(c) containing a blocker (the Blocker) preventing the automatic conversion of such Series B Preferred Shares that would cause a holder of Series B Preferred Shares to beneficially own more than 9.9% of Parent common stock; provided that such provision shall only apply to those holders of Series B Preferred Shares who expressly state in writing to Parent (which statement may not be revoked for 61 days) that they wish to be subject to the Blocker; and further provided that any Series B Preferred Shares not converted as a result of this provision would (i) have the same liquidation rights as if the Series B Preferred Shares had converted into Parent common stock, (ii) have no voting rights and (iii) automatically convert as soon as such conversion would not violate such Blocker; and
(d) being entitled to receive an amount or value equal to 15,463.7183 times the amount or value to be received by a holder of one share of common stock upon a liquidation or dissolution, prior to the Reverse Stock Split;
(h) Parent shall have entered into exchange agreements with the Designee pursuant to which all Series A Preferred Stock was converted into 297,468 Series B Preferred Shares; and
(i) all principal of, and interest on, the Parent Debt (other than Parent Debt converted in the PPO up to the Expense Cap) shall have been exchanged for 295,945 Parent Debt Cancellation Warrants.
5.2 Conditions to Obligations of the Parent and the Acquisition Subsidiary. The obligation of each of the Parent and the Acquisition Subsidiary to consummate the Merger is subject to the satisfaction (or waiver by the Parent) of the following additional conditions:
(a) the Company shall have obtained (and shall have provided copies thereof to the Parent) all waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 2.4 of the Disclosure Schedule which are required on the part of the Company, except for any the failure of which to obtain or effect does not, individually or in the aggregate, have a Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(b) the representations and warranties of the Company set forth in this Agreement (when read without regard to any qualification as to materiality or Material Adverse Effect contained therein) shall be true and correct as of the date of this Agreement and shall be true and correct as of the Effective Time as though made as of the Effective Time (provided, however, that to the extent such representation and warranty expressly relates to an earlier date, such representation and warranty shall be true and correct as of such earlier date), except for any untrue or incorrect representation and warranty that, individually or in the aggregate, does not have a Company Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement;
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(c) the Company shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time;
(d) no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(e) the Company shall have delivered to the Parent and the Acquisition Subsidiary a certificate of its Executive Chairman of the Board of Directors of the Company to the effect that each of the conditions specified in clauses (a), (c) and (d) (with respect to the Companys due diligence of the Parent) of Section 5.1 and clauses (a) through (d) (insofar as clause (d) relates to Legal Proceedings involving the Company) of this Section 5.2 is satisfied in all respects;
(f) the Company shall have delivered to the Parent and the Acquisition Subsidiary: (i) a certified charter document and good standing certificate, each dated as of a date within thirty (30) days prior to the Effective Time from the secretary of state of its jurisdiction of incorporation; (ii) the Bylaws of the Company; (iii) resolutions of the Companys Board of Directors approving this Agreement and the other Transaction Documentation and the transactions contemplated hereby and thereby, certified by the Executive Chairman of the Board of Directors of the Company, and (iii) resolutions of the Companys stockholders approving this Agreement and the other Transaction Documentation and the transactions contemplated hereby and thereby, certified by the Executive Chairman of the Board of Directors of the Company; and
(g) the Company shall have provided audited financial statements from an independent accounting firm, qualified to conduct public company audits, for the years ended December 31, 2014 and 2013 and unaudited financial statements for the nine month periods ended September 30, 2015 and 2014.
5.3 Conditions to Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the satisfaction of the following additional conditions:
(a) the Parent shall have obtained (and shall have provided copies thereof to the Company) all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 3.4 which are required on the part of the Parent, except for any the failure of which to obtain or effect does not, individually or in the aggregate, have a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(b) the representations and warranties of the Parent set forth in this Agreement (when read without regard to any qualification as to materiality or Material Adverse Effect contained therein) shall be true and correct as of the date of this Agreement and shall be true and correct as of the Effective Time as though made as of the Effective Time (provided, however, that to the extent such representation or warranty expressly relates to an earlier date, such
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representation and warranty shall be true and correct as of such earlier date), except for any untrue or incorrect representation and warranty that, individually or in the aggregate, do not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement;
(c) each of the Parent and the Acquisition Subsidiary shall have performed or complied with its agreements and covenants required to be performed or complied with under this Agreement as of or prior to the Effective Time;
(d) no material Legal Proceedings shall be pending or threatened against Parent or the Acquisition Subsidiary and no Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of any of the transactions contemplated by this Agreement, or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, and no such judgment, order, decree, stipulation or injunction shall be in effect;
(e) the Parent shall have delivered to the Company a certificate of its Chief Executive Officer to the effect that each of the conditions specified in clauses (b) and (d) (with respect to the Parents due diligence of the Company) of Section 5.1 and clauses (a) through (d) (insofar as clause (d) relates to Legal Proceedings involving the Parent and its Subsidiaries) of this Section 5.3 is satisfied in all respects;
(f) each of the Parent and the Acquisition Subsidiary shall have delivered to the Company: (i) a certified charter document and good standing certificate, each dated as of a date within thirty (30) days prior to the Effective Time from the secretary of state of its jurisdiction of incorporation; (ii) the Bylaws of the Parent and the Acquisition Subsidiary; (iii) resolutions of the Parents and Acquisition Subsidiarys Board of Directors approving this Agreement and the other Transaction Documentation and the transactions contemplated hereby and thereby, certified by the Chief Executive Officer of the Parent and the Acquisition Subsidiary; and (iii) resolutions of the Acquisition Subsidiarys stockholders approving this Agreement and the other Transaction Documentation and the transactions contemplated hereby and thereby, certified by the Chief Executive Officer of the Acquisition Subsidiary;
(g) the Parent shall have delivered to the Company a certificate of its Chief Executive Officer to the effect that the Parent has satisfied in full all payment and other obligations set forth in, and has in all respects fully complied with, the Parents Plan of Reorganization under Chapter 11 of the United States Bankruptcy Code on June 15, 2012 (the Plan of Reorganization), as such Plan of Reorganization was confirmed by the United States Bankruptcy Court, Southern District of New York;
(h) excluding (i) the Series B Preferred Shares to be issued to investors in the PPO, (ii) the issuance of the Merger Shares to be issued to Company Stockholders, and (iii) the Series B Preferred Shares to be issued to the holders of the Parent Options, the New Options, the Parent Warrants and the Parent Debt Cancellation Warrants (upon the exercise of such options and warrants), (I) 400,000,000 shares of Parent Common Stock shall be issued and outstanding immediately after the Effective Time, (II) no Series A Preferred Shares shall be issued and outstanding immediately after the Effective Time and (III) 297,468 Series B Preferred Shares shall be issued and outstanding immediately after the Effective Time;
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(i) the Parent shall have adopted the 2006 Plan;
(j) the Parent shall have filed all required federal and state tax returns for the year ended June 30, 2015, and shall have paid all outstanding amounts owed with respect to its federal and state tax returns for the year ended June 30, 2014;
(k) the Company shall have received a certificate of Parents transfer agent and registrar dated one day prior to the Effective Date certifying the number of shares of Parent Common Stock issued and outstanding;
(l) contemporaneously with the closing of the Merger, the Parent and the MomSpot Buyer shall execute the MomSpot Split-Off Agreement, which MomSpot Split-Off shall be effective immediately following the Closing of the Merger;
(m) contemporaneously with the closing of the Merger, the Parent and Subsidiaries Buyer shall execute the Subsidiaries Split-Off Agreement;
(n) contemporaneously with the closing of the Merger, the Parent and each of the Fund Stockholders shall execute the Indemnity Agreement (Indemnity Agreement); and
(o) after giving prior effect to the MomSpot Split-Off, the Parent shall have no liabilities (except as set out in Section 3.7 of the Parent Disclosure Schedule).
ARTICLE VI
INTENTIONALLY OMITTED
ARTICLE VII
MISCELLANEOUS
7.1 Press Releases and Announcements. No Party shall issue any press release or public announcement relating to the subject matter of this Agreement without the prior written approval of the other Parties; provided, however, that any Party may make any public disclosure it believes in good faith is required by applicable law, regulation or stock market rule (in which case the disclosing Party shall use reasonable efforts to advise the other Parties and provide them with a copy of the proposed disclosure prior to making the disclosure).
7.2 No Third Party Beneficiaries. Each of the Parties agrees that each of the Fund Stockholders may rely upon the covenants, representations and warranties set out in Section 4.6 of this Agreement as if such covenant, representation or warranty had been made directly to such Fund Stockholder. Apart from as set out in the prior sentence, this Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns.
7.3 Entire Agreement. This Agreement (including the documents referred to herein) constitutes the entire agreement among the Parties and supersedes any prior understandings, agreements or representations by or among the Parties, written or oral, with respect to the subject matter hereof.
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7.4 Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. No Party may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written approval of the other Parties; provided that the Acquisition Subsidiary may assign its rights, interests and obligations hereunder to a wholly-owned subsidiary of the Parent.
7.5 Counterparts. This Agreement may be executed in multiple counterparts and delivery may be effected via facsimile or electronic mail, portable document format (PDF) of an originally executed counterpart, each of which shall be deemed original, but all of which taken together shall constitute one and the same instrument duly delivered.
7.6 Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
7.7 Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (a) personal delivery to the Party to be notified, (b) upon confirmation of receipt, if sent by electronic mail or facsimile, (c) three days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one Business Day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next Business Day delivery. All communications shall be sent to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice; provided, however, that notices of a change of address shall be effective only upon delivery of notice in respect thereof):
| If to the Company or the Parent (subsequent to the Closing):
Protagenic Therapeutics, Inc. 149 Fifth Avenue, Suite 500 New York, NY 10010 Attn: Robert Ziroyan, President Facsimile:<PHONE_NUMBER> Email<EMAIL_ADDRESS>|
Copy to (which copy shall not constitute notice hereunder):
Meister Seelig & Fein LLP 125 Park Avenue, 7th Floor New York, NY 10017 Attn: Mark J. Seelig, Esq. Facsimile:<PHONE_NUMBER> Email<EMAIL_ADDRESS>|
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| If to the Parent or the Acquisition Subsidiary (prior to the Closing):
Atrinsic, Inc. 65 Atlantic Avenue Boston, Massachusetts 02110 Attn: Edward Gildea, Chief Executive Officer Facsimile:<PHONE_NUMBER> Email<EMAIL_ADDRESS>|
Copy to (which copy shall not constitute notice hereunder):
Sanders Ortoli Vaughn-Flam Rosenstadt LLP 591 Madison Avenue New York, NY 10022 Attn: William Rosenstadt Facsimile:<PHONE_NUMBER> Email<EMAIL_ADDRESS>|
Any Party may give any notice, request, demand, claim or other communication hereunder using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail or electronic mail), but no such notice, request, demand, claim or other communication shall be deemed to have been duly given unless and until it actually is received by the Party for whom it is intended. Any Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other Parties notice in the manner herein set forth.
7.8 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdictions other than those of the State of Delaware.
7.9 Amendments and Waivers. The Parties may mutually amend any provision of this Agreement at any time prior to the Effective Time. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by all of the Parties. No waiver of any right or remedy hereunder shall be valid unless the same shall be in writing and signed by the Party giving such waiver. No waiver by any Party with respect to any default, misrepresentation or breach of warranty or covenant hereunder shall be deemed to extend to any prior or subsequent default, misrepresentation or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
7.10 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.
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7.11 Submission to Jurisdiction. Each of the Parties (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 of the Parties 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. Any Party may make service on another Party by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of notices in Section 7.7. Nothing in this Section 7.11, however, shall affect the right of any Party to serve legal process in any other manner permitted by law.
7.12 Construction.
(a) The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party.
(b) The parties have participated jointly in negotiating and drafting this Agreement. If an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
(c) Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
| PARENT: | ||
| ATRINSIC, INC. | ||
| By: | /s/ Edward Gildea | |
| Name: | Edward Gildea | |
| Title: | President and Chief Executive Officer | |
| ACQUISITION SUBSIDIARY: | ||
| PROTAGENIC ACQUISITION CORP. | ||
| By: | /s/ Edward Gildea | |
| Name: | Edward Gildea | |
| Title: | President and Chief Executive Officer | |
| COMPANY: | ||
| PROTAGENIC THERAPEUTICS, INC. | ||
| By: | /s/ Garo H. Armen | |
| Name: | Garo H. Armen | |
| Title: | Chairman |
-49-
SCHEDULES
to the
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
DATED AS OF FEBRUARY 12, 2016
AMONG
ATRINSIC, INC., a Delaware corporation,
PROTAGENIC ACQUISITION CORP., a Delaware corporation
AND
PROTAGENIC THERAPEUTICS, INC., a Delaware corporation
-1-
These Schedules (the Schedules) are being delivered by Protagenic Therapeutics, Inc. (the Company), pursuant to the terms of that Agreement and Plan of Merger and Reorganization (the Agreement), among Atrinsic, Inc. (the Parent), Protagenic Acquisition Corp. (the Acquisition Subsidiary) and the Company.
Capitalized terms used and not otherwise defined herein shall have their respective meanings as set forth in the Agreement. Any summary of or reference to any document herein is qualified in its entirety by the terms of such document (and all agreements, transactions and arrangements referenced in or contemplated thereby), and the terms and provisions of each such document (and all agreements, transactions and arrangements referenced in or contemplated thereby) are incorporated herein by reference.
The section or subsection numbers in the Schedules shall qualify the corresponding section or subsection numbers in the Agreement, provided, however, that any matter set forth in any section or subsection of the Schedules shall be deemed to be referred to and incorporated in all other sections or subsections of the Schedules to which such matters application or relevance is reasonably apparent, notwithstanding the omission of a reference or cross-reference thereof.
The Schedules and the information and disclosures contained in the Schedules are intended only to qualify and limit the representations, warranties and covenants of the Company contained in the Agreement and shall not be deemed to expand in any way the scope or effect of any of such representations, warranties or covenants.
Headings in the Schedules are for convenience and reference only and shall not affect the disclosures contained herein. The Schedules may contain items that are not required by the Agreement to be listed herein.
Disclosure of any information herein is not a statement or admission that such information is material or outside of the course of ordinary business, is required to be disclosed herein, reaches any applicable materiality or dollar thresholds or is likely to materially and adversely affect the ability of the Company to perform its obligations under the Agreement or to consummate the transactions contemplated thereby. The fact that any item is disclosed in any section of the Schedules shall not give rise to any implication that the failure to disclose it would result in any breach of any representation or warranty contained in the Agreement. No disclosure in the Schedules relating to any possible breach or violation of any agreement, law, rule or regulation shall be construed as an indication or admission that any such breach or violation actually exists or has occurred. No general disclosure in any section herein shall be limited by any more specific disclosure in either that section or any other section herein.
In disclosing the information set forth in the Schedules, the Company expressly reserves and does not waive any attorney-client privilege associated with such information or any protection afforded by the work-product doctrine with respect to any of the matters disclosed or discussed herein.
-2-
Company Disclosure Schedules
Schedule 1.14 Non-Accredited Investors
Schedule 2.2 Company Capitalization
Schedule 2.4 Non-Contravention; Consents
Schedule 2.5 Subsidiaries
Schedule 2.7 Absence of Certain Changes
Schedule 2.8 Undisclosed Liabilities
Schedule 2.10 Assets
Schedule 2.12 Real Property Leases
Schedule 2.13 Contracts
Schedule 2.15 Powers of Attorney
Schedule 2.16 Insurance
Schedule 2.18 Employees
Schedule 2.19(b) Employee Benefit Plans
Schedule 2.19(k) Agreements with Stockholders, Directors, Executive Officers or Key Employees
Schedule 2.20(b) - Environmental
Schedule 2.22 Customers
Schedule 2.23 Permits
Schedule 2.24 Business Relationships with Affiliates
Schedule 2.25 Brokers Fees
Schedule 2.27(b) Intellectual Property Registrations/Applications and Royalty or Payment Agreements
Schedule 2.27(c) Registered Intellectual Property Rights
Schedule 2.27(e) Intellectual Property Suits, Actions or Proceedings
Schedule 2.27(f) Intellectual Property Infringement, Misappropriation, or Unlawful or Unauthorized Uses
-3-
Schedule 1.14
Non-Accredited Investors
Non-Accredited Investors:
| 1. | Arij Al Chawaf |
| 2. | Carol Haggerty |
| 3. | Dalia Barsyte |
| 4. | Denise Belsham |
| 5. | Dhan Chand |
| 6. | Douglas Jaeger |
| 7. | James Rathgeber |
| 8. | Lauren Banjany |
| 9. | Massimo Martinucci |
| 10. | Susan Rotzinger |
| 11. | David A. Lovejoy |
Unknown (investors that did not complete and return an investor questionnaire):
| 1. | Antonio Herandez |
| 2. | Eleanor Gimon |
| 3. | Ewa Lipton |
| 4. | Fabio Migliaccio |
| 5. | Glen S. Abel |
| 6. | Guy C. Collins |
| 7. | Jeremy Cohen |
| 8. | Michele Markowitz |
| 9. | Oweida Orthopedic Assoc 410K Safe Harbor Plan |
| 10. | Remik Hartounian |
| 11. | Richard Edwards (deceased) |
| 12. | Ronnie Bassham |
| 13. | Solomon Evan James |
| 14. | Steven Markowitz |
| 15. | Robert Clauss |
-4-
Schedule 2.2
Company Capitalization
Shares:
| Name of Shareholder |
Shares | |||||
| 1 |
Alan Young | 35,000 | ||||
| 2 |
Alexander K. Arrow | 60,000 | ||||
| 3 |
Antonio Herandez | 35,000 | ||||
| 4 |
Arij Al Chawaf | 5,000 | ||||
| 5 |
Barry Lind Revocable Trust | 175,000 | ||||
| 6 |
Benjamin Raab Trust UAD 06/04/99 | 30,000 | ||||
| 7 |
Brian J. and Debbie M. Keller | 25,000 | ||||
| 8 |
Brian J. Keller & Debbie M. Keller JT WROS | 10,000 | ||||
| 9 |
Carmine Sanzo | 75,000 | ||||
| 10 |
Craig Shapiro | 20,000 | ||||
| 11 |
Cynthia Qian | 5,000 | ||||
| 12 |
Dalia Barsyte | 10,000 | ||||
| 13 |
David Lovejoy | 148,800 | ||||
| 14 |
Dean Glasser | 25,000 | ||||
| 15 |
Denis J. Hickey | 80,000 | ||||
| 16 |
Denise Belsham | 25,000 | ||||
| 17 |
Douglas Jaeger | 25,000 | ||||
| 18 |
Eleanor Gimon | 244,433 | ||||
| 19 |
Ethos Holdings, LLC | 100,000 | ||||
| 20 |
Ewa Lipton | 50,000 | ||||
| 21 |
Evan S. Taub | 1,500 | ||||
| 22 |
Faber, Daeufer & Rosenberg PC | 25,000 | ||||
| 23 |
Fabio Migliaccio | 3,715 | ||||
| 24 |
Garo H. Armen IRA | 250,000 | ||||
| 25 |
Garo H. Armen | 1,955,801 | ||||
| 26 |
Glenn S. Abel | 40,000 | ||||
| 27 |
Gregory H. Ekizian Revocable Trust | 125,000 | ||||
| 28 |
Guy C. Collins | 20,000 | ||||
| 29 |
James Rathgeber | 14,865 | ||||
| 30 |
Jeremy Cohen | 1,950 |
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| 31 |
John Moraitis | 25,000 | ||||
| 32 |
Joseph Donegan | 25,000 | ||||
| 33 |
Joseph Sorbara | 25,000 | ||||
| 34 |
Kerry Anne Wentworth | 25,000 | ||||
| 35 |
Khajak Keledjian | 100,000 | ||||
| 36 |
Khalil Barrage | 50,000 | ||||
| 37 |
Larry N. Feinberg | 200,000 | ||||
| 38 |
Lauren Banjany | 2,700 | ||||
| 39 |
Lester B. Boetler | 105,000 | ||||
| 40 |
Levon Capan | 25,000 | ||||
| 41 |
Louis Sanzo | 75,000 | ||||
| 42 |
Mark Berg | 155,000 | ||||
| 43 |
Mark Berg, IRA E*Trade custodian | 100,000 | ||||
| 44 |
Mark Mazzer | 25,000 | ||||
| 45 |
Mark T. Hellner | 100,000 | ||||
| 46 |
Massimo Martinucci | 10,000 | ||||
| 47 |
Michele Markowitz | 6,000 | ||||
| 48 |
MSB Family Trust | 50,000 | ||||
| 49 |
Nicole Berg | 167,194 | ||||
| 50 |
Oweida Orthopedic Assoc 401K Safe Harbor Plan | 40,000 | ||||
| 51 |
Patricia Sorbara | 6,000 | ||||
| 52 |
Paul Sallwasser and Teri Sallwasser, JT WROS | 100,000 | ||||
| 53 |
Pensco Trust Company, FBO Gregory H. Ekizian | 100,000 | ||||
| 54 |
Prahalathan Rajasekaran | 25,000 | ||||
| 55 |
Remik Hartounian | 442,194 | ||||
| 56 |
Richard Edwards | 40,000 | ||||
| 57 |
Richard Pashayan | 100,000 | ||||
| 58 |
Robert Clauss | 15,500 | ||||
| 59 |
Robert G. Jeffers | 25,000 | ||||
| 60 |
Robert Petrozzo | 30,000 | ||||
| 61 |
Ronnie Bassham | 50,000 | ||||
| 62 |
Sharon Crowder | 50,000 | ||||
| 63 |
Solomon Evan James | 1,500 | ||||
| 64 |
Stephen Dinicolantonio | 25,000 |
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| 65 |
Steven Markowitz | 25,000 | ||||
| 66 |
Susan Rotzinger | 35,000 | ||||
| 67 |
The Bahr Family Limited Partnership | 25,000 | ||||
| 68 |
Thomas D Paul | 25,000 | ||||
| 69 |
Timothy McInerney | 100,000 | ||||
| 70 |
University of Toronto | 271,200 | ||||
| 71 |
William Christopher Frasco | 1,500 | ||||
| 72 |
William Kachioff | 187,986 | ||||
| Total Outstanding | 6,612,838 |
Outstanding Warrants:
| # |
Names | Share Price |
Date of Issue: |
Expire Date | Total Warrants |
|||||||||||||
| 1 |
1 | Garo H. Armen | $ | 1.00 | 19-May-11 | 19-May-21 | 300,000 | |||||||||||
| 2 | Garo H. Armen | $ | 1.00 | 18-Feb-13 | 18-Feb-23 | 953,367 | ||||||||||||
| Sub-Total | $ | 1,253,367 | ||||||||||||||||
| 2 |
1 | Larry N. Feinberg | $ | 1.00 | 6-Jun-11 | 6-Jun-21 | 300,000 | |||||||||||
| 2 | Larry N. Feinberg | $ | 1.00 | 27-Mar-13 | 27-Mar-23 | 300,000 | ||||||||||||
| Sub-Total | 600,000 | |||||||||||||||||
| 3 |
1 | Gregory H. Ekizian | $ | 1.00 | 7-Jul-11 | 7-Jul-21 | 75,000 | |||||||||||
| 4 |
1 | Pensco Trust Company, FBO Gregory H. Ekizian | $ | 1.00 | 18-Feb-13 | 18-Feb-23 | 300,000 | |||||||||||
| 5 |
1 | Khajak Keledjian | $ | 1.00 | 28-Mar-13 | 28-Mar-23 | 300,000 | |||||||||||
| 6 |
1 | Carmine Sanzo | $ | 1.00 | 12-Dec-13 | 12-Dec-23 | 150,000 | |||||||||||
| 7 |
1 | Louis Sanzo | $ | 1.00 | 12-Dec-13 | 12-Dec-23 | 150,000 | |||||||||||
| 8 |
1 | Richard Pashayan | $ | 1.00 | 20-Dec-13 | 20-Dec-23 | 150,000 | |||||||||||
| 9 |
1 | Mark Berg | $ | 1.25 | 1-Jan-07 | 1-Jan-17 | 100,000 | |||||||||||
| 10 |
1 | Levon Capan | $ | 1.00 | 20-Feb-13 | 20-Feb-23 | 75,000 | |||||||||||
| 11 |
1 | Brandt J. Mandia | $ | 1.25 | 4-Nov-15 | 4-Nov-23 | 187,500 | |||||||||||
| 2 | Brandt J. Mandia | $ | 1.25 | 31-Dec-15 | 4-Nov-23 | 62,500 | ||||||||||||
| Sub-Total | 250,000 | |||||||||||||||||
| Total | 3,403,367 |
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Outstanding Options:
| N1 |
N2 |
Option Pool: |
Option Date: | Vesting Date: | Expire Date: | No. of Options | ||||||||
| 1 |
1 | David Lovejoy | Mar 15, 2006 | Mar 14, 2010 | Mar 15, 2016 | 208,299 | ||||||||
| 2 |
2 | David Lovejoy | Mar 30, 2011 | Mar 30, 2011 | Mar 30, 2021 | 100,000 | ||||||||
| 3 |
3 | David Lovejoy | Dec 1, 2012 | Dec 1, 2013 | Dec 1, 2022 | 25,000 | ||||||||
| 4 |
4 | David Lovejoy | Mar 1, 2014 | Mar 1, 2017 | Mar 1, 2027 | 150,000 | ||||||||
| Total | 483,299 | |||||||||||||
| 5 |
1 | Dalia Barsyte | Mar 30, 2011 | Mar 30, 2011 | Mar 30, 2021 | 25,000 | ||||||||
| 6 |
2 | Dalia Barsyte | Apr 1, 2012 | Apr 1, 2012 | Apr 1, 2022 | 25,000 | ||||||||
| 7 |
3 | Dalia Barsyte | Dec 1, 2012 | Dec 1, 2012 | Dec 1, 2022 | 25,000 | ||||||||
| 8 |
4 | Dalia Barsyte | Mar 1, 2014 | Mar 1, 2015 | Mar 1, 2024 | 25,000 | ||||||||
| 9 |
5 | Dalia Barsyte | March 9, 2015 | March 9, 2016 | Mar 1, 2025 | 50,000 | ||||||||
| Total | 150,000 | |||||||||||||
| 10 |
1 | Robert Ziroyan | Aug 1, 2006 | Aug 31, 2010 | Aug 1, 2016 | 25,000 | ||||||||
| 11 |
2 | Robert Ziroyan | Mar 30, 2011 | Mar 30, 2011 | Mar 30, 2021 | 100,000 | ||||||||
| 12 |
3 | Robert Ziroyan | Mar 1, 2014 | Mar 1, 2015 | Mar 1, 2024 | 50,000 | ||||||||
| 13 |
4 | Robert Ziroyan | March 9, 2015 | March 9, 2016 | March 9, 2025 | 75,000 | ||||||||
| Total | 250,000 | |||||||||||||
| 14 |
1 | Carol Haggerty | Aug 1, 2006 | Aug 31, 2010 | Aug 1, 2016 | 25,000 | ||||||||
| 15 |
2 | Carol Haggerty | Mar 30, 2011 | Mar 30, 2011 | Mar 30, 2021 | 15,000 | ||||||||
| 16 |
3 | Carol Haggerty | Mar 1, 2014 | Mar 1, 2015 | Mar 1, 2024 | 15,000 | ||||||||
| 17 |
3 | Carol Haggerty | March 9, 2015 | March 9, 2016 | Mar 1, 2025 | 15,000 | ||||||||
| Total | 70,000 | |||||||||||||
| 18 |
1 | Faber Daeufer & Rosenberg PC | Mar 01, 2006 | Mar 31, 2008 | Mar 1, 2016 | 104,150 |
-8-
| 19 |
1 | Univ. of Toronto Option | Mar 15, 2006 | Mar 31, 2010 | Mar 15, 2016 | 104,150 | ||||||||
| 20 |
2 | Univ. of Toronto Option | Apr 1, 2012 | Apr 1, 2013 | Apr 1, 2022 | 25,000 | ||||||||
| Total | 129,150 | |||||||||||||
| 21 |
1 | Woods Lane Partners | Mar 30, 2011 | Mar 30, 2011 | Mar 30, 2021 | 50,000 | ||||||||
| 22 |
1 | Kerry Wentworth | Dec 1, 2012 | Dec 1, 2012 | Dec 1, 2022 | 25,000 | ||||||||
| 23 |
1 | Zephyrbiotech | June 10, 2011 | June 10, 2011 | June 10, 2021 | 10,000 | ||||||||
| 24 |
1 | Jean-Michel Aubry | Nov 1, 2006 | Oct 31, 2009 | Nov 1, 2016 | 30,000 | ||||||||
| 25 |
2 | Jean-Michel Aubry | March 9, 2015 | March 9, 2017 | Mar 1, 2025 | 25,000 | ||||||||
| Total | 55,000 | |||||||||||||
| 26 |
1 | Sidney H. Kennedy | Nov 1, 2006 | Oct 31, 2009 | Nov 1, 2016 | 30,000 | ||||||||
| 27 |
2 | Sidney H. Kennedy | March 9, 2015 | March 9, 2017 | Mar 1, 2025 | 25,000 | ||||||||
| Total | 55,000 | |||||||||||||
| 28 |
1 | Susan Rotzinger | Feb 1, 2007 | Jun 30, 2009 | Feb 1, 2017 | 21,146 | ||||||||
| 29 |
1 | Mayank Patel | Aug 1, 2006 | Aug 31, 2010 | Aug 1, 2016 | 5,000 | ||||||||
| 30 |
1 | Robert B. Stein | Jan 23, 2015 | Jan 23, 2020 | Jan 23, 2025 | 200,000 | ||||||||
| 31 |
1 | Mark Findeis | Feb 1, 2015 | Feb 1, 2018 | Mar 1, 2025 | 50,000 | ||||||||
| 32 |
1 | Dhan Chand | Feb 1, 2015 | Feb 1, 2018 | Mar 1, 2025 | 50,000 | ||||||||
| Sub-Total |
1,707,744 |
-9-
Schedule 2.4
Non-Contravention; Consents
None.
-10-
Schedule 2.5
Subsidiaries
Protagenic Therapeutics Canada (2006) Inc. is a wholly-owned subsidiary of the Company.
-11-
Schedule 2.7
Absence of Certain Changes
None.
-12-
Schedule 2.8
Undisclosed Liabilities
None.
-13-
Schedule 2.10
Assets
None.
-14-
Schedule 2.12
Real Property Leases
None.
-15-
Schedule 2.13
Contracts
| (i) | None. |
| (ii) | None. |
| (iii) | None. |
| (iv) |
| 1. | Amendment to the Sponsored Research Agreement, effective April 1, 2015, between the Governing Council of the University of Toronto, Protagenic Therapeutics Canada (2006) Inc. and Protagenic Therapeutics Inc. |
| 2. | Employment Agreement, effective January 1, 2014, between Protagenic Therapeutics Canada (2006) Inc. and Dr. Robert Ziroyan.1 |
| (v) |
| 1. | Technology License Agreement, effective July 21, 2005, between The University of Toronto Innovations Foundation and Protagenic Therapeutics, Inc., as amended by that certain First Amendment to Technology License Agreement, effective February 18, 2015, between the Governing Council of the University of Toronto and Protagenic Therapeutics, Inc. |
| 2. | Sponsored Research Agreement, effective July 21, 2005, between the Governing Council of the University of Toronto, Protagenic Therapeutics Canada (2006) Inc. and Protagenic Therapeutics Inc., as amended by that certain Amendment to the Sponsored Research Agreement, effective April 1, 2015. |
| 3. | Master Contract Services Agreement, effective March 28, 2014, by and between Protagenic Therapeutics, Inc. and Molecular Imaging, Inc. |
| 4. | Consulting Agreement, effective November 4, 2015, between Protagenic Therapeutics, Inc. and Brandt J. Mandia. |
| (vi) |
| 1. | Consulting Agreement, as amended, effective January 1, 2015, between Protagenic Therapeutics Canada (2006) Inc. and Dr. Dalia Barsyte.2 |
| 2. | Consulting Agreement, effective January 23, 2015, between Protagenic Therapeutics, Inc. and Dr. Robert B. Stein. |
| 1 | This agreement expired on December 31, 2015; however, there is an outstanding balance of CAN$86,655 (approx. US$63,236) due as of December 31, 2015). |
| 2 | This agreement expired on December 31, 2015; however, the agreement is in the process of being extended. |
-16-
| 3. | Consulting Agreement, effective February 1, 2015, between Protagenic Therapeutics, Inc. and Mark Findeis. |
| 4. | Consulting Agreement, effective February 1, 2015, between Protagenic Therapeutics, Inc. and Dr. Dhan Chand. |
| (vii) |
| 1. | Consulting Agreement, as amended, effective January 1, 2015, between Protagenic Therapeutics Canada (2006) Inc. and Dr. Dalia Barsyte.3 |
| 2. | Consulting Agreement, effective January 23, 2015, between Protagenic Therapeutics, Inc. and Dr. Robert B. Stein. |
| 3. | Nonqualified Stock Option Agreement, effective January 23, 2015, between Protagenic Therapeutics, Inc. and Robert B. Stein. |
| 4. | Nonqualified Stock Option Agreement, effective March 15, 2006, between Protagenic Therapeutics, Inc. and David. A Lovejoy. |
| 5. | Nonqualified Stock Option Agreement, effective March 30, 2011, between Protagenic Therapeutics, Inc. and David. A Lovejoy. |
| 6. | Nonqualified Stock Option Agreement, effective Dec 1, 2012 between Protagenic Therapeutics, Inc. and David. A Lovejoy. |
| 7. | Nonqualified Stock Option Agreement, effective Mar 1, 2014 between Protagenic Therapeutics, Inc. and David. A Lovejoy. |
| 8. | Nonqualified Stock Option Agreement, effective Mar 30, 2011 between Protagenic Therapeutics, Inc. and Dalia Barsyte. |
| 9. | Nonqualified Stock Option Agreement, effective Apr 1, 2012 between Protagenic Therapeutics, Inc. and Dalia Barsyte. |
| 10. | Nonqualified Stock Option Agreement, effective Dec 1, 2012 between Protagenic Therapeutics, Inc. and Dalia Barsyte. |
| 11. | Nonqualified Stock Option Agreement, effective Mar 1, 2014 between Protagenic Therapeutics, Inc. and Dalia Barsyte. |
| 12. | Nonqualified Stock Option Agreement, effective Mar 9, 2015 between Protagenic Therapeutics, Inc. and Dalia Barsyte. |
| 3 | This agreement expired on December 31, 2015; however, the agreement is in the process of being extended. |
-17-
| 13. | Nonqualified Stock Option Agreement, effective August 1, 2006, between Protagenic Therapeutics, Inc. and Robert Ziroyan. |
| 14. | Nonqualified Stock Option Agreement, effective March 30, 2011, between Protagenic Therapeutics, Inc. and Robert Ziroyan. |
| 15. | Nonqualified Stock Option Agreement, effective Dec 1, 2014 between Protagenic Therapeutics, Inc. and Robert Ziroyan. |
| 16. | Nonqualified Stock Option Agreement, effective Mar 9, 2015 between Protagenic Therapeutics, Inc. and Robert Ziroyan. |
| 17. | Nonqualified Stock Option Agreement, effective Mar 1, 2006 between Protagenic Therapeutics, Inc. and Faber Daeufer & Rosenberg PC. |
| 18. | Nonqualified Stock Option Agreement, effective Mar 1, 2006 between Protagenic Therapeutics, Inc. and University of Toronto. |
| 19. | Nonqualified Stock Option Agreement, effective Apr 1, 2012 between Protagenic Therapeutics, Inc. and University of Toronto. |
| 20. | Nonqualified Stock Option Agreement, effective Dec 1, 2012 between Protagenic Therapeutics, Inc. and Kerry Wentworth. |
| 21. | Nonqualified Stock Option Agreement, effective Feb 1, 2007 between Protagenic Therapeutics, Inc. and Susan Rotzinger. |
| 22. | Bridge Loan Agreement, effective April 15, 2015, between Protagenic Therapeutics, Inc. and Dr. Garo H. Armen. |
| 23. | Bridge Loan Agreement, effective May 28, 2015, between Protagenic Therapeutics, Inc. and Dr. Garo H. Armen. |
| 24. | Bridge Loan Agreement, effective July 1, 2015, between Protagenic Therapeutics, Inc. and Dr. Garo H. Armen. |
| 25. | Bridge Loan Agreement, effective September 1, 2015, between Protagenic Therapeutics, Inc. and Dr. Garo H. Armen. |
| 26. | Bridge Loan Agreement, effective October 29, 2015, between Protagenic Therapeutics, Inc. and Dr. Garo H. Armen. |
| 27. | Bridge Loan Agreement, effective December 23, 2015, between Protagenic Therapeutics, Inc. and Dr. Garo H. Armen. |
-18-
| 28. | Warrant to Purchase Shares of Common Stock, effective May 19, 2011, issued to Garo H. Armen by Protagenic Therapeutics, Inc. |
| 29. | Warrant to Purchase Shares of Common Stock, effective Feb 18, 2013, issued to Garo H. Armen by Protagenic Therapeutics, Inc. |
| 30. | Warrant to Purchase Shares of Common Stock, effective Jun 6, 2011, issued to Larry N. Fienberg by Protagenic Therapeutics, Inc. |
| 31. | Warrant to Purchase Shares of Common Stock, effective Mar 27, 2013, issued to Larry N. Fienberg by Protagenic Therapeutics, Inc. |
| 32. | Warrant to Purchase Shares of Common Stock, effective Jul 07, 2011, issued to Gregory H. Ekizian by Protagenic Therapeutics, Inc. |
| 33. | Warrant to Purchase Shares of Common Stock, effective Feb 18, 2013, issued to Pensco Trust Company, FBO Gregory H. Ekizian by Protagenic Therapeutics, Inc. |
| 34. | Warrant to Purchase Shares of Common Stock, effective Mar 28, 2013, issued to Khajak Keledjian by Protagenic Therapeutics, Inc. |
| 35. | Warrant to Purchase Shares of Common Stock, effective Dec 12, 2013, issued to Carmine Sanzo by Protagenic Therapeutics, Inc. |
