MGRX Mangoceuticals Inc

 

 

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): December 13, 2024

 

MANGOCEUTICALS, INC.

(Exact name of registrant as specified in its charter)

 

Texas		001-41615		87-3841292
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

15110 N. Dallas Parkway, Suite 600 Dallas, Texas		75248
(Address of principal executive offices)		(Zip Code)

 

Registrant’s telephone number, including area code: (214) 242-9619

 

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:

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	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:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, $0.0001 Par Value Per Share		MGRX		The Nasdaq Stock Market LLC (Nasdaq Capital Market)

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ☒

 

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. ☐

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

Patent Purchase Agreement

 

Effective on December 13, 2024, Mangoceuticals, Inc., a Texas corporation (the “Company”, “we” and “us”), entered into a Patent Purchase Agreement (the “IP Purchase Agreement”), with Greenfield Investments, Ltd (“Greenfield”). Pursuant to the IP Purchase Agreement, we purchased certain patents owned by Greenfield, related to nutraceutical compositions using fungal compounds derived from mushrooms (collectively, the “Patents”), in consideration for 515,000 shares of the Company’s restricted common stock (the “IP Purchase Shares”).

 

The IP Purchase Agreement, and the purchase of the Patents, closed on December 13, 2024, upon the parties entry into the IP Purchase Agreement, and the IP Purchase Shares were issued on December 16, 2024.

 

The IP Purchase Agreement included standard representations and warranties and confidentiality and indemnification obligations of the parties, for a transaction of that type and size.

 

The IP Purchase Agreement also included a grant back license, whereby the Company provided Greenfield, an irrevocable, co-exclusive, non-transferable and non-assignable (except in the event of a change of control), non-sublicensable, worldwide, license to use the Patents for the lives thereof (the “Grant Back-License”). The Grant Back-License is subject to Greenfield paying the Company a royalty of ten percent (10%) of gross worldwide sales of products sold by Greenfield which utilize the Patents, beginning on December 13, 2025, and continuing until the end of the life of the last Patent (the “Royalty Payments”). The Royalty Payments are to be paid to the Company on an annual basis, within 30 days after the end of the calendar year.

 

Finally, the IP Purchase Agreement granted Greenfield a right of first refusal, which provides that, if at any time prior to December 13, 2027, if we receive an offer to purchase the Patents and determine to accept such offer, or we determine to sell the Patents to a third party, we are required to provide Greenfield the right of first refusal to either match such offer, or negotiate different purchase terms for the Patents.

 

The Company intends to utilize the Patents by seeking out commercial opportunities that highlight what the Company believes are the patents innovative uses in nutraceuticals, emphasizing the potential for customized health supplements tailored to specific needs.

 

The foregoing description of the IP Purchase Agreement is only a summary of the material terms of such agreement and does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, which is filed as Exhibit 10.1, to this Current Report on Form 8-K and incorporated herein by reference.

 

Parent Subsidiary Contribution Agreement

 

On December 13, 2024, the Company, entered into a Parent Subsidiary Contribution Agreement with Mango & Peaches Corp., a Texas corporation (“Mango & Peaches”), a then recently formed wholly-owned subsidiary of the Company (the “Contribution Agreement”). Pursuant to the Contribution Agreement, the Company contributed substantially all of its assets, including ownership of: (a) its 98% ownership of MangoRx Mexico S.A. de C.V., a Mexican Stock Company; and (b) its 100% ownership of MangoRx UK Limited, a company incorporated under the laws of the United Kingdom (collectively, the “Contributed Assets”), to Mango & Peaches, in order to restructure the ownership and operations of the Company, better segregate such operations and liabilities and provided for the issuance of a portion of the capital of Mango & Peaches to Mr. Jacob Cohen, the Chief Executive Officer of the Company, as additional consideration to Mr. Cohen, as discussed in greater detail below under Item 5.02. In consideration for the transfer of the assets, the Company received 4,999,999 shares of Mango & Peaches’ common stock, bringing its ownership to 5,000,000 shares of common stock of Mango & Peaches upon the closing of the Contribution Agreement.

 

 

Pursuant to the Contribution Agreement, Mango & Peaches assumed all of the liabilities of the Company relating to the Contributed Assets contributed, but none of the other liabilities of the Company and the Company agreed to indemnify Mango & Peaches against any damages relating to a breach of any representation or warranty of the Company in the Contribution Agreement, or any claim relating to the Contributed Assets, before the Contribution Effective Date; and Mango & Peaches agreed to indemnify the Company against any damages relating to a breach of any representation or warranty of Mango & Peaches in the Contribution Agreement, or any claim relating to the Contributed Assets, after the Contribution Effective Date. The Contribution Agreement and the contribution and assumption provided for therein was effective December 15, 2024 (the “Contribution Effective Date”).

 

The foregoing description of the Contribution Agreement is only a summary of the material terms of such agreement and does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement, which is filed as Exhibit 10.2, to this Current Report on Form 8-K and incorporated herein by reference.

 

Item 2.01 Completion of Acquisition or Disposition of Assets.

 

The information set forth in Item 1.01 above relating to the IP Purchase Agreement and in Item 5.02 below, relating to the A&R Employment Agreement, as it relates to Mango & Peaches, is incorporated into this Item 2.01 by reference.

 

Item 3.02 Unregistered Sales of Equity Securities.

 

The information set forth in Item 1.01 above is incorporated herein by reference.

 

The issuance of the IP Purchase Shares was exempt from registration pursuant to an exemption from registration provided by Section 4(a)(2) and/or Rule 506 of Regulation D of the Securities Act of 1933, as amended (the “Securities Act”), since the foregoing issuance did not involve a public offering, the recipient took the securities for investment and not resale, we took appropriate measures to restrict transfer, and the recipient is an “accredited investor”. The securities are subject to transfer restrictions, and the securities contain an appropriate legend stating that such securities have not been registered under the Securities Act and may not be offered or sold absent registration or pursuant to an exemption therefrom. The securities were not registered under the Securities Act and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the Securities Act and any applicable state securities laws.

 

Item 3.03 Material Modifications to Rights of Security Holders.

 

The information and disclosures in Item 1.01 relating to the Contribution Agreement and Item 5.02 relating to Mango & Peaches is incorporated by reference into this Item 3.03 in their entirety.

 

Item 5.01 Changes in Control of Registrant.

 

To the extent required by the rules and requirement of Form 8-K, the information set forth in Item 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01 in its entirety.

 

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Amended and Restated Employment Agreement

 

On December 13, 2024, we entered into an Amended and Restated Executive Employment Agreement with Jacob D. Cohen, our Chief Executive Officer (the “A&R Agreement”).

 

The A&R Agreement, which has an effective date of December 15, 2024, amended that prior Executive Employment Agreement dated September 1, 2022, by and between the Company and Mr. Cohen, as amended to date (the “Prior Agreement”) to among other things i) expand Mr. Cohen’s duties and obligations to include serving not only as the Chief Executive Officer of the Company, but also as the Chief Executive Officer of Mango & Peaches; ii) extend the term of Mr. Cohen’s engagement to be for a term of three years through December 1, 2027; iii) amended certain provisions of the Prior Agreement relating to the definition of “cause” for termination by the Company and the definition of change of control, to apply in the event that a majority of the members of the Board of Directors change after December 15, 2024, whether or not the directors are nominated by any committee of the Board of Directors; iv) increase Mr. Cohen’s base salary to $360,000 per year and provide that any cash bonus or equity bonus earned by Mr. Cohen will be paid after the end of the fiscal year to which it relates, at the same time and under the same terms and conditions as other executives of the Company; provided that in no event shall the cash bonus or equity bonus be paid later than March 15th of the fiscal year following the fiscal year for which it was earned; v) provide for Mr. Cohen to be paid a flat fee allowance of $7,500 per month which is intended to cover the cost of office space used by Mr. Cohen and all overhead costs associated therewith; vi) provide Mr. Cohen the right to earn a cash bonus of up to $10,000,000, during the term of the A&R Agreement, based on Mango & Peaches meeting certain milestones and achievements (the “M&P Bonus”) as set forth in greater detail in Exhibit B to the A&R Agreement, which at the option of Mr. Cohen can be converted into shares of common stock of Mango & Peaches at a conversion rate of $0.50 per share, as equitably adjusted for stock splits, dividends and recapitalizations of Mango & Peaches. The right to earn any unvested M&P Bonus terminates upon the termination of the A&R Agreement, except (1) if a change of control (as defined in the A&R Agreement) occurs; (2) if the A&R Agreement is terminated by Mr. Cohen for good reason (as defined in the A&R Agreement); or (3) if the A&R Agreement is terminated by the Company for a reason other than “cause” (as defined in the A&R Agreement), in which case the unvested portion of the M&P Bonus shall vest in full to Mr. Cohen upon the occurrence of such change of control or termination, as applicable; vii) increase the severance payable to Mr. Cohen upon a termination of the A&R Agreement by Mr. Cohen for good reason or without “cause” by the Company, each as described in greater detail in the A&R Agreement, the sum of (i) an amount equal to three (3) times his then current annual base salary (up from one (1) times previously), plus (ii) an amount equal to Mr. Cohen’s targeted bonus for the year containing the termination date; and (b) provided Mr. Cohen elects to receive continued health insurance coverage through COBRA, the Company will pay Mr. Cohen’s monthly COBRA contributions for health insurance coverage, as may be amended from time to time (less an amount equal to the premium contribution paid by active Company employees, if any) for twelve (12) months following the termination date; and viii) provide for the compensation payable under the A&R Agreement to be subject to the Company’s clawback policy, to the extent applicable.

 

The A&R Agreement also provided for Mr. Cohen to be issued (a) 1,700,000 shares of the common stock of Mango & Peaches (representing 25.4% of Mango and Peaches’ outstanding shares of common stock)(the “M&P Common Shares”); and (b) 100 shares of a to be designated series of Series A Preferred Stock of Mango & Peaches. The Series A Preferred Stock shares of Mango & Peaches (the “M&P Series A Shares”), which are expected to be designated shortly after the date of this filing, and issued to Mr. Cohen shortly thereafter, will have the following terms: the right to vote fifty-one percent (51%) of the total vote on all Mango & Peaches shareholder matters, voting separately as a class, and no liquidation, conversion or redemption rights.

 

As a result of the issuance of the M&P Common Shares, Mr. Cohen obtained, and as a result of the issuance of the M&P Series A Shares, Mr. Cohen will obtain, significant control (or upon the issuance of the M&P Series A Shares, majority control) over substantially all of the assets and operations of the Company, which following the Contribution Effective Date, are held by Mango & Peaches, including the right to vote 75.5% of Mango & Peaches outstanding voting shares as result of his ownership of M&P Common Shares and the M&P Series A Shares, which will provide him the right to approve any merger or consolidation of Mango & Peaches and/or any amendment to the Certificate of Formation of Mango & Peaches.

 

Additionally, in the event the full amount of the M&P Bonus, vests to Mr. Cohen and he converts such entire M&P Bonus into 20,000,000 shares of common stock of Mango & Peaches pursuant to the conversion terms thereof, he will own 81.3% of Mango & Peaches outstanding common stock (not factoring in any other issuances), and 92.8% of Mango & Peaches’ outstanding voting stock (as a result of the ownership of the M&P Series A Shares and not factoring in any future issuances). There is no assurance that any of the milestones will be reached by Mango & Peaches and/or that any portion of the M&P Bonus will vest to Mr. Cohen.

 

 

The Company plans to seek ratification of the terms of the A&R Agreement as it relates to the Mango & Peaches shares issued, and issuable, to Mr. Cohen at the next meeting of shareholders of the Company.

 

Except as modified by the A&R Agreement, the terms of Mr. Cohen’s employment agreement remained substantially the same as the Prior Agreement, which is described in the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Securities and Exchange Commission on May 16, 2024, under the heading “Executive and Director Compensation—Employment Agreements— Jacob D. Cohen, Chief Executive Officer”, which description, as modified by the A&R Agreement, is incorporated by reference herein.

 

The description of the A&R Employment Agreement and Mango & Peaches above is not complete and is qualified in its entirety by the full text of the A&R Employment Agreement and the Certificate of Formation of Mango & Peaches, copies of which are attached hereto as Exhibits 10.3 and 3.1, respectively, and incorporated by reference into this Item 5.02 in their entirety.

 

The Company plans to file another Current Report on Form 8-K disclosing the final terms of the Series A Shares, once those are designated at M&P.

 

Item 8.01 Other Events.

 

On December 13, 2024, Cohen Enterprises, Inc., which is owned and controlled by Jacob Cohen, our Chief Executive Officer and Chairman (“Cohen Enterprises”), entered into a Note Purchase Agreement with Mill End Capital Ltd. (“Mill End” and the “Note Purchase”). Pursuant to the Note Purchase, Mill End purchased all of Cohen Enterprises rights under that certain outstanding Promissory Note dated October 18, 2024, issued by the Company as borrower, to Cohen Enterprises, as lender, in the original amount of $150,000, in consideration for $150,000.

 

The description of the Note Purchase above is not complete and is qualified in its entirety by the full text of the Note Purchase, a copy of which is attached hereto as Exhibit 10.4, and incorporated by reference into this Item 8.01 in its entirety.

 

On December 19, 2024, the Company filed a press release disclosing the acquisition of the patent. A copy of the press release is included herewith as Exhibit 99.1 and the information in the press release is incorporated by reference into this Item 8.01.

 

Item 9.01 Exhibits.

 

(d) Exhibits.

 

Exhibit No.		Description
3.1*		Certificate of Formation of Mango & Peaches, Inc., as filed with the Secretary of State of Texas on December 10, 2024
3.2*		Bylaws of Mango & Peaches, Inc.
10.1*#		Patent Purchase Agreement dated December 13, 2024, by and between Mangoceuticals, Inc., as purchaser and Greenfield Investments, Ltd, as seller
10.2*		Parent Subsidiary Contribution Agreement dated December 13, 2024, by and between Mangoceuticals, Inc. and Mango & Peaches Corp.
10.3*£		Amended and Restated Executive Employment Agreement dated December 13, 2024 and effective December 1, 2024, by and between Mangoceuticals, Inc. and Jacob Cohen
10.4*		Note Purchase Agreement dated December 13, 2024, by and between Cohen Enterprises, Inc., and Mill End Capital Ltd.
99.1*		Press release of Mangoceuticals, Inc. dated December 19, 2024
104		Cover Page Interactive Data File (embedded within the Inline XBRL document and included in Exhibit 101).

 

* Filed herewith.

 

# Certain schedules and exhibits have been omitted pursuant to Item 601(b)(2)(ii) of Regulation S-K. A copy of any omitted schedule or Exhibit will be furnished supplementally to the Securities and Exchange Commission upon request; provided, however that Mangoceuticals, Inc. may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedule or Exhibit so furnished.

 

£ Represents management contract or compensatory plan or arrangement.

 

 

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.

 

	MANGOCEUTICALS, INC.
Date: December 19, 2024	By:	/s/ Jacob D. Cohen
		Jacob D. Cohen
		Chief Executive Officer

 

 

 

 

Exhibit 3.1

 

Form 201 (Revised 12/21)	Certificate of Formation For-Profit Corporation	This space reserved for office use.
Submit in duplicate to: Secretary of State P.O. Box 13697 Austin, TX 78711-3697 512 463-5555
Filing Fee: $300

 

Article 1 – Entity Name and Type

 

The filing entity being formed is a for-profit corporation. The name of the entity is:

 

Mango & Peaches Corp.

The name must contain the word “corporation,” “company,” “incorporated,” “limited” or an abbreviation of one of these terms.

 

Article 2 – Registered Agent and Registered Office

(See instructions. Select and complete either A or B and complete C.)

 

☐ A.	The initial registered agent is an organization (cannot be entity named above) by the name of:
OR
☒ B.	The initial registered agent is an individual resident of the state whose name is set forth below:

 

Jacob		Cohen
First Name	M.I.	Last Name	Suffix

 

C.	The business address of the registered agent and the registered office address is:

 

15110 N. Dallas Parkway, Suite 600	Dallas	TX	75248
Street Address	City	State	Zip Code

 

Article 3 – Directors

(A minimum of 1 director is required.)

 

The number of directors constituting the initial board of directors and the names and addresses of the person or persons who are to serve as directors until the first annual meeting of shareholders or until their successors are elected and qualified are as follows:

 

Director 1
Jacob		Cohen
First Name	M.I.	Last Name			Suffix
15110 N. Dallas Parkway, Suite 600	Dallas		TX	75248	USA
Street or Mailing Address	City		State	Zip Code	Country

 

 

Director 2
First Name	M.I.	Last Name			Suffix
Street or Mailing Address	City		State	Zip Code	Country

 

Director 3
First Name	M.I.	Last Name			Suffix
Street or Mailing Address	City		State	Zip Code	Country

 

Article 4 – Authorized Shares

(Provide the number of shares in the space below, then select option A or option B, do not select both.)

 

The total number of shares the corporation is authorized to issue is:

210,000,000

 

☒ A.	The par value of each of the authorized shares is:	$0.0001
OR
☐ B.	The shares shall have no par value.

 

If the shares are to be divided into classes, you must set forth the designation of each class, the number of shares of each class, the par value (or statement of no par value), and the preferences, limitations, and relative rights of each class in the space provided for supplemental information on this form.

 

Article 5 – Purpose

 

The purpose for which the corporation is formed is for the transaction of any and all lawful business for which a for-profit corporation may be organized under the Texas Business Organizations Code.

 

Initial Mailing Address

(Provide the mailing address to which state franchise tax correspondence should be sent.)

 

15110 N. Dallas Parkway, Suite 600	Dallas	TX	75248	USA
Mailing Address	City	State	Zip Code	Country

 

Supplemental Provisions/Information

 

Text Area: [The attached addendum, if any, is incorporated herein by reference.]

 

 

 

Organizer

 

The name and address of the organizer:

 

Jacob Cohen
Name
15110 N. Dallas Parkway, Suite 600	Dallas	TX	75248
Street or Mailing Address	City	State	Zip Code

 

Effectiveness of Filing (Select either A, B, or C.)

 

A. ☒ This document becomes effective when the document is filed by the secretary of state.

 

B. ☐ This document becomes effective at a later date, which is not more than ninety (90) days from the date of signing. The delayed effective date is: ___________________________________________

C. ☐ This document takes effect upon the occurrence of a future event or fact, other than the passage of time. The 90^th day after the date of signing is: __________________________________________

 

The following event or fact will cause the document to take effect in the manner described below:

 

 

 

Execution

 

The undersigned affirms that the person designated as registered agent has consented to the appointment. The undersigned also affirms that, to the best knowledge of the undersigned, the name provided as the name of the filing entity does not falsely imply an affiliation with a governmental entity. The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized to execute the filing instrument.

 

Date:	December 10, 2024
			Signature of organizer
			Jacob Cohen
			Printed or typed name of organizer

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit 3.2

 

BYLAWS

 

OF

 

MANGO & PEACHES CORP.

 

a Texas corporation

Adopted December 10, 2024

 

 

TABLE OF CONTENTS

 

ARTICLE I. DEFINITIONS	1
1.1. Definitions.	1
1.2. Offices.	1
ARTICLE II. OFFICES	1
2.1. Principal Office.	1
2.2. Registered Office.	1
2.3. Other Offices.	2
ARTICLE III. MEETINGS OF STOCKHOLDERS	2
3.1. Annual Meetings.	2
3.2. Special Meetings.	2
3.3. Place of Meetings.	3
3.4. Notice of Meetings.	3
3.5. Notice of Stockholder Business and Nominations.	4
3.6. Waiver of Notice.	5
3.7. Adjournment of Meeting.	5
3.8. Quorum.	6
3.9. Organization.	6
3.10. Conduct of Business.	6
3.11. List of Stockholders.	6
3.12. Fixing of Record Date.	7
3.13. Voting of Shares.	7
3.14. Inspectors.	8
3.15. Proxies.	8
3.16. Action by Consent.	9
3.17. Cumulative Voting.	10
3.18. Telephonic or Virtual Meetings.	10
ARTICLE IV. BOARD OF DIRECTORS	10
4.1. General Powers.	10
4.2. Number.	11
4.3. Election of Directors and Term of Office.	11
4.4. Resignations.	11
4.5. Removal.	11
4.6. Vacancies.	11
4.7. Chairman of the Board.	11
4.8. Compensation.	11
4.9. Insuring Directors, Officers, and Employees.	12
4.10. Delegation of Authority.	12
ARTICLE V. MEETINGS OF DIRECTORS	12
5.1. Regular Meetings.	12

 

 

5.2. Place of Meetings.	12
5.3. Meetings by Telecommunications or other Electronic Meetings.	12
5.4. Special Meetings.	12
5.5. Notice of Special Meetings.	13
5.6. Waiver by Presence.	13
5.7. Quorum.	13
5.8. Conduct of Business.	13
5.9. Action by Consent.	14
5.10. Transactions with Interested Directors.	14
ARTICLE VI. COMMITTEES	14
6.1. Committees of the Board.	14
6.2. Selection of Committee Members.	14
6.3. Conduct of Business.	15
6.4. Authority.	15
6.5. Minutes.	15
6.6. Committees.	15
ARTICLE VII. OFFICERS	15
7.1. Officers of the Company.	15
7.2. Election and Term.	15
7.3. Compensation of Officers.	16
7.4. Removal of Officers and Agents.	16
7.5. Resignation of Officers and Agents.	16
7.6. Bond.	16
7.7. Chief Executive Officer.	16
7.8. President.	16
7.9. Vice Presidents.	16
7.10. Chief Financial Officer.	17
7.11. Secretary.	17
7.12. Assistant Secretaries.	17
7.13. Treasurer.	17
7.14. Assistant Treasurers.	18
7.15. Other Officers.	18
7.16. Delegation of Authority.	18
7.17. Action with Respect to Securities of Other Corporations.	18
7.18. Vacancies.	18
ARTICLE VIII. CONTRACTS, DRAFTS, DEPOSITS AND ACCOUNTS	18
8.1. Contracts.	18
8.2. Drafts.	19
8.3. Deposits.	19
8.4. General and Special Bank Accounts.	19
ARTICLE IX. CERTIFICATES FOR SHARES AND THEIR TRANSFER	19
9.1. Certificates for Shares.	19

 

 

9.2. Transfer of Shares.	20
9.3. Lost Certificates.	20
9.4. Regulations.	20
9.5. Holder of Record.	21
9.6. Treasury Shares.	21
9.7. Consideration For Shares.	21
ARTICLE X. INDEMNIFICATION	21
10.1. Definitions.	21
10.2. Indemnification.	22
10.3. Successful Defense.	22
10.4. Determinations.	23
10.5. Advancement of Expenses.	23
10.6. Employee Benefit Plans.	24
10.7. Other Indemnification and Insurance.	24
10.8. Notice.	24
10.9. Construction.	24
10.10. Continuing Offer, Reliance, etc.	25
10.11. Effect of Amendment.	25
ARTICLE XI. TAKEOVER OFFERS	25
11.1. Takeover Offers.	25
ARTICLE XII. DIVIDENDS	25
12.1. General.	25
12.2. Dividend Reserve.	25
ARTICLE XIII. NOTICES	26
13.1. General.	26
13.2. Waiver of Notice.	26
13.3. Electronic Notice.	26
13.4. Undeliverable Notices.	27
ARTICLE XIV. MISCELLANEOUS	27
14.1. Facsimile Signatures.	27
14.2. Corporate Seal.	27
14.3. Fiscal Year.	27
14.4. Bylaw Provisions Additional and Supplemental to Provisions of Law.	28
14.5. Bylaw Provisions Contrary to or Inconsistent with Provisions of Law.	28
ARTICLE XV. AMENDMENTS	28
15.1. Amendments.	28

 

 

BYLAWS

OF

MANGO & PEACHES CORP.

a Texas corporation

 

Adopted [  ], 2024

 

ARTICLE I.
DEFINITIONS

 

1.1. Definitions. Unless the context clearly requires otherwise, in these Bylaws:

 

1.1.1 “Articles of Incorporation” or “Articles” means the Certificate of Formation of Mango & Peaches Corp., as filed with the Secretary of State of the State of Texas and includes all amendments thereto and restatements thereof subsequently filed.

 

1.1.2 “Board” means the board of directors of the Company and/or an authorized Committee of the Board, as applicable.

 

1.1.3 “Bylaws” means these Bylaws as adopted by the Board and includes amendments subsequently adopted by the Board or by the Stockholders.

 

1.1.4 “Company” means Mango & Peaches Corp., a Texas corporation.

 

1.1.5 “Section” refers to sections of these Bylaws.

 

1.1.6 “Stockholder” means stockholders of record of the Company.

 

1.1.7 “Texas Law” means the Texas Business Organizations Code, as amended from time to time.

 

1.2. Offices. The title of an office refers to the person or persons who at any given time perform the duties of that particular office for the Company.

 

ARTICLE II.
OFFICES

 

2.1. Principal Office. The Company may locate its principal office within or outside the state of incorporation as the Board may determine.

 

2.2. Registered Office. The registered office of the Company required by law to be maintained in the state of incorporation may be, but need not be, the same as the principal place of business of the Company. The Board may change the address of the registered office from time to time.

 

 

2.3. Other Offices. The Company may have offices at such other places, either within or without the state of incorporation, as the Board may designate or as the business of the Company may require from time to time.

 

ARTICLE III.
MEETINGS OF STOCKHOLDERS

 

3.1. Annual Meetings. The Stockholders of the Company shall hold their annual meetings for the purpose of electing directors and for the transaction of such other proper business as may come before such meetings at such time, date and place as the Board shall determine by resolution, provided the Board may also determine that a virtual meeting of Stockholders by means of remote communication shall be held in addition to or instead of a physical meeting as permitted by Texas law.

 

3.2. Special Meetings. The Board, the Chairman of the Board, the President, a majority of the members of the Board or a committee of the Board duly designated and whose powers and authority include the power to call meetings may call special meetings of the Stockholders of the Company at any time for any purpose or purposes. Special meetings of the Stockholders of the Company may also be called by the holders of at least 35% of all shares entitled to vote at the proposed special meeting.

 

If any person(s) other than the Board or the Chairman call a special meeting, the request shall:

 

(i)

be in writing;

 

(ii)

specify the general nature of the business proposed to be transacted; and

 

(iii)

be delivered personally or sent by registered mail or by facsimile transmission to the Secretary of the Company.

 

(iv)

additionally, if the special meeting is called by Stockholders as provided above, the request shall include documentation sufficient to confirm the Stockholder(s) total ownership of shares entitled to vote at the proposed special meeting.

 

Upon receipt of such a request, the Board shall determine the date, time and place of such special meeting, which must be scheduled to be held on a date that is within ninety (90) days of receipt by the Secretary of the request therefor, and the Secretary of the Company shall prepare a proper notice thereof. No business may be transacted at such special meeting other than the business specified in the notice to Stockholders of such meeting.

 

 

3.3. Place of Meetings. The Stockholders shall hold all meetings at such places, within or without the State of Texas, as the Board or a committee of the Board shall specify in the notice or waiver of notice for such meetings.

 

3.4. Notice of Meetings. Except as otherwise required by law, the Board or a committee of the Board shall give notice of each meeting of Stockholders, whether annual or special, not less than 10 nor more than 60 days before the date of the meeting. The Board or a committee of the Board shall deliver a notice to each Stockholder entitled to vote at such meeting by delivering a typewritten or printed notice thereof to him personally, or by depositing such notice in the United States mail, in a postage prepaid envelope, directed to him at his address as it appears on the records of the Company, or by transmitting a notice thereof to him at such address by telegraph, telecopy, cable or wireless or, if the Stockholder has provided the Company his, her or its, email and authorization to be contacted via email, via email. If mailed, notice is given on the date deposited in the United States mail, postage prepaid, directed to the Stockholder at his address as it appears on the records of the Company. If emailed, in accordance with the above, notice is given on the date the email is sent to the Stockholder at his, her or its email address as it appears on the records of the Company. An affidavit of the Secretary or an Assistant Secretary or of the Transfer Agent of the Company that he has given notice shall constitute, in the absence of fraud, prima facie evidence of the facts stated therein.

