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): August 18, 2015
Synergy
CHC Corp.
|
(Exact
name of registrant as specified in its charter) |
Nevada |
|
000-55098 |
|
99-0379440 |
(State or other
jurisdiction
of incorporation) |
|
(Commission
File
Number) |
|
(IRS Employer
ID Number) |
865 Spring Street,
Westbrook, ME |
|
04092 |
(Address of principal
executive offices) |
|
(Zip Code) |
Registrant’s
telephone number, including area code (615) 939-9004
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))
Item
1.01. Entry into a Material Definitive Agreement.
On
August 18, 2015 (the “Closing Date”), we entered into a Contribution Agreement with Hand MC Corp., a Delaware corporation,
whereby we contributed to Hand MD Corp. 2,142,857 shares of our common stock in exchange for 50% of Hand MD Corp.’s outstanding
capital securities. Simultaneously, Hand MD, LLC, a California limited liability company, entered into a Contribution Agreement
with Hand MD Corp., the principal owners of Hand MD, LLC, and us whereby Hand MD LLC contributed to Hand MD Corp. all of its right,
title and interest in its intellectual property associated with skincare, nail care and nail polish products (the “Hand
MD Business”) in exchange for the other 50% of Hand MD Corp.’s outstanding capital securities. In the Contribution
Agreement among Hand MD Corp., Hand MD, LLC, the principal owners of Hand MD, LLC and us, Hand MD, LLC and its principal owners
agreed to not compete or solicit customers or employees for five years. As part of the transaction, we also purchased from Hand
MD Corp. all inventory related to the Hand MD Business for approximately $97,000.
We
also entered into a license agreement with Hand MD Corp. on August 18, 2015, whereby we acquired the exclusive worldwide license
to commercialize Hand MD Corp. skincare products and all improvements thereto. The license runs in perpetuity unless earlier terminated.
We will pay Hand MD Corp. a royalty of 5% of the net sales price of product sold, transferred or otherwise disposed of by us,
as well as 5% of any amount we receive from sublicensees, subject to a minimum royalty of $250,000 in the second year of the license
and $500,000 in the third year of the license, after which the minimum royalty terminates. We are solely responsible for any regulatory
and intellectual property filings, including those necessary to maintain regulatory approvals for the licensed products. Either
we or Hand MD Corp. can terminate the agreement in the event of bankruptcy or insolvency of the other party, or the uncured material
breach of the agreement by the other party. Upon termination we would be entitled to sell any inventory of licensed product in
the normal course of business and consistent with sales of licensed product during the term of the agreement.
The
Contribution Agreements and the License Agreement contain customary representations and warranties and covenants by the respective
parties.
We
also entered into a Consulting Agreement on August 18, 2015, with Kara Harshbarger, the co-founder of Hand MD, LLC, pursuant to
which she will provide marketing and sales related services. We will pay Ms. Harshbarger $10,000 a month for one year unless the
Consulting Agreement is terminated earlier by either party. If we terminate the Consulting Agreement without cause, we will be
obligated to pay the remaining term of the Agreement. Ms. Harshbarger agreed not to compete with us in the United States in any
marketing or sales of skincare, nail polish and nail care products during the term of the Consulting Agreement and for 12 months
after its termination. Ms. Harshbarger also agreed not to solicit customers or employees for the same period.
The
foregoing descriptions of the Contribution Agreements, the License Agreement and the Consulting Agreement are not complete and
are qualified in their entirety by reference to the Contribution Agreements, the License Agreement and the Consulting Agreement,
which are filed as Exhibits 10.9, 10.10, 10.11 and 10.12, respectively, to this Current Report on Form 8-K, and are incorporated
into this report by reference.
Item
2.01. Completion of Acquisition or Disposition of Assets.
The
information in Item 1.01 of this Report is incorporated herein by reference.
Audited
abbreviated financial statements of the Hand MD Business as of December 31, 2013 and 2014 and for the years ended December 31,
2013 and 2014 and unaudited abbreviated financial statements of the Hand MD Business as of June 30, 2015 and for the six months
ended June 30, 2014 and 2015, and the unaudited pro forma balance sheet of our company as of June 30, 2015, and the unaudited
pro forma financial statements of our company for the year ended December 31, 2014 and the six months ended June 30, 2015 as if
the acquisition of the Hand MD Business had occurred at the beginning of each of those respective periods, are expected to be
filed by amendment to this Current Report on Form 8-K not later than November 3, 2015.
Item
3.02. Unregistered Sale of Equity Securities.
The
information regarding the issuance of 2,142,857 shares of our common stock to Hand MD Corp. in Item 1.01 of this Report is incorporated
herein by reference. The shares of common stock issued to Hand MD Corp. were sold in a transaction exempt from registration under
the Securities Act of 1933, as amended (the “Securities Act”), in reliance on Section 4(a)(2) thereof. The 2,142,857
shares of our common stock issued to Hand MD Corp. may not be offered or sold in the United States absent registration or exemption
from registration under the Securities Act and any applicable state securities laws.
Item
8.01 Other Events.
On
August 19, 2015, we issued a press release announcing the investment in Hand MD Corp. and the License Agreement with Hand MD Corp.
A copy of the press release is attached hereto as Exhibit 99.1.
On
August 20, 2015, we issued a press release announcing that Al Baumeler had been named EVP Sales & Marketing (Retail). A copy
of the press release is attached hereto as Exhibit 99.2.
Item
9.01. Financial Statements and Exhibits.
(d) Exhibits
|
Exhibit
No. |
|
Description |
|
|
|
|
|
10.9 |
|
Contribution
Agreement, dated August 18, 2015, by and between Synergy CHC Corp. and Hand MD Corp. |
|
|
|
|
|
10.10 |
|
Contribution
Agreement, dated August 18, 2015, by and among Hand MD, LLC, Kara Harshbarger, Alex Khadavi, Afshin Shergani, Synergy
CHC Corp. and Hand MD Corp.
|
|
|
|
|
|
10.11 |
|
Intellectual
Property License Agreement, dated August 18, 2015, between Synergy CHC Corp. and Hand MD Corp. |
|
|
|
|
|
10.12 |
|
Consulting Agreement,
dated August 18, 2015, between Synergy CHC Corp. and Kara Harshbarger. |
|
|
|
|
|
99.1 |
|
Press release
dated August 19, 2015. |
|
|
|
|
|
99.2 |
|
Press release
dated August 20, 2015. |
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.
|
SYNERGY
CHC CORP. |
|
|
Date:
August 21, 2015 |
/s/
Jack Ross |
|
Jack Ross |
|
President and
Chief Executive Officer |
Exhibit
10.9
CONTRIBUTION
AGREEMENT
This
Contribution Agreement (the “Agreement”) is made effective as of the 18th
day of August, 2015 (the “Effective Date”) between Synergy CHC Corp., a Nevada corporation
(“Synergy”); and Hand MD Corp., a Delaware corporation (“Hand MD”). Hand MD
and Synergy are sometimes referred to collectively as the “Parties” and individually as a “Party”.
BACKGROUND
Synergy
desires to contribute shares of its capital stock to Hand MD, under the terms and conditions set forth below in exchange for shares
of the capital stock of Hand MD.
AGREEMENT
NOW,
THEREFORE, for and in consideration of the mutual promises, covenants, and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties agree as follows:
1.
Definitions.
“Closing”
means the consummation of the transactions contemplated by this Agreement;
“Knowledge
of Synergy” or “Synergy’s Knowledge” or a similar phrase means, with respect to any
matter, the actual knowledge of the officers of Synergy, or facts regarding such matter which reasonably should have been known
by such persons after making a diligent inquiry with respect to such matter;
“Transaction
Documents” means this Agreement and the other exhibits hereto and thereto, and all other agreements, instruments,
certificates and other documents to be entered into or delivered by any Party in connection with the transactions contemplated
to be consummated pursuant to any of the foregoing.
2.
Contribution of Securities. In exchange for the issuance of the Hand MD Securities (as defined below), Synergy hereby contributes
to Hand MD 2,142,857 shares of its Common Stock (the “Contributed Equity”).
3.
Issuance of Hand MD Securities. In exchange for the contribution of the Contributed Equity and Synergy’s execution
of this Agreement, Hand MD hereby agrees to issue to Synergy 1,000,000 shares of its Common Stock (the “Hand MD Securities”),
representing fifty percent (50%) of Hand MD’s issued and outstanding capital stock on a fully-diluted basis as of the Closing.
4.
Hand MD Representations. Hand MD hereby represents and warrants to Synergy as follows:
(a)
Corporate Organization. Hand MD is a corporation duly incorporated, validly existing and in good standing under the laws
of the State of Delaware, and has all requisite power and authority and all necessary governmental authority to own, operate or
lease the properties that it purports to own, operate or lease and to carry on its businesses as now conducted.
(b)
Authorization and Validity of Agreement. Hand MD has all requisite power and authority to enter into the Transaction Documents
and to carry out its obligations thereunder. The execution and delivery of the Transaction Documents and the performance of Hand
MD’s obligations thereunder have been duly authorized by all necessary company action by Hand MD, and no other proceedings
on the part of Hand MD are necessary to authorize such execution, delivery and performance. Each of the Transaction Documents has
been duly executed by Hand MD and constitutes its valid and binding obligation, enforceable against it in accordance with its terms.
(c)
No Conflict or Violation. The execution, delivery and performance by Hand MD of the Transaction Documents (i) does not and
will not violate or conflict with any provision of the organizational documents of Hand MD (ii) does not and will not violate any
provision of law, rule or regulation, or any order, judgment or decree of any court or other governmental or regulatory authority;
(iii) does not violate or will not result in a breach of or constitute (with due notice or lapse of time or both) a default under,
or give rise to any acceleration of remedies or any right of termination under, any contract, or other agreement or instrument
to which Hand MD is a party.
5.
Synergy Representations. Synergy hereby represents and warrants as follows:
(a)
Organization. Synergy is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction
of formation.
(b)
Good Standing. Synergy is in good standing in each jurisdiction where the character of its assets owned, operated or leased
or the nature of its activities makes such qualification necessary.
(c)
Authorization and Validity of Agreement. Synergy has all requisite power and authority to enter into the Transaction Documents
and to carry out their obligations thereunder. The execution and delivery of the Transaction Documents and the performance of Synergy’s
obligations thereunder have been duly authorized by all necessary corporate action of Synergy, and no other proceedings on the
part or in respect of Synergy is necessary to authorize such execution, delivery and performance. The Transaction Documents have
been duly executed by Synergy and constitute valid and binding obligations, enforceable against Synergy in accordance with their
respective terms.
(d)
No Conflict or Violation. The execution, delivery and performance by Synergy and of the Transaction Documents does not and
will not (i) conflict with or result in a breach of the terms, conditions, or provisions of, (ii) constitute a default under (whether
with or without the passage of time, the giving of notice or both), (iii) give any third party the right to modify, terminate or
accelerate any obligation under, (iv) result in a violation of, or (v) require any consent, exemption or other action by or notice
or declaration to, or filing with, any third party of any government entity pursuant to (A) any organizational documents of Synergy;
(B) any provision of law, rule or regulation, or any order, judgment or decree of any court or other governmental or regulatory
authority; (C) any contract, lease, sublease, occupancy agreement, loan agreement, mortgage, security agreement, trust indenture
or other agreement or instrument to which Synergy is a party or by which Synergy is bound or to which any of Synergy’s properties
or assets is subject.
(e)
No Intention to Distribute. Synergy understands that the Hand MD Securities have not been registered under the 1933 Act
on the grounds that the sale provided for in this Agreement and the issuance of securities hereunder is exempt from registration
under the 1933 Act, and that Hand MD’s reliance on such exemption is predicated in part on the representations set forth
herein. Synergy realizes that the basis for the exemption may not be present if, notwithstanding such representations, Synergy
has in mind merely acquiring the Hand MD Securities for a fixed or determined period in the future, or for a market rise, or for
sale if the market does not rise. Synergy does not have any such intention.
(f)
No Registration. Synergy understands that the Hand MD Securities may not be sold, transferred or otherwise disposed of without
registration under the 1933 Act or an exemption therefrom, and that in the absence of an effective registration statement covering
the Hand MD Securities or an available exemption from registration under the 1933 Act, the Hand MD Securities must be held indefinitely.
In particular, Synergy is aware that the Hand MD Securities may not be sold pursuant to Rule 144 promulgated under the 1933 Act
unless all of the conditions of that Rule are met. Among the conditions for use of Rule 144 may be the availability of current
information to the public about Hand MD. Synergy represents that, in the absence of an effective registration statement covering
the Hand MD Securities, it will sell, transfer, or otherwise dispose of such shares only in a manner consistent with its representations
set forth herein and the Bylaws of Hand MD, as the same may be amended from time to time.
6.
Execution and Delivery of Instruments. Following the Effective Date, Synergy agrees to duly execute and deliver or cause
to be executed and delivered all instruments of sale, conveyance, transfer and assignment, and all notices, releases, acquittances
and other documents that may be necessary to more fully grant, convey, transfer and assign, and deliver to, and vest in, Hand MD
the Contributed Equity hereby contributed.
7.
Severability. In the event that any part of this Agreement is declared by any court or other judicial or administrative
body to be null, void or unenforceable, said provision shall survive to the extent it is not so declared, and all of the other
provisions of this Agreement shall remain in full force and effect.
8.
Governing Law; Jurisdiction. This Agreement shall be construed, performed and enforced in accordance with, and governed
by, the laws of the State of Delaware, without giving effect to the principles of conflicts of laws thereof. The Parties hereto
irrevocably consent to the exclusive jurisdiction of, the federal and state courts of the State of Delaware located in Wilmington,
Delaware for such purpose.
9.
Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed
to have been duly given (i) on the date of service if served personally on the Party to whom notice is to be given, or (ii) on
the day of delivery by Federal Express or similar overnight courier or the Express Mail service maintained by the U.S. Postal Service,
to the Party as follows:
|
If to Synergy: |
Synergy CHC Corp. |
|
|
865 Spring Street |
|
|
Westbrook, ME 04092 |
|
|
|
|
If to Hand MD: |
Hand MD Corp. |
|
|
865 Spring Street |
|
|
Westbrook, ME 04092 |
|
|
Attn: President |
|
|
|
|
Copy to: |
Wyrick Robbins Yates & Ponton LLP |
|
|
4101 Lake Boone Trail, Suite 300 |
|
|
Raleigh, North Carolina 27607 |
|
|
Attention: Zachary R. Bishop |
Any
Party may change its address for the purpose of this Agreement by giving the other Party written notice of its new address in the
manner set forth above.
10.
Execution of Documents; Counterparts; Delivery by Facsimile or E-Mail. Each party agrees to execute all documents necessary
to carry out the purpose of this Agreement and to cooperate with each other for the expeditious filing of any and all documents
and the fulfillment of the terms of this Agreement. This Agreement may be executed in any number of counterparts with the same
effect as if all parties hereto had signed the same document. All counterparts shall be construed together and shall constitute
one agreement. This Agreement and any signed agreement or instrument entered into in connection with this Agreement or contemplated
hereby, to the extent signed and delivered by facsimile transmission or email (in PDF format), shall be treated in all manner and
respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person.
11.
Successors and Assigns. Any Party hereto may assign this Agreement or any rights or obligations hereunder without the prior
written consent of the other Parties hereto; provided that this Agreement shall inure to the benefit of and shall be binding upon
the successors and assigns of the Parties hereto.
12.
Amendments; Waivers. This Agreement may be amended or modified, and any of the terms, covenants, representations, warranties
or conditions hereof may be waived, only by a written instrument executed by the Parties hereto, or in the case of a waiver, by
the Party waiving compliance. Any waiver by any Party of any condition, or of the breach of any provision, term, covenant, representation
or warranty contained in this Agreement, in any one or more instances, shall not be deemed to be nor construed as further or continuing
waiver of any such condition, or of the breach of any other provision, term, covenant, representation or warranty of this Agreement.
13.
Entire Agreement. This Agreement, and the Exhibits hereto contain the entire understanding between the Parties hereto with
respect to the transactions contemplated hereby and thereby and supersede and replace all prior agreements and understandings,
oral or written, with regard to such transactions. All exhibits hereto and any documents and instruments delivered pursuant to
any provision hereof are expressly incorporated herein and made a part of this Agreement as fully as though completely set forth
herein. This Agreement shall only be binding on the Parties hereto upon execution and delivery of this Agreement by each of the
Parties.
[THE
NEXT PAGE IS THE SIGNATURE PAGE]
IN
WITNESS WHEREOF, each of the undersigned parties has duly executed this Contribution Agreement, effective as of the date first
set forth above.
|
HAND MD CORP. |
|
|
|
|
By: |
/s/ Jack Ross |
|
Name: |
Jack Ross |
|
Title: |
President |
|
|
|
|
SYNERGY CHC CORP. |
|
|
|
|
By: |
/s/ Jack Ross |
|
Name: |
Jack Ross |
|
Title: |
CEO |
Exhibit
10.10
CONTRIBUTION
AGREEMENT
This
Contribution Agreement (the “Agreement”) is made effective as of the 18th day of August,
2015 (the “Effective Date”) among Hand MD, LLC, a California limited liability company (“Seller”);
Kara Harshbarger, Alex Khadavi and Afshin Shargani (each a “Principal Owner”); Synergy CHC Corp., a
Nevada corporation (“Synergy”); and Hand MD Corp., a Delaware corporation (“Hand MD”).
Hand MD, Synergy, Principal Owners and Seller are sometimes referred to collectively as the “Parties”
and individually as a “Party”.
BACKGROUND
A.
Seller is engaged in the business of developing, manufacturing, and selling skincare, nail care and nail polish products (the
“Products”) (the Products and the business related to the Products is collectively the “Seller
Business”).
B.
The Principal Owners, either directly or indirectly, collectively own all of the equity of Seller.
C.
Seller holds all right, title and interest in and to all Intellectual Property used in the Seller Business.
D.
Seller wishes to contribute the Intellectual Property, together with certain other assets, to Hand MD under the terms and conditions
set forth below in exchange for shares of the capital stock of Hand MD. Hand MD will be jointly owned by Synergy and Seller.
AGREEMENT
NOW,
THEREFORE, for and in consideration of the mutual promises, covenants, and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties agree as follows:
1.
Definitions.
“Affiliate”
means, as to any Person, any other Person which directly or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, “control” (including, with its correlative meanings, “controlled
by” and “under common control with”) shall mean possession, directly or indirectly, of the power to direct or
cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests,
by contract or otherwise) of such Person;
“Assigned
Contracts” means all contracts, licenses, instruments, obligations, promises, undertaking, and equipment leases
and other agreements, whether written or oral, which are used in, support the production and sale of the Products or are related
to the Seller Business;
“Closing”
means the consummation of the transactions contemplated by this Agreement;
“Files
and Records” shall mean all files and records, whether in hard copy or digital, electronic, data, magnetic or other
format, of Seller relating to or used in connection with the Seller Business or otherwise relating to the Contributed Assets;
“Intellectual
Property” means all intellectual property rights whether protected, created or arising under the laws of
the United States or any other jurisdiction, including the following: (i) patents and patent applications; (ii) trademarks and
service marks, including all applications and registrations and goodwill related to the foregoing; (iii) copyrights, including
all applications and registrations related to the foregoing (including, without limitation, for all designs); (iv) Internet domain
names; (v) telephone numbers, electronic mail addresses and social media accounts and registrations, including but not limited
to accounts and registrations with Facebook, LinkedIn, Twitter, and other similar services; and (vi) trade secrets, know-how,
ideas, creative works, inventions, discoveries, methods, processes, technical data, specifications, research and development information,
technology, software or computer programs, and data base.
“IP
Assets” has the meaning set forth in Section 5;
“Knowledge
of Seller” or “Seller’s Knowledge” or a similar phrase means, with respect to any
matter, the actual knowledge of the members, officers or managers of Seller or the Principal Owners, or facts regarding such matter
which reasonably should have been known by such persons after making a diligent inquiry with respect to such matter;
“Person”
means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust,
any other unincorporated organization or government;
“Transaction
Documents” means this Agreement, the Bill of Sale, the IP Assignment Agreement, and the other exhibits and schedules
hereto and thereto, and all other agreements, instruments, certificates and other documents to be entered into or delivered by
any Party in connection with the transactions contemplated to be consummated pursuant to any of the foregoing.
2.
Contribution of Assets. In exchange for the issuance of the Hand MD Securities (as defined below), Seller hereby grants,
conveys, assigns, transfers and delivers to Hand MD all rights, title and interest in and to all of its intellectual property
assets, including, without limitation, those specific assets set forth on Exhibit A attached hereto, and its Files and
Records (collectively, the “Contributed Assets”).
3.
Issuance of Hand MD Securities. In exchange for the contribution of the Contributed Assets and Seller’s execution
of this Agreement, Hand MD hereby agrees to issue to Seller 1,000,000 shares of its Common Stock (the “Hand MD Securities”),
representing fifty percent (50%) of Hand MD’s issued and outstanding capital stock on a fully-diluted basis as of the Closing.
4.
Hand MD Representations. Hand MD hereby represents and warrants to Seller as follows:
(a)
Corporate Organization. Hand MD is a corporation duly incorporated, validly existing and in good standing under the laws
of the State of Delaware, and has all requisite power and authority and all necessary governmental authority to own, operate or
lease the properties that it purports to own, operate or lease and to carry on its businesses as now conducted.
(b)
Authorization and Validity of Agreement. Hand MD has all requisite power and authority to enter into the Transaction Documents
and to carry out its obligations thereunder. The execution and delivery of the Transaction Documents and the performance of Hand
MD’s obligations thereunder have been duly authorized by all necessary company action by Hand MD, and no other proceedings
on the part of Hand MD are necessary to authorize such execution, delivery and performance. Each of the Transaction Documents
has been duly executed by Hand MD and constitutes its valid and binding obligation, enforceable against it in accordance with
its terms.
(c)
No Conflict or Violation. The execution, delivery and performance by Hand MD of the Transaction Documents (i) does not
and will not violate or conflict with any provision of the organizational documents of Hand MD (ii) does not and will not violate
any provision of law, rule or regulation, or any order, judgment or decree of any court or other governmental or regulatory authority;
(iii) does not violate or will not result in a breach of or constitute (with due notice or lapse of time or both) a default under,
or give rise to any acceleration of remedies or any right of termination under, any contract, or other agreement or instrument
to which Hand MD is a party.
5.
Seller Representations. Seller and each of the Principal Owners hereby jointly and severally represent and warrant as follows:
(a)
Organization. Seller is a limited liability company duly organized, validly existing and in good standing under the laws
of its jurisdiction of formation. The members of Seller do not, whether in their individual capacities or through any other entity,
engage in any other business that competes with the Seller Business.
(b)
Qualification to Do Business. Seller has the requisite power and authority and all necessary governmental authority to
own, operate or lease the Contributed Assets, and is in good standing in each jurisdiction where the character of its assets owned,
operated or leased or the nature of its activities makes such qualification necessary.
(c)
Authorization and Validity of Agreement. Seller and the Principal Owners each have all requisite power and authority to
enter into the Transaction Documents and to carry out their obligations thereunder. The execution and delivery of the Transaction
Documents and the performance of Seller’s and the Principal Owners’ obligations thereunder have been duly authorized
by all necessary corporate or member action of Seller, and no other proceedings on the part or in respect of Seller or the Principal
Owners is necessary to authorize such execution, delivery and performance. The Transaction Documents have been duly executed by
Seller and the Principal Owners and constitute valid and binding obligations, enforceable against Seller and the Principal Owners
in accordance with their respective terms.
(d)
No Conflict or Violation. The execution, delivery and performance by Seller and the Principal Owners of the Transaction
Documents does not and will not (a)(i) conflict with or result in a breach of the terms, conditions, or provisions of, (ii) constitute
a default under (whether with or without the passage of time, the giving of notice or both), (iii) give any third party the right
to modify, terminate or accelerate any obligation under, (iv) result in a violation of, or (v) require any consent, exemption
or other action by or notice or declaration to, or filing with, any third party of any government entity pursuant to (A) any organizational
documents of Seller; (B) any provision of law, rule or regulation, or any order, judgment or decree of any court or other governmental
or regulatory authority; (C) any contract, lease, sublease, occupancy agreement, loan agreement, mortgage, security agreement,
trust indenture or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of Seller’s
properties or assets is subject; or (D) the Assigned Contracts or other rights, agreements or licenses constituting the Contributed
Assets; or (b) otherwise interfere in any material manner with the operation of the Seller Business or the Contributed Assets
or have any material adverse effect thereon.
(e)
QVC Statements. Attached hereto are financial statements regarding sale of the Products on QVC. The statements are complete
and correct and accurately reflect sales of the Products.
(f)
Absence of Undisclosed Liabilities; Indebtedness. Seller has no indebtedness or liability, absolute or contingent, involving,
affecting or relating to the Seller Business, the Contributed Assets, or the transactions contemplated by the Transaction Documents.
(g)
Intellectual Property.
| i. | “IP Assets”
means all of the following materials owned or licensed by Seller with respect to the Seller Business: (A) all Intellectual Property
used in the Seller Business, including, but not limited to, the proprietary formulas for the Products; (B) all domain names used
by the Seller Business; (C) all the content on and accessible through the websites associated with such domain names; and (D)
the entire Seller Business marketing database consisting of all available customer information and all marketing, advertising
and promotional materials, including logos, colors, videos, booklet designs, catalogs, solicitations, email templates, advertisements
and all other Seller Business marketing materials (whether in draft or final form). |
| | |
| ii. | Exhibit
A lists all patented, registered, applied-for, and other Intellectual Property used in the Seller Business, and all Intellectual
Property of Seller licensed to any third Person (collectively, the “Business Intellectual Property”),
including the registration and application information, date of application or issuance and relevant jurisdiction as to each,
and whether or not the Business Intellectual Property is owned or licensed. Business Intellectual Property that is licensed by
Seller from a third party is “Licensed Intellectual Property”). |
| | |
| iii. | Seller owns all right, title and interest in and to, or has a valid and enforceable license to use, all IP Assets, Business Intellectual
Property, and the Licensed Intellectual Property, free and clear of all liens, and all patented or registered Business Intellectual
Property is valid and enforceable. Seller has taken commercially reasonable steps to maintain the confidentiality of all information
that constitutes a trade secret of the Seller Business. Seller has the valid right to transfer the Intellectual Property included
in the Contributed Assets to Hand MD as contemplated hereunder. |
| | |
| iv. | (a) the conduct
of the Seller Business, including the delivery and distribution of the Products has not infringed and does not infringe on any
Intellectual Property or any other proprietary rights of any individual or entity, including but not limited to the rights of
privacy or publicity; (b) no Person is infringing, violating or misappropriating any Business Intellectual Property; (c) Seller
has not taken any action, or failed to take any action, during prosecution of any application that could reasonably be expected
to result in the invalidation or unenforceability of any registered Business Intellectual Property; (d) Seller is not currently
a party to any pending suit, claiming any alleged infringement or misappropriation of any Business Intellectual Property; (e)
Seller has not received within the prior three (3) years any written notice, and is not currently a party to any pending suit,
claiming any alleged infringement or misappropriation of the Intellectual Property rights of other Persons with respect to its
or their use of Intellectual Property or the Products; (f) Seller has not entered into any contract that includes a forbearance
to sue or settlement contract with respect to any Intellectual Property; and (g) Seller has not received any written notice of
any claim within the prior three (3) years, and is not currently a party to any pending suit, which challenges the validity or
enforceability of, Seller’s ownership of or right to use, any Intellectual Property (excluding, for clarity, office actions)
or the Products. Seller has secured and has in place a policy to secure valid written confidentiality contracts and assignments
of Intellectual Property from all consultants, contractors, employees and customers who contribute or have contributed to the
creation, conception, reduction to practice or other development of any Intellectual Property developed on behalf of Seller. |
(h)
Compliance with Law. The manufacture and sale of the Products, the operation of the Seller Business, and the business of
Seller has been conducted in material compliance with all applicable laws and other requirements of all courts and other governmental
or regulatory authorities having jurisdiction over the Seller and its assets, properties and operations. Seller has not received
notice of any violation (or possible violation) of any such law or other legal requirement, and the Seller is not in default with
respect to any order, writ, judgment, award, injunction or decree of any federal, state or local court or governmental or regulatory
authority, applicable to Seller, the Seller Business, or the Contributed Assets. Without limiting the foregoing, Seller has not
received any warning letter or untitled letter, report of inspectional observations, including FDA Form 483s, establishment inspection
reports, notices of violation, clinical holds, enforcement notices or other documents from the FDA or any other similar governmental
entity or any institutional review board or independent ethics committee alleging a lack of material compliance by Company with
any laws. No “bulk sales” or similar law applies to the transactions contemplated by this Agreement. Seller holds
all permits required for the conduct of the Seller Business and the ownership of its properties.
(i)
Litigation. There are no claims, actions, suits, proceedings, complaints or investigations pending or, to the Knowledge
of the Seller, threatened, before any federal, state, provincial or local court or governmental or regulatory authority, domestic
or foreign, or before any arbitrator of any nature, brought by or against the Seller or any of its members, managers, officers,
directors, employees, agents or Affiliates involving, affecting or relating to Seller, any member or manager of Seller, the Seller
Business, the Contributed Assets, or the transactions contemplated by the Transaction Documents.
(j)
Assigned Contracts. Each contract assigned to Hand MD is valid, binding and enforceable against the parties thereto in
accordance with its terms, and in full force and effect on the date hereof, except as may be limited by applicable bankruptcy,
insolvency, moratorium or similar laws of general application relating to or affecting creditors’ rights generally and except
for the limitations imposed by general principles of equity. Each Assigned Contract will remain in full force and effect without
penalty in accordance with its terms upon consummation of the Closing. Seller has performed all payment and other obligations
required to be performed by it to date hereunder, and is not in default or delinquent in performance, status or any other respect
(claimed or actual) in connection with, any Assigned Contract, and, to the Knowledge of the Seller, no event has occurred which,
with due notice or lapse of time or both, would constitute such a default. To the Knowledge of Seller, no other party to any Assigned
Contract is in default in respect thereof, and, to the Knowledge of Seller, no event has occurred which, with due notice or lapse
of time or both, would constitute such a default. There is no breach or cancellation or anticipated breach or cancellation by
the other parties to any Assigned Contract.
(k)
Title to Contributed Assets. Seller has good and valid title to, or a valid leasehold interest in, the Contributed Assets,
free and clear of all liens.
(l)
Product and Service Warranties; Adverse Events. Seller has made no express warranty or guarantee to any customer as to
services or goods provided by Seller. There is no pending or, to the Knowledge of Seller, threatened claim alleging any breach
of any warranty or guarantee. There have not been any adverse events with respect to the Products of the Seller Business.
(m)
Clients and Vendors. Seller maintains commercially reasonable relations with
each of its clients and vendors, and no event has occurred that could materially and adversely affect Seller’s relations
with any client or vendor.
(n)
Status. Seller and the Principal Owners each represent and warrant that (a) it has had an opportunity to discuss the business,
management and financial affairs of Hand MD, has had access to, the management of Hand MD, and has had the opportunity to review
any other information requested by Seller, and (b) Hand MD will be relying upon Seller’s and the Principal Owners’
representations and warranties set forth herein in offering the Hand MD Securities to it. Seller and the Principal Owners further
each represent and warrant that: (i)(A) it has adequate net worth and means of providing for its current needs and possible contingencies
to sustain a complete loss in the Hand MD Securities, and has no need for liquidity of the Hand MD Securities; (B) it recognizes
that ownership of the Hand MD Securities involves substantial risks, including a risk of total loss of the value of the Hand MD
Securities, and has taken full cognizance of and understands all of the risk factors related to the ownership of the Hand MD Securities;
and (C) it has sufficient knowledge and experience in business and investments, including financial, business and tax matters,
to be capable of evaluating the merits and risks of ownership in Hand MD and making an informed decision about ownership in Hand
MD; or (ii) is an “accredited investor” as such term is defined in Rule 501 of Regulation D.
(o)
Acquisition for Own Account. This Agreement is made with Seller and the Principal Owners in reliance upon such parties’
representations Hand MD, which by its execution hereof Seller and the Principal Owners hereby confirm, that the Hand MD Securities
to be received by it will be acquired for investment for Seller’s own account, not as a nominee or agent, and not with a
view to the sale or distribution of any part thereof, and that it has no present intention of selling, granting participation
in, or otherwise distributing the same. By executing this Agreement, Seller further represents that it does not have any contract,
undertaking, agreement, or arrangement with any person to sell, transfer or grant participations to such person, or to any third
person, with respect to the Hand MD Securities.
(p)
No Intention to Distribute. Seller and the Principal Owners understand that the Hand MD Securities have not been registered
under the Securities Act of 1933, as amended (the “1933 Act”) on the grounds that the sale provided
for in this Agreement and the issuance of securities hereunder is exempt from registration under the 1933 Act, and that Hand MD’s
reliance on such exemption is predicated in part on the representations set forth herein. Sellers and the Principal Owners realize
that the basis for the exemption may not be present if, notwithstanding such representations, Seller has in mind merely acquiring
the Hand MD Securities for a fixed or determined period in the future, or for a market rise, or for sale if the market does not
rise. Seller and the Principal Owners do not have any such intention.
(q)
No Registration. Seller and the Principal Owners understand that the Hand MD Securities may not be sold, transferred or
otherwise disposed of without registration under the 1933 Act or an exemption therefrom, and that in the absence of an effective
registration statement covering the Hand MD Securities or an available exemption from registration under the 1933 Act, the Hand
MD Securities must be held indefinitely. In particular, Seller and the Principal Owners are aware that the Hand MD Securities
may not be sold pursuant to Rule 144 promulgated under the 1933 Act unless all of the conditions of that Rule are met. Among the
conditions for use of Rule 144 may be the availability of current information to the public about Hand MD. Seller and the Principal
Owners represent that, in the absence of an effective registration statement covering the Hand MD Securities, it will sell, transfer,
or otherwise dispose of such shares only in a manner consistent with its representations set forth herein and the Bylaws of Hand
MD, as the same may be amended from time to time.
(r)
Restrictions on Transfer. Seller agrees that in no event
will it make a transfer or disposition of any of the Hand MD Securities (other than pursuant to an effective registration statement
under the 1933 Act, or Rule 144 sale in compliance with the terms of such Rule or, to Hand MD’s reasonable satisfaction,
pursuant to an exemption from the 1933 Act), unless and until (i) Seller shall have notified Hand MD of the proposed disposition
and shall have furnished Hand MD with a statement of the circumstances surrounding the disposition, and (ii) if requested by Hand
MD, at the expense of Seller or transferee, it shall have furnished to Hand MD an opinion of counsel, reasonably satisfactory
to Hand MD, to the effect that such transfer may be made without registration under the 1933 Act.
(s)
No representation or warranty by Seller or the Principal Owners contained in this Agreement, and no statement contained in the
Disclosure Schedules or any other document, certificate or other instrument delivered to or to be delivered by or on behalf of
Seller or the Principal Owners pursuant to this Agreement, contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, in
order to make the statements herein or therein not misleading. Seller does not have Knowledge of any fact that has specific application
to Seller (other than general economic or industry conditions) and that may materially adversely affect the Contributed
Assets, that has not been set forth in this Agreement or the Disclosure Schedules.
6.
Execution and Delivery of Instruments. In addition to any other documents to be delivered under other provisions of this
Agreement, on the Effective Date the Parties will execute and deliver (a) the IP Assignment Agreement, in substantially the form
attached hereto as Exhibit B (the “IP Assignment Agreement”), and (b) a bill of sale substantially
in the form attached hereto as Exhibit C (the “Bill of Sale”). Following the Effective Date,
Seller agrees to duly execute and deliver or cause to be executed and delivered all instruments of sale, conveyance, transfer
and assignment, and all notices, releases, acquittances and other documents that may be necessary to more fully grant, convey,
transfer and assign, and deliver to, and vest in, Hand MD the Contributed Assets hereby granted, conveyed, transferred and assigned.
7.
Post-Closing Matters. Seller shall preserve and maintain its organizational existence and remain in good standing for a
period of at least twenty-four (24) months after the Effective Date. As soon as practicable after the Effective Date, Seller shall
take all action necessary to remove all Product and Seller names and logos and color schemes and any other Intellectual Property
or IP Assets from their respective signage at all locations, letterhead, stationary, advertising, websites and other marketing
materials and other content available for viewing by the public, and will change its name with the California Secretary of State
and all other jurisdictions in which Seller has made registrations to transact business, and any other registrations and/or name
filings such that Seller’s name does not include the words “Hand MD” or any derivative thereof, or any name
which sounds or looks similar thereto, or any trademarks or trade names used in the Seller Business, and Seller shall otherwise
cease to use such names for all purposes, other than as necessary for the winding up of its business affairs.
8.
Noncompetition, Nonsolicitation and Nondisparagement.
(a)
Noncompetition. Seller and the Principal Owners each acknowledge that (i) Hand MD and Synergy would not have entered into
this Agreement but for the agreements and covenants contained in this Section 8; and (ii) the agreements and covenants
contained in this Section 8 are reasonable and appropriate in scope; (iii) the Seller Business is worldwide in scope; and
(iv) the business of Hand MD is worldwide in scope. To induce Hand MD to enter into this Agreement, each of Seller and the Principal
Owners covenants and agrees that during the period commencing on the Effective Date and ending on the fifth (5th) anniversary
of the Effective Date (the “Restricted Period”), Seller, the Principal Owners and their respective Affiliates
shall not, directly or indirectly, (A) engage in any business or activity that competes with the Seller Business; (B) render any
services to any Person for use in competing with Hand MD in connection with the Seller Business; (C) have an interest in any Person
engaged in any business that competes with Hand MD in connection with the Seller Business, in any capacity, including, without
limitation, as a shareholder, officer, director, principal, agent, trustee or consultant or any other relationship or capacity;
provided, however, Seller or any of the Principal Owners may own, solely as an investment, securities of any Person
which are publicly traded if Seller or such Principal Owner, as the case may be (I) is not a controlling Person of, or a member
of a group which controls, such Person and (II) does not own two percent (2%) or more of any class of securities of such Person;
or (D) interfere with business relationships (whether formed heretofore or hereafter) between Hand MD or any of its Affiliates
and customers, suppliers or prospects of the Seller Business. For purposes of this Section 8(a), with respect only to Alex Khadavi,
the “Seller Business” shall be defined as the business of developing, manufacturing, and selling hand
care, nail care and nail polish products.
(b)
Employees of the Business. During the Restricted Period, Seller, the Principal Owners and their respective Affiliates shall
not, directly or indirectly, (i) solicit or encourage any employee or consultant performing services in connection with the Seller
Business to leave the employment or retention of Hand MD or any of its Affiliates, or (ii) hire any such employee or consultant
who was performing services in connection with the Seller Business and who has left the employment or retention of Hand MD or
any of its Affiliates within one (1) year of the termination of such employee’s employment or consultant’s retention
with Hand MD or any of its Affiliates.
(c)
Customers of the Business. During the Restricted Period, Seller, its employees, officers, directors, the Principal Owners,
and their respective Affiliates shall not (i) persuade or attempt to persuade any customer, prospective customer, client, prospective
client, supplier or vendor of Hand MD or any of its Affiliates not to hire or do business with Hand MD or any of its Affiliates
or any successor thereto; (ii) solicit for himself or any Person other than Hand MD or any of its Affiliates, the business of
any Person who is a customer, client, supplier or vendor of Hand MD or any of its Affiliates, or was its customer or supplier
within two (2) years prior to the time of such solicitation to the extent that such business is similar to the business conducted
by such customer or supplier with Hand MD.
(d)
Confidential Information. From and after the Closing, Seller, its members, employees, officers, managers, the Principal
Owners and their respective Affiliates shall keep secret and retain in strictest confidence, and shall not use for the benefit
of itself or others, all confidential matters relating to the Seller Business or Hand MD and its Affiliates, including, but not
limited to, “know how”, trade secrets, customer lists, supplier lists, details of consultant and employment contracts,
pricing policies, operational methods, marketing plans or strategies, product development techniques or plans, business acquisition
plans, technical processes, designs and design projects, processes, inventions, software, source codes, object codes, systems
documentation and research projects and other business affairs (“Confidential Information”), and shall
not disclose them to anyone outside of Hand MD and its Affiliates; provided, however, this covenant shall not apply
to any information which is or becomes generally available to the public other than as a result of disclosure by the Seller, the
Principal Owners or their respective Affiliates. Seller, the Principal Owners and their respective Affiliates may disclose Confidential
Information if required to do so in any legally required government or securities filings, legal proceedings, subpoena, civil
investigative demand or other similar process; provided, that Seller (A) provides Hand MD with prompt notice of such required
disclosure so that Hand MD may attempt to obtain a protective order, (B) cooperates with Hand MD, at Hand MD’s expense,
in obtaining such protective order, and (C) only discloses that Confidential Information which it is absolutely required to disclose
as advised by counsel.
(e)
Nondisparagement. After the Effective Date, Seller and the Principal Owners will not disparage Hand MD, any of Hand MD’s
Affiliates or any of such parties’ shareholders, directors, officers, employees or agents.
(f)
Tolling of Covenant Periods. The Restricted Period provided in this Section 8 shall not include and shall be extended
beyond, any time during which a party is failing to comply with any provision of this Section 8 with respect to such party.
(g)
Blue Penciling. If any term or other provision of this Section 8 is invalid, illegal, or incapable of being enforced
by any rule of law or public policy, all other conditions and provisions of this Section 8 shall nevertheless remain in
full force and effect. Upon determination that any term or other provision is invalid, illegal, or incapable of being enforced,
the parties hereto shall negotiate in good faith to, or the arbitrator making such a determination shall, modify this Section
8 so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
9.
Indemnification.
(a)
Survival. All representations, warranties, covenants and agreements contained herein and all related rights to indemnification
shall survive the Closing.
(b)
Indemnification by Seller. Seller shall defend, indemnify and hold harmless Synergy, its affiliates and their respective
stockholders, directors, officers and employees from and against all claims, judgments, damages, liabilities, settlements, losses,
costs and expenses, including attorneys’ fees and disbursements, arising from or relating to:
| i. | any inaccuracy in or breach
of any of the representations or warranties of Seller contained in this Agreement or any document to be delivered hereunder; or |
| | |
| ii. | any breach or non-fulfillment
of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement or any document to be delivered
hereunder. |
(c)
Indemnification Procedures. Whenever any claim shall arise for indemnification hereunder, Synergy shall promptly
provide written notice of such claim to Seller. In connection with any claim giving rise to indemnity hereunder resulting from
or arising out of any action by a person or entity who is not a party to this Agreement, Seller, at its sole cost and expense
and upon written notice to Synergy, may assume the defense of any such action with counsel reasonably satisfactory to Synergy.
Synergy shall be entitled to participate in the defense of any such action, with its counsel and at its own cost and expense.
If Seller does not assume the defense of any such action, Synergy may, but shall not be obligated to, defend against such action
in such manner as it may deem appropriate, including, but not limited to, settling such action, after giving notice of it to Seller,
on such terms as Synergy may deem appropriate and no action taken by Synergy in accordance with such defense and settlement shall
relieve Seller of its indemnification obligations herein provided with respect to any damages resulting therefrom. Seller shall
not settle any action without Synergy’s prior written consent (which consent shall not be unreasonably withheld or delayed).
10.
Severability. In the event that any part of this Agreement is declared by any court or other judicial or administrative
body to be null, void or unenforceable, said provision shall survive to the extent it is not so declared, and all of the other
provisions of this Agreement shall remain in full force and effect.
11.
Governing Law; Jurisdiction. This Agreement shall be construed, performed and enforced in accordance with, and governed
by, the laws of the State of Delaware, without giving effect to the principles of conflicts of laws thereof. The Parties hereto
irrevocably consent to the exclusive jurisdiction of, the federal and state courts of the State of Delaware located in Wilmington,
Delaware for such purpose.
12.
Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be
deemed to have been duly given (i) on the date of service if served personally on the Party to whom notice is to be given, or
(ii) on the day of delivery by Federal Express or similar overnight courier or the Express Mail service maintained by the U.S.
Postal Service, to the Party as follows:
|
If
to the Seller or any Principal Owner: |
Hand
MD, LLC |
|
|
12121
Wilshire Boulevard #1012 |
|
|
Los Angeles, CA
90025 |
|
|
Attention:
Advanced Skin and Care |
|
|
|
|
Copy to: |
Klehr
Harrison Harvey Branzberg LLP |
|
|
1835
Market Street, Suite 1400 |
|
|
Philadelphia,
PA 19103 |
|
|
Attention:
William W. Matthews, III |
|
|
|
|
If to Hand MD: |
Hand
MD Corp. |
|
|
865
Spring Street |
|
|
Westbrook,
ME 04092 |
|
|
Attention:
President |
|
|
|
|
Copy to: |
Wyrick
Robbins Yates & Ponton LLP |
|
|
4101
Lake Boone Trail, Suite 300 |
|
|
Raleigh,
North Carolina 27607 |
|
|
Attention:
Zachary R. Bishop |
Any
Party may change its address for the purpose of this Agreement by giving the other Party written notice of its new address in
the manner set forth above.
13.
Execution of Documents; Counterparts; Delivery by Facsimile or E-Mail. Each party agrees to execute all documents necessary
to carry out the purpose of this Agreement and to cooperate with each other for the expeditious filing of any and all documents
and the fulfillment of the terms of this Agreement. This Agreement may be executed in any number of counterparts with the same
effect as if all parties hereto had signed the same document. All counterparts shall be construed together and shall constitute
one agreement. This Agreement and any signed agreement or instrument entered into in connection with this Agreement or contemplated
hereby, to the extent signed and delivered by facsimile transmission or email (in PDF format), shall be treated in all manner
and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were
the original signed version thereof delivered in person.
14.
Successors and Assigns. Any Party hereto may assign this Agreement or any rights or obligations hereunder without the prior
written consent of the other Parties hereto; provided that this Agreement shall inure to the benefit of and shall be binding upon
the successors and assigns of the Parties hereto.
15.
Amendments; Waivers. This Agreement may be amended or modified, and any of the terms, covenants, representations, warranties
or conditions hereof may be waived, only by a written instrument executed by the Parties hereto, or in the case of a waiver, by
the Party waiving compliance. Any waiver by any Party of any condition, or of the breach of any provision, term, covenant, representation
or warranty contained in this Agreement, in any one or more instances, shall not be deemed to be nor construed as further or continuing
waiver of any such condition, or of the breach of any other provision, term, covenant, representation or warranty of this Agreement.
16.
Entire Agreement. This Agreement, the Exhibits and schedules hereto contain the entire understanding between the Parties
hereto with respect to the transactions contemplated hereby and thereby and supersede and replace all prior agreements and understandings,
oral or written, with regard to such transactions. All schedules and exhibits hereto and any documents and instruments delivered
pursuant to any provision hereof are expressly incorporated herein and made a part of this Agreement as fully as though completely
set forth herein. This Agreement shall only be binding on the Parties hereto upon execution and delivery of this Agreement by
each of the Parties.
[THE
NEXT PAGE IS THE SIGNATURE PAGE]
IN
WITNESS WHEREOF, each of the undersigned parties has duly executed this Contribution Agreement, effective as of the date first
set forth above.
|
HAND
MD, LLC |
|
|
|
|
By: |
/s/
Kara Harshbarger |
|
Name: |
Kara
Harshbarger |
|
Title: |
President |
|
|
|
|
HAND
MD CORP. |
|
|
|
|
By: |
/s/
Jack Ross |
|
Name: |
Jack
Ross |
|
Title: |
President |
|
|
|
|
SYNERGY
CHC CORP. |
|
|
|
|
By: |
/s/
Jack Ross |
|
Name: |
Jack
Ross |
|
Title: |
CEO |
|
|
|
/s/
Kara Harshbarger |
|
Kara
Harshbarger |
|
|
|
/s/
Alex Khadavi |
|
Alex
Khadavi |
|
|
|
/s/
Afshin Shargani |
|
Afshin
Shargani |
Exhibit
10.11
INTELLECTUAL
PROPERTY LICENSE AGREEMENT
THIS
AGREEMENT, effective August 18, 2015 (the “Effective Date”), is entered into by and between Synergy
CHC Corp., a corporation formed under the laws of the State of Nevada (“Synergy”) and HAND
MD CORP., a corporation incorporated under the laws of Delaware (“Hand”).
RECITALS
WHEREAS,
Hand owns or licenses all right, title and interest in and to certain trademark(s), Know-How, and other intellectual property
relating to a skincare product known as Hand MD; and
WHEREAS,
the Parties desire to enter into an agreement whereby Hand will license to Synergy the exclusive right to manufacture and distribute
the Licensed Products (as defined below), pursuant to the terms and conditions herein.
NOW
THEREFORE in consideration of the mutual promises and covenants contained herein, the Parties, intending to be legally bound,
agree as follows:
DEFINITIONS
Definitions.
The following terms as used hereinafter in this Agreement shall have the meaning set forth in this Section:
“Adverse
Drug Reaction” means a noxious and unintended response to a drug, which occurs at doses normally used or tested for
the diagnosis, treatment, or prevention of a disease or the modification of an organic function.
“Adverse
Drug Event” means any untoward medical occurrence in a patient or clinical investigation subject administered a pharmaceutical
product and which does not necessarily have to have a causal relationship with this treