Exhibit
4.1
CERTIFICATE
OF DESIGNATION
OF
THE
RELATIVE RIGHTS AND PREFERENCES
OF
THE
SERIES A CONVERTIBLE PREFERRED STOCK
OF
LODE-STAR
MINING INC.
It
is hereby certified that:
a) The
name of the corporation (hereinafter called the “Company”) is Lode-Star Mining Inc.
b) The
articles of incorporation of the Company authorizes the issuance of 20,000,000 shares of preferred stock, par value $0.001 per share,
and expressly vests in the Board of Directors of the Company (the “Board”) the authority provided therein to issue
any or all of said shares in one or more series and by resolution or resolutions, with each such series to have such designation, relative
rights, preferences or limitations, as shall be stated and expressed in the resolution or resolutions providing for the issue of such
series adopted by the Board.
c) The
Board, pursuant to the authority expressly vested in it as aforesaid, has adopted the following resolutions creating an issue of convertible
preferred stock:
RESOLVED,
that there be and hereby is authorized and created a series of preferred stock, hereby designated as the Series A Convertible Preferred
Stock, which shall have the voting powers, designations, preferences and relative participating, optional or other rights, if any, or
the qualifications, limitations, or restrictions, set forth in such articles of incorporation and in addition thereto, those following:
1. Designation
and Amount. The preferred stock subject hereof shall be designated Series A Convertible Preferred Stock (the “Series A Preferred”),
and the number of shares constituting Series A Preferred shall be one million (1,000,000). No other shares of preferred stock shall be
designated as Series A Preferred.
2. Voting
Rights. The holders of shares of Series A Preferred shall be entitled to the following voting rights:
(a) The
holders of record of Series A Preferred shall be entitled to notice of, and to vote or consent to, all actions on which holders of
Common Stock are required or permitted to act upon, including, without limitation, the election of directors. Except as otherwise
provided herein or by law and in addition to any right to vote as a separate class as provided by law, the holders of Series A
Preferred shall have full voting rights and powers equal to the voting rights and powers of the holders of Common Stock and other
series of Preferred Stock, shall be entitled to notice of any shareholders meeting in accordance with the Bylaws of the Company, and
shall be entitled to vote, with respect to any question upon which the holders of Common Stock and the other series of Preferred
Stock have the right to vote. For so long as any shares of the Series A Preferred are issued and outstanding, the holders of Series
A Preferred shall vote together as a single class with the holders of Common Stock and the holders of any other class or series of
shares entitled to vote with the Common Stock, with the holders of Series A Preferred being entitled to 450 votes per share, and the
holders of Common Stock and any other shares entitled to vote being entitled to one (1) vote per share, except as the articles of
incorporation of the Company may otherwise provide.
(b) A
special meeting of holders of Series A Preferred (or a request for a vote by written consent without a meeting) to approve or disapprove
any action of the Company on which the holders of Series A Preferred are entitled to vote as a separate class by law or pursuant to this
Section 2 may be called by the President of the Company or by the holder(s) of sixty-six and two-thirds percent (66 2/3%) or more of
the outstanding shares of Series A Preferred on written notice to the address of each holder thereof as it appears on the records of
the Company deposited in the U.S. mail, all charges prepaid, at least ten (10) but no more than sixty (60) days prior to the applicable
vote. The record date for determination of the holders of Series A Preferred entitled to vote by written consent or at a meeting shall
be set by the Board, and only holders who are holding of record on the stock book of the Company on that date will be entitled to participate
in such vote. Whenever holders of Series A Preferred are required or permitted to take any action by vote, such action may be taken without
a meeting on written consent, setting forth the action so taken and signed by the holders of the outstanding capital stock of the Company
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. At any time at which any share of Series A Preferred has been issued and is outstanding,
no proposal for the Company to take any action described in this paragraph (c) shall be adopted, nor shall the Company be authorized
to take any such action, unless the holders of at least sixty-six and two-thirds percent (66 2/3%) of the outstanding shares of Series
A Preferred voting as a separate class vote in favor of such proposal.
(c) As
long as any shares of Series A Preferred are outstanding, the Company shall not, without the written consent or affirmative vote of the
holders of the then-outstanding shares of Series A Preferred, consenting or voting (as the case may be) as a separate class from the
Common Stock, either directly or by amendment, merger, consolidation or otherwise:
(i) amend
its articles of incorporation in any manner that adversely affects the rights of the holders of Series A Preferred, including without
limitation, creating any new series of Preferred Stock;
(ii) alter
or change adversely the voting or other powers, preferences, rights, privileges, or restrictions of Series A Preferred contained herein
or alter or amend this Certificate of Designation; or
(iii)
enter into any agreement with respect to any of the foregoing.
(d) Copies
of all notices sent to the holders of Common Stock shall be simultaneously sent to each holder of Series A Preferred.
3. Conversion.
(a) Each issued and outstanding share of Series A Preferred shall be convertible, at any time and from time to time, into 450 shares
of Common Stock.
(b) The
holder of any shares of Series A Preferred may exercise the conversion right set forth herein by delivering to the Company or any transfer
agent of the Company for the Series A Preferred as may be designated by the Company, one or more certificates representing the shares
to be converted, duly endorsed or assigned in blank to the Company (if required by it) (or such holder shall notify the Company or any
transfer agent that such certificate(s) have been lost, stolen or destroyed and shall execute an agreement reasonably satisfactory to
the Company to indemnify the Company from any loss incurred by it in connection therewith), accompanied by written notice stating that
the holder elects to convert such shares and stating the name or names (with address) in which the certificate or certificates representing
the shares of Common Stock issuable upon such conversion are to be issued. Conversion shall be deemed to have been effected on the date
when the aforesaid delivery is made or as provided below in Section 4(g) (the “Conversion Date”).
(c) As
promptly as practicable thereafter, the Company shall issue and deliver to or upon the written order of such holder, to the place designated
by such holder, one or more certificates representing the shares of Common Stock to which such holder is entitled. The person in whose
name the certificate(s) representing Common Stock are to be issued shall be deemed to have become a Common Stock holder of record on
the applicable Conversion Date. The Company shall not close its books against the transfer of shares of Series A Preferred in any manner
that would interfere with the timely conversion of any shares of Series A Preferred. Upon conversion of only a portion of the number
of shares covered by a certificate representing shares of Series A Preferred surrendered for conversion, the Company shall issue and
deliver to or upon the written order of the holder of the certificate so surrendered for conversion, at the expense of the Company, a
new certificate covering the number of shares of the Series A Preferred representing the unconverted portion of the certificate so surrendered.
(d) No
fractional shares of Common Stock shall be issued upon conversion of shares of Series A Preferred. If more than one share of Series A
Preferred shall be surrendered, or deemed surrendered, pursuant to subsection (c) above, for conversion at any one time by the same holder,
the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of
shares of such Series A Preferred so surrendered. Any fractional share which would otherwise be issuable upon conversion of any shares
of Series A Preferred (after aggregating all shares of Series A Preferred held by each holder) shall be rounded to the nearest whole
number (with one-half being rounded upward).
(e) The
Company shall at all times reserve out of its authorized but unissued shares of Common Stock a sufficient number of shares to
provide for the full conversion of all outstanding shares of Series A Preferred. In the event that the Company has an insufficient
number of shares of authorized but unissued shares of Common Stock to effect such conversion, upon any holder of the Series A
Preferred expressing a written intention to convert its shares, the Company shall take any and all actions reasonably necessary to
provide for a sufficient number of authorized shares of Common Stock to effect such conversion, including without limitation, the
increase in the number of authorized shares and/or a reverse stock split of the Common Stock.
(f) All
shares of Common Stock which may be issued in connection with the conversion provisions set forth herein will, upon issuance by the Company,
be validly issued, fully paid and nonassessable, with no personal liability attaching to the ownership thereof, and free from all taxes,
liens or charges with respect thereto.