| 36. | Warrant to Purchase Shares of Common Stock, effective Dec 12, 2013, issued to Louis Sanzo by Protagenic Therapeutics, Inc. |
| 37. | Warrant to Purchase Shares of Common Stock, effective December 20, 2013, issued to Richard Pashayan by Protagenic Therapeutics, Inc. |
| 38. | Warrant to Purchase Shares of Common Stock, effective January 1, 2007, issued to Mark Berg by Protagenic Therapeutics, Inc. |
| 39. | Warrant to Purchase Shares of Common Stock, effective February 20, 2013, issued to Levon Capan by Protagenic Therapeutics, Inc. |
| 40. | Warrant to Purchase Shares of Common Stock, effective Nov 4, 2015, issued to Brandt J. Mandia by Protagenic Therapeutics, Inc. |
| 41. | Warrant to Purchase Shares of Common Stock, effective Dec 31, 2015, issued to Brandt J. Mandia by Protagenic Therapeutics, Inc. |
| (viii) |
| 1. | Technology License Agreement, effective July 21, 2005, between The University of Toronto Innovations Foundation and Protagenic Therapeutics, Inc., as amended by that certain First Amendment to Technology License Agreement, effective February 18, 2015, between the Governing Council of the University of Toronto and Protagenic Therapeutics, Inc. |
-19-
| (ix) |
| 1. | Technology License Agreement, effective July 21, 2005, between The University of Toronto Innovations Foundation and Protagenic Therapeutics, Inc., as amended by that certain First Amendment to Technology License Agreement, effective February 18, 2015, between the Governing Council of the University of Toronto and Protagenic Therapeutics, Inc. |
| 2. | Sponsored Research Agreement, effective July 21, 2005, between the Governing Council of the University of Toronto, Protagenic Therapeutics Canada (2006) Inc. and Protagenic Therapeutics Inc., as amended by that certain Amendment to the Sponsored Research Agreement, effective April 1, 2015. |
| 3. | Master Contract Services Agreement, effective March 28, 2014, by and between Protagenic Therapeutics, Inc. and Molecular Imaging, Inc. |
| (x) | None. |
| (xi) |
| 1. | Nonqualified Stock Option Agreement, effective March 15, 2006, between Protagenic Therapeutics, Inc. and David. A Lovejoy. |
| 2. | Nonqualified Stock Option Agreement, effective March 30, 2011, between Protagenic Therapeutics, Inc. and David. A Lovejoy. |
| 3. | Nonqualified Stock Option Agreement, effective Dec 1, 2012 between Protagenic Therapeutics, Inc. and David. A Lovejoy. |
| 4. | Nonqualified Stock Option Agreement, effective Mar 1, 2014 between Protagenic Therapeutics, Inc. and David. A Lovejoy. |
| 5. | Nonqualified Stock Option Agreement, effective Mar 30, 2011 between Protagenic Therapeutics, Inc. and Dalia Barsyte. |
| 6. | Nonqualified Stock Option Agreement, effective Apr 1, 2012 between Protagenic Therapeutics, Inc. and Dalia Barsyte. |
| 7. | Nonqualified Stock Option Agreement, effective Dec 1, 2012 between Protagenic Therapeutics, Inc. and Dalia Barsyte. |
| 8. | Nonqualified Stock Option Agreement, effective Mar 1, 2014 between Protagenic Therapeutics, Inc. and Dalia Barsyte. |
-20-
| 9. | Nonqualified Stock Option Agreement, effective Mar 9, 2015 between Protagenic Therapeutics, Inc. and Dalia Barsyte. |
| 10. | Nonqualified Stock Option Agreement, effective August 1, 2006, between Protagenic Therapeutics, Inc. and Robert Ziroyan. |
| 11. | Nonqualified Stock Option Agreement, effective March 30, 2011, between Protagenic Therapeutics, Inc. and Robert Ziroyan. |
| 12. | Nonqualified Stock Option Agreement, effective Dec 1, 2014 between Protagenic Therapeutics, Inc. and Robert Ziroyan. |
| 13. | Nonqualified Stock Option Agreement, effective Mar 9, 2015 between Protagenic Therapeutics, Inc. and Robert Ziroyan. |
| 14. | Nonqualified Stock Option Agreement, effective August 1, 2006, between Protagenic Therapeutics, Inc. and Carol Haggerty. |
| 15. | Nonqualified Stock Option Agreement, effective March 30, 2011, between Protagenic Therapeutics, Inc. and Carol Haggerty. |
| 16. | Nonqualified Stock Option Agreement, effective Mar 1, 2014 between Protagenic Therapeutics, Inc. and Carol Haggerty. |
| 17. | Nonqualified Stock Option Agreement, effective Mar 9, 2015 between Protagenic Therapeutics, Inc. and Carol Haggerty. |
| 18. | Nonqualified Stock Option Agreement, effective Mar 1, 2006 between Protagenic Therapeutics, Inc. and Faber Daeufer & Rosenberg PC. |
| 19. | Nonqualified Stock Option Agreement, effective Mar 1, 2006 between Protagenic Therapeutics, Inc. and University of Toronto. |
| 20. | Nonqualified Stock Option Agreement, effective Apr 1, 2012 between Protagenic Therapeutics, Inc. and University of Toronto. |
| 21. | Nonqualified Stock Option Agreement, effective Mar 30, 2011 between Protagenic Therapeutics, Inc. and Woods Lane Partners. |
| 22. | Nonqualified Stock Option Agreement, effective Dec 1, 2012 between Protagenic Therapeutics, Inc. and Kerry Wentworth. |
| 23. | Nonqualified Stock Option Agreement, effective Jun 10, 2011 between Protagenic Therapeutics, Inc. and Zephyrbiotech. |
-21-
| 24. | Nonqualified Stock Option Agreement, effective Nov 1, 2006 between Protagenic Therapeutics, Inc. and Jean-Michel Aubry. |
| 25. | Nonqualified Stock Option Agreement, effective Mar 9, 2015 between Protagenic Therapeutics, Inc. and Jean-Michel Aubry. |
| 26. | Nonqualified Stock Option Agreement, effective Nov 1, 2006 between Protagenic Therapeutics, Inc. and Sidney H. Kennedy. |
| 27. | Nonqualified Stock Option Agreement, effective Mar 9, 2015 between Protagenic Therapeutics, Inc. and Sidney H. Kennedy. |
| 28. | Nonqualified Stock Option Agreement, effective Feb 1, 2007 between Protagenic Therapeutics, Inc. and Susan Rotzinger. |
| 29. | Nonqualified Stock Option Agreement, effective Aug 1, 2006 between Protagenic Therapeutics, Inc. and Mayank Patel. |
| 30. | Nonqualified Stock Option Agreement, effective January 23, 2015, between Protagenic Therapeutics, Inc. and Robert B. Stein. |
| 31. | Nonqualified Stock Option Agreement, effective Feb 1, 2015, between Protagenic Therapeutics, Inc. and Mark Findeis. |
| 32. | Nonqualified Stock Option Agreement, effective Feb 1, 2015, between Protagenic Therapeutics, Inc. and Dhan Chand. |
| 33. | Warrant to Purchase Shares of Common Stock, effective May 19, 2011, issued to Garo H. Armen by Protagenic Therapeutics, Inc. |
| 34. | Warrant to Purchase Shares of Common Stock, effective Feb 18, 2013, issued to Garo H. Armen by Protagenic Therapeutics, Inc. |
| 35. | Warrant to Purchase Shares of Common Stock, effective Jun 6, 2011, issued to Larry N. Fienberg by Protagenic Therapeutics, Inc. |
| 36. | Warrant to Purchase Shares of Common Stock, effective Mar 27, 2013, issued to Larry N. Fienberg by Protagenic Therapeutics, Inc. |
| 37. | Warrant to Purchase Shares of Common Stock, effective Jul 07, 2011, issued to Gregory H. Ekizian by Protagenic Therapeutics, Inc. |
| 38. | Warrant to Purchase Shares of Common Stock, effective Feb 18, 2013, issued to Pensco Trust Company, FBO Gregory H. Ekizian by Protagenic Therapeutics, Inc. |
-22-
| 39. | Warrant to Purchase Shares of Common Stock, effective Mar 28, 2013, issued to Khajak Keledjian by Protagenic Therapeutics, Inc. |
| 40. | Warrant to Purchase Shares of Common Stock, effective Dec 12, 2013, issued to Carmine Sanzo by Protagenic Therapeutics, Inc. |
| 41. | Warrant to Purchase Shares of Common Stock, effective Dec 12, 2013, issued to Louis Sanzo by Protagenic Therapeutics, Inc. |
| 42. | Warrant to Purchase Shares of Common Stock, effective December 20, 2013, issued to Richard Pashayan by Protagenic Therapeutics, Inc. |
| 43. | Warrant to Purchase Shares of Common Stock, effective January 1, 2007, issued to Mark Berg by Protagenic Therapeutics, Inc. |
| 44. | Warrant to Purchase Shares of Common Stock, effective February 20, 2013, issued to Levon Capan by Protagenic Therapeutics, Inc. |
| 45. | Warrant to Purchase Shares of Common Stock, effective Nov 4, 2015, issued to Brandt J. Mandia by Protagenic Therapeutics, Inc. |
| 46. | Warrant to Purchase Shares of Common Stock, effective Dec 31, 2015, issued to Brandt J. Mandia by Protagenic Therapeutics, Inc. |
-23-
Schedule 2.15
Powers of Attorney
None.
-24-
Schedule 2.16
Insurance
None.
-25-
Schedule 2.18
Employees
| 1. | Employee: Robert Ziroyan |
Position: Chief Operating Officer
Annual rate of compensation: CAN $98,100 per year (approximately US $77,870 per year)
-26-
Schedule 2.19(b)
Employee Benefit Plans
None.
-27-
Schedule 2.19(k)
Agreements with Stockholders, Directors, Executive Officers or Key Employees
| 1. | Bridge Loan Agreement, effective April 15, 2015, between Protagenic Therapeutics, Inc. and Dr. Garo H. Armen. |
| 2. | Bridge Loan Agreement, effective May 28, 2015, between Protagenic Therapeutics, Inc. and Dr. Garo H. Armen. |
| 3. | Bridge Loan Agreement, effective July 1, 2015, between Protagenic Therapeutics, Inc. and Dr. Garo H. Armen. |
| 4. | Bridge Loan Agreement, effective September 1, 2015, between Protagenic Therapeutics, Inc. and Dr. Garo H. Armen. |
| 5. | Bridge Loan Agreement, effective October 29, 2015, between Protagenic Therapeutics, Inc. and Dr. Garo H. Armen. |
| 6. | Bridge Loan Agreement, effective December 23, 2015, between Protagenic Therapeutics, Inc. and Dr. Garo H. Armen. |
| 7. | Consulting Agreement, as amended, effective January 1, 2015, between Protagenic Therapeutics Canada (2006) Inc. and Dr. Dalia Barsyte.4 |
| 8. | Consulting Agreement, effective January 23, 2015, between Protagenic Therapeutics, Inc. and Dr. Robert B. Stein. |
| 9. | Nonqualified Stock Option Agreement, effective March 1, 2014, between Protagenic Therapeutics, Inc. and David A. Lovejoy. |
| 10. | Amendment to the Sponsored Research Agreement, effective April 1, 2015, between the Governing Council of the University of Toronto, Protagenic Therapeutics Canada (2006) Inc. and Protagenic Therapeutics Inc. |
| 4 | This agreement expired on December 31, 2015; however, the agreement is in the process of being extended. |
-28-
Schedule 2.20(b)
Environmental
None.
-29-
Schedule 2.22
Customers
None.
-30-
Schedule 2.23
Permits
None.
-31-
Schedule 2.24
Business Relationships with Affiliates
Protagenic Therapeutics Canada (2006) Inc. (PCI) was incorporated in 2006 in the Province on Ontario, Canada. PCI is a wholly-owned subsidiary of the Company. It provides operational support and assistance for the implementation of corporate and operational activities conducted in Canada. The Company sent eleven payments (each individual payment was in excess of $35,000) for total amount of $ 645,712.52 to PCI to cover for the costs associated with the research and development carried out in Canada.
-32-
Schedule 2.25
Brokers Fees
None.
-33-
Schedule 2.27(b)
Intellectual Property Registrations/Applications and Royalty or Payment Agreements
The Company has been issued or has applied for the issuance of the following patents:
| Title of Registration/Application |
Jurisdictions Covered by Registration/Application |
Status |
Issue/Filing | |||||
| 1. | Teneurin C-Terminal Associated Peptides (TCAP) and Methods and uses thereof.
Serial # 10/510,959 |
United States | Patent issued | 01/03/2012 | ||||
| 2. | Teneurin C-Terminal Associated Peptides (TCAP) and Methods and uses thereof.
Serial #<PHONE_NUMBER>. |
Australia | Patent issued | 09/23/2011 | ||||
| 3. | Teneurin C-Terminal Associated Peptides (TCAP) and Methods and uses thereof.
Serial # 2,482,810. |
Canada | Patent issued | 06/10/2014 | ||||
| 4. | Teneurin C-Terminal Associated Peptides (TCAP) and Methods and uses thereof.
Serial # 03717086.7 |
European Union.
Validated in France, Germany and Great Britain. |
Patent issued | 03/12/2014 | ||||
| 5. | A Method for Regulating Neurite Growth: Application. Serial # 60/783,821 | United States | Pending | Filed on: 03/21/2006 | ||||
| 6. | Method for Modulating Glucose Transport Using Teneurin C-Terminal Associated Peptide (TCAP). Serial # 62/026,346 | United States | Pending | Filed on: 07/18/2014 |
-34-
Schedule 2.27(c)
Registered Intellectual Property Rights
None.
-35-
Schedule 2.27(e)
Intellectual Property Suits, Actions or Proceedings
None.
-36-
Schedule 2.27(f)
Intellectual Property Infringement, Misappropriation, or Unlawful or Unauthorized Uses
None.
-37-
PARENT DISCLOSURE SCHEDULE
February 12, 2016
Pursuant to the Agreement and Plan of Merger and Reorganization dated as of February 12, 2016 (the Agreement), by and among Atrinsic, Inc. (the Parent), Protagenic Acquisition Corp., a newly-formed Delaware corporation and a wholly-owned subsidiary of Parent (the Acquisition Subsidiary) and Protagenic Therapeutics, Inc., a Delaware corporation (the Company), Parent hereby delivers to the Company this Parent Disclosure Schedule. Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the Agreement.
The headings contained in this Parent Disclosure Schedule are included for convenience only and do not limit the effect of the items and matters disclosed herein. This Parent Disclosure Schedule is arranged in sections corresponding to the numbered sections contained in the Agreement, and the disclosure in any section shall qualify (a) the corresponding section of the Agreement and (b) the other sections of the Agreement, to the extent that it is reasonably apparent from a reading of such disclosure that it also qualifies or applies to such other sections.
The inclusion of any information in this Parent Disclosure Schedule shall not be deemed to be an admission or acknowledgment, in and of itself, that such information is required by the terms of the Agreement to be disclosed, is material, has resulted in or is reasonably likely to result in a Material Adverse Effect.
Except as otherwise specified herein, all information and disclosures in this Parent Disclosure Schedule are as of the date hereof.
1
Section 3.2 of the Parent Disclosure Schedule
None.
2
Section 3.5 of the Parent Disclosure Schedule
Subsidiaries of Parent other than the Acquisition Subsidiary and MomSpot:
| 1. | Traffix, Inc. |
| 2. | Calling Card Co., Inc. |
| 3. | NL Corp. |
| 4. | Quintel Productions, Inc. |
| 5. | Quintel Financial Information Services Inc. |
| 6. | Thanksmuch, Inc. |
| 7. | Group Lotto, Inc. |
| 8. | Traffix Canada, Inc. |
| 9. | Txnet Inc. |
| 10. | Imatchup.Com., Inc. |
| 11. | HMU Services, Inc. |
| 12. | Send Traffic, Inc. |
| 13. | Hot Rocket Acquisition Corp. |
| 14. | Q121, Inc. |
| 15. | Creative Direct Marketing, Inc. |
| 16. | Quintelco, Inc. |
| 17. | Quintel Psychic Zone, Inc. |
| 18. | Quintel Hair Products, Inc. |
| 19. | Multibuyer, Inc. |
| 20. | Quintelcomm, Inc. |
| 21. | Quintel Email Inc. |
| 22. | Traffx Club Marketing Inc. |
| 23. | Traffix Wireless, Inc. |
| 24. | Consumer Access Services, Inc. |
| 25. | World Web Access, Inc. |
| 26. | Prizedistributors.com, Inc. |
| 27. | New Motion Mobile Inc. |
| 28. | Infiknowledge, ULC |
| 29. | EZ Tracks LP |
| 30. | Ringtone Channel Pty Ltd. |
3
Section 3.7 of the Parent Disclosure Schedule
| Amount: | Claimed by: |
Stated reason: | ||||||
| 1. | $ | 20,064 | Internal Revenue Service | Untimely filed Form 5471 for the years ended December 31, 2011 and December 31, 2012 | ||||
| 2. | $ | 62,000 | NY State Workers Compensation Board | Failure to carry required workers compensation insurance for the period 7/6/11 to 5/10/12 | ||||
| 3. | $ | 74,000 | NY State Workers Compensation Board | Judgment from 2011. |
4
Section 3.11 of the Parent Disclosure Schedule
The Parents liabilities that have accrued since the date of the balance sheet contained in the most recent Parent Report are those set out in Section 3.7 of the Parent Disclosure Schedules.
5
Section 3.15 of the Parent Disclosure Schedule
None.
6
Section 3.16 of the Parent Disclosure Schedule
(a)(ii)
The Parent has agreements with the following entities for the provision of ongoing services:
| 1) | Marcum LLP, for auditing services; |
| 2) | American Stock Transfer & Trust Company, LLC, for transfer agent services; and |
| 3) | Clearview Global, for IT services. |
(a)(vii)
Other than certain transactions set out in the Transaction Documentation that have been entered into with Iroquois Capital Management, LLC and Hudson Bay Capital Management, LLC, the only agreements to which the Parent is Party as of the date hereof with current or former officers, directors or stockholders are three option agreements by which the Parent granted 275,000,000 options. The form of such agreement was filed as an exhibit to our Registration Statement on Form 10, dated July 2, 2014 and as amended August 18, 2014.
7
Section 3.19 of the Parent Disclosure Schedule
None.
8
Section 3.22(a) of the Parent Disclosure Schedule
None.
9
Section 3.22(j) of the Parent Disclosure Schedule
As disclosed in the Parent Reports, the Company has entered into three agreements by which it has granted 275,000,000 options. The form of such agreement was filed as an exhibit to our Registration Statement on Form 10, dated July 2, 2014 and as amended August 18, 2014.
10
Section 3.23(b) of the Parent Disclosure Schedule
None.
11
Section 3.24 of the Parent Disclosure Schedule
None.
12
Section 3.25 of the Parent Disclosure Schedule
None, except as disclosed in the Parent Reports.
13
Section 3.28 of the Parent Disclosure Schedule
Except for obligations to pay any fees or commissions to Katalyst Securities, LLC under a Placement Agency Agreement (or as directed by Katalyst Securities, LLC under such agreement), a copy of which has been provided to the Company, the Parent no other liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement.
14
Exhibit 2.2
CERTIFICATE OF MERGER
OF
PROTAGENIC ACQUISITION CORP.
a Delaware Corporation
WITH AND INTO
PROTAGENIC THERAPEUTICS, INC.
a Delaware Corporation
Pursuant to Section 251 of the General Corporation Law of the State of Delaware (the DGCL), the undersigned corporation does hereby certify as follows:
FIRST: The names and states of incorporation of the constituent corporations are Protagenic Acquisition Corp., a Delaware corporation (Merger Sub), and Protagenic Therapeutics, Inc., a Delaware corporation (the Company).
SECOND: The Agreement and Plan of Merger, dated as of February 12, 2016 (the Agreement), by and among Atrinsic, Inc., a Delaware corporation, Merger Sub and the Company (the Merger), has been approved, adopted, executed and acknowledged by each of the constituent corporations in accordance with Section 251 of the DGCL.
THIRD: The name of the corporation surviving the Merger is Protagenic Therapeutics, Inc. (the Surviving Corporation).
FOURTH: The Certificate of Incorporation of the Surviving Corporation, as in effect immediately prior to the Merger, shall be the Certificate of Incorporation of the Surviving Corporation.
FIFTH: The Agreement is on file at 149 Fifth Avenue, Suite 500, New York, NY 10010, the place of business of the Surviving Corporation.
SIXTH: A copy of the Agreement will be furnished by the Surviving Corporation on request, without cost, to any stockholder of the constituent corporations.
SEVENTH: The Merger shall be effective as of the time of filing of this Certificate with the office of the Secretary of State of Delaware.
IN WITNESS WHEREOF, the Surviving Corporation has caused this Certificate of Merger to be executed this 12th day of February, 2016.
| PROTAGENIC THERAPEUTICS, INC. | ||
| By: | /s/ Garo H. Armen | |
| Name: | Garo H. Armen | |
| Title: | Chairman of the Board of Directors |
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Exhibit 3.3
CERTIFICATE OF INCORPORATION
OF
PROTAGENIC THERAPEUTICS, INC.
I.
The name of this corporation is: PROTAGENIC THERAPEUTICS, INC.
II.
The address of the corporations registered office in the State of Delaware is at 15 East North Street in the City of Dover, County of Kent. The Registered Agent in charge thereof is Incorporating Services, Ltd.
III.
The purpose of this corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
IV.
The total number of shares of capital stock which the corporation shall have authority to issue is 750,000 shares of Common Stock, $0.001 par value per share (Common Stock).
V.
The board of directors is authorized to make, alter or repeal the bylaws of this corporation. Election of directors need not be by written ballot.
VI.
The name and mailing address of the incorporator is:
John D. Tishler, Esq.
c/o Sheppard Mullin Richter & Hampton, LLP
12544 High Bluff Drive, Suite 300
San Diego, California 92130-3051
No director of this corporation shall be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the corporation and its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware or (iv) for any transaction from which the director derived any improper personal benefit.
1
Neither the amendment nor repeal of Article 7, nor the adoption of any provision of the certificate of incorporation inconsistent with Article 7, shall eliminate or reduce the effect of Article 7 in respect of any matter occurring, or any cause of action, suit or claim that, but for Article 7 would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
I, JOHN D. TISHLER, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make, file and record this certificate, and do certify that the facts herein stated are true; and I have accordingly hereunto set my hand.
Dated: September 22, 2004
State of California
County of San Diego
| /s/ John D. Tishler |
| JOHN D. TISHLER, Incorporator |
2
RESTATED CERTIFICATE OF INCORPORATION
OF
PROTAGENIC THERAPEUTICS, INC.
Protagenic Therapeutics, Inc., a Delaware corporation (the Corporation), hereby certifies that:
1. The name of the Corporation is Protagenic Therapeutics, Inc. The date of filing its original Certificate of Incorporation with the Secretary of State was September 24, 2004.
2. This Restated Certificate of Incorporation of the Corporation attached hereto as Exhibit A, which is incorporated herein by this reference, and which restates, integrates and further amends the provisions of the Certificate of Incorporation of this Corporation as previously amended or supplemented, has been duly adopted by the Corporations Board of Directors and a majority of the stockholders in accordance with Sections 242 and 245 of the Delaware General Corporation Law, with the approval of the Corporations stockholders having been given by written consent without a meeting in accordance with Section 228 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, said Corporation has caused this Restated Certificate of Incorporation to be signed by its duly authorized officer and the foregoing facts stated herein are true and correct.
| Dated: August 18, 2005 | PROTAGENIC THERAPEUTICS, INC. | |||
| By: | /s/ Haro Hartounian | |||
| Haro Hartounian | ||||
| Assistant Secretary |
Exhibit A
RESTATED CERTIFICATE OF INCORPORATION
OF
PROTAGENIC THERAPEUTICS, INC.
I.
The name of this corporation is: PROTAGENIC THERAPEUTICS, INC.
II.
The address of the corporations registered office in the State of Delaware is at 15 East North Street in the City of Dover, County of Kent. The Registered Agent in charge thereof is Incorporating Services, Ltd.
III.
The purpose of this corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
IV.
The total number of shares of capital stock which the corporation shall have authority to issue is 10,000,000 shares of Common Stock, $0.001 par value per share (Common Stock). Effective at the time of filing with the Secretary of State of the State of Delaware of this Restated Certificate of Incorporation, each share of the Corporations Common Stock issued and outstanding shall automatically and without any action on the part of the respective holders thereof, be split into a number of shares of Common Stock of the Corporation obtained by multiplying each such share by the following fraction: 4/3.
V.
The board of directors is authorized to make, alter or repeal the bylaws of this corporation. Election of directors need not be by written ballot.
VI.
No director of this corporation shall be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the directors duty of loyalty to the corporation and its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (i ii) under Section 174 of the General Corporation Law of Delaware or (iv) for any transaction from which the director derived any improper personal benefit.
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Neither the amendment nor repeal of Article VI, nor the adoption of any provision of the certificate of incorporation inconsistent with Article VI, shall eliminate or reduce the effect of Article VI in respect of any matter occurring, or any cause of action, suit or claim that, but for Article VI would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
PROTAGENIC THERAPEUTICS, INC.
Protagenic Therapeutics, Inc. (the Company), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify:
FIRST: That by written consent of the director of the Company, the following resolution was duly adopted setting forth a proposed amendment to the Restated Certificate of Incorporation of the Company, as filed on August 19, 2005, declaring said amendment to be advisable:
| RESOLVED: | that the Restated Certificate of Incorporation of this corporation be amended by adding to the Article thereof numbered IV so that, at the end of said Article, the following shall be included: |
Effective upon the filing of this Certificate of Amendment of the Restated Certificate of Incorporation (the Certificate of Amendment), with the Secretary of State of the State of Delaware each one (1) share of the Companys Common Stock issued and outstanding shall, automatically and without any action on the part of the respective holders thereof, be split into that number of shares of Common Stock of the Company obtained by multiplying each such share by 3.471652721. No fractional shares shall be issued in connection therewith, and each stockholder otherwise entitled to receive a fractional share shall receive the next lower whole number of shares of Common Stock.
SECOND: That thereafter, pursuant to said resolution of its board of directors, the amendment was duly adopted by written consent of the stockholders of the Company.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this certificate to be signed by Haro Hartounian, its Assistant Secretary, this 25 day of October, 2006.
| /s/ Haro Hartounian |
| Haro Hartounian, Assistant Secretary |
STATE OF DELAWARE
CERTIFICATE FOR RENEWAL
AND REVIVAL OF CHARTER
The corporation organized under the laws of Delaware, the charter of which was forfeited for failure to obtain a registered agent, now desires to procure a restoration, renewal and revival of its charter, and hereby certifies as follows:
| 1. | The name of this corporation is Protagenic Therapeutics, Inc. |
| 2. | Its registered office in the State of Delaware is located at 615 South DuPont Highway , City of Dover Zip Code 19901 County of Kent the name of its registered agent is National Corporate Research, Ltd. |
| 3. | The date the Certificate of Incorporation was filed in Delaware was September 24, 2004. |
| 4. | The date when restoration, renewal, and revival of the charter of this company is to commence is the 11th day of January, 2007, same being prior to the date of the expiration of the charter. This renewal and revival of the charter of this corporation is to be perpetual. |
| 5. | This corporation was duly organized and carried on the business authorized by its charter until the 12th day of January A.D. 2007, at which time its charter became inoperative and forfeited for failure to obtain a registered agent and this certificate for renewal and revival is filed by authority of the duly elected directors of the corporation in accordance with the laws of the State of Delaware. |
IN TESTIMONY WHEREOF, and in compliance with the provisions of Section 312 of the General Corporation Law of the State of Delaware, as amended, providing for the renewal, extension and restoration of charters the last and acting authorized officer hereunto set his/her hand to this certificate this 5th day of March A.D. 2007.
| By: | /s/ Hartoun Hartounian | |
| Authorized Officer | ||
| Name: | Hartoun Hartounian | |
| Print or Type | ||
| Title: | President |
STATE OF DELAWARE
CERTIFICATE FOR RENEWAL
AND REVIVAL OF CHARTER
The corporation organized under the laws of Delaware, the charter of which was forfeited for failure to obtain a registered agent, now desires to procure a restoration, renewal and revival of its charter, and hereby certifies as follows:
| 1. | The name of this corporation is Protagenic Therapeutics, Inc. |
| 2. | Its registered office in the State of Delaware is located at 1679 S Dupont Hwy., Ste 100 Street, City of Dover Zip Code 19901 County of Kent the name of its registered agent is Registered Agent Solutions, Inc. |
| 3. | The date the Certificate of Incorporation was filed in Delaware was SEPTEMBER 24, 2004. |
| 4. | The date when restoration, renewal, and revival of the charter of this company is to commence is the 6 day of AUGUST same being prior to the date of the expiration of the charter. This renewal and revival of the charter of this corporation is to be perpetual. |
| 5. | This corporation was duly organized and carried on the business authorized by its charter until the 7 day of AUGUST A.D. 2015, at which time its charter became inoperative and forfeited for failure to obtain a registered agent and this certificate for renewal and revival is filed by authority of the duly elected directors of the corporation in accordance with the laws of the State of Delaware. |
IN TESTIMONY WHEREOF, and in compliance with the provisions of Section 312 of the General Corporation Law of the State of Delaware, as amended, providing for the renewal, extension and restoration of charters the last and acting authorized officer hereunto set his/her hand to this certificate this 14 day of September A.D. 2015.
| By: | /s/ Robert Ziroyan | |
| Authorized Officer | ||
| Name: | Robert Ziroyan | |
| Print or Type | ||
| Title: | President & COO |
CERTIFICATE OF AMENDMENT OF
THE RESTATED CERTIFICATE OF INCORPORATION
OF PROTAGENIC THERAPEUTICS, INC.
Protagenic Therapeutics, Inc., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the General Corporation Law),
DOES HEREBY CERTIFY:
FIRST: That the name of this corporation is Protagenic Therapeutics, Inc. (the Corporation) and that this Corporation was originally incorporated pursuant to the General Corporation Law on September 24, 2004 under the name Protagenic Therapeutics, Inc.
SECOND: That by unanimous written consent, the Board of Directors of the Corporation adopted resolutions setting forth a proposed amendment to the Restated Certificate of Incorporation of the Corporation, declaring said amendment to be advisable and in the best interests of the Corporation and its stockholders and authorizing the appropriate officers of the Corporation to solicit the consent of the stockholders therefor, which resolution setting forth the proposed amendment is substantially as follows:
The first sentence of Article IV is hereby amended to read in full as follows:
The total number of shares of capital stock which the corporation shall have authority to issue is 20,000,000 shares of Common Stock, $0.001 par value per share (Common Stock).
THIRD: That thereafter said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law by written consent of the stockholders holding the requisite number of shares required by statute given in accordance with and pursuant to Section 228 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, this Certificate of Amendment of the Restated Certificate of Incorporation has been executed by a duly authorized officer of this Corporation on this 29 day of SEPTEMBER, 2015.
| PROTAGENIC THERAPEUTICS, INC. | ||
| By: | /s/ Robert Ziroyan | |
| Name: | Robert Ziroyan | |
| Title: | President and Chief Operating Officer |
[Signature Page to Certificate of Amendment of the
Restated Certificate of Incorporation of Protagenic Therapeutics, Inc.]
Exhibit 3.5
BYLAWS
OF
PROTAGENIC THERAPEUTICS, INC.,
a Delaware corporation
ARTICLE I
STOCKHOLDERS
Section 1: Annual Meeting.
An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within thirteen (13) months of the last annual meeting of stockholders or, if no such meeting has been held, the date of incorporation.
Section 2: Special Meetings.
Special meetings of the stockholders, for any purpose or purposes prescribed in the notice of the meeting, may be called by the Board of Directors or the chief executive officer and shall be held at such place, on such date, and at such time as they or he or she shall fix. At any time or times that the Corporation is subject to Section 2115(b) of the California General Corporation Law (CGCL), stockholders holding five percent (5%) or more of the outstanding shares shall have the right to call a special meeting of stockholders as set forth in Article II, Section 2 herein.
Section 3: Notice of Meetings.
Written notice of the place, date, and time of all meetings of the stockholders shall be given, not less than ten (10) nor more than sixty (60) days before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here and hereinafter, as required from time to time by the Delaware General Corporation Law or the Certificate of Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written notice need not be given of the adjourned meeting if the place, date and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than thirty (30) days after the date for which the meeting was originally noticed. or if a new record date is fixed for the adjourned meeting, written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting.
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Section 4: Quorum.
At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law. Where a separate vote by a class or classes is required, a majority of the shares of such class or classes present in person or represented by proxy shall constitute a quorum entitled to take action with respect to that vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of stock entitled to vote who are present, in person or by proxy, may adjourn the meeting to another place, date, or time.
Section 5: Organization.
Such person as the Board of Directors may have designated or, in the absence of such a person, the chief executive officer of the Corporation or, in his or her absence, such person as may be chosen by the holders of a majority of the shares entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholders and act as chairman of the meeting. In the absence of the Secretary of the Corporation, the secretary of the meeting shall be such person as the chairman appoints.
Section 6: Conduct of Business.
The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seem to him or her in order. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.
Section 7: Proxies and Voting.
At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to this paragraph may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.
All voting, including on the election of directors but excepting where otherwise required by law, may be by a voice vote; provided, however, that upon demand therefore by a stockholder entitled to vote or by his or her proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be required under the procedure established for the meeting. The Corporation may, and to the extent required by law, shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a
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written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting may, and to the extent required by law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his ability. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be determined by a majority of the votes cast affirmatively or negatively.
Section 8: Stock List.
A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing the address of each such stockholder and the number of shares registered in his or her name, shall be open to the examination of any such stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the examination of any such stockholder who is present. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
Section 9: Consent of Stockholders in Lieu of Meeting.
Any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporations registered office shall be made by hand or by certified or registered mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the date the earliest dated consent is delivered to the Corporation, a written consent or consents signed by a sufficient number of holders to take action are delivered to the Corporation in the manner prescribed in the first paragraph of this Section.
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ARTICLE II
BOARD OF DIRECTORS
Section 1: Number and Term of Office.
The number of directors who shall constitute the whole Board shall be such number as the Board of Directors shall from time to time have designated, except that in the absence of any such designation, such number shall be one (l). Each director shall be elected for a term of one year and until his or her successor is elected and qualified, except as otherwise provided herein or required by law.
Whenever the authorized number of directors is increased between annual meetings of the stockholders, a majority of the directors then in office shall have the power to elect such new directors for the balance of a term and until their successors are elected and qualified. Any decrease in the authorized number of directors shall not become effective until the expiration of the term of the directors then in office unless, at the time of such decrease, there shall be vacancies on the board which are being eliminated by the decrease.
No person entitled to vote at an election for directors may cumulate votes to which such person is entitled, unless, at the time of such election, the Corporation is subject to Section 2115(b) of the CGCL. During such time or times that the Corporation is subject to Section 2115(b) of the CGCL, every stockholder entitled to vote at an election for directors may cumulate such stockholders votes and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which such stockholders shares are otherwise entitled, or distribute the stockholders votes on the same principle among as many candidates as such stockholder thinks fit. No stockholder, however, shall be entitled to so cumulate such stockholders votes unless (a) the names of such candidate or candidates have been placed in nomination prior to the voting and (b) the stockholder has given notice at the meeting, prior to the voting, of such stockholders intention to cumulate such stockholders votes. If any stockholder has given proper notice to cumulate votes, all stockholders may cumulate their votes for any candidates who have been properly placed in nomination. Under cumulative voting, the candidates receiving the highest number of votes, up to the number of directors to be elected, are elected.
Section 2: Vacancies.
If the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, a majority of the directors remaining in office, although less than a quorum, may elect a successor for the unexpired term and until his or her successor is elected and qualified.
