case any provision of this Agreement shall be invalid, illegal or unenforceable, it shall, to the extent possible, be modified in such manner as to be valid, legal and enforceable but so as to most nearly retain the intent of the parties, and if such modification is not possible, such provision shall be severed from this Agreement, and in either case the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
7.5 Further Acts and Assurances. From and after the Closing, Seller, B.E. Global and MomSpot agree that each will act in a manner supporting compliance, including compliance by its Affiliates, with all of its obligations under this Agreement and, from time to time, shall, at the request of another party hereto, and without further consideration, cause the execution and delivery of such other instruments of conveyance, transfer, assignment or assumption and take such other action or execute such other documents as such party may reasonably request in order to complete the transactions contemplated by this Agreement.
7
7.6 Entire Agreement; Amendments. This Agreement contains the entire understanding of the parties relating to the subject matter contained herein. This Agreement cannot be amended or changed except through a written instrument signed by all of the parties hereto and by PrivateCo. No provisions of this Agreement or any rights hereunder may be waived by any party without the prior written consent of PrivateCo.
7.7 Assignment. No party may assign his, her or its rights or obligations hereunder, in whole or in part, without the prior written consent of the other parties.
7.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts or choice of laws thereof.
7.9 Counterparts. This Agreement may be executed in one or more counterparts, with the same effect as if all parties had signed the same document. Each such counterpart shall be an original, but all such counterparts taken together shall constitute a single agreement. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature page was an original thereof.
7.10 Section Headings and Gender. The section headings used herein are inserted for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other genders, whether used in the masculine, feminine or neuter and the singular shall include the plural, and vice versa, whenever and as often as may be appropriate.
7.11 Submission to Jurisdiction; Process Agent; No Jury Trial.
(a) Each party to the Agreement hereby submits to the jurisdiction of any state or federal court sitting in the Borough of Manhattan, City and State of New York, in any action arising out of or relating to this Agreement, and agrees that all claims in respect of the action may be heard and determined in any such court. Each party to the Agreement also agrees not to bring any action arising out of or relating to this Agreement in any other court. Each party to the Agreement agrees that a final judgment in any action so brought will be conclusive and may be enforced by action on the judgment or in any other manner provided at law or in equity. Each party to the Agreement waives any defense of inconvenient forum to the maintenance of any action so brought and waives any bond, surety or other security that might be required of any other party with respect thereto.
(b) EACH PARTY TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RIGHTS TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENTS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR ANY DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. The scope of this
8
waiver is intended to be all encompassing of any and all actions that may be filed in any court and that relate to the subject matter of the transactions, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. Each party to the Agreement hereby acknowledges that this waiver is a material inducement to enter into a business relationship and that they will continue to rely on the waiver in their related future dealings. Each party to the Agreement further represents and warrants that it has reviewed this waiver with its legal counsel, and that each knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED ORALLY OR IN WRITING, AND THE WAIVER WILL APPLY TO ANY AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING HERETO. In the event of commencement of any action, this Agreement may be filed as a written consent to trial by a court.
7.12 Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement. Any reference to any federal, state, local or foreign law will be deemed also to refer to law as amended and all rules and regulations promulgated thereunder, unless the context requires otherwise. The words include, includes, and including will be deemed to be followed by without limitation. The words this Agreement, herein, hereof, hereby, hereunder, and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which that party has not breached will not detract from or mitigate the fact that such party is in breach of the first representation, warranty or covenant.
7.13 Expenses. Each party hereto shall bear its expenses separately incurred in connection with this Agreement and with the performance of its obligations hereunder.
[Signature page follows this page.]
9
IN WITNESS WHEREOF, the Parties hereto have caused this Split-Off Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
| ATRINSIC, INC. | ||
| By: | /s/ Edward Gildea | |
| Name: | Edward Gildea | |
| Title: | Chief Executive Officer | |
| B.E. GLOBAL LLC | ||
| By: | /s/ Barry Eisenberg | |
| Name: | Barry Eisenberg | |
| Title: | Owner | |
| MOMSPOT LLC | ||
| By: | /s/ Barry Eisenberg | |
| Name: | Barry Eisenberg | |
| Title: | Owner |
10
Exhibit 10.7
GENERAL RELEASE AGREEMENT
This GENERAL RELEASE AGREEMENT (this Agreement), dated as of February 12, 2016, is entered into by and among Atrinsic, Inc., a Delaware corporation (Seller), MomSpot LLC, a Delaware limited liability corporation (MomSpot), and B.E. Global LLC (the Buyer). In consideration of the mutual benefits to be derived from this Agreement, the covenants and agreements set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the execution and delivery hereof, the parties hereto hereby agree as follows:
1. Release and Waiver by MomSpot. For and in consideration of the covenants and promises contained herein and in a Split-Off Agreement among the Buyer, Seller and MomSpot dated the date hereof, the receipt and sufficiency of which are hereby acknowledged, MomSpot, on behalf of itself and its assigns, representatives and agents, if any, hereby covenants not to sue and fully, finally and forever completely releases Seller, along with its present, future and former officers, directors, stockholders, members, employees, agents, attorneys and representatives (collectively, the Seller Released Parties), of and from any and all claims, actions, obligations, liabilities, demands and/or causes of action, of whatever kind or character, whether now known or unknown, which MomSpot has or might claim to have against the Seller Released Parties for any and all injuries, harm, damages (actual and punitive), costs, losses, expenses, attorneys fees and/or liability or other detriment, if any, whenever incurred or suffered by MomSpot arising from, relating to, or in any way connected with, any fact, event, transaction, action or omission that occurred or failed to occur on or prior to the date of the Closing.
2. Release and Waiver by Buyer. For and in consideration of the covenants and promises contained herein and in the Split-Off Agreement, the receipt and sufficiency of which are hereby acknowledged, Buyer hereby covenants not to sue and fully, finally and forever completely release the Seller Released Parties of and from any and all claims, actions, obligations, liabilities, demands and/or causes of action, of whatever kind or character, whether now known or unknown which Buyer has or might claim to have against the Seller Released Parties for any and all injuries, harm, damages (actual and punitive), costs, losses, expenses, attorneys fees and/or liability or other detriment, if any, whenever incurred or suffered by Buyer arising from, relating to, or in any way connected with, any fact, event, transaction, action or omission that occurred or failed to occur on or prior to the date of the Closing.
3. Additional Covenants and Agreements.
(a) Each of MomSpot and Buyer, on the one hand, and Seller, on the other hand, waives and releases the other from any claims that this Agreement was procured by fraud or signed under duress or coercion so as to make this Agreement not binding.
(b) Each of the parties hereto acknowledges and agrees that the releases set forth herein do not include any claims the other party hereto may have against such party for such partys failure to comply with or breach of any provision in this Agreement or the Split-Off Agreement.
(c) Notwithstanding anything contained herein to the contrary, this Agreement shall not release or waive, or in any manner affect or void, any partys rights and obligations under the Split-Off Agreement.
4. Modification. This Agreement cannot be modified orally and can only be modified through a written document signed by both parties.
5. Severability. If any provision contained in this Agreement is determined to be void, illegal or unenforceable, in whole or in part, then the other provisions contained herein shall remain in full force and effect as if the provision that was determined to be void, illegal or unenforceable had not been contained herein.
6. Expenses. The parties hereto agree that each party shall pay its respective costs, including attorneys fees, if any, associated with this Agreement.
7. Further Acts and Assurances. MomSpot and Buyer agrees that it will act in a manner supporting compliance, including compliance by its Affiliates, with all of its obligations under this Agreement and, from time to time, shall, at the request of Seller, and without further consideration, cause the execution and delivery of such other instruments of release or waiver and take such other action or execute such other documents as such party may reasonably request in order to confirm or effect the releases, waivers and covenants contained herein, and, in the case of any claims, actions, obligations, liabilities, demands and/or causes of action that cannot be effectively released or waived without the consent or approval of other persons or entities that is unobtainable, to use its best reasonable efforts to ensure that the Seller Released Parties receive the benefits thereof to the maximum extent permissible in accordance with applicable law or other applicable restrictions, and shall perform such other acts which may be reasonably necessary to effectuate the purposes of this Agreement. For the purposes of this Agreement, an Affiliate is a person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, another specified person or entity.
8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts or choice of laws thereof.
9. Entire Agreement. This Agreement, together with the Split-Off Agreement, constitutes the entire understanding and agreement of Seller, MomSpot and Buyer and supersedes prior understandings and agreements, if any, among or between Seller, MomSpot and Buyer with respect to the subject matter of this Agreement, other than as specifically referenced herein. This Agreement does not, however, operate to supersede or extinguish any confidentiality, non-solicitation, non-disclosure or non-competition obligations owed by MomSpot or Buyer to Seller under any prior agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have executed this General Release Agreement as of the day and year first above written.
| ATRINSIC, INC. | ||
| By: | /s/ Edward Gildea | |
| Name: | Edward Gildea | |
| Title: | Chief Executive Officer | |
| B.E. GLOBAL LLC | ||
| By: | /s/ Barry Eisenberg | |
| Name: | Barry Eisenberg | |
| Title: | Owner | |
| MOMSPOT LLC | ||
| By: | /s/ Barry Eisenberg | |
| Name: | Barry Eisenberg | |
| Title: | Owner |
3
Exhibit 10.8
SPLIT-OFF AGREEMENT
This SPLIT-OFF AGREEMENT, dated as of February 12, 2016 (this Agreement), is entered into by and among (i) Atrinsic, Inc., a Delaware corporation (the Seller), and (ii) Quintel Holdings, Inc. (Buyer), a Nevada company.
