SPINOFF SEPARATION AGREEMENT
EXHIBIT
10.2
SPINOFF SEPARATION AGREEMENT
This
SPINOFF SEPARATION AGREEMENT (this “Agreement”), is dated as
of June 27, 2018, by and between Friendable, Inc., a Nevada
corporation (“Parent”), Fan Pass, Inc.
(“Fan
Pass”), a Nevada corporation and wholly owned
Subsidiary of Parent, and Sharps Technology, Inc.
(“Sharps”), a Wyoming
corporation. Parent, Fan Pass and Sharps will individually be
referred to as a “Party” and collectively as the
“Parties.”
RECITALS
A.
Parent is entering into a share exchange agreement with Sharps
(“Share Exchange Agreement”) pursuant to which Sharps
will sell, transfer, convey, assign and deliver 100% of its issued
and outstanding shares of common stock in consideration for the
issuance by Parent to Sharps’ shareholders Parent Common
Stock, par value $0.0001.
B.
As a condition to entering into the Share Exchange Agreement,
Parent requires that Sharps Technology, Inc. agree that at the
consummation of the Share Exchange Agreement, Fan Pass be an
independent, publicly owned company comprising the business of Fan
Pass.
C. Pursuant
to the terms described in the S-1 Registration Statement (as
defined below), Parent intends to make a distribution to its
stockholders of the outstanding shares of capital stock of Fan Pass
in accordance with the terms hereof and thereof (the
“Spin-Off”).
D. As
a consequence of the Spin-Off, Fan Pass will cease to be a
Subsidiary of Parent.
E. The
Parties intend for the Spin-Off to qualify as a tax-free spin-off
under Section 355 of the Internal Revenue Code of 1986, as amended
(the “Code”).
F. Parent,
Fan Pass and Sharps desire to allocate certain rights and
responsibilities of Parent, Fan Pass, Sharps and their respective
Subsidiaries and successors for periods before and after the
Spin-Off.
Accordingly, the
Parties agree as follows:
I.
DEFINITIONS
1.1
Definitions. In
addition to the terms defined elsewhere herein, as used in this
Agreement, the following terms will have the meanings specified
below when used in this Agreement with initial capital
letters:
“Action” means any
controversy, claim, action, litigation, arbitration, mediation or
any other proceeding by or before any Governmental Entity,
arbitrator, mediator or other Person acting in a dispute resolution
capacity, or any investigation, subpoena or demand preliminary to
any of the foregoing.
“Affiliate” means, with
respect to a Person, another Person that directly or indirectly
through one or more intermediaries, controls, or is controlled by,
or is under common control with, such Person. For purposes of this
definition “control” as applied to any Person means the
possession, directly or indirectly, of the power to vote five
percent or more of the securities entitled to vote or otherwise to
direct or cause the direction of, the management and policies of
such Person, whether through the ownership of securities entitled
to vote, by contract or otherwise.
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“Agreement” has the
meaning set forth in the Preamble.
“Business Day” means any
day on which commercial banks in New York are not required or
authorized to be closed by Law or executive order.
“Code” has the meaning set
forth in Recital E.
“Common Stock” means the
Common Stock of Fan Pass Inc., par value $0.0001 per
share.
“Confidential Information”
has the meaning set forth in Section 3.6.
“Damages” has the meaning
set forth in Section 4.1.
“GAAP” means United States
generally accepted accounting principles as in effect at the time
of determination, consistently applied.
“Governmental Entity”
means any arbitrator, court, judicial, legislative, administrative
or regulatory agency, commission, department, board, bureau, body
or other governmental authority or instrumentality or any Person
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, whether
foreign, federal, state or local.
“Fan Pass” has the meaning
set forth in the Preamble.
“Fan Pass Group” means, as
the context may require, (i) Fan Pass and (ii) any one or more
Affiliates of Fan Pass following the Spin-Off.
“Indemnified Party or
Parties” has the meaning set forth in Section
4.1.
“Indemnifying Party” has
the meaning set forth in Section 4.5.
“Law” means any statute,
law, ordinance, rule or regulation of any Governmental
Entity.
“Liability” or
“Liabilities” mean all
debts, liabilities, losses and obligations whether absolute or
contingent, matured or unmatured, liquidated or unliquidated,
accrued or unaccrued, known or unknown, whenever arising, and
whether or not the same would properly be reflected on a balance
sheet; provided
that, except for references in Article IV, “Liabilities” will not
include any liabilities for or in respect of any benefit plans,
programs, agreements, and arrangements.
“Order” means any order,
judgment, ruling, decree, writ, permit, license or other
requirement of any Governmental Entity.
“Parent” has the meaning
set forth in the Preamble.
“Parent Common Stock”
means the common stock of Parent, par value $0.0001 per
share.
“Parent Group” means, as
the context may require, (i) Parent and (ii) any one or more
Affiliates of Parent following the Spin-Off.
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“Party” and
“Parties” have the
meanings set forth in the Preamble.
“Person” means any
individual or legal entity, including any partnership, joint
venture, corporation, trust, unincorporated organization, limited
liability company or Governmental Entity.
“Record Date” means the
close of business on the date to be determined by the Board of
Directors of Parent as the record date for determining stockholders
of Parent entitled to receive Common Stock in the Spin-Off, which
date will be June 26, 2018.
“S-1 Registration
Statement” means the S-1 registration statement to be
filed by Fan Pass contemporaneously with the execution of this
Agreement for the distribution and registration of the common stock
of Fan Pass pursuant to the terms and conditions as further
described in the S-1 Registration Statement.
“Series A Preferred Stock”
means the Series A preferred stock of Fan Pass, par value $0.0001
per share.
“Share Exchange Agreement”
has the meaning set forth in Recital A.
“Share Issuance” has the
meaning set forth in Section 2.2.
“Spin-Off” has the meaning
set forth in Recital C.
“Spin-Off Date” means the
date on which the Spin-Off occurs.
“Subsidiary” of any Person
means any Person whose financial results are required to be
consolidated with the financial results of the first Person in the
preparation of the first Person’s financial statements under
GAAP.
1.2
Interpretation.
(a)
When a reference is made in this Agreement to Articles, Sections,
Exhibits or Schedules, such reference will be to an Article or
Section or Exhibit or Schedule to this Agreement unless otherwise
indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and will not affect in
any way the meaning or interpretation of this Agreement. Whenever
the words “include,” “includes” or
“including” are used in this Agreement, they will be
deemed to be followed by the words “without
limitation.” Unless the context otherwise requires, (i)
“or” is disjunctive but not necessarily exclusive, (ii)
words in the singular include the plural and vice versa, (iii) the
use in this Agreement of a pronoun in reference to a Party includes
the masculine, feminine or neuter, as the context may require, and
(iv) terms used herein which are defined in GAAP have the meanings
ascribed to them therein. This Agreement will not be interpreted or
construed to require any Person to take any action, or fail to take
any action, that would violate any applicable Law.
(b)
The Parties have participated jointly in negotiating and drafting
this Agreement. In the event that an ambiguity or a question of
intent or interpretation arises, this Agreement will be construed
as if drafted jointly by the Parties, and no presumption or burden
of proof will arise favoring or disfavoring any Party by virtue of
the authorship of any provision of this Agreement.
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II.
SPIN-OFF
2.1 The
Spin-Off. Subject to the satisfaction, or to the extent
permitted by applicable Law, waiver of the conditions set forth in
Article V, the
Board of Directors of Parent (the “Parent Board”) has
established the Record Date and the Spin-Off Date and any
procedures it determined to be necessary or appropriate in
connection therewith.