 

Every notice of a meeting of the Stockholders shall state the place, date and hour of the meeting and, in the case of a special meeting, also shall state the purpose or purposes of the meeting. Furthermore, if the Company will maintain the list at a place other than where the meeting will take place, every notice of a meeting of the Stockholders shall specify where the Company will maintain the list of Stockholders entitled to vote at the meeting.

 

 

3.5. Notice of Stockholder Business and Nominations. Subject to the Articles of Incorporation, the Stockholders who intend to nominate persons to the Board of Directors, subject where applicable to these Bylaws and applicable law, or propose any other action at an annual meeting of Stockholders must timely notify the Secretary of the Company of such intent. To be timely, a Stockholder’s notice must be delivered, mailed or emailed, and received at the principal executive offices of the Company or via email, as applicable, not earlier than the close of business on the day which falls 120 days prior to the one year anniversary of the Company’s last annual meeting of Stockholders and not later than the close of business on the day which falls 90 days prior to the one year anniversary of the Company’s last annual meeting of Stockholders, together with written notice of the shareholder’s intention to present a proposal for action at the meeting, unless the Company’s annual meeting date occurs more than 30 days before or 30 days after the one year anniversary of the Company’s last annual meeting of Stockholders. In that case, the Company must receive proposals not earlier than the close of business on the 120th day prior to the date of the annual meeting and not later than the close of business on the later of the 90th day prior to the date of the annual meeting or, if the first public announcement (or announcement to the shareholders if the Company is privately held) of the date of the annual meeting is less than 100 days prior to the date of the meeting, the 10th day following the day on which the Company first makes a public announcement of the date of the annual meeting (or if the Company is privately held, the first shareholder announcement of the date of the annual meeting). Such notice must be in writing and must include (a) the name and record address of the Stockholder who intends to propose the business and the class or series and number of shares of capital stock of the Company which are owned beneficially or of record by such Stockholder; (b) a representation that the Stockholder is a holder of record of stock of the Company entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to introduce the business specified in the notice; (c) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting; (d) any material interest of the Stockholder in such business; and (e) any other information that is required to be provided by the Stockholder pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (such act, and the rules and regulations promulgated thereunder, the “Exchange Act”), if the Company is subject to the Exchange Act. In the event the Stockholder proposal relates to a nomination for appointment of a director of the Company, the notice shall also set forth (a) as to each person whom the Stockholder proposes to nominate for election as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class or series and number of shares of capital stock of the Company which are owned beneficially or of record by the person and (iv) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.

 

Nominations of persons for election to the Board of Directors may be made at any annual meeting of Stockholders, or at any special meeting of Stockholders called for the purpose of electing directors, (a) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (b) by any Stockholder of the Company (i) who is a Stockholder of record on the date of the giving of the notice provided for in this Section ‎3.5 and on the record date for the determination of Stockholders entitled to notice of and to vote at such meeting and (ii) who complies with the notice procedures set forth in this Section ‎3.5.

 

 

Notwithstanding the foregoing, in order to include information with respect to a Stockholder proposal in the proxy statement and form of proxy for a stockholder’s meeting, Stockholders must provide notice as required by, and otherwise comply with the requirements of, the Exchange Act and the regulations promulgated thereunder. The Board of Directors reserves the right to refuse to submit any such proposal to Stockholders at an annual meeting if, in its judgment, the information provided in the notice is inaccurate or incomplete. For the avoidance of doubt, the foregoing Section ‎3.5 shall be the exclusive means for a Stockholder to make nominations or propose business (other than business included in the Corporation’s proxy materials pursuant to Rule 14a-8 under the Exchange Act, if the Company is subject to the Exchange Act) at an annual meeting of stockholders. For purposes of these Bylaws, “public announcement” shall mean disclosure in a press release reported by a national service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act or if the Company is privately held, a private announcement by the Company to its shareholders. Notwithstanding the foregoing provisions of this Section ‎3.5, a stockholder shall also comply with all applicable requirements of the Exchange Act and applicable state law with respect to matters set forth in this Section ‎3.5, if the Company is subject to the Exchange Act. Nothing in this Section ‎3.5 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act (if the Company is subject to the Exchange Act), or the Company’s or the Board of Director’s rights and obligations under the Exchange Act (if the Company is subject to the Exchange Act) and state law, as applicable.

 

3.6. Waiver of Notice. Whenever these Bylaws require written notice, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall constitute the equivalent of notice. Attendance of a person at any meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. No written waiver of notice need specify either the business to be transacted at, or the purpose or purposes of any regular or special meeting of the Stockholders, directors or members of a committee of the Board.

 

3.7. Adjournment of Meeting. When the Stockholders, the Board of Directors, or an officer (as provided in Section ‎3.8 below), adjourn a meeting to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Stockholders may transact any business which they may have transacted at the original meeting. If the adjournment is for more than 30 days or, if after the adjournment, the Board or a committee of the Board fixes a new record date for the adjourned meeting, the Board or a committee of the Board shall give notice of the adjourned meeting to each Stockholder of record entitled to vote at the meeting.

 

 

3.8. Quorum. Except as otherwise required by law, a quorum shall be present at a meeting of Stockholders if the holders of shares having a majority of the voting power represented by all issued and outstanding shares entitled to vote at the meeting are present in person or represented by proxy at such meeting, unless otherwise provided by the Articles of Incorporation. In the absence of a quorum at any meeting or any adjournment thereof, (A) the Board of Directors, without a vote of the Stockholders, may (1) postpone, reschedule, or cancel any previously scheduled annual meeting of stockholders and (2) postpone, reschedule, or cancel any previously scheduled special meeting of the Stockholders called by the Board of Directors or management (but not by the Stockholders); or (B) the holders of a majority of the shares of stock entitled to vote who are present, in person or by proxy, or, in the absence therefrom of all the Stockholders, any officer entitled to preside at, or to act as secretary of, such meeting may adjourn such meeting to another place, date or time.

 

If the chairman of the meeting gives notice of any adjourned special meeting of Stockholders to all Stockholders entitled to vote thereat, stating that the minimum percentage of Stockholders for a quorum as provided by Texas Law shall constitute a quorum, then, except as otherwise required by law, that percentage at such adjourned meeting shall constitute a quorum and a majority of the votes cast at such meeting shall determine all matters.

 

Votes cast shall include votes cast against any proposal and shall exclude abstentions and broker non-votes, provided that votes cast against any proposal, abstentions and broker non-votes shall be counted in determining a quorum at any meeting.

 

3.9. Organization. Such person as the Board may have designated or, in the absence of such a person, the highest ranking officer of the Company who is present shall call to order any meeting of the Stockholders, determine the presence of a quorum, and act as chairman of the meeting. In the absence of the Secretary or an Assistant Secretary of the Company, the chairman shall appoint someone to act as the secretary of the meeting.

 

3.10. Conduct of Business. The chairman of any meeting of Stockholders shall determine the order of business and the procedure at the meeting, including such regulations of the manner of voting and the conduct of discussion as he deems in order.

 

3.11. List of Stockholders. At least 10 days before every meeting of Stockholders, the Secretary shall prepare a list of the Stockholders entitled to vote at the meeting or any adjournment thereof, arranged in alphabetical order, showing the address of each Stockholder and the number of shares registered in the name of each Stockholder. The Company shall make the list available for examination by any Stockholder for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, either at a place within the city where the meeting will take place or at the place designated in the notice of the meeting.

 

 

The Secretary shall produce and keep the list at the time and place of the meeting during the entire duration of the meeting, and any Stockholder who is present may inspect the list at the meeting. The list shall constitute presumptive proof of the identity of the Stockholders entitled to vote at the meeting and the number of shares each Stockholder holds.

 

A determination of Stockholders entitled to vote at any meeting of Stockholders pursuant to this Section shall apply to any adjournment thereof.

 

3.12. Fixing of Record Date. For the purpose of determining Stockholders entitled to notice of or to vote at any meeting of Stockholders or any adjournment thereof, or Stockholders entitled to receive payment of any dividend, or in order to make a determination of Stockholders for any other proper purpose, the Board or a committee of the Board may fix in advance a date as the record date for any such determination of Stockholders. However, the Board shall not fix such date, in any case, more than 60 days nor less than 10 days prior to the date of the particular action.

 

If the Board or a committee of the Board does not fix a record date for the determination of Stockholders entitled to notice of or to vote at a meeting of Stockholders, the record date shall be at the close of business on the day next preceding the day on which notice is given or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held or the date on which the Board adopts the resolution declaring a dividend.

 

3.13. Voting of Shares. Except as otherwise required by Texas Law, the Articles, any certificate of designations, or the Bylaws, (i) at all meetings of Stockholders for the election of directors, a plurality of votes cast shall be sufficient to elect such directors; (ii) any other action taken by Stockholders shall be valid and binding upon the Company with the affirmative vote of the holders of the majority of the shares entitled to vote on, and who voted for, against, or expressly abstained with respect to, the matter at a Stockholders’ meeting of the Company at which a quorum is present, except that adoption, amendment or repeal of the Bylaws by Stockholders will require the vote of a majority of the shares entitled to vote; and (iii) broker non-votes are considered for purposes of establishing a quorum but not considered as votes cast for or against a proposal or director nominee. Each Stockholder shall have one vote for every share of stock having voting rights registered in his name on the record date for the meeting, except as otherwise provided in any preferred stock designation setting forth the right of preferred stock shareholders. The Company shall not have the right to vote treasury stock of the Company, nor shall another corporation have the right to vote its stock of the Company if the Company holds, directly or indirectly, a majority of the shares entitled to vote in the election of directors of such other corporation. Persons holding stock of the Company in a fiduciary capacity shall have the right to vote such stock. Persons who have pledged their stock of the Company shall have the right to vote such stock unless in the transfer on the books of the Company the pledgor expressly empowered the pledgee to vote such stock. In that event, only the pledgee, or his proxy, may represent such stock and vote thereon.

 

 

Where a separate vote by a class or classes is required, a majority of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and the affirmative vote of the majority of shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class.

 

3.14. Inspectors. At any meeting in which the Stockholders vote by ballot, the chairman may appoint one or more inspectors. Each inspector shall take and sign an oath to execute the duties of inspector at such meeting faithfully, with strict impartiality, and according to the best of his ability. The inspectors shall ascertain the number of shares outstanding and the voting power of each; determine the shares represented at a meeting and the validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and certify their determination of the number of shares represented at the meeting, and their count of all votes and ballots. The certification required herein shall take the form of a subscribed, written report prepared by the inspectors and delivered to the Secretary of the Company. An inspector need not be a Stockholder of the Company, and any officer of the Company may be an inspector on any question other than a vote for or against a proposal in which he has a material interest.

 

3.15. Proxies. A Stockholder may exercise any voting rights in person or by his proxy appointed by an instrument in writing, which he or his authorized attorney-in-fact has subscribed and which the proxy has delivered to the Secretary of the meeting pursuant to the manner prescribed by law.

 

A proxy is not valid after the expiration of 11 months after the date of its execution, unless the person executing it specifies thereon the length of time for which it is to continue in force or limits its use to a particular meeting. Each proxy is irrevocable if it expressly states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power.

 

The attendance at any meeting of a Stockholder who previously has given a proxy shall not have the effect of revoking the same unless he notifies the Secretary in writing prior to the voting of the proxy.

 

 

3.16. Action by Consent. Any action required to be taken at any annual or special meeting of Stockholders of the Company or any action which may be taken at any annual or special meeting of such Stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action that is the subject of the consent at a meeting in which each Stockholder entitled to vote on the action is present and votes, and shall be delivered to the Company by delivery to its registered office, its principal place of business, or an officer or agent of the Company having custody of the book in which proceedings of meetings of stockholders are recorded.

 

Every written consent shall bear the date of signature of each Stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days (or such other period as provided by applicable law) of the earliest dated consent delivered in the manner required by this Section to the Company, written consents signed by a sufficient number of holders to take action are delivered to the Company by delivery to its registered office, its principal place of business or an officer or agent of the Company having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Company’s registered office shall be by hand or by certified or registered mail, return receipt requested.

 

Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those Stockholders who have not consented in writing, provided further that failure to provide such notice shall not effect the validity of such action.

 

In the event of the delivery to the Company of a consent or consents in writing (“Consents”), the secretary of the Company, or such other officer of the Company as the Board may designate, shall provide for the safe-keeping of such Consents and any related revocations and shall promptly conduct such ministerial review of the sufficiency of all Consents and any related revocations and of the validity of the action to be taken by Stockholder consent as the secretary of the Company, or such other officer of the Company as the Board may designate, as the case may be, deems necessary or appropriate, including, without limitation, whether the Stockholders of a number of shares having the requisite voting power to authorize or take the action specified in Consents have given consent; provided, however, that if the corporate action to which the Consents relate is the removal or replacement of one or more members of the Board, the secretary of the Company, or such other officer of the Company as the Board may designate, as the case may be, shall promptly designate two persons, who shall not be members of the Board, to serve as inspectors (“Inspectors”) with respect to such Consent and such Inspectors shall discharge the functions of the secretary of the Company, or such other officer of the Company as the Board may designate, as the case may be, under this section. If after such investigation the secretary of the Company, such other officer of the Company as the Board may designate or the Inspectors, as the case may be, shall determine that the action purported to have been taken is duly authorized by the Consents, that fact shall be certified on the records of the Company kept for the purpose of recording the proceedings of meetings of Stockholders and the Consents shall be filed in such records.

 

 

In conducting the investigation required by this section, the secretary of the Company, such other officer of the Company as the Board may designate or the Inspectors, as the case may be, may, at the expense of the Company, retain special legal counsel and any other necessary or appropriate professional advisors as such person or persons may deem necessary or appropriate and shall be fully protected in relying in good faith upon the opinion of such counsel or advisors.

 

No action by written consent without a meeting shall be effective until such date as the secretary of the Company, such other officer of the Company as the Board may designate, or the Inspectors, as applicable, certify to the Company that the Consents delivered to the Company in accordance with this section, represent at least the minimum number of votes that would be necessary to take the corporate action in accordance with Texas law and the Articles of Incorporation and Bylaws of the Company.

 

Nothing contained in this Section ‎3.16 shall in any way be construed to suggest or imply that the Board or any Stockholder shall not be entitled to contest the validity of any Consents or related revocations, whether before or after such certification by the secretary of the Company, such other officer of the Company as the Board may designate or the Inspectors, as the case may be, or to take any other action (including, without limitation, the commencement, prosecution, or defense of any litigation with respect thereto, and the seeking of injunctive relief in such litigation).

 

3.17. Cumulative Voting. Cumulative voting is expressly forbidden.

 

3.18. Telephonic or Virtual Meetings. Unless otherwise restricted by the Articles of Incorporation or these Bylaws, meetings of the Stockholders may be held through the use of conference telephone or similar communications equipment (including, but not limited to video conferencing), email or instant mail as long as all members participating in such meeting can communicate with one another at the time of such meeting. Participation in such meeting constitutes presence in person at such meeting.

 

ARTICLE IV.
BOARD OF DIRECTORS

 

4.1. General Powers. The Board shall manage the property, business and affairs of the Company.

 

 

4.2. Number. The number of directors who shall constitute the Board shall equal not less than 1 nor more than 10, as the Board or majority Stockholders may determine by resolution from time to time.

 

4.3. Election of Directors and Term of Office. The Stockholders of the Company shall elect the directors at the annual or adjourned annual meeting (except as otherwise provided herein for the filling of vacancies). Each director shall hold office until his death, resignation, retirement, removal, or disqualification, or until his successor shall have been elected and qualified.

 

4.4. Resignations. Any director of the Company may resign at any time by giving written notice to the Board or to the Secretary of the Company. Any resignation shall take effect upon receipt or at the time specified in the notice. Unless the notice specifies otherwise, the effectiveness of the resignation shall not depend upon its acceptance.

 

4.5. Removal. Unless otherwise provided in the Articles of Incorporation, any applicable certificate of designation or these Bylaws, stockholders holding a majority of the outstanding shares entitled to vote at an election of directors may remove any director or the entire Board of Directors at any time, with or without cause.

 

4.6. Vacancies. Unless otherwise provided in the Articles of Incorporation, any applicable certificate of designation or these Bylaws, and subject to applicable law, any vacancy on the Board, whether because of death, resignation, disqualification, an increase in the number of directors, or any other cause may be filled by a majority of the remaining directors, a sole remaining director, or the majority Stockholders. Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the provisions of the Articles of Incorporation or any applicable certificate of designation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected. Any director elected to fill a vacancy shall hold office until his death, resignation, retirement, removal, or disqualification, or until his successor shall have been elected and qualified.

 

4.7. Chairman of the Board. At the initial and annual meeting of the Board, the directors may elect from their number a Chairman of the Board of Directors. The Chairman shall preside at all meetings of the Board and shall perform such other duties as the Board may direct. The Board also may elect a Vice Chairman and other officers of the Board, with such powers and duties as the Board may designate from time to time.

 

4.8. Compensation. The Board may compensate directors for their services and may provide for the payment of all expenses the directors incur by attending meetings of the Board or otherwise.

 

 

4.9. Insuring Directors, Officers, and Employees. The Company may purchase and maintain insurance on behalf of any director, officer, employee, or agent of the Company, or on behalf of any person serving at the request of the Company as a director, officer, employee, or agent of another company, partnership, joint venture, trust, or other enterprise, against any liability asserted against that person and incurred by that person in any such company, whether or not the Company has the power to indemnify that person against liability for any of those acts.

 

4.10. Delegation of Authority. Notwithstanding any provision of these Bylaws to the contrary, the Board may delegate the powers or duties of any officer to any other officer or agent.

 

ARTICLE V.
MEETINGS OF DIRECTORS

 

5.1. Regular Meetings. The Board may hold regular meetings at such places, dates and times as the Board shall establish by resolution. If any day fixed for a meeting falls on a legal holiday, the Board shall hold the meeting at the same place and time on the next succeeding business day. The Board need not give notice of regular meetings.

 

5.2. Place of Meetings. The Board may hold any of its meetings in or out of the State of Texas, at such places as the Board may designate, at such places as the notice or waiver of notice of any such meeting may designate, or at such places as the persons calling the meeting may designate.

 

5.3. Meetings by Telecommunications or other Electronic Meetings. Unless otherwise restricted by the Articles of Incorporation or these Bylaws, meetings of the Board or of any committee designated by the Board may be held through the use of a conference telephone or similar communications equipment such as email, instant messaging or similar communication so long as all members participating in such meeting can communicate with one another at the time of such meeting. Participation in such a meeting constitutes presence in person at such meeting. Each person participating in the meeting, or a duly appointed Secretary of the meeting, who attended such meeting, shall sign the minutes thereof, which may be in counterparts. Approval of said meeting may be accomplished via email or fax.

 

5.4. Special Meetings. The Chairman of the Board (or if there is no Chairman, any member of the Board of Directors), the President (or any Vice President if the President is absent or unable or refuses to act), or any two directors then in office (not including the Chairman, if the Company has a Chairman) may call a special meeting of the Board. The person or persons authorized to call special meetings of the Board may fix any place, either in or out of the State of Texas as the place for the meeting.

 

 

5.5. Notice of Special Meetings. The person or persons calling a special meeting of the Board shall give written notice to each director of the time, place, date and purpose of the meeting of not less than three business days if by mail and not less than 24 hours if by facsimile (with confirmation of delivery), email or in person before the date of the meeting, or as otherwise provided by law. If mailed, notice is given on the date deposited in the United States mail, postage prepaid, to such director. If emailed, notice is given on the date the email is sent the member of the Board at his or her email address as it appears on the records of the Company. A director may waive notice of any special meeting, and any meeting shall constitute a legal meeting without notice if all the directors are present or if those not present sign either before or after the meeting a written waiver of notice, a consent to such meeting, or an approval of the minutes of the meeting. A notice or waiver of notice need not specify the purposes of the meeting or the business which the Board will transact at the meeting. Generally, a tentative agenda will be included, but the meeting shall not be confined to any agenda included with the notice.

 

Upon providing notice, the Secretary or other officer sending notice shall sign and file in the corporate records a statement of the details of the notice given to each director. If such statement should later not be found in the corporate records, due notice shall be presumed.

 

5.6. Waiver by Presence. Except when expressly for the purpose of objecting to the legality of a meeting, a director’s presence at a meeting shall constitute a waiver of notice of such meeting.

 

5.7. Quorum. A majority of the directors then in office shall constitute a quorum for all purposes at any meeting of the Board. In the absence of a quorum, a majority of directors present at any meeting may adjourn the meeting to another place, date or time without further notice. No proxies shall be given by directors to any person for purposes of voting or establishing a quorum at a directors’ meeting.

 

5.8. Conduct of Business. The Board shall transact business in such order and manner as the Board may determine. Except as the law requires otherwise, the Board shall determine all matters by the vote of a majority of the directors present at a meeting at which a quorum is present. The directors shall act as a Board, and the individual directors shall have no power as such. At every meeting of the Board of Directors, the Chairman of the Board, if there is such an officer, and if not, the President, or in the President’s absence, a Vice President designated by the President, or in the absence of such designation, a Chairman chosen by a majority of the directors present, shall preside. The Secretary of the Company shall act as Secretary of the Board of Directors’ meetings. When the Secretary is absent from any meeting or in the discretion of the Chairman, the Chairman may appoint any person to act as Secretary of that meeting.

 

 

5.9. Action by Consent. Unless otherwise restricted by the Certificate or these Bylaws, any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

5.10. Transactions with Interested Directors. Any contract or other transaction between the Company and any of its directors (or any corporation or firm in which any of its directors are directly or indirectly interested) shall be valid for all purposes notwithstanding the presence of that director at the meeting during which the contract or transaction was authorized, and notwithstanding the directors’ participation in that meeting. This Section shall apply only if the contract or transaction is just and reasonable to the Company at the time it is authorized and ratified, the interest of each director is known or disclosed to the Board of Directors, and the Board (or an authorized committee thereof) nevertheless authorizes or ratifies the contract or transaction by a majority of the disinterested directors present (or by authorized committee of the Board). Each interested director is to be counted in determining whether a quorum is present, but shall not vote and shall not be counted in calculating the majority necessary to carry the vote. This Section shall not be construed to invalidate contracts or transactions that would be valid in its absence.

 

ARTICLE VI.
COMMITTEES

 

6.1. Committees of the Board. The Board may designate, by a vote of a majority of the directors then in office, committees of the Board. The committees shall serve at the pleasure of the Board and shall possess such lawfully delegable powers and duties as the Board may confer.

 

6.2. Selection of Committee Members. The Board shall elect by a vote of a majority of the directors then in office a director or directors to serve as the member or members of a committee. By the same vote, the Board may designate other directors as alternate members who may replace any absent or disqualified member at any meeting of a committee. In the absence or disqualification of any member of any committee and any alternate member in his place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or they constitute a quorum, may appoint by unanimous vote another member of the Board to act at the meeting in the place of the absent or disqualified member.

 

 

6.3. Conduct of Business. Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as the law or these Bylaws require otherwise and except as the Board shall otherwise determine. Each committee shall make adequate provision for notice of all meetings to members. A majority of the members of the committee shall constitute a quorum, unless the committee consists of one or two members. In that event, one member shall constitute a quorum. A majority vote of the members present shall determine all matters. A committee may take action without a meeting if all the members of the committee consent in writing and file the consent or consents with the minutes of the proceedings of the committee.

 

6.4. Authority. Any committee, to the extent the Board provides, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company, and may authorize the affixation of the Company’s seal to all instruments which may require or permit it. However, no committee shall have any power or authority with regard to amending the Articles of Incorporation, adopting an agreement of merger or consolidation, recommending to the Stockholders the sale, lease or exchange of all or substantially all of the Company’s property and assets, recommending to the Stockholders a dissolution of the Company or a revocation of a dissolution of the Company, or amending these Bylaws of the Company. Unless a resolution of the Board expressly provides, no committee shall have the power or authority to declare a dividend, to authorize the issuance of stock, or to adopt a certificate of ownership and merger.

 

6.5. Minutes. Each committee shall keep regular minutes of its proceedings and report the same to the Board when required.

 

6.6. Committees. All Committees and all powers provided to such Committees shall be consistent with Texas Law, the Articles and the rules and regulations of the principal market or exchange on which the Company’s capital stock then trades.

 

ARTICLE VII.
OFFICERS

 

7.1. Officers of the Company. The officers of the Company shall consist of a Chief Executive Officer, President, a Secretary, a Treasurer and such Vice Presidents, a Chief Financial Officer, Assistant Secretaries, Assistant Treasurers, and other officers as the Board may designate and elect from time to time. The same person may hold at the same time any two or more offices.

 

7.2. Election and Term. The Board shall elect the officers of the Company. Each officer shall hold office until his death, resignation, retirement, removal or disqualification, or until his successor shall have been elected and qualified.

 

 

7.3. Compensation of Officers. The Board shall fix the compensation of all officers of the Company. No officer shall serve the Company in any other capacity and receive compensation, unless the Board authorizes the additional compensation.

 

7.4. Removal of Officers and Agents. The Board may remove any officer or agent it has elected or appointed at any time, with or without cause.

 

7.5. Resignation of Officers and Agents. Any officer or agent the Board has elected or appointed may resign at any time by giving written notice to the Board, the Chairman of the Board, the President, or the Secretary of the Company. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified. Unless otherwise specified in the notice, the Board need not accept the resignation to make it effective.

 

7.6. Bond. The Board may require by resolution any officer, agent, or employee of the Company to give bond to the Company, with sufficient sureties conditioned on the faithful performance of the duties of his respective office or agency. The Board also may require by resolution any officer, agent or employee to comply with such other conditions as the Board may require from time to time.

 

7.7. Chief Executive Officer. The Chief Executive Officer (CEO) shall be the chief operating officer of the Company and, subject to the Board’s control, shall supervise and direct all of the business and affairs of the Company. When present, he shall sign (with or without the Secretary, an Assistant Secretary, or any other officer or agent of the Company which the Board has authorized) deeds, mortgages, bonds, contracts or other instruments which the Board has authorized an officer or agent of the Company to execute. However, the Chief Executive Officer shall not sign any instrument which the law, these Bylaws, or the Board expressly require some other officer or agent of the Company to sign and execute. In general, the Chief Executive Officer shall perform all duties incident to the office of Chief Executive Officer and such other duties as the Board may prescribe from time to time.

 

7.8. President. Each President shall have such powers and duties as may be delegated to him or her by the Board. A President may be designated by the Board to perform the duties and exercise the powers of the CEO in the event of the CEO’s absence or disability. In the event the Company does not have a Chief Executive Officer, all of the powers of the CEO, as set forth in Section ‎7.7, above, shall be held by the President.

 

7.9. Vice Presidents. In the absence of the President or in the event of his death, inability or refusal to act, the Vice Presidents in the order of their length of service as Vice Presidents, unless the Board determines otherwise, shall perform the duties of the President. When acting as the President, a Vice President shall have all the powers and restrictions of the Presidency. A Vice President shall perform such other duties as the President or the Board may assign to him from time to time.

 

 

7.10. Chief Financial Officer. The Chief Financial Officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the Company, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares. The books of account shall at all reasonable times be open to inspection by any director.

 

The Chief Financial Officer shall deposit all money and other valuables in the name and to the credit of the Company with such depositories as the Board may designate. The Chief Financial Officer shall disburse the funds of the Company as may be ordered by the Board, shall render to the Chief Executive Officer or, in the absence of a Chief Executive Officer, any president and directors, whenever they request it, an account of all of his or her transactions as Chief Financial Officer and of the financial condition of the Company, and shall have other powers and perform such other duties as may be prescribed by the Board or these Bylaws.

 

The Chief Financial Officer may be the Treasurer of the Company.

 

7.11. Secretary. The Secretary shall (a) keep the minutes of the meetings of the Stockholders and of the Board in one or more books for that purpose, (b) give all notices which these Bylaws or the law requires, (c) serve as custodian of the records and seal of the Company, (d) affix the seal of the Company to all documents which the Board has authorized execution on behalf of the Company under seal, (e) maintain a register of the address of each Stockholder of the Company (unless maintained by a duly appointed Transfer Agent), (f) sign, with the President, a Vice President, or any other officer or agent of the Company which the Board has authorized, certificates for shares of the Company, (g) have charge of the stock transfer books of the Company, and (h) perform all duties which the President or the Board may assign to him from time to time.

