PCNT Point of Care Nano Technology Inc (CE)

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

CURRENT REPORT

 

Pursuant to Section 13 OR 15(d) of

The Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): June 10, 2024 (May 20, 2024)

 

Point of Care Nano-Technology, Inc.

(Exact name of registrant as specified in its charter)

 

Nevada		000-56356		27-2830681
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

109 AmberSweet Way, Davenport, FL, 33897

(Address of principal executive offices)

 

(732) 723-7395

(Registrant’s telephone number, including area code)

 

(Former name or former address, if changed since last report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act: None 

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.

 

Emerging Growth Company o

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

o

Item 1.01 Entry into a Material Definitive Agreement.

 

On May 20, 2024, Point of Care Nano-Technology, Inc. (the “Company”) entered into an asset purchase agreement (the “Agreement”) with Point of Care Nano-Technology, LLC (“Point”) pursuant to which it agreed to acquire (the “Acquisition”) substantially all of the assets of Point (the “Assets”), consisting primarily of proprietary information and know-how for the developing and commercialization of kits to diagnose illnesses through the testing of human saliva, referred to as the “EZ Saliva” test kits, and cash in the amount of $101,400.

 

In exchange for the Assets, the Company is issuing to Point and/or its designees 66,000,000 restricted shares of the Company’s common stock (the “Consideration Shares”).

 

Upon the closing of the Acquisition, which effected a change of control of the Company, Dr. Raouf Guirguis, the controlling member of Point, became a director of the Company and Chief Scientific Officer. Dr. Guirguis also acquired, directly and indirectly, 34,596,800 of the Consideration Shares, or approximately 48.4% of the shares of the Company’s common stock outstanding after completion of the Acquisition. Mr. Nathan Keele, an associate of Dr. Guirguis and responsible for marketing efforts at Point, also was appointed to the board of directors of the Company. Mr. Keele will continue his marketing efforts at the Company. Mr. Keele acquired 18,903,200 of the Consideration Shares, or approximately 26.5% of the shares of the Company’s common stock outstanding after completion of the Acquisition.

 

Nicholas DeVito, the controlling stockholder of the Company prior to the Acquisition through the 1,000 shares of super-majority class A preferred stock (the “Preferred Stock”) of the Company that he held and through which he exercised eighty percent (80%) voting control over the Company, surrendered to the Company for cancellation the Preferred Stock and received, in exchange, 5,000,000 shares of the Company’s common stock. Mr. DeVito will retain his positions as Chief Executive Officer, Chief Financial Officer, Treasurer and Secretary of the Company as well as his status as a member of the Company’s board of directors.

 

The shares of Company common stock being issued in connection with the Acquisition (as described above) were issued in accordance with a private placement exemption from registration under Section 4(a)(2) of the Securities Act of 1933, as amended, and are considered “restricted securities.”

 

In connection with the Acquisition, the Company entered into a license agreement (the “License Agreement”) with Zeus Diagnostics, LLC (“Zeus”), a Delaware limited liability company controlled by Dr. Guirguis, pursuant to which the Company acquired an exclusive, in perpetuity, license, with a right to sublicense, in the Territory (Canada, the United States and Mexico) to the “Zeus Know-How” which consists of all information related to the manufacture and commercialization of saliva tests derived from patents owned by Zeus. The Company paid Zeus a one-time, non-refundable up-front cash fee of $35,000 (which is creditable against other payments due) and will pay Zeus a royalty on “Net Sales” (as defined in the License Agreement) of Seven and One-Half Percent (7.5%) during each calendar quarter.

 

Following the closing of the Acquisition, the Company’s business will focus on the EZ Saliva product commercialization activity previously carried on by Point.

 

The description of the agreement discussed above does not purport to be complete and the reader should refer to the full text of the agreements attached hereto as exhibits.

Item 2.01 Completion of Acquisition or Disposition of Assets.

 

On May 20, 2024, the Company closed the Acquisition discussed in Item 1.01 above, which discussion is incorporated into this Item 2.01 by reference.

 

Item 5.01 Changes in Control of Registrant.

 

See the discussion of the change of control of the Company in Item 1.1 above, which discussion is incorporated into this Item 5.01 by reference.

 

Set forth below is a brief description of the business experience during the past five years, and education, of each of the Company’s two new directors who took office on May 20, 2024 upon the closing of the Acquisition:

 

Dr. Raouf Guirguis has been the Chairman and Chief Executive Officer of Lamina Equities Corporation since 2001. He currently serves as Director and Chief Science officer at Point of Care Nano Technology, Inc and managing member of Point and BioPharmatech, LLC, companies he controls. From 2005 to 2010, he was the President of Diplomatic Language Services, LLC. Since 2011, Dr. Guirguis has been the President of Converting Biophile Laboratories, LLC. His involvement with the companies ranged from the conception of the business plan to technology packaging, mergers and acquisitions, and business development.  Dr. Guirguis served as Pathology Fellow, National Cancer Institute, NIH (1984-1989) and was a Georgetown University Scholar (1985-1988). He holds an M.D. as well as an M.S., Studies in General Medical Practice, from the University of Alexandria, Egypt. He also holds an M.S. in Biomedical Engineering and a Ph.D. in Physiology and Biophysics from Georgetown University.

 

From February 2015 to April 2021, Dr. Guirguis had been the Chief Executive Officer and majority stockholder of the Company during which period the “Zeus Know-How” was owned by the Company. Following Dr. Guirguis’ departure in 2021, the Zeus Know-How was spun out to a new company wholly owned by Dr. Guirguis.

 

Mr. Nathan Keele has been the founder and CEO of Keele Medical since 2020.  He has served as Regional Leader at US Health Advisors from 2018 to 2020, where he honed his skills in team building and leadership. His entrepreneurial journey continued as he co-founded a fully accredited clinical diagnostic laboratory, Vanguard Laboratories in 2021, serving as CEO there until 2023. Mr. Keele received his associates degree in Psychology from Utah Valley University, 2017.

 

Item 8.01 Other Events.

 

On June 10, 2024, the Company issued a news release announcing the Acquisition. A copy of the news release is furnished with this Current Report as Exhibit 99.1.

 

Item 9.01 Financial Statements and Exhibits.

 

(a)

Financial statements of the business acquired as a result of the Company’s purchase of the Assets will be filed by amendment to this Current Report as soon as they become available.

 

(b)

Pro forma financial information relating to the business acquired as a result of the Company’s purchase of the Assets will be filed by amendment to this current report as soon as it becomes available.

(d)        Exhibits. The following exhibits are filed as part of this report:

 

Exhibit No.		Description of Exhibit
10.1		Asset Purchase Agreement dated May 20, 2024 by and between Point of Care Nano-Technology, Inc. and Point of Care Nano-Technology, LLC
10.2		License Agreement dated May 20, 2024 between Point of Care Nano-Technology, Inc.  and Zeus Diagnostics, LLC
99.1		Press Release dated June 10, 2024
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	POINT OF CARE NANO-TECHNOLOGY, INC.
Date:  June 10, 2024	/s/ Nicholas DeVito
	Name: Nicholas DeVito
	Title: Chief Executive Officer

 

Exhibit 10.1

 

ASSET PURCHASE AGREEMENT

 

This Asset Purchase Agreement is made and entered into May 20th, 2024 (the “Agreement”), by and between Point of Care Nano Technology, LLC. (“Point” or “POC”) duly incorporated or organized under the laws of Delaware (“Seller”), and Point of Care Nano Technology, Inc., a Nevada corporation publicly traded over the counter in the United States (the “U.S”) (“PCNT” or “Buyer”) (collectively, the “Parties” and, individually, a “Party”).

 

WHEREAS, Seller is engaged in developing, selling and distributing products to test saliva for a variety of substances with a goal to replace other less reliable or more expensive methods and other related properties (together, the “Products”) derived, in part, from patents owned by Zeus Diagnostics, LLC (“Zeus”), an affiliate of Seller, and from the intellectual property (the “Intellectual Property”) listed in Exhibit A hereto, in the territories (the “Territories”) specified in Exhibit A; and

 

WHEREAS Seller desires to sell the Intellectual Property and the other assets listed in Exhibit A (together, the “Assets”) to Buyer, and Buyer desires to purchase the Assets from Seller (the “Acquisition”), to commercialize the Intellectual Property and develop and sell the Products in the Territories specified in Exhibit A, in exchange for shares of Buyer’s common stock; and

 

WHEREAS Seller desires to grant the Buyer an option to commercialize the Intellectual Property in any country outside of the Territories. in exchange for a one-time non-refundable fee equal to $1,000.00 for each 1,000,000 people of the total population of each country as defined in the latest (https://www.cia.gov/the-world-factbook/) where the Intellectual Property is being commercialized under the same terms and conditions of the given license in the Territories; and

 

WHEREAS Seller shall maintain all its rights to the Intellectual Property in the rest of world outside of the Territories, except with respect to additional countries outside of the Territories for which Buyer decides to exercise its “Option” to commercialize the Intellectual Property within 30 days from its first sale of the products in those countries; and

 

WHEREAS Buyer is an OTC: PINK Markets company and delinquent on several SEC, OTC and FINRA filings.

 

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

 

1. Transfer of Assets. 

 

a.             Purchase of Assets.  Concurrently upon receipt of all the consideration due at Closing (as defined below) set forth in Section 2 below, Seller shall transfer to Buyer all of Seller’s right, title and interest in, to and under the Assets, and, with respect to the Intellectual Property only, such transfer of rights shall be limited for use with respect to Product commercialization in the Territories listed on Exhibit A attached hereto.

b.           No Assumption of Pre-Closing Liabilities.  Buyer will not assume nor have any responsibility with respect to any Seller liabilities which exist at Closing, or which are attributable to actions taken by Seller prior to Closing, and Buyer shall not be deemed by anything contained in this Agreement or any other instrument to have assumed or become responsible for any such Seller liabilities, all of which shall remain the responsibility of Seller.

 

c.            Development Option. Seller hereby grants Buyer the option to commercialize the Intellectual Property in additional countries outside of the Territories. At the time of exercise of this option for any particular country, Buyer shall pay Seller a one-time non-refundable fee consisting of $1,000.00 for each 1,000,000 people of the total population on or about the date of the granting of the additional license (as published in the latest https://www.cia.gov/the-world-factbook/) of the country for which the option is being exercised.

 

2. Consideration. In consideration of Seller’s transfer to Buyer at Closing of the Intellectual Property, Buyer shall issue to certain persons to be designated by Sellers, such designated persons being equity owners of Sellers (the “Seller Designees”), shares of its common stock, $0.001 par value per share (the “Common Shares”). The Equity (as defined below) shall be issued to those Seller Designees and in the denominations listed on Exhibit B attached hereto.

 

a.

At the Closing, PCNT shall issue to the Sellers Designees, in the aggregate:

 

i.

66,000,000 restricted Common Shares (the “Purchase Shares”) issued;

 

ii.

At the Closing, Mr. Nicholas DeVito, currently Director and CEO of PCNT, shall receive 5,000,000 Common Shares in exchange for his current 1,000 preferred shares.

 

b.

Upon Closing, Dr. Raouf Guirguis and Mr. Nathan Keele shall be appointed to the board of directors (the “Board”) of PCNT, both of whom shall be subject to qualifications reasonably determined by PCNT and PCNT approval, which approval shall not be unreasonably withheld, delayed or conditioned.

 

3. Conditions to Closing. The obligations of each Party to consummate the Acquisition shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions:

 

a.             Assignment Agreements. Sellers shall execute and deliver to Buyer at the closing (i) an exclusive License Transfer Agreement in the form attached hereto as Exhibit D (the “License Assignments”) to assign all other assets and other “Intellectual Property” to Buyer and (ii) such other instruments of assignment and transfer as are reasonably required to effect the transfer to Buyer of all of Seller’s right, title and interest in and to the Assets in accordance with this Agreement, in form and substance reasonably satisfactory to Buyer.  

b.

Mutual Release of Claims.

 

i.

Subject to the receipt by Sellers of the consideration set forth in, and in accordance with the terms of, Section 2 of this Agreement, each Seller, severally and jointly (the “Seller Releasors”), hereby irrevocably and unconditionally releases and forever discharges PCNT, including its successors, legal representatives and assigns, and its current, future and former directors, officers, agents, representatives, servants and employees (collectively, the “PCNT Releasees”), and each of them, of and from any and all actions, causes of action, suits, proceedings, executions, judgments, duties, debts, accounts, contracts, covenants, claims, demands, damages, interest, costs, expenses and compensation of whatsoever kind and howsoever arising, whether known or unknown, and whether in law or equity (collectively, the “Seller Claims”), and which the Seller Releasors ever had, now has or at any time hereafter can, shall or may have in any way resulting or arising from any cause, matter or thing whatsoever existing up to and including the date hereof relating to the Assets and the Intellectual Property and, without limitation, any claims that any of the Seller Releasors may have among themselves. For the avoidance of doubt, this release does not release any Seller Claims by the Seller Releasors for obligations of PCNT arising under this Agreement.

 

ii.

Subject to the receipt by PCNT of the Assets set forth in, and in accordance with the terms of this Agreement, PCNT (the “Buyer Releasor”), hereby irrevocably and unconditionally releases and forever discharges each Seller, and each of their successors, legal representatives and assigns, and their current, future and former directors, officers, agents, representatives, servants, members, shareholders and employees (collectively, the “Seller Releasees”), and each of them, of and from any and all actions, causes of action, suits, proceedings, executions, judgments, duties, debts, accounts, contracts, covenants, claims, demands, damages, interest, costs, expenses and compensation of whatsoever kind and howsoever arising, whether known or unknown, and whether in law or equity (collectively, the “Buyer Claims”), and which the Buyer Releasor ever had, now has or at any time hereafter can, shall or may have in any way resulting or arising from any cause, matter or thing whatsoever existing up to and including the date hereof relating to the Assets and the Intellectual Property.  For the avoidance of doubt, this release does not release any Buyer Claims by the Buyer Releasor for obligations of Sellers arising under this Agreement.

 

c.

Shareholder Approval by Sellers. Seller receives board of directors’ and shareholder approval for the sale of all of the Assets to Buyer.

 

d.

Satisfactory Due Diligence. Buyer and Seller have completed their due diligence with respect to Seller’s Assets and Buyer’s assets and Common Shares to their satisfaction in their sole discretion. Seller understands Buyer is delinquent on its filings with the SEC, OTC and FINRA.

e.

Fundraising. Point shall have secured at least $100,000 in funding closing prior to the Closing under this Agreement.

 

f.

Board Authorization of Issuance of Shares. Buyer’s Board shall have approved the issuance of the Equity to the Seller Designees listed on Exhibit B.

 

g.

Buyer Regulatory Filings.  Buyer undertakes to timely file all required periodic and current reports with the Securities and Exchange Commission.

 

4. Representations and Warranties of Seller. Seller, jointly and severally, represent and warrant to, and covenant with Buyer that:

 

a.             Each of the Seller entities is an entity duly organized, validly existing and in good standing under the law of the state or jurisdiction of its organization;

 

b.

Each of the Seller entities has the full corporate right, power, and authority to enter into this Agreement and to perform the obligations hereunder;

 

c.

the execution of this Agreement by each of the Seller’s representative whose signature is set forth on the Signature Page hereto has been duly authorized by all necessary corporate action of each of the Seller entities;

 

d.

the execution of this Agreement, when executed and delivered by each of the Seller entities, shall constitute the legal, valid, and binding obligation of such entity, enforceable against such entity in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law;

 

e.

Each Seller entity and each of the Seller Designees will be acquiring the Common Shares solely for their own accounts for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Neither Seller nor any of the Seller Designees is acting as an underwriter or unlicensed broker-dealer (as those terms are defined under the Securities Act of 1933, as amended (the “Securities Act”)) by instructing PCNT that the Equity be issued to the Seller Designees listed on Exhibit B and is entering into this Agreement and consummating the transactions hereby with the knowledge and approval of its equity owners in compliance with the laws of its jurisdiction;

f.

Seller acknowledges that the Common Shares are or will not be registered under the Securities Act or any state securities laws, and that the Common Shares may not be transferred or sold except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable;

 

g.

no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement;

 

h.

Seller is the sole and exclusive legal and beneficial owner of all right, title and interest in and to the Intellectual Property and the other Assets listed on Exhibit A, free and clear of encumbrances, liens, security interests, rights of first refusal, negotiation or offer;

 

i.

neither the execution, delivery or performance of this Agreement, nor the consummation of the transactions contemplated hereunder, will result in the loss or impairment of or payment of any additional amounts with respect to, nor require the consent of any other person in respect of, Buyer’s right to own or use any of the Assets and Intellectual Property listed on Exhibit A.

 

j.

all of the Intellectual Property items listed on Exhibit A are valid and enforceable, and all Intellectual Property registrations are subsisting and in full force and effect. Seller has taken all necessary steps to maintain and enforce the Intellectual Property and to preserve the confidentiality of all trade secrets included in the Intellectual Property, including by requiring all Persons having access thereto to execute binding, written non-disclosure agreements.

 

k.

other than for the Assets listed in Exhibit A, Seller has not received a notice (written or otherwise) that any of, the rights to the Intellectual Property has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Seller has not received a written notice of a claim or otherwise has any Knowledge (as defined below) that the Intellectual Property rights violate or infringe upon the rights of any Person.  Other than for the Assets listed in Exhibit A, all rights to the Intellectual Property are enforceable and, to the Knowledge of Seller, there is no existing infringement by another Person of any of the Intellectual Property rights. Seller has taken reasonable security measures to protect the secrecy, confidentiality and value of all of the Intellectual Property, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a material adverse effect.

 

l.

other than for the filings that have to be made with the proper patent registration authorities and the nominal fee that must be paid to process the transfer of the patent and the patent applications listed in Exhibit A, neither its transfer nor its performance of any of its obligations, under this Agreement does, or to its Knowledge will at any time during the life of the Agreement:

 

i.

conflict with or violate any applicable law;

ii.

require the consent, approval, or authorization of any governmental or regulatory authority or other third party; or

 

iii.

require the provision of any payment or other consideration to any third party.

 

m.

it has not granted and will not grant any licenses or other contingent or non-contingent right, title, or interest under or relating to any of the Intellectual Property, and is not or will not be under any obligation, that does or will conflict with or otherwise affect this Agreement, including any of Sellers’ representations, warranties, or obligations, or Buyer’s rights hereunder;

 

n.

other than for the Assets listed in Exhibit A, to its knowledge, no prior art or other information exists that would adversely affect the validity, enforceability, term, or scope of this Agreement or any Intellectual Property;

 

o.

there is no settled, pending or, to its Knowledge, threatened litigation or reissue application, re-examination, post-grant, inter parties, or covered business method patent review, interference, derivation, opposition, claim of invalidity, or other claim or proceeding (including in the form of any offer to obtain a license):

 

a.       alleging the unpatentability, invalidity, misuse, unregistrability, unenforceability, or noninfringement of, or error in any Intellectual Property; or

 

b.       challenging Seller’s right to transfer any Intellectual Property, or alleging any adverse right, title, or interest with respect thereto; or

 

c.       alleging that the practice of any Intellectual Property or the making, using, offering to sell, sale, or importation of any product incorporating any Intellectual Property does or would infringe, misappropriate, or otherwise violate any patent, trade secret, or other intellectual property of any third party.

 

5. Representations and Warranties of Buyer. Buyer represents and warrants to, and covenants with each Seller as follows:

 

a.

it is duly organized, validly existing, and in good standing as a corporation in the State of Nevada;

 

b.

it has the full corporate right, power, and authority to enter into this Agreement and to perform its obligations hereunder;

 

c.

the execution of this Agreement by its representative whose signature is set forth on the Signature Page hereto has been duly authorized by all necessary corporate action of the Party;

d.

when executed and delivered by Buyer, this Agreement shall constitute the legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law;

 

e.

to the best of Buyer’s Knowledge, there are no material suits, actions, arbitrations, or legal, administrative, or other proceedings, or governmental investigations pending, or threatened, against or affecting it or its business, assets, financial condition, the Shares, its officers or directors;

 

f.

the consummation of the transactions contemplated by this Agreement will not result in or constitute a default or an event that, with notice or lapse of time or both, would be a default, breach or violation of any lease agreement, promissory note, commitment, indenture, mortgage, deed of trust, or other agreement, instrument, or arrangement to which Buyer is a party, or by which Buyer is bound;

 

g.

the authorized capital stock of Buyer consists of 100,000,000 shares of Common Stock and 25,000,000 shares of preferred stock, par value $0.001 per share (the “Preferred Stock”). Buyer currently has 420,971 Common Shares outstanding and 1,000 shares of Preferred Stock outstanding and must issue an additional 175,000 Common Shares to one holder;

 

h.

there does not exist an entity or individual that has any rights of first refusal to purchase any shares of Common Stock or Preferred stock of Buyer; and

 

i.

no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement.

 

6. Closing. The following matters shall apply to the Closing of the transaction contemplated herein:

 

a.

Time and Place. Subject to the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place through the exchange of signature pages through electronic mail or otherwise as agreed to by the Parties after all of the conditions to Closing are either waived or satisfied (other than conditions which, by their nature, are to be satisfied by the Closing Date), or at such other time, date or place as Seller and Buyer may mutually agree upon in writing.  The date on which the Closing is to occur is hereinafter referred as the “Closing Date.”

 

b.

Buyer’s Obligations. At the Closing, Buyer shall deliver:

i.

To the Seller, duly executed Board of Directors Resolution authorizing the electronic certificates evidencing the Purchase Shares (whereupon the stock ledger and other internal records of the Buyer shall be changed to reflect the transfer of the Equity to the recipients thereof) in the names and denominations as set forth on Exhibit B attached hereto.

 

c.

Sellers’ Obligations.  At the Closing, Sellers shall deliver to the Buyer:

 

i. A duly executed License Assignment and Bill of Sale for all applicable Intellectual Property listed on Exhibit A attached hereto; and,

 

ii.

$101,400 cash.

 

7. Nature and Survival of Representations and Obligations. The representations and warranties made by the Parties and their respective obligations to be performed pursuant to the terms hereof, shall survive the Closing indefinitely.

 

8. Indemnification. 

 

a.             Each and every representation, warranty, covenant, agreement and indemnity contained in this Agreement shall survive execution and delivery of this Agreement and the Closing; provided, that the representations and warranties contained in Sections 4 and 5 shall survive the Closing until twenty-four (24) months after the Closing Date. Notwithstanding the foregoing, the passing of the above survival period for any representation or warranty shall not terminate or affect any claim with respect to such representation or warranty or such Section as to which notice of a claim hereunder has been delivered to the other Party prior to the end of such survival period.  

 

b.

After the Closing,  the Seller (the “Indemnifying Party”) agrees to save, defend and indemnify the Buyer and each of their respective, directors, officers, employees, agents, representatives, successors and assigns (each, an “Indemnified Party”) from and against, and hold each of them harmless from, any and all losses arising out of, based upon, resulting from or incident to: (i) any breach of or material inaccuracy in any representation or warranty made by the Parties set forth in this Agreement; or (ii) any breach of or failure to perform any obligation or covenant that should be performed pursuant to this Agreement.

 

c.

Promptly after receipt by any Indemnified Party of notice of any demand, claim or circumstances which would or might give rise to a claim or the commencement of any action, proceeding or investigation in respect of which indemnity may be sought pursuant to this Section 8, such Indemnified Person shall promptly notify the Indemnifying party in writing.

 

d.

The Parties agree that any and all damages that may be incurred by an Indemnified Party shall be claimed against the other Party directly by the diligent Party or who has been willing to fulfill its contractual obligations.

9. Termination. This Agreement may be terminated at any time prior to the Closing:

 

a.             by the mutual written consent of Seller and Buyer;

 

b.

by either Party if the transactions contemplated by this Agreement are not consummated by May 28, 2024, which date shall be automatically extended for up to an additional 30 days if and as required (the “Drop-Dead Date”) and further by mutual agreement;

 

c.

by Buyer, by written notice to Seller if:

 

(i) Buyer is not then in material breach of any provision of this Agreement and there has been a material breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Seller pursuant to this Agreement and such breach, inaccuracy or failure cannot be cured by Seller by the Drop-Dead Date; or

 

(ii) any of the conditions set forth in Section 3 shall not have been fulfilled by the Drop-Dead Date, unless such failure shall be due to the failure of Buyer to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing. 

 

d.

by Seller, by written notice to Buyer if:

 

(i)   Seller is not then in material breach of any provision of this Agreement and there has been a material breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Buyer pursuant to this Agreement and such breach, inaccuracy or failure cannot be cured by Buyer by the Drop-Dead Date; or 

 

(ii) any of the conditions set forth in Section 3, including, without limitation, the Section 3(e) condition that Buyer secures not less than $500,000 of financing, before offering fees and expenses  shall not have been fulfilled by the Drop-Dead Date, unless such failure shall be due to the failure of Seller to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing. 

 

e.

by Seller or Buyer in the event that:

 

i. there shall be any law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited; or

 

ii.

any governmental authority shall have issued a governmental order restraining or enjoining the transactions contemplated by this Agreement, and such Governmental Order shall have become final and non-appealable.

10. Effect of Termination. In the event of the termination of this Agreement in accordance with this Article, this Agreement shall forthwith become void and there shall be no liability on the part of any Party hereto except that nothing herein shall relieve any Party hereto from liability for any intentional breach of any provision hereof.

 

11. Expenses. Except as otherwise expressly provided herein, all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such costs and expenses, whether or not the Closing shall have occurred.

 

12. General Provisions

 

a.             Knowledge Definition. As used herein, the word “Knowledge” means the actual or constructive knowledge of any director or officer of Seller or Buyer, as the case may be, after due internal inquiry.

 

b.

Press Release; Confidentiality.  Except as indicated below, the Parties shall keep this Agreement and its terms confidential, but either party may make such disclosures as it reasonably considers as required by applicable law or necessary to raise financing. The Parties agree to issue a joint press release relating to the purchase of the Intellectual Property by PCNT. Seller acknowledges that Buyer is required by federal securities laws to disclose the material terms of this Agreement through the filing with the SEC of a Current Report on Form 8-K and that Buyer will attach a copy of this Agreement as an exhibit to such Current Report or as an exhibit to its next Quarterly Report on Form 10-Q.  In the event that the transactions contemplated by this Agreement are not consummated for any reason whatsoever, each Party hereto agrees not to disclose or use any confidential information it may have concerning the affairs of the other Party, except for information which is required by law to be disclosed.  Confidential information includes, but is not limited to, financial records, surveys, reports, plans, proposals, financial information, information relating to personnel contracts, stock ownership, liabilities and litigation.

 

c.

Entire Agreement. This Agreement and all Exhibits hereto contain the entire understanding and agreement of the Parties with respect to matters addressed herein, and supersedes any prior understandings and agreements among them respecting the subject matter of this Agreement. No modification of this Agreement shall be valid unless it is in writing and signed by each of the Parties.

 

d.

Severability. If one or more of the provisions contained in this Agreement shall for any reason be held to be unenforceable or excessively broad as to time, duration, scope, activity or subject, such provision will be construed, by limiting or reducing it, so as to be enforceable to the extent compatible with the then-applicable law. In the event of any question as to the interpretation of any provision herein, such question shall not be resolved by resort to any rule or maxim which resolves it against the drafting Party. In the event any one or more provisions contained in this Agreement are held by a court or other tribunal to be invalid or unenforceable, the remaining provisions shall continue in full force and effect without being impaired or invalidated in any way.

e.

Governing Law. This Agreement and the rights and obligations of the Parties herein, shall be construed in accordance with the laws of the State of Nevada without giving effect to any choice or conflict of law or provision or rule.

 

f.

Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.

 

g.

Assignment. Neither Party may assign its rights and obligations under this Agreement except with the prior written consent of the other, which consent shall not be unreasonably withheld. Any attempt to assign or delegate prior to the Closing without such consent shall be ineffective.

 

h.

Mediation; Arbitration.

 

i.

Any dispute, controversy or claim involving the Parties arising out of or relating to this Agreement (a “Dispute”), shall first be submitted to a senior business person of each Party, each with authority to resolve the Dispute. If such persons cannot resolve the Dispute within thirty (30) days after notice of a Dispute, either Party may submit such Dispute to nonbinding mediation in accordance with the Commercial Mediation Procedures of the American Arbitration Association (“AAA”). Such mediation shall be attended on behalf of each Party by a senior business person with authority to resolve the Dispute. Any period of limitations that would otherwise expire between the initiation of a mediation and its conclusion shall be extended until twenty (20) days after the conclusion of the mediation. The costs of mediation shall be shared equally by the parties to the mediation.

 

ii.

Any Dispute that cannot be resolved for any reason by mediation within sixty (60) days of notice by one Party to the other of the existence of a Dispute (unless the Parties agree in writing to extend that period) shall be finally settled and resolved by an arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be enforced in any court having jurisdiction thereof.  The arbitrator shall be mutually selected by the Parties, or, in the event the Parties cannot agree upon such an arbitrator, then by the American Arbitration Association. Any decision so rendered in arbitration shall be binding and final on all Parties. The seat of arbitration shall be New Jersey.

 

i.

Counterparts. This Agreement may be executed in several counterparts and all so executed, shall constitute one Agreement, binding on the Parties hereto even though all the Parties are not signatories to the original or the same counterpart.

j.

Facsimile and Electronic Mail Transmission. Facsimile or electronic mail transmission of any signed original document, and retransmission of any signed facsimile or electronic mail transmission, shall be the same as transmission of an original. Parties will confirm signatures transmitted by facsimile or electronic mail by signing an original document.

 

k.

Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties, and their respective successors and assigns, subject to the assignment provisions set forth above.

 

l.

Further Documentation. The Parties recognize that Buyer is a publicly traded company, and as such other documentation may be required to effectuate all the terms of this Agreement. Further, the Parties recognize that at Closing management of Buyer may concurrently change, requiring the filing of various documents with state and/or federal governments setting forth the change in management. The Parties agree to promptly execute any and all future documentation necessary to complete all of the promises and conveyances set forth in this Agreement.

 

IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first written above.

 

Point of Care Nano Technology, LLC (POINT, POC or Seller)

 

By:	/s/Dr, Raouf Guirguis

Name: Dr. Raouf Guirguis

Title: Managing Member

 

Point of Caro Nano Technology, INC. (PCNT or Buyer)

 

By:	/s/Nicholas Devito

Name: Nicholas DeVito

Title: Chief Executive Officer

EXHIBIT A

 

Intellectual Property and other Assets Being Purchased by PCNT

 

Point of Care Nano Technology, LLC (Point) Assets:

 

All proprietary information and know-how relating to Patents listed in the license from Zeus Diagnostics to Point including US20220257219A1, US20230266311A1and US20230288420A, which patents are owned by Zues Diagnostics, LLC, an affiliate of Point and not sold or transferred to Point, and all of the technology and testing results for the saliva sample collection liquid that is not generally known and is necessary or reasonably useful for the development, manufacture, use, sale, market, distribute or commercialization of any EZ Saliva related product in the countries of the USA, Canada, and Mexico (being the “Territories”), which proprietary information and know-how we refer to in this Agreement as the Intellectual Property.

 

$101,400 Cash

 

All software supporting the Intellectual Property including software that assists in the chain of custody of materials, enhances the usefulness of the EZ Saliva Products, eases the communication of analytics and lab results with potential clients and laboratories, and allows those results to be used in evidentiary and any other application.

 

Scientific studies showing the effectiveness of the products.

 

Brand assets
Social Media presence (Website, Portal, Domain, LinkedIn, Youtube, Instagram)
Extensive Market Research and Data (Law Enforcement, Laboratories, Workplace, Clinical Toxicology)
Marketing Campaign Templates and Automations
50+ potential client list
20+ independent contractors contacts
10+ potential laboratory clients list
20,000+ vetted contacts within law enforcement 
Lobbyist and Government relationships/contacts
Conference supplies (5 pop-up Banners, 1 10x10 Banner, 6 Tablecloths, 10,000 Flyers)

EXHIBIT C
Form of License Assignment Agreement

 

(See below)
LICENSE ASSIGNMENT AGREEMENT
BY AND BETWEEN

 

i.

Point of Care Nano Technology, LLC, a company duly incorporated and organized under the laws of Delaware, (the “Assignor or POINT”), and

 

ii.

Point of Care Nano Technology, Inc., a Nevada corporation, having its registered address in Florida   (the “Assignee or PCNT” and jointly with the Assignor, the “Parties”).

 

FIRST: Background

 

1.

Assignor is the sole and current owner of the non-exclusive License dated July 25, 2023 (the “License”)

 

SECOND: Assignment

 

1.