2.2 Fan
Pass Share Issuance. Prior to the Spin-Off Date, Parent will
take, or cause to be taken, all actions necessary to issue to
Parent such number of shares of Common Stock, including, if
applicable, by reclassifying the outstanding shares of Common Stock
(the “Share
Issuance”), for the purpose of increasing the
outstanding shares of Common Stock such that, immediately prior to
the Spin-Off Date, Fan Pass will have not less than an aggregate
number of outstanding shares of Common Stock that is equal to one
share of Common Stock for each share of Parent Common Stock issued
and outstanding on the Record Date as well as sufficient shares of
Common Stock for all conversions envisioned under the Surrender and
Exchange Agreements concurrently executed which covers all
convertible debt of Parent and all issued and outstanding shares of
Series A Preferred Stock (collectively, the
“Conversions”).
2.3
Delivery of Shares to the
Agent. On or prior to the Spin-Off Date, Parent will
authorize the book-entry transfer by Parent’s transfer agent,
(the “Agent”) of all of the
outstanding shares of Common Stock to be distributed in connection
with the Spin-Off including without limit the Series A Preferred
Stock and shares of Common Stock issuable upon conversion of the
Series A Preferred Stock. After the Spin-Off Date, upon the request
of the Agent, Fan Pass will provide all book-entry transfer
authorizations that the Agent requires in order to effect the
Spin-Off of the shares of Common Stock to Parent stockholders and
the issuance of the Series A Preferred Stock, as if
required.
2.4
The
Spin-Off.
(a)
On the terms and subject to the conditions of this Agreement,
following consummation of the Share Issuance and the effectiveness
of the S-1 Registration Statement, the Parent Board will declare
and Parent will distribute and issue all of the shares of Common
Stock held by Parent to Parent stockholders at a rate of one share
of Common Stock to each holder of Parent Common Stock then
outstanding as well as all shares of the Series A Preferred Stock.
Until the consummation of the Spin-Off, Parent will own and the
Agent will hold the shares of Common Stock and Preferred Stock as
nominee on behalf of and for the benefit of Parent. Upon
consummation of the Spin-Off, pursuant to, and in accordance with
the terms hereof, the Agent will distribute by book-entry transfer
(i) in respect of each outstanding share of Parent Common Stock
held by holders of record of Parent Common Stock on the Record
Date, one share of Common Stock, and (ii) such shares of Series A
Preferred Stock requiring distribution, if any.
(b)
In addition, Fan Pass will deliver to Parent one share of Common
Stock for each share of Parent Common Stock (if any) reserved for
issuance upon the Conversions.
2.5 Fractional
Shares. No certificate representing fractional shares of
Common Stock will be issued as part of the Spin-Off. Each holder of
Parent Common Stock who otherwise would have been entitled to a
fraction of a share of Common Stock pursuant to Section 2.4 (after
aggregating all of such Person’s shares of Common Stock
immediately prior to the consummation of the Spin-Off) will receive
a cash payment in lieu of such fractional shares. Parent will
instruct the Agent to (i) determine the number of whole shares and
fractional shares of Common Stock and Series A Preferred Stock
allocable to each holder of record or beneficial owner of Parent
Common Stock on the Spin-Off Date, (ii) aggregate all such
fractional shares into whole shares of Common Stock, (iii) sell the
whole shares of Common Stock obtained in clause (ii) in the open
market on behalf of holders of record or beneficial owners who
otherwise would be entitled to receive fractional shares of Common
Stock, and (iv) distribute to each such holder or for the benefit
of each such beneficial owner such holder’s or owner’s
ratable share of the total proceeds (net of total selling and
conversion expenses) of such sale; provided, however, that the Agent will
have sole discretion to determine when, how, through which
broker-dealer and at what price to execute the sales.
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2.6 Intercompany
Matters. As of immediately prior to the Spin-Off Date, all
rights and Liabilities of, from or to any member of the Parent
Group, on the one hand, and any member of the Fan Pass Group, on
the other hand, will be netted against each other and the resulting
balance will be cash settled as applicable, by Parent or Fan Pass,
as the case may be, and all contracts between or among such parties
will terminate, in each case other than under this Agreement or any
of the other agreements or instruments contemplated hereby or any
Liabilities arising therefrom. In the event any such intercompany
amounts are identified following the Spin-Off Date that were not
netted as contemplated by the preceding sentence, such amounts will
be cash settled when they arise or are identified. In the event of
any refund or credit relating to the Fan Pass Group or the Parent
Group which is received by the other group after the Spin-Off Date,
such other group will provide the Fan Pass Group or Parent Group,
as applicable, with the benefit of such refund or
credit.