(g) Each
holder of shares of Series A Preferred shall be entitled to receive written notice from the Company, by overnight delivery or first class
mail, postage prepaid, addressed to such holder at the last address of such holder as shown by the records of the Company, of any proposed
dividend or distribution, liquidation, dissolution or winding up of the Company, or any Business Combination, at least ten (10) days
prior to the date on which any such event is scheduled to occur, and, at any time prior to, or conditioned upon the consummation of and
to occur immediately prior to, such liquidation, dissolution or winding up or Business Combination, to convert any or all of such holder’s
shares of Series A Preferred into shares of Common Stock pursuant to this Section 3. The notice of any such event shall at a minimum
specify the consideration to be received by shareholders in such event in the aggregate, the consideration to be received on a per share
basis by the holders of Common Stock and the consideration to be received on a per share basis by the holders of Series A Preferred.
The term “Business Combination” shall mean (x) a merger, share exchange or consolidation of the Company with any other
corporation or entity; (y) the sale, lease, exchange, mortgage, pledge, transfer or other disposition or encumbrance, whether in one
transaction or a series of transactions, by the Company of all or substantially all of the Company’s assets; or (z) any agreement,
contract or other arrangement providing for any of the foregoing transactions.
4. Preference
and Participation Upon Liquidation, Dissolution or Winding Up. The Series A Preferred shall rank senior and prior to all other securities
issued by the Company upon any liquidation, dissolution or winding up of the Company. Upon the holders of the Series A Preferred having
received the distributions to which they are entitled, the remaining assets of the Company available for distribution to shareholders
shall be distributed among the holders of Common Stock and the Series A Preferred, on an as converted basis, pro rata in proportion to
the number of shares of Common Stock held by each holder. A Business Combination shall be deemed a liquidation of the Company for purposes
of this Section 4.
5. Dividends.
Dividends may be paid on the Series A Preferred as and when declared by the Board.
6. Other
Preferences. The shares of the Series A Preferred shall have no other preferences, rights, restrictions, or qualifications, except
as otherwise provided by law or the Articles of Incorporation of the Company.
IN
WITNESS HEREOF, the undersigned has executed this Certificate of Designation as of this 23 day of December, 2021.
|
|
LODE-STAR
MINING INC.
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
Mark Walmesley
|
|
|
Title:
President
|
Exhibit
10.1
ASSET
PURCHASE AGREEMENT
This
Asset Purchase Agreement (this “Agreement”) is made this 23rd day of December, 2021, by and between
Lode-Star Mining Inc., a Nevada corporation (the “Buyer”), and Sapir Pharmaceuticals, Inc., a Delaware corporation
(the “Seller”).
WHEREAS,
the Seller desires to sell, and the Buyer desires to purchase, on the terms and subject to the conditions in this Agreement, all of the
Seller’s assets used in connection with the proprietary stabilized formulation of the Epigallocatechin-gallate (EGCG) molecule
for further pharmaceutical development (the “Business”), in exchange for the consideration set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and of the respective promises, representations, warranties and covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, intending to be legally bound,
the parties agree as follows:
ARTICLE
I
SALE AND PURCHASE OF ASSETS
Section
1.1 Purchased Assets. Upon the terms and subject to the conditions set forth herein, and on the basis of the representations and
warranties contained herein, at the Closing (as defined herein), Seller shall sell, convey, transfer, assign and deliver to the Buyer,
and the Buyer shall purchase, acquire and accept from the Seller, all of the right, title and interest in and to all of the following
related to the Business, as more particularly described in Exhibit A attached hereto:
(a) all
patents, registered and unregistered trademarks, service marks, logos, corporate and trade names, brands, domain names, social media
accounts and handles, licenses, phone numbers, fax numbers, registered and common law copyrights, and all applications therefor, database
rights and any other rights in technology, and all inventions, discoveries, techniques, processes, methods, formulae, designs, trade
secrets, confidential information, know-how, data and ideas, whether or not reduced to writing, used in the Business;
(b) all
claims, causes of action, choses in action and rights of recovery and setoff relating to the Business;
(c) any
agreements relating to the Business;
(d) all
books, records, files, computer hardware and software passwords, administrator rights and other keys, ledgers, drawings, specifications
and manuals, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists,
supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development
files, records and data (including all correspondence with any governmental authority), sales material and records, strategic plans,
advertising materials and marketing and promotional surveys, and all purchase order forms, labels, shipping materials, catalogs, and
brochures, in each case relating to the conduct of the Business or any of the assets, and all confidential information which relates
to the Business as of immediately prior to the Closing regardless of the form in which such information appears;
(e) all goodwill of the Business or associated with any of the Assets; and
(f) all
other assets of the Seller, tangible or intangible, which are used or useful in connection with, or relate to, the Business.
The
assets, properties and rights to be conveyed, sold, transferred, assigned and delivered to Buyer pursuant to this Agreement are sometimes
hereinafter collectively referred to as the “Assets”.
Section
1.2 Purchase Price. As full and complete payment for the Assets, on the Closing Date (as defined herein) the Buyer shall issue
to Seller 1,000,000 shares of a newly created series of preferred stock of Buyer (the “Preferred Stock”) at a deemed
price of $1.00 per share. The terms of the Preferred Stock shall include, without limitation, the ability of the holder to vote and convert
each one (1) share of issued and outstanding Preferred Stock into 450 shares of common stock of Buyer (such common stock, together with
the Preferred Stock, the “Shares”).
Section
1.3 Royalty. At the Closing, the Buyer and the Seller shall execute a royalty agreement in form and substance satisfactory to
the Seller, acting reasonably, providing the Seller with a royalty equal to five percent (5%) of the gross revenues realized from licenses
or products generated or derived from the Business (the “Royalty Agreement”).
ARTICLE
II
CLOSING; DOCUMENTS OF CONVEYANCE
Section
2.1 Closing. Subject to the satisfaction of the conditions set forth in Articles V and VI, the purchase and sale contemplated
hereby shall be consummated at a closing (referred to herein as the “Closing”) to be held on or about December 23rd
, 2022 or within three (3) business days after the satisfaction or, to the extent permitted hereunder, waiver of all conditions
set forth in Articles V and VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the
satisfaction or, to the extent permitted, waiver of all such conditions) (the “Closing Date”). The purchase and sale
shall be deemed effective for all purposes as of 5:00 p.m. (New York time) on the Closing Date.
Section
2.2 Actions to be Taken at the Closing. At the Closing, (a) Buyer will (i) issue the Preferred Stock to the Seller and (ii) execute
and deliver the Royalty Agreement to the Seller; and (b) Seller will (i) deliver the Assets to the Buyer; (ii) execute and deliver the
Royalty Agreement to the Buyer; (iii) execute and deliver a Bill of Sale and Assignment Agreement, substantially in the form attached
hereto as Exhibit B (the “Bill of Sale”), to the Buyer; (iv) deliver any approvals, consents, ratifications,
waivers or other authorization (“Consents”) of any Person (as defined below), as the Buyer may reasonably request;
and (v) deliver any requested resolutions and incumbency certificates of the directors and officers of the Seller required to enter into
this Agreement and consummate the transactions described herein and referred to in Article V. In addition, each of the Buyer and the
Seller shall execute and deliver all other Consents and resolutions as the other party may reasonably request, including evidence of
the authorization of its execution, delivery, and performance of the Transaction Documents (as defined herein).
Section
2.3 Power of Attorney. Effective upon the Closing Date, Seller hereby irrevocably constitutes and appoints the Buyer as the true
and lawful attorney of the Seller with full power of substitution, in the name of the Seller, on behalf of and for the benefit of the
Buyer, to collect all items being transferred, conveyed and assigned to the Buyer as provided herein, to endorse, without recourse, checks,
notes and other instruments in the name of the Seller which have been transferred to the Buyer, to institute and prosecute, in the name
of the Seller or otherwise, all proceedings which the Buyer may deem proper in order to collect, assert or enforce any claim, right or
title of any kind in or to the Assets, to defend and compromise any and all actions, suits or proceedings in respect of any of the Assets,
and to do all such acts and things in relation thereto as the Buyer may deem reasonably advisable. The Seller agrees that the foregoing
powers are coupled with an interest and shall be irrevocable by the Seller directly or indirectly in any manner or for any reason.
Section
2.4 Purchase Price Allocation. The Preferred Stock, representing the purchase price for the Assets, shall be allocated among the
Assets according to an allocation that the parties undertake to settle upon, acting reasonably, and prior to Closing. The Seller and
the Buyer agree that in the absence of agreement, the amounts so attributed to the Assets are the respective fair market values thereof,
and shall file in mutually agreeable form all elections required or desirable under the Internal Revenue Code of 1986, as amended, in
respect of the foregoing allocations.
ARTICLE
III
REPRESENTATIONS AND WARRANTIES OF BUYER
The
Buyer represents and warrants to the Seller as follows:
Section
3.1 Organization, Qualification and Corporate Power. Buyer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada. Buyer is duly qualified to conduct business and is in good standing under the laws of each jurisdiction
in which the nature of its businesses or the ownership or leasing of its properties requires such qualification, except where the failure
to be so qualified or in good standing, individually or in the aggregate, has not had and would not reasonably be expected to have a
material adverse effect. Buyer has all requisite corporate power and authority to carry on the businesses in which it is engaged and
to own and use the properties owned and used by it.
Section
3.2 Authority; Binding Nature of Agreement. The Buyer has the absolute and unrestricted right, power and authority to enter into
and to perform its obligations under this Agreement; the execution, delivery and performance by Buyer of this Agreement has been duly
authorized by all necessary action on the part of Buyer. This Agreement constitutes a legal, valid and binding obligation of Buyer, enforceable
against it in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief
of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
Section
3.3 Non-Contravention. Neither the execution, delivery or performance of this Agreement, nor the consummation of any of the transactions
contemplated by this Agreement, will directly or indirectly (with or without notice or lapse of time):
(a)
contravene, conflict with or result in a violation of (i) the provisions of the Articles of Incorporation or Bylaws of Buyer, or
(ii) any resolution adopted by the shareholders or Board of Directors of Buyer;
(b)
contravene, conflict with or result in a violation of, or give any governmental body or any individual, corporation (including any
non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust,
company (including any limited liability company or joint stock company), firm or other enterprise, association, organization or
entity (“Person”) the right to challenge any of the transactions contemplated by this Agreement or to exercise
any remedy or obtain any relief under, any federal, state, local, municipal, foreign or other law, statute, constitute, principle of
common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted,
promulgated, implemented or otherwise put into effect (collectively, “Law”) by or under the authority of any
governmental body (“Legal Requirement”) or any order, writ, injunction, judgment, or decree to which Buyer or any
of the assets owned or used by it, is subject; or
(c)
contravene, conflict with or result in a violation of, or breach of, or result in a default under, any provision of any contracts,
indentures, notes, bonds, leases, commitments, plans, arrangements, instruments or other agreements, in each case whether written or
oral (“Contracts”), to which Buyer is a party, or give any Person the right to (i) declare a default or exercise
any remedy under any such Contract, (ii) accelerate the maturity or performance of any such Contract, or (iii) cancel, terminate or
modify any such Contract.
Buyer
is not and at the time of the Closing will not be required to make any filing with or give any notice to, or to obtain any Consent from,
any Person in connection with (i) the execution, delivery or performance of this Agreement or any of the other agreements referred to
in this Agreement, or (ii) the consummation of any of the transactions contemplated by this Agreement, other than the filing of a Current
Report on Form 8-K with the Securities and Exchange Commission (the “SEC”).
Section
3.4 Preferred Stock. The Preferred Stock to be delivered by Buyer to Seller representing the complete purchase price for the Assets
is, or will be by the Closing, duly authorized, fully paid and non-assessable. None of the shares of Preferred Stock will be issued under
this Agreement in violation of any preemptive, preferential or similar rights of any Person. The delivery to Seller of the Preferred
Stock pursuant to this Agreement will vest in the Seller good and valid title to the Preferred Stock, free of any liabilities, obligations,
claims, security interests, pledges, mortgages, liens, charges, encumbrances, licenses, easements, rights-of-way, clouds on title, adverse
claims, preferential arrangements or restrictions of any kind, including, but not limited to, any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership (collectively, “Encumbrances”), other than as set
forth in applicable federal and state securities laws and regulations.
Section
3.5 Certificate of Designation. Attached to this Agreement as Exhibit C is the Certificate of Designation authorizing the
designation of the Preferred Stock to be filed with the Secretary of State of the State of Nevada prior to the Closing. The terms of
the Preferred Stock shall include (i) voting rights that entitle the Seller to 450 votes for each issued and outstanding share of Preferred
Stock, which will equal approximately 90% of the aggregate voting power of the Buyer immediately following the Closing; (ii) conversion
rights that enable the Seller to convert each share of Preferred Stock into 450 shares of common stock of Buyer, which would represent
90% of the issued and outstanding shares of the common stock of the Buyer immediately following the Closing; and (iii) seniority rights
over the holders of the common stock upon any liquidation, dissolution or winding up of the Buyer.
Section
3.6 Full Disclosure. This Agreement does not (i) contain any representation, warranty or information regarding the Buyer that
is false or misleading with respect to any material fact, or (ii) omit to state any material fact necessary in order to make the representations,
warranties and information of the Buyer contained herein not false or misleading.
ARTICLE
IV
REPRESENTATIONS AND WARRANTIES OF SELLER
The
Seller represents and warrants to the Buyer as follows:
Section
4.1 Organization, Qualification and Corporate Power. Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. Seller is duly qualified to conduct business and is in good standing under the laws of each
jurisdiction in which the nature of its businesses or the ownership or leasing of its properties requires such qualification. Seller
has all requisite power and authority to carry on the businesses in which it is engaged and to own and use the properties owned and used
by it.
Section
4.2 Authority; Binding Nature of Agreement. Seller has the absolute and unrestricted right, power and authority to enter into
and to perform its obligations under this Agreement and the Bill of Sale (together, the “Transaction Documents”).
The Transaction Documents constitute legal, valid and binding obligations of Seller, enforceable against Seller in accordance with their
respective terms.
Section
4.3 Non-Contravention. Neither (i) the execution, delivery or performance of this Agreement or any of the other Transaction
Documents, nor (ii) the consummation of any of the transactions contemplated by this Agreement, will directly or indirectly (with or
without notice or lapse of time) (a) contravene, conflict with or result in a violation of (a) the provisions of the Certificate of
Incorporation and Bylaws of Seller, or any resolution adopted by the directors and shareholders of Seller, (b) contravene, conflict
with or result in a violation of, or give any governmental body or other Person the right to challenge any of the transactions
contemplated by this Agreement or to exercise any remedy or obtain any relief under, any Legal Requirement or any order, writ,
injunction, judgment or decree to which Seller or the Assets is subject or (c) contravene, conflict with or result in a violation
of, or breach of, or result in a default under, any provision of any Contract to which Seller is a party, or give any Person the
right to (i) declare a default or exercise any remedy under any such Contract, (ii) accelerate the maturity or performance of any
such Contract or (iii) cancel, terminate or modify any such Contract.
Seller
is not and will not be required to make any filing with or give any notice to, or obtain any Consent from, any Person in connection with
(i) the execution, delivery or performance of any of the Transaction Documents or any of the other agreements referred to in this Agreement,
or (ii) the consummation of any of the transactions contemplated by this Agreement, other than the Consent from the Board of Directors
and shareholders of the Seller (the “Seller’s Consents”).
Section
4.4 Undisclosed Liabilities. Seller has no liability (whether known or unknown, whether absolute or contingent, whether liquidated
or unliquidated and whether due or to become due) resulting or arising from, directly or indirectly, the Assets.
Section
4.5 Legal Proceedings. There is no pending action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative,
investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard
by or before, or otherwise involving, any court or other governmental body or any arbitrator or arbitration panel (a “Legal
Proceeding”), and no Person has threatened to commence any Legal Proceeding: (i) that involves any of the Assets owned or used
by Seller or (ii) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with
any of the transactions contemplated by this Agreement.
Section
4.6 The Assets. Seller has, and will have at the Closing, good, valid and marketable title to the Assets, free and clear of any
Encumbrances. Other than this Agreement, Seller has not sold, transferred, assigned or conveyed any of its right, title and interest,
or granted or entered into any option to purchase or acquire any of its right, title or interest, in and to the Assets or any portion
thereof. The Assets are in good operating condition and repair and are suitable for the use to which they are put. The Assets constitute
all of the properties and assets necessary to conduct the Business.