Assignor, duly represented, hereby assigns and transfers to the Assignee, the non-exclusive License, and therefore the Assignee becomes, as of this date, the lawful holder of the License for all legal purposes. This agreement shall be effective as from the date of execution hereof.

 

2.            The Assignor hereby delivers a copy of the License to the Assignee, who declares to receive such License to its complete conformity.

 

THIRD: Price

 

1.

The Parties hereby declare that, the Assignor has received the consideration for the assignment of the License, at full satisfaction.

 

FOURTH: Governing Law and Arbitration

 

1.

This Agreement shall be governed and construed in accordance with the laws of Nevada.

 

Point of Care Nano Technology LLC. (Assignor)   By: Dr. Raouf Guirguis           Name: Raouf Guirguis Title: Managing Member Date: May 21, 2024	Point of Care Nano Technology INC. (Assignee)   By: /s/Nicholas Devito           Name: Nicholas DeVito Title: Chief Executive Officer Date: May 21, 2024

 

Exhibit 10.2

 

LICENSE AGREEMENT

 

between

 

POINT OF CARE NANO TECHNOLOGY, INC.

 

and

 

ZEUS DIAGNOSTICS, LLC

 

Dated MAY 20, 2024

LICENSE AGREEMENT

 

This License Agreement (the “Agreement”) is made and entered into May 20, 2024 (the “Effective Date”) by and between ZEUS Diagnostics, a Delaware (“ZEUS”) and Point of Care Nano Technology, a Nevada corporation trading on OTC markets with a business address in Davenport Florida (“PCNT”). ZEUS and PCNT are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.

 

Recitals

 

WHEREAS ZEUS owns or Controls certain intellectual property relating to diagnosing illnesses in human Saliva via the use of OroPharyngeal Lavage liquid based molecular diagnostics’ tests; and

 

WHEREAS, ZEUS wishes to license to PCNT, and PCNT wishes to license from ZEUS, through the license grants contemplated herein, such intellectual property rights to develop and commercialize Products (as defined below) in accordance with the terms and conditions set forth below.

 

NOW, THEREFORE, in consideration of the premises and the mutual promises and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, do hereby agree as follows:

 

ARTICLE 1
DEFINITIONS

 

Unless otherwise specifically provided herein, the following terms shall have the following meanings:

 

1.1       “Affiliate” means, with respect to a Party, any Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such Party. For purposes of this definition, “control” and, with correlative meanings, the terms “controlled by” and “under common control with”, means (i) the possession, directly or indirectly, of the power to direct the management or policies of a business entity, whether through the ownership of voting securities, by contract relating to voting rights or corporate governance, or otherwise; or (ii) the ownership, directly or indirectly, of more than fifty percent (50%) of the voting securities or other ownership interest of a business entity (or, with respect to a limited partnership or other similar entity, its general partner or controlling entity). The Parties acknowledge that in the case of certain entities organized under the laws of certain countries outside of the United States, the maximum percentage ownership permitted by law for a foreign investor may be less than fifty percent (50%), and that in such case such lower percentage shall be substituted in the preceding sentence, provided that such foreign investor has the power to direct the management or policies of such entity.

 

1.2       “PCNT” has the meaning set forth in the preamble hereto.

1.3       “Applicable Law” means federal, state, local, national and supra-national laws, statutes, rules, and regulations, including any rules, regulations, guidelines, or other requirements of the Regulatory Authorities, major national securities exchanges or major securities listing organizations, that may be in effect from time to time during the Term and applicable to a particular activity.

 

1.4       “Business Day” means a day other than a Saturday or Sunday on which banking institutions in New York, New York are open for business.

 

1.5       “Calendar Quarter” means each successive period of three (3) calendar months commencing on January 1, April 1, July 1 and October 1, except that the first Calendar Quarter of the Term shall commence on the Effective Date and end on the day immediately prior to the first to occur of January 1, April 1, July 1 or October 1 after the Effective Date, and the last Calendar Quarter shall end on the last day of the Term.

 

1.6       “Calendar Year” means each successive period of twelve (12) calendar months commencing on January 1 and ending on December 31, except that the first Calendar Year of the Term shall commence on the Effective Date and end on December 31 of the year in which the Effective Date occurs and the last Calendar Year of the Term shall commence on January 1 of the year in which the Term ends and end on the last day of the Term.

 

1.7       “Change in Control” means with respect to a Party: (1) the sale of all or substantially all of such Party’s assets or business relating to this Agreement; (2) a merger, reorganization or consolidation involving such Party in which the holders of voting securities of such Party outstanding immediately prior thereto cease to hold voting securities that represent at least fifty percent (50%) of the combined voting power of the surviving entity immediately after such merger, reorganization or consolidation; or (3) a person or entity, or group of persons or entities, acting in concert acquire more than fifty percent (50%) of the voting equity securities or management control of such Party.

 

1.8       “Commercial Sublicensee” means a Sublicensee to whom PCNT has granted a right to offer for sale, have sold or sell one or more Products in all or a portion of the Territory including exclusive distributors.

 

1.9       “Commercialization” means any and all activities directed to the preparation for sale of, offering for sale of, or sale of a Product, including activities related to marketing, promoting, distributing, and importing such Product, and interacting with Regulatory Authorities regarding any of the foregoing. When used as a verb, “to Commercialize” and “Commercializing” means to engage in Commercialization, and “Commercialized” has a corresponding meaning.

 

1.10       “Commercially Reasonable Efforts” means, with respect to the objective that is the subject of such efforts, such reasonable, good faith efforts and resources as a similarly situated (including in relation to size and personnel and other resources) company within the pharmaceutical industry would normally use to accomplish a similar objective under similar circumstances.

1.11       “Confidential Information” means any technical, business, or other information or data provided orally, visually, in writing or other form by or on behalf of one Party to the other Party in connection with this Agreement, including information relating to the terms of this Agreement, any Product (including the Regulatory Documentation), any Exploitation of any Product, any know-how with respect thereto developed by or on behalf of the disclosing Party or its Affiliates, or the scientific, regulatory or business affairs or other activities of either Party.

 

1.12       “Control” means, with respect to any item of Information, Regulatory Documentation, material, Patent, or other property right existing on or after the Effective Date and during the Term, possession of the right, whether directly or indirectly, and whether by ownership, license or otherwise (other than by operation of the license and other grants in Section 2.1), to grant a license, sublicense or other right (including the right to reference Regulatory Documentation) to or under such Information, Regulatory Documentation, material, Patent, or other property right as provided for herein without violating the terms of any agreement or other arrangement with any Third Party.

 

1.13       “Development” means all activities related to research, pre-clinical and other non-clinical testing, test method development and stability testing, toxicology, formulation, process development, manufacturing scale-up, qualification and validation, quality assurance/quality control, clinical studies, statistical analysis and report writing, the preparation and submission of Drug Approval Applications, regulatory affairs with respect to the foregoing and all other activities necessary or reasonably useful or otherwise requested or required by a Regulatory Authority as a condition or in support of obtaining or maintaining a Regulatory Approval. When used as a verb, “Develop” means to engage in Development.

 

1.14       “Development Data” means all non-clinical, clinical, technical, chemical, safety, and scientific data and information and other results, including relevant laboratory notebook information, screening data, and synthesis schemes, including descriptions in any form, data and other information, in each case, that is generated by or resulting from or in connection with the conduct of Development of Products.

 

1.15       “Dollars” or “$” means United States Dollars.

 

1.16       “Drug Approval Application” means a New Drug Application (an “NDA”) as defined in the FFDCA, or any corresponding foreign application, including, with respect to the European Union, a Marketing Authorization Application filed with the EMA or with the applicable Regulatory Authority of a country in Europe with respect to the mutual recognition or any other national approval procedure.

 

1.17       “Effective Date” means the effective date of this Agreement as set forth in the preamble hereto.

 

1.18       “EMA” means the European Medicines Agency and any successor agency or authority having substantially the same function.

1.19       “Exploit” means to make, have made, import, use, sell, or offer for sale, including to research, Develop, Commercialize, Manufacture, have Manufactured, obtain Regulatory Approval for, hold, or keep (whether for disposal or otherwise), have used, export, transport, distribute, promote, market, or have sold or otherwise dispose of on a North America basis. “Exploitation” shall mean the act of Exploiting.

 

1.20       “FDA” means the United States Food and Drug Administration and any successor agency or agencies or authority having substantially the same function.

 

1.21       “FFDCA” means the United States Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §301 et seq., as amended from time to time, together with any rules, regulations and requirements promulgated thereunder (including all additions, supplements, extensions, and modifications thereto).

 

1.22       “First Commercial Sale” means, with respect to a Product and a country, the first sale by PCNT, its Affiliate or its Commercial Sublicensee to a Third Party for monetary value of such Product in such country after Regulatory Approval for such Product has been obtained in such country.

 

1.23       “IND” means an application filed with a Regulatory Authority for authorization to commence human clinical studies, including (a) an Investigational New Drug Application as defined in the FFDCA or any successor application or procedure filed with the FDA, (b) any equivalent of a United States IND in other countries or regulatory jurisdictions, and (c) all supplements, amendments, variations, extensions and renewals thereof that may be filed with respect to the foregoing.

 

1.24       “Information” means all technical, scientific, and other know-how and information, trade secrets, knowledge, technology, means, methods, processes, practices, formulae, instructions, skills, techniques, procedures, experiences, ideas, technical assistance, designs, drawings, assembly procedures, computer programs, apparatuses, specifications, data, results and other material, including: biological, chemical, pharmacological, toxicological, pharmaceutical, physical and analytical, pre-clinical, clinical, safety, manufacturing and quality control data and information, including study designs and protocols, assays, biological methodology, other data relating to Development, all data, information and materials relating to Commercialization, including customer lists (both actual and target customers), any market studies and competitive data; in each case (whether or not confidential, proprietary, patented or patentable) in written, electronic or any other form now known or hereafter developed.

 

1.25       “Invention” means any writing, invention, discovery, improvement, technology, Information or other Know-How (in each case, whether patented or not) that is not existing as of the Effective Date and is invented under this Agreement during the Term.

 

1.26       “LIBOR” means the London Interbank Offered Rate for deposits in United States Dollars having a maturity of one month published by the British Bankers’ Association, as adjusted from time to time on the first London business day of each month.

 

1.27       “Product” means the sale of non-alcoholic mouth rinse that aids in collecting saliva or oral fluids samples for detecting a variety of diseases or other compounds during laboratory testing.

1.28       “ZEUS” has the meaning set forth in the preamble hereto.

 

1.29        “ZEUS Know-How” means all Information Controlled by ZEUS or any of its Affiliates as of the Effective Date or at any time during the Term (subject to Section 9.2.2) that is not generally known and is necessary or reasonably useful for the Development, manufacture, or Commercialization of a Product limited to Claims listed in US Patents Publications No. 20220257219A1, US 20230266311A1, US 20230288420A1 and related cases as defined in item 1.35 “Patents”.

 

1.30       “Liens” means all liens, encumbrances, charges, security interests, options, claims, mortgages, pledges, or agreements, obligations, understandings or arrangements or other restrictions on title or transfer of any nature whatsoever.