III.
REPRESENTATIONS,
WARRANTIES AND COVENANTS
3.1
Representations.
Each of Parent, Fan Pass and Sharps, as applicable, represents and
warrants to the other as set forth below.
(a)
Each Party has full power and authority to execute and deliver this
Agreement and to consummate the Spin-Off. The execution and
delivery of this Agreement and the consummation of the Spin-Off
have been duly and validly authorized by each Party, and no other
proceedings on the part of such Party or any other Person are
necessary to authorize the execution and delivery by such Party of
this Agreement or the consummation of the Spin-Off. This Agreement
has been duly and validly executed and delivered by the Parties,
and (assuming the valid execution and delivery of this Agreement by
the other Parties) constitutes the legal, valid and binding
agreement of such Party enforceable against it in accordance with
its terms, except as such obligations and their enforceability may
be limited by (i) bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of
creditors’ rights generally, (ii) by general principles of
equity, or (iii) the power of a court to deny enforcement of
remedies based on public policy.
(b)
Each of Fan Pass, Parent, and Sharps, as applicable, has retained
separate legal advisors in connection with the Spin-Off, and the
terms of this Agreement have been negotiated by such parties at
arm’s length by their respective
representatives.
3.2
Litigation Matters.
For a period of one years after the Closing Date, each Party will,
to aid each other Party in the defense of any third-party Action
relating to the business of the other Party to the extent such
Party has personnel or information relevant to such business or
Action, make available during normal business hours, but without
unreasonably disrupting their respective businesses, all personnel
and records in their possession, custody and/or control relating to
such business reasonably necessary to permit the effective defense
or investigation of such Action. If information other than that
pertaining to the applicable business that is the subject of the
Action is contained in such records, Parent, Fan Pass and Sharps
will make reasonable efforts to protect any confidential
information, including entering into appropriate confidentiality
agreements. To the extent any such Action primarily relates to Fan
Pass’s or any of its Subsidiaries’ businesses, all such
costs will be directly borne by Fan Pass. To the extent any such
Action relates to Parent’s or any of its subsidiaries’
businesses (other than Fan Pass or any of its subsidiaries) and Fan
Pass’s or any of their respective subsidiaries’
businesses, all such documented costs will be allocated
proportionately, based on their respective business interest in
such action, between Fan Pass and Parent, provided however that the
Parent Principal Stockholders, as defined in the Share Exchange
Agreement will indemnify Sharps for any damages arising out of the
Spin-Off, as set forth in the Exchange Agreement.
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3.3
Cooperation.
(a)
Each of Parent, Fan Pass and Sharps will comply fully with all
notification, reporting and other requirements under any Law or
Order applicable to the Spin-Off. Parent, Fan Pass and Sharps will
use their commercially reasonable efforts to obtain, as soon as
practicable, the authorizations that may be or become necessary for
the performance of their respective obligations under this
Agreement and the consummation of the Spin-Off and will cooperate
fully with each other in promptly seeking to obtain such
authorizations, except that no such Party will be required to make
any material expenditure in connection with its obligations under
this Section 3.3. Where the cooperation of third parties such as
insurers or trustees would be necessary in order for a Party to
completely fulfill its obligations under this Agreement, such Party
will use commercially reasonable efforts to cause such third
parties to provide such cooperation, except that no Party will be
required to make any material expenditure in connection
therewith.
(b)
In addition to the actions specifically provided for elsewhere in
this Agreement, each of the Parties will cooperate with each other
and use (and will cause their respective Subsidiaries and
Affiliates to use) reasonable best efforts, prior to, at and after
the Spin-Off, to take, or to cause to be taken, all actions, and to
do, or to cause to be done, all things reasonably necessary on its
part permitted under applicable law to consummate and make
effective the transactions contemplated by this Agreement as
promptly as reasonably practicable.
(c)
After the Spin-Off, except in the case of any Action by one Party
or its Affiliates against the other Party or its Affiliates, each
Party will use its commercially reasonable efforts to make
available to the other, upon written request, the former, current
and future directors, officers, employees, other personnel and
agents of such Party as witnesses and any books, records or other
documents within its control or which it otherwise has the ability
to make available, to the extent that any such Person (giving
consideration to business demands of such directors, officers,
employees, other personnel and agents) or books, records or other
documents are reasonably requested in connection with any Action in
which the requesting Party may from time to time be involved or any
other reasonable business purpose, regardless of whether, in the
case of an Action, such Action is a matter with respect to which
indemnification may be sought hereunder.
(d)
The obligation of the Parties to provide witnesses pursuant to this
Section 3.3 is intended to be interpreted in a manner so as to
facilitate cooperation.
3.4
Expenses. Whether
or not the Spin-Off is consummated, all costs and expenses incurred
in connection with this Agreement and the Spin-Off will be borne by
each of the Parties, respectively, as such costs and expenses
relate to such Party’s respective obligations, unless
otherwise provided herein. The costs and expenses related to the
preparation and filing by Fan Pass of the S-1 Registration
Statement with the Securities and Exchange Commission will be borne
by Parent in the event the Spin-Off is consummated, provided that
it shall not result in any liabilities including accounts payable
to be incurred by Parent that have not otherwise been satisfied at
the time of the closing of the Share Exchange Agreement (the
“Share Exchange Closing”). For the avoidance of doubt,
each Party will bear its internal and external costs and expenses
of complying with any covenant herein, except and solely to the
extent otherwise provided herein.
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3.5 Certain
Insurance Matters. With respect to any Damages suffered by
Fan Pass or any of its Subsidiaries after the Spin-Off Date
relating to, resulting from or arising out of the conduct of Fan
Pass’s business prior to the Spin-Off Date for which Parent
or any of its Subsidiaries would be entitled to assert, or cause
any other Person to assert, a claim for recovery under any policy
of insurance maintained by Parent or for the benefit of Parent or
any of its Subsidiaries in respect of Fan Pass’s business,
Parent or any of its Subsidiaries, any product of Fan Pass’s
business or any Fan Pass employee, at the request of Fan Pass,
Parent will use commercially reasonable efforts to assert and
administer, or to assist Fan Pass or any of its Subsidiaries to
assert and administer, one or more claims under such policy of
insurance covering such Damage if Fan Pass or any of its
Subsidiaries is not itself entitled to assert such claim, and any
recovery in respect thereof will be paid to the Party suffering
such Damages; provided, however, that all of
Parent’s reasonable out-of-pocket costs and expenses incurred
in connection with the foregoing, including retroactive or other
premium increases, are immediately reimbursed by Fan Pass.
Notwithstanding the foregoing, Parent will have the sole right to
administer all such claims in any manner and take any actions as it
determines to be appropriate except to the extent any such
administration or actions may adversely affect the availability of
insurance coverage, the amount of any such coverage, the
applicability of any coverage and/or the availability of future
coverage or coverage limits with respect to Fan Pass or any of its
Subsidiaries, in which case any administration or actions by Parent
shall only be taken after consultation with, and consent of, Fan
Pass. Nothing in this Section 3.5. will affect or modify or be
deemed to affect or modify in any way any Party’s obligations
under Article IV of this Agreement.
3.6
Confidentiality.