Section
4.7 Securities Law Matters.
|
|
(a)
|
Seller
understands that the Preferred Stock is being offered and issued in reliance on one or more
exemptions from the registration requirements of United States federal and state securities
laws and that the Buyer is relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of the Seller set forth herein in order to
determine the applicability of such exemptions and the suitability of Seller to acquire the
Shares.
|
|
|
(b)
|
At
no time was the Seller presented with or solicited by any leaflet, newspaper or magazine
article, radio or television advertisement, or any other form of general advertising or solicited
or invited to attend a promotional meeting otherwise than in connection and concurrently
with such communicated offer.
|
|
|
(c)
|
Seller
is acquiring the Preferred Stock for its own account and not with a view to the distribution
of any shares of the Preferred Stock within the meaning of Section 2(11) of the Securities
Act of 1933, as amended (the “Securities Act”), or any applicable state
securities laws. Seller is acquiring the Preferred Stock for its own account as principal,
not as a nominee or agent, for investment purposes only, and not with a view to, or for,
resale, distribution or fractionalization thereof in whole or in part, and no other Person
has a direct or indirect beneficial interest in the Preferred Stock the Seller is acquiring
herein. Further, the Seller does not have any Contract, undertaking or arrangement with any
Person to sell, transfer or grant participations to such person or to any third person, with
respect to the Preferred Stock the Seller is acquiring.
|
|
|
(d)
|
Seller
understands that the Buyer is under no obligation to register the Preferred Stock under the
Securities Act, or to assist the Seller in complying with the Securities Act or the securities
laws of any state of the United States or of any foreign jurisdiction.
|
|
|
(e)
|
Seller
is an “accredited investor” (as that term is defined in Rule 501 of Regulation D promulgated under the Securities Act by
reason of Rule 501(a)(3)), and is (i) experienced in making investments of the kind represented by the Preferred Stock, (ii) able, by
reason of the business and financial experience of its officers and professional advisors (who are not affiliated with or compensated
in any way by the Buyer or any of its affiliates), to protect its own interests in connection with the acquisition of the Preferred Stock
and (iii) able to afford the entire loss of its investment in the Preferred Stock. Seller has been provided an opportunity for a reasonable
period of time prior to the date hereof to obtain additional information concerning the Buyer and the Preferred Stock.
|
|
|
(f)
|
Seller
understands that an investment in the Preferred Stock is a speculative investment which involves
a high degree of risk and the potential loss of its entire investment.
|
|
|
(g)
|
Seller
has received all documents, records, books and other information pertaining to its investment
that has been requested by the Seller with respect to the Buyer and its business, including
without limitation, its financial condition and control persons.
|
|
|
(h)
|
The
Preferred Stock is “restricted” (as that term is defined in Rule 144 promulgated
under the Securities Act), and the certificate representing the Preferred Stock shall be
endorsed with a restrictive legend in substantially the following form, in addition to any
other legends required to be placed thereon under applicable federal or state securities
laws:
|
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS TRANSFERRED PURSUANT TO ANY VALID EXEMPTION
FROM REGISTRATION AVAILABLE UNDER SUCH ACT.”
Section
4.8 Intangible Rights. The Assets include all foreign and domestic patents, patent rights, trademarks, service marks, trade names,
brands and copyrights (whether or not registered and, if applicable, including pending applications for registration) owned, used, licensed
or controlled by the Seller and all goodwill associated therewith. The Seller owns or has the right to use and own or have the right
to use any and all information, know-how, trade secrets, patents, copyrights, trademarks, tradenames, software, formulae, methods, processes
and other intangible properties that are necessary or customarily used by the Seller for the ownership, management or operation of its
Business (“Intangible Rights”). The Seller is the sole and exclusive owner of all right, title and interest in and to
all of the Intangible Rights, and has the exclusive right to use and license the same, free and clear of any claim or conflict with the
Intangible Rights of others; no royalties, honorariums or fees are payable by the Seller to any person by reason of the ownership or
use of any of the Intangible Rights; there have been no claims made against the Seller asserting the invalidity, abuse, misuse, or unenforceability
of any of the Intangible Rights and no grounds for any such claims exist; the Seller has not made any claim of any violation or infringement
by others of any of its Intangible Rights or interests therein; the Seller has not received any notice that it is in conflict with or
infringing upon the asserted intellectual property rights of others in connection with the Intangible Rights, and neither the use of
the Intangible Rights nor the operation of the Businesses is infringing or has infringed upon any intellectual property rights of others;
(vi) the Intangible Rights are sufficient and include all intellectual property rights necessary for the Seller to lawfully conduct its
business as presently being conducted; no interest in any of the Intangible Rights has been assigned, transferred, licensed or sublicensed
by the Seller to any person other than the Buyer pursuant to this Agreement; to the extent that any item constituting part of the Intangible
Rights has been registered with, filed in or issued by, any governmental authority; (ix) there has not been any act or failure to act
by the Seller or any of its directors, officers, employees, attorneys or agents during the prosecution or registration of, or any other
proceeding relating to, any of the Intangible Rights or of any other fact which could render invalid or unenforceable, or negate the
right to issuance of any of the Intangible Rights; to the extent any of the Intangible Rights constitutes proprietary or confidential
information, the Seller has adequately safeguarded such information from disclosure; and all of the current Intangible Rights will remain
in full force and effect following the Closing without alteration or impairment.
Section
4.9 Environmental Matters. There are no claims, liabilities, investigations, litigation, administrative proceedings, whether
pending or threatened, or judgments or orders relating to any Hazardous Materials (collectively called “Environmental
Claims”) asserted or threatened against the Seller or relating to any real property currently or formerly owned, leased or
otherwise used by the Seller. The Seller has not caused or permitted any Hazardous Material to be used, generated, reclaimed,
transported, released, treated, stored or disposed of in a manner which could form the basis for an Environmental Claim against the
Seller. The Seller has not assumed any liability of any person for cleanup, compliance or required capital expenditures in
connection with any Environmental Claim. No Hazardous Materials are or were stored or otherwise located, and no underground storage
tanks or surface impoundments are or were located, on real property currently or formerly owned, leased or used by the Seller, and
no part of such real property or any part of such adjacent parcels of real property, including the groundwater located thereon, is
presently contaminated by Hazardous Materials. The Seller has been and is currently in compliance with all applicable environmental
laws, including obtaining and maintaining in effect all permits and licenses required by applicable environmental laws.
The
term “Hazardous Material” shall mean all or any of the following: (a) substances that are defined or listed in, or otherwise
classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous materials,”
“Hazardous wastes,” “toxic substances” or any other formulation intended to define, list or classify substances
by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or “EP
toxicity”; (b) oil, petroleum or petroleum derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids,
produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources;
(c) any flammable substances or explosives or any radioactive materials; and (d) asbestos in any form or electrical equipment which contains
any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of fifty parts per million.
ARTICLE
V
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The
obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to the satisfaction, at or prior to the
Closing, of each of the following conditions:
Section
5.1 Accuracy of Representations. Each of the representations and warranties made by Seller in this Agreement and in each of the
other Transaction Documents delivered to Buyer in connection with the transactions contemplated by this Agreement shall have been accurate
in all respects on the date of execution of this Agreement and on the Closing Date.
Section
5.2 Performance of Covenants. Each covenant or obligation that Seller is required to comply with or to perform at or prior to
the Closing shall have been complied with or performed in all respects.
Section
5.3 Consents. All Consents required to be obtained by the Seller in connection with the transactions contemplated by this Agreement
shall have been obtained (and copies thereof shall have been provided to Buyer) and shall be in full force and effect.
Section
5.4 Officer’s Certificate. Buyer shall have received a certificate executed by a senior officer of Seller confirming
that each of the representations and warranties of the Seller set forth in Article IV is accurate in all respects as of the Closing
Date and that the conditions set forth in Article V for the benefit of the Buyer have been duly satisfied.
Section
5.5 Agreements and Documents . Buyer shall have received (i) a certified copy of Seller’s Articles of Incorporation, (ii)
a copy of the Bylaws of Seller, and (iii) a copy of the resolutions of the Board of Directors and shareholders of the Seller, authorizing
the execution of this Agreement and the consummation of the transactions contemplated hereby, each certified by a senior officer of Seller.