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At any time or times that the Corporation is subject to §2115(b) of the CGCL, if, after the filling of any vacancy, the directors then in office who have been elected by stockholders shall constitute less than a majority of the directors then in office, then
(i) any holder or holders of an aggregate of five percent (5%) or more of the total number of shares at the time outstanding having the right to vote for those directors may call a special meeting of stockholders; or
(ii) the Superior Court of the proper county shall, upon application of such stockholder or stockholders, summarily order a special meeting of the stockholders, to be held to elect the entire board, all in accordance with Section 305(c) of the CGCL, the term of office of any director shall terminate upon that election of a successor.
Section 3: Removal.
Subject to any limitations imposed by applicable law and the Certificate of Incorporation (and assuming the Corporation is not subject to Section 2115 of the CGCL), the Board of Directors or any director may be removed from office at any time (i) with cause by the affirmative vote of the holders of a majority of the voting power of all then-outstanding shares of voting stock of the Corporation entitled to vote at an election of directors or (ii) without cause by the affirmative vote of the holders of a majority of the voting power of all then-outstanding shares of voting stock of the Corporation, entitled to vote at an election of directors.
During such time or times that the Corporation is subject to Section 2115(b) of the CGCL, the Board of Directors or any individual director may be removed from office at any time without cause by the affirmative vote of the holders of at least a majority of the outstanding shares entitled to vote on such removal; provided, however, that unless the entire Board is removed, no individual director may be removed when the votes cast against such directors removal, or not consenting in writing to such removal, would be sufficient to elect that director if voted cumulatively at an election which the same total number of votes were cast (or, if such action is taken by written consent, all shares entitled to vote were voted) and the entire number of directors authorized at the time of such directors most recent election were then being elected.
Section 4: Regular Meetings.
Regular meetings of the Board of Directors shall be held at such place or places, on such date or dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.
Section 5: Special Meetings.
Special meetings of the Board of Directors may be called by one-third (1/3) of the directors then in office (rounded up to the nearest whole number) or by the chief executive officer and shall be held at such place, on such date, and at such time as they or he or she shall fix. Notice of the place, date, and time of each such special meeting shall be given each
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director by whom it is not waived by mailing written notice not less than five (5) days before the meeting or by telegraphing or telexing or by facsimile transmission of the same not less than twenty-four (24) hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section 6: Quorum.
At any meeting of the Board of Directors, a majority of the total number of the whole Board shall constitute a quorum for all purposes. If a quorum shall fail to attend any meeting a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof.
Section 7: Participation in Meetings By Conference Telephone.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 8: Conduct of Business.
At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board may from time to time determine, and all matters shall be determined by the vote of a majority of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.
Section 9: Powers.
The Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, including, without limiting the generality of the foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or privileges on such terms as it shall determine;
(3) To authorize the creation, making and issuance, in such form as it may determine, of written obligations of every kind, negotiable or non-negotiable, secured or unsecured, and to do all things necessary in connection therewith;
(4) To remove any officer of the Corporation with or without cause, and from time to time to devolve the powers and duties of any officer upon any other person for the time being;
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(5) To confer upon any officer of the Corporation the power to appoint, remove and suspend subordinate officers, employees and agents;
(6) To adopt from time to time such stock option, stock purchase, bonus or other compensation plans for directors, officers, employees and agents of the Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and other benefit plans for directors, officers, employees and agents of the Corporation and its subsidiaries as it may determine; and.
(8) To adopt from time to time regulations, not inconsistent with these By-laws, for the management of the Corporations business and affairs.
Section 10: Compensation of Directors.
Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as directors, including, without limitation, their services as members of committees of the Board of Directors.
ARTICLE III
COMMITTEES
Section 1: Committees of the Board of Directors.
The Board of Directors, by a vote of a majority of the whole Board, may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee. Any committee so designated may exercise the power and authority of the Board of Directors to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of the Delaware General Corporation Law 9 if the resolution which designates the committee or a supplemental resolution of the Board of Directors shall so provide. In the absence or disqualification of any member of any committee and any alternate member in his or her place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.
Section 2. Conduct of Business.
Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings;
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one-third (1/3) of the members shall constitute a quorum unless the committee shall consist of one (l) or two (2) members, in which event one (l) member shall constitute a quorum; and all matters shall be determined by a majority vote of the members present. Action may be taken by any committee without a meeting K all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee.
ARTICLE IV
OFFICERS
Section 1: Generally.
The officers of the Corporation shall consist of a Chief Executive Officer, a President, one or more Vice Presidents, a Secretary, an Assistant Secretary and a Treasurer. The Board of Directors may also appoint one or more Assistant Secretaries, Assistant Treasurers, and such other officers and agents with such powers and duties as it shall deem necessary. Officers shall be elected by the Board of Directors, which shall consider that subject at its first meeting after every annual meeting of stockholders. Each officer shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any number of offices may be held by the same person.
Section 2: Chief Executive Officer.
Subject to the control of the Board of Directors and such supervisory powers, if any, as may be given by the Board of Directors, the powers and duties of the Chief Executive Officer of the Corporation are:
(1) To act as the general manager and, subject to the control of the Board of Directors, to have general supervision, direction and control of the business and affairs of the Corporation;
(2) To preside at all meetings of the stockholders;
(3) To call meetings of the shareholders to be held at such times and, subject to the limitations prescribed by law or by these By-laws, at such places as he or she shall deem proper; and
(4) To affix the signature of the Corporation to all deeds, conveyances, mortgages, guarantees, leases, obligations, bonds, certificates and other papers and instruments in writing which have been authorized by the Board of Directors or which, in the judgment of the Chief Executive Officer, should be executed on behalf of the Corporation; to sign certificates for shares of stock of the Corporation; and, subject to the direction of the Board of Directors, to have general charge of the property of the Corporation and to supervise all officers, agents and employees of the Corporation.
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Section 3: Chairman of the Board. The Chairman of the Board shall have the power to preside at all meetings of the Board of Directors, to sign certificates for shares of stock of the Corporation, and shall have such other powers and duties as provided in these Bylaws and as the Board of Directors may from time to time prescribe.
Section 4: President.
The President shall be the chief executive officer of the Corporation unless the Board of Directors shall have designated another officers as the Chief Executive Officer of the Corporation. Subject to the provisions of these By-laws and to the direction of the Board of Directors, and subject to the supervisory powers of the Chief Executive Officer (if the Chief Executive Officer is an officer other than the President), he or she shall have the responsibility for the general management and control of the business and affairs of the Corporation and the general supervision and direction of all of the officers, employees and agents of the Corporation (other than the Chief Executive Officer, if the Chief Executive Officer is an officer other than the President) and shall perform all duties and have all powers that are commonly incident to the office of President or that are delegated to the President by the Board of Directors.
Section 5: Vice President.
Each Vice President shall have such powers and duties as may be delegated to him or her by the Board of Directors. One (1) Vice President shall be designated by the Board to perform the duties and exercise the powers of the President in the event of the Presidents absence or disability.
Section 6: Treasurer.
The Treasurer shall have the responsibility for maintaining the financial records of the Corporation. He or she shall make such disbursements of the funds of the Corporation as are authorized and shall render from time to time an account of all such transactions and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time prescribe.
Section 7: Secretary.
The Secretary shall issue all authorized notices for, and shall keep minutes of, all meetings of the stockholders and the Board of Directors. He or she shall have charge of the corporate books and shall perform such other duties as the Board of Directors may from time to time prescribe.
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Section 8: Assistant Secretary. The Assistant Secretary shall have the power to sign certificates for shares of stock of the Corporation, and shall have such other powers and duties as provided in these By-laws and as the Board of Directors may from time to time prescribe.
Section 9: Delegation of Authority.
The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof.
Section 10: Removal.
Any officer of the Corporation may be removed at any time, with or without cause, by the Board of Directors.
Section 11: Action with Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the President or any officer of the Corporation authorized by the President shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of Stockholders of or with respect to any action of stockholders of any other corporation in which this Corporation may hold securities and otherwise to exercise any and all rights and powers which this Corporation may possess by reason of its ownership of securities in such other corporation.
ARTICLE V
STOCK
Section l: Certificates of Stock.
Each stockholder shall be entitled to a certificate signed by, or in the name of the Corporation by, the President or a Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer, certifying the number of shares owned by him or her. Any or all of the signatures on the certificate may be by facsimile.
Section 2: Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of the Corporation kept at an office of the Corporation or by transfer agents designated to transfer shares of the stock of the Corporation. Except where a certificate is issued in accordance with Section 4 of Article V of these By-laws, an outstanding certificate for the number of shares involved shall be surrendered for cancellation before a new certificate is issued therefor.
Section 3: Record Date.
In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders, or to receive payment of any dividend or other
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distribution or allotment of any rights or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of any meeting of stockholders, nor more than sixty (60) days prior to the time for such other action as hereinbefore described; provided, however, that if no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and, for determining stockholders entitled to receive payment of any dividend or other distribution or allotment of rights or to exercise any rights of change, conversion or exchange of stock or for any other purpose, the record date shall be at the close of business on the day on which the Board of Directors adopts a resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall be not more than ten (10) days after the date upon which the resolution fixing the record date is adopted. If no record date has been fixed by the Board of Directors and no prior action by the Board of Directors is required by the Delaware General Corporation Law, the record date shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in the manner prescribed by Article 1, Section 9 hereof. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the Delaware General Corporation Law with respect to the proposed action by written consent of the stockholders, the record date for determining stockholders entitled to consent to corporate action in writing shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
Section 4: Lost, Stolen or Destroyed Certificates.
In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5: Regulations.
The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors may establish.
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ARTICLE VI
NOTICES
Section 1: Notices.
Except as otherwise specifically provided herein or required by law, all notices required to be given to any stockholder, director, officer, employee or agent shall be in writing and may in every instance be effectively given by hand delivery to the recipient thereof, by depositing such notice in the mails, postage paid, or by sending such notice by prepaid telegram or mailgram. Any such notice shall be addressed to such stockholder, director, officer, employee or agent at his or her last known address as the same appears on the books of the Corporation. The time when such notice is received, if hand delivered, or dispatched, if delivered through the mails or by telegram or mailgram, shall be the time of the giving of the notice.
Section 2: Waivers.
A written waiver of any notice, signed by a stockholder, director, officer, employee or agent, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, employee or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE VII
MISCELLANEOUS
Section 1: Notices.
In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
Section 2: Corporate Seal.
The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section 3 Reliance upon Books, Reports and Records.
Each director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation and upon such information, opinions, reports or statements presented to the
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Corporation by any of its officers or employees, or committees of the Board of Directors so designated, or by any other person as to matters which such director or committee member reasonably believes are within such other persons professional or expert competence and who has been selected with reasonable care by or on behalf of the corporation.
Section 4: Fiscal Year.
The fiscal year of the Corporation shall be as fixed by the Board of Directors.
Section 5: Time Periods.
In applying any provision of these By-laws which requires that an act be done or not be done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS
Section 1: Indemnification - Third Party Proceedings.
The Corporation shall indemnify any person (the Indemnitee) who is or was a party or is threatened to be made a party to any proceeding (other than an action by or in the right of the Corporation to procure a judgment in its favor) by reason of the fact that Indemnitee is or was a director or officer of the Corporation, or any subsidiary of the Corporation, and the Corporation may indemnify a person who is or was a party or is threatened to be made a party to any proceeding (other than an action by or in the right of the Corporation to procure a judgment in its favor) by reason of the fact that such person is or was an employee or other agent of the Corporation (the Indemnitee Agent) by reason of any action or inaction on the part of Indemnitee or Indemnitee Agent while an officer, director or agent or by reason of the fact that Indemnitee or Indemnitee Agent is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including subject to Section 8.19, attorneys fees and any expenses of establishing a right to indemnification pursuant to this Article VIII or under Delaware law), judgments, fines, settlements (if such settlement is approved in advance by the Corporation, which approval shall not be unreasonably withheld) and other amounts actually and reasonably incurred by Indemnitee or Indemnitee Agent in connection with such proceeding if Indemnitee or Indemnitee Agent acted in good faith and in a manner Indemnitee or Indemnitee Agent reasonably believed to be in or not opposed to the best interests of the Corporation and, in the case of a criminal proceeding, if Indemnitee or Indemnitee Agent had no reasonable cause to believe Indemnitees or Indemnitee Agents conduct was unlawful. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that Indemnitee or Indemnitee Agent did not act in good faith and in a manner which Indemnitee or
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Indemnitee Agent reasonably believed to be in or not opposed to the best interests of the Corporation, or with respect to any criminal proceedings, would not create a presumption that Indemnitee or Indemnitee Agent had reasonable cause to believe that Indemnitees or Indemnitee Agents conduct was unlawful.
Section 2: Indemnification - Proceedings by or in the Right of the Corporation.