The Parties will keep strictly confidential any and all
proprietary, technical, business, marketing, sales and other
information disclosed to another Party in connection with the
performance of this Agreement (the “Confidential
Information”), and will not disclose the same or any
part thereof to any third party, or use the same for their own
benefit or for the benefit of any third party. The obligations of
secrecy and nonuse as set forth herein will survive the termination
of this Agreement for a period of five years. Excluded from this
provision is any information available in the public domain and any
information disclosed to any of the Parties by a third party who is
not in breach of confidential obligations owed to another Person or
entity. Notwithstanding the foregoing, each Party may disclose
Confidential Information (a) to its bankers, attorneys, accountants
and other advisors subject to the same confidentiality obligations
imposed herein and (b) as may be required by law from time to
time.
IV.
INDEMNIFICATION
4.1
Indemnification.
Following the Spin-Off, each of the Parties will indemnify and hold
harmless each other, their respective Subsidiaries and each of
their respective officers, directors, employees, agents and
representatives and each of the successors and assigns of any of
the foregoing (each an “Indemnified Party” and
collectively “Indemnified Parties”) from
and against and will promptly defend such parties from and
reimburse such parties for any and all losses, damages, costs,
expenses, Liabilities, obligations and claims of any kind,
including reasonable attorneys’ fees and other costs and
expenses, (“Damages”) which such
parties may directly or indirectly at any time suffer or incur or
become subject to, as a result of or in connection with (a) any
breach by the Parties of any representation or warranty in this
Agreement, (b) the failure by the Parties to perform any covenant
to be performed by each of the Parties or their respective
Subsidiaries under this Agreement in whole or in part after the
Spin-Off Date, and (c) the conduct of any business of the Parties
or their Subsidiaries other than such Party’s business,
including any indemnity or Liability thereof or any amount due or
to become due in respect of the foregoing. Notwithstanding the
above, Sharps or Parent will have no duty to provide
indemnification for any action arising prior to the Share Exchange
Closing and in the event of any damages arising against Sharps or
Parent for any action related to the Spin-Off they will be fully
indemnified by the Parent Principal.
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4.2
Insurance Coverage.
The indemnification to which any Party is entitled hereunder will
be net of all insurance proceeds actually received, if any, by the
indemnified Party with respect to the losses for which
indemnification is provided in Section 4.1.
4.3
Right of Party to
Indemnification. Each Party entitled to indemnification
hereunder will be entitled to indemnification for losses sustained
in accordance with the provisions of this Article IV regardless of
any Law or public policy that would limit or impair the right of
the Party to recover indemnification under the
circumstances.
4.4
Indemnification
Procedures. Any Party seeking indemnification under this
Article IV for a third party claim (the “Indemnified Party”) must
notify the Party from whom such indemnity is sought (the
“Indemnifying
Party”) in writing of any claim, demand, action or
proceeding for which indemnification will be sought; provided, however, that the failure to so
notify will not adversely impact the Indemnified Party’s
right to indemnification hereunder except and solely to the extent
that such failure to notify actually prejudices, or prevents the
Indemnifying Party’s ability to defend such claim, demand,
action or proceeding. The Indemnifying Party will have the right at
its expense to assume the defense thereof using counsel reasonably
acceptable to the Indemnified Party. The Indemnified Party will
have the right (i) to participate, at its own expense, with
respect to any claim, demand, action or proceeding that is being
diligently defended by the Indemnifying Party and (ii) to
assume the defense of any claim, demand, action or proceeding at
the cost and expense of the Indemnifying Party if the Indemnifying
Party fails or ceases to defend the same. In connection with any
such claim, demand, action or proceeding the Parties will cooperate
with each other and provide each other with access to relevant
books and records in their possession. If a firm written offer is
made to the Indemnifying Party to settle any such claim, demand,
action or proceeding solely in exchange for monetary sums to be
paid by the Indemnifying Party (and such settlement contains a
complete release of the Indemnified Party and its Subsidiaries and
their respective directors, officers and employees) and the
Indemnifying Party proposes to accept such settlement and the
Indemnified Party refuses to consent to such settlement, then
(A) the Indemnifying Party will be excused from, and the
Indemnified Party will be solely responsible for, all further
defense of such claim, demand, action or proceeding, (B) the
maximum liability of the Indemnifying Party relating to such claim,
demand, action or proceeding will be the amount of the proposed
settlement if the amount thereafter recovered from the Indemnified
Party on such claim, demand, action or proceeding is greater than
the amount of the proposed settlement, and (C) the Indemnified
Party will pay all attorneys’ fees and legal costs and
expenses incurred after rejection of such settlement by the
Indemnified Party; provided, however, that if the amount
thereafter recovered by the third party from the Indemnified Party
is less than the amount of the proposed settlement, the Indemnified
Party will be reimbursed by the Indemnifying Party for such
attorneys’ fees and legal costs and expenses up to a maximum
amount equal to the difference between the amount recovered by the
third party and the amount of the proposed settlement.