 

1.31       “Manufacture” or “Manufacturing” means all activities related to the production, manufacture, processing, filling, finishing, packaging, labeling, shipping and holding of a Product or any intermediate thereof, including clinical and commercial manufacture.

 

1.32       “NDA” has the meaning set forth in the definition of “Drug Approval Application.”

 

1.33       “Net Sales” means, with respect to a Product for any period, the total amount billed or invoiced on sales of such Product during such period by PCNT, its Affiliates, or Sublicensees to Third Parties, less the following normal and customary bona-fide deductions and allowances actually taken:

 

1.33.1       trade, cash and quantity discounts.

 

1.33.2       price reductions, refunds or rebates, retroactive or otherwise, imposed by, negotiated with or otherwise paid (whether in cash or trade) to governmental authorities or third party payors.

 

1.33.3       taxes on sales (such as sales, value added, or use taxes) and customs and excise duties and other duties related to sale, in each case, to the extent such taxes are included in the gross amount invoiced;

 

1.33.4       wholesale and distribution fees, deductions and prompt pay discounts.

 

1.33.5       bad debts not exceeding five percent (5%) of the value of the sales of Product during the then-current Calendar Year, provided that any recovery of bad debts shall be deemed a sale for purposes of this definition of “Net Sales”.

 

1.33.6       amounts repaid, deducted or credited by reason of rejections, defects, recalls or returns, or because of retroactive price reductions, including rebates or wholesaler charge backs; and

 

1.33.7       freight, insurance, and other transportation charges to the extent added to the sale price and set forth separately as such in the total amount invoiced.

Notwithstanding the foregoing, Net Sales shall not include transfers or dispositions for charitable, pre-clinical, clinical, regulatory, or governmental. To the extent that PCNT, its Affiliate or any Commercial Sublicensee sells a Product, on an arms-length basis, to any Sublicensee who is not an Affiliate of such selling Person for resale, only the initial sale of such Product by PCNT, its Affiliate, or its Commercial Sublicensee shall constitute a sale for purposes of determining Net Sales. Except as contemplated by the immediately foregoing sentence, Net sales shall not include sales between or among PCNT, its Affiliates, or Sublicensees. Net Sales shall be calculated in accordance with the standard internal policies and procedures of PCNT, its Affiliates, or Sublicensees, which must be in accordance with United States Generally Accepted Accounting Principles or International Financial Reporting Standards as applicable.

 

1.34       “Party” and “Parties” has the meaning set forth in the preamble hereto.

 

1.35       “Patents” means (i) all national, regional and international patents and patent applications, including provisional patent applications; (ii) all patent applications filed either from such patents, patent applications or provisional applications or from an application claiming priority from either of these, including divisional, continuations, continuations-in-part, Provisionals, converted Provisionals and continued prosecution applications; (iii) any and all patents that have issued or in the future issue from the foregoing patent applications ((i) and (ii)), including utility models, petty patents and design patents and certificates of invention; (iv) any and all extensions or restorations by existing or future extension or restoration mechanisms, including revalidations, reissues, re-examinations and extensions (including any supplementary protection certificates and the like) of the foregoing patents or patent applications ((i), (ii), and (iii)); and (v) any similar rights, including so-called pipeline protection or any importation, revalidation, confirmation or introduction patent or registration patent or patent of additions to any of such foregoing patent applications and patents.

 

1.36       “Person” means an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, foundation, joint venture or other similar entity or organization, including a government or political subdivision, department or agency of a government.

 

1.37       “Product” means any pharmaceutical product or medical device, whether prescription or over-the-counter, marketed for diagnosing illness in humans via a saliva test; provided, however, that “Product” shall not refer to any product Controlled, developed, manufactured, marketed, sold, offered for sale, exported, or imported directly or indirectly by a Sublicensee if such Sublicensee’s rights in respect of such product were obtained or developed independently of any sublicense or right granted by PCNT hereunder.

 

1.38       “Regulatory Approval” means, with respect to a country or other jurisdiction, any and all approvals (including Drug Approval Applications), licenses, registrations, or authorizations of any Regulatory Authority necessary to commercially distribute, sell, offer for sale, market, import or use a Product in such country or other jurisdiction, including, where applicable, (i) pricing or reimbursement approval in such country or other jurisdiction, (ii) pre- and post-approval marketing authorizations (including any prerequisite Manufacturing approval or authorization related thereto), and (iii) labeling approval.

1.39       “Regulatory Authority” means any applicable supra-national, federal, national, regional, state, provincial, or local governmental or regulatory agencies, departments, bureaus, commissions, councils, or other government entities (e.g., the FDA and EMA) regulating or otherwise exercising authority with respect to activities contemplated in this Agreement, including the Exploitation of Products.

 

1.40       “Regulatory Documentation” means all (i) applications (including all INDs and Drug Approval Applications), registrations, licenses, authorizations, and approvals (including Regulatory Approvals); (ii) correspondence and reports submitted to or received from Regulatory Authorities (including minutes and official contact reports relating to any communications with any Regulatory Authority) and all supporting documents with respect thereto, including all regulatory drug lists, advertising and promotion documents, adverse event files, and complaint files; and (iii) clinical and other data contained or relied upon in any of the foregoing, in each case ((i), (ii), and (iii)) relating to a Product.

 

1.41       “Representatives” means (actual or potential) Sublicensees, other Persons who have been granted rights to Exploit Products in accordance with this Agreement, acquirers, financing sources, investors or permitted assignees under Section 9.3 and to their financial and legal advisors who have a need to know the Confidential Information in connection with any such sublicense, financing, investment, acquisition or assignment.

 

1.42       “Sublicensee” means a Person, other than an Affiliate, that is granted a sublicense by PCNT under a license granted in Section 2.1 or a right by PCNT, its Affiliates or Commercial Sublicensees to sell a Product, offer a Product for sale, or have a Product sold (each such sublicense or right, a “Sublicense”).

 

1.43       “Territory” means North America (USA-CANADA-MEXICO).

 

1.44       “Third Party” means any Person other than ZEUS, PCNT and their respective Affiliates.

 

1.45       “United States” means the United States of America and its territories and possessions (including the District of Columbia and Puerto Rico).

 

Additional Definitions. The following terms have the meanings set forth in the corresponding Sections of this Agreement:

 

Term	Section
“PCNT Indemnitees”	7.2
“Breaching Party”	8.3
“Default Notice”	8.3
“Force Majeure”	9.1
“ZEUS Indemnitees”	7.1
“Losses”	7.1
“Non-Breaching Party”	8.3
“Sublicense”	1.41
“Term”	8.1
“Third Party Claims”	7.1

ARTICLE 2
TRANSFER AND ASSIGNMENT; GRANT OF RIGHTS

 

2.1       Grants to PCNT. Subject to the terms and conditions of this Agreement, ZEUS hereby grants to PCNT an exclusive, in perpetuity (including with regard to ZEUS) North America license, with the right to grant sublicenses in accordance with Section 2.2, under the ZEUS Know-How.

 

2.2       Sublicenses.

 

2.2.1       Right to Grant Sublicenses. PCNT shall have the right to grant Sublicenses (through multiple tiers of Sublicensees). PCNT shall cause each Sublicensee to comply with the applicable terms and conditions of this Agreement. PCNT shall remain responsible for the performance of its Affiliates and Sublicensees that are granted Sublicenses as permitted herein, and the grant of any such Sublicense shall not relieve PCNT of its obligations under this Agreement. With respect to any such Sublicense, PCNT shall ensure that the agreement pursuant to which it grants such Sublicense (i) does not conflict with the terms and conditions of this Agreement and (ii) contains terms obligating the Sublicensee to comply with confidentiality and non-use provisions consistent with those set forth in this Agreement.

 

2.2.2       Termination of Sublicenses. In the event of termination of this Agreement, in whole or in part, any sublicense granted by PCNT pursuant to this Section 2.2 shall automatically be deemed to terminate to the same extent as the other terms and conditions of this Agreement terminate.

 

2.3       No Other Rights Granted by ZEUS. Except as expressly provided herein and without limiting the foregoing, ZEUS grants no other right or license, including any rights or licenses to the ZEUS Know-How, the Regulatory Documentation, or any other intellectual property rights not otherwise expressly granted herein.

 

2.4       Transfer of ZEUS Know-How. As soon as practicable after the Effective Date, ZEUS shall provide to PCNT (which can be in the form of copies and electronic files) all material ZEUS Know-How existing as of the Effective Date.

 

2.5       Compliance with Law. PCNT shall conduct, or cause to be conducted, the Development, Commercialization, Manufacture and Exploitation of Products in compliance with all Applicable Laws.

 

ARTICLE 3
PAYMENTS AND RECORDS

 

3.1       Upfront Payment. On the Effective Date, PCNT shall pay ZEUS an upfront amount equal to Thirty Five Thousand Dollars ($35,000). Such payment shall be nonrefundable and creditable against any other payments due hereunder.

3.2       Royalty. As consideration for the rights granted to PCNT hereunder, commencing upon the First Commercial Sale, PCNT shall pay to ZEUS a royalty on Net Sales of Seven and One-Half Percent (7.5%) during each Calendar Quarter. The Quarterly Royalty payments on Net Sales shall be paid within 30 days from the last day of each Calendar Quarter as follows:

 

ZEUS Diagnostics, LLC
(Morgan Stanley Account)
Wiring Instructions:

 

City Bank:
Address: 388 Greenish St., NY, NY 10013
Routing Number: 021000089
Beneficiary (Morgan Stanley) Account: 40611172

 

To Further Credit To:
Raouf Albert Guirguis
ZEUS Diagnostics, LLC
Acct Number: 255-128286

 

3.3       Mode of Payment. All payments under this Agreement shall be made by deposit of Dollars in the requisite amount to such bank account as ZEUS may from time to time designate by notice to PCNT. For the purpose of calculating any sums due under, or otherwise reimbursable pursuant to, this Agreement (including the calculation of Net Sales expressed in currencies other than Dollars), a Party shall convert any amount expressed in a foreign currency into Dollar equivalents using an exchange rate to be mutually agreed upon by the Parties.

 

3.4       Taxes. The milestones payable by PCNT to ZEUS pursuant to this Agreement shall be paid free and clear of all taxes, except for any withholding taxes required by Applicable Law.

 

3.5       Interest on Late Payments. If any payment due to ZEUS under this Agreement is not paid when due, then PCNT shall pay interest thereon (before and after any judgment) at an annual rate (but with interest accruing on a daily basis) of one percent above LIBOR, such interest to run from the date on which payment of such sum became due until payment thereof in full together with such interest.

 

ARTICLE 4
INTELLECTUAL PROPERTY

 

4.1       Ownership of Intellectual Property.

 

4.1.1       Ownership of Technology. As between the Parties, each Party shall own and retain all right, title, and interest in and to any and all Inventions and Information that are conceived, discovered, developed, or otherwise made solely by or on behalf of such Party (or its Affiliates or Sublicensees) under or in connection with this Agreement, whether or not patented or patentable, and any and all Patents and other intellectual property rights with respect thereto.