Section
5.6 No Legal Proceedings. 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.
ARTICLE
VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The
obligations of Seller to consummate the transactions contemplated by this Agreement are subject to the satisfaction, at or prior to
the Closing, of the following conditions:
Section
6.1 Accuracy of Representations. Each of the representations and warranties made by Buyer in this Agreement and in each of the
other Transaction Documents delivered to Seller in connection with the transactions contemplated by this Agreement shall have been accurate
in all material respects as of the Closing Date.
Section
6.2 Performance of Covenants. Each covenant or obligation that Buyer is required to comply with or to perform at or prior to the
Closing shall have been complied with or performed in all material respects.
Section
6.3 Consents. All Consents required to be obtained by the Buyer in connection with the transactions contemplated by this Agreement
shall have been obtained and shall be in full force and effect.
Section
6.4 Officer’s Certificate. Seller shall have received a certificate executed by a senior officer or Buyer confirming that
each of the representations and warranties of the Buyer set forth in Article III is accurate in all material respects as of the Closing
Date and that the conditions set forth in Article VI for the benefit of the Seller have been duly satisfied.
Section
6.5 Agreements and Documents. Seller shall have received (i) a certified copy of Buyer’s Articles of Incorporation and
all amendments thereto, (ii) a copy of the Bylaws of Buyer, and (iii) a copy of the resolutions of the Board of Directors of Buyer, authorizing
the execution of this Agreement and the consummation of the transactions contemplated hereby, each certified by a senior officer of the
Buyer.
ARTICLE
VII
SURVIVAL
OF REPRESENTATIONS
AND
WARRANTIES; INDEMNIFICATION
Section
7.1 Survival. The right to bring claims or assert causes of action for breach of any covenants, agreements, representations and
warranties of the parties contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection
herewith shall survive for a period of one (1) year following the Closing Date, provided, however, that (i) the covenants and agreements
which by their terms do not contemplate performance after the Closing shall terminate as of the Closing; and (ii) the covenants and agreements
which by their terms contemplate performance after the Closing shall survive until the date specified in this Agreement as the termination
date for such covenants and agreements, or if no such date is specified, then such covenants and agreements shall survive until the expiration
of any statute of limitations.
Section
7.2 Seller’s Agreement to Indemnify. Subject to the terms, conditions and limitations of this Agreement, the Seller agrees
to indemnify, defend and hold harmless Buyer, its officers, employees, directors and agents (collectively, the “Buyer Indemnitees”)
from and against all Damages (as defined below) to which Buyer becomes subject as a result of, arising out of, or based on any of the
following:
|
|
(a)
|
a
breach of any representation or warranty made by the Seller pursuant to this Agreement in
Article IV;
|
|
|
(b)
|
a
breach of any covenant contained in or made by the Seller pursuant to this Agreement;
|
|
|
(c)
|
any
liabilities or obligations arising directly or indirectly with respect to the Assets, including
without limitation any Encumbrances on the Assets and any taxes owed directly or indirectly
with respect to the Assets for any period prior to the Closing Date; and
|
|
|
(d)
|
any
claim or liability for brokerage commissions or finder’s fees incurred by reason of
any action taken by Seller or any of its affiliates.
|
“Damages”
shall mean all demands, claims, actions or causes of action, assessments, judgments, fines, losses, damages, liabilities, costs and expenses,
including, without limitation, interest, penalties, punitive and exemplary damages, costs of investigation, clean-up and remediation
and attorneys’ fees and reasonable expenses.
Section
7.3 Buyer’s Agreement to Indemnify. Subject to the terms, conditions and limitations of this Agreement, Buyer agree to indemnify,
defend and hold harmless Seller, its officers, employees, directors and agents (collectively, the “Seller Indemnitees “),
from and against all Damages to which Seller becomes subject as a result of, arising out of, or based in any of the following:
|
|
(a)
|
a
breach of any representation or warranty made by Buyer pursuant to this Agreement in Article
III;
|
|
|
(b)
|
a
breach of any covenant contained in or made by Buyer pursuant to this Agreement; and
|
|
|
(c)
|
any
claim or liability for brokerage commissions or finder’s fees incurred by reason of
any action taken by Buyer or any of its affiliates.
|
Section
7.4 Procedures for Resolution and Payment of Claims for Indemnification.
|
|
(a)
|
If
a party entitled to be indemnified under this Article VII (the “Indemnitee”)
shall incur any Damages or determines that it is likely to incur any Damages, and believes
that it is entitled to be indemnified against such Damages by the other party hereunder (the
“Indemnitor”), such Indemnitee shall give prompt notice to the Indemnitor
of the assertion of any claim, or the commencement of any action, suit or proceeding, in
respect of which indemnity may be sought hereunder and will give the Indemnitor such information
with respect thereto as the Indemnitor may reasonably request (“Indemnitee’s
Certificate”), but failure to give such notice shall relieve the Indemnitor of
any liability hereunder only to the extent that the Indemnitor has suffered actual prejudice
thereby.
|
|
|
(b)
|
In
case the Indemnitor shall object to the indemnification of an Indemnitee in respect of any
claim or claims specified in any Indemnitee’s Certificate, the Indemnitor shall within
thirty (30) days after receipt by the Indemnitor of such Indemnitee’s Certificate deliver
to the Indemnitee a written notice to such effect and the Indemnitor and the Indemnitee shall,
within the thirty (30) day period beginning on the date of receipt by the Indemnitee of such
written objection, attempt in good faith to agree upon the rights of the respective parties
with respect to each of such claims to which the Indemnitor shall have so objected. If the
Indemnitee and the Indemnitor shall succeed in reaching agreement on their respective rights
with respect to any of such claims, the Indemnitee and the Indemnitor shall promptly prepare
and sign a memorandum setting forth such agreement. In the event the Indemnitee and the Indemnitor
do not succeed in reaching agreement on their respective rights with respect to any such
claims (“Disputed Claims”), the Disputed Claims will be resolved in accordance
with Section 10.8(b).
|
|
|
(c)
|
Claims
for Damages specified in any Indemnitee’s Certificate to which an Indemnitor shall
not object in writing and claims for Damages resolved in accordance with Section 7.4(b) and
Section 10.8(b) are hereinafter referred to, collectively, as “Agreed Claims.”
|
|
|
(d)
|
Promptly
after the assertion by any third party of any claim against any Indemnitee that, in the reasonable
judgment of such Indemnitee, will result in the incurrence by such Indemnitee of Damages
for which such Indemnitee would be entitled to indemnification pursuant to this Agreement,
such Indemnitee shall deliver to the Indemnitor a written notice describing in reasonable
detail such claim and such Indemnitor may, at its option, assume the defense of the Indemnitee
against such claim (including the employment of counsel, who shall be reasonably satisfactory
to such Indemnitee, and the payment of expenses). Failure to receive notice from Indemnitee
shall not amend any rights, obligations or limitations set forth in this Article VII. Any
Indemnitee shall have the right to employ separate counsel in any such action or claim and
to participate in the defense thereof, but the Indemnitor shall not be responsible for the
fees and expenses of such counsel unless (i) the Indemnitor shall have failed, within a reasonable
time after having been notified by the Indemnitee of the existence of such claim as provided
in the preceding sentence, to assume the defense of such claim, (ii) the employment of such
counsel has been specifically authorized by the Indemnitor, or (iii) the named parties to
any such action (including any impleaded parties) include both such Indemnitee and Indemnitor
and such Indemnitee shall have furnished Indemnitor an opinion of counsel to the effect that
there may be one or more legal defenses available to Indemnitee which are different from
or additional to those available to Indemnitor, in which event Indemnitor shall only be responsible
for the fees and expenses of one separate firm of attorneys for all Indemnitees. If the Indemnitor,
within a reasonable time after notice of any such third party claim, fails in good faith
to defend the Indemnitee against such claim, the Indemnitee shall have the right to undertake
the defense, compromise or settlement of such claim on behalf of and for the account and
risk of the Indemnitor, subject always to the right of the Indemnitor to assume the defense
of such claim at any time prior to settlement, compromise or final determination thereof.