V.
CONDITIONS
5.1
Conditions to the
Spin-Off. The obligations of the Parties to effect the
Spin-Off are subject to the fulfillment (or waiver by Parent
pursuant to Section 5.2) on or prior to the Spin-Off Date (provided
that certain of such conditions will occur substantially
contemporaneously with the Spin-Off) if Parent shall have
determined on or prior to the Termination Date that the following
conditions have been satisfied (or, if applicable, waived pursuant
to Section 5.2):
(a)
the Parent Board shall have determined, in its sole discretion, to
effect the Spin-Off;
(b)
Parent shall have determined that all actions or filings necessary
or appropriate under applicable securities laws in connection with
the Spin-Off shall have been taken or made, and, where applicable,
have become effective or been accepted by the applicable
Governmental Authority including but not limited to the approval of
FINRA to the Spin-Off;
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(c)
the S-1 Registration Statement will have been declared effective by
the SEC;
(d)
the Common Stock to be distributed to Parent stockholders in the
Spin-Off shall have been accepted for listing on the OTC Pink
Marketplace or another securities exchange acceptable to each of
Parent and Fan Pass in their discretion, subject to official notice
of distribution; and
(e)
no order, injunction, decree or regulation issued by any court or
agency of competent jurisdiction or other legal restraint or
prohibition preventing consummation of the Spin-Off or any of the
transactions related thereto, shall be in effect, and no other
event have occurred or failed to occur, including the initiation or
threat of litigation, that Parent shall have determined is adverse
to Parent or Fan Pass.
5.2
Waiver of
Conditions. The conditions set forth in Section 5.1
(excluding the conditions set forth in Section 5.1(b), 5.1(c) and
5.1(d)) may be waived in the sole discretion of the Board of
Directors of Parent. The conditions set forth in Section 5.1
(excluding the condition set forth in Section 5.1(b)) are for
the sole benefit of Parent or Sharps and will not give rise to or
create any duty on the part of Parent or Sharps or the Board of
Directors of Parent or Sharps to waive or not waive any such
conditions.
VI.
MISCELLANEOUS
6.1
Survival. The
representations, warranties and covenants of the Parties contained
in this Agreement or made pursuant to this Agreement will continue
from and after the Spin-Off Date.
6.2
Amendment. This
Agreement may be amended, modified or supplemented only by the
written agreement of the Parties.
6.3
Waiver of
Compliance. Except as otherwise provided in this Agreement,
the failure by any Person to comply with any obligation, covenant,
agreement or condition under this Agreement may be waived by the
Person entitled to the benefit thereof only by a written instrument
signed by the Person granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation,
covenant, agreement or condition will not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure. The
failure of any Person to enforce at any time any of the provisions
of this Agreement will in no way be construed to be a waiver of any
such provision, nor in any way to affect the validity of this
Agreement or any part thereof or the right of any Person thereafter
to enforce each and every such provision. No waiver of any breach
of such provisions will be held to be a waiver of any other or
subsequent breach.
6.4
Notices. All
notices required or permitted pursuant to this Agreement must be in
writing and will be deemed to be properly given when actually
received by the Person entitled to receive the notice at the
address stated below, or at such other address as a Party may
provide by notice to the other:
If to
Parent:
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▇▇▇▇▇▇▇▇,
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Attn:
Chief Executive Officer
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
If to
Fan Pass:
▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Chief Executive Officer
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
With a
copy to:
Grushko
& ▇▇▇▇▇▇▇, P.C.