4.1.2       United States Law. The determination of whether Information and Inventions are conceived, discovered, developed, or otherwise made by a Party for the purpose of allocating proprietary rights (including Patent, copyright or other intellectual property rights) therein, shall, for purposes of this Agreement, be made in accordance with Applicable Law in the United States as such law exists as of the Effective Date irrespective of where such conception, discovery, development or making occurs.

 

4.1.3       Assignment Obligation. Each Party shall cause all Persons who perform activities for such Party under this Agreement to be under an obligation to assign their rights in any Inventions resulting therefrom to such Party.

 

ARTICLE 5
CONFIDENTIALITY AND NON-DISCLOSURE

 

5.1       Confidentiality Obligations. At all times during the Term and for a period of ten (10) years following termination or expiration hereof in its entirety, each Party shall, and shall cause its Affiliates, and its and their respective officers, directors, employees and agents to, keep confidential and not publish or otherwise disclose to a Third Party and not use, directly or indirectly, for any purpose, any Confidential Information furnished or otherwise made known to it, directly or indirectly, by the other Party, except to the extent such disclosure or use is expressly permitted by the terms of this Agreement or is reasonably necessary or useful for the performance of a Party’s obligations, or the exercise of a Party’s rights, under this Agreement. Notwithstanding the foregoing, but to the extent the receiving Party can demonstrate by documentation or other competent proof, the confidentiality and non-use obligations under this Section 5.1 with respect to any Confidential Information shall not include any information that:

 

5.1.1       has been published by a Third Party or is or hereafter becomes part of the public domain by public use, publication, general knowledge or the like through no wrongful act, fault or negligence on the part of the receiving Party.

 

5.1.2       has been in the receiving Party’s possession prior to disclosure by the disclosing Party without any obligation of confidentiality with respect to such information.

 

5.1.3       is subsequently received by the receiving Party from a Third Party without restriction and without breach of any agreement between such Third Party and the disclosing Party; or

 

5.1.4       has been independently developed by or for the receiving Party without reference to, or use or disclosure of the disclosing Party’s Confidential Information.

 

Specific aspects or details of Confidential Information shall not be deemed to be within the public domain or in the possession of the receiving Party merely because the Confidential Information is embraced by more general information in the public domain or in the possession of the receiving Party. Further, any combination of Confidential Information shall not be considered in the public domain or in the possession of the receiving Party merely because individual elements of such Confidential Information are in the public domain or in the possession of the receiving Party unless the combination and its principles are in the public domain or in the possession of the receiving Party.

5.2       Permitted Disclosures. Each Party may disclose Confidential Information to the extent that such disclosure is:

 

5.2.1       in the reasonable opinion of the receiving Party’s legal counsel, required to be disclosed pursuant to Applicable Law or made in response to a valid order of a court of competent jurisdiction or other supra-national, federal, national, regional, state, provincial and local governmental or regulatory body of competent jurisdiction, including by reason of filing with securities regulators; provided, however, that the receiving Party, to the extent practicable and legally permissible, shall first have given prompt written notice (and to the extent practicable and legally permissible, at least five (5) Business Days’ notice) to the disclosing Party and given the disclosing Party a reasonable opportunity to take whatever action it deems necessary to protect its Confidential Information (for example, quash such order or to obtain a protective order or confidential treatment requiring that the Confidential Information and documents that are the subject of such order be held in confidence by such court or regulatory body or, if disclosed, be used only for the purposes for which the order was issued). In the event that no protective order or other remedy is sought or obtained, or the disclosing Party waives compliance with the terms of this Agreement, receiving Party shall furnish only that portion of Confidential Information which receiving Party is advised by counsel is legally required to be disclosed;

 

5.2.2       made by or on behalf of the receiving Party to Regulatory Authorities as required in connection with any filing, application or request for Regulatory Approval in accordance with the terms of this Agreement; provided, however, that reasonable measures shall be taken to assure confidential treatment of such information to the extent practicable and consistent with Applicable Law;

 

5.2.3       made to its Representatives; provided that any such recipient of such Confidential Information agrees to be bound by the confidentiality and non-use restrictions contemplated hereby; provided, further that the Party making such disclosure shall remain responsible for any failure by any such Person to treat such Confidential Information as required under this Article 5.

 

5.2.4       made to its or its Affiliates’ financial and legal advisors who have a need to know such Confidential Information and are either under professional codes of conduct giving rise to expectations of confidentiality and non-use or under written agreements of confidentiality and non-use, in each case, at least as restrictive as those set forth in this Agreement; provided that the receiving Party shall remain responsible for any failure by such financial and legal advisors and other Persons contemplated by this Section 5.2.4, to treat such Confidential Information as required under this Article 5.

5.3       Public Announcements. Except as contemplated by Section 5.4 or as otherwise agreed by the Parties, neither Party shall issue any other public announcement, press release, or other public disclosure regarding this Agreement or its subject matter without the other Party’s prior written consent, except for any such disclosure that is, in the opinion of the disclosing Party’s counsel, required by Applicable Law (including, without limitation, public disclosure on a Quarterly Report on Form 10-Q, an Annual Report on Form 10-K, or a Current Report on Form 8-K) or the rules of a stock exchange on which the securities of the disclosing Party are listed or for information which has previously been made public. In the event a Party is, in the opinion of its counsel, required by Applicable Law or the rules of a stock exchange on which its securities are listed to make such a public disclosure, such Party shall submit the proposed disclosure in writing to the other Party as far in advance as reasonably practicable so as to provide a reasonable opportunity to comment thereon and such required Party shall consider all comments from such other Party in good faith.

 

5.4       Publications. Each Party recognizes that the publication of papers regarding results of and other information regarding activities under this Agreement may be beneficial to the Development and Commercialization of Products. Accordingly, PCNT and its Affiliates and Sublicensees shall have the right to publish or present or permit the publication or presenting of papers and presentations that contain clinical data regarding, or pertain to results of clinical testing of, Products (each, a “Publication”); provided, however, that such publications do not contain the Confidential Information of ZEUS and ZEUS shall be provided with a copy of any such Publication in advance of public publication or presentation thereof and PCNT shall consider in good faith any comments ZEUS may have with respect thereto.

 

5.5       Return of Confidential Information. Upon the effective date of the termination of this Agreement for any reason, either Party may request in writing, and the other Party shall either, with respect to Confidential Information to which such first Party does not retain rights under the surviving provisions of this Agreement: (i) promptly destroy all copies of such Confidential Information in the possession of the other Party and confirm such destruction in writing to the requesting Party; or (ii) promptly deliver to the requesting Party, at the other Party’s expense, all copies of such Confidential Information in the possession of the other Party; provided, however, the other Party shall be permitted to retain one (1) copy of such Confidential Information for the sole purpose of performing any continuing obligations hereunder or for archival purposes. Notwithstanding the foregoing, such other Party also shall be permitted to retain such additional copies of or any computer records or files containing such Confidential Information that have been created solely by such Party’s automatic archiving and back-up procedures, to the extent created and retained in a manner consistent with such other Party’s standard archiving and back-up procedures, but not for any other use or purpose.

 

5.6       Survival. All Confidential Information shall continue to be subject to the terms of this Agreement for the period set forth in Section 5.1.

 

ARTICLE 6
REPRESENTATIONS AND WARRANTIES

 

6.1       Mutual Representations and Warranties. ZEUS and PCNT each represents and warrants to the other, as of the Effective Date, and covenants, as follows:

 

6.1.1       Organization. It is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization, and has all requisite power and authority, corporate or otherwise, to execute, deliver, and perform this Agreement.

6.1.2       Authorization. The execution and delivery of this Agreement and the performance by it of its obligations contemplated hereby have been duly authorized by all necessary corporate action, and do not violate (i) such Party’s charter documents, bylaws, or other organizational documents, (ii) in any material respect, any agreement, instrument, or contractual obligation to which such Party is bound, (iii) any requirement of any Applicable Law, or (iv) any order, writ, judgment, injunction, decree, determination, or award of any court or governmental agency presently in effect applicable to such Party.

 

6.1.3       Binding Agreement. This Agreement is a legal, valid, and binding obligation of such Party enforceable against it in accordance with its terms and conditions, subject to the effects of bankruptcy, insolvency, or other laws of general application affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance, and general principles of equity (whether enforceability is considered a proceeding at law or equity).

 

6.1.4       Consents and Approvals. No consent, approval, waiver, order or authorization of, or registration, declaration or filing with, any Third Party is required in connection with the execution, delivery and performance of this Agreement by such Party or the performance by such Party of its obligations contemplated hereby or thereby.

 

6.1.5       No Inconsistent Obligation. It is not under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in any material respect with the terms of this Agreement, or that would impede the diligent and complete fulfillment of its obligations hereunder.

 

6.2       Additional Representations and Warranties of ZEUS. ZEUS further represents and warrants to PCNT, as of the Effective Date, and covenants, as follows:

 

6.2.1       ZEUS has the right to grant the licenses specified herein.

 

6.2.2       ZEUS is the sole and exclusive owner of the entire right, title and interest in the ZEUS Know-How. Such rights are not subject to any Liens in favor of, or claims of ownership by, any Third Party.

 

6.2.3       To ZEUS’s knowledge, the Exploitation by PCNT and its Affiliates and Sublicensees hereunder of the Products will not infringe any Patent or other intellectual property or proprietary right of any Person.

 

6.2.4       The conception, development and reduction to practice of the ZEUS Know-How existing as of the Effective Date have not constituted or involved the misappropriation of trade secrets or other rights or property of any Person. There are no claims, judgments or settlements against or amounts with respect thereto owed by ZEUS or any of its Affiliates relating to the existing Regulatory Filings or the ZEUS Know-How.

 

6.2.5       To its knowledge, ZEUS has conducted, and its contractors and consultants have conducted, all Development with respect to the Product that it has conducted prior to the Effective Date in accordance with good laboratory practice and good clinical practices, as applicable and defined by the FDA, and Applicable Law.

6.2.6       Neither ZEUS nor any of its Affiliates, nor any of its or its Affiliates’ directors or officers has been debarred or is subject to debarment and neither ZEUS nor any of its Affiliates will use in any capacity, in connection with the services to be performed under this Agreement, any Person who has been debarred pursuant ZEUS Section 306 of the FFDCA or who is the subject of a conviction described in such section. ZEUS shall inform PCNT in writing immediately if it or any Person who is performing services hereunder is debarred or is the subject of a conviction described in Section 306 or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to the best of ZEUS’s knowledge, is threatened, relating to the debarment or conviction of ZEUS or any Person performing services on behalf of ZEUS hereunder.

 

6.2.7       To ZEUS’s knowledge, no Person is misappropriating or threatening to misappropriate the ZEUS Know-How.

 

6.2.8       ZEUS has prepared, maintained or retained all material Regulatory Documentation required to be maintained or reported pursuant to and in accordance with the applicable requirements of good laboratory practices and good clinical practices, as applicable, as defined by the FDA, to the extent required, and Applicable Law, and such Regulatory Documentation does not contain any materially false or misleading statements.