No Indemnitor shall be liable to indemnify any Indemnitee for any settlement or compromise
of any such action or claim effected without the consent of the Indemnitor which shall not
be unreasonably withheld or delayed; but if settled with the written consent of the Indemnitor,
or if there be a final judgment for the plaintiff or claimant in any such action, the Indemnitor
shall indemnify and hold harmless each Indemnitee from and against any loss or liability
by reason of such settlement or judgment (but only to the extent provided in this Article
VII).
|
Section
7.5 Payment of Agreed Claims. Upon the occurrence of any event or existence of any condition which results in a claim for indemnification
under this Article VII, such party shall initiate a claim under Section 7.4.
ARTICLE
VIII
COVENANTS
OF THE SELLER
Section
8.1 Covenants. The Seller covenants with the Buyer that from the date of this Agreement until the Closing Date, the Seller will
not take any action which would render any of the representations or warranties contained in this Agreement to be false or inaccurate.
The Seller further covenants with the Buyer that the Seller will not, for a period of 12 months from the Closing Date, without the prior
written consent of the holders of a majority of the common stock of the Buyer issued and outstanding immediately prior to the Closing,
cause the Buyer to: (a) effect more than one reverse stock split in the 12 months after closing date; issue any additional shares of
Preferred Stock or rights to acquire the same; or (b) create any new series of preferred stock of Buyer with voting powers, designations,
preferences and relative participating, optional or other rights that are superior to those powers, designations, preferences and rights
attached to the common stock of the Buyer.
Section
8.2 Cooperation Post Closing. If requested by Buyer, Seller will cooperate upon and after the Closing Date in effecting the orderly
transfer of the Assets to Buyer. Without limiting the generality of the foregoing, Seller, at the request of Buyer and without additional
consideration, will execute and deliver from time to time such further instruments of assignment, conveyance and transfer, will sign
any documents necessary or useful to ensure that all of the right, title and interest in and to the Assets vests in Buyer, and will take
such other actions as may reasonably be required to convey and deliver to Buyer more effective title to the Assets, or to confirm and
perfect Buyer’s title thereto, as contemplated by this Agreement.
ARTICLE
IX
TERMINATION
Section
9.1 Termination of Agreement. This Agreement may be terminated:
|
|
(a)
|
prior
to the Closing by mutual agreement of the parties; or
|
|
|
(b)
|
prior
to the Closing by Buyer if any of the conditions provided for in Article V have not been
met at the Closing and have not been waived in writing by Buyer prior to such date; or
|
|
|
(c)
|
prior
to the Closing by Seller if any of the conditions provided for in Article VI have not been
met at the Closing and have not been waived in writing by Seller prior to such date.
|
Section
9.2 Termination Procedure; Effect of Termination.
|
|
(a)
|
In
the event of termination by Seller or Buyer, or by the mutual agreement of Seller and Buyer
pursuant to Section 9.1, written notice thereof shall forthwith be given to the other party
and the transactions contemplated by this Agreement shall be terminated, without further
action or liability by either party to the other (except for liability of any party for the
willful breach of this Agreement).
|
|
|
(b)
|
If
the transactions contemplated by this Agreement are terminated as provided herein, Seller
and Buyer shall return all documents, work papers and other material of any other party relating
to the transactions contemplated hereby, whether so obtained before or after the execution
of this Agreement, to the party furnishing the same; and such termination shall not in any
way limit or restrict the rights and remedies of any party hereto against any other party
which has breached any of the agreements or other provisions of this Agreement prior to termination
of this Agreement.
|
|
|
(c)
|
In
the event this Agreement is terminated, each party will keep confidential any information
(unless such information is public information or is otherwise required by law to be disclosed)
obtained from the other party in connection with the transactions contemplated hereby and
will not use, develop or disclose any such information in any manner whatsoever based on
information provided by the other for a period of two (2) years.
|
ARTICLE
X
MISCELLANEOUS
Section
10.1 Further Assurances. Each party hereto shall execute and cause to be delivered to each other party hereto such instruments
and other documents, and shall take such other actions, as such other party may reasonably request (prior to, at, or after the Closing)
for the purpose of carrying out or evidencing any of the transactions contemplated by this Agreement.
Section
10.2 Fees and Expenses. All fees, costs and expenses (including legal fees and accounting fees) that have been incurred or
that are incurred in the future by any party in connection with the transactions contemplated by this Agreement, including all fees,
costs and expenses incurred by such party in connection with or by virtue of (a) any investigation and review conducted by such
party of the other party’s business (and the furnishing of information in connection with such investigation and review), (b)
the negotiation, preparation and review of this Agreement and all agreements, certificates, opinions and other instruments and
documents delivered or to be delivered in connection with the transactions contemplated by this Agreement, (c) the preparation and
submission of any filing or notice required to be made or given in connection with any of the transactions contemplated by this
Agreement, and the obtaining of any Consent required to be obtained in connection with any of such transactions, and (d) the
consummation of the transactions contemplated hereby shall be paid: (i) by Buyer, if incurred by Buyer; and (ii) by Seller, if
incurred by Seller.
Section
10.3 Attorneys’ Fees. If any action or proceeding relating to this Agreement or the enforcement of any provision of this
Agreement is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs
and disbursements (in addition to any other relief to which the prevailing party may be entitled).
Section
10.4 Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall
be in writing and shall be deemed properly delivered, given and received when delivered (by hand, by registered mail, by courier or express
delivery service or by email) to the address set forth beneath the name of such party below (or to such other address as such party shall
have specified in a written notice given to the other party hereto):
|
if
to Buyer:
|
Lode-Star
Mining Inc.
|
|
|
13529
Skinner Rd. Ste N.
|
|
|
Cypress,
TX 77429
|
|
|
Attn: Mark
Walmesley
|
|
|
Email:
Markw@lode-starmining.com
|
|
|
|
|
if
to Seller:
|
Sapir
Pharmaceuticals, Inc.
|
|
|
6
Buttell Ave.
|
|
|
Lakewood,
NJ 08701
|
|
|
Attn: Samuel
Sternheim
|
|
|
Email: Sam@sapirpharma.com
|
Section
10.5 Severability. In the event that any provision of this Agreement, or the application of any such provision to any Person or
set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement,
and the application of such provision to Persons or circumstances other than those as to which it is determined to be invalid, unlawful,
void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
Section
10.6 Headings. The Section headings contained in this Agreement are for convenience of reference only, shall not be deemed to
be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
Section
10.7 Counterparts. This Agreement may be executed in two or more identical counterparts, each of which shall be deemed an original
but all of which together will constitute one and the same instrument. This Agreement, any and all agreements and instruments executed
and delivered in accordance herewith, along with any amendments hereto and thereto, to the extent signed and delivered by means of email
or other electronic transmission, shall be treated in all manner and respects and for all purposes as an original signature, agreement
or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered
in person.
Section
10.8 Governing Law; Arbitration.
(a)
This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of New York (without
giving effect to principles of conflicts of laws).
(b)
Buyer, on the one hand, and Seller, on the other, shall promptly submit any dispute, claim or controversy arising out of or relating
to this Agreement and the other Transaction Documents (including, without limitation, with respect to the meaning, effect, validity,
termination, interpretation, performance or enforcement of this Agreement or such Transaction Document) or any alleged breach (including
any action in tort, contract, equity or otherwise) to binding arbitration before one arbitrator. The parties agree that, except as otherwise
provided herein respecting temporary or preliminary injunctive relief, binding arbitration shall be the sole means of resolving any dispute,
claim or controversy arising out of or relating to this Agreement or any Transaction Document (including, without limitation, with respect
to the meaning, effect, validity, termination, interpretation, performance or enforcement of this Agreement or such Transaction Document)
or any alleged breach (including any claim in tort, contract, equity or otherwise). Such arbitration shall be conducted by the American
Arbitration Association under the Arbitration Rules then in effect, and shall take place in New York, New York.
Section
10.9 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. This Agreement may not be assigned by either party, other than the Buyer which can assign this Agreement and
all its rights hereunder to a wholly-owned subsidiary.
Section
10.10 Remedies Cumulative; Specific Performance. The rights and remedies of the parties hereto shall be cumulative (and not alternative).
The parties to this Agreement agree that, in the event of any breach or threatened breach by any party to this Agreement of any covenant,
obligation or other provision set forth in this Agreement for the benefit of any other party to this Agreement, such other party shall
be entitled (in addition to any other remedy that may be available to it) to (a) a decree or order of specific performance or mandamus
to enforce the observance and performance of such covenant, obligation or other provision, and (b) an injunction restraining such breach
or threatened breach.
Section
10.11 Waiver. No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and
no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver
of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or remedy. No party shall be deemed to have waived any
claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim,
power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party;
and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
Section
10.12 Amendments. This Agreement may not be amended, modified, altered or supplemented other than by means of a written instrument
duly executed and delivered on behalf of all of the parties hereto.
Section
10.13 Entire Agreement. This Agreement and the attached Exhibits and Schedules set forth the entire understanding of the parties
hereto relating to the subject matter hereof and thereof and supersede all prior agreements and understandings among or between any of
the parties relating to the subject matter hereof.
[Remainder
of Page Intentionally Left Blank; Signatures to Follow]
The
parties hereto have caused this Asset Purchase Agreement to be executed and delivered as of the date first above written.
|
|
SELLER:
|
|
|
|
|
|
|
SAPIR
PHARMACEUTICALS, INC.
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
Samuel Sternheim
|
|
|
|
Title: Director
|
|
|
|
|
|
|
BUYER:
|
|
|
|
|
|
|
LODE-STAR
MINING INC.
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
Mark Walmesley
|
|
|
|
Title: President
|
EXHIBIT
A
DESCRIPTION
OF ASSETS
Assets
include the following:
|
|
1.
|
Implementation
report of EGCG development and all references,
|
|
|
2.
|
Formulations
and Methods,
|
|
|
3.
|
Analytical
reports and references
|
|
|
5.
|
All
lab reports data and back-up
|
EXHIBIT
B
BILL
OF SALE AND ASSIGNMENT
KNOW
ALL MEN BY THESE PRESENTS THAT, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
undersigned, SAPIR PHARMACEUTICALS, INC., a Delaware corporation (“Seller”), does hereby sell, assign, convey, transfer
and delivery to LODE-STAR MINING INC., a Nevada corporation (“Buyer”), all of Seller’s rights, title and interest
in and to the Assets. Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to such terms in the Asset
Purchase Agreement dated December 23rd , 2021 (the “Asset Purchase Agreement”) by and between Seller and
Buyer.
Seller
hereby warrants to Buyer that Seller is the rightful owner of the Assets conveyed; that Seller is conveying to Buyer good and merchantable
title to the Assets conveyed, free and clear of all Encumbrances of any kind or nature; and that Seller (and Seller’s successors
and assigns) will warrant and defend this sale against the claims and demands of all Persons.
Seller
hereby covenants and agrees that it will, at the request of Buyer and without further consideration, execute and deliver, and will cause
its directors, officers, employees and agents to execute and deliver such other instruments of sale, transfer, conveyance and assignment,
and take such other actions as may be reasonably necessary to vest in Buyer good and merchantable title to the Assets conveyed, free
and clear of all Encumbrances of any kind or nature, and to put Buyer in control and possession thereof.
Seller
does hereby irrevocably constitute Buyer as Seller’s true and lawful attorney-in-fact, with full power of substitution, in Seller’s
or Buyer’s name, to claim, demand, collect and receive the Assets conveyed.
This
instrument is being delivered in connection with the Asset Purchase Agreement and is subject to, and is entitled to the benefits in respect
of, said agreement.
This
instrument shall be binding upon Seller and its successors and assigns, and shall inure to the benefit of Buyer and its successors and
assigns.
Dated
this 23rd day of December 2021.
|
SAPIR
PHARMACEUTICALS, INC.
|
|
|
|
|
By:
|
|
|
|
Name: Samuel
Sternheim
|
|
|
Title: Director
|
EXHIBIT
C
CERTIFICATE
OF DESIGNATION
See
Attached Exhibit.
Exhibit 10.2
ROYALTY
AGREEMENT
This
Royalty Agreement (this “Agreement”) dated as of December 23, 2021 is made and entered into by and between Sapir Pharmaceuticals,
Inc., a Delaware corporation (“Sapir”), and Lode-Star Mining Inc., a Nevada corporation (the “Company”).
WITNESSETH:
WHEREAS,
the Company and Sapir are parties to an Asset Purchase Agreement dated the date hereof pursuant to which, among other things, Sapir is
selling to the Company all of Sapir’s assets used in connection with the stabilized formulation of the Epigallocatechin-gallate
(EGCG) molecule for further pharmaceutical development (the “Business”); and
WHEREAS,
upon the consummation of the transactions contemplated by said Asset Purchase Agreement, the Company will own all of the rights, formulae,
and know how relating to the Business; and
WHEREAS,
the Company is willing to provide Sapir with a royalty on the terms and conditions provided for in this Agreement;
NOW,
THEREFORE, in consideration of the foregoing and of the mutual promises, covenants, representations, warranties, and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, intending to be legally
bound, the Company and Sapir agree as follows:
ARTICLE
I
ROYALTY
Section
1.1 Royalty.
(a) Consideration.
As additional consideration for the Business, the Company shall make a royalty payment to Sapir (the “Royalty Fee”)
each calendar quarter, in such amount that is five percent (5%) of the gross revenues realized from licenses or products generated or
derived from the Business (“Products”) during said quarter, including without limitation all license and/or sublicense
fees, development and/or research fees, grants, joint ventures and other royalty payments received directly or indirectly by the Company.
(b) Payment
Due Dates. The Royalty Fee shall be calculated for each calendar quarter, or portion thereof, within thirty (30) days of the end
of such calendar quarter, with the first payment to be made at the end of the first calendar quarter after a payment is received by the
Company relating to the Business (e.g. April 10, July 10, October 10 and January 10 for the calendar quarters ended March 31, June 30
and September 30 and December 31, respectively). Any unpaid Royalty Fees for the final period shall be paid within ten (10) business
days of termination of this Agreement. The date that the Royalty Fee is due each quarter (i.e. the 10th day of April, July,
October or January of each year) is referred to herein as the “Payment Date”.
(c) Reports.
The Company shall submit a report along with each Royalty Fee payment showing the amount of Products sold and/or licensed during the
applicable period (number of units, locations and dollar amount per unit), the calculation of the Royalty Fee for the Products sold and
any other relevant information. If Sapir requests additional information regarding the amount of the Royalty Fee, the Company shall promptly
provide same. The Company further agrees that Sapir shall have the right to inspect the books and records of the Company (and shall require
any licensor, manufacturer or other party involved with the Business to provide such information to Sapir) to verify the amount of the
Royalty Fee.
ARTICLE
II
TERM
AND TERMINATION
Section
2.1 Term. This Agreement shall commence upon the acquisition of the Business by the Company and shall become effective upon the
commercialization of the Business and continue for a period of five (5) years from the date thereof unless sooner terminated in accordance
with Section 2.2 (the “Term”). Commercialization shall mean the initial proceeds received by the Company directly
or indirectly from the Business, including without limitation, research fees and royalty grants from any third party. The Term shall
be automatically extended for a single additional 5-year period unless terminated in accordance with the terms herein. The last date
of the Term or any extension thereof, as applicable, shall be referred to in this Agreement as the “Termination Date.”
Section
2.2 Termination.
(a) Automatic
Termination. This Agreement shall automatically terminate in the event the Company is adjudicated bankrupt or insolvent, if a receiver
is appointed to manage its financial affairs, or if the Company determines that it no longer desires to be engaged in the Business, in
which event the Business and all rights thereto shall automatically revert back to Sapir or its assignee.
(b) Effect
of Termination. Upon the Termination Date, all rights to the Business shall be automatically reverted back to Sapir and the Company
shall, as of the Termination Date, cease from any further research, use, marketing, manufacture or sale of Products (in each case whether
directly or indirectly). Upon termination of this Agreement for any reason, and compliance with the foregoing sentence, there shall be
no further liability or obligations of the Company to Sapir for early termination for any reason provided that all Royalty Fees thereafter
due shall be paid by the Company within ten (10) business days following the termination. Upon termination, the Company shall provide
Sapir with copies of all sales records, customer records, and purchase records maintained by it.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
The
Company represents and warrants to Sapir as follows:
Section
3.1 Authority; Binding Nature of Agreement. The Company has the absolute and unrestricted right, power and authority to enter
into and to perform its obligations under this Agreement. This Agreement constitutes a legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms.