The Corporation shall indemnify Indemnitee and may indemnify Indemnitee Agent if Indemnitee, or Indemnitee Agent, as the case may be, was or is a party or is threatened to be made a party to any threatened, pending or completed action by or in the right of the Corporation or any subsidiary of the Corporation to procure a Judgment in its favor by reason of the fact that Indemnitee or Indemnitee Agent is or was a director, officer, employee or other agent of the Corporation, or any subsidiary of the Corporation, by reason of any action or inaction on the part of Indemnitee or Indemnitee Agent while an officer, director or agent or by reason of the fact that Indemnitee or Indemnitee Agent is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including subject to Section 8.19, attorneys fees and any expenses of establishing a right to indemnification pursuant to this Article VIII or under Delaware law) and, to the fullest extent permitted by law, amounts paid in settlement, in each case to the extent actually and reasonably incurred by Indemnitee or Indemnitee Agent in connection with the defense or settlement of the proceeding if Indemnitee or Indemnitee Agent acted in good faith and in a manner Indemnitee or Indemnitee Agent believed to be in or not opposed to the best interests of the Corporation and its stockholders, except that no indemnification shall be made with respect to any claim, issue or matter to which Indemnitee or Indemnitee Agent shall have been adjudged to have been liable to the Corporation in the performance of Indemnitees or Indemnitee Agents duty to the Corporation and its stockholders, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, Indemnitee or Indemnitee Agent is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine.
Section 3: Successful Defense on Merits.
To the extent that Indemnitee or Indemnitee Agent without limitation has been successful on the merits in defense of any proceeding referred to in Sections 8.1 or 8.2 above, or in defense of any claim, issue or matter therein, the Corporation shall indemnify Indemnitee or Indemnitee Agent against expenses (including attorneys fees) actually and reasonably incurred by Indemnitee or Indemnitee Agent in connection therewith.
Section 4. Certain Terms Defined.
For purposes of this Article VIII, references to other enterprises shall include employee benefit plans, references to fines shall include any excise taxes assessed on Indemnitee or Indemnitee Agent with respect to an employee benefit plan, and references to proceeding shall include any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative. References to Corporation include all constituent corporations absorbed in a consolidation or merger as well as the resulting or
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surviving corporation, so that any person who is or was a director, officer, employee, or other agent of such a constituent corporation or who, being or having been such a director, officer, employee or other agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as such person would if he or she had served the resulting or surviving corporation in the same capacity.
Section 5: Advancement of Expenses.
The Corporation shall advance all expenses incurred by Indemnitee and may advance all or any expenses incurred by Indemnitee Agent in connection with the investigation, defense, settlement (excluding amounts actually paid in settlement of any action, suit or proceeding) or appeal of any civil or criminal action, suit or proceeding referenced in Sections 8.1 or 8.2 hereof. Indemnitee or Indemnitee Agent hereby undertakes to repay such amounts advanced only if, and to the extent that, it shall be determined ultimately that Indemnitee or Indemnitee Agent is not entitled to be indemnified by the Corporation as authorized hereby. The advances to be made hereunder shall be paid by the Corporation (i) to Indemnitee within twenty (20) days following delivery of a written request therefor by Indemnitee to the Corporation; and (ii) to Indemnitee Agent within twenty (20) days following the later of a written request therefor by Indemnitee Agent to the Corporation and determination by the Corporation to advance expenses to Indemnitee Agent pursuant to the Corporations discretionary authority hereunder.
Section 6: Notice of Claim.
Indemnitee shall, as a condition precedent to his or her right to be indemnified under this Article VIII, and Indemnitee Agent shall, as a condition precedent to his or her ability to be indemnified under this Article VIII, give the Corporation notice in writing as soon as practicable of any claim made against Indemnitee or Indemnitee Agent, as the case may be, for which indemnification will or could be sought under this Article VIII. Notice to the Corporation shall be directed to the secretary of the Corporation at the principal business office of the Corporation (or such other address as the Corporation shall designate in writing to Indemnitee). In addition, Indemnitee or Indemnitee Agent shall give the Corporation such information and cooperation as it may reasonably require and as shall be within Indemnitees or Indemnitee Agents power.
Section 7: Enforcement Rights.
Any indemnification provided for in Sections 8.1 or 8.2 or 8.3 shall be made no later than sixty (60) days after receipt of the written request of Indemnitee. If a claim or request under this Article VIII, under any statute, or under any provision of the Corporations Articles of Incorporation providing for indemnification is not paid by the Corporation, or on its behalf, within sixty (60) days after written request for payment thereof has been received by the Corporation, Indemnitee may, but need not, at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim or request, and subject to Section 8.19, Indemnitee shall also be entitled to be paid for the expenses (including attorneys fees) of bringing such action. It shall be a defense to any such action (other than an action brought to
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enforce a claim for expenses incurred in connection with any action, suit or proceeding in advance of its final disposition) that Indemnitee has not met the standards of conduct which make it permissible under applicable law for the Corporation to indemnify Indemnitee for the amount clamed, but the burden of proving such defense shall be on the Corporation, and Indemnitee shall be entitled to receive interim payments of expenses pursuant to Section 8.5 unless and until such defense may be finally adjudicated by court order or judgment for which no further right of appeal exists. The parties hereto intend that if the Corporation contests Indemnitees right to indemnification, the question of Indemnitees right to indemnification shall be a decision for the court, and no presumption regarding whether the applicable standard has been met will arise based on any determination or lack of determination of such by the Corporation (including its Board or any subgroup thereof, independent legal counsel or its stockholders). The board of directors may, in its discretion, provide by resolution for similar or identical enforcement rights for any Indemnitee Agent.
Section 8: Assumption of Defense.
In the event the Corporation shall be obligated to pay the expenses of any proceeding against the Indemnitee or Indemnitee Agent, as the case may be, the Corporation, if appropriate, shall be entitled to assume the defense of such proceeding with counsel approved by Indemnitee or Indemnitee Agent, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee or Indemnitee Agent of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee or Indemnitee Agent and the retention of such counsel by the Corporation, the Corporation will not be liable to Indemnitee or Indemnitee Agent under this Article VIII for any fees of counsel subsequently incurred by Indemnitee or Indemnitee Agent with respect to the same proceeding, unless (i) the employment of counsel by Indemnitee or Indemnitee Agent is authorized by the Corporation, (ii) Indemnitee or Indemnitee Agent shall have reasonably concluded that there may be a conflict of interest of such counsel retained by the Corporation between the Corporation and Indemnitee or Indemnitee Agent in the conduct of such defense, or (iii) the Corporation ceases or terminates the employment of such counsel with respect to the defense of such proceeding, in any of which events then the fees and expenses of Indemnitees or Indemnitee Agents counsel shall be at the expense of the Corporation. At all times, Indemnitee or Indemnitee Agent shall have the right to employ other counsel in any such proceeding at Indemnitees or Indemnitee Agents expense.
Section 9: Approval of Expenses.
No expenses for which indemnity shall be sought under this Article VIII, other than those in respect of judgments and verdicts actually rendered, shall be incurred without the prior consent of the Corporation, which consent shall not be unreasonably withheld.
Section 10: Subrogation.
In the event of payment under this Article VIII, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee or Indemnitee Agent, who shall do all things that may be necessary to secure such rights, including the execution of such documents necessary to enable the Corporation effectively to bring suit to enforce such rights.
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Section 11: Exceptions.
Notwithstanding any other provision herein to the contrary, the Corporation shall not be obligated pursuant to this Article VIII:
(a) Excluded Acts. To indemnify Indemnitee (i) as to circumstances in which indemnity is expressly prohibited pursuant to Delaware law, or (ii) for any acts or omissions or transactions from which a director may not be relieved of liability pursuant to Delaware law; or
(b) Claims Initiated by Indemnitee. To indemnify or advance expenses to Indemnitee with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to proceedings brought to establish or enforce a right to indemnification under this Article VIII or any other statute or law or as otherwise required under the Delaware General Corporation Law, but such indemnification or advancement of expenses may be provided by the Corporation in specific cases if the board of directors has approved the initiation or bringing of such suit; or
(c) Lack of Good Faith. To indemnify Indemnitee for any expenses incurred by the Indemnitee with respect to any proceeding instituted by Indemnitee to enforce or interpret this Article VIII, if a court of competent jurisdiction determines that such proceeding was not made in good faith or was frivolous; or
(d) Insured Claims. To indemnify Indemnitee for expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) which have been paid directly to Indemnitee by an insurance carrier under a policy of officers and directors liability insurance maintained by the Corporation; or
(e) Claims Under Section 16(b). To indemnify Indemnitee for expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.
Section 12: Partial Indemnification.
If Indemnitee is entitled under any provision of this Article VIII to indemnification by the Corporation for some or a portion of the expenses, judgments, fines or penalties actually or reasonably incurred by the Indemnitee in the investigation, defense, appeal or settlement of any civil or criminal action, suit or proceeding, but not, however, for the total amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion of such expenses, judgments, fines or penalties to which Indemnitee is entitled.
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Section 13: Coverage.
This Article VIII shall, to the extent permitted by law, apply to acts or omissions of (i) Indemnitee which occurred prior to the adoption of this Article VIII if Indemnitee was a director or officer of the Corporation or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, at the time such act or omission occurred; and (ii) Indemnitee Agent which occurred prior to the adoption of this Article VIII if Indemnitee Agent was an employee or other agent of the Corporation or was serving at the request of the Corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise at the time such act or omission occurred. All rights to indemnification under this Article VIII shall be deemed to be provided by a contract between the Corporation and the Indemnitee in which the Corporation hereby agrees to indemnify Indemnitee to the fullest extent permitted by law, notwithstanding that such indemnification is not specifically authorized by the Corporations Certificate of Incorporation, these Bylaws or by statute. Any repeal or modification of these Bylaws, the Delaware General Corporation Law or any other applicable law shall not affect any rights or obligations then existing under this Article VIII. The provisions of this Article VIII shall continue as to Indemnitee and Indemnitee Agent for any action taken or not taken while serving in an indemnified capacity even though the Indemnitee or Indemnitee Agent may have ceased to serve in such capacity at the time of any action, suit or other covered proceeding. This Article VIII shall be binding upon the Corporation and its successors and assigns and shall inure to the benefit of Indemnitee and Indemnitee Agent and Indemnitees and Indemnitee Agents estate, heirs, legal representatives and assigns.
Section 14: Non-Exclusivity
Nothing herein shall be deemed to diminish or otherwise restrict any rights to which Indemnitee or Indemnitee Agent may be entitled under the Corporations Certificate of Incorporation, these Bylaws, any agreement, any vote of stockholders or disinterested directors, or under the laws of the State of Delaware.
Section 15. Severability.
Nothing in this Article VII is intended to require or shall be construed as requiring the Corporation to do or fail to do any act in violation of applicable law. If this Article VIII or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify Indemnitee or Indemnitee Agent to the fullest extent permitted by any applicable portion of this Article VIII that shall not have been invalidated.
Section 16: Mutual Acknowledgement.
Both the Corporation and Indemnitee acknowledge that in certain instances, Federal law or applicable public policy may prohibit the Corporation from indemnifying its directors and officers under this Article VIII or otherwise. Indemnitee understands and acknowledges that the Corporation has undertaken or may be required in the future to undertake with the Securities and Exchange Commission to submit the question of indemnification to a court in certain circumstances for a determination of the Corporations right under public policy to indemnify Indemnitee.
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Section 17: Officer and Director Liability Insurance.
The Corporation shall, from time to time, make the good faith determination whether or not it is practicable for the Corporation to obtain and maintain a policy or policies of insurance with reputable insurance companies providing the officers and directors of the Corporation with coverage for losses from wrongful acts, or to ensure the Corporations performance of its indemnification obligations under this Article VIII. Among other considerations, the Corporation will weigh the costs of obtaining such insurance coverage against the protection afforded by such coverage. Notwithstanding the foregoing, the Corporation shall have no obligation to obtain or maintain such insurance if the Corporation determines in good faith that such insurance is not reasonably available, if the premium costs for such insurance are disproportionate to the amount of coverage provided, if the coverage provided by such insurance is limited by exclusions so as to provide an insufficient benefit, or if Indemnitee is covered by similar insurance maintained by a subsidiary or parent of the Corporation.
Section 18: Notice to Insurers.
If, at the time of the receipt of a notice of a claim pursuant to Section 8.6 hereof, the Corporation has director and officer liability insurance in effect, the Corporation shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Corporation shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.
Section 19: Attorneys Fees.