 

6.3       DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR GRANTS ANY WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.

 

ARTICLE 7
INDEMNITY

 

7.1       Indemnification of ZEUS. PCNT shall indemnify ZEUS, its Affiliates and its and their respective directors, officers, employees, and agents (“ZEUS Indemnitees“), and defend and save each of them harmless, from and against any and all losses, damages, liabilities, penalties, costs, and expenses (including attorneys’ fees and expenses) (collectively, “Losses”) in connection with any and all suits, investigations, claims, or demands of Third Parties (collectively, “Third Party Claims”) incurred by or rendered against the ZEUS Indemnitees arising from or occurring as a result of: (i) the breach by PCNT of this Agreement, (ii) the gross negligence or willful misconduct on the part of PCNT or its Affiliates or Sublicensees or its or their distributors or contractors or its or their respective directors, officers, employees, and agents in performing its or their obligations under this Agreement, or (iii) the Exploitation by PCNT or any of its Affiliates or Sublicensees or its or their distributors or contractors of any Product, except to the extent ZEUS has an obligation to indemnify PCNT Indemnitees pursuant to Section 7.2 for such Losses and Third Party Claims.

7.2       Indemnification of PCNT. ZEUS shall indemnify PCNT, its Affiliates and its and their respective directors, officers, employees, and agents (the “PCNT Indemnitees”), and defend and save each of them harmless, from and against any and all Losses in connection with any and all Third Party Claims incurred by or rendered against the PCNT Indemnitees arising from or occurring as a result of: (i) the breach by ZEUS of this Agreement, (ii) the gross negligence or willful misconduct on the part of ZEUS or its Affiliates or its or their respective directors, officers, employees, and agents in performing its obligations under this Agreement, (iii) any claim by any current or former ZEUS shareholder, investor or contributor that any PCNT Indemnitee or any Sublicensee owes such Person any compensation in relation to the Exploitation of the Products or the rights granted hereunder, or (iv) ZEUS’s or its Affiliate’s or subcontractor’s violation of any Applicable Law, or gross negligence or willful misconduct, in relation to the Exploitation of Products prior to the Effective Date, except to the extent PCNT has an obligation to indemnify ZEUS Indemnitees pursuant to Section 7.1 for such Losses and Third Party Claims.

 

7.3       Special, Indirect, and Other Losses. EXCEPT IN THE EVENT OF A PARTY’S BREACH OF ITS OBLIGATIONS UNDER ARTICLE 5, AND EXCEPT TO THE EXTENT ANY SUCH DAMAGES ARE REQUIRED TO BE PAID TO A THIRD PARTY AS PART OF A CLAIM FOR WHICH A PARTY PROVIDES INDEMNIFICATION UNDER THIS ARTICLE 7, NEITHER PARTY NOR ANY OF ITS AFFILIATES SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS OR BUSINESS INTERRUPTION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHERWISE IN CONNECTION WITH OR ARISING IN ANY WAY OUT OF THE TERMS OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

 

ARTICLE 8
TERM AND TERMINATION

 

8.1       Term. This Agreement shall commence on the Effective Date and, unless earlier terminated in accordance herewith, shall continue in force and effect until terminated in accordance with this Article 8 (such period, the “Term”).

 

8.2       PCNT Termination for Convenience. PCNT shall have the right to terminate this Agreement in its sole discretion, either in its entirety or in respect of one or more countries, at any time by providing sixty (60) days prior written notice to ZEUS.

 

8.3       Termination for Material Breach. If either Party (the “Non-Breaching Party”) believes that the other Party (the “Breaching Party”) has materially breached one or more of its obligations under this Agreement, then the Non-Breaching Party may deliver notice of such material breach to the Breaching Party specifying the nature of the alleged breach in reasonable detail (a “Default Notice”). Thereafter, the Non-Breaching Party shall have the right to terminate this Agreement if the breach asserted in such Default Notice has not been cured within sixty (60) days after such Default Notice.

8.4       Termination for Insolvency. In the event that either Party (i) files for protection under bankruptcy or insolvency laws, (ii) makes an assignment for the benefit of creditors, (iii) appoints or suffers appointment of a receiver or trustee over substantially all of its property that is not discharged within ninety (90) days after such filing, (iv) proposes a written agreement of composition or extension of its debts, (v) proposes or is a party to any dissolution or liquidation, (vi) files a petition under any bankruptcy or insolvency act or has any such petition filed against that is not discharged within sixty (60) days of the filing thereof, then the other Party may terminate this Agreement in its entirety effective immediately upon written notice to such Party.

 

8.5       Effects of Termination. In the event of a termination of this Agreement in its entirety by ZEUS pursuant to Section 8.3 or by PCNT pursuant to Section 8.2:

 

8.5.1       all rights and licenses granted by ZEUS hereunder shall immediately terminate;

 

8.5.2       PCNT shall, and hereby does, effective as of the effective date of termination, assign to ZEUS at PCNT’s expense, all of its right, title, and interest in and to all Regulatory Approvals applicable to any Product, and all Regulatory Documentation specific to such Regulatory Approvals then owned by PCNT or any of its Affiliates, and shall use Commercially Reasonable Efforts to cause any and all Sublicensees to assign to ZEUS any such Regulatory Approvals and related Regulatory Documentation then owned by such Sublicensee; and

 

8.5.3       at ZEUS’s request, assign to ZEUS all right, title, and interest in and to the Development Data that PCNT is not precluded from disclosing or assigning to ZEUS pursuant to the terms of any applicable agreement with a Third Party; provided, however, that PCNT shall use Commercially Reasonable Efforts (which shall not include any obligation to expend money) to obtain the consent of the applicable Third Party for such disclosure and/or assignment in the event that PCNT is so precluded.

 

8.6       Remedies. Except as otherwise expressly provided herein, termination of this Agreement (either in its entirety or with respect to one or more country or countries) or other jurisdiction(s) in accordance with the provisions hereof shall not limit remedies that may otherwise be available in law or equity.

 

8.7       Accrued Rights; Surviving Obligations. Termination or expiration of this Agreement for any reason shall be without prejudice to any rights that shall have accrued to the benefit of a Party prior to such termination or expiration. Such termination or expiration shall not relieve a Party from obligations that are expressly indicated to survive the termination or expiration of this Agreement. Without limiting the foregoing, (i) Section 8.6 and this Section 8.7 and Articles 5, 7 and 9 of this Agreement shall survive the termination or expiration of this Agreement for any reason, (ii) Section 4.1 shall survive any termination of this Agreement other than a termination by ZEUS pursuant to Section 8.3 hereof or a termination by PCNT pursuant to Section 8.2 hereof, (iii) Sections 3.5 through 3.7 shall survive a termination by PCNT pursuant to Section 8.3 hereof, (iv) Article 3 shall survive a termination by PCNT pursuant to Section 8.4 hereof and (v) Section 8.5 shall survive any termination of this Agreement by ZEUS pursuant to Section 8.3 hereof. With respect to any Sections that survive in accordance with this Section 8.8, the corresponding definitions shall appropriately survive (e.g. the definition of “Term” shall continue with respect to the above noted Sections and usage in other definitions).

ARTICLE 9
MISCELLANEOUS

 

9.1       Force Majeure. Neither Party shall be held liable or responsible to the other Party or be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from fires, floods, earthquakes, hurricanes, embargoes, shortages, epidemics, quarantines, war, acts of war (whether war be declared or not), terrorist acts, insurrections, riots, civil commotion, acts of God or acts, omissions, or delays in acting by any Governmental Authority (except to the extent such delay results from the breach by the non-performing Party or any of its Affiliates of any term or condition of this Agreement) or similar events beyond the reasonable control of the non-performing Party (a “Force Majeure”). The non-performing Party shall notify the other Party of such force majeure within thirty (30) days after such occurrence by giving written notice to the other Party stating the nature of the event, its anticipated duration, and any action being taken to avoid or minimize its effect. The suspension of performance shall be of no greater scope and no longer duration than is necessary and the non-performing Party shall use Commercially Reasonable Efforts to remedy its inability to perform.

 

9.2       Assignment.

 

9.2.1       Without the prior written consent of ZEUS, PCNT shall not assign, delegate, or otherwise dispose of, whether voluntarily, involuntarily, by operation of law or otherwise, this Agreement or any of its rights or duties hereunder; provided, however, that PCNT may make such an assignment without ZEUS’s prior written consent to its Affiliate or to a successor, whether in a merger, sale of stock, sale of assets or any other transaction, of all or substantially all the assets or business of PCNT or substantially all of the assets or business of PCNT to which this Agreement relates. With respect to an assignment to an Affiliate, PCNT shall remain responsible for the performance by such Affiliate of the rights and obligations hereunder. Without the prior written consent of PCNT, ZEUS shall not assign, delegate, or otherwise dispose of, whether voluntarily, involuntarily, by operation of law or otherwise, this Agreement or any of its rights or duties hereunder; provided, however, that ZEUS may make such an assignment without PCNT’s prior written consent to its Affiliate or to a successor, whether in a merger, sale of stock, sale of assets or any other transaction, of all or substantially all the assets or business of ZEUS or substantially all of the assets or business of ZEUS to which this Agreement relates. With respect to an assignment to an Affiliate, ZEUS shall remain responsible for the performance by such Affiliate of the rights and obligations hereunder. Any attempted assignment or delegation in violation of this Section 9.3 shall be void and of no effect. All validly assigned and delegated rights and obligations of the Parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns of ZEUS or PCNT, as the case may be. The permitted assignee or permitted transferee shall assume all obligations of its assignor or transferor under this Agreement.

9.2.2       All rights to Information, materials and intellectual property: (i) controlled by a Third Party permitted assignee of a Party, which Information, materials and intellectual property were controlled by such assignee immediately prior to such assignment; or (ii) controlled by an Affiliate of a Party who becomes an Affiliate through any Change in Control of or a merger, acquisition (whether of all of the stock or all or substantially all of the assets of a Person or any operating or business division of a Person) or similar transaction by or with the Party, which Information, materials and intellectual property were controlled by such Affiliate immediately prior thereto, in each case ((i) and (ii)), shall be automatically excluded from the rights licensed or granted to the other Party under this Agreement.

 

9.3       Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, and if the rights or obligations of either Party under this Agreement will not be materially and adversely affected thereby, (i) such provision shall be fully severable, (ii) this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof, (iii) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance herefrom, and (iv) in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid, and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and reasonably acceptable to the Parties. To the fullest extent permitted by Applicable Law, each Party hereby waives any provision of law that would render any provision hereof illegal, invalid, or unenforceable in any respect.

 

9.4       Governing Law. This Agreement or the performance, enforcement, breach or termination hereof shall be interpreted, governed by and construed in accordance with the laws of Nevada, United States, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction; provided, that all questions concerning the construction or effect of patent applications and patents shall be determined in accordance with the laws of the country or other jurisdiction in which the particular patent application or patent has been filed or granted, as the case may be.

 

9.5       Submission to Jurisdiction; Waiver of Jury Trial.

 

9.5.1       IN THE EVENT ANY PARTY TO THIS AGREEMENT COMMENCES ANY LITIGATION, PROCEEDING OR OTHER LEGAL ACTION IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, WITH RESPECT TO ANY OF THE MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, THE PARTIES TO THIS AGREEMENT HEREBY (A) AGREE THAT ANY LITIGATION, PROCEEDING OR OTHER LEGAL ACTION SHALL BE INSTITUTED IN A COURT OF COMPETENT JURISDICTION LOCATED WITHIN THE CITY OF LAS VEGAS, WHETHER A STATE OR FEDERAL COURT; (B) AGREE THAT IN THE EVENT OF ANY SUCH LITIGATION, PROCEEDING OR ACTION, SUCH PARTIES WILL CONSENT AND SUBMIT TO PERSONAL JURISDICTION IN ANY SUCH COURT DESCRIBED IN CLAUSE (A) OF THIS SECTION 9.5 AND TO SERVICE OF PROCESS UPON THEM IN ACCORDANCE WITH THE RULES AND STATUTES GOVERNING SERVICE OF PROCESS (IT BEING UNDERSTOOD THAT NOTHING IN THIS SECTION 9.5 SHALL BE DEEMED TO PREVENT ANY PARTY FROM SEEKING TO REMOVE ANY ACTION TO A FEDERAL COURT IN THE CITY OF LAS VEGAS); AND (C) AGREE TO WAIVE TO THE FULL EXTENT PERMITTED BY LAW ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH LITIGATION, PROCEEDING OR ACTION IN ANY SUCH COURT OR THAT ANY SUCH LITIGATION, PROCEEDING OR ACTION WAS BROUGHT IN AN INCONVENIENT FORUM.

9.5.2       EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.5.

 

9.6       Notices.

 

9.6.1       Notice Requirements. Any notice, request, demand, waiver, consent, approval, or other communication permitted or required under this Agreement shall be in writing, shall refer specifically to this Agreement and shall be deemed given only if (i) delivered by hand or sent by email to the email addresses to be specified by each Party within sixty (60) days hereof, (ii) by internationally recognized overnight delivery service that maintains records of delivery, addressed to the Parties at their respective addresses specified in Section 9.6.2 or (iii) to such other address as the Party to whom notice is to be given may have provided to the other Party in accordance with this Section 9.6.1. Such Notice shall be deemed to have been given as of the date delivered by hand or transmitted by email or on the second Business Day (at the place of delivery) after deposit with an internationally recognized overnight delivery service. Any notice delivered by email shall be confirmed by a hard copy delivered as soon as practicable thereafter. This Section 9.6.1 is not intended to govern the day-to-day business communications necessary between the Parties in performing their obligations under the terms of this Agreement.

9.6.2       Address for Notice.

 

If to PCNT, to:

 

Point of Care Nano Technology, Inc.
109 Ambersweet Way
Davenport, FL 33897
Attention: Chief Executive Officer

 

with a copy (which shall not constitute notice) to:

 

Szaferman, Lakind, Blumstein & Blader, P.C.
101 Grovers Mill Road, Suite 200
Lawrenceville, NJ
Attention: Gregg E. Jaclin

 

If to ZEUS, to:

 

Harvard Business Services, Inc.
16192 Coastal Hwy, Lewes, DE 19958

 

with a copy (which shall not constitute notice) to:

 

Dr. Raouf Albert Guirguis
408 Saint Martins Choice Ln
Severna Park, MD 21146

 

9.7       Entire Agreement; Amendments. This Agreement sets forth and constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and all prior agreements, understandings, promises, and representations, whether written or oral, with respect thereto are superseded hereby. Each Party confirms that it is not relying on any representations or warranties of the other Party except as specifically set forth in this Agreement. No amendment, modification, release, or discharge shall be binding upon the Parties unless in writing and duly executed by authorized representatives of both Parties.

 

9.8       Waiver and Non-Exclusion of Remedies. Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such term or condition. The waiver by either Party hereto of any right hereunder or of the failure to perform or of a breach by the other Party shall not be deemed a waiver of any other right hereunder or of any other breach or failure by such other Party whether of a similar nature or otherwise. The rights and remedies provided herein are cumulative and do not exclude any other right or remedy provided by Applicable Law or otherwise available except as expressly set forth herein.

9.9       No Benefit to Third Parties. Covenants and agreements set forth in this Agreement are for the sole benefit of the Parties hereto and their successors and permitted assigns, and they shall not be construed as conferring any rights on any other Persons.

 

9.10       Further Assurance. Each Party shall duly execute and deliver, or cause to be duly executed and delivered, such further instruments and do and cause to be done such further acts and things, including the filing of such assignments, agreements, documents, and instruments, as may be necessary or as the other Party may reasonably request in connection with this Agreement or to carry out more effectively the provisions and purposes hereof, or to better assure and confirm unto such other Party its rights and remedies under this Agreement.

 

9.11       Relationship of the Parties. It is expressly agreed that ZEUS, on the one hand, and PCNT, on the other hand, shall be independent contractors and that the relationship between the two Parties shall not constitute a partnership, joint venture, or agency. Neither ZEUS, on the one hand, nor PCNT, on the other hand, shall have the authority to make any statements, representations, or commitments of any kind, or to take any action, which shall be binding on the other, without the prior written consent of the other Party to do so. All persons employed by a Party shall be employees of such Party and not of the other Party and all costs and obligations incurred by reason of any such employment shall be for the account and expense of such Party.

 

9.12       Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by electronically transmitted signatures and such signatures shall be deemed to bind each Party hereto as if they were original signatures.

 

9.13       References. Unless otherwise specified, (i) references in this Agreement to any Article or Section shall mean references to such Article or Section of this Agreement, (ii) references in any Section to any clause are references to such clause of such Section, and (iii) references to any agreement, instrument, or other document in this Agreement refer to such agreement, instrument, or other document as originally executed or, if subsequently amended, replaced, or supplemented from time to time, as so amended, replaced, or supplemented and in effect at the relevant time of reference thereto.

 

9.14       Construction. Except where the context otherwise requires, wherever used, the singular shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders and the word “or” is used in the inclusive sense (and/or). Whenever this Agreement refers to a number of days, unless otherwise specified, such number refers to days. The captions of this Agreement are for convenience of reference only and in no way define, describe, extend, or limit the scope or intent of this Agreement or the intent of any provision contained in this Agreement. The term “including,” “include,” or “includes” as used herein shall mean including, without limiting the generality of any description preceding such term. The language of this Agreement shall be deemed to be the language mutually chosen by the Parties and no rule of strict construction shall be applied against either Party hereto. Each Party represents that it has been represented by legal counsel in connection with this Agreement and acknowledges that it has participated in the drafting hereof. In interpreting and applying the terms and provisions of this Agreement, the Parties agree that no presumption will apply against the Party which drafted such terms and provisions.

THIS AGREEMENT IS EXECUTED by the authorized representatives of the Parties as of the Effective Date.

 

	ZEUS EQUITIES CORPORATION				POINT OF CARE NANO TECHNOLOGY
	By:				By:
	Name: Dr. Raouf Guirguis				Name: Nicholas DeVito
	Title: Managing Member				Title: Director and CEO

 

Exhibit 99.1

 

Press Release Draft

 

FOR IMMEDIATE RELEASE

 

Point of Care Nano-Technology (OTC:PCNT) Acquires “EZ Saliva” Licenses for Oral Diagnostic Testing

 

New York, NY - June 10, 2024 - Point of Care Nano-Technology, Inc. (“PCNT”) (OTC: PCNT), a development stage life sciences company, is pleased to announce that it has acquired the assets and licenses to the “EZ Saliva ^TM” branded oral testing fluids and processes for North America, a sales and marketing platform, and related software technology for determining the presence of substances and diseases in oral fluids. This acquisition marks a significant milestone in PCNT’s mission to advance point-of-care diagnostics and enhance patient care through innovative technology.

 

Acquisition Highlights:

 

●

Diagnostics Technology License: North America license to oral-fluid patents and intellectual property, including proprietary information and know-how essential for developing and commercializing diagnostic products currently known as EZ Saliva.

 

●

Board Appointments: Dr. Raouf Guirguis, pivotal in developing this technology, rejoins the PCNT Board of Directors along with Mr. Nathan Keele with expertise in sales, marketing, and distribution.

 

●

Marketing and Distribution Assets: Enhanced saliva sample collection technology for the USA, Canada, and Mexico. Includes comprehensive data proving product effectiveness, a large sales distribution network, marketing campaign templates and automations, and a pipeline of prospective clients and independent contractors.

 

●

Software and Algorithms: Proprietary software designed to enhance EZ Saliva product functionality, support chain of custody, remote proctoring, and communication between clients and laboratories. Integration of sales agreements and customer management software to streamline operations and enhance client engagement.

 

CEO Statement:

 

“We are thrilled to announce this strategic acquisition and the reinstatement of this foundational technology, which aligns with our vision to revolutionize point-of-care diagnostics,” said Nicholas DeVito, CEO of PCNT. “The integration of this foundational technology, marketing and distribution platform, and related software technologies, we believe, will strengthen our market position. We are also excited to welcome Dr. Raouf Guirguis and Mr. Nathan Keele to our Board of Directors, whose expertise will drive our mission forward. This acquisition underscores our commitment to delivering cutting-edge life science solutions that improve patient outcomes and streamline diagnostic processes.”

About Point of Care Nano-Technology, Inc. (PCNT):

 

Point of Care Nano-Technology, Inc. (OTC:PCNT) is dedicated to advancing life sciences through innovative point-of-care solutions. PCNT plans to leverage cutting-edge technology to develop user-friendly, reliable, and effective diagnostic tools for healthcare providers and patients worldwide.

 

Forward-Looking Statements:

 

This news release contains forward-looking statements by Point of Care Nano-Technology, Inc. (the “Company”) that involve risks and uncertainties and reflect the Company’s judgment as of the date of this release. These statements include those related to the Company’s prospects and strategy for developing its medical devices. Actual events or results may differ materially from the Company’s expectations. Additional information concerning these and other risk factors affecting the Company’s business can be found in the Company’s prior filings with the Securities and Exchange Commission, including its most recent annual report on Form 10-K, all of which are available at www.sec.gov. The Company disclaims any intent or obligation to update these forward-looking statements beyond the date of this news release, except as required by law.

 

Contact:

 

Nicholas DeVito
CEO, Point of Care Nano-Technology, Inc.
pcnt.news

v3.24.1.1.u2

Cover	May 20, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	May 20, 2024
Entity File Number	000-56356
Entity Registrant Name	Point of Care Nano-Technology, Inc.
Entity Central Index Key	0001504239
Entity Tax Identification Number	27-2830681
Entity Incorporation, State or Country Code	NV
Entity Address, Address Line One	109 AmberSweet Way
Entity Address, City or Town	Davenport
Entity Address, State or Province	FL
Entity Address, Postal Zip Code	33897
City Area Code	(732)
Local Phone Number	723-7395
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	false

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