 

7.12. Assistant Secretaries. In the absence of the Secretary or in the event of his death, inability or refusal to act, the Assistant Secretaries in the order of their length of service as Assistant Secretary, unless the Board determines otherwise, shall perform the duties of the Secretary. When acting as the Secretary, an Assistant Secretary shall have the powers and restrictions of the Secretary. An Assistant Secretary shall perform such other duties as the President, Secretary or Board may assign from time to time.

 

7.13. Treasurer. The Treasurer shall (a) have responsibility for all funds and securities of the Company, (b) receive and give receipts for moneys due and payable to the Company from any source whatsoever, (c) deposit all moneys in the name of the Company in depositories which the Board selects, and (d) perform all of the duties which the President or the Board may assign to him from time to time.

 

 

7.14. Assistant Treasurers. In the absence of the Treasurer or in the event of his death, inability or refusal to act, the Assistant Treasurers in the order of their length of service as Assistant Treasurer, unless the Board determines otherwise, shall perform the duties of the Treasurer. When acting as the Treasurer, an Assistant Treasurer shall have the powers and restrictions of the Treasurer. An Assistant Treasurer shall perform such other duties as the Treasurer, the President, or the Board may assign to him from time to time.

 

7.15. Other Officers. The Board may appoint, or empower the Chief Executive Officer, or any other duly appointed officer of the Company, to appoint, such other officers and agents as the business of the Company may require. Each of such officers and agents shall hold office for such period, have such authority, and perform such duties as are provided in these Bylaws or as the Board, Chief Executive Officer, or other designated officer may from time to time determine.

 

7.16. Delegation of Authority. Notwithstanding any provision of these Bylaws to the contrary, the Board may delegate the powers or duties of any officer to any other officer or agent.

 

7.17. Action with Respect to Securities of Other Corporations. Unless the Board directs otherwise, the Chief Executive Officer and President shall have the power to vote and otherwise act on behalf of the Company, in person or by proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other corporation in which the Company holds securities. Furthermore, unless the Board directs otherwise, the Executive Officer and President shall exercise any and all rights and powers which the Company possesses by reason of its ownership of securities in another corporation.

 

7.18. Vacancies. The Board may fill any vacancy in any office because of death, resignation, removal, disqualification or any other cause in the manner which these Bylaws prescribe for the regular appointment to such office.

 

ARTICLE VIII.
CONTRACTS, DRAFTS, DEPOSITS AND ACCOUNTS

 

8.1. Contracts. Except as otherwise provided in these Bylaws, the Board, or any officers of the corporation authorized thereby, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Company; such authority may be general or confined to specific instances.

 

 

8.2. Drafts. From time to time, the Board shall determine by resolution which person or persons may sign or endorse all checks, drafts, other orders for payment of money, notes or other evidences of indebtedness that are issued in the name of or payable to the corporation, and only the persons so authorized shall sign or endorse those instruments.

 

8.3. Deposits. The Treasurer shall deposit all funds of the Company not otherwise employed in such banks, trust companies, or other depositories as the Board may select or as any officer, assistant, agent or attorney of the Company to whom the Board has delegated such power may select. For the purpose of deposit and collection for the account of the Company, the President or the Treasurer (or any other officer, assistant, agent or attorney of the Company whom the Board has authorized) may endorse, assign and deliver checks, drafts and other orders for the payment of money payable to the order of the Company.

 

8.4. General and Special Bank Accounts. The Board may authorize the opening and keeping of general and special bank accounts with such banks, trust companies, or other depositories as the Board may select or as any officer, assistant, agent or attorney of the Company to whom the Board has delegated such power may select. The Board may make such special rules and regulations with respect to such bank accounts, not inconsistent with the provisions of these Bylaws, as it may deem expedient.

 

ARTICLE IX.

CERTIFICATES FOR SHARES AND THEIR TRANSFER

 

9.1. Certificates for Shares. Shares of the capital stock of the Company may be certificated or uncertificated, as provided under Texas Law. Each Stockholder, upon written request to the Transfer Agent or registrar of the Company, shall be entitled to a certificate of the capital stock of the Company in such form as may from time to time be prescribed by the Board of Directors. The Secretary, Transfer Agent, or registrar of the Company shall number the certificates representing shares of the stock of the Company in the order in which the Company issues them. The President or any Vice President and the Secretary or any Assistant Secretary shall sign the certificates in the name of the Company. Any or all certificates may contain facsimile signatures. In case any officer, Transfer Agent, or registrar who has signed a certificate, or whose facsimile signature appears on a certificate, ceases to serve as such officer, Transfer Agent, or registrar before the Company issues the certificate, the Company may issue the certificate with the same effect as though the person who signed such certificate, or whose facsimile signature appears on the certificate, was such officer, Transfer Agent, or registrar at the date of issue. The Secretary, Transfer Agent, or registrar of the Company shall keep a record in the stock transfer books of the Company of the names of the persons, firms or corporations owning the stock represented by the certificates, the number and class of shares represented by the certificates and the dates thereof and, in the case of cancellation, the dates of cancellation. The Secretary, Transfer Agent, or registrar of the Company shall cancel every certificate surrendered to the Company for exchange or transfer. Except in the case of a lost, destroyed, stolen or mutilated certificate, the Secretary, Transfer Agent, or registrar of the Company shall not issue a new certificate in exchange for an existing certificate until he has canceled the existing certificate.

 

 

9.2. Transfer of Shares. A holder of record of shares of the Company’s stock, or his attorney-in-fact authorized by power of attorney duly executed and filed with the Secretary, Transfer Agent or registrar of the Company, may transfer his shares only on the stock transfer books of the Company. Such person shall furnish to the Secretary, Transfer Agent, or registrar of the Company proper evidence of his authority to make the transfer and shall properly endorse and surrender for cancellation his existing certificate or certificates for such shares. Whenever a holder of record of shares of the Company’s stock makes a transfer of shares for collateral security, the Secretary, Transfer Agent, or registrar of the Company shall state such fact in the entry of transfer if the transferor and the transferee request. When a transfer of shares is requested and there is reasonable doubt as to the right of the person seeking the transfer, the Company or its Transfer Agent, before recording the transfer of the shares on its books or issuing any certificate there for, may require from the person seeking the transfer reasonable proof of that person’s right to the transfer. If there remains a reasonable doubt of the right to the transfer, the Company may refuse a transfer unless the person gives adequate security or a bond of indemnity executed by a corporate surety or by two individual sureties satisfactory to the Company as to form, amount, and responsibility of sureties. The bond shall be conditioned to protect the Company, its officers, Transfer Agents, and registrars, or any of them, against any loss, damage, expense, or other liability for the transfer or the issuance of a new certificate for shares.

 

9.3. Lost Certificates. The Board may direct the Secretary, Transfer Agent, or registrar of the Company to issue a new certificate to any holder of record of shares of the Company’s stock claiming that he has lost such certificate, or that someone has stolen, destroyed or mutilated such certificate, upon the receipt of an affidavit from such holder to such fact. When authorizing the issue of a new certificate, the Board, in its discretion may require as a condition precedent to the issuance that the owner of such certificate give the Company a bond of indemnity in such form and amount as the Board may direct.

 

9.4. Regulations. The Board may make such rules and regulations, not inconsistent with these Bylaws, as it deems expedient concerning the issue, transfer and registration of certificates for shares of the stock of the Company. The Board may appoint or authorize any officer or officers to appoint one or more Transfer Agents, or one or more registrars, and may require all certificates for stock to bear the signature or signatures of any of them.

 

 

9.5. Holder of Record. The Company may treat as absolute owners of shares the person in whose name the shares stand of record as if that person had full competency, capacity and authority to exercise all rights of ownership, despite any knowledge or notice to the contrary or any description indicating a representative, pledge or other fiduciary relation, or any reference to any other instrument or to the rights of any other person appearing upon its record or upon the share certificate. However, the Company may treat any person furnishing proof of his appointment as a fiduciary as if he were the holder of record of the shares.

 

9.6. Treasury Shares. Treasury shares of the Company shall consist of shares which the Company has issued and thereafter acquired but not canceled. Treasury shares shall not carry voting or dividend rights.

 

9.7. Consideration For Shares. Shares may be issued for such consideration as may be fixed from time to time by the Board of Directors, but not less than the par value stated in the Articles.

 

ARTICLE X.
INDEMNIFICATION

 

10.1. Definitions. In this Article:

 

(a) “Indemnitee” means (i) any present or former director, advisory director or officer of the Company, (ii) any person who while serving in any of the capacities referred to in clause (i) hereof served at the Company’s request as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, and (iii) any person nominated or designated by (or pursuant to authority granted by) the Board of Directors or any committee thereof to serve in any of the capacities referred to in clauses (i) or (ii) hereof.

 

(b) “Official Capacity” means (i) when used with respect to a director, the office of director of the Company, and (ii) when used with respect to a person other than a director, the elective or appointive office of the Company held by such person or the employment or agency relationship undertaken by such person on behalf of the Company, but in each case does not include service for any other foreign or domestic corporation or any partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise.

 

 

(c) “Proceeding” means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative, any appeal in such an action, suit or proceeding, and any inquiry or investigation that could lead to such an action, suit or proceeding.

 

10.2. Indemnification. The Company shall indemnify every Indemnitee against all judgments, penalties (including excise and similar taxes), fines, amounts paid in settlement and reasonable expenses actually incurred by the Indemnitee in connection with any Proceeding in which he was, is or is threatened to be named defendant or respondent, or in which he was or is a witness without being named a defendant or respondent, by reason, in whole or in part, of his serving or having served, or having been nominated or designated to serve, in any of the capacities referred to in Section ‎10.1, if it is determined in accordance with Section ‎10.4 that the Indemnitee (a) conducted himself in good faith, (b) reasonably believed, in the case of conduct in his Official Capacity, that his conduct was in the Company’s best interests and, in all other cases, that his conduct was at least not opposed to the Company’s best interests, and (c) in the case of any criminal proceeding, had no reasonable cause to believe that his conduct was unlawful; provided, however, that in the event that an Indemnitee is found liable to the Company or is found liable on the basis that personal benefit was improperly received by the Indemnitee the indemnification (i) is limited to reasonable expenses actually incurred by the Indemnitee in connection with the Proceeding and (ii) shall not be made in respect of any Proceeding in which the Indemnitee shall have been found liable for willful or intentional misconduct in the performance of his duty to the Company. Except as provided in the immediately preceding proviso to the first sentence of this Section ‎10.2, no indemnification shall be made under this Section ‎10.2 in respect of any Proceeding in which such Indemnitee shall have been (a) found liable on the basis that personal benefit was improperly received by him, whether or not the benefit resulted from an action taken in the Indemnitee’s Official Capacity, or (b) found liable to the Company. The termination of any Proceeding by judgment, order, settlement or conviction, or on a plea of nolo contendere or its equivalent, is not of itself determinative that the Indemnitee did not meet the requirements set forth in clauses (a), (b) or (c) in the first sentence of this Section ‎10.2. An Indemnitee shall be deemed to have been found liable in respect of any claim, issue or matter only after the Indemnitee shall have been so adjudged by a court of competent jurisdiction after exhaustion of all appeals therefrom. Reasonable expenses shall, include, without limitation, all court costs and all fees and disbursements of attorneys for the Indemnitee. The indemnification provided herein shall be applicable whether or not negligence or gross negligence of the Indemnitee is alleged or proven.

 

10.3. Successful Defense. Without limitation of Section ‎10.2 and in addition to the indemnification provided for in Section ‎10.2, the Company shall indemnify every Indemnitee against reasonable expenses incurred by such person in connection with any Proceeding in which he is a witness or a named defendant or respondent because he served in any of the capacities referred to in Section ‎10.1, if such person has been wholly successful, on the merits or otherwise, in defense of the Proceeding.

 

 

10.4. Determinations. Any indemnification under Section ‎10.2 (unless ordered by a court of competent jurisdiction) shall be made by the Company only upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct. Such determination shall be made (a) by the Board of Directors by a majority vote of a quorum consisting of directors who, at the time of such vote, are not named defendants or respondents in the Proceeding; (b) if such a quorum cannot be obtained, then by a majority vote of a committee of the Board of Directors, duly designated to act in the matter by a majority vote of all directors (in which designated directors who are named defendants or respondents in the Proceeding may participate), such committee to consist solely of two (2) or more directors who, at the time of the committee vote, are not named defendants or respondents in the Proceeding; (c) by special legal counsel selected by the Board of Directors or a committee thereof by vote as set forth in clauses (a) or (b) of this Section ‎10.4 or, if the requisite quorum of all of the directors cannot be obtained therefor and such committee cannot be established, by a majority vote of all of the directors (in which directors who are named defendants or respondents in the Proceeding may participate); or (d) by the shareholders in a vote that excludes the shares held by directors that are named defendants or respondents in the Proceeding. Determination as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination that indemnification is permissible is made by special legal counsel, determination as to reasonableness of expenses must be made in the manner specified in clause (c) of the preceding sentence for the selection of special legal counsel. In the event a determination is made under this Section ‎10.4 that the Indemnitee has met the applicable standard of conduct as to some matters but not as to others, amounts to be indemnified may be reasonably prorated.

 

10.5. Advancement of Expenses. Reasonable expenses (including court costs and attorneys’ fees) incurred by an Indemnitee who was or is a witness or was, is or is threatened to be made a named defendant or respondent in a Proceeding shall be paid by the Company at reasonable intervals in advance of the final disposition of such Proceeding, and without making any of the determinations specified in Section ‎10.4, after receipt by the Company of (a) a written affirmation by such Indemnitee of his good faith belief that he has met the standard of conduct necessary for indemnification by the Company under this Article and (b) a written undertaking by or on behalf of such Indemnitee to repay the amount paid or reimbursed by the Company if it shall ultimately be determined that he is not entitled to be indemnified by the Company as authorized in this Article. Such written undertaking shall be an unlimited obligation of the Indemnitee but need not be secured and it may be accepted without reference to financial ability to make repayment. Notwithstanding any other provision of this Article, the Company may pay or reimburse expenses incurred by an Indemnitee in connection with his appearance as a witness or other participation in a Proceeding at a time when he is not named a defendant or respondent in the Proceeding.

 

 

10.6. Employee Benefit Plans. For purposes of this Article, the Company shall be deemed to have requested an Indemnitee to serve an employee benefit plan whenever the performance by him of his duties to the Company also imposes duties on or otherwise involves services by him to the plan or participants or beneficiaries of the plan. Excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall be deemed fines. Action taken or omitted by an Indemnitee with respect to an employee benefit plan in the performance of his duties for a purpose reasonably believed by him to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Company.

 

10.7. Other Indemnification and Insurance. The indemnification provided by this Article shall (a) not be deemed exclusive of, or to preclude, any other rights to which those seeking indemnification may at any time be entitled under the Company’s Articles of Incorporation, any law, agreement or vote of shareholders or disinterested directors, or otherwise, or under any policy or policies of insurance purchased and maintained by the Company on behalf of any Indemnitee, both as to action in his Official Capacity and as to action in any other capacity, (b) continue as to a person who has ceased to be in the capacity by reason of which he was an Indemnitee with respect to matters arising during the period he was in such capacity, (c) inure to the benefit of the heirs, executors and administrators of such a person and (d) not be required if and to the extent that the person otherwise entitled to payment of such amounts hereunder has actually received payment therefor under any insurance policy, contract or otherwise.

 

10.8. Notice. Any indemnification of or advance of expenses to an Indemnitee in accordance with this Article shall be reported in writing to the shareholders of the Company with or before the notice or waiver of notice of the next shareholders’ meeting or with or before the next submission to shareholders of a consent to action without a meeting and, in any case, within the 12-month period immediately following the date of the indemnification or advance.

 

10.9. Construction. The indemnification provided by this Article shall be subject to all valid and applicable laws, including, without limitation, Texas Law, and, in the event this Article or any of the provisions hereof or the indemnification contemplated hereby are found to be inconsistent with or contrary to any such valid laws, the latter shall be deemed to control and this Article shall be regarded as modified accordingly, and, as so modified, to continue in full force and effect.

 

 

10.10. Continuing Offer, Reliance, etc. The provisions of this Article (a) are for the benefit of, and may be enforced by, each Indemnitee of the Company, the same as if set forth in their entirety in a written instrument duly executed and delivered by the Company and such Indemnitee and (b) constitute a continuing offer to all present and future Indemnitees. The Company, by its adoption of these Bylaws, (a) acknowledges and agrees that each Indemnitee of the Company has relied upon and will continue to rely upon the provisions of this Article in becoming, and serving in any of the capacities referred to in Section ‎10.1 of this Article, (b) waives reliance upon, and all notices of acceptance of, such provisions by such Indemnitees and (c) acknowledges and agrees that no present or future Indemnitee shall be prejudiced in his right to enforce the provisions of this Article in accordance with its terms by any act or failure to act on the part of the Company.

 

10.11. Effect of Amendment. No amendment, modification or repeal of this Article or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitees to be indemnified by the Company, nor the obligation of the Company to indemnify any such Indemnitees, under and in accordance with the provisions of the Article as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.

 

ARTICLE XI.

TAKEOVER OFFERS

 

11.1. Takeover Offers. In the event the Company receives a takeover offer, the Board of Directors shall consider all relevant factors in evaluating such offer, including, but not limited to, the terms of the offer, and the potential economic and social impact of such offer on the Company’s Stockholders, employees, customers, creditors and community in which it operates.

 

ARTICLE XII.

DIVIDENDS

 

12.1. General. The Board, subject to any restrictions contained in either (i) Texas Law, or (ii) the Articles, may declare and pay dividends upon the shares of its capital stock. Dividends may be paid in cash, in property, or in shares of the Company’s capital stock.

 

12.2. Dividend Reserve. The Board may set apart out of any of the funds of the Company available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve.

 

 

ARTICLE XIII.

NOTICES

 

13.1. General. Whenever these Bylaws require notice to any Stockholder, director, officer or agent, such notice does not mean personal notice. A person may give effective notice under these Bylaws in every case by depositing a writing in a post office or letter box in a postpaid, sealed wrapper, or by dispatching a prepaid telegram addressed to such Stockholder, director, officer or agent at his address on the books of the Company. Unless these Bylaws expressly provide to the contrary, the time when the person sends notice shall constitute the time of the giving of notice.

 

13.2. Waiver of Notice. Whenever the law or these Bylaws require notice, the person entitled to said notice may waive such notice in writing, either before or after the time stated therein.

 

13.3. Electronic Notice. Without limiting the manner by which notice otherwise may be given effectively to Stockholders pursuant to Texas Law, the Articles or these Bylaws, any notice to Stockholders given by the Company under any provision of Texas Law, the Articles or these Bylaws shall be effective if given by a form of electronic transmission consented to by the Stockholder to whom the notice is given. Any such consent shall be revocable by the Stockholder by written notice to the Company. Any such consent shall be deemed revoked if:

 

(i)

the Company is unable to deliver by electronic transmission two consecutive notices given by the Company in accordance with such consent; and

 

(ii)

such inability becomes known to the Secretary or an Assistant Secretary of the Company or to the Transfer Agent, or other person responsible for the giving of notice.

 

However, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.

 

Any notice given pursuant to the preceding paragraph shall be deemed given:

 

(i)

if by facsimile telecommunication, when directed to a number at which the Stockholder has consented to receive notice;

 

(ii)

if by electronic mail, when directed to an electronic mail address at which the Stockholder has consented to receive notice;

 

(iii)

if by a posting on an electronic network together with separate notice to the Stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and

 

(iv)

if by any other form of electronic transmission, when directed to the Stockholder.

 

 

An affidavit of the Secretary or an Assistant Secretary or of the Transfer Agent or other agent of the Company that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein. An “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

 

Notwithstanding the above, no notice by a form of electronic transmission shall be effective if prohibited by Texas Law, the Articles or these Bylaws.

 

13.4. Undeliverable Notices. Whenever notice is required to be given, under any provision of the Texas Law, the Articles or these Bylaws, to any Stockholder to whom (a) notice of two (2) consecutive annual meetings, or (b) all, and at least two (2) payments (if sent by first-class mail) of dividends or interest on securities during a twelve (12) month period, have been mailed addressed to such person at such person’s address as shown on the records of the Company and have been returned undeliverable, the giving of such notice to such person shall not be required. Any action or meeting which shall be taken or held without notice to such person shall have the same force and effect as if such notice had been duly given. If any such person shall deliver to the Company a written notice setting forth such person’s then current address, the requirement that notice be given to such person shall be reinstated. In the event that the action taken by the Company is such as to require the filing of an amendment to the Articles with the Secretary of State of Texas, the amendment need not state that notice was not given to persons to whom notice was not required to be given pursuant to Texas Law.

 

ARTICLE XIV.

MISCELLANEOUS

 

14.1. Facsimile Signatures. In addition to the use of facsimile signatures which these Bylaws specifically authorize, the Company may use such facsimile signatures of any officer or officers, agents or agent, of the Company as the Board or a committee of the Board may authorize.

 

14.2. Corporate Seal. The Board may provide for a suitable seal containing the name of the Company, of which the Secretary shall be in charge. The Treasurer, any Assistant Secretary, or any Assistant Treasurer may keep and use the seal or duplicates of the seal if and when the Board or a committee of the Board so directs.

 

14.3. Fiscal Year. The Board shall have the authority to fix and change the fiscal year of the Company.

 

 

14.4. Bylaw Provisions Additional and Supplemental to Provisions of Law. All restrictions, limitations, requirements and other provisions of these Bylaws shall be construed, insofar as possible, as supplemental and additional to all provisions of law applicable to the subject matter thereof and shall be fully complied with in addition to the said provisions of law unless such compliance shall be illegal.

 

14.5. Bylaw Provisions Contrary to or Inconsistent with Provisions of Law. Any article, section, subsection, subdivision, sentence, clause or phrase of these Bylaws which, upon being construed in the manner provided in Section ‎14.4 of these Bylaws, shall be contrary to or inconsistent with any applicable provision of law, shall not apply so long as said provisions of law shall remain in effect, but such result shall not affect the validity or applicability of any other portions of these Bylaws, it being hereby declared that these Bylaws, and each article, section, subsection, subdivision, sentence, clause, or phrase thereof, would have been adopted irrespective of the fact that any one or more articles, sections, subsections, subdivisions, sentences, clauses or phrases is or are illegal.

 

ARTICLE XV.
AMENDMENTS

 

15.1. Amendments. Subject to the provisions of the Articles, the Stockholders or the Board may amend or repeal these Bylaws at any Stockholders or directors meeting, subject to the voting and approval requirements of the shareholders and the directors, as applicable, set forth herein for general Company matters. All amendments shall be upon advice of counsel as to legality, except in emergency. Bylaw changes shall take effect upon adoption unless otherwise specified.

 

 

CERTIFICATE OF SECRETARY

 

The undersigned does hereby certify that he/she is the duly appointed Secretary of Mango & Peaches Corp., a corporation duly organized and existing under and by virtue of the laws of the State of Texas; that the above and foregoing Bylaws of said corporation were duly adopted as such by the Board of Directors and shareholders of the corporation, via a written consent to action without meeting of the Board of Directors and shareholders effective December 10, 2024, and that the above and foregoing Bylaws are now in full force and effect.

 

DATED THIS 10th day of December, 2024.
Signed:
Printed Name:	Jacob Cohen
Secretary

 

 

 

 

Exhibit 10.1

 

PATENT PURCHASE AGREEMENT

 

This PATENT PURCHASE AGREEMENT (“Agreement”) is entered into and made effective as of this 13^th day of December 2024 (“Effective Date”) by and between Mangoceuticals, Inc., a Texas corporation with a place of business at 15110 Dallas Parkway, Suite 600, Dallas, TX 75248 (“Purchaser”), and Greenfield Investments, Ltd, a Turks and Caicos limited company, with a place of business at Suites A201& A202 (Upstairs), Regent Village East, Grace Bay, Providenciales, Turks and Caicos Islands (“Seller”) (each of Seller and Purchaser is defined herein as a “Party”, and collectively referred to as the “Parties”).

 

WITNESSETH:

 

WHEREAS, Seller owns certain patents and patent applications set forth in Exhibit A hereto; and

 

WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to sell and assign to Purchaser, such patents and patent applications set forth in Exhibit A hereto, on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the premises and of the mutual covenants set forth herein, the sufficiency and receipt of which the Parties hereby acknowledge, the Parties, intending to be legally bound, hereby agree as follows:

 

ARTICLE I

DEFINITIONS

 

1.1 Capitalized Terms. In addition to those terms defined in the body of this Agreement, the following capitalized terms shall have the meanings set forth below:

 

(a) “Affiliate” means a legal entity that Controls, is Controlled by, or is under common Control with a Party. Such legal entity shall constitute an Affiliate of the Party only when and for so long as the Control exists.

 

(b) “Assigned Patents” means each of the following, whether or not pending, issued, expired, abandoned or closed: (a) the Patents listed on Exhibit A (“Listed Patents”), attached hereto and incorporated herein, (b) any and all Patents that are part of the same Patent Families as the Listed Patents, (c) any and all of the inventions, invention disclosures, and discoveries existing as of the Effective Date to the extent disclosed or claimed in subitems (a) and (b) above, and (d) any rights of priority created by such Patents under any treaty relating thereto.

 

(c) “Assignment Agreements” means any executed agreements assigning, changing, confirming or correcting ownership (including without limitation original patent assignment agreements) of any part, portion or all rights in the Assigned Patents from the Inventor(s) and/or any prior owner to any prior owner or Seller.

 

(d) “Bona Fide Owned and Controlled” means for the purpose of a design that ownership and control was not transferred or provided for purposes of providing a license to cover an offering of a third party under the licenses granted herein.

 

(e) “Change of Control” means (a) any transaction or series of transactions whereby any person or entity directly or indirectly acquires Control of another person or entity; or (b) the consummation (whether directly or indirectly through one or more intermediaries) of a sale or other disposition of all or substantially all of another person’s or entity’s assets in any single transaction or series of related transactions.

 

 

(f) “Control” (including the correlative meanings of the terms “Controls”, “Controlled by” and “under common Control with”) means the direct or indirect ownership of more than fifty percent (50%) of an entity, or the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person or an entity, whether through the ability to exercise voting power, by contract or otherwise.

 

(g) “Disclaimer Issue” means a terminal disclaimer (including under 35 U.S.C. Sec. 253 or 37 CFR 1.321 or the equivalent laws or regulation of any other patent authority) that exists or is or should reasonably be required to be made in a patent or patent application to address a double patenting issue, including such an issue raised in a judicial or administrative proceeding (including any proceeding with the U.S. Patent and Trademark Office or any corresponding foreign patent authority).

 

(h) “Encumbrance” means with respect to any of the Assigned Patents, any mortgage, lien, pledge, charge, Commitment, security interest, express or implied license, Grant, judgment, stipulation, court order or decree, or other restriction regarding transfer or licensing, or any other commitment to a third party which would result in any such Encumbrance whether currently existing or arising in the future.

 

(i) “Governmental Entity” means any court, administrative agency or commission or other federal, state, county, local or foreign governmental authority, instrumentality, agency commission or subdivision thereof, including but not limited to the U.S. Patent and Trademark Office (“PTO”) and the European Patent Office (“EPO”).

 

(j) “Grant” means a license, waiver of any rights of enforcement (including but not limited to any covenant not to sue, covenant not to assert, or standstill agreement), release of any claim, or other grant of any right.

 

(k) “Grant Back License” has the meaning set forth in Section 2.3.

 

(l) “Importation Information” means an electronic file provided by Seller, in the form provided by Purchaser, containing certain information requested by Purchaser regarding the Assigned Patents.

 

(m) “including” means including without limitation.

 

(n) “Inventor” means each of the named inventors of each of the Assigned Patents as well as any inventor who should be or should have been named on each of the Assigned Patents.

 

(o) “or” means “and/or”.