RECITALS:
WHEREAS, prior to the execution of this Agreement, Seller, Protagenic Therapeutics, Inc., a Delaware corporation (PrivateCo), and a newly-formed wholly-owned subsidiary of Seller, Protagenic Acquisition Corp. (Acquisition Sub) entered into an Agreement and Plan of Merger and Reorganization (the Merger Agreement) pursuant to which Acquisition Sub will merge with and into PrivateCo with PrivateCo remaining as the surviving entity (the Merger); and the equity holders of PrivateCo will receive securities of Seller in exchange for their equity interests in PrivateCo;
WHEREAS, the execution and delivery of this Agreement is required by PrivateCo as a condition to its execution of the Merger Agreement, and the consummation of the assignment, assumption, purchase and sale transactions contemplated by this Agreement is also a condition to the completion of the Merger pursuant to the Merger Agreement, and Seller has represented to PrivateCo in the Merger Agreement that the transactions contemplated by this Agreement will be consummated contemporaneously with the closing of the Merger, and PrivateCo relied on such representation in entering into the Merger Agreement;
WHEREAS, Buyer desires to purchase all of the equity securities (the Interests) held by Seller in the entities set out in Exhibit A (the Subsidiaries) from Seller, on the terms and subject to the conditions specified in this Agreement;
WHEREAS, in exchange for the purchase of the Interests by Buyer, Buyer agrees to assume the Assigned Liabilities (as defined herein);
WHEREAS, Seller currently owns all of the Interests of the Subsidiaries; and
WHEREAS, Seller desires to sell and transfer the Interests to Buyer, on the terms and subject to the conditions specified in this Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants, promises and agreements herein set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending legally to be bound, agree as follows:
I. INTEREST PURCHASE AND ASSIGNMENT AND ASSUMPTION OF SELLERS ASSETS AND LIABILITIES.
Subject to the terms and conditions provided below:
1
1.1 Purchase and Sale of Interests. For $1.00 and other good and valuable consideration, Seller hereby sells, assigns and transfers to Buyer the Interests and Buyer agrees to purchase the Interests.
1.2 Assignment and Assumption of Liabilities. Seller hereby assigns to Buyer, and Buyer hereby assumes and agrees to pay, honor and discharge all debts, adverse claims, liabilities, judgments and obligations, including tax obligations, of Seller related to the Subsidiaries as of the Closing Date immediately prior to the closing of the Merger, whether accrued, contingent or otherwise and whether known or unknown, including those arising under any law (including the common law) or any rule or regulation of any Governmental Entity or imposed by any court or any arbitrator in a binding arbitration resulting from, arising out of or relating to the assets, activities, operations, actions or omissions of Seller, or products manufactured or sold thereby or services provided thereby, or under contracts, agreements (whether written or oral), leases, commitments or undertakings thereof, but excluding in all cases the obligations of Seller under the Transaction Documents (all of the foregoing being referred to herein as the Assigned Liabilities).
The assignment and assumption of Sellers assets and liabilities provided for in this Article I is referred to as the Assignment.
II. CLOSING.
2.1 Closing. The closing of the transactions contemplated in this Agreement (the Closing) shall take place immediately after the closing of the Merger. The date on which the Closing occurs shall be referred to herein as the Closing Date.
2.2 Transfer of Interests. The parties agree this Agreement vests Buyer with good and marketable title to such Interests, free and clear of all liens and encumbrances without need for the production or delivery of any further documents.
2.3 Management. Immediately after the Closing, Seller shall hereby be deemed to have resigned from any management position that it may have held with any of the Subsidiaries, if it held any such position.
III. REPRESENTATIONS AND WARRANTIES OF ALL PARTIES. Each party hereto represents and warrants to each other party that:
3.1 Capacity and Enforceability. It has the legal capacity to execute and deliver this Agreement and the documents to be executed and delivered by it at the Closing pursuant to the transactions contemplated hereby. This Agreement and all such documents constitute valid and binding agreements of such party, enforceable in accordance with their terms.
3.2 Organization and Good Standing. If an entity, it is duly incorporated or otherwise organized, validly existing, and in good standing under the laws of its state of incorporation or organization.
2
3.3 Compliance. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby by Buyer will result in the breach of any term or provision of, or constitute a default under, or violate any agreement, indenture, instrument, order, law or regulation to which it is a party or by which it is bound.
IV. BUYERS REPRESENTATIONS AND WARRANTIES. Buyer represents and warrants to Seller that:
4.1 Purchase for Investment. Buyer is financially able to bear the economic risks of acquiring the Interests and the other transactions contemplated hereby and has no need for liquidity in its investment in the Interests. Buyer has such knowledge and experience in financial and business matters in general, and with respect to businesses of a nature similar to the business of the Subsidiaries, so as to be capable of evaluating the merits and risks of, and making an informed business decision with regard to, the acquisition of the Interests and the other transactions contemplated hereby. Buyer is acquiring the Interests solely for its own account and not with a view to or for resale in connection with any distribution or public offering thereof, within the meaning of any applicable securities laws and regulations, unless such distribution or offering is registered under the Securities Act of 1933, as amended (the Securities Act), or an exemption from such registration is available. Buyer has (i) received all the information it has deemed necessary to make an informed decision with respect to the acquisition of the Interests and the other transactions contemplated hereby; (ii) had an opportunity to make such investigation as he has desired pertaining to Subsidiaries and the acquisition of an interest therein and the other transactions contemplated hereby, and to verify the information which is, and has been, made available to him or her; and (iii) had the opportunity to ask questions of Seller concerning Subsidiaries. Buyer has received no public solicitation or advertisement with respect to the offer or sale of the Interests. Buyer realizes that the Interests are restricted securities as that term is defined in Rule 144 promulgated by the Securities and Exchange Commission under the Securities Act, the resale of the Interests is restricted by federal and state securities laws and, accordingly, the Interests must be held indefinitely unless their resale is subsequently registered under the Securities Act or an exemption from such registration is available for their resale. Buyer understands that any resale of the Interests by him must be registered under the Securities Act (and any applicable state securities law) or be effected in circumstances that, in the opinion of counsel for the applicable Subsidiary at the time, create an exemption or otherwise do not require registration under the Securities Act (or applicable state securities laws). Buyer acknowledges and consents that certificates now or hereafter issued for the Interests will bear a legend substantially as follows:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS (THE STATE ACTS), HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND QUALIFICATION UNDER THE STATE ACTS OR PURSUANT TO EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS (INCLUDING, IN THE
3
CASE OF THE SECURITIES ACT, THE EXEMPTIONS AFFORDED BY SECTION 4(1) OF THE SECURITIES ACT AND RULE 144 THEREUNDER).
Buyer understands that the Interests are being sold to it pursuant to the exemption from registration under the Securities Act and that Seller is relying upon the representations made herein as one of the bases for claiming the exemption.
4.2 Liabilities. Following the Closing, Seller will have no liability for any debts, liabilities or obligations of the Subsidiaries, or their business or activities. There are no outstanding guaranties, performance or payment bonds, letters of credit or other contingent contractual obligations that have been undertaken by Seller directly or indirectly in relation to the Subsidiaries, or their business or activities.
V. SELLERS REPRESENTATIONS AND WARRANTIES. Seller represents and warrants to Buyer that Seller is the sole record and beneficial owner of the Interests. At Closing, Seller will have good and marketable title to the Interests, which Interests are, and at the Closing will be, free and clear of all options, warrants, pledges, claims, liens and encumbrances, and any restrictions or limitations prohibiting or restricting transfer to Buyer, except for restrictions on transfer as contemplated by Section 4.1 above.
VI. OTHER AGREEMENTS.
6.1 Access to Information Post-Closing; Cooperation.
(a) Following the Closing, Buyer shall afford to Seller and its authorized accountants, counsel and other designated representatives, reasonable access (and including using reasonable efforts to give access to persons or firms possessing information) and duplicating rights during normal business hours to allow records, books, contracts, instruments, computer data and other data and information (collectively, Information) within the possession or control of Buyer or the Subsidiaries insofar as such access is reasonably required by Seller. Information may be requested under this Section 6.1 for, without limitation, audit, accounting, claims, litigation and tax purposes, as well as for purposes of fulfilling disclosure and reporting obligations and performing this Agreement and the transactions contemplated hereby. No files, books or records of the Subsidiaries existing at the Closing Date shall be destroyed by Buyer or the Subsidiaries for three years after Closing.
(b) Following the Closing, Seller shall afford to the Subsidiaries and its authorized accountants, counsel and other designated representatives reasonable access (including using reasonable efforts to give access to persons or firms possessing information) and duplicating rights during normal business hours to Information within Sellers possession or
4
control relating to the business of the Subsidiaries insofar as such access is reasonably required by Buyer. Information may be requested under this Section 6.1 for, without limitation, audit, accounting, claims, litigation and tax purposes as well as for purposes of fulfilling disclosure and reporting obligations and for performing this Agreement and the transactions contemplated hereby. No files, books or records of the Subsidiaries existing at the Closing Date shall be destroyed by Seller for three years after Closing.
(c) At all times following the Closing, Seller, and Buyer shall use their reasonable efforts to make available to the other on written request, the current and former officers, directors, employees and agents of Seller or the Subsidiaries for any of the purposes set forth in Section above or as witnesses to the extent that such persons may reasonably be required in connection with any legal, administrative or other proceedings in which Seller or the Subsidiaries may from time to be involved.
(d) The party to whom any Information or witnesses are provided under this Section shall reimburse the provider thereof for all out-of-pocket expenses actually and reasonably incurred in providing such Information or witnesses.
(f) Seller and Buyer shall each use their best efforts to forward promptly to the other party all notices, claims, correspondence and other materials which are received and determined to pertain to the other party.
6.2 Filings and Consents. Buyer, at its risk, shall determine what, if any, filings and consents must be made and/or obtained prior to Closing to consummate the purchase and sale of the Interests. Buyer shall indemnify the Seller Indemnified Parties (as defined below) against any Losses (as defined in below) incurred by such Seller Indemnified Parties by virtue of the failure to make and/or obtain any such filings or consents.
6.3 Agreements Regarding Taxes.
(a) Tax Sharing Agreements. Any tax sharing agreement between Seller and a Subsidiary is terminated as of the Closing Date and will have no further effect for any taxable year (whether the current year, a future year or a past year).
(b) Returns for Periods Through the Closing Date. Seller will include the income and loss of the Subsidiaries and the Assigned Liabilities (including any deferred income triggered into income by Reg. §1.1502-13 and any excess loss accounts taken into income under Reg. §1.1502-19) on Sellers consolidated federal income tax returns for all periods through the Closing Date and pay any federal income taxes attributable to such income. Seller agrees to allocate income, gain, loss, deductions and credits between the period up to Closing (the Pre-Closing Period) and the period after Closing (the Post-Closing Period) based on a closing of the books of MomSpot, and Seller agrees not to make an election under Reg. §1.1502-76(b)(2)(ii) to ratably allocate the years items of income, gain, loss, deduction and credit. Seller and Buyer agree to report all transactions not in the ordinary course of business occurring on the Closing Date after Buyers purchase of the Interests on Buyers tax returns to the extent permitted by Reg. §1.1502-76(b)(1)(ii)(B). The Subsidiaries will furnish tax information to Seller for inclusion in Sellers consolidated federal income tax return for the period which includes the Closing Date in accordance with the Sellers past custom and practice.