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
If to
Sharps:
Sharps
Technology Inc.
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇: Executive Chairman
Attn:
Chief Executive Officer
Email:
▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
With a
copy to:
Sichenzia ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax:
▇▇▇ ▇▇▇ ▇▇▇▇
6.5
Third-Party
Beneficiaries. Except as otherwise expressly provided in
this Agreement, nothing in this Agreement, expressed or implied, is
intended to confer on any Person other than the Parties or their
respective successors and assigns any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
6.6
Successors and
Assigns. This Agreement will be binding upon and will inure
to the benefit of the signatories hereto and their respective
successors and permitted assigns. None of the Parties may assign
this Agreement, or any of their rights or liabilities hereunder,
without the prior written consent of the other Parties hereto, and
any attempt to make any such assignment without such consent will
be null and void. Any such assignment will not relieve the Party
making the assignment from any liability under this
Agreement.
6.7
Severability. The
illegality or partial illegality of any or all of this Agreement or
any provision hereof, will not affect the validity of the remainder
of this Agreement, or any provision hereof, and the illegality or
partial illegality of this Agreement will not affect the validity
of this Agreement in any jurisdiction in which such determination
of illegality or partial illegality has not been made, except in
either case to the extent such illegality or partial illegality
causes this Agreement to no longer contain all of the material
provisions reasonably expected by the Parties to be contained
therein.
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6.8
Governing Law. All
questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law
thereof. Each party agrees that all legal proceedings concerning
the interpretations, enforcement and defense of the transactions
contemplated by this Agreement (whether brought against a party
hereto or its respective affiliates, directors, officers,
shareholders, partners, members, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in
the City of New York. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in
the City of New York, Borough of Manhattan for the adjudication of
any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any action, suit or
proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or
proceeding is improper or is an inconvenient venue for such
proceeding. Each party hereby irrevocably waives personal service
of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to
such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve
process in any other manner permitted by law.
6.9
Amendments;
Waivers. No provision of this Agreement may be waived,
modified, supplemented or amended except in a written instrument
signed, in the case of an amendment, by the party against whom
enforcement of any such waived provision is sought. No waiver of
any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the
future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any
delay or omission of any party to exercise any right hereunder in
any manner impair the exercise of any such right.
6.10
Counterparts. This
Agreement may be executed in two or more counterparts, all of which
will be considered one and the same agreement and will become
effective when counterparts have been signed by each of the Parties
and delivered to the other Parties, it being understood that each
Party need not sign the same counterpart. This Agreement, to the
extent signed and delivered by means of a facsimile or other
electronic transmission, will be treated in all respects as an
original agreement and will be considered to have the same binding
legal effect as if it were a signed original.
6.11
Entire Agreement.
This Agreement (including the documents and the instruments
referred to in this Agreement), constitute the entire agreement and
supersede all prior agreements and understandings, both written and
oral, among the Parties with respect to the subject matter of this
Agreement.
6.12
Determinations by Parent,
Fan Pass or Sharps. Any determination required or permitted
hereby to be made or taken by Parent, Fan Pass or Sharps may be
made or taken by it in its sole discretion and without
consideration to the other or the other’s interests. The
Parties hereby expressly disclaim any implied duties of good faith,
fair dealing or any similar concept and expressly agree that this
Agreement is to be interpreted without giving effect to prior
practice or any alleged oral representations or
assurances.
[SIGNATURES
ON FOLLOWING PAGE]
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IN
WITNESS WHEREOF, each of the signatories hereto has caused this
Agreement to be signed by its duly authorized officer as of the
date first above written.
By:
________________________________________
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
FAN
PASS, INC.
By:
_______________________________________
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
SHARPS
TECHNOLOGY, INC.
By:
_______________________________________
Name:
Title:
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