 

 

(p) “Patent Documents” means (i) all prosecution files (physical and electronic) and docket reports (capturing a time period no shorter than ninety (90) days following the Effective Date) for all of the Assigned Patents in the possession or control of Seller, its counsel or its agents; (ii) all Assignment Agreements; (iii) all documents, records and files in the possession or control of Seller, its counsel or its agents (and including any and all of each Inventor) with respect to (A) the conception and reduction to practice (and diligence in reduction to practice) of the inventions of any of the Assigned Patents, (B) the disclosure of, acquisition, prosecution, registration, reissuance, correction, enforcement, defense, and maintenance of the Assigned Patents (including without limitation ribbon copies of any letters patent), (C) Seller’s marking activities and program(s) with respect to the Assigned Patents, and (D) Seller’s licensing or sales activities with respect to the Assigned Patents; and (iv) all other material documentation or information in the possession or control of Seller, its counsel or its agents related to the Assigned Patents. Notwithstanding the foregoing, Patent Documents shall exclude any documents or information in clauses (i) - (iv) of this Section which are subject to the doctrines of attorney-client privilege, attorney work-product, joint defense, common interest and/or any other applicable privilege or immunity (collectively, “Common Interest Privilege”) if providing such documents or information to Purchaser cannot be accomplished in a manner that protects such Common Interest Privilege.

 

(q) “Patent Family” means a set comprised of all Patents (a) that are linked or entitled to be linked through one or more claims of benefit or priority pursuant to 35 U.S.C. §§ 120 or 119 (or the equivalent laws or regulation of any other patent authority) or by a terminal disclaimer pursuant to 35 U.S.C. § 253 or 37 CFR § 1.321 (or the equivalent laws or regulation of any other patent authority) or (b) that are, or are entitled to be, foreign counterparts, reissues, divisionals, extensions, continuations or continuations-in-part with respect to any other Patent in such set.

 

(r) “Patents” means any United States, foreign or international patents and patent applications, patents and patent applications resulting or issuing therefrom, certificates of invention, utility models or any other grants by any Governmental Entity for the protection of inventions, including all non-provisionals, provisional, reissues, divisionals, continuations, continuations-in-part, re-examinations and extensions of any of the foregoing; provided, however, that when the term “Patent” is used in the context of, or to refer to, a particular patent or patent application, or a patent or patent application on a schedule, the term shall mean only that particular patent or patent application, as the case may be.

 

(s) “Seller Product” means any product associated with the Assigned Patents, which as of the Effective Date, meets all of the following: (i) the design of the product is Bona Fide Owned and Controlled by Seller, is sold by the Seller, or in development with the intention by Seller to commercialize, and (ii) in the absence of a license or other authorization, the product would infringe one or more of the Assigned Patents.

 

(t) “Subsidiary” means a legal entity that is Controlled by a Party. Such legal entity shall constitute a Subsidiary of the Party only when and for so long as the Control exists.

 

(u) “Transfer Documents” means the fully executed patent transfer documents, in a form approved by Purchaser suitable for filing with the relevant Governmental Authority, in each jurisdiction where the Assigned Patents issued from or have been filed, as the case may be, in each case to record the change of ownership of the Assigned Patents from Seller to Purchaser. Unless otherwise directed by Purchaser, Transfer Documents for U.S. Assigned Patents shall be as provided in the form of Exhibit B (“Patent Assignment”).

 

 

ARTICLE II

TRANSFER OF ASSIGNED PATENTS AND COOPERATION

 

2.1 Initial Transfer. Effective as of the Effective Date, Seller hereby irrevocably sells, transfers, conveys and assigns, and shall cause its Affiliates to irrevocably sell, transfer, convey and assign, to Purchaser (or its designee, as to any or all of the Assigned Patents), and Purchaser hereby acquires from Seller or its Affiliates, all right, title and interest in and to (i) all Assigned Patents, including without limitation the right to sue, license and collect and receive all income, royalties, damages, payments due, injunctive relief and any other settlements or remedies (including, without limitation, causes of action and rights to damages and payments for past, present or future infringements or misappropriations) with respect thereto, in each case, in all countries relating to the Assigned Patents and (ii) the Patent Documents and rights (including copyrights) with respect thereto. The Parties understand and agree that no license agreements or other contracts, obligations or other liabilities of Seller, Seller’s Affiliates or prior owners, whether listed in Exhibit C of this Agreement or not, are assigned, delegated or otherwise transferred to or assumed by Purchaser hereunder, whether expressly, by implication, by reason of estoppel or otherwise.

 

(a) Additional Transfers.

 

1. To the extent all right, title and interest in and to any Assigned Patent is not transferred pursuant to Section 2.1 (Initial Transfer) for whatever reason, Seller hereby irrevocably sells, transfers, conveys and assigns to Purchaser, and shall cause its Affiliates to irrevocably sell, transfer, convey and assign, and Purchaser hereby acquires from Seller or its Affiliates, all right, title and interest in and to such Assigned Patent in accordance with the terms of this Agreement, including the right to sue, license and collect and receive all income, royalties, damages, payments due, injunctive relief and any other settlements or remedies (including, without limitation, causes of action and rights to damages and payments for past, present or future infringements or misappropriations) with respect thereto, effective as of the Effective Date.

 

2. If, after the Effective Date, any Assigned Patent is subject to a Disclaimer Issue linking it to a Patent of Seller, Seller shall, without additional consideration, nunc pro tunc transfer and does hereby convey as of the Effective Date (to the extent not previously effectively assigned by Seller to Purchaser pursuant to Section 2.1), ownership of such Seller Patent to Purchaser and such Patent shall be considered an Assigned Patent hereunder.

 

(b) Undisclosed Patents. If at any time it is determined that a Patent (including patent applications, regardless of status) exists or existed that is part of the same Patent Family corresponding to one or more of the Assigned Patents and such Patent was not identified as an Assigned Patent, then, in addition to any other remedies Purchaser may have under this Agreement, Seller shall upon notice from Purchaser promptly assign such Patent (and any Patents that may have issued therefrom) to Purchaser.

 

2.2 Delivery. On the Effective Date, Seller shall have delivered to Purchaser the following:

 

(a) All Transfer Documents, fully executed and notarized where appropriate;

 

(b) Electronic copies of the prosecution files, docket reports and Assignment Agreements referred to in clauses (i) and (ii) of the definition of Patent Documents; and

 

(c) The Importation Information.

 

 

2.3 Grant Back License.

 

(a) Subject to the terms of this Section 2.3, and effective as of the Effective Date, Purchaser hereby grants back to Seller and each of its Subsidiaries (but only as long as such Subsidiary is and remains a Subsidiary of Seller), an irrevocable, Co-Exclusive (defined in Section 2.3(b)((3) below), non-transferable and non-assignable (except in the event of a Change of Control as set forth below), non-sublicensable, worldwide, license under the Assigned Patents and for the lives thereof, to make, have made (to the extent substantially designed by Seller or its Subsidiaries), import, use, offer to sell, sell and otherwise dispose of Seller Products to any third party. The license and rights set forth in this Section 2.3 shall apply only to the Assigned Patents assigned by Seller to Purchaser under this Agreement and shall not apply to any other Patents of Purchaser or any of its Affiliates, whether by implication, estoppel or otherwise (the “Grant Back License”). The Grant Back License, as to any Affiliate of Seller, will terminate as to such Affiliate if and when such Affiliate ceases to meet the requirements of being an Affiliate of Seller.

 

(b) Further Limitations on Grant Back License.

 

1. The Grant Back License from Purchaser to Seller and its Subsidiaries is expressly set forth in Section 2.3 above and no other licenses, authorizations or rights are granted or conveyed, whether expressly or by implication or otherwise, all of which are expressly disclaimed.

 

2. Notwithstanding anything to the contrary, the Grant Back License of Section 2.3: (i) excludes the right to grant sublicenses; (ii) is non-transferable and non-assignable (except in the event of a Change of Control as set forth below)(by operation of law or otherwise); (iii) excludes the right to further place any Encumbrance on the Assigned Patents; (iv) excludes any covenant, license (except for the grants expressly set forth in Section 2.3(a) above), authorization, or other right, express or implied or by estoppel or otherwise, to make, have made, import, use, offer to sell, sell and otherwise dispose of any products other than Seller Products (even if such products are used in combination with Seller Products as described and limited by Section 2.3); (v) does not include the right under any Assigned Patent to manufacture or have manufactured products or Seller Products as a foundry or contract manufacturer for a third party, or to otherwise manufacture, sell, or otherwise distribute products or Seller Products for or on behalf of any third parties, or to otherwise sell, lease or transfer any product without material modification back to the same supplier or customer or an affiliate thereof; and (vi) shall not be deemed or construed to grant, make or constitute any license, covenant, immunity, authorization or right, whether by implication, estoppel, acquiescence, reliance or otherwise, with respect to any activities that Seller undertakes for or on behalf of any third party where the purpose of such third party choosing Seller is obtaining rights under one or more Assigned Patents (i.e., patent laundering). In the event of a Change of Control, Seller’s successor-in-interest shall continue to hold the license granted under Section 2.3, but only as it relates to Seller Products in existence as of the time of such Change of Control, as may carry the trademark, service mark or brand name of such successor-in-interest, and to successor versions of such Seller Products designed by or for such successor-in-interest.

 

3. Co-Exclusive License. Purchaser and Seller acknowledge and agree that the licenses granted herein permit both Purchaser and Seller and their respective Subsidiaries to sell or distribute through dealers or sell direct to end-users, without requirement for any additional license to the Assigned Patents, any product which is made by, made for (by a contract manufacturer), used by, designed by, or sold by such Party or its Subsidiaries (“Co-Exclusive License”), subject to the Royalty Payments of Section 2.3(b)(4) below to be paid by Seller to Purchaser.

 

 

4. Royalty Payments. Seller agrees to pay Purchaser a royalty of ten percent (10%) of gross worldwide sales of Seller Products, which shall go into effect on the first anniversary of the Effective Date and extend throughout the life of the last to expire of the Assigned Patents (the “Royalty Payments”). The Royalty Payments shall be paid to the Purchaser on an annual basis, within 30 days after the end of the calendar year. Seller further agrees to maintain complete and accurate books and records at its principal office, which may be inspected by Purchaser during normal operating hours (unless otherwise agreed by the Parties) upon reasonable notice during the term of the Grant Back License and two (2) years thereafter. For the avoidance of doubt, the Royalty Payments shall not be applicable to, and the Seller shall not owe any Royalty Payments, on any sales of products by Seller, other than the making, using, selling and offering for sale of Seller Products by Seller and/or any permitted sub-licensees, if any.

 

5. First Right of Refusal. At any time after a period of three (3) years from the Effective Date, the Seller shall have a first right of refusal with respect to the acquisition of the Assigned Patents. In the event that the Purchaser receives an offer to purchase the Assigned Patents and the Purchaser in its sole discretion determines to accept such offer, Purchaser will notify Seller in writing of the existence and terms of such offer in writing within five (5) days of Purchaser’s determination to accept such offer. Seller shall then have thirty (30) days to exercise its right of first refusal to purchase the Assigned Patents either at the same price and on the same terms as contained in such offer or at a price mutually agreed upon by both Purchaser and Seller (the “Offer Terms”). In the event that Seller elects not to exercise its rights under this Section 2.3(b)(5) to purchase the Assigned Patents or fails to timely respond to the Offer Terms, Purchaser may sell the Patents to the offering party on the Offer Terms, subject to the License set forth herein. In the event the offering party does not purchase the Assigned Patents on the Offer Terms then Seller’s rights of first refusal pursuant to this Section 2.3(b)(5) shall continue to apply to the Assigned Patents. The rights of Seller under this Section 2.3(b)(5) shall apply with respect to each proposed sale of the Assigned Patents to any third party by Purchaser.

 

6. Assumption of Rights. Purchaser agrees and covenants that it will not sell, transfer or assign to a third party (“Buyer”) any of its intellectual property or property rights in the Assigned Patents (i) without honoring the First Right of Refusal of Section 2.4(b)(5) above, or (ii) without obligating such Buyer to honor all rights of Purchaser under this Agreement with respect to such intellectual property rights and securing such Buyer’s assumption of all obligations of Purchaser to Seller under this Agreement with respect to such intellectual property rights.

 

 

2.4 Further Assurances.

 

(a) Further Cooperation.

 

i. Seller shall, and Seller shall direct its Affiliates and its and their employees (including all employed Inventors) to, fully cooperate with and assist Purchaser and any successor, its counsel and similar agents in securing the Purchaser’s rights in the Assigned Patents in any and all countries and in the enforcement, prosecution and maintenance of the Assigned Patents without additional consideration, including facilitating the cooperation of the Inventors (whether employed by Seller or not). Without limiting the generality of the foregoing, following the Effective Date, Seller agrees that its cooperation and assistance hereunder will include (if requested by Purchaser), without limitation, (a) the full disclosure to Purchaser of all pertinent factual or other information and data reasonably available to Seller, including providing contact information for Inventors, (b) the execution of all applications, specifications, papers, documents, oaths, assignments, declarations, affidavits and all other instruments which Purchaser shall request as may be necessary and proper to obtain and vest such rights and in order to assign and convey to Purchaser, its successors, assigns, and nominees the sole and exclusive right, title and interest in and to the Assigned Patents and otherwise completely effect consummation of the transactions contemplated by this Agreement, (c) making factual witnesses available upon the reasonable request of Purchaser and participation in any litigation defenses including the giving of testimony in any suit, legal action, hearing, investigation, or other proceeding relating to the Assigned Patents, (d) if requested by Purchaser, joinder as a necessary party plaintiff or in another capacity reasonably requested by Purchaser, and (e) reasonably cooperating with and assisting Purchaser, in any legal or equitable action, litigation, arbitration or other legal, regulatory or administrative proceeding regarding any of the Assigned Patents or the scope, infringement or validity thereof (“Patent Proceeding”), including, without limitation, enforcement of any of the Assigned Patents against potential infringers in any court proceeding or before the International Trade Commission (ITC) and proceedings regarding any of the Assigned Patents before the PTO, EPO or any other similar agency; provided, however, that Purchaser shall have sole control and discretion over any and all such Patent Proceedings and any settlement thereof, and the exclusive right to receive, retain and enforce all damages, awards, and other remedies of any kind in connection with any such Patent Proceeding, or (f) the performance of any other acts as may be necessary and proper to vest full title and transfer all rights and interest in and to the Assigned Patents in Purchaser (or its designee) and otherwise completely effect consummation of the transactions contemplated by this Agreement. With respect to items (c), (d) and (e) of this paragraph, Purchaser will reimburse Seller for all preapproved, reasonable, out-of-pocket costs incurred in connection with providing the assistance and cooperation requested by Purchaser hereunder, and Purchaser shall reimburse Seller, its employees, attorneys, agents and inventors at a reasonable hourly rate mutually agreed upon by the Parties for time spent in connection with providing assistance or cooperation requested by Purchaser hereunder, with respect to all other subsections of this Agreement, Seller shall pay all out-of-pocket costs and expenses and Purchaser shall not be required to reimburse Sellers for such amounts.

 

ii. Within thirty (30) days following the Effective Date, Seller shall provide to Purchaser or its designee all Patent Documents. For the avoidance of doubt, the obligations set forth in this Section are in addition to, and not intended to replace or contradict, the obligations set forth in Section 2.2(b).

 

 

iii. Seller agrees to provide Purchaser on or before the Effective Date any and all information required to create an implementation plan that defines the various activities and/or due dates for responses and/or payments in any of the Assigned Patents that are due and/or payable within ninety (90) days of the Effective Date, including (but not limited to) a global docket report for all Assigned Patents, and a schedule of international annuity payments and/or US maintenance fees due for the Assigned Patents (“Implementation Plan”). Within five (5) business days following the Effective Date, Seller shall, at Seller’s expense, notify all foreign and domestic counsel identified in the Implementation Plan that the Assigned Patents have been transferred to Purchaser (or Purchaser’s designee) as of the Effective Date and direct such counsel to (i) digitize and electronically transfer all Patent Documents to Purchaser (or Purchaser’s agent) within thirty (30) days of such notification, (ii) ship all physical Patent Documents to a location specified by Purchaser within thirty (30) days of such notification, (iii) provide Purchaser with a manifest and tracking number for all materials shipped to Purchaser, (iv) send Purchaser a copy of all notices regarding the Assigned Patents which it receives, and (v) satisfy any reasonable information requests by Purchaser (at Seller’s expense) and otherwise take direction from Purchaser with respect to the Assigned Patents. For the avoidance of doubt, the obligations set forth in this Section are in addition to, and not intended to replace or contradict, the obligations set forth in Section 2.2(b).

 

iv. Seller shall, on or before the Effective Date, pay all maintenance, annuity, renewal and issuance fees and the like with respect to the Assigned Patents that are due and payable prior to the end of the ninety (90) day period following the Effective Date.

 

(b) Limited Power of Attorney. Seller hereby irrevocably constitutes and appoints Purchaser, with full power of substitution, to be its true and lawful attorney, and in its name, place or stead, to execute, acknowledge, swear to and file, all applications, specifications, papers, documents, oaths, assignments, declarations, affidavits and all other instruments, and to take any action which shall be necessary, appropriate or desirable to effectuate the transfer, or prosecution of the Assigned Patents in accordance with the terms of this Agreement; provided, however, that such power shall be exercised by the Purchaser only in the event that Seller fails to take the necessary actions required hereunder to effect or record such transfer, or prosecution of such Assigned Patents within thirty (30) days of Purchaser’s reasonable request, or ten (10) days prior to the deadline for taking the required action if earlier. This power of attorney shall be deemed to be coupled with an interest and shall be irrevocable until the Assigned Patents are purchased by or otherwise returned to Seller or a third-party.

 

(c) Additional Releases. To the extent any Assigned Patents have any liens or security interests upon them after the Effective Date in violation of Section 4.12, without limiting Seller’s other obligations hereunder, Seller shall promptly seek, obtain and record from its lenders or other third party the release of any liens or security interest that they may have on any of the Assigned Patents, including any liens on any Patent that is determined to be an Assigned Patent but that was not an Assigned Patent as of the Effective Date and Seller hereby waives any remedies with respect to the release of any such liens or security interests.

 

(d) Common Interest Privileged Information. Seller shall: (a) use best efforts to maintain common interest privilege with respect to all materials or information protected under a common interest privilege (“Privileged Information”) existing as of the Effective Date that relates to the Assigned Patents; and (b) provide Purchaser with at least thirty (30) days prior written notice before disclosing to any third party, or waiving any such common interest privilege with respect to, any such Privileged Information. In the event that Seller subsequently waives a common interest privilege with respect to Privileged Information related to the Assigned Patents, Seller shall also provide such Privileged Information to Purchaser. Upon Purchaser’s request following the Effective Date, Seller and Purchaser shall negotiate and enter into a common interest agreement under which Seller may have access to, while preserving the common interest privilege thereof, Privileged Information that Purchaser believes necessary for Purchaser’s licensing or enforcement of the Assigned Patents, at no additional cost to Purchaser other than Seller’s reasonable out-of-pocket expenses incurred in the course of fulfilling its obligations under such agreement.

 

(e) Conduct. Seller shall not engage in any act or conduct, or omit to perform any necessary act, the result of which would invalidate any portion of any of the Assigned Patents or render any portion of them unenforceable.

 

 

(f) Patent Maintenance, Enforcement, and Licensing. After the Effective Date, Purchaser shall have the sole right, but not the obligation, to prosecute, maintain, enforce, license, and take any other actions with respect to the Assigned Patents in its sole discretion.

 

ARTICLE III PAYMENT AND TAXES

 

3.1 Payment. Upon the terms and subject to the conditions of this Agreement (including, without limitation, Seller’s compliance with Section 2.2), in full payment for the sale, conveyance, assignment, transfer and delivery of the Assigned Patents and all rights thereto, Purchaser agrees to remit to Seller a sum equal to 515,000 shares of the Company’s restricted Common Stock (the “Purchase Price”).

 

3.2 Transfer Taxes. Seller shall be solely responsible for the payment of, and shall pay when due, any federal, state, local, foreign or other tax, duty, levy, impost, fee, assessment or other governmental charge, including without limitation income, gross receipts, business, occupation, sales, stamp, value-added, excise (or similar transfer taxes), use, or other tax of any kind whatsoever and any premium, together with any interest, penalties, surcharges, fines and additions attributable to or imposed with respect to the foregoing (collectively “Taxes”) that may be payable in connection with the sale or purchase of the Assigned Patents and Seller shall indemnify Purchaser against any such Taxes as provided in Section 6.2 (Indemnification).

 

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF SELLER

 

Seller hereby represents and warrants to Purchaser, as of the Effective Date, the following:

 

4.1 Corporate Organization. Seller is a corporation duly organized, validly existing and in good standing under the respective laws of its jurisdiction of incorporation, is duly qualified and is in good standing under the laws of each jurisdiction in which the character of the properties and assets now owned or held by it or the nature of the business now conducted by it requires it to be so licensed or qualified. Seller has full corporate power and authority to carry on its business as now being conducted.

 

4.2 Authority. Seller has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement by Seller and the performance by Seller of its obligations hereunder have been duly authorized by all necessary corporate action. This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller, enforceable against it in accordance with its terms and, as to enforcement, to general principles of equity, regardless of whether applied in a proceeding at law or in equity.

 

4.3 No Conflict; No Consents. The execution and delivery of this Agreement and the performance of the obligations of Seller hereunder will not (i) violate or be in conflict with any provision of law, any order, rule or regulation of any court or other agency of government, or any provision of Seller’s articles of incorporation or bylaws, (ii) violate, be in conflict with, result in a breach of, constitute (with or without notice or lapse of time or both) a default under, or result in the acceleration of any obligations under, any indenture, agreement, lease or other instrument to which Seller is a party or by which it or any of its properties are bound, or (iii) result in the creation or imposition of any Encumbrance upon any of the Assigned Patents. No consent, approval or authorization of or declaration or filing with any Governmental Entity or other person or entity on the part of Seller is required in connection with the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby.

 

 

4.4 List of Assigned Patents. Exhibit A sets forth a true, accurate and complete list of Assigned Patents and for each such Patent, the title, the Inventors’ names, the Patent number or serial number (as applicable), the filing date or issue date, the country in which the relevant Patent has been issued or applied for.

 

4.5 Prosecution. Each Assigned Patent has been prosecuted in compliance with the rules and processes of the United States Patent and Trademark Office (or the equivalent rules or processes of any other applicable patent authority anywhere in the world) and all applications for the Assigned Patents are true and correct in all material respects, including with respect to inventorship. To the extent “small entity” fees were paid to the United States Patent and Trademark Office for any Patent, such reduced fees were then appropriate because the payor qualified to pay “small entity” fees at the time of such payment in accordance with applicable law.

 

4.6 Assignment Agreements. For each Assigned Patent, Seller has obtained one or more Assignment Agreements which collectively assign all rights in such Patents to Seller. Seller has properly recorded all such previously executed Assignment Agreements with respect to the Assigned Patents as necessary to fully perfect its rights and title therein in accordance with governing laws and regulations in each respective jurisdiction.

 

4.7 Public Use, Disclosure or Sale. For each Assigned Patent, no acts or omissions of Seller, or any party acting on behalf of or at the direction of Seller, have or shall invalidate or hinder enforcement of such Patent under the laws of any jurisdiction (including under 35 U.S.C. §102(b)) including as a result of (i) disclosure of the invention or a printed publication that describes the claimed invention, (ii) public use of the claimed invention, or (iii) sale or offer for sale of the claimed invention prior to the application for such Patent.

 

4.8 Knowledge of Invalidity. None of the Assigned Patents has ever been found invalid or unenforceable for any reason in any administrative, arbitration, judicial or other proceeding, and Seller does not know of and has not received any notice or information of any kind from any source suggesting that the Assigned Patents may be invalid or unenforceable. To Seller’s Knowledge (as defined below), none of the Assigned Patents is invalid or unenforceable, nor is Seller aware of any facts or circumstances that would render any Assigned Patent invalid or unenforceable.

 

4.9 Ownership and Encumbrances.

 

(a) Seller is the sole legal and beneficial owner of all right, title and interest, and has valid title, to all the Assigned Patents (including all rights to sue and collect damages for past, present and future infringement), free and clear of any Encumbrances, except as set forth in Exhibit C (“Encumbrances”), attached hereto and incorporated herein. Except as set forth in Exhibit C, upon transfer of the Assigned Patents from Seller to Purchaser hereunder, none of the Assigned Patents will be subject to any restrictions with respect to the transfer or licensing of such Patents or is subject, or will be subject, to any Encumbrance as a result of any facts, circumstances or agreements existing before the Effective Date. To the extent any exceptions to the foregoing are listed on Exhibit C, such exhibit includes a complete and accurate list and description of all Encumbrances, including, but not limited to, any relevant dates and parties.

 

 

(b) The Assigned Patents are not subject to any exclusive Grant to a third party.

 

(c) Except as set forth on Exhibit C, Purchaser will not be subject to any covenant not to sue, license or other similar restriction on its enforcement or enjoyment of the Assigned Patents as a result of any prior transaction related to the Assigned Patents.

 

(d) Seller has provided Purchaser with complete copies of all documentation reflecting the Encumbrances identified in Exhibit C and all such copies are complete in all material respects and no information has been deleted, omitted or redacted from such copies.

 

(e) Except for Purchaser, there are no existing contracts, agreements, options, commitments, proposals, bids, offers, or rights with, to, or in any person to acquire any of the Assigned Patents.

 

(f) As of the Effective Date, none of Seller, except as expressly set forth in Section 2.3 above, any prior owner of the Assigned Patents, or any Inventor will have any right or interest in and to any of the Assigned Patents.

 

(g) Any Grant currently in effect with respect to the Assigned Patents does not provide sublicensing rights.

 

4.10 Standards Bodies.

 

(a) Seller has (i) listed on Exhibit D (“Standards”), attached hereto and incorporated herein, (A) any standards body, patent pool, or similar formal or informal organization (“Standards Body”) that Seller or its Affiliates have participated with, been affiliated with, or have been a member of; (B) any commitments to, offers made to, or agreements with (“Commitments”) such Standards Bodies applicable to any Assigned Patent, and the terms of such Commitments; and (C) the Assigned Patents applicable to such Commitments; and (ii) provided Purchaser with complete copies of all documentation with respect to Seller’s Commitments, and all such copies and documentation are complete in all material respects, and no information has been deleted, omitted or redacted from such copies and documentation.

 

(b) Seller is in compliance with the requirements of all Standards Bodies, and has not made any (i) Commitments to any Standards Bodies, to any entities, or to the public, to license or grant any rights with respect to any of the Assigned Patents (including any Commitment to license any of the Assigned Patents on a royalty-free basis or at a specified rate, or on any specific terms), other than a general commitment to license on reasonable and nondiscriminatory (RAND) or fair, reasonable and non-discriminatory (FRAND) terms; or (ii) misrepresentations to any Standards Bodies.

 

4.11 Documents and Importation Information. The Patent Documents delivered by Seller to Purchaser hereunder represent all material records and files of Seller, its counsel and agents of which Seller is or should be aware of, that are related to the Assigned Patents, with respect to the acquisition, prosecution, registration, reissuance, enforcement, defense, and maintenance of the Assigned Patents. The Importation Information delivered by Seller to Purchaser hereunder is true, accurate and complete.

 

 

4.12 No Impairment. Neither the execution, delivery or performance of this Agreement nor the consummation of the transactions contemplated herein will impair the right of Purchaser to use, possess, sell, license or dispose of any of the Assigned Patents. There are no royalties, honoraria, fees or other payments payable by Seller to any third party by reason of the ownership, use, possession, license, sale, or disposition of any Assigned Patents. There are no actions, suits, investigations, claims or proceedings threatened, pending or in progress relating in any way to the Assigned Patents.

 

4.13 No Notice. Seller has not put any third party on notice of actual or potential infringement of any Assigned Patent. Seller has not invited any third party to enter into a license under any of the Assigned Patents. Seller has not initiated any enforcement action with respect to any of the Assigned Patents.

 

4.14 Disclosure. Seller has disclosed to Purchaser in writing all facts and circumstances known to, or reasonably ascertainable by, Seller on or prior to the Effective Date as possibly having an adverse effect on the validity or enforceability of the Assigned Patents.

 

4.15 Marking. Seller and its Affiliates affix on its products or product packaging, manuals, or instructions associated with such products, a label indicating the Assigned Patents applicable to the respective products.