5
(c) Audits. Seller will allow Buyer and its counsel to participate at Buyers expense in any audit of Sellers consolidated federal income tax returns to the extent that such audit raises issues that relate to and increase the tax liability of Buyer or any Subsidiary. Seller shall have the absolute right, in its sole discretion, to engage professionals and direct the representation of Seller in connection with any such audit and the resolution thereof, without receiving the consent of Buyer or any other party acting on behalf of Buyer, provided that Seller will not settle any such audit in a manner which would materially adversely affect Buyer after the Closing Date. In the event that after Closing any tax authority informs Buyer or any of the Subsidiaries of any notice of proposed audit, claim, assessment or other dispute concerning an amount of taxes which pertain to Seller, or to the Subsidiaries during the period prior to Closing, Buyer must promptly notify Seller of the same within 15 calendar days of the date of the notice from the tax authority.
(d) Cooperation on Tax Matters. Buyer and Seller shall cooperate fully, as and to the extent reasonably requested by any party, in connection with the filing of tax returns pursuant to this Section and any audit, litigation or other proceeding with respect to taxes. Such cooperation shall include the retention and (upon the other partys request) the provision of records and information which are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Buyer shall (i) retain all books and records with respect to tax matters pertinent to the Subsidiaries relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by Seller, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any taxing authority, and (ii) give Seller reasonable written notice prior to transferring, destroying or discarding any such books and records and, if Seller so requests, Buyer agrees to cause the Subsidiaries to allow Seller to take possession of such books and records.
VII. MISCELLANEOUS.
7.1 Definitions. Capitalized terms used herein without definition have the meanings ascribed to them in the Merger Agreement.
7.2 Notices. All notices and communications required or permitted hereunder shall be in writing and deemed given when received by means of the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, or personal delivery, or overnight courier, as follows:
| (a) | If to Seller, addressed to: |
Atrinsic, Inc.
149 Fifth Avenue, Suite 500
New York, NY 10010
Attn: Robert Ziroyan, President
Facsimile:<PHONE_NUMBER>
6
With a copy to (which shall not constitute notice hereunder):
Meister Seelig & Fein LLP
125 Park Avenue, 7th Floor
New York, NY 10017
Attention: Kenneth Goodwin, Esq.
Facsimile:<PHONE_NUMBER>
| (b) | If to Buyer or the Subsidiaries, addressed to: |
Josh Silverman
Quintel Holdings, Inc.
c/o Iroquois Capital Management LLC
205 East 42nd Street, 20 th Floor
New York, New York 10017
(347) 408-0969
or to such other address as any party hereto shall specify pursuant to this Section 8.2 from time to time.
7.3 Exercise of Rights and Remedies. Except as otherwise provided herein, no delay of or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.
7.4 Reformation and Severability. In case any provision of this Agreement shall be invalid, illegal or unenforceable, it shall, to the extent possible, be modified in such manner as to be valid, legal and enforceable but so as to most nearly retain the intent of the parties, and if such modification is not possible, such provision shall be severed from this Agreement, and in either case the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
7.5 Further Acts and Assurances. From and after the Closing, Seller and Buyer agree that each will act in a manner supporting compliance, including compliance by its Affiliates, with all of its obligations under this Agreement and, from time to time, shall, at the request of another party hereto, and without further consideration, cause the execution and delivery of such other instruments of conveyance, transfer, assignment or assumption and take such other action or execute such other documents as such party may reasonably request in order to complete the transactions contemplated by this Agreement.
7
7.6 Entire Agreement; Amendments. This Agreement contains the entire understanding of the parties relating to the subject matter contained herein. This Agreement cannot be amended or changed except through a written instrument signed by all of the parties hereto and by PrivateCo. No provisions of this Agreement or any rights hereunder may be waived by any party without the prior written consent of PrivateCo.
7.7 Assignment. No party may assign his, her or its rights or obligations hereunder, in whole or in part, without the prior written consent of the other parties.
7.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts or choice of laws thereof.
7.9 Counterparts. This Agreement may be executed in one or more counterparts, with the same effect as if all parties had signed the same document. Each such counterpart shall be an original, but all such counterparts taken together shall constitute a single agreement. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature page was an original thereof.
7.10 Section Headings and Gender. The section headings used herein are inserted for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other genders, whether used in the masculine, feminine or neuter and the singular shall include the plural, and vice versa, whenever and as often as may be appropriate.
7.11 Submission to Jurisdiction; Process Agent; No Jury Trial.
(a) Each party to the Agreement hereby submits to the jurisdiction of any state or federal court sitting in the Borough of Manhattan, City and State of New York, in any action arising out of or relating to this Agreement, and agrees that all claims in respect of the action may be heard and determined in any such court. Each party to the Agreement also agrees not to bring any action arising out of or relating to this Agreement in any other court. Each party to the Agreement agrees that a final judgment in any action so brought will be conclusive and may be enforced by action on the judgment or in any other manner provided at law or in equity. Each party to the Agreement waives any defense of inconvenient forum to the maintenance of any action so brought and waives any bond, surety or other security that might be required of any other party with respect thereto.
(b) EACH PARTY TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RIGHTS TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENTS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR ANY DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. The scope of this waiver is intended to be all encompassing of any and all actions that may be filed in any court
8
and that relate to the subject matter of the transactions, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. Each party to the Agreement hereby acknowledges that this waiver is a material inducement to enter into a business relationship and that they will continue to rely on the waiver in their related future dealings. Each party to the Agreement further represents and warrants that it has reviewed this waiver with its legal counsel, and that each knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED ORALLY OR IN WRITING, AND THE WAIVER WILL APPLY TO ANY AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING HERETO. In the event of commencement of any action, this Agreement may be filed as a written consent to trial by a court.
7.12 Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement. Any reference to any federal, state, local or foreign law will be deemed also to refer to law as amended and all rules and regulations promulgated thereunder, unless the context requires otherwise. The words include, includes, and including will be deemed to be followed by without limitation. The words this Agreement, herein, hereof, hereby, hereunder, and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which that party has not breached will not detract from or mitigate the fact that such party is in breach of the first representation, warranty or covenant.
7.13 Expenses. Each party hereto shall bear its expenses separately incurred in connection with this Agreement and with the performance of its obligations hereunder.
[Signature page follows this page.]
9
IN WITNESS WHEREOF, the Parties hereto have caused this Split-Off Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
| ATRINSIC, INC. | ||
| By: | /s/ Edward Gildea | |
| Name: | Edward Gildea | |
| Title: | President | |
| QUINTEL HOLDINGS, INC. | ||
| By: |
| |
| Name: |
| |
| Title: |
|
10
EXHIBIT A
Traffix, Inc.
Calling Card Co., Inc.
NL Corporation
Quintel Productions, Inc.
Quintel Financial Information Services, Inc.
Thanksmuch, Inc.
Group Lotto Inc.
Traffix Canada, Inc.
Txnet, Inc.
Imatchup.com, Inc.
HMU Services Inc.
Send Traffic, Inc.
Hot Rocket Acqusitions Corp.
Q121, Inc.
Creative Direct Marketing Inc.
Quintelco, Inc.
Quintel Psychic Zone, Inc.
Quintel Hair Products, Inc.
Multibuyer, Inc.
Quintelcomm, Inc.
Quintel Email Inc.
Traffix Club Marketing Inc.
Traffix Wireless, Inc.
Consumer Access Services, Inc.
World Web Access, Inc.
Prizedistributors.com, Inc.
New Motion Mobile, Inc.
Ringtone Channel Pty LTD
Infiknowledge, Ulc.
EZ Tracks LP
11
Exhibit 10.9
GENERAL RELEASE AGREEMENT
This GENERAL RELEASE AGREEMENT (this Agreement), dated as of February 12, 2016, is entered into by and among Atrinsic, Inc., a Delaware corporation (Seller) and Quintel Holdings, Inc. (the Buyer). In consideration of the mutual benefits to be derived from this Agreement, the covenants and agreements set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the execution and delivery hereof, the parties hereto hereby agree as follows:
1. Release and Waiver by Buyer. For and in consideration of the covenants and promises contained herein and in the Split-Off Agreement, the receipt and sufficiency of which are hereby acknowledged, Buyer, for itself and on behalf of the Subsidiaries (as defined in a Split-Off Agreement between the Seller and Buyer dated the date hereof (the Split-Off Agreement)), itself and its assigns, representatives and agents, if any, hereby covenants not to sue and fully, finally and forever completely releases Seller, along with its present, future and former officers, directors, stockholders, members, employees, agents, attorneys and representatives (collectively, the Seller Released Parties), of and from any and all claims, actions, obligations, liabilities, demands and/or causes of action, of whatever kind or character, whether now known or unknown, which Buyer or the Subsidiaries have or might claim to have against the Seller Released Parties for any and all injuries, harm, damages (actual and punitive), costs, losses, expenses, attorneys fees and/or liability or other detriment, if any, whenever incurred or suffered by Buyer or a Subsidiary arising from, relating to, or in any way connected with, any fact, event, transaction, action or omission that occurred or failed to occur on or prior to the date of the closing of the Merger (as defined in the Split-Off Agreement).
2. Additional Covenants and Agreements.
(a) Buyer, on the one hand, and Seller, on the other hand, waives and releases the other from any claims that this Agreement was procured by fraud or signed under duress or coercion so as to make this Agreement not binding.
(b) Each of the parties hereto acknowledges and agrees that the releases set forth herein do not include any claims the other party hereto may have against such party for such partys failure to comply with or breach of any provision in this Agreement or the Split-Off Agreement.
(c) Notwithstanding anything contained herein to the contrary, this Agreement shall not release or waive, or in any manner affect or void, any partys rights and obligations under the Split-Off Agreement.
3. Modification. This Agreement cannot be modified orally and can only be modified through a written document signed by both parties.
4. Severability. If any provision contained in this Agreement is determined to be void, illegal or unenforceable, in whole or in part, then the other provisions contained herein shall remain in full force and effect as if the provision that was determined to be void, illegal or unenforceable had not been contained herein.
5. Expenses. The parties hereto agree that each party shall pay its respective costs, including attorneys fees, if any, associated with this Agreement.
6. Further Acts and Assurances. Buyer agrees that it will act in a manner supporting compliance, including compliance by its Affiliates, with all of its obligations under this Agreement and, from time to time, shall, at the request of Seller, and without further consideration, cause the execution and delivery of such other instruments of release or waiver and take such other action or execute such other documents as such party may reasonably request in order to confirm or effect the releases, waivers and covenants contained herein, and, in the case of any claims, actions, obligations, liabilities, demands and/or causes of action that cannot be effectively released or waived without the consent or approval of other persons or entities that is unobtainable, to use its best reasonable efforts to ensure that the Seller Released Parties receive the benefits thereof to the maximum extent permissible in accordance with applicable law or other applicable restrictions, and shall perform such other acts which may be reasonably necessary to effectuate the purposes of this Agreement. For the purposes of this Agreement, an Affiliate is a person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, another specified person or entity.
7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts or choice of laws thereof.
8. Entire Agreement. This Agreement, together with the Split-Off Agreement, constitutes the entire understanding and agreement of Seller and Buyer and supersedes prior understandings and agreements, if any, among or between Seller and Buyer with respect to the subject matter of this Agreement, other than as specifically referenced herein. This Agreement does not, however, operate to supersede or extinguish any confidentiality, non-solicitation, non-disclosure or non-competition obligations owed by Buyer to Seller under any prior agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have executed this General Release Agreement as of the day and year first above written.
| ATRINSIC, INC. | ||
| By: | /s/ Edward Gildea | |
| Name: | Edward Gildea | |
| Title: | Chief Executive Officer | |
| QUINTEL HOLDINGS, INC. | ||
| By: |
| |
| Name: |
| |
| Title: |
|
Exhibit 10.10
INVESTOR NOTE EXCHANGE AGREEMENT
EXCHANGE AGREEMENT (this Agreement), dated as of February 12, 2016, by and among Atrinsic, Inc. (the Company) and each investor that is a signatory to this Agreement (together, the Investors).
WHEREAS:
A. Each Investor currently holds those secured convertible promissory notes as set forth below such Investors name on its signature page attached hereto (the Investor Notes).
B. The Company and the Investors desire to enter into this Agreement, pursuant to which, among other things, each Investor shall exchange (the Exchange) the Investor Notes, and all accrued but unpaid interest thereon, for such number of warrants (the form of which warrant is attached as Exhibit A) to purchase shares of the Companys Series B Preferred Stock, par value $0.000001 per share (the Series B Shares), as set forth below such Investors name on its signature page attached hereto (the Exchange Warrants) in reliance upon the exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933, as amended (the Securities Act).
C. The Company, Protagenic Acquisition Corp. (Acquisition Subsidiary), a wholly-owned subsidiary of the Company, and Protagenic Therapeutics, Inc. (PTI) have entered into a Merger Agreement (the Merger Agreement) whereby Acquisition Subsidiary shall merge with and into PTI with PTI remaining as the surviving entity after the merger, whereby the stockholders of PTI will receive Series B Shares, in exchange for all of the capital stock of PTI.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter set forth, the Company and the Investors hereby agree as follows:
1. EXCHANGE OF INVESTOR NOTES. Simultaneous with the Closing (as defined in the Merger Agreement), each Investor shall, and the Company shall, pursuant to Section 3(a)(9) of the Securities Act, exchange the Investor Notes, and all accrued but unpaid interest thereon, for the Exchange Warrants, without the payment of any additional consideration (the Exchange), as follows:
(a) In exchange for the Investor Notes, on the date hereof the Company shall record the Exchange Warrants in the name of Strategic Bio Partners, LLC, the designee of the Investors, without need for the Investors to deliver or cause to be delivered to the Company the Investor Notes. Immediately upon the issuance of the Exchange Warrants, the Investor Notes shall be cancelled.
(b) Other Documents. The Company and the Investors shall execute and/or deliver such other documents and agreements as are customary and reasonably necessary to effectuate the Exchange.
1
(c) UCC Termination Statements. Each Investor on the date hereof shall file UCC termination statements in all appropriate jurisdictions evidencing the termination of such Investors security interest in and to the assets of the Company.
2. REPRESENTATIONS AND WARRANTIES
(i) Investor Representations and Warranties. Each Investor hereby represents and warrants to the Company that, as of the date hereof, such Investor is the sole owner of the Investor Notes set out on such Investors signature page and transfers and delivers to the Company valid title to the Investor Notes, free from all preemptive or similar rights, taxes, liens, charges and other encumbrances. Each Investor further represents and warrants that immediately upon the exchange of the Investor Notes that it no longer has any rights under the First Amended and Restated Security Agreement among the Company such investor, each such dated as of December 18, 2014 and as subsequently amended, and it hereby relinquishes any such rights that it may otherwise have.
(ii) Company Representations and Warranties. The Company hereby represents and warrants to each Investor that, as of the date hereof,
| (a) | Authorization of Transaction. The Company has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder and thereunder. The execution and delivery by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Company. Specifically, the Exchange and the issuance of the Exchange Warrants is duly authorized and upon issuance in accordance with the terms of this Agreement, the Exchange Warrants will be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, taxes, liens, charges and other encumbrances with respect to the issue thereof. This Agreement has been duly and validly executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against it in accordance with its terms. |
| (b) | Organization, Qualification and Corporate Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to carry on the businesses in which it is engaged and to own and use the properties owned and used by it. |
| (c) | Noncontravention. Neither the execution and delivery by the Company of this Agreement, nor the consummation by the Company of the transactions contemplated hereby, will (a) conflict with or violate any provision of the articles or certificate of incorporation or bylaws of the Company, (b) require on the part of the Company any filing with, or permit, authorization, consent or approval of, any governmental entity, (c) conflict with, result in breach of, constitute (with or without due notice or lapse of time or both) a default |
2
| under, result in the acceleration of obligations under, create in any person any right to terminate, modify or cancel, or require any notice, consent or waiver under, any contract or instrument to which the Company is a party or by which either is bound or to which any of their assets are subject, (d) result in the imposition of any security interest upon any assets of the Company or (e) violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Company or any of their properties or assets. |
3. COVENANTS.
(a) Disclosure of Transactions and Other Material Information. On or before 5:30 p.m., New York time, on or before the fourth (4th) Business Day following the date of this Agreement, the Company shall file a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement in the form required by the Exchange Act and attaching the form of this Agreement (including all attachments, the 8-K Filing).
(b) Section 3(a)(9). The Company represents that the exchange of the Investor Notes for the Exchange Warrants is being made in reliance upon the exemption from registration provided by Section 3(a)(9) of the Securities Act and agrees not to take any position contrary to this Section 3(b). For the purposes of Rule 144 of the Securities Act, the Company acknowledges that the holding period of the Exchange Warrants may be tacked onto the holding period of the Investor Notes.
4. MISCELLANEOUS.
(a) Applicable Law; Venue.
(i) This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdictions other than those of the State of New York.
(ii) Each party hereto (a) submits to the jurisdiction of any state or federal court sitting in the County of New York in the State of New York in any action or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of such action or proceeding may be heard and determined in any such court, and (c) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each party waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto.
(b) Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.
3
(c) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
(d) Severability. In case any provision in or obligation hereunder shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
(e) Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the Investors and the Company have caused their respective signature pages to this Investor Note Exchange Agreement to be duly executed as of the date first written above.
| COMPANY | ||
| ATRINSIC, INC. | ||
| By: | /s/ Edward Gildea | |
| Name: | Edward Gildea | |
| Title: | Chief Executive Officer |
5
IN WITNESS WHEREOF, the Investors and the Company have caused their respective signature page to this Investor Note Exchange Agreement to be duly executed as of the date first written above.
| INVESTOR | ||
| Iroquois Master Fund Ltd. | ||
| By: |
| |
| Name: | Joshua Silverman | |
| Title: | Authorized Signatory |
Investor Notes:
| Principal Amount |
Issuance Date | |||
| $ | 87,500 | February 11, 2014 | ||
| $ | 45,000 | August 15, 2014 | ||
| $ | 75,000 | December 18, 2014 | ||
| $ | 50,000 | May 15, 2015 | ||
| $ | 25,000 | September 3, 2015 | ||
| $ | 25,000 | October 30, 2015 |
Number of Exchange Warrants: 147,972
6
IN WITNESS WHEREOF, the Investors and the Company have caused their respective signature page to this Investor Note Exchange Agreement to be duly executed as of the date first written above.
| INVESTOR | ||
| Hudson Bay Master Fund Ltd. | ||
| By: |
| |
| Name: | ||
| Title: | Authorized Signatory |
Investor Notes:
| Principal |
Issuance Date | |||
| $ | 87,500 | February 11, 2014 | ||
| $ | 45,000 | August 15, 2014 | ||
| $ | 75,000 | December 18, 2014 | ||
| $ | 50,000 | May 15, 2015 | ||
| $ | 25,000 | September 3, 2015 | ||
| $ | 25,000 | October 30, 2015 |
Number of Exchange Warrants: 147,973
7
Exhibit A
Form of Exchange Warrants
8
Exhibit 10.11
PREFERRED STOCK EXCHANGE AGREEMENT
EXCHANGE AGREEMENT (this Agreement), dated as of February 12, 2016, by and among Atrinsic, Inc. (the Company) and each investor that is a signatory to this Agreement (together, the Investors).
WHEREAS:
A. Each Investor currently holds that number of shares of Series A Preferred Stock of the Company as set forth below such Investors name on its signature page attached hereto (the Investor Series A Shares).
B. The Company and the Investors desire to enter into this Agreement, pursuant to which, among other things, each Investor shall exchange (the Exchange) the Investor Series A Shares for such number of shares of the Company Series B Preferred Stock as set forth below such Investors name on its signature page attached hereto (the Exchange Shares) in reliance upon the exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933, as amended (the Securities Act).