Section
3.2 Non-Contravention. Neither the execution, delivery or performance of this Agreement, nor the consummation of any of the transactions
contemplated by this Agreement, will directly or indirectly (with or without notice or lapse of time):
(a) contravene,
conflict with or result in a violation of, or give any court, tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any domestic or foreign state, county, city, local or other political subdivision
(“Governmental Body”), or any individual, corporation (including any non-profit corporation), general partnership,
limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or
joint stock company), firm or other enterprise, association, organization or entity (“Person”) the right to challenge
any of the transactions contemplated by this Agreement or to exercise any remedy or obtain any relief under, any federal, state, local,
municipal, foreign or other law, statute, constitute, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation,
ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any
Governmental Body (“Legal Requirement”) or any order, writ, injunction, judgment, or decree to which the Company or
any the assets owned or used by it, is subject; or
(b) contravene,
conflict with or result in a violation of, or breach of, or result in a default under, any provision of any contract, indenture, note,
bond, lease, commitment, plan, arrangement, instrument or other agreement, in each case whether written or oral (“Contract”)
to which the Company is a party, or give any Person the right to (i) declare a default or exercise any remedy under any such Contract,
(ii) accelerate the maturity or performance of any such Contract, (iii) cancel, terminate or modify any such Contract.
The
Company is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Person in connection
with (i) the execution, delivery or performance of this Agreement or (ii) the consummation of any of the transactions contemplated by
this Agreement.
Sapir
represents and warrants to the Company as follows:
Section
3.3 Authority; Binding Nature of Agreement. Sapir has the absolute and unrestricted right, power and authority to enter into and
to perform its obligations under this Agreement. This Agreement constitutes a legal, valid and binding obligation of Sapir, enforceable
against it in accordance with its terms.
Section
3.4 Non-Contravention. Neither the execution, delivery or performance of this Agreement, nor the consummation of any of the transactions
contemplated by this Agreement, will directly or indirectly (with or without notice or lapse of time):
(a) contravene,
conflict with or result in a violation of, or give any Governmental Body, or any Person the right to challenge any of the
transactions contemplated by this Agreement or to exercise any remedy or obtain any relief under, any Legal Requirement or any
order, writ, injunction, judgment, or decree to which Sapir or any the assets owned or used by it, is subject; or
(b) contravene,
conflict with or result in a violation of, or breach of, or result in a default under, any provision of any Contract to which Sapir is
a party, or give any Person the right to (i) declare a default or exercise any remedy under any such Contract, (ii) accelerate the maturity
or performance of any such Contract, (iii) cancel, terminate or modify any such Contract.
Sapir
is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Person in connection
with (i) the execution, delivery or performance of this Agreement or (ii) the consummation of any of the transactions contemplated by
this Agreement.
ARTICLE
IV
INDEMNIFICATION;
INSURANCE
Section
4.1 The Company’s Agreement to Indemnify. The Company agrees to indemnify, defend and hold harmless Sapir, its officers,
employees, affiliates and agents, from and against all Damages (as hereinafter defined) to which Sapir or any of such Persons becomes
subject as a result of, arising out of, or based in any of the following:
|
|
(a)
|
a
breach of any representation or warranty made by the Company pursuant to this Agreement;
|
|
|
(b)
|
any
claim, suit, action, fine, litigation, investigation, or other claim (a “Claim”)
brought directly or indirectly as a result of, or arising the Business or any Product; and
|
|
|
(c)
|
any
Claim or liability for brokerage commissions or finder’s fees incurred by reason of
any action taken by the Company.
|
“Damages”
shall mean all demands, claims, actions or causes of action, assessments, judgments, fines, losses, damages, liabilities, costs and expenses,
including, without limitation, interest, penalties, punitive and exemplary damages, costs of investigation, clean-up and remediation
and attorneys’ fees and reasonable expenses.
Section
4.2 Insurance. The Company agrees that during the Term and for a period of five (5) years thereafter, the Company shall, at its
sole cost and expense, obtain and maintain commercial general and product liability insurance in commercially reasonable amounts relating to
the Business and Products; provided that such limits be no less than Five Million Dollars ($5,000,000) as an annual aggregate for all
claims during each policy year and that provides all liability coverage, including without limitation, personal injury, physical injury
or property damage arising out of the development, use and sale of Products. Sapir shall be named as an additional insured on the insurance.
Coverage for Sapir as an additional insured on the Company’s policies shall be primary, not contributory or excessive. Additionally,
Sapir shall be provided with written notice at least thirty (30) days prior to the Company’s cancelling, not renewing or materially
changing the insurance.
ARTICLE
V
MISCELLANEOUS
Section
5.1 Further Assurances. Each party hereto shall execute and cause to be delivered to each other party hereto such instruments
and other documents, and shall take such other actions, as such other party may reasonably request (from time to time throughout the
Term and thereafter until all Royalty Fees are accounted for and paid) for the purpose of carrying out or evidencing any of the transactions
contemplated by this Agreement.
Section
5.2 Fees and Expenses. All fees, costs and expenses (including legal fees and accounting fees) that have been incurred or that
are incurred in the future by any party in connection with the transactions contemplated by this Agreement shall be paid by the party
incurring such fees and costs.
Section
5.3 Attorneys’ Fees. If any action or proceeding relating to this Agreement or the enforcement of any provision of this Agreement
is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements
(in addition to any other relief to which the prevailing party may be entitled).
Section
5.4 Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be
in writing and shall be deemed properly delivered, given and received when delivered (by hand, by registered mail, by courier or express
delivery service or by email) to the address set forth beneath the name of such party below (or to such other address as such party shall
have specified in a written notice given to the other party hereto):
|
if to the Company:
|
Lode-Star Mining Inc.
|
|
|
13529
Skinner Rd. Ste N.
Cypress,
TX 77429
Attn: Mark
Walmesley
Email: Markw@lode-starmining.com
|
|
|
|
|
if to Sapir:
|
Sapir Pharmaceuticals, Inc.
|
|
|
6
Buttell Ave.
Lakewood,
NJ 08701
Attn: Samuel
Sternheim
Email: Sam@sapirpharma.com
|
Section
5.5 Severability. In the event that any provision of this Agreement, or the application of any such provision to any Person or
set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement,
and the application of such provision to Persons or circumstances other than those as to which it is determined to be invalid, unlawful,
void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
Section
5.6 Headings. The section headings contained in this Agreement are for convenience of reference only, shall not be deemed to be
a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
Section
5.7 Counterparts. This Agreement may be executed in one or more counterparts and by electronic transmission, each of which shall
constitute an original and all of which, when taken together, shall constitute one agreement.
Section
5.8 Governing Law. This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of
the State of New York (without giving effect to principles of conflicts of laws). Any action brought by either party against the other
concerning the transactions contemplated by this Agreement may be brought in the state courts of New York or in the federal courts located
in the state of New York. The parties and the individuals executing this Agreement and other agreements referred to herein or delivered
in connection herewith agree to submit to the jurisdiction of such courts.
Section
5.9 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement may not be assigned by any party without the prior written consent of the other party.
Section
5.10 Waiver. No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and no
delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of
such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or remedy. No party shall be deemed to have waived any
claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim,
power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party;
and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
Section
5.11 Amendments. This Agreement may not be amended, modified, altered or supplemented other than by means of a written instrument
duly executed and delivered on behalf of all of the parties hereto.
Section
5.12 Entire Agreement. This Agreement sets forth the entire understanding of the parties hereto relating to the subject matter
hereof and thereof and supersedes all prior agreements and understandings among or between any of the parties relating to the subject
matter hereof.
[Remainder
of Page Intentionally Left Blank; Signatures to Follow]
The
parties hereto have caused this Royalty Agreement to be executed and delivered as of the date first above written.
|
|
LODE-STAR MINING INC.
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name: Mark Walmesley
|
|
|
|
Title: President
|
|
|
|
|
|
|
SAPIR PHARMACEUTICALS, INC.
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name: Samuel Sternheim
|
|
|
|
Title: Director
|