 

4.16 Fees and other Actions. Seller has paid all maintenance, annuity, renewal and issuance fees and the like with respect to the Assigned Patents that are due and payable prior to the end of the ninety (90) day period following the Effective Date. Except as set forth in Exhibit E (“Fees and Other Actions List”), attached hereto, there are no actions that must be taken or fees that must be paid within ninety (90) days following the Effective Date, including the payment of any filing, registration, maintenance, annuity, renewal or issuance fees or the filing of any responses with any Government Entity, including office action responses, documents, applications or certificates for the purposes of prosecuting, maintaining, perfecting, preserving or renewing any of the Assigned Patents.

 

4.17 Outstanding Judgment. No Assigned Patents are subject to any proceeding or outstanding decree, order, judgment, settlement agreement or stipulation. None of the Assigned Patents has been or are currently involved in any reexamination, reissue, opposition, interference proceeding, or any similar proceeding, and no such proceedings are pending or threatened.

 

4.18 Lawsuits and Other Proceedings. No Assigned Patent has been involved in any past or pending action, suit, investigation, claim or proceeding (including any reexamination), nor has any Assigned Patent been threatened with any such action, suit, investigation, claim or proceeding, other than patent prosecution proceedings in the ordinary course.

 

4.19 Co-Development. None of the Assigned Patents were developed by, on behalf of, jointly with, or with the funding of, a third party.

 

4.20 Government Funding. None of the Assigned Patents were developed by, on behalf of, jointly with, or using grants or funding of any Governmental Entity, college, university, or educational institution.

 

4.21 No Patent License. Except for the rights expressly granted under Section 2.3, Seller is not acquiring any licenses or rights, whether by implication, estoppel or otherwise under or to any Patents of Purchaser or any of its Affiliates because of the Parties entering into this Agreement. The Parties entering into this Agreement will not result in any previous owner of the Assigned Patents or any third party obtaining any license, right or Grant whether by implication, estoppel or otherwise, under or to any Patent of Purchaser or any of its Affiliates.

 

 

4.22 The term “Knowledge” is defined to mean (x) an individual will be deemed to have “Knowledge” of a particular fact or other matter if that individual is actually aware of that fact or matter or a prudent individual could be expected to discover or otherwise become aware of that fact or matter in the course of conducting a reasonably comprehensive investigation to ascertain and establish the accuracy of each representation, warranty and statement in this Agreement, and (y) “Seller’s Knowledge” or “Knowledge of Seller” means the Knowledge of Seller’s and Seller’s Affiliates’ officers, directors, shareholders, partners, members, or employees, in-house or outside counsel, and/or any current employee that is or was directly involved in (i) any prosecution activities associated with one or more of the Assigned Patents, or (ii) the acquisition and divestiture of the Assigned Patents, or (iii) the maintenance, analysis, administration, evaluation of commercial value and strategic assessment of the Assigned Patents during Seller’s ownership of or control over the Assigned Patents.

 

4.23 No Defense. It shall not be a defense to a suit for damages by Purchaser against Seller, that any misrepresentation or breach of covenant or warranty that Seller is known by Purchaser, or that Purchaser had reason to know contained untrue statements.

 

4.24 Securities Representations.

 

(a) Purchase for Own Account. The shares of common stock of the Purchaser to be issued to Seller hereunder will be acquired for investment for Seller’s own account, not as a nominee or agent, and not with a view to the public resale or distribution thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), and Seller has no present intention of selling, granting any participation in, or otherwise distributing the same.

 

(b) Disclosure of Information.

 

(i) Seller has received or has had full access to all the information Seller considers necessary or appropriate to make an informed investment decision with respect to the Series C Preferred Shares to be issued to Seller hereunder.

 

(c) Illiquid Securities. Seller realizes that the Common Shares cannot readily be sold as they will be restricted securities.

 

(d) Discussions with Advisors. Seller has carefully considered and has, to the extent it believes such discussion necessary, discussed with its professional, legal, tax and financial advisors, the suitability of an investment in the Series C Preferred Shares for its particular tax and financial situation and its advisers, if such advisors were deemed necessary, have determined that the Series C Preferred Shares are a suitable investment for it.

 

(e) No General Solicitation. Seller has not become aware of and has not been offered the Series C Preferred Shares by any form of general solicitation or advertising, including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine, or other similar media or television or radio broadcast or any seminar or meeting where, to such Seller’s knowledge, those individuals that have attended have been invited by any such or similar means of general solicitation or advertising.

 

(f) No Registration Rights. Seller confirms and acknowledges that Purchaser is not under any obligation to register or seek an exemption under any federal and/or state securities acts for any sale or transfer of the common shares.

 

 

(g) Investment Experience. Seller understands that the acquisition of Common Shares involves substantial risk. Seller acknowledges that Seller can bear the economic risk of Seller’s investment in the Common Shares, and has sufficient knowledge and experience in financial or business matters such that Seller is capable of evaluating the merits and risks of this investment in the Common and protecting its own interests in connection with this investment. Seller hereby represents that it is an “accredited investor,” as such term is defined under Rule 501(a) of Regulation D promulgated under the Securities Act.

 

(h) Restricted Shares. Seller understands that the Common Shares and are characterized as “restricted securities” under the Securities Act inasmuch as they are being acquired from Purchaser in a transaction not involving a public offering and that, under the Securities Act and applicable regulations thereunder, such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, Seller represents that Seller is familiar with Rule 144 as promulgated under the Securities Act and as presently in effect, and understands the resale limitations imposed thereby and by other applicable provisions of the Securities Act.

 

(7) Legend. Seller acknowledges and understands that the certificates or book-entry statements evidencing the Common Shares will bear the legend set forth below:

 

“THE SECURITIES REPRESENTED HEREBY [AND ISSUABLE UPON CONVERSION HEREOF] HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.”

 

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF PURCHASER

 

Purchaser hereby represents and warrants to Seller as of the Effective Date as follows:

 

5.1 Corporate Organization. Purchaser is a corporation duly organized, validly existing and, to the extent applicable, in good standing under the respective laws of the jurisdiction of its incorporation, is duly qualified and, to the extent applicable, is in good standing under the laws of each jurisdiction in which the character of the properties and assets now owned or held by it or the nature of the business now conducted by it requires it to be so licensed or qualified, except to the extent such failure would not have a material adverse effect on the Purchaser. Purchaser has full corporate power and authority to carry on its business as now being conducted.

 

5.2 Authority. Purchaser has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement by Purchaser and the performance by Purchaser of its obligations hereunder have been duly authorized by all necessary corporate action. This Agreement has been duly executed and delivered by Purchaser and constitutes the legal, valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, subject to applicable laws affecting creditors’ rights generally and, as to enforcement, to general principles of equity, regardless of whether applied in a proceeding at law or in equity.

 

 

5.3 No Conflict; No Consents. The execution and delivery of this Agreement and the performance of the obligations of Purchaser hereunder will not violate or be in conflict with any provision of law, any order, rule or regulation of any Governmental Entity, or any provision of Purchaser’s certificate of incorporation or bylaws. No consent, approval or authorization of or declaration or filing with any Governmental Entity or other person or entity on the part of Purchaser is required in connection with the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby.

 

ARTICLE VI

SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION

 

6.1 Survival of Representations and Warranties. Except with respect to Seller’s representations and warranties under Sections 4.9 (Ownership and Encumbrances), 4.10 (Standards Bodies), 4.21 (No Patent License) and 4.24 (Securities Representations), which shall survive indefinitely, all of Seller’s and Purchaser’s representations and warranties contained in this Agreement shall terminate as of the last day of the twelfth (12th) month following the month in which the Effective Date occurs.

 

6.2 Indemnification.

 

(a) Seller shall defend, indemnify and hold harmless Purchaser, its Affiliates, and each of their Subsidiaries, shareholders, directors, officers, employees, agents, successors, and assigns from and against all damages, claims, liabilities, expenses and costs (including reasonable attorneys’ fees) arising, directly or indirectly, from any material breach of this Agreement by Seller, including, without limitation, any material breach of any representation or warranty made by Seller.

 

(b) Purchaser shall defend, indemnify and hold harmless Seller, its Subsidiaries, and each of their shareholders, directors, officers, employees, agents, successors, and assigns from and against all damages, claims, liabilities, expenses and costs (including reasonable attorneys’ fees) arising, directly or indirectly, from any material breach of this Agreement by Purchaser, including, without limitation, any material breach of any representation or warranty made by Purchaser.

 

(c) A person or entity that intends to claim indemnification under this Article VI (the “Indemnitee”) shall promptly notify the other Party (the “Indemnitor”) of any claim, damage, liability, cause of action or cost with respect to which the Indemnitee intends to claim such indemnification, provided that the failure of the Indemnitee to give notice as provided herein shall not relieve the Indemnitor of its obligations under this Article II unless the failure to give such notice is materially prejudicial to an Indemnitor’s ability to defend such action. Indemnitor, after it determines that indemnification is required of it, shall assume the defense thereof with counsel of its own choosing; provided, however, that an Indemnitee shall have the right to retain its own counsel, with the expenses to be paid by the Indemnitor if Indemnitor does not assume the defense. The Indemnitee shall, and shall cause its Subsidiaries and its own and its Subsidiaries’ employees and agents to, cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any claim, damage, liability, cause of action or cost covered by this indemnification. The maximum liability of each Indemnitor under this Agreement for a breach of warranty under Article IV or Article V, as applicable, and/or for a claim of indemnification as set forth in this Article VI, in the aggregate shall be equal to the Purchase Price.

 

 

ARTICLE VIII MISCELLANEOUS

 

7.1 Confidentiality. The Parties shall maintain as strictly confidential this Agreement and any proprietary information disclosed under, or as a result of or during the negotiation of, this Agreement, which obligation shall survive the consummation of the transactions contemplated herein, and shall only use such information for the purpose of performing under and/or enforcing this Agreement or the Assigned Patents, except that each Party, or its Affiliates, may disclose or use this Agreement or any such proprietary information as follows:

 

(a) As reasonably necessary to prosecute or enforce the Assigned Patents;

 

(b) as reasonably necessary for Purchaser to record or otherwise perfect Purchaser’s interest in the Assigned Patents;

 

(c) to the extent required by law;

 

(d) to the extent such information is public information, except as a result of the breach of this Section 7.1;

 

(e) as is required by a court or an arbitral order which has been precipitated by a third party request; provided, that the entity making such disclosure or use shall seek appropriate confidentiality protections (e.g., having such disclosures covered by a protective order or other comparable protections) prior to making such disclosure or use;

 

(f) to satisfy SEC, NASDAQ or other statutory, regulatory, taxation, or administrative requirements;

 

(g) in a legal proceeding between the Parties or their Affiliates;

 

(h) to a potential acquirer, in connection with a potential acquisition of all or any material part of any business of such Party; or

 

(i) in confidence, to its accountants, bankers, attorneys, or their Affiliates.

 

Notwithstanding the foregoing, the Parties acknowledge that Purchaser or its Affiliates shall have the right, at its sole discretion, to publish and distribute a press release or a Current Report on Form 8-K or Periodic Report filed pursuant to the Securities Exchange Act of 1934, as amended, announcing the execution of this Agreement, describing the material terms hereof and filing such Agreement as an exhibit thereto.

 

7.2 Expenses. Except as otherwise provided in this Agreement, each Party will pay all fees and expenses incurred by it in connection with this Agreement and the transactions contemplated hereby.

 

7.3 Governing Law/Venue. This Agreement is governed by the laws of the State of Texas, excluding its conflict-of-laws principles. The state and federal courts in the State of Texas shall have exclusive jurisdiction over any claim, suit or proceeding (each, a “Proceeding”) related to this Agreement (including without limitation the breach or threatened breach thereof), and each Party irrevocably (a) consents to the jurisdiction of such courts for any Proceeding, (b) consents to service of process in any Proceeding in such courts by globally recognized overnight courier service at the address set forth above, as well as other means of service permitted by law; and (c) waives any objections on the grounds of venue, residence, domicile or inconvenient forum to any Proceeding brought in such courts.

 

 

7.4 Waivers. The failure of any Party to insist upon the performance of any of the terms or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of any such right, term or condition. No waiver by any Party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder shall be valid unless the same shall be in writing and signed by the Party making such waiver.

 

7.5 Severability. The provisions of this Agreement shall be severable, and if any of them are held invalid or unenforceable, then that provision shall be construed to the maximum extent permitted by law. The invalidity or unenforceability of one provision shall not necessarily affect any other.

 

7.6 Notices. All notices or other communications required or permitted under this Agreement shall be in writing and shall be delivered by personal delivery, registered mail, return receipt requested, or a qualified overnight delivery service addressed as indicated on page 1 of this Agreement. Facsimiles shall be sent to Seller at 185 Prospect Avenue, Unit 7i, Hackensack, NY 07601 and to Purchaser at 15110 Dallas Parkway, Suite 600, Dallas, Texas 75248. All such notices shall be deemed delivered at the time of delivery, except a facsimile shall be deemed delivered at the time of electronic confirmation of delivery.

 

7.7 Asset Purchase. The transaction contemplated under this Agreement is strictly an asset purchase, and Purchaser is not taking any assignment of any debt, obligation, or other Encumbrance on any of the Assigned Patents.

 

7.8 Entire Agreement/Amendment. This Agreement contains the complete and final agreement between the Parties, and supersedes all previous understandings, relating to the subject matter hereof whether oral or written. This Agreement may only be modified by a written agreement signed by duly authorized representatives of the Parties.

 

7.9 No Assignment. Except for Purchaser’s right to assign or delegate this Agreement and its rights and duties as set forth herein to a present or future Affiliate, neither this Agreement nor any rights or duties under this Agreement may be assigned or delegated, in whole or in part, by either Party without the prior written consent of the non-assigning Party, which consent may be withheld by the non-assigning Party for any or no reason. Any attempted assignment and/or delegation in breach of this Section 7.9 will be null and void. The Parties understand and agree that a Change of Control event is considered an assignment for the purposes of this Section 7.9.

 

7.10 Survival. Notwithstanding anything in this Agreement to the contrary except as set forth in Section 6.1, all representations, warranties, obligations, responsibilities, terms or conditions which by a fair reading of their nature are intended to survive shall be deemed to survive.

 

7.11 Limitation on Consequential Damages. EXCEPT IN THE CASE OF FRAUD BY SELLER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOSS OF PROFITS, OR ANY OTHER INDIRECT OR SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, HOWEVER CAUSED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.

 

 

7.12 Arm’s Length Negotiations. Each Party herein expressly represents and warrants to all other Parties hereto that (a) before executing this Agreement, said Party has fully informed itself of the terms, contents, conditions and effects of this Agreement; (b) said Party has relied solely and completely upon its own judgment in executing this Agreement; (c) said Party has had the opportunity to seek and has obtained the advice of its own legal, tax and business advisors before executing this Agreement; (d) said Party has acted voluntarily and of its own free will in executing this Agreement; and (e) this Agreement is the result of arm’s length negotiations conducted by and among the Parties and their respective counsel.

 

7.13 Amendments. Every right and remedy provided herein shall be cumulative with every other right and remedy, whether conferred herein, at law, or in equity, and may be enforced concurrently herewith, and no waiver by any Party of the performance of any obligation by the other shall be construed as a waiver of the same or any other default then, theretofore, or thereafter occurring or existing. This Agreement may be amended by a writing signed by all Parties hereto.

 

7.14 Remedies. The remedies provided in this Agreement shall be cumulative and in addition to all other remedies available under this Agreement, at law or in equity (including a decree of specific performance and/or other injunctive relief).

 

7.15 Counterparts, Effect of Facsimile, Emailed and Photocopied Signatures. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, ..tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any Party, each other Party shall re execute the original form of this Agreement and deliver such form to all other Parties. No Party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except to the extent such defense relates to lack of authenticity.

 

7.16 Assignment to Wholly-Owned Subsidiary of Purchaser. The Parties agree and confirm, and the Seller acknowledges and agrees, that the Purchaser intends for its newly formed wholly-owned subsidiary, MangoRx IP Holdings, LLC, a Texas limited liability company (“MangoRx Holdings”), to hold the Assigned Patents, and Seller agrees to execute whatever documents and materials as the Purchaser may reasonably request, to affect such transfer and assignment. MangoRx Holdings shall be bound by the terms of this Agreement relating to the Assigned Patents as if a party hereto upon such assignment, and Purchaser shall take whatever action as may be necessary for MangoRx Holdings to be bound thereby, and comply with such applicable terms.

 

[Remainder of page left intentionally blank. Signature page follows.]

 

 

IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized representatives as of the dates below to be effective as of the Effective Date.

 

MANGOCEUTICALS, INC.			GREENFIELD INVESTMENTS, LTD.
By:			By:
Name:	Jacob Cohen		Name:	Peter Karam
Title:	CEO		Title:	Director
Date:	December 12, 2024		Date:	December 12, 2024

 

 

EXHIBIT A

 

List of Patents

 

 

 

EXHIBIT B

 

Patent Assignment

 

This PATENT ASSIGNMENT (“Assignment”), effective as of December 12, 2024, is made by and between Greenfield Investments, Ltd, a Turks and Caicos limited company, with a place of business at Suites A201& A202 (Upstairs), Regent Village East, Grace Bay, Providenciales, Turks and Caicos Islands (hereinafter “Assignor”), and Mangoceuticals, Inc., a Texas corporation (“Mangoceuticals”), having a place of business at 15110 Dallas Parkway, Suite 600, Dallas, TX 75248.

 

WHEREAS:

 

A. Assignor is the sole owner of the patents and patent applications listed in the attached Exhibit A (hereinafter “Patents”); and

 

B. Mangoceuticals is desirous of acquiring all of Assignor’s right, title and interest in and to the Patents.

 

NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, Assignor has sold, assigned and transferred, and does hereby sell, assign and transfer to Mangoceuticals all right, title and interest in and to

 

(i) the Patents, including any and all inventions, invention disclosures and discoveries disclosed or claimed therein;

 

(ii) all United States, foreign and international patents and patent applications, certificates of invention, utility models and any other grants by any governmental entity for the protection of inventions resulting from the Patents, including any and all patents and patent applications disclosing said invention(s) and any patents issuing from such applications, including provisionals, non-provisionals, divisionals, continuations, continuations-in-part, reissues, extensions, and re-examinations of the Patents, along with the rights of priority created by such patents and patent applications under any treaty relating thereto; and

 

(iii) all past, present and future causes of action and enforcement rights, whether currently pending, filed or otherwise, in connection with the Patents, the patents and patent applications resulting from the Patents and any of the inventions or discoveries described or claimed therein, including without limitation, all rights to sue for any past, present or future infringement of the Patents, including the rights to license and to collect and receive any damages, royalties, injunctive relief, and/or any other settlements or remedies for such infringements, the same to be held and enjoyed by Mangoceuticals for its own use and enjoyment, and for the use and enjoyment of its successors, assigns and other legal representatives, to the end of the term or terms thereof as fully and entirely as the same would have been held and enjoyed by Assignor, if this assignment and sale had not been made.

 

IN WITNESS WHEREOF, Assignor has caused these presents to be signed by its duly appointed officer having full authority in the circumstances.

 

SIGNED for and on behalf of Greenfield Investments, Ltd.

 

By			December 12, 2024
	(Signature)		(Date)
	Peter Karam		Director
	(Print Name)		(Print Title)

 

 

EXHIBIT C

 

Encumbrances

 

None.

 

 

EXHIBIT D

 

Standards

 

None.

 

 

EXHIBIT E

 

Fees and Other Actions

 

None.

 

 

 

Exhibit 10.2

 

PARENT SUBSIDIARY CONTRIBUTION AGREEMENT

 

This Parent Subsidiary Contribution Agreement (this “Contribution Agreement”) dated December 13^th , 2024 and effective as of the Effective Time (as defined in Section 11), is entered into by and between Mangoceuticals, Inc., a Texas corporation (“Parent”), and Mango & Peaches Corp., a Texas corporation and wholly-owned subsidiary of Parent (“Subsidiary”).

 

WITNESSETH:

 

WHEREAS, the Parent was incorporated in the State of a Texas on October 7, 2021, with the intent of focusing on developing, marketing, and selling a variety of men’s wellness products and services via a telemedicine platform and to date, the Parent has identified men’s wellness telemedicine services and products as a growing sector in the most recent years and especially related to the areas of erectile dysfunction (“ED”), hair loss, testosterone replacement or enhancement therapies, and weight management treatments;

 

WHEREAS, to date the Parent has operated through itself and its wholly-owned subsidiaries;

 

WHEREAS, the Parent desires to transfer substantially all of its assets, including ownership of: (a) its 98% ownership of MangoRx Mexico S.A. de C.V., a Mexican Stock Company (“MangoRx Mex” and the “MangoRx Mex Shares”); and (b) its 100% ownership of MangoRx UK Limited, a company incorporated under the laws of the United Kingdom (“MangoRx UK”, and collectively with MangoRx Mex, the “MangoRx Subs”, and the “MangoRx UK Shares” and together with the MangoRx Mex Shares, the “MangoRx Subsidiaries Shares”) to Subsidiary, in order to restructure the ownership and operations of the Parent and better segregate such operations and liabilities; and

 

WHEREAS, Parent and Subsidiary are entering into this Agreement for the purpose of effecting a tax-free reorganization pursuant to which Parent is contributing to Subsidiary its assets (other than those assets and rights specified under this Agreement) and the ownership of the MangoRx Subs, in consideration of the issuance to Parent of shares of the common stock of Subsidiary.

 

NOW THEREFORE BE IT RESOLVED, on the terms and subject to the conditions set forth in this Agreement and in consideration of the mutual promises made herein, the receipt and sufficiency of which is hereby acknowledged, Parent and Subsidiary hereby agree as follows:

 

1.      Contribution of Substantially All Assets. In consideration of the issuance to Parent by Subsidiary of 4,999,999 shares of the common stock of Subsidiary (collectively, the “Subsidiary Shares”), Parent hereby contributes, sells, conveys, transfers, assigns and delivers to Subsidiary, free and clear of all liens and encumbrances whatsoever, to have and hold forever, and Subsidiary accepts from Parent, all of Parent’s right, title and interest in and to all the assets of Parent, whether tangible or intangible, real or personal, excluding solely those assets specified in Section 2 (the “Contributed Assets”). The Contributed Assets so contributed to Subsidiary shall include, without limitation, the following:

 

(a)       all shares of the capital stock of any entity held by Parent, including without limitation the MangoRx Subsidiaries Shares.

 

 

2.      Retention of Certain Assets. Parent shall retain the following assets:

 

(a)               Parent’s rights under this Agreement, including the right to receive and hold the Subsidiary Shares;

 

(b)               All cash and cash equivalents of Parent;

 

(c)               Parent’s real property leases and any associated security deposits;

 

(d)               All minute books, stock ledgers, and other governing documents and corporate records of Parent; and

 

(e)               Parent’s insurance policies, and any and all claims, counterclaims, choses in action, and other rights relating to or arising out of any and all current or future liabilities and obligations, known or unknown, of Parent, including, without limitation, all rights of contractual and common law indemnification in respect of such liabilities or obligations and all rights under the insurance policies of others in respect thereof.

 

3.

Assumption of Liabilities; Excluded Liabilities.

 

3.1.            Assumed Liabilities. Subsidiary hereby assumes and agrees to pay when due solely the liabilities of the MangoRx Subs which are being acquired hereby; to pay, perform and discharge when due any and all liabilities and obligations of Parent arising out of or relating to the Contributed Assets (the “Assumed Liabilities”).

 

3.2.            Excluded Liabilities. The parties hereby agree that, except for the Assumed Liabilities, Subsidiary does not hereby assume, does not have any responsibility with respect to, and shall not be deemed to have assumed or have any liability with regard to, any other liabilities, obligations and duties of Parent of any kind whatsoever, whether or not accrued or fixed, absolute or contingent, or determined or determinable (the “Excluded Liabilities”). Parent shall remain and be solely and exclusively liable with regard to, and shall promptly pay and discharge when due, all Excluded Liabilities, and shall indemnify, defend and hold Subsidiary harmless against any and all demands, charges, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, liabilities, losses, fees and expenses resulting from, related to or arising out of any Excluded Liability.

 

 

4.

Indemnification.

 

4.1.   Subsidiary agrees to indemnify, defend and hold harmless Parent from and against any losses, liabilities, claims, demands, judgments, expenses (including legal fees and expenses), causes of action or suits (collectively, “Damages”) which may arise in connection with (i) any breach by Subsidiary of any covenant or agreement contained in this Agreement, or (ii) any third party claim related to the Contributed Assets or Assumed Liabilities arising following the Effective Date.

 

4.2.   Parent agrees to indemnify, defend and hold Subsidiary harmless from and against any and all Damages which may arise in connection with (i) any breach by Parent of any representation, warranty covenant or agreement contained in this Agreement, or (ii) any third party claim related to the Contributed Assets or Assumed Liabilities arising prior to the Effective Date.

 

5.

Issuance of Subsidiary Shares. Subsidiary hereby issues the Subsidiary Shares to Parent in consideration of the contribution made by Parent pursuant to the preceding Section 1. Subsidiary shall promptly deliver evidence to Parent of Parent’s ownership of the Subsidiary Shares.

 

6.

Certain Tax Matters. Parent shall not, and it shall cause each of its affiliates not to, take any action that would cause (nor omit to take any action, the omission of which would cause) the transactions contemplated by this Agreement not to constitute a tax-free reorganization under the Internal Revenue Code of 1986, as amended.

 

7.

Further Assurances. On and after the date hereof, each party hereto shall cooperate with the other, and without any further consideration, but at the expense of the requesting party, to execute and deliver, or use its reasonable efforts to cause to be executed and delivered, all instruments, including instruments of conveyance, assignment and transfer, and to make all filings with, and to obtain all consents, approvals or authorizations of, any governmental authority or any other person under any permit, license, agreement, indenture or other instrument and to take all such other actions as such party may reasonably be requested to take by any other party hereto from time to time, consistent with the terms of this Agreement, in order to effectuate the provisions and purposes of this Agreement and the transactions contemplated hereby.

 

8.

Conveyance Instruments. Parent and Subsidiary covenant and agree to take such actions and do such things as are reasonably requested by the other party, including (without limitation) to execute and deliver, or cause to be executed and delivered, all such further deeds, assignments, stock transfer powers, agreements, instruments and documents evidencing or confirming the sale, assignment and transfer to Subsidiary of the Contributed Assets, including a bill of sale with respect to the transfer of any tangible personal property and an assignment and assumption agreement.

 

 

9.

Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.

 

10.

Entire Agreement. This Agreement constitutes the entire contract between the parties hereto pertaining to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether written or oral, of the parties; and there are no representations, warranties, or other agreements between the parties in connection with the subject matter hereof except as specifically set forth herein. No supplement, modification, or waiver of this Agreement shall be binding unless executed in writing by the parties to be bound thereby.

 

11.

Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to its conflict of law rules.

 

12.

Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together shall constitute but one and the same instrument.

 

13.  Effective Time. This Agreement and the contribution and assumption provided for herein shall be effective as of 5:00 p.m. Central Standard Time, December 15^th, 2024 (the “Effective Time”).

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

 

In witness whereof, the undersigned have executed and delivered this Agreement as of the date first written above.

 

		Mangoceuticals, Inc.
	By:
		Jacob Cohen
		Chief Executive Officer
		Mango & Peaches Corp.
	By:
		Jacob Cohen
		Chief Executive Officer

  

 

 

 

Exhibit 10.3

 

MANGOCEUTICALS, INC.