C. The Company, Protagenic Acquisition Corp. (Acquisition Subsidiary), a wholly-owned subsidiary of the Company, and Protagenic Therapeutics, Inc. (PTI) have entered into a Merger Agreement (the Merger Agreement) whereby Acquisition Subsidiary shall merge with and into PTI with PTI remaining as the surviving entity after the merger, whereby the stockholders of PTI will receive Company Series B Preferred Stock, in exchange for all of the capital stock of PTI.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter set forth, the Company and the Investors hereby agree as follows:
1. EXCHANGE OF INVESTOR SERIES A SHARES. Simultaneous with the Closing (as defined in the Merger Agreement), each Investor shall, and the Company shall, pursuant to Section 3(a)(9) of the Securities Act, exchange the Investor Series A Shares for the Exchange Shares, without the payment of any additional consideration (the Exchange), as follows:
(a) In exchange for the Investor Series A Shares, on the date hereof the Company shall cause the Companys transfer agent to record the Exchange Shares in the name of Strategic Bio Partners, LLC, the designee of the Investors, without need for the Investors to deliver or cause to be delivered to the Company the Investor Series A Shares. Immediately upon the issuance of the Exchange Shares, the Investor Series A Shares shall be cancelled.
(b) Other Documents. The Company and the Investors shall execute and/or deliver such other documents and agreements as are customary and reasonably necessary to effectuate the Exchange.
1
2. REPRESENTATIONS AND WARRANTIES
(i) Investor Representations and Warranties. Each Investor hereby represents and warrants to the Company that, as of the date hereof, such Investor is the sole owner of the Investor Series A Shares set out on such Investors signature page and transfers and delivers to the Company valid title to the Investor Series A Shares, free from all preemptive or similar rights, taxes, liens, charges and other encumbrances.
(ii) Company Representations and Warranties. The Company hereby represents and warrants to each Investor that, as of the date hereof,
| (a) | Authorization of Transaction. The Company has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder and thereunder. The execution and delivery by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Company. Specifically, the Exchange and the issuance of the Exchange Shares is duly authorized and upon issuance in accordance with the terms of this Agreement, the Exchange Shares will be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, taxes, liens, charges and other encumbrances with respect to the issue thereof. This Agreement has been duly and validly executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against it in accordance with its terms. |
| (b) | Organization, Qualification and Corporate Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to carry on the businesses in which it is engaged and to own and use the properties owned and used by it. |
| (c) | Noncontravention. Neither the execution and delivery by the Company of this Agreement, nor the consummation by the Company of the transactions contemplated hereby, will (a) conflict with or violate any provision of the articles or certificate of incorporation or bylaws of the Company, (b) require on the part of the Company any filing with, or permit, authorization, consent or approval of, any governmental entity, (c) conflict with, result in breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the acceleration of obligations under, create in any person any right to terminate, modify or cancel, or require any notice, consent or waiver under, any contract or instrument to which the Company is a party or by which either is bound or to which any of their assets are subject, (d) result in the imposition of any security interest upon any assets of the Company or (e) violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Company or any of its properties or assets. |
2
3. COVENANTS.
(a) Disclosure of Transactions and Other Material Information. On or before 5:30 p.m., New York time, on or before the fourth (4th) Business Day following the date of this Agreement, the Company shall file a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement in the form required by the Exchange Act and attaching the form of this Agreement (including all attachments, the 8-K Filing).
(b) Section 3(a)(9). The Company represents that the exchange of the Investor Series A Shares for the Exchange Shares is being made in reliance upon the exemption from registration provided by Section 3(a)(9) of the Securities Act and agrees not to take any position contrary to this Section 3(b). For the purposes of Rule 144 of the Securities Act, the Company acknowledges that the holding period of the Exchange Shares may be tacked onto the holding period of the Investor Series A Shares.
4. MISCELLANEOUS.
(a) Applicable Law; Venue.
(i) This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdictions other than those of the State of New York.
(ii) Each party hereto (a) submits to the jurisdiction of any state or federal court sitting in the County of New York in the State of New York in any action or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of such action or proceeding may be heard and determined in any such court, and (c) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each party waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto.
(b) Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.
(c) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
(d) Severability. In case any provision in or obligation hereunder shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
3
(e) Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the Investors and the Company have caused their respective signature pages to this Preferred Stock Exchange Agreement to be duly executed as of the date first written above.
| COMPANY | ||
| ATRINSIC, INC. | ||
| By: | /s/ Edward Gildea | |
| Name: | Edward Gildea | |
| Title: | President |
5
IN WITNESS WHEREOF, the Investors and the Company have caused their respective signature page to this Preferred Stock Exchange Agreement to be duly executed as of the date first written above.
| INVESTOR | ||
| Iroquois Master Fund Ltd. | ||
| By: |
| |
| Name: | Joshua Silverman | |
| Title: | Authorized Signatory |
Aggregate Principal Amount of Series A Preferred Stock: 2,287,165,699
Number of Exchange Shares: 147,904
6
IN WITNESS WHEREOF, the Investors and the Company have caused their respective signature page to this Exchange Agreement to be duly executed as of the date first written above.
| INVESTOR | ||
| Hudson Bay Master Fund Ltd. | ||
| By: |
| |
| Name: | ||
| Title: | Authorized Signatory |
Aggregate Principal Amount of Series A Preferred Stock: 2,312,834,301
Number of Exchange Shares: 149,564
7
Exhibit 10.12
| EMPLOYEE: PTCI CONTACT: EFFECTIVE DATE: TERMINATION DATE: |
Robert Ziroyan Garo H Armen, January 01, 2014 December 31, 2015 |
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (together with the Business Terms Exhibit, the Agreement) made as of December 26, 2011 (the Effective Date) is between Protagenic Therapeutics Canada (2006) Inc., a Ontario Corporation Number 660068- 9 with a office address at 22 Elkhorn Drive, Suite 424, North York, Ontario, M2K 1J4, Canada; (PTCI) and Dr. Robert Ziroyan having an home address at 22 Elkhorn Drive, Apt # 424, North York, ON, M2K 1J4, Canada (Tel:+416.500.3305 (Employee). Protagenic Therapeutics Canada Inc. (PTCI) desires to have the benefit of Employees knowledge and experience, and Employee desires to provide employment services to PTCI, all as provided in this Agreement. Employee will be working on a full time basis as a President and Chief Operating Officer. It should be noted that the Protagenic Therapeutics Canada (2006) Inc. is subsidiary of Protagenic Therapeutics, Inc. Protagenic Therapeutics, Inc. is incorporated in the state of Delaware, U.S.A.
| 1. | Definitions. The following terms have the meanings set forth below: |
| 1.1 | Business Terms Exhibit means the business and financial terms applicable to the Employment Services (as defined below) set forth in the attached exhibit, as may be amended from time to time by written agreement of the parties. |
| 1.2 | Confidential Information means any non-public scientific, technical, financial or business information possessed or obtained by, developed for or given to PTCI which is treated by PTCI as confidential or proprietary, whether or not labeled or identified as Confidential. Confidential Information will include, without limitation, information prepared in full or in part for PTCI by Employee, Materials and Developments (defined below), the terms of this Agreement and information about or belonging to PTCIs suppliers, licensors, licensees, partners, affiliates, customers, potential customers or others. |
| 1.3 | Developments means concepts, inventions, know-how, techniques, improvements, writings, data, computer software, and Materials (whether or not patentable or subject to copyright or trade secret protection) that Employee makes, conceives or reduces to practice, either alone or jointly with others, and that result from the performance of the Employment Services, and/or result from use of PTCIs Confidential Information. |
| 1.4 | Materials means all materials furnished by PTCI, all materials developed by Employee in connection with the Employment Services, and any materials, the cost of which are reimbursed to Employee by PTCI hereunder. Materials include, in the case of biological materials, all progeny and unmodified derivatives of those materials, and in the case of chemical materials, all analogs, formulations, mixtures and compositions of those materials. |
| 1.5 | Term means the term of this Agreement as set forth in the Business Terms Exhibit. |
| 2. | Employment Services. PTCI retains Employee and Employee agrees to provide Employment services to PTCI as it may from time to time reasonably request and as specified in the Business Terms Exhibit (the Employment Services). Any changes to the Employment Services (and any related compensation adjustments) must be agreed to in writing between Employee and PTCI prior to commencement of the changes. |
Protagenic Therapeutics Inc., 22 Elkhorn Drive, Suite 424, North York, ON, M2K 1J4, Canada
www.protagenic.com
1
| 3. | Employment Relationship. Employee agrees, as a condition of this Agreement, to the following terms: |
| 3.1 | Compliance. |
| a. | With Institution Policies. PTCI recognizes that if the Employee becomes a faculty member at or employee of a university or hospital (Institution), then the Employee is responsible for ensuring that any Employment agreement Employee enters into with industry is not in conflict with the patent, Employment or other policies of Institution. If Employee is required by Employees Institution to disclose to it any proposed agreements with industry, Employee has made that disclosure. If Institutions prior approval of this Agreement is required by Institution policies, Employee has obtained that approval. |
| b. | With Policies and Regulations. In performing the Employment Services, Employee will comply with all business conduct, regulatory, and health and safety guidelines or regulations established by PTCI or any governmental authority with respect to PTCIs business. |
| c. | Absence of Debarment. Employee represents that Employee has not been debarred, and to the best of Employees knowledge, is not under consideration to be debarred, by the Health of Canada or from working in or providing services to any pharmaceutical or biotechnology company under the Generic Drug Enforcement Act of 1992. |
| 3.2 | Absence of Restrictions. Employee is under no contractual or other obligation or restriction which is inconsistent with Employees execution of this Agreement or the performance of the Employment Services. During the Term, Employee will not enter into any agreement, either written or oral, in conflict with Employees obligations under this Agreement. Employee will arrange to provide the Employment Services in such manner and at such times so that they will not conflict with Employees responsibilities under any other agreement, arrangement or understanding or pursuant to any employment relationship Employee has at any time with any third party (including, without limitation, Institution). |
| 3.3 | Confidential Information of Third Parties. The performance of the Employment Services does not and will not breach any agreement which obligates Employee to keep in confidence any confidential or proprietary information of any third party or to refrain from competing, directly or indirectly, with the business of any third party. Employee will not disclose to PTCI any confidential or proprietary information of any third parties. |
| 3.4 | Competitive Activities. During the Term and for a period of twelve (12) months thereafter, Employee will not provide Employment services to any business or entity developing a product or sponsoring a project which competes with a product being developed or project being sponsored by PTCI for which Employee is providing Employment Services. It will not be considered a competitive activity for Employee to be a member of the faculty or staff of a university, college or other educational or non-profit research institution. |
| 4. | Compensation. As full consideration for the Employment Services rendered under this Agreement, PTCI agrees to pay Employee and reimburse expenses as set forth in the Business Terms Exhibit. |
| 5. | Developments. |
| 5.1 | Ownership. All Developments will be the exclusive property of PTCI. All Developments that are Works Made for Hire as defined in the Canadian and U.S. Copyright Act and other copyrightable works will be deemed, upon creation, to be assigned to PTCI. Employee will promptly and fully disclose to PTCI all Developments. Employee will keep and maintain complete written records of all Developments and of all work or investigations done or carried out by Employee. Employee may keep one (1) copy of these records in Employees files solely for reference purposes. |
Protagenic Therapeutics Inc., 22 Elkhorn Drive, Suite 424, North York, ON, M2K 1J4, Canada
www.protagenic.com
2
| Employee assigns and agrees to assign to PTCI all of Employees right, title and interest in and to any Developments. During and after the Term, Employee will cooperate fully in obtaining patent and other proprietary protection for the Developments, all in the name of PTCI and at PTCIs cost and expense, and, without limitation, will execute and deliver all requested applications, assignments and other documents, and take such other measures as PTCI will reasonably request, in order to perfect and enforce PTCIs rights in the Developments. Employee appoints PTCI its attorney to execute and deliver any such documents on Employees behalf in the event Employee fails to do so. |
| 5.2 | Agreement with Institution. This Agreement is made subject to the understanding that Employee, if becoming an affiliated with an Institution, may be required to fulfill certain obligations, including teaching, directing laboratory operations, conducting research, and publishing work. It is further understood that Employee may have signed an agreement concerning inventions with Institution, under which Employee may be obligated to assign to Institution certain inventions which arise out of or otherwise relate to Employees work at or for Institution or from Employees use of certain of its facilities or intellectual property. In performing the Employment Services, Employee agrees not to utilize Institution facilities or intellectual property if the result of that use is that any Development will not be assignable solely to PTCI. |
| 5.3 | Work at Third Party Facilities. Unless covered by an appropriate agreement between any third party and PTCI, Employee will not engage in any activities or use any third party facilities or intellectual property in performing the Employment Services which could result in claims of ownership to any Developments being made by a third party. |
| 6. | Confidentiality; Publication. |
| 6.1 | Confidentiality. During the Term and for a period of five (5) years thereafter, Employee will not publish, disseminate or otherwise disclose, use for Employees own benefit or for the benefit of a third party, any Confidential Information. Employee will exercise all reasonable precautions to physically protect the confidentiality of the Confidential Information. Employee may disclose the Confidential Information to a governmental authority or by order of a court of competent jurisdiction, provided that the disclosure is subject to all applicable governmental or judicial protection available for like material and reasonable advance notice is given to PTCI. The obligations of non-disclosure will not apply to information which (a) was known to Employee at the time it was disclosed, other than by previous disclosure by PTCI, as evidenced by Employees written records at the time of disclosure; (b) is at the time of disclosure or later becomes publicly known under circumstances involving no breach of this Agreement; or (c) is lawfully and in good faith made available to Employee by a third party who did not derive it, directly or indirectly, from PTCI. |
| 6.2 | Publication. Employee agrees to submit to PTCI a copy of any proposed manuscript or other materials to be published or otherwise publicly disclosed which contain information or any discussion relating to PTCI or the Employment Services, at least thirty (30) days prior to submission for publication or disclosure, to enable PTCI to determine if patentable Developments or any Confidential Information of PTCI would be disclosed. Employee will cooperate with PTCI in this respect and will delete from the manuscript or other disclosure any Confidential Information if requested by PTCI, and will assist PTCI in filing for patent protection for any patentable Developments described in those documents, prior to publication or other disclosure. |
| 7. | Expiration/Termination. |
| 7.1 | Term. This Agreement will commence on the Effective Date and continue for the Term, unless sooner terminated pursuant to the express terms of this Section 7 or extended by mutual written agreement of the parties. |
Protagenic Therapeutics Inc., 22 Elkhorn Drive, Suite 424, North York, ON, M2K 1J4, Canada
www.protagenic.com
3
| 7.2 | Termination for Breach. If either party breaches in any material respect any of its material obligations under this Agreement, in addition to any other right or remedy, the non-breaching party may terminate this Agreement in the event that the breach is not cured within thirty (30) days after receipt by that party of written notice of the breach. |
| 7.3 | Termination by PTCI. Either party may terminate this Agreement (a) immediately at any time upon written notice to the other party in the event of a breach of this Agreement by the other party which cannot be cured (i.e. breach of the confidentiality obligations) and/or (b) at any time without cause upon not less than forty five (45) days prior written notice to the other party. |
| 7.4 | Severance Compensation and Termination Protection. |
Termination without Cause. Under this employment agreement, if PTCI terminates Dr. Robert Ziroyans employment agreement without cause or if he terminates his employment for good reason not involving a change of control (as defined below), he is entitled to a lump sum payment of 12 months of base salary plus 150% of the higher of their target incentive bonus for that year or their last actual incentive bonus, as well as coverage under the medical and dental plans for 12 months following the date of termination, a lump sum payment of $10,000 for outplacement assistance, a gross-up for any taxes with respect to such outplacement assistance payment, a gross-up payment for any taxes, interest and penalties imposed by Canada Revenue Agency, the acceleration of vesting of any unvested stock options.
Under Dr. Ziroyans employment agreement, good reason means the occurrence of any of the following events: (i) failure to continue Dr. Ziroyan in the position of Chief Operating Officer, (ii) a material and substantial diminution in the nature or scope of his responsibilities, (iii) a material reduction in base salary or benefits, or (iv) relocation of Dr. Ziroyans principal office, without his prior consent, to a location more than 50 kilometers away. The principal place of business for Dr. Ziroyan is Toronto, Ontario.
Change of control: Under this employment agreement upon a change of control: 50% of any of Dr. Ziroyans outstanding unvested stock options as of the change of control date become vested and exercisable. If the Robert Ziroyan is terminated or resigns for good reason as a result of the change of control, the remaining 50% vests. If a change of control occurs and, within 18 months, PTCI terminates the employees employment agreement without cause or if the employee terminates his employment for good reason, the employee is entitled to: a lump sum payment of 18 months of base salary plus 150% of the higher of their target incentive bonus for that year or their last actual incentive bonus, coverage under the medical and dental plans for 12 months following the date of termination, a lump sum payment of $10,000 for outplacement assistance, a gross-up for any taxes with respect to such outplacement assistance payment, a gross-up payment for any taxes, interest and penalties imposed by Canada Revenue Agency, and acceleration of vesting for all unvested stock options as of the date of termination. The principal place of business for Dr. Ziroyan is Toronto, Ontario.
| 7.5 | Effect of Expiration/Termination. Upon expiration or termination, neither PTCI nor Employee will have any further obligations under this Agreement, except (a) the liabilities accrued through the date of expiration or termination, and (b) the terms and obligations under sections 1, 3.4, 5, 6, 7.4 and 8, will survive. Upon expiration or termination, and in any case upon PTCIs request, Employee will promptly return to PTCI all Confidential Information and copies thereof, except for one (1) copy which Employee may retain solely for archival purposes. |
Protagenic Therapeutics Inc., 22 Elkhorn Drive, Suite 424, North York, ON, M2K 1J4, Canada
www.protagenic.com
4
| 8. | Miscellaneous. |
| 8.1 | Remuneration. |
Taxes. Employer shall pay, on Employees behalf, all applicable income taxes (Federal and provincial) and fees imposed by Canada Pension Plan and Employment Insurance. Employee will provide PTCI with his Social Insurance number, as applicable.
Vacation. Employee shall be entitled to four weeks paid vacation time per annum. Such vacation request shall be subject to prior approval and authorization by the Chairman of the Board of Directors.
Travel Expenses. Employee will be reimbursed for all travel and other out-of-pocket business expenses (subject to prior approval) actually and properly incurred in connection with his obligations under this Agreement. For all such expenses, Employee shall furnish PTI with the corresponding reports and vouchers, as and when PTCI requires.
Expenses. Employee will be reimbursed for the expenses related to the implementation of his obligations under this Agreement such as communications (wireless phone and internet). Also, Employee will be reimbursed for the complementary and dental health care services provided. For all such expenses, Employee will furnish PTI with the corresponding reports and vouchers, as and when PTCI requires. Employee will also be reimbursed up to $510 per month to cover rent cost associated with office rent.
| 8.2 | Use of Name. Employee consents to the use by PTCI of Employees name and likeness in written materials and oral presentations to current or prospective customers, partners, investors or others, provided that the materials or presentations accurately describe the nature of Employees relationship with or contribution to PTCI. |
| 8.3 | Notices. All notices must be written and sent to the address or facsimile number identified in this Agreement or a subsequent notice. All notices must be given (a) by personal delivery, with receipt acknowledged; (b) by facsimile followed by hard copy delivered by the methods under (c) or (d); (c) by prepaid certified or registered mail, return receipt requested; or (d) by prepaid recognized next business day delivery service. Notices will be effective upon receipt or as stated in the notice. Notices to PTCI must be marked Attention: Chairman of the Board of the Directors. |
| 8.4 | Assignment. This Agreement is a personal services agreement, and the rights and obligations hereunder, may not be assigned or transferred by either party without the prior written consent of the other party, except that PTCI may assign this Agreement, in whole or in part, to an affiliated company or in connection with the merger, consolidation, sale or transfer of all or substantially all of its business to which this Agreement relates. |
| 8.5 | Entire Agreement. This Agreement constitutes the entire agreement of the parties with regard to its subject matter, and supersedes all previous written or oral representations, agreements and understandings between PTCI and Employee. |
| 8.6 | No Modification. This Agreement may be changed only by a writing signed by both parties. |
| 8.7 | Severability. Each provision in this Agreement is independent and severable from the others, and no provision will be rendered unenforceable as a result of any other provision(s) being held to be invalid or unenforceable in whole or in part. If any provision of this Agreement is invalid, unenforceable or too broad, that provision will be appropriately limited and reformed to the maximum extent permitted by applicable law. |
Protagenic Therapeutics Inc., 22 Elkhorn Drive, Suite 424, North York, ON, M2K 1J4, Canada
www.protagenic.com
5
| 8.8 | Applicable Law. This Agreement will be governed by, and construed in accordance with, the laws of the Province of Ontario, and the laws of Canada applicable in Ontario without regard to any choice of law principle that would dictate the application of the law of another jurisdiction. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement will be commenced only in a court of the Province of Ontario (or, if appropriate, a federal court located within the Province of Ontario), and PTCI and Employee each consents to the jurisdiction of such a court. |
| 8.9 | Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which shall constitute one and the same agreement. |
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the Effective Date.
| PROTAGENIC THERAPEUTICS, INC. PROTAGENIC THERAPEUTICS CANADA (2006), INC. | ||
| By: | /s/ Robert Ziroyan | |
| Name: Robert Ziroyan | ||
| Title: President & Operations Manager | ||
| By: | /s/ Garo H. Armen | |
| Name: Garo. H Armen | ||
| Title: Chairman of the Board of Directors |
Protagenic Therapeutics Inc., 22 Elkhorn Drive, Suite 424, North York, ON, M2K 1J4, Canada
www.protagenic.com
6
BUSINESS TERMS EXHIBIT
Employment Agreement with Dr. Robert Ziroyan
| 1. | Scope of Work/Duties and Responsibilities |
Under the direct supervision of the PTI Chairman of the Board of the Directors the Employee will:
Strategy & Operations:
| | in coordination with the chairman, develop, communicate and implement the companys overall strategy and operating plan; |
| | develop and implement appropriate business plan; |
| | prepare progress reports, budgets and workplans as requested by the chairman of the board; |
Corporate:
| | support the board of the directors and the senior management in maintaining the relation with investors, venture capitalists and donor community; |
| | support the senior management in advocating and promoting the company products through public relation; means of information technology use; |
| | support the senior management in updating information contained at the business plan, power point presentation, fact sheets and website; |
Financials:
| | prepare annual, quarterly budgets and relevant financial statements; |
| | manage various budgetary constraints or targets; regularly (monthly) monitor and help manage the company and various departmental budgets, expenses, cash flow; |
| | establish financial forecasts for the company to ensure alignment with board-approved company objectives; |
| | clear disbursement requests and final reception of goods, works or services and for the corresponding closing of a contract; |
Operations:
| | provide administrative, infrastructure, financial support in implementation of day to day company and various project activities; |
| | provide operational support and assistance to consultants and researchers hired by the company; |
| | ensure efficient operation of administrative structures; |
Contracts:
| | work actively with legal and intellectual property department to prepare various contracts and agreements: employment, service, engagement, corporative. |
| | in coordination with the chairman will be responsible for recruitment of employees, consultants, contract researching and service providing organizations. |
| 2. | Accountability and Reporting |
The President and Chief Operating Officer will be accountable to the Chairman of the Board of the Directors.
| 3. | Compensation. |
As full compensation for the Employment Services, PTCI will pay the Employee, an annual salary of ninety eight thousand and one hundred Canadian Dollars (CA$ 98,100), payable on a monthly basis. In case of well performance the Employee may also be entailed at bonus to be calculated at 30% of annual the Bonus to be authorized and approved by the Chairman of the Board of the Directors.
| 4. | Term. |
This Agreement will be for an initial term of two years, ending December 31, 2015, beginning on the Effective Date (the Term), and may be extended for additional periods, at PTCIs and with Employees consent.
Protagenic Therapeutics Inc., 22 Elkhorn Drive, Suite 424, North York, ON, M2K 1J4, Canada
www.protagenic.com
7
Exhibit 10.13
AMENDMENT TO THE CONSULTING AGREEMENT
| CONSULTANT:
Original Contract Date:
Duration:
Amendement No: |
Dr. Dalia Barsyte
January 01, 2009
January 01, 2015 - December 31, 2015
07 (dated of January 30, 2015) |
This amendment is issued:
| 1. | To extend the duration of the contact for one more year, whereas Protagenic Therapeutics Canada (2006) Inc. will pay the consultant as per following schedule and amount of work agreed: |
| | CA$ 1,000 (one thousand Canadian dollars) for 32 hours of work for the month of January, 2015. |
| | CA$ 1,000 (one thousand Canadian dollars) for 32 hours of work for the month of February, 2015. |
| | CA$ 1,000 (one thousand Canadian dollars) for 32 hours of work for the month of March, 2015. |
| | CA$ 1,000 (one thousand Canadian dollars) for 32 hours of work for the month of April, 2015. |
| | CA$ 1,000 (one thousand Canadian dollars) for 32 hours of work for the month of May, 2015. |
| | CA$ 1,000 (one thousand Canadian dollars) for 32 hours of work for the month of June, 2015. |
| | CA$ 1,000 (one thousand Canadian dollars) for 32 hours of work for the month of July, 2015. |
| | CA$ 1,000 (one thousand Canadian dollars) for 32 hours of work for the month of August, 2015. |
| | CA$ 1,000 (one thousand Canadian dollars) for 32 hours of work for the month of September, 2015. |
| | CA$ 1,000 (one thousand Canadian dollars) for 32 hours of work for the month of October, 2015 |
| | CA$ 1,000 (one thousand Canadian dollars) for 32 hours of work for the month of November, 2015. |
| | CA$ 1,000 (one thousand Canadian dollars) for 32 hours of work for the month of December, 2015. |
| 2. | All other terms of the original contract shall remain unchanged. |
| PROTAGENIC THERAPEUTICS CANADA (2006) INC. | ||
| By: | ||
| Print Name: | Robert Ziroyan | |
| Title: | President & Chief Operating Officer | |
| Signature: | /s/ Robert Ziroyan | |
| By: Dr. Dalia Barsyte | ||
| Print Name: | Dalia Barsyte | |
| Signature: | /s/ Dalia Barsyte |
Protagenic Therapeutics Canada (2006) Inc., 22 Elkhorn Drive, Suite 424, Toronto, Ontario, M2K 1J4, Canada;
e<EMAIL_ADDRESS>www.protagenic.com
1
| CONSULTANT:
EFFECTIVE DATE:
TERMINATION DATE: |
Dr. Dalia Barsyte
January 01, 2009
December 31, 2009 |
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (together with the Business Terms Exhibit, the Agreement) made as of January 01, 2009 (the Effective Date) is between Protagenic Therapeutics Canada (2006) Inc., Corporation Number 660068- 9 a Ontario corporation with a office address at 2 Carlton Street, Suite No.1307, Toronto, Ontario, M5B 1J3, Canada (PTCI) and Dr. Dalia Barsyte having a home address at 149 Baker street, Stouffville, Ontario, L4A 1K6, Canada (Tel:<PHONE_NUMBER> (Consultant). PTCI desires to have the benefit of Consultants knowledge and experience, and Consultant desires to provide consulting services to PTCI, all as provided in this Agreement.
| 1. | Definitions. The following terms have the meanings set forth below: |
| 1.1 | Business Terms Exhibit means the business and financial terms applicable to the Consulting Services (as defined below) set forth in the attached exhibit, as may be amended from time to time by written agreement of the parties. |
| 1.2 | Confidential Information means any non-public scientific, technical, financial or business information possessed or obtained by, developed for or given to PTCI which is treated by PTCI as confidential or proprietary, whether or not labeled or identified as Confidential. Confidential Information will include, without limitation, information prepared in full or in part for PTCI by Consultant, Materials and Developments (defined below), the terms of this Agreement and information about or belonging to PTCIs suppliers, licensors, licensees, partners, affiliates, customers, potential customers or others. |
| 1.3 | Developments means concepts, inventions, know-how, techniques, improvements, writings, data, computer software, and Materials (whether or not patentable or subject to copyright or trade secret protection) that Consultant makes, conceives or reduces to practice, either alone or jointly with others, and that result from the performance of the Consulting Services, and/or result from use of PTCIs Confidential Information. |
| 1.4 | Materials means all materials furnished by PTCI, all materials developed by Consultant in connection with the Consulting Services, and any materials, the cost of which are reimbursed to Consultant by PTCI hereunder. Materials include, in the case of biological materials, all progeny and unmodified derivatives of those materials, and in the case of chemical materials, all analogs, formulations, mixtures and compositions of those materials. |
| 1.5 | Term means the term of this Agreement as set forth in the Business Terms Exhibit. |
| 2. | Consulting Services. PTCI retains Consultant and Consultant agrees to provide consulting services to PTCI as it may from time to time reasonably request and as specified in the Business Terms Exhibit (the Consulting Services). Any changes to the Consulting Services (and any related compensation adjustments) must be agreed to in writing between Consultant and PTCI prior to commencement of the changes. |
| 3. | Consulting Relationship. Consultant agrees, as a condition of this Agreement, to the following terms: |
Protagenic Therapeutics Inc., 2 Carlton Street, Suite 1307, Toronto, Ontario, M5B1J3, Canada;
e<EMAIL_ADDRESS>www.protagenic.com
1
| 3.1 | Compliance. |
| a. | With Institution Policies. PTCI recognizes that if the Consultant becomes a faculty member at or employee of a university or hospital (Institution), then the Consultant is responsible for ensuring that any consulting agreement Consultant enters into with industry is not in conflict with the patent, consulting or other policies of Institution. If Consultant is required by Consultants Institution to disclose to it any proposed agreements with industry, Consultant has made that disclosure. If Institutions prior approval of this Agreement is required by Institution policies, Consultant has obtained that approval. |
| b. | With Policies and Regulations. In performing the Consulting Services, Consultant will comply with all business conduct, regulatory, and health and safety guidelines or regulations established by PTCI or any governmental authority with respect to PTCIs business. |
| c. | Absence of Debarment. Consultant represents that Consultant has not been debarred, and to the best of Consultants knowledge, is not under consideration to be debarred, either by the Health Canada or by the U.S. Food and Drug Administration from working in or providing services to any pharmaceutical or biotechnology company under the Generic Drug Enforcement Act of 1992. |
| 3.2 | Absence of Restrictions. Consultant is under no contractual or other obligation or restriction which is inconsistent with Consultants execution of this Agreement or the performance of the Consulting Services. During the Term, Consultant will not enter into any agreement, either written or oral, in conflict with Consultants obligations under this Agreement. Consultant will arrange to provide the Consulting Services in such manner and at such times so that they will not conflict with Consultants responsibilities under any other agreement, arrangement or understanding or pursuant to any employment relationship Consultant has at any time with any third party (including, without limitation, Institution). |
| 3.3 | Confidential Information of Third Parties. The performance of the Consulting Services does not and will not breach any agreement which obligates Consultant to keep in confidence any confidential or proprietary information of any third party or to refrain from competing, directly or indirectly, with the business of any third party. Consultant will not disclose to PTCI any confidential or proprietary information of any third parties. |