 

AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT

 

JACOB COHEN

CHIEF EXECUTIVE OFFICER

 

 

TABLE OF CONTENTS

 

ARTICLE I. DEFINITIONS		1
1.1.	Definitions.	1
ARTICLE II. EMPLOYMENT; TERM; DUTIES		3
2.1.	Employment.	3
2.2.	Duties and Responsibilities.	3
2.3.	Covenants of Executive.	3
ARTICLE III. COMPENSATION AND OTHER BENEFITS		4
3.1.	Base Salary.	4
3.2.	Equity grant.	4
3.3.	Discretionary Bonus Performance Standards.	4
3.4.	Equity Awards.	5
3.5.	Additional Grants/Awards.	5
3.6.	Business Expenses.	5
3.7.	Vacation.	5
3.8.	Other Benefits.	5
3.9.	Car Allowance.	5
3.10.	Change of Control Payment.	5
ARTICLE IV. TERMINATION OF EMPLOYMENT		6
4.1.	Termination of Employment.	6
4.2.	Effect of Termination.	7
4.3.	Consulting.	8
4.4.	Treatment of Equity.	9
ARTICLE V. INVENTIONS		9
5.1.	Inventions in General.	9
5.2.	Inventions Retained and Licensed.	9
5.3.	Assignment of Inventions.	9
5.4.	Assignment of Other Rights.	10
5.5.	Inventions Assigned to the United States.	10
5.6.	Maintenance of Records.	10
5.7.	Patent and Copyright Registrations.	10
ARTICLE VI. CONFIDENTIAL/TRADE SECRET INFORMATION		10
6.1.	Confidential/Trade Secret Information.	10
6.2.	Non-Compete.	10
6.3.	Non-Solicitation During Employment.	11
6.4.	Restriction on Use of Confidential/Trade Secret Information.	11
6.5.	Other Activities.	11
6.6.	Prohibition Against Unfair Competition/Non-Solicitation of Customers.	11
6.7.	Non-Solicitation of Employees.	12
6.8.	Former Employer Information.	12
6.9.	Third Party Information.	12
6.10.	Immunity From Liability for Certain Confidential Disclosures.	12
6.11.	Conflict of Interest.	12
6.12.	Reasonable Restrictions.	12
6.13.	Specific Performance.	12
6.14.	Response to Legal Process; Allowable Disclosures.	13
ARTICLE VII. INDEMNIFICATION		13
7.1.	Required Indemnification.	13
7.2.	In Addition to Other Obligations.	13
7.3.	Notification and Required Actions.	13

 

December 19, 2024		Executive Employment Agreement
		Jacob Cohen

 

 

ARTICLE VIII. ARBITRATION		13
8.1.	Scope.	13
8.2.	Arbitration Procedure.	14
8.3.	Limitations Period; Deadline to Assert Claims.	14
ARTICLE IX. MISCELLANEOUS		14
9.1.	Binding Effect; Assignment.	14
9.2.	Notices.	14
9.3.	Severability.	15
9.4.	Waiver.	15
9.5.	Entire Agreement.	15
9.6.	Amendment.	15
9.7.	Authority.	15
9.8.	Attorneys’ Fees.	15
9.9.	Construction.	15
9.10.	Governing Law.	16
9.11.	Survival.	16
9.12.	Section 280G Safe Harbor Cap.	16
9.13.	Section 409A Compliance.	17
9.14.	Withholding of Taxes and Other Executive Deductions.	17
9.15.	Clawback.	17
9.16.	Legal Counsel.	18
9.17.	Right to Negotiate.	18
9.18.	Voluntary Nature of Agreement.	18
9.19.	Counterparts, Effect of Facsimile, Emailed and Photocopied Signatures.	18

 

December 19, 2024		Executive Employment Agreement
		Jacob Cohen

 

 

THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is entered into this 13^th day of December 2024, to be effective as of the Effective Date as defined below between Mangoceuticals, Inc., a Texas corporation (the “Company”), and Jacob Cohen (“Executive”) (each of the Company and Executive are referred to herein as a “Party”, and collectively referred to herein as the “Parties”).

 

W I T N E S S E T H:

 

WHEREAS, the Executive currently serves as the Chief Executive Officer of the Company; and

 

WHEREAS, the Company desires to continue to obtain the services of Executive, and expand Executive’s duties and obligations, and Executive desires to continue to be employed by the Company upon the terms and conditions hereinafter set forth; and

 

WHEREAS, the Company and Executive desire to enter into this Agreement to amend, replace and supersede in its entirety, that certain Executive Employment Agreement between Executive and the Company dated September 1, 2022 (the “Prior Agreement”).

 

NOW, THEREFORE, in consideration of the premises, the agreements herein contained and other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as of the Effective Date as follows:

 

ARTICLE I.
DEFINITIONS

 

1.1. Definitions. In addition to other terms defined throughout this Agreement, the following terms have the following meanings when used herein:

 

1.1.1 “Cause” shall mean, in the context of a basis for termination by the Company of Executive’s employment with the Company, that:

 

(i) Executive materially breaches any obligation, duty, covenant or agreement under this Agreement, which breach is not cured or corrected within thirty (30) days of written notice thereof from the Company (except for breaches of ARTICLE V or ARTICLE VI of this Agreement, which cannot be cured and for which the Company need not give any opportunity to cure); or

 

(ii) Executive commits any act of misappropriation of funds or embezzlement and is found guilty in a court of law; or

 

(iii) Executive commits any act of fraud and is found guilty in a court of law; or

 

(iv) Executive is convicted of, or pleads guilty or nolo contendere with respect to, theft, fraud, a crime involving moral turpitude, or a felony under federal or applicable state law; and, in the case of any of the above offenses, such offense casts reasonable doubt on Executive’s ability to perform his duties going forward.

 

December 19, 2024		Executive Employment Agreement		Initials ____ / ______
		Jacob Cohen

 

 

1.1.2 “Change of Control” shall mean the happening of any of the following without the prior written consent of the Executive:

 

(i) Any Person is or becomes the “Beneficial Owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 50% of the total voting power represented by the Company’s then outstanding voting securities without the approval of not fewer than two-thirds of the Board of Directors of the Company voting on such matter, unless the Board of Directors specifically designates such acquisition to be a change of control;

 

(ii) A merger or consolidation of the Company whether or not approved by the Board of Directors of the Company, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted or into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; or

 

(iii) As a result of the election of members to the Board of Directors, a majority of the Board of Directors consists of persons who are not members of the Board of Directors as of the Effective Date (including Executive as a member of the Board of Directors as of the Effective Date).

 

1.1.3 “COBRA” means Section 4980B of the Internal Revenue Code and Section 601 of the Employee Retirement Income Security Act of 1974, as amended.

 

1.1.4 “Confidential/Trade Secret Information” is information that is not generally known to the public and, as a result, is of economic benefit to the Company in the conduct of its business, and the business of the Company’s subsidiaries, which includes, but is not limited to, all proprietary information developed or obtained by the Company, including its affiliates, and predecessors, and comprising the following items, whether or not such items have been reduced to tangible form (e.g., physical writing, computer hard drive, disk, tape, e-mail, etc.): all methods, techniques, processes, ideas, research and development, product designs, engineering designs, plans, models, production plans, business plans, add-on features, trade names, service marks, slogans, forms, pricing structures, business forms, marketing programs and plans, layouts and designs, financial structures, operational methods and tactics, cost information, the identity of and/or contractual arrangements with customers, partners, suppliers and/or vendors, accounting procedures, and any document, record or other information of the Company relating to the above. Confidential/Trade Secret Information includes not only information directly belonging to the Company which existed before the date of this Agreement, but also information developed by Executive for the Company, including its subsidiaries, affiliates and predecessors, during the term of Executive’s employment with the Company. Confidential/Trade Secret Information does not include any information which (a) was in the lawful and unrestricted possession of Executive prior to its disclosure to Executive by the Company, its subsidiaries, affiliates or predecessors, (b) is or becomes generally available to the public by lawful acts other than those of Executive after receiving it, or (c) has been received lawfully and in good faith by Executive from a third party who is not and has never been an executive of the Company, its subsidiaries, affiliates or predecessors, and who did not derive it from the Company, its subsidiaries, affiliates or predecessors.

 

1.1.5 “Effective Date” means December 15, 2024.

 

1.1.6 “Exchange Act” means the Exchange Act of 1934, as amended.

 

1.1.7 “Good Reason” shall mean, in the context of a basis for termination by Executive of his employment with the Company (a) a material diminution in his authority, duties, or responsibilities; (b) a material diminution in the authority, duties, or responsibilities of the supervisor to whom Executive is required to report, including, if applicable, a requirement that Executive report to an officer or employee of the Company rather than reporting to the Board; (c) a material breach by the Company of this Agreement, or (d) a material diminution in Executive’s Base Salary.

 

1.1.8 “Initial Term” means a period beginning on the Effective Date and ending on the third (3rd) anniversary of the Effective Date.

 

1.1.9 “Non-Compete Period” means a period of twelve (12) months after the Termination Date.

 

1.1.10 “Person” (when capitalized) means any individual, corporation, partnership, joint venture, limited liability company, trust, unincorporated organization or governmental entity.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

1.1.11 “Restricted Area” means (A) any State (in the United States); and/or (B) any other geographic area (province, if such Restricted Area is in Canada, or country, if such Restricted Area is in a country other than the United States or Canada), in which the Company or any of its Subsidiaries provides Restricted Services or Restricted Products, directly or indirectly, during the twelve months preceding the Termination Date of Executive’s employment hereunder.

 

1.1.12 “Restricted Products” means branded men’s wellness products sold to consumers via a telemedicine platform and any other product that the Company or any of its Subsidiaries has provided or is researching, developing, manufacturing, distributing, selling and/or providing at any time during the two years immediately preceding the Termination Date, or about which the Executive obtained any trade secret or other Confidential/Trade Secret Information during the two years immediately preceding the Termination Date as a result of (a) his employment with the Company, (b) consulting services he provided to the Company, or (c) his position as a director of the Company (as and if applicable).

 

1.1.13 “Restricted Services” means the sale of Restricted Products; or men’s wellness services and any other services that the Company or any of its Subsidiaries has provided or is researching, developing, performing and/or providing at any time during the two years immediately preceding the Termination Date or about which Executive obtained any trade secret or other Confidential/Trade Secret Information during the two years immediately preceding the Termination Date as a result (a) of his employment with the Company, (b) consulting services he provided to the Company, or (c) his position as a director of the Company (as and if applicable).

 

1.1.14 “Subsidiary” or “Subsidiaries” means any or all Persons of which the Company owns directly or indirectly through another Person, a nominee arrangement or otherwise (a) at least a 20% of the outstanding capital stock (or other shares of beneficial interest) entitled to vote generally or otherwise have the power to elect a majority of the board of directors or similar governing body or the legal power to direct the business or policies of such Person or (b) at least 20% of the economic interests of such Person.

 

1.1.15 “Term” means the Initial Term and any Automatic Renewal Terms.

 

1.1.16 “Termination Date” shall mean the date on which Executive’s employment with the Company hereunder ends.

 

ARTICLE II.

EMPLOYMENT; TERM; DUTIES

 

2.1. Employment. Pursuant to the terms and conditions hereinafter set forth, the Company hereby employs Executive, and Executive hereby accepts such employment, as the Chief Executive Officer (“CEO”) of the Company for the Initial Term as well as the Chief Executive Officer of Mango & Peaches Corp. (“M&P”); provided that this Agreement shall automatically extend for additional one (1) year periods after the Initial Term (each an “Automatic Renewal Term”) unless either Party provides the other written notice of their intent not to automatically extend the term of this Agreement at least sixty (60) days prior to the end of the Initial Term or any Automatic Renewal Term, as applicable (each a “Non-Renewal Notice”).

 

2.2. Duties and Responsibilities. Executive, as CEO, shall perform such administrative, managerial and executive duties for the Company and M&P (i) as are prescribed by applicable job specifications for the Chief Executive Officer of a company the size and nature of the Company and M&P, (ii) as may be prescribed by the Bylaws of the Company and M&P, (iii) as are customarily vested in and incidental to such position, and (iv) as may be assigned to him from time to time by the Board of Directors of the Company and M&P (the “Board”).

 

2.3. Covenants of Executive.

 

2.3.1 Best Efforts. Executive shall devote his best efforts to the business and affairs of the Company. Executive shall perform his duties, responsibilities and functions to the Company hereunder to the best of his abilities in a diligent, trustworthy, professional and efficient manner and shall comply, in all material respects, with all rules and regulations of the Company (and special instructions of the Board, if any) and all other rules, regulations, guides, handbooks, procedures and policies applicable to the Company and its business in connection with his duties hereunder, including all United States federal and state securities laws applicable to the Company.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

2.3.2 Records. Executive shall use his best efforts and skills to truthfully, accurately, and promptly prepare, maintain, and preserve all records and reports that the Company may, from time to time, request or require, fully account for all money, records, equipment, materials, or other property belonging to the Company of which he may have custody, and promptly pay and deliver the same whenever he may be directed to do so by the Board.

 

2.3.3 Compliance. Executive shall use his best efforts to maintain the Company’s compliance with all rules and regulations of the Securities and Exchange Commission (“SEC”), and reporting requirements for publicly traded companies under the Exchange Act. Executive shall at all times comply, and cause the Company to comply, with the then-current good corporate governance standards and practices as prescribed by the SEC, any exchange on which the Company’s capital stock or other securities may be traded and any other applicable governmental entity, agency or organization.

 

2.3.4 Exchange Act Filing Requirements. The Executive agrees and acknowledges that due to the Executive’s status as a Section 16(a) “officer” of the Company (as described in Rule 16a-1(f) of the Exchange Act), he has an obligation, at such time as the Company’s common stock is registered under the Exchange Act, to file various beneficial ownership reports and forms with the Securities and Exchange Commission, including Forms 3, 4 and 5 (where applicable) and that such obligation is solely the Executive’s regardless of whether the Company assists the Executive in filing such forms or not. The Executive agrees to use his best efforts to timely and adequately file all required beneficial ownership reports and forms required under the Exchange Act.

 

ARTICLE III.

COMPENSATION AND OTHER BENEFITS

 

3.1. Base Salary. So long as this Agreement remains in effect, for all services rendered by Executive hereunder and all covenants and conditions undertaken by the Parties pursuant to this Agreement, the Company shall pay, and Executive shall accept, as compensation, an annual base salary of $360,000 for the first twelve months of the Agreement (increasing by $60,000 every twelve months that this Agreement is in effect, as applicable, the “Base Salary”). Notwithstanding the above, the Committee or the Board, with the recommendation of the Committee, may also increase the Base Salary from time to time, at any time, in its/their discretion. Such increase(s) in salary shall be documented in the Company’s records, but shall not require the Parties enter into a new or amended form of this Agreement.

 

3.2. Equity Grant Sign-On Bonus. In consideration for agreeing to the terms of this Agreement, Executive shall receive a sign-on bonus of 1,700,000 shares of M&P common stock as well as 100 shares of Series A Preferred Stock of M&P that votes 51% on M&P shareholder matters, but has no conversion rights, liquidation preference, dividend rights or redemption rights.

 

3.3. Discretionary Bonus. Executive shall be eligible for a yearly discretionary cash bonus (a “Cash Bonus”) and equity bonus (the “Equity Bonus”) equal to an amount as determined by the Committee of the Board of Directors (if any)(the “Committee”) or the Board, with the recommendation of the Committee and based on the condition of the Company’s business and results of operations, the Committee’s evaluation of Executive’s individual performance for the relevant period, and the satisfaction of goals that may be established by the Committee. Each Cash Bonus shall be paid in the Committee’s discretion at the same time annual bonuses are paid to other executives of the Company, provided that the annual targeted Cash Bonus shall be in an amount equal to 200% of Executive’s Base Salary (as may be increased from time to time) (the “Targeted Bonus”). The Committee, or the Board, with the recommendation of the Committee, may also pay or grant discretionary Cash Bonuses or Equity Bonuses from time to time in their discretion, or increase the Targeted Bonus from time to time, at any time, in its/their discretion. Such increase(s) in Targeted Bonus shall be documented in the Company’s records, but shall not require the Parties enter into a new or amended form of this Agreement. The Equity Bonus may be in the form of common stock, stock options or other equity consideration, in such amounts and with such terms as may be determined by the Committee or the Board, with the recommendation of the Committee, from time to time. Except as specified in ARTICLE IV regarding the payment of a bonus and other compensation following Executive’s termination of employment under certain circumstances, nothing herein shall require the Committee or the Board to pay the Targeted Bonus, or any Cash Bonus or Equity Bonus. Except as specified in ARTICLE IV regarding the payment of a bonus and other compensation following Executive’s termination of employment, all bonuses paid to the Executive shall be in the discretion of the Committee or the Board with the recommendation of the Committee, absent a written agreement providing otherwise. Any Cash Bonus or Equity Bonus earned by the Executive shall be paid after the end of the fiscal year to which it relates, at the same time and under the same terms and conditions as other executives of the Company; provided that in no event shall the Executive’s Cash Bonus or Equity Bonus be paid later than March 15th of the fiscal year following the fiscal year for which it was earned.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

3.4. Performance Standards. The Executive and the Company agree that the Executive’s discretionary Cash Bonus and equity-based compensation (including the Equity Bonus) may, but shall not be required to, be based on the Executive’s and the Company’s achievement of performance goals that may be established by the Committee after discussion with the Executive and his supervisors (if any). Until or unless the Company and the Committee establish performance goals, the Executive’s discretionary Cash Bonus and equity-based compensation (including the Equity Bonus) will be wholly discretionary.

 

3.5. Equity Awards. During the Term, the Executive shall be eligible to receive equity and equity-based awards (including the Equity Bonus) in the discretion of the Board or the Committee and on such terms and conditions as determined by the Board or the Committee. Any equity and equity-based awards (including the Equity Bonus) granted to the Executive, whether before or after the Effective Date, shall be governed by the terms and conditions of the applicable Company equity incentive plan(s), as may be in effect from time to time, and the award agreements governing such equity or equity-based awards (any such plan and award agreements, collectively, the “Equity Agreements”). Any equity-based awards granted to Executive after the Effective Date shall have vesting and exercisability terms that are no less favorable to Executive than the terms required by this Agreement.

 

3.6. Additional Grants/Awards. Executive shall be eligible to receive additional equity incentive grants or cash bonus awards as determined by the Board or a committee of the Board in its sole discretion.

 

3.7. Business Expenses. So long as this Agreement is in effect, the Company shall reimburse Executive for all reasonable, out-of-pocket business expenses incurred in the performance of his duties hereunder consistent with the Company’s policies and procedures, in effect from time to time, with respect to travel, entertainment, communications, technology/equipment and other business expenses customarily reimbursed to senior executives of the Company in connection with the performance of their duties on behalf of the Company.

 

3.8. Vacation. Executive will be entitled to 20 days of paid time-off (“PTO”) per year. PTO days shall accrue beginning on the 1st of January for each year during the term of this Agreement. Unused PTO days shall expire on December 31 of each year and shall not roll over into the next year. Other than the use of PTO days for illness or personal emergencies, PTO days must be pre-approved by the Company.

 

3.9. Other Benefits. During the Term, the Executive shall be entitled to participate in any employee benefit plans or programs for which he is eligible that are provided by the Company to its management employees, such as retirement, health, life insurance, and disability plans, vacation and sick leave policies, business expense reimbursement policies that the Company has in effect from time to time, and stock option plan, 401(k) plan, life, health, accident, disability insurance plans, pension plans and retirement plans, in effect from time to time (including, without limitation, any incentive program or discretionary bonus program of the Company which may be implemented in the future by the Board), to the extent and on such terms and conditions as the Company customarily makes such plans available to its senior executives. The Company retains the right to terminate or alter the terms of any benefit programs that it may establish, provided that no such termination or alteration shall adversely affect any vested benefit under any benefit program or other obligation set forth in this Agreement.

 

3.10. Car Allowance. The Company shall provide the Executive an automobile allowance of $2,500 per month during the term of Executive’s employment hereunder.

 

3.11. Office Allowance. In addition to the Executive’s reasonable out-of-pocket expenses as discussed under Section 3.7, above the Company shall provide a flat fee allowance of $7,500 per month (the “Office Allowance”) which is intended to cover the cost of office space used by the Executive and all overhead costs associated therewith. Executive shall not be required to provide evidence of expenses concerning the Office Allowance and the Office Allowance shall be paid by the Company to the Executive regardless of the actual amount incurred by the Executive. Executive shall be responsible for all costs of office space and all overhead costs associated therewith to the extent such expenses exceed $7,500 in any given month.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

3.12. M&P Bonus. The Executive shall be eligible to earn a cash bonus of up to $10,000,000 during the Term of this Agreement, based on M&P meeting certain milestones and achievements (the “M&P Bonus”), as described in greater detail on Exhibit B, which at the option of Executive can be converted into shares of common stock of M&P at a conversion rate of $0.50 per share, as equitably adjusted for stock splits, dividends and recapitalizations of M&P (the “M&P Conversion Rate”). The right to earn any unvested M&P Bonus shall terminate upon the termination of this Agreement, except as expressly set forth herein under Section 4.2.3.

 

3.13. Change of Control Payment.

 

3.13.1 If a Change of Control occurs during the Term or within six months after Executive’s termination of employment pursuant to Section 4.1.5 or 4.1.6, the Company shall pay Executive, within 60 days following the date of such Change of Control, a cash payment in a lump sum in an amount equal to (x) minus (y) where (x) equals 3.0 times the sum of (a) the current annual Base Salary of the Executive; and (b) the amount of the most recent Cash Bonus paid to the Executive pursuant to Section 3.3 of this Agreement (collectively (a) and (b), the “Change of Control Payment”) and (y) equals the amount of any Severance Payment actually paid to Executive pursuant to Section 4.2.3, below). In the event the Compensation Committee has not previously made a determination regarding Cash Bonus or the most recent Cash Bonus was zero, the “amount of the most recent Cash Bonus paid to the Executive pursuant to Section 3.3 of this Agreement” in the immediately preceding sentence shall be replaced with “the Targeted Bonus for the year in which the Change in Control occurs.” The Change of Control Payment shall be made less applicable withholding.

 

3.13.2 In the event of a change of control (as such term(s) are defined and/or used in each Equity Agreement, an (“Equity Award Change of Control”), the equity-based compensation held by the Executive prior to the date of this Agreement shall vest to the extent set forth in such Equity Agreements and shall be exercisable for the time periods set forth in such Equity Agreements. Additionally, the M&P Bonus, discussed above, shall vest in full to Executive upon a Change of Control.

 

3.13.3 The Equity Agreements for all Equity Bonus and other equity-based compensation granted to Executive on and after the date of this Agreement shall provide that upon an Equity Award Change of Control all of Executive’s Equity Bonus and other equity-based compensation shall immediately vest regardless of whether the Executive is retained by the Company or successor following the Equity Award Change of Control and any outstanding stock options and other equity compensation held by the Executive shall be exercisable by the Executive pursuant to the terms thereof until the earlier of (A) ninety (90) days from Executive’s Termination Date and (B) the latest date upon which such stock options and other equity compensation would have expired by their original terms under any circumstances.

 

ARTICLE IV.

TERMINATION OF EMPLOYMENT

 

4.1. Termination of Employment. Executive’s employment pursuant to this Agreement shall terminate on the earliest to occur of the following:

 

4.1.1 upon the death of Executive;

 

4.1.2 upon the delivery to Executive of written notice of termination by the Company if Executive shall suffer a physical or mental disability which renders Executive, in the reasonable judgment of the Committee or the Board, unable to perform his duties and obligations under this Agreement for either 90 consecutive days or 180 days in any 12-month period;

 

4.1.3 upon delivery to the Company of a written notice of termination by Executive for any reason other than for Good Reason or, if Executive delivers a notice of termination pursuant to Section 2.1, upon the expiration of the Initial Term or the applicable Automatic Renewal Term during which such notice is provided;

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

4.1.4 upon delivery to Executive of written notice of termination by the Company for Cause;

 

4.1.5 upon delivery of written notice of termination from Executive to the Company for Good Reason, provided, however, prior to any such termination by Executive pursuant to this Section 4.1.5, Executive shall have advised the Company in writing within ninety (90) days after the initial occurrence of any circumstances that would constitute Good Reason, the Company shall have thirty (30) days following receipt of Executive’s written notice (the “Cure Period”) to cure such initial occurrence of any circumstances that would constitute Good Reason, and further provided that such written notice of termination is provided by Executive within thirty (30) days after the end of such Cure Period, provided that such initial occurrence of the circumstances constituting Good Reason has not been cured during such Cure Period; or

 

4.1.6 upon delivery to Executive of a written notice of termination by the Company without Cause or, if the Company delivers a notice of termination pursuant to Section 2.1, upon the expiration of the Initial Term or the applicable Automatic Renewal Term during which such notice is provided.

 

4.2. Effect of Termination. In the event that Executive’s employment hereunder is terminated in accordance with the provisions of this Agreement, Executive shall be entitled to the following:

 

4.2.1 If Executive’s employment is terminated pursuant to Sections 4.1.1 (death) or Section 4.1.2 (disability), Executive or his estate shall be entitled to a lump sum cash severance payment equal to the sum of (i) Executive’s Base Salary accrued through the Termination Date; (ii) any unpaid Cash Bonus for the prior year that would have been paid had Executive not been terminated prior to such payment; and (iii) Executive’s Targeted Bonus for the year of termination multiplied by the number of days in such year preceding the Termination Date divided by 365. Executive or his estate shall be entitled to no other benefits other than as required under the terms of employee benefit plans in which Executive was participating as of the Termination Date and continuation of health insurance benefits on the terms and to the extent required by COBRA, or such other similar law or regulation as may be applicable to the Executive or the Company with respect to the Executive. Additionally, and notwithstanding anything to the contrary in any Equity Agreement, any unvested stock options or equity compensation held by Executive shall vest and shall be exercisable until the earlier of (A) ninety days (90) days from the date of termination and (B) the latest date upon which such stock options or equity would have expired by their original terms under any circumstances.

 

4.2.2 If Executive’s employment is terminated pursuant to Section 4.1.3 (without Good Reason by the Executive or via Executive’s Non-Renewal Notice), or Section 4.1.4 (by the Company for Cause), Executive shall be entitled to his Base Salary accrued through the Termination Date and no other benefits other than as required under the terms of employee benefit plans in which Executive was participating as of the Termination Date and continuation of health insurance benefits on the terms and to the extent required by COBRA, or such other similar law or regulation as may be applicable to the Executive or the Company with respect to the Executive. Additionally, any unvested stock options or equity compensation held by Executive shall immediately terminate and be forfeited (unless otherwise provided in the applicable award) and any previously vested stock options (or if applicable equity compensation) shall be subject to terms and conditions set forth in the applicable Equity Agreement, as such may describe the rights and obligations upon termination of employment of Executive.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

4.2.3 If Executive’s employment is terminated by Executive pursuant to Section 4.1.5 (Good Reason) or by the Company pursuant to Section 4.1.6 (without Cause by the Company), (a) Executive shall be entitled to his Base Salary accrued through the Termination Date and any unpaid Cash Bonus for the prior completed calendar year that would have been paid had Executive not been terminated prior to such payment, plus a lump sum cash severance payment equal to the sum of (i) an amount equal to three (3) times Executive’s current annual Base Salary plus (ii) an amount equal to Executive’s Targeted Bonus for the year containing the Termination Date (such total payment referred to herein in Section 4.2.3(a) as the “Severance Payment”); and (b) provided Executive elects to receive continued health insurance coverage through COBRA, the Company will pay Executive’s monthly COBRA contributions for health insurance coverage, as may be amended from time to time (less an amount equal to the premium contribution paid by active Company employees, if any) for twelve (12) months following the Termination Date (the “Health Payment”); provided, however, that if at any time Executive is covered by a substantially similar level of health insurance through subsequent employment or otherwise, the Company’s health benefit obligations shall immediately cease, and the Company shall have no further obligation to make the Health Payment. Additionally and notwithstanding anything to the contrary in any Equity Agreement, any unvested stock options or equity compensation previously granted to the Executive, will vest immediately upon such termination and shall be exercisable by the Executive until the earlier of (A) ninety (90) days from the date of termination and (B) the latest date upon which such stock options or equity would have expired by their original terms under any circumstances. Additionally, the M&P Bonus, discussed below, shall vest in full to Executive upon a termination of this Agreement pursuant to Section 4.1.5 (Good Reason) or by the Company pursuant to Section 4.1.6 (without Cause by the Company). Executive shall be entitled to no other post-employment benefits except as provided for under this Section 4.2.3 and for benefits payable under applicable benefit plans in which Executive is entitled to participate through the Termination Date, subject to and in accordance with the terms of such plans.