| 3.4 | Competitive Activities. During the Term, Consultant will not provide consulting services to any business or entity developing a product or sponsoring a project which competes with a product being developed or project being sponsored by PTCI for which Consultant is providing Consulting Services. For a period of twelve (12) months after the Term, Consultant will not provide services to any business or entity, other than PTCI, developing a product or sponsoring a project that is directly related to PTCI IP portfolio at the beginning of the Term. It will not be considered a competitive activity for Consultant to be a member of the faculty or staff of a university, college or other educational or non-profit research institution. |
| 4. | Compensation. As full consideration for the Consulting Services rendered under this Agreement, PTCI agrees to pay Consultant and reimburse expenses as set forth in the Business Terms Exhibit. |
| 5. | Developments. |
| 5.1 | Ownership. All Developments will be the exclusive property of PTCI. All Developments that are Works Made for Hire as defined both by the Canadian and the U.S. Copyright Act and other copyrightable works will be deemed, upon creation, to be assigned to PTCI. Consultant will promptly and fully disclose to PTCI all Developments. Consultant will keep and maintain |
Protagenic Therapeutics Inc., 2 Carlton Street, Suite 1307, Toronto, Ontario, M5B1J3, Canada;
e<EMAIL_ADDRESS>www.protagenic.com
2
| complete written records of all Developments and of all work or investigations done or carried out by Consultant. Consultant may keep one (1) copy of these records in Consultants files solely for reference purposes. Consultant assigns and agrees to assign to PTCI all of Consultants right, title and interest in and to any Developments. During and after the Term, Consultant will cooperate fully in obtaining patent and other proprietary protection for the Developments, all in the name of PTCI and at PTCIs cost and expense, and, without limitation, will execute and deliver all requested applications, assignments and other documents, and take such other measures as PTCI will reasonably request, in order to perfect and enforce PTCIs rights in the Developments. Consultant appoints PTCI its attorney to execute and deliver any such documents on Consultants behalf in the event Consultant fails to do so. |
| 5.2 | Agreement with Institution. This Agreement is made subject to the understanding that Consultant, if becoming an affiliated with an Institution, may be required to fulfill certain obligations, including teaching, directing laboratory operations, conducting research, and publishing work. It is further understood that Consultant may have signed an agreement concerning inventions with Institution, under which Consultant may be obligated to assign to Institution certain inventions which arise out of or otherwise relate to Consultants work at or for Institution or from Consultants use of certain of its facilities or intellectual property. In performing the Consulting Services, Consultant agrees not to utilize Institution facilities or intellectual property if the result of that use is that any Development will not be assignable solely to PTCI. |
| 5.3 | Work at Third Party Facilities. Unless covered by an appropriate agreement between any third party and PTCI, Consultant will not engage in any activities or use any third party facilities or intellectual property in performing the Consulting Services which could result in claims of ownership to any Developments being made by a third party. |
| 6. | Confidentiality; Publication. |
| 6.1 | Confidentiality. During the Term and for a period of five (5) years thereafter, Consultant will not publish, disseminate or otherwise disclose, use for Consultants own benefit or for the benefit of a third party, any Confidential Information. Consultant will exercise all reasonable precautions to physically protect the confidentiality of the Confidential Information. Consultant may disclose the Confidential Information to a governmental authority or by order of a court of competent jurisdiction, provided that the disclosure is subject to all applicable governmental or judicial protection available for like material and reasonable advance notice is given to PTCI. The obligations of non-disclosure will not apply to information which (a) was known to Consultant at the time it was disclosed, other than by previous disclosure by PTCI, as evidenced by Consultants written records at the time of disclosure; (b) is at the time of disclosure or later becomes publicly known under circumstances involving no breach of this Agreement; or (c) is lawfully and in good faith made available to Consultant by a third party who did not derive it, directly or indirectly, from PTCI. |
| 6.2 | Publication. Consultant agrees to submit to PTCI a copy of any proposed manuscript or other materials to be published or otherwise publicly disclosed which contain information or any discussion relating to PTCI or the Consulting Services, at least thirty (30) days prior to submission for publication or disclosure, to enable PTCI to determine if patentable Developments or any Confidential Information of PTCI would be disclosed. Consultant will cooperate with PTCI in this respect and will delete from the manuscript or other disclosure any Confidential Information if requested by PTCI, and will assist PTCI in filing for patent protection for any patentable Developments described in those documents, prior to publication or other disclosure. |
| 7. | Expiration/Termination. |
Protagenic Therapeutics Inc., 2 Carlton Street, Suite 1307, Toronto, Ontario, M5B1J3, Canada;
e<EMAIL_ADDRESS>www.protagenic.com
3
| 7.1 | Term. This Agreement will commence on the Effective Date and continue for the Term, unless sooner terminated pursuant to the express terms of this Section 7 or extended by mutual written agreement of the parties. |
| 7.2 | Termination for Breach. If either party breaches in any material respect any of its material obligations under this Agreement, in addition to any other right or remedy, the non-breaching party may terminate this Agreement in the event that the breach is not cured within thirty (30) days after receipt by that party of written notice of the breach. |
| 7.3 | Termination by PTCI. Either party may terminate this Agreement (a) immediately at any time upon written notice to the other party in the event of a breach of this Agreement by the other party which cannot be cured (i.e. breach of the confidentiality obligations) and/or (b) at any time without cause upon not less than fifteen (15) days prior written notice to the other party. |
| 7.4 | Effect of Expiration/Termination. Upon expiration or termination, neither PTCI nor Consultant will have any further obligations under this Agreement, except (a) the liabilities accrued through the date of expiration or termination, and (b) the terms and obligations under sections 1, 3.4, 5, 6, 7.4 and 8, will survive. Upon expiration or termination, and in any case upon PTCIs request, Consultant will promptly return to PTCI all Confidential Information and copies thereof, except for one (1) copy which Consultant may retain solely for archival purposes. |
| 8. | Miscellaneous. |
| 8.1 | Independent Consultant; Taxes. |
| a. | Independent Consultant. All Consulting Services will be rendered by Consultant as an independent Consultant and this Agreement does not create an employer-employee relationship between PTCI and Consultant. Consultant will have no rights to receive any employee benefits, such as health and accident insurance, sick leave or vacation which are accorded to regular PTCI employees. Consultant will not in any way represent himself to be an employee, partner, joint venturer, agent or officer with or of PTCI. |
| b. | Taxes. Consultant will pay all required taxes on Consultants income from PTCI under this Agreement. Consultant will provide PTCI with Consultants taxpayer Identification Number or Social Insurance number, as applicable. |
| 8.2 | Use of Name. Consultant consents to the use by PTCI of Consultants name and likeness in written materials and oral presentations to current or prospective customers, partners, investors or others, provided that the materials or presentations accurately describe the nature of Consultants relationship with or contribution to PTCI. |
| 8.3 | Notices. All notices must be written and sent to the address or facsimile number identified in this Agreement or a subsequent notice. All notices must be given (a) by personal delivery, with receipt acknowledged; (b) by facsimile followed by hard copy delivered by the methods under (c) or (d); (c) by prepaid certified or registered mail, return receipt requested; or (d) by prepaid recognized next business day delivery service. Notices will be effective upon receipt or as stated in the notice. Notices to PTCI must be marked Attention: Director/President and/or Operations Manager. |
| 8.4 | Assignment. This Agreement is a personal services agreement, and the rights and obligations hereunder, may not be assigned or transferred by either party without the prior written consent of the other party, except that PTCI may assign this Agreement, in whole or in part, to an affiliated company or in connection with the merger, consolidation, sale or transfer of all or substantially all of its business to which this Agreement relates. |
Protagenic Therapeutics Inc., 2 Carlton Street, Suite 1307, Toronto, Ontario, M5B1J3, Canada;
e<EMAIL_ADDRESS>www.protagenic.com
4
| 8.5 | Entire Agreement. This Agreement constitutes the entire agreement of the parties with regard to its subject matter, and supersedes all previous written or oral representations, agreements and understandings between PTCI and Consultant. |
| 8.6 | No Modification. This Agreement may be changed only by a writing signed by both parties. |
| 8.7 | Severability. Each provision in this Agreement is independent and severable from the others, and no provision will be rendered unenforceable as a result of any other provision(s) being held to be invalid or unenforceable in whole or in part. If any provision of this Agreement is invalid, unenforceable or too broad, that provision will be appropriately limited and reformed to the maximum extent permitted by applicable law. |
| 8.8 | Applicable Law. This Agreement will be governed by, and construed in accordance with, the laws of the Province of Ontario, Canada, without regard to any choice of law principle that would dictate the application of the law of another jurisdiction. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement will be commenced only in a court of the Province of Ontario (or, if appropriate, a provincial court located within the Province of Ontario), and PTCI and Consultant each consents to the jurisdiction of such a court. |
| 8.9 | Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which shall constitute one and the same agreement. |
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the Effective Date.
| PROTAGENIC THERAPEUTICS CANADA (2006) INC. | ||
| By: President and Operations Manager | ||
| Print Name: | Robert Ziroyan | |
| Signature: | /s/ Robert Ziroyan | |
| Title: | ||
| Dr. Dalia Barsyte | ||
| Print Name: | Dalia Barsyte | |
| Signature: | /s/ Dalia Barsyte |
Protagenic Therapeutics Inc., 2 Carlton Street, Suite 1307, Toronto, Ontario, M5B1J3, Canada;
e<EMAIL_ADDRESS>www.protagenic.com
5
BUSINESS TERMS EXHIBIT
Consulting Agreement with Dalia Barsyte
1. Scope of Work/Duties and Responsibilities
Under the direct supervision of the PTI Chief Scientific Officer and indirect supervision of PTI/PTCI Directors and President the Consultant will be responsible for:
Design and oversee the development of assay for measuring TCAP, Radioimmunoassay
design the RIA assay and procure reagents
standardize the assay
validate on tissues and/or biological fluids
evaluate precision and accuracy
Radioligand binding assays and in vivo radioADME performed by InvivoPharm