 

4.2.4 As a condition to Executive’s right to receive any benefits pursuant to Section 4.2.3 of this Agreement, (A) Executive must execute and deliver to the Company a written release in form and substance satisfactory to the Company, of any and all claims against the Company and all directors and officers of the Company with respect to all matters arising out of Executive’s employment hereunder, or the termination thereof (other than claims for entitlements under the terms of this Agreement or plans or programs of the Company in which Executive has accrued a benefit), which shall become effective by the 90^th day following the Executive’s Termination Date;); and (B) Executive must not have breached any of his covenants and agreements under ARTICLE V or ARTICLE VI of this Agreement, which shall continue following the Termination Date. If the ninety-day period discussed above begins in one taxable year and ends in a second taxable year, then the Company’s payment of amounts due hereunder shall be made no earlier than the first day of the second taxable year.

 

4.2.5 In the event of termination of Executive’s employment pursuant to Section 4.1.4 (by the Company for Cause), and subject to applicable law and regulations, the Company shall be entitled to offset against any payments due Executive the demonstrable loss and damage, if any, which shall have been suffered by the Company as a result of the acts or omissions of Executive giving rise to termination. The foregoing shall not be construed to limit any cause of action, claim or other rights, which the Company may have against Executive in connection with such acts or omissions.

 

4.2.6 Upon termination of Executive’s employment hereunder, or on demand by the Company during the Term of this Agreement, Executive will immediately deliver to the Company, and will not keep in his possession, recreate or deliver to anyone else, any and all Company property, as well as all devices and equipment belonging to the Company (including computers, handheld electronic devices, telephone equipment, and other electronic devices), Company credit cards, records, data, notes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, photographs, charts, all documents and property, and reproductions of any of the aforementioned items that were developed by Executive pursuant to his employment with the Company, obtained by Executive in connection with his employment with the Company, or otherwise belonging to the Company, its successors or assigns, including, without limitation, those records maintained pursuant to this Agreement. However, Executive may retain any materials or documents which he shall need in any legal action to enforce the terms of this Agreement.

 

4.2.7 Executive also agrees to keep the Company advised of his home and business address for a period of three (3) years after termination of Executive’s employment hereunder, so that the Company can contact Executive regarding his continuing obligations provided by this Agreement. In the event that Executive’s employment hereunder is terminated, Executive agrees to grant consent to notification by the Company to Executive’s new employer about his obligations under this Agreement.

 

4.3. Consulting. During the sixty (60) day period following any termination of this Agreement pursuant to Section 4.1.3, Section 4.1.4, Section 4.1.5, or Section 4.1.6, and provided that Company and Executive have no disputes regarding the payment of any severance amounts under this Agreement, Executive shall be available, subject to his other reasonable commitments or obligations made or incurred in mitigation of the termination of his employment, by telephone, email or fax, as a consultant to the Company, without further compensation, to consult with its officers and directors regarding projects and/or tasks as defined by the Board. In no extent shall the consulting services required pursuant to this Section 4.3 exceed 80 hours.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

4.4. Treatment of Equity. To the extent not specifically provided for herein, the vesting and exercisability of equity and equity-based awards (if any) held by the Executive at termination, and all other terms of such equity and equity-based awards (if any), shall be governed by the Equity Agreements.

 

4.5. Timing for Payments. In the event any of the sixty (60) day periods for payment of severance or other amounts due hereunder begins in one taxable year and ends in a second taxable year, then the Company’s payment of amounts due hereunder shall be made no earlier than the first day of the second taxable year.

 

ARTICLE V.

INVENTIONS

 

5.1. Inventions in General. As described in further detail in this ARTICLE V, all processes, technologies and inventions relating to the business of the Company (collectively, “Inventions”), including new contributions, improvements, ideas, discoveries, trademarks and trade names, conceived, developed, invented, made or found by Executive, alone or with others, during his employment by the Company, whether or not patentable and whether or not conceived, developed, invented, made or found on the Company’s time or with the use of the Company’s facilities or materials, shall be the property of the Company and shall be promptly and fully disclosed by Executive to the Company. Executive shall perform all necessary acts (including, without limitation, executing and delivering any confirmatory assignments, documents or instruments requested by the Company) to assign or otherwise to vest title to any such Inventions in the Company and to enable the Company, at its sole expense, to secure and maintain domestic and/or foreign patents or any other rights for such Inventions.

 

5.2. Inventions Retained and Licensed. Executive has attached hereto, as Exhibit A, a list describing all inventions, discoveries, original works of authorship, developments, improvements, and trade secrets, which were conceived in whole or in part by Executive prior to his employment with the Company to which Executive has any right, title or interest, which relate to the Company’s proposed business, products, or research and development (“Prior Inventions”); or, if no such list is attached, Executive represents and warrants that there are no such Prior Inventions. Furthermore, Executive represents and warrants that the inclusion of any Prior Inventions from Exhibit A of this Agreement will not materially affect his ability to perform all obligations under this Agreement. If, in the course of Executive’s employment with the Company, Executive incorporates into or uses in connection with any product, process, service, technology or other work by or on behalf of Company any Prior Invention, Executive hereby grants to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license, with the right to grant and authorize sublicenses, to make, have made, modify, use, import, offer for sale, and sell such Prior Invention as part of or in connection with such product, process, service, technology or other work and to practice any method related thereto.

 

5.3. Assignment of Inventions. Executive agrees that Executive will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assigns to the Company, or its designee, all of his right, title, and interest in and to any and all inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not patentable or registrable under patent, copyright or similar laws, which Executive may solely or jointly conceive, develop, or reduce to practice, or cause to be conceived, developed, or reduced to practice, during his employment with the Company, or with the use of Company’s equipment, supplies, facilities, or Confidential/Trade Secret Information (collectively referred to as “Conceived Inventions”). All Conceived Inventions that Executive conceives, reduces to practice, develops or has developed (in whole or in part, either alone or jointly with others) shall be the sole property of the Company and its assigns to the maximum extent permitted by law (and to the fullest extent permitted by law shall be deemed “works made for hire”). Executive also agrees to irrevocably assign (or cause to be irrevocably assigned) and hereby irrevocably assigns to the Company all right, title and interest in all Conceived Inventions and any copyrights, patents, trademarks, trade secrets, mask work rights, moral rights and intellectual property and other rights (“Intellectual Property Rights”). Executive understands and agrees that the decision whether or not to commercialize or market any Conceived Inventions is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty or other consideration will be due to Executive as a result of the Company’s efforts to commercialize or market any such Conceived Inventions.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

5.4. Assignment of Other Rights. In addition to the foregoing assignment of Inventions to the Company, Executive hereby irrevocably transfers and assigns to the Company: (i) all worldwide patents, patent applications, copyrights, mask works, trade secrets and other intellectual property rights in any Conceived Inventions; and (ii) any and all “Moral Rights” (as defined below) that Executive may have in or with respect to any Conceived Inventions. Executive also hereby forever waives and agrees never to assert any and all Moral Rights Executive may have in or with respect to any Conceived Inventions, even after termination of Executive’s work on behalf of the Company. “Moral Rights” means any rights to claim authorship of any Conceived Inventions, to object to or prevent the modification of any Conceived Inventions, or to withdraw from circulation or control the publication or distribution of any Conceived Inventions, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right”.

 

5.5. Inventions Assigned to the United States. Executive agrees to assign to the United States government all of his right, title, and interest in and to any and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United States or any of its agencies.

 

5.6. Maintenance of Records. Executive agrees to keep and maintain adequate, current, accurate, and authentic written records of all such Conceived Inventions, which may be in the form of notes, sketches, drawings, electronic files, reports, or any other format that may be specified by the Company and which will be available to and remain the sole property of the Company at all times.

 

5.7. Patent and Copyright Registrations. Executive agrees to take steps that may be necessary to assist the Company, or its designee, at the Company’s expense, in every proper way to complete the transfer of and secure the Company’s rights in the Conceived Inventions, Intellectual Property Rights and any rights relating thereto in any and all countries, including by making the disclosure to the Company of all pertinent information and data with respect thereto, executing all applications, specifications, oaths, assignments and all other instruments which the Company shall deem proper or necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Conceived Inventions and any rights relating thereto, and by testifying in a suit or other proceeding relating to such Conceived Inventions and any rights relating thereto. Executive further agrees that his obligation to execute or cause to be executed, when it is in his power to do so, any such instrument or papers shall continue after the termination of this Agreement. If the Company is unable because of Executive’s mental or physical incapacity or for any other reason to secure Executive’s signature with respect to any Conceived Inventions including, without limitation, to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering such Conceived Inventions, then Executive hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as his agent and attorney in fact, to act for and in his behalf and stead to execute and file any papers, oaths and to do all other lawfully permitted acts with respect to such Conceived Inventions with the same legal force and effect as if executed by Executive.

 

ARTICLE VI.

CONFIDENTIAL/TRADE SECRET INFORMATION

 

AND RESTRICTIVE COVENANTS; NON-COMPETE

 

6.1. Confidential/Trade Secret Information. During the course of Executive’s employment, Executive will have access to Confidential/Trade Secret Information of the Company and information developed for the Company.

 

6.2. Non-Compete. For $10 and in exchange for Executive’s access to Confidential/Trade Secret Information and other good and valuable consideration which Executive acknowledges the receipt and sufficiency of, Executive agrees to (a) devote substantially all of Executive’s business time, energy and efforts to the business of the Company (except as specifically provided for in Section 6.5 below), (b) to use Executive’s best efforts and abilities faithfully and diligently to promote the business interests of the Company and (c) to comply with the other terms and conditions of ARTICLE VI. For so long as Executive is employed hereunder, and for the twelve months following the Termination Date, Executive (whether by himself, through his employers or employees or agents or otherwise, and whether on his own behalf or on behalf of any other Person) shall not, directly or indirectly, either as an employee, employer, consultant, agent, investor, principal, partner, stockholder (except as the holder of less than 1% of the issued and outstanding stock of a publicly held corporation), own, manage, operate, control, be employed by, act as an officer, director, agent or consultant for, or be in any other way connected with or provide services or products to or for, any Person in the business of manufacturing, selling, creating, renting, distributing, marketing, producing, undertaking, developing, supplying, or otherwise dealing with or in Restricted Services or Restricted Products in the Restricted Area.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

6.3. Non-Solicitation During Employment. During his employment with the Company, Executive shall not: (a) interfere with the Company’s business relationship with its customers or suppliers, (b) solicit, directly or indirectly, or otherwise encourage any of the Company’s customers or suppliers to terminate their business relationship with the Company, or (c) solicit, directly or indirectly, or otherwise encourage any employees of the Company to leave the employ of the Company, or solicit any of the Company’s employees for employment outside the Company.

 

6.4. Restriction on Use of Confidential/Trade Secret Information. Executive agrees that his use of Confidential/Trade Secret Information is subject to the following restrictions for an indefinite period of time so long as the Confidential/Trade Secret Information does not become generally known to the public:

 

(i) Non-Disclosure. Executive agrees that he will not publish or disclose, or allow to be published or disclosed, Confidential/Trade Secret Information to any person without the prior written authorization of the Company unless pursuant to or in connection with Executive’s job duties to the Company under this Agreement or as otherwise allowed pursuant to the terms of this Agreement; and

 

(ii) Non-Removal/Surrender. Executive agrees that he will not remove any Confidential/Trade Secret Information from the offices of the Company or the premises of any facility in which the Company is performing services, except pursuant to his duties under this Agreement and except as needed in any legal action to enforce the terms of this Agreement. Executive further agrees that he shall surrender to the Company and/or destroy all documents and materials in his possession or control which contain Confidential/Trade Secret Information and which are the property of the Company upon the termination of his employment with the Company, and that he shall not thereafter retain any copies of any such materials except as needed in any legal action to enforce the terms of this Agreement.

 

6.5.Other Activities. Subject to the foregoing prohibition and provided such services or investments do not violate any applicable law, regulation or order, or interfere in any way with the faithful and diligent performance by Executive of the services to the Company otherwise required or contemplated by this Agreement, the Company expressly acknowledges that Executive may:

 

6.5.1 make and manage personal business investments of Executive’s choice without consulting the Board;

 

6.5.2 serve in any capacity with any non-profit civic, educational or charitable organization; and

 

6.5.3 undertake any other actions, business transactions, agreements and undertakings of which the Executive has received approval of the Related Party Transaction Committee (as defined below) or the Audit Committee of the Company, to enter into and/or undertake, provided that

 

6.5.4 Executive shall undertake only such actions or services that do not interfere with the Executive’s obligations hereunder.

 

6.6. Prohibition Against Unfair Competition/Non-Solicitation of Customers. Executive agrees that at no time after his employment with the Company will he engage in competition with the Company while making any use of the Confidential/Trade Secret Information, or otherwise exploit or make use of the Confidential/Trade Secret Information. Executive agrees that during the twelve-month period following the Termination Date, he will not, for any customer of the Company with whom Executive worked or otherwise had access to the Confidential/Trade Secret Information pertaining to the Company’s business with such customer during the last year of Executive’s employment with the Company, (i) directly or indirectly accept or solicit, in any capacity, Restricted Services or Restricted Products or (ii) solicit, directly or indirectly, or encourage any of the Company’s customers or suppliers to terminate their use of Restricted Products or Restricted Services.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

6.7. Non-Solicitation of Employees. Executive agrees that during the twelve-month period following the Termination Date, he shall not, directly or indirectly, solicit or otherwise encourage any employees of the Company to leave the employ of the Company, or solicit, directly or indirectly, any of the Company’s employees for employment.

 

6.8. Former Employer Information. Executive agrees that he will not, during his employment with the Company, improperly use or disclose, or induce the Company to use any proprietary information or trade secrets of any former or concurrent employer or other third party person or entity and that Executive will not bring onto the premises of the Company or transfer onto the Company’s technology systems any proprietary information or trade secrets belonging to any such former or concurrent employer or third party person or entity, unless consented to in writing by both Company and such employer, person or entity.

 

6.9. Third Party Information. Executive acknowledges that the Company may have received and in the future may receive from third parties associated with the Company (including, but not limited to, the Company’s customers, suppliers, licensors, licensees, partners, or collaborators (“Associated Third Parties”)) confidential or proprietary information (“Associated Third Party Confidential Information”). By way of example, Associated Third Party Confidential Information may include the habits or practices, technology, or requirements of Associated Third Parties, or other information related to the business conducted between the Company and Associated Third Parties. Executive agrees that Associated Third Party Confidential Information is Confidential/Trade Secret Information, and at all times during Executive’s employment with the Company and thereafter, Executive agrees to hold in the strictest confidence, and not to use or to disclose to any Person any Associated Third-Party Confidential Information, except as necessary in carrying out his work for the Company consistent with the Company’s agreement with such Associated Third Parties.

 

6.10. Immunity From Liability for Certain Confidential Disclosures and Certain Allowed Disclosures. Executive acknowledges, agrees, and understands that (i) nothing in this Agreement prohibits him from reporting to any governmental authority or attorney information concerning suspected violations of law or regulation, provided that Executive does so consistent with 18 U.S.C. § 1833, and (ii) Executive may disclose trade secret information to a government official or to an attorney and use it in certain court proceedings without fear of prosecution or liability, provided that Executive does so consistent with 18 U.S.C. § 1833.

 

6.11. Conflict of Interest. During Executive’s employment with the Company, Executive must not engage in any work, paid or unpaid, that creates an actual conflict of interest with the Company. If the Company or the Executive has any question as to the actual or apparent potential for a conflict of interest, either shall raise the issue formally to the other, and if appropriate and necessary the issue shall be put to the Related Party Transaction Committee or Audit Committee of the Company for consideration and approval or non-approval, which approval or non-approval the Executive agrees shall be binding on the Executive.

 

6.12. Reasonable Restrictions. The Parties acknowledge that the foregoing restrictions, as well as the duration and the territorial scope thereof as set forth in this ARTICLE VI or ARTICLE V, are under all of the circumstances reasonable and necessary for the protection of the Company and its business and are (i) reasonable given Executive’s role with the Company, and are necessary to protect the interests of the Company and (ii) completely severable and independent agreements supported by good and valuable consideration and, as such, shall survive the termination of this Agreement for any reason whatsoever.

 

6.13. Specific Performance. Executive acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of this ARTICLE VI or ARTICLE V would be inadequate and, in recognition of this fact, Executive agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, shall be entitled to obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available. Executive further agrees that the restricted period set forth in this ARTICLE VI or ARTICLE V shall be tolled, and shall not run, during the period of any breach by Executive of any of the covenants contained this ARTICLE VI or ARTICLE V, as applicable. Finally, no other violation of law attributed to the Company, or change in the nature or scope of Executive’s employment or other relationship with the Company, shall operate to excuse Executive from the performance of his obligations under this ARTICLE VI or ARTICLE V. The remedies under this Agreement are without prejudice to the Company’s right to seek any other remedy to which it may be entitled at law or in equity.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

6.14. Response to Legal Process; Allowable Disclosures. Notwithstanding any other term of this Agreement (including this ARTICLE VI or ARTICLE V), including any exhibit hereto, (a) the Executive may respond to a lawful and valid subpoena or other legal process relating to the Company or its business or operations; provided that the Executive shall: (i) give the Company the earliest possible notice thereof; (ii) as far in advance of the return date as possible, at the Company’s sole cost and expense, make available to the Company and its counsel the documents and other information sought; and (iii) at the Company’s sole cost and expense, assist such counsel in resisting or otherwise responding to such process, or (b) the Executive’s reporting of possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Exchange Act, or any other whistleblower protection provisions of state or federal law or regulation shall not violate or constitute a breach of this Agreement. Nothing contained in this Agreement (or any exhibit hereto) shall be construed to prevent the Executive from reporting any act or failure to act to the Securities and Exchange Commission or other governmental body or prevent the Executive from obtaining a fee as a “whistleblower” under Rule 21F-17(a) under the Exchange Act or other rules or regulations implemented under the Dodd-Frank Wall Street Reform Act and Consumer Protection Act.

 

ARTICLE VII.

INDEMNIFICATION

 

7.1. Required Indemnification. The Company agrees to indemnify Executive and hold Executive harmless from and against any and all losses, claims, damages, liabilities and costs (and all actions in respect thereof and any legal or other expenses in giving testimony or furnishing documents in response to a subpoena or otherwise), including, without limitation, the costs of investigating, preparing or defending any such action or claim, whether or not in connection with litigation in which Executive is a party, as and when incurred, directly or indirectly caused by, relating to, based upon or arising out of any work performed by Executive in connection with this Agreement to the full extent permitted by the Texas Business Organizations Code, and by the Certificate of Formation and Bylaws of the Company, as may be amended from time to time, and pursuant to any indemnification agreement between Executive and the Company.

 

7.2. In Addition to Other Obligations. The indemnification provision of this ARTICLE VII shall be in addition to any liability which the Company may otherwise have to Executive.

 

7.3. Notification and Required Actions. If any action, proceeding or investigation is commenced as to which Executive proposes to demand such indemnification, Executive shall notify the Company with reasonable promptness. Executive shall have the right to retain counsel of Executive’s own choice to represent Executive and the Company shall pay all reasonable fees and expenses of such counsel; and such counsel shall, to the fullest extent consistent with such counsel’s professional responsibilities, cooperate with the Company and any counsel designated by the Company. The Company shall be liable for any settlement of any claim against Executive made with the Company’s written consent, which consent shall not be unreasonably withheld or delayed, to the fullest extent permitted by the Texas Business Organizations Code and the Certificate of Formation and Bylaws of the Company, as may be amended from time to time.

 

ARTICLE VIII.

ARBITRATION

 

8.1. Scope. To the fullest extent permitted by law, Executive and the Company agree to the binding arbitration of any and all controversies, claims or disputes between them arising out of or in any way related to this Agreement, the employment relationship between the Company and Executive and any disputes upon termination of employment, including but not limited to breach of contract, tort, discrimination, harassment, wrongful termination, demotion, discipline, failure to accommodate, family and medical leave, compensation or benefits claims, constitutional claims; and any claims for violation of any local, state or federal law, statute, regulation or ordinance or common law. For the purpose of this agreement to arbitrate, references to “Company” include all subsidiaries or related entities and their respective executives, supervisors, officers, directors, agents, pension or benefit plans, pension or benefit plan sponsors, fiduciaries, administrators, affiliates and all successors and assigns of any of them, and this agreement to arbitrate shall apply to them to the extent Executive’s claims arise out of or relate to their actions on behalf of the Company.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

8.2. Mediation and Arbitration Procedure. Before bringing any dispute to arbitration, and presuming that there is sufficient time prior to expiration of the limitations period to do so, the Parties agree that they will first mediate that dispute in good faith. They will agree on the mediator and split equally the costs of mediation. To commence any such arbitration proceeding, the Party commencing the arbitration must provide the other Party with written notice of any and all claims forming the basis of such right in sufficient detail to inform the other Party of the substance of such claims, and file this notice with the American Arbitration Association (“AAA”). The arbitration will be conducted in such location as mutually agreed upon by the Company and the Executive, provided that if such parties cannot mutually agree on a location, the arbitration shall be conducted in the city where the Company’s principal business location is located, by a single neutral arbitrator and in accordance with the then-current rules for resolution of employment disputes of the AAA. The Arbitrator is to be selected by the mutual agreement of the Parties using the AAA procedures. If the Parties cannot agree, the AAA will select the arbitrator. The Parties are entitled to representation by an attorney or other representative of their choosing. The arbitrator shall have the power to enter any award that could be entered by a judge of the trial court of the State of Texas, and only such power, and shall follow the law. The award shall be binding and the Parties agree to abide by and perform any award rendered by the arbitrator. The arbitrator shall issue the award in writing and therein state the essential findings and conclusions on which the award is based. Judgment on the award may be entered in any court having jurisdiction thereof. The Parties shall split equally the costs in the arbitration and, should the arbitrator find reasonable grounds for doing so, the arbitrator may order the losing Party in the arbitration hearing to bear the full costs of the arbitration filing and hearing fees and the cost of the arbitrator, including requiring such losing Party to reimburse the winning Party for such costs and expenses as previously paid.

 

8.3. Limitations Period; Deadline to Assert Claims. Executive and the Company and its affiliates agree that arbitration of any disputes, claims, or controversies shall be initiated within one year of the act or occurrence giving rise to the dispute, claim or controversy, even though that deadline is or may be shorter than the period provided by statutes of limitations that would apply in the absence of this Section. Any claim that is not asserted in an arbitration within one (1) year of the act or occurrence giving rise to it shall be deemed waived. In order to effectuate this waiver of limitations, the Company waives its right to argue that Executive may not proceed with his claim(s) due to his failure to file any charge or complaint with a government agency having jurisdiction of his claim(s) under state and federal laws, such as the Equal Employment Opportunity Commission, Texas Workforce Commission-Civil Rights Division, or Occupational Safety and Health Administration.

 

ARTICLE IX.

MISCELLANEOUS

 

9.1. Binding Effect; Assignment. This Agreement shall be binding upon any successor (whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets. Any such successor will within a reasonable period of becoming the successor assume in writing and be bound by all of the Company’s obligations under this Agreement. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business or assets that becomes bound by this Agreement. Executive may not assign any of his rights or obligations under this Agreement.

 

9.2. Notices. Any notice provided for herein shall be in writing and shall be deemed to have been given or made (a) when personally delivered or (b) when sent by email and confirmed within 48 hours by letter mailed or delivered to the Party to be notified at its or his address set forth herein; or three (3) days after being sent by registered or certified mail, return receipt requested (or by equivalent currier with delivery documentation such as FEDEX or UPS) to the address of the other Party set forth or to such other address as may be specified by notice given in accordance with this Section 9.2:

 

	If to the Company:		Mangoceuticals, Inc.
			15110 N. Dallas Pkwy. Suite 600
			Dallas, Texas 75248
			Telephone: (833) 626-4679
			Attention: Secretary

 

	If to the Executive:		Jacob Cohen
			(Address and contact information on file)

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

9.3. Severability. If any provision of this Agreement, or portion thereof, shall be held invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall attach only to such provision or portion thereof, and shall not in any manner affect or render invalid or unenforceable any other provision of this Agreement or portion thereof, provided that should a court of competent jurisdiction determine that the scope of any provision of this Agreement is too broad to be enforced as written, the Parties hereby authorize the court to reform the provision to such narrower scope as it determines to be reasonable and enforceable and the Parties intend that the affected provision be enforced as so amended.

 

9.4. Waiver. No waiver by a Party of a breach or default hereunder by the other Party shall be considered valid, unless expressed in a writing signed by such first Party, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or any other nature.

 

9.5. Entire Agreement. This Agreement, along with the Equity Agreements, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior agreements between the Company and Executive, whether written or oral, relating to any or all matters covered by and contained or otherwise dealt with in this Agreement, including, but not limited to the Prior Agreement. This Agreement does not constitute a commitment of the Company with regard to Executive’s employment, express or implied, other than to the extent expressly provided for herein.

 

9.6. Amendment. No modification, change or amendment of this Agreement or any of its provisions shall be valid, unless in a writing signed by the Parties and approved by the Committee or the Board of Directors.

 

9.7. Authority. The Parties each represent and warrant that it/he has the power, authority and right to enter into this Agreement and to carry out and perform the terms, covenants and conditions hereof.

 

9.8. Attorneys’ and Arbitration Fees. Except as prohibited by law, if either Party hereto commences an arbitration or other action against the other Party to enforce any of the terms hereof, each Party shall pay its own costs and attorney’s fees, if any. If, however, any Party prevails on a statutory or contractual claim that affords the prevailing party attorneys’ fees (including pursuant to this Agreement), the arbitrator may award reasonable attorneys’ fees to the prevailing party to the extent permitted by law.

 

9.9. Construction. When used in this Agreement, unless a contrary intention appears: (i) a term has the meaning assigned to it; (ii) “or” is not exclusive; (iii) “including” means including without limitation; (iv) words in the singular include the plural and words in the plural include the singular, and words importing the masculine gender include the feminine and neuter genders; (v) any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein; (vi) the words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision hereof; (vii) references contained herein to Article, Section, Schedule and Exhibit, as applicable, are references to Articles, Sections, Schedules and Exhibits in this Agreement unless otherwise specified; (viii) references to “writing” include printing, typing, lithography and other means of reproducing words in a visible form, including, but not limited to email; (ix) references to “dollars”, “Dollars” or “$” in this Agreement shall mean United States dollars; (x) reference to a particular statute, regulation or Law means such statute, regulation or Law as amended or otherwise modified from time to time; (xi) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein); (xii) unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”; (xiii) references to “days” shall mean calendar days; and (xiv) the paragraph headings contained in this Agreement are for convenience only, and shall in no manner be construed as part of this Agreement.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

9.10. Governing Law. This Agreement, and all of the rights and obligations of the Parties in connection with the employment relationship established hereby, shall be governed by and construed in accordance with the substantive laws of the State of Texas without giving effect to principles relating to conflicts of law.

 

9.11. Survival. The termination of Executive’s employment with the Company pursuant to the provisions of this Agreement shall not affect Executive’s obligations to the Company hereunder which by the nature thereof are intended to survive any such termination, including, without limitation, Executive’s obligations under ARTICLE V and ARTICLE VI of this Agreement.

 

9.12. Section 280G Safe Harbor Cap. In the event it shall be determined that any payment or distribution or any part thereof of any type to or for the benefit of Executive whether pursuant to the Agreement or any other agreement between Executive and the Company, or any person or entity that acquires ownership or effective control the Company or ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the “Code”)) whether paid or payable or distributed or distributable pursuant to the terms of the Agreement or any other agreement, (the “Total Payments”), is or will be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Total Payments shall be reduced to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), if the net after-tax payment to Executive after reducing Executive’s Total Payments to the Safe Harbor Cap is greater than the net after-tax (including the Excise Tax) payment to Executive without such reduction. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payment made pursuant to the Agreement and then to any other agreement that triggers such Excise Tax, unless an alternative method of reduction is elected by Executive. All mathematical determinations, and all determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code), that are required to be made under ARTICLE IV, including determinations as to whether the Total Payments to Executive shall be reduced to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinations, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”). In making such determinations, the Accounting Firm shall allocate payments hereunder to Executive’s covenants under ARTICLE VI and to services provided or required to be provided following a Change of Control to the maximum extent permissible. If the Accounting Firm determines that the Total Payments to Executive shall be reduced to the Safe Harbor Cap (the “Cutback Payment”) and it is established pursuant to a final determination of a court or an Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that the Cutback Payment is in excess of the limitations provided in this Section 9.12 (hereinafter referred to as an “Excess Payment”), such Excess Payment shall be deemed for all purposes to be an overpayment to Executive made on the date such Executive received the Excess Payment and Executive shall repay the Excess Payment to the Company on demand; provided, however, if Executive shall be required to pay an Excise Tax by reason of receiving such Excess Payment (regardless of the obligation to repay the Company), Executive shall not be required to repay the Excess Payment (if Executive has already repaid such amount, the Company shall refund the amount to the Executive), and the Company shall pay Executive an amount equal to the difference between the Total Payments and the Safe Harbor Cap (provided that such amount has previously been repaid by the Executive or not previously paid by the Company).

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

9.13. Section 409A Compliance.

 

9.13.1 This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), or an exemption thereunder. This Agreement shall be construed and administered in accordance with Section 409A. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. Notwithstanding any other provision of this Agreement to the contrary, payments provided under this Agreement shall be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service (including a voluntary separation from service for good reason that is considered an involuntary separation for purposes of the separation pay exception under Treasury Regulation 1.409A-1(n)(2)) or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment. Any payments of “nonqualified deferred compensation” subject to Section 409A (e.g., payments and benefits that do not qualify as a short-term deferral or as a separation pay exception) to be made under this Agreement upon a termination of employment shall only be made if such termination of employment constitutes a “separation from service” under Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by the Executive on account of non-compliance with Section 409A.

 

9.13.2 Notwithstanding any other provision of this Agreement, if at the time of the Executive’s termination of employment, the Executive is a “specified employee”, determined in accordance with Section 409A, any payments and benefits provided under this Agreement that constitute “nonqualified deferred compensation” subject to Section 409A (e.g., payments and benefits that do not qualify as a short-term deferral or as a separation pay exception) that are provided to the Executive on account of the Executive’s separation from service shall not be paid until the first payroll date to occur following the six-month anniversary of the Executive’s termination date (“Specified Employee Payment Date”). The aggregate amount of any payments that would otherwise have been made during such six-month period shall be paid in a lump sum on the Specified Employee Payment Date without interest and thereafter, any remaining payments shall be paid without delay in accordance with their original schedule. If the Executive dies during the six-month period, any delayed payments shall be paid to the Executive’s estate in a lump sum upon the Executive’s death. To the extent that the foregoing applies to the provision of benefits (including, but not limited to, life insurance and medical insurance), such benefit coverage shall nonetheless be provided to the Executive during the first six months following his separation from service (the “Six-Month Period”), provided that, during such Six-Month Period, the Executive pays to the Company, on a monthly basis in advance, an amount equal to the Monthly Cost (as defined below) of such benefit coverage. The Company shall reimburse the Executive for any such payments made by the Executive in a lump sum not later than 30 days following the sixth-month anniversary of the Executive’s separation from service. For purposes of this subparagraph, “Monthly Cost” means the minimum dollar amount which, if paid by the Executive on a monthly basis in advance, results in the Executive not being required to recognize any federal income tax on receipt of the benefit coverage during the Six-Month Period.

 

9.13.3 To the extent required to avoid taxation under Section 409A, each reimbursement or in-kind benefit provided under this Agreement shall be provided in accordance with the following:

 

(i) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year;

 

(ii) any reimbursement of an eligible expense shall be paid to the Executive on or before the last day of the calendar year following the calendar year in which the expense was incurred; and

 

9.13.4 any right to reimbursements or in-kind benefits under this Agreement shall not be subject to liquidation or exchange for another benefit.

 

9.14. Withholding of Taxes and Other Executive Deductions. The Company may withhold from any benefits and payments made pursuant to this Agreement all federal, state, city and other taxes as may be required pursuant to any law or governmental regulation or ruling and any and all other normal Executive deductions made with respect to the Company’s Executives generally.

 

9.15. Clawback. Notwithstanding any provision in this Agreement to the contrary, any portion of the payments and benefits provided under this Agreement, as well as any other payments and benefits which the Executive receives pursuant to a Company plan or other arrangement, shall be subject to a clawback (a) to the extent necessary to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any Securities and Exchange Commission rule or any other applicable law; and/or (b) any policy adopted by the Company and applicable generally to Executive and other officers of the Company, relating to the recovery of compensation granted, paid, delivered, awarded or otherwise provided to Executive by the Company or its subsidiaries or any of their respective affiliates, as applicable, as may be amended from time to time.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

9.16. Legal Counsel. Executive acknowledges and warrants that (A) he has been advised that Executive’s interests may be different from the Company’s interests, (B) he has been afforded a reasonable opportunity to review this Agreement, to understand its terms and to discuss it with an attorney and/or financial advisor of his choice, (C) that Executive fully understands the terms and contents of this Agreement and the exhibits hereto, and (D) he knowingly and voluntarily entered into this Agreement. The Company and Executive shall each bear their own costs and expenses in connection with the negotiation and execution of this Agreement. Executive understands and agrees that any attorney retained by the Company who has discussed any term or condition of this Agreement with Executive or its advisor is only acting on behalf of the Company and not on its behalf.

 

9.17. Right to Negotiate. Executive hereby acknowledges that Executive has been given the opportunity to participate in the negotiation of the terms of this Agreement. Executive acknowledges and confirms that he has read this Agreement and fully understands its terms and contents.

 

9.18. Voluntary Nature of Agreement. Executive acknowledges and agrees that he is executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else. Executive agrees that he has been provided an opportunity to seek the advice of an attorney of his choice before signing this Agreement.

 

9.19. Counterparts, Effect of Facsimile, Emailed and Photocopied Signatures. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, ..tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) shall be treated in all manners and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any Party, each other Party shall re execute the original form of this Agreement and deliver such form to all other Parties. No Party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except to the extent such defense relates to lack of authenticity.

 

[Remainder of page left intentionally blank. Signature page follows]

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

This Agreement contains provisions requiring binding arbitration of disputes. By signing this Agreement, Executive acknowledges that he (i) has read and understood the entire Agreement; (ii) has received a copy of it (iii) has had the opportunity to ask questions and consult counsel or other advisors about its terms; and (iv) agrees to be bound by it.

 

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.

 

“COMPANY”
	MANGOCEUTICALS, INC.
	a Texas corporation
	By:
	Name:	Eugene Johnston
	Title:	Chief Financial Officer
“EXECUTIVE”
	Jacob Cohen
	(Address and contact information on file)

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

EXHIBIT A

 

LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP

 

Title		Date		Identifying Number or Brief Description

 

____X____ No inventions or improvements

________ Additional Sheets Attached

 

Signature of Executive: ______________________________

Print Name of Executive: Jacob Cohen

Date: ______________________________

 

 

EXHIBIT B

 

During the Term of this Agreement, the Executive shall be eligible to receive a bonus of up to $10 million, upon M&P meeting certain milestones and achievements, as set forth in greater detail below. Any cash bonus earned may be converted into shares of common stock of M&P at the M&P Conversion Rate.

 

Milestone/Achievement		Bonus Payable
M&P Revenue Targets (Consolidated, Cumulative since formation)
$5,000,000		$	125,000
$10,000,000		$	250,000
$15,000,000		$	375,000
$20,000,000		$	500,000
$25,000,000		$	625,000
$50,000,000		$	1,250,000
$75,000,000		$	1,875,000
$100,000,000		$	2,500,000
MangoRx Mexico
Launch of First Tadalafil Product		$	250,000
Launch of First Sildenafil Product		$	250,000
Launch of First additional Product		$	250,000
MangoRx UK
Launch of any product in UK market		$	250,000
MangoRx IP Holdings
Completion of Efficacy Trials		$	250,000
Signing of First Licensing Agreement		$	250,000
First Commercialization/Launch of Product		$	250,000
Establishment of MangoRx Asia		$	500,000
Official launch of the PeachesRx brand		$	250,000
Total Cash Bonuses		$	10,000,000

 

The determination of whether or not each milestone/achievement has been met and timing thereof shall be determined by the Board of Directors of the Company in good faith.

 

December 19, 2024		Amended and Restated Executive Employment Agreement		Initials ____ /______
		Jacob Cohen

 

 

 

Exhibit 10.4

 

NOTE PURCHASE AGREEMENT

 

This Note Purchase Agreement (this “Agreement”) is entered into effective as of December 13, 2024 (the “Effective Date”), by and between Mill End Capital Ltd., a British Virgin Islands limited company (“Purchaser”), and Cohen Enterprises, Inc., a Texas corporation (“Note Holder”). Purchaser and Note Holder (each, a “Party” and, together, the “Parties”) agree as follows with respect to that certain outstanding Promissory Note dated October 18, 2024 issued by Mangoceuticals, Inc., a Texas corporation (the “Company”) to Note Holder in the original principal amount of $150,000 (the “Note”, a copy of which is attached hereto as Exhibit A):

 

1. Purchase and Sale. Purchaser hereby purchases from Note Holder and Note Holder hereby sells, transfers, conveys and assigns to Purchaser, for a total of $150,000 in cash (the “Purchase Price”), all right, title and interest of Note Holder in and to the Note.

 

2. Payment of Purchase Price. The Purchase Price will be paid to Note Holder by Purchaser simultaneously with the Parties’ entry into this Agreement.

 

3. Cooperation. Note Holder will furnish Purchaser will all documentation and evidence supporting the Note, and reasonably cooperate in providing any other information and taking any other action that Purchaser deems necessary or appropriate to collect on and/or confirm the outstanding amount of the Note subsequent to the date hereof. Upon Purchaser’s reasonable request, Note Holder will duly execute and deliver, or cause to be duly executed and delivered to Purchaser such further instruments and do and cause to be done such further acts as may be necessary or proper in the reasonable opinion of Purchaser to effectuate the provisions and purposes of this Agreement.

 

4. Representations, Warranties and Covenants of Note Holder. Note Holder hereby represents, warrants and covenants to Purchaser as follows:

 

(a) The Note is a bona fide outstanding debt owed by the Company, and is an enforceable obligation arising in the ordinary course of business. The Note is payable in full on the earlier of (a) January 2, 2025, and (b) the date that Note Holder provides the Company written notice of an Acceleration as defined in the Note, or if applicable the date that the amount due becomes automatically subject to Acceleration.

 

(b) The Note is not reasonably subject to dispute and the Company is unconditionally obligated to pay the Note without defense, counterclaim or offset.

 

(c) Note Holder is the sole owner of the Note, free and clear of all liens, encumbrances and rights of third parties. Note Holder has not previously sold, transferred, encumbered (including, but not limited to, providing anyone an option or other right to purchase such Note) or released any part of the Note (including accrued and unpaid interest thereon).

 

 

(d) There has been no amendment, modification, compromise, forbearance, or waiver (written or oral) entered into or given with respect to the Note. There is no action based on the Note that is currently pending in any court or other legal venue, and no judgments based upon the Note have been previously entered in any legal proceeding.

 

(e) Note Holder has all necessary power and authority to (i) execute, deliver and perform all of its obligations under this Agreement, and (ii) sell, convey, transfer and assign the Note to Purchaser. Note Holder has such knowledge and experience in business and financial matters that it is able to protect its own interests and evaluate the risks and benefits of entering into this Agreement. Note Holder acknowledges and agrees that it has had an opportunity to conduct its own due diligence and consult with its own legal counsel, and tax, financial and other advisors, and that Note Holder is not relying in that regard on Purchaser.

 

(f) The execution, delivery and performance of this Agreement by Note Holder has been duly authorized by all requisite action on the part of Note Holder. This Agreement has been duly executed and delivered by Note Holder and constitutes the legal, valid and binding obligation of Note Holder, enforceable against Note Holder in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency or similar laws affecting Note Holder’s rights generally or the availability of equitable remedies.

 

(g) The execution and delivery of this Agreement by Note Holder and the performance of all of its obligations hereunder (i) do not and will not violate, conflict with, breach, or constitute a default under, any material contract, agreement or commitment binding upon such Note Holder, and (ii) do not and will not conflict with or violate any applicable law, rule, regulation, judgment, order or decree of any court or other government authority having jurisdiction over such Note Holder or the Note.

 

(h) There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of Note Holder, threatened against or affecting Note Holder or any of its assets before or by any court, arbitrator, governmental or administrative agency, or regulatory authority that adversely affects or challenges the legality, validity or enforceability of, or that could have or reasonably be expected to result in a material adverse effect on this Agreement.

 

(i) Note Holder will not, directly or indirectly, receive any consideration from or be compensated in any manner by the Company, or any affiliate of the Company, in exchange for or in consideration for selling the Note.

 

 

5. Representations, Warranties and Covenants of Purchaser. Purchaser hereby represents, warrants and covenants to Note Holder as follows:

 

(a) Purchaser realizes that the Note cannot readily be sold and must not be accepted unless Purchaser has liquid assets sufficient to assure that Purchaser can provide for current needs and possible personal contingencies;

 

(b) Purchaser is an “accredited investor” as such term is defined in Rule 501 of the Securities Act of 1933, as amended; and

 

(c) The execution and delivery by Purchaser of this Agreement and the consummation of the transactions contemplated hereby and thereby do not and shall not, by the lapse of time, the giving of notice or otherwise: (a) constitute a violation of any law; or (b) constitute a breach of any provision contained in, or a default under, any governmental approval, any writ, injunction, order, judgment or decree of any governmental authority or any contract to which Purchaser is a party or by which Purchaser is bound or affected.

 

6. Fees and Expenses. Each Party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such Party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. Note Holder understands that Purchaser shall not be liable for any commissions, selling expenses, orders, purchases, contracts, taxes, withholding, or obligations of any kind resulting from any or arising out of settlement of the Note.

 

7. Governing Law; Venue. This Agreement is to be construed in accordance with and governed by the laws of the State of Texas, without giving effect to any choice or conflict of law, rule or regulation (whether of the State of Texas or other jurisdiction) which would cause the application of any law, rule or regulation other than of the State of Texas. Any dispute, claim, controversy, or legal proceeding arising out of or relating to this Agreement in any way (any “Dispute”) shall be exclusively brought before a business court in the Eleventh Business Court Division of the State of Texas (the “Business Court”), if the Dispute meets the jurisdictional requirements of such Business Court; and, if the Dispute does not meet the jurisdictional requirements of such Business Court, or the Business Court is not then accepting new case filings, then the Dispute shall be exclusively brought in the Circuit Court in and for Harris County, Texas. The Parties also hereby consent to supplemental jurisdiction by the Business Court over any claims that are part of the same case or controversy as that which meets the primary jurisdictional requirements of such Business Court. Note Holder shall not assign, or suffer or permit an assignment (by operation of law or otherwise) of, its rights or obligations under or interest in this Agreement without the prior written consent of Purchaser.

 

8. Construction; Survival. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the Parties to express their mutual intent, and no rules of strict construction will be applied against any Party. The representations and warranties contained herein shall survive the closing of the transactions contemplated herein and the assignment of the Note. Wherever the context hereof shall so require, the singular shall include the plural, the masculine gender shall include the feminine gender and the neuter and vice versa.

 

 

9. No Third Party Beneficiaries. This Agreement is intended for the benefit of Note Holder and Purchaser and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by any other person; provided that the Company shall be able to rely on this Agreement for all purposes.

 

10. Entire Agreement. This Agreement, together with the exhibits hereto, contains the entire agreement and understanding of the Parties, and supersedes all prior and contemporaneous agreements, letters, discussions, communications and understandings, both oral and written, concerning the sale, transfer, conveyance and assignment of the Note, which the Parties acknowledge have been merged into this Agreement.

 

11. Severability. Should any clause, sentence, paragraph, subsection, Section or Article of this Agreement be judicially declared to be invalid, unenforceable or void, such decision will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the part or parts of this Agreement so held to be invalid, unenforceable or void will be deemed to have been stricken herefrom by the Parties, and the remainder will have the same force and effectiveness as if such stricken part or parts had never been included herein.

 

12. Review and Construction of Documents. The Note Holder represents to the Purchaser and the Purchaser represents to the Note Holder, that (a) before executing this Agreement, said Party has fully informed itself of the terms, contents, conditions and effects of this Agreement; (b) said Party has relied solely and completely upon its own judgment in executing this Agreement; (c) said Party has had the opportunity to seek and has obtained the advice of its own legal, tax and business advisors before executing this Agreement; (d) said Party has acted voluntarily and of its own free will in executing this Agreement; and (e) this Agreement is the result of arm’s length negotiations conducted by and among the Parties and their respective counsel.

 

13. Remedies. The Parties agree that the covenants and obligations contained in this Agreement relate to special, unique and extraordinary matters and that a violation of any of the terms hereof or thereof would cause irreparable injury in an amount which would be impossible to estimate or determine and for which any remedy at law would be inadequate. As such, the Parties agree that if either Party fails or refuses to fulfill any of its obligations under this Agreement or to make any payment or deliver any instrument required hereunder or thereunder, then the other Party shall have the remedy of specific performance, which remedy shall be cumulative and nonexclusive and shall be in addition to any other rights and remedies otherwise available under any other contract or at law or in equity and to which such Party might be entitled.

 

14. Effect of Facsimile and Photocopied Signatures. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any Party, each other Party shall re-execute the original form of this Agreement and deliver such form to all other Parties. No Party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except to the extent such defense relates to lack of authenticity.

 

[Remainder of page left intentionally blank. Signature page follows.]

 

 

IN WITNESS WHEREOF, the Parties hereto have caused this Note Purchase Agreement to be duly executed, to be effective as of the Effective Date set forth above.

 

NOTE HOLDER:

 

	Cohen Enterprises, Inc.
	By:
	Name:	Jacob Cohen
	Title:	President and CEO

 

PURCHASER:

 

	Mill End Capital Ltd
	By:
	Name:	George Sandhu
	Title:

 

COMPANY:

 

Solely approving and consenting to the sale of the Note and confirming that it will, subsequent to the Effective Date, recognize the Purchaser as the sole owner of the Note:

 

Mangoceuticals, Inc.

 

By:
Name:	Eugene Johnston
Its:	Chief Financial Officer

 

 

 

Exhibit 99.1

 

Mangoceuticals, Inc. Completes Acquisition of Mushroom-Based Wellness and Innovations Patent

 

Dallas, TX / December 19, 2024 – Mangoceuticals, Inc. (NASDAQ: MGRX) (“MangoRx” or the “Company”), a company focused on developing, marketing, and selling men’s health and wellness products via a secure telemedicine platform, today announced the acquisition of patent number WO 2023/086647 PCT/US2022/049857, for mushroom-derived compositions and methods of treatment. This new addition to MangoRx’s intellectual property portfolio highlights the Company’s commitment to innovative solutions that support holistic health and wellness.

 

The acquired patent encompasses nutraceutical compositions derived from functional mushrooms, including well-known varieties such as Cordyceps sinensis, Ganoderma lucidum (Reishi), and Hericium erinaceus (Lion’s Mane). These formulations are designed to deliver a range of health benefits, such as enhancing immune function, boosting cognitive performance, supporting mood and mental clarity, providing adaptogenic and antioxidant benefits, and suppressing appetite. The patent also specifies the flexibility of the formulations, allowing for the combination of these compounds in precise dosages to maximize synergistic effects. This versatility opens doors for creating targeted wellness products that cater to diverse health needs.

 

“This acquisition is a significant step forward in our mission to provide cutting-edge wellness solutions,” commented Jacob Cohen, Founder and CEO of MangoRx, who continued, “We believe that the unique properties of these mushroom-derived formulations offer tremendous potential for products that can address a wide spectrum of health concerns, from immune support to cognitive enhancement.”

 

The Company’s acquisition comes at a time when the global nutraceutical market continues to expand rapidly, driven by increased consumer awareness of natural health solutions. According to a recent study performed by Mordor Intelligence, the global functional mushroom market alone was valued at USD 32.41 billion in 2024 and is projected to grow to USD 48.59 billion by 2029, representing a compound annual growth rate (CAGR) of 8.44%. According to industry trends, functional mushrooms have become a cornerstone of this market due to their scientifically validated benefits and versatility in addressing key health concerns.

 

The Company plans to leverage this patent to research and develop a new line of wellness products aimed at improving overall health through scientifically backed natural formulations. Products derived from these compositions may include dietary supplements and functional foods. Daily immune support may harness the antioxidant properties of Reishi and Chaga mushrooms, while planned cognitive boosting supplements are expected to feature Lion’s Mane for the promotion of enhanced brain function and nerve health. Planned stress resilience formulas are projected utilize the adaptogenic properties of Cordyceps to manage stress and improve energy levels, and weight management aids will incorporate appetite-suppressing and metabolism-supporting properties of these mushroom compounds. Future proprietary formulations are planned to align with the growing demand for adaptogens and functional supplements that promote long-term health. The Company aims to differentiate its offerings through stringent ingredient validation, ensuring that each product meets the highest standards of efficacy and quality.

 

About MangoRx

 

MangoRx is focused on developing a variety of men’s health and wellness products and services via a secure telemedicine platform. To date, the Company has identified men’s wellness telemedicine services and products as a growing sector and especially related to the area of erectile dysfunction (ED), hair growth, hormone replacement therapies, and weight management. Interested consumers can use MangoRx’s telemedicine platform for a smooth experience. Prescription requests will be reviewed by a physician and, if approved, fulfilled and discreetly shipped through MangoRx’s partner compounding pharmacy and right to the patient’s doorstep. To learn more about MangoRx’s mission and other products, please visit www.MangoRx.com or on social media @Mango.Rx.

 

 

Cautionary Note Regarding Forward-Looking Statements

 

Certain statements made in this press release contain forward-looking information within the meaning of applicable securities laws, including within the meaning of the Private Securities Litigation Reform Act of 1995 (“forward-looking statements”). These forward-looking statements represent the Company’s current expectations or beliefs concerning future events and can generally be identified using statements that include words such as “estimate,” “expects,” “project,” “believe,” “anticipate,” “intend,” “plan,” “foresee,” “forecast,” “likely,” “will,” “target” or similar words or phrases. These forward-looking statements are subject to risks, uncertainties and other factors, many of which are outside of the Company’s control which could cause actual results to differ materially from the results expressed or implied in the forward-looking statements, relating to, among other things: the investigation into, outcome of the investigation regarding, and potential lawsuits, claims and actions regarding, a potential stock manipulation scheme relating to the Company’s common stock following the Company’s recent reverse stock split; the outcome of certain outstanding legal matters, claims and allegations, the requirement that the Company spend cash and management’s resources on such matters, even if the Company ultimately prevails in such matters, risks associated with certain counterparties to lawsuits having significantly greater resources than us, settlements we may choose to enter into in the future and the terms thereof, and potential regulatory reviews, inquiries or lawsuits, which are brought about by claims made in private lawsuits; the review and evaluation of strategic transactions and their impact on shareholder value; the process by which the Company engages in evaluation of strategic transactions; the outcome of potential future strategic transactions and the terms thereof; the ability of the Company to raise funding, the terms of such funding, and dilution caused thereby; our ability to meet the continued listing requirements of Nasdaq; our ability to maintain the listing of our common stock on Nasdaq; our ability to commercialize our patent portfolio; our ability to obtain Comisión Federal para la Protección contra Riesgos Sanitarios for our ED product in Mexico, the costs thereof and timing associated therewith; our ability to obtain additional funding and generate revenues to support our operations; risks associated with our products which have not been, and will not be, approved by the U.S. Food and Drug Administration (“ FDA ”) and have not had the benefit of the FDA’s clinical trial protocol which seeks to prevent the possibility of serious patient injury and death; risks that the FDA may determine that the compounding of our products does not fall within the exemption from the Federal Food, Drug, and Cosmetic Act (“ FFDCA Act ”) provided by Section 503A; risks associated with related party relationships and agreements; the effect of data security breaches, malicious code and/or hackers; competition and our ability to create a well-known brand name; changes in consumer tastes and preferences; material changes and/or terminations of our relationships with key parties; significant product returns from customers, product liability, recalls and litigation associated with tainted products or products found to cause health issues; claims, lawsuits and litigation relating to our intellectual property, including allegations that our intellectual property infringes on the intellectual property of others, costs related to any such claims or lawsuits and resources required to expend in connection therewith; our ability to innovate, expand our offerings and compete against competitors which may have greater resources; our significant reliance on related party transactions and risks associated with related party relationships and agreements; the projected size of the potential market for our technologies and products; risks related to the fact that our Chairman and Chief Executive Officer, Jacob D. Cohen has significant voting control over the Company; risks related to the significant number of shares in the public float, our share volume, the effect of sales of a significant number of shares in the marketplace; dilution caused by recent and future offerings; conversion of outstanding shares of preferred stock and the rights and preferences thereof, the fact that we have a significant number of outstanding warrants to purchase shares of common stock and other convertible securities, the resale of which underlying shares have been registered under the Securities Act of 1933, as amended, dilution caused by exercises/conversions thereof, overhang related thereto, and decreases in the trading price of our common stock caused by sales thereof; our ability to build and maintain our brands; cybersecurity, information systems and fraud risks and problems with our websites; changes in, and our compliance with, rules and regulations affecting our operations, sales, marketing and/or our products; shipping, production or manufacturing delays; regulations we are required to comply with in connection with our operations, manufacturing, labeling and shipping; our dependency on third-parties to prescribe and compound our products; our ability to establish or maintain relations and/or relationships with third-parties; potential safety risks associated with our products, including the use of ingredients, combination of such ingredients and the dosages thereof; the effects of changing rates of inflation and interest rates, and economic downturns, including potential recessions, as well as macroeconomic, geopolitical, health and industry trends, pandemics, acts of war (including the ongoing Ukraine/Russian conflict and war in Israel) and other large-scale crises; our ability to protect intellectual property rights; our ability to attract and retain key personnel to manage our business effectively; overhang which may reduce the value of our common stock; volatility in the trading price of our common stock; and general consumer sentiment and economic conditions that may affect levels of discretionary customer purchases of the Company’s products, including potential recessions and global economic slowdowns. Although we believe that our plans, intentions and expectations reflected in or suggested by the forward-looking statements we make in this release are reasonable, we provide no assurance that these plans, intentions or expectations will be achieved. Consequently, you should not consider any such list to be a complete set of all potential risks and uncertainties.

 

 

More information on potential factors that could affect the Company’s financial results is included from time to time in the “Cautionary Note Regarding Forward-Looking Statements,” “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” sections of the Company’s filings with the SEC, including the Company’s Annual Report on Form 10-K for the year ended December 31, 2023 and our Quarterly Report on Form 10-Q for the quarter September 30, 2024, and subsequent reports. These filings are available at www.sec.gov and at our website at https://www.mangoceuticals.com/sec-filings . All subsequent written and oral forward-looking statements attributable to the Company or any person acting on behalf of the Company are expressly qualified in their entirety by the cautionary statements referenced above. Other unknown or unpredictable factors also could have material adverse effects on the Company’s future results. The forward-looking statements included in this press release are made only as of the date hereof. The Company cannot guarantee future results, levels of activity, performance or achievements. Accordingly, you should not place undue reliance on these forward-looking statements. Finally, the Company undertakes no obligation to update these statements after the date of this release, except as required by law, and takes no obligation to update or correct information prepared by third parties that are not paid for by the Company. If we update one or more forward-looking statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements.

 

Follow MangoRx on social media:

 

https://www.instagram.com/mango.rx
https://x.com/mango_rx
https://www.facebook.com/MangoRxOfficial

 

FOR INVESTOR RELATIONS

 

Mangoceuticals Investor Relations

Email: investors@mangorx.com

 

v3.24.4

Cover	Dec. 13, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Dec. 13, 2024
Entity File Number	001-41615
Entity Registrant Name	MANGOCEUTICALS, INC.
Entity Central Index Key	0001938046
Entity Tax Identification Number	87-3841292
Entity Incorporation, State or Country Code	TX
Entity Address, Address Line One	15110 N. Dallas Parkway
Entity Address, Address Line Two	Suite 600
Entity Address, City or Town	Dallas
Entity Address, State or Province	TX
Entity Address, Postal Zip Code	75248
City Area Code	(214)
Local Phone Number	242-9619
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, $0.0001 Par Value Per Share
Trading Symbol	MGRX
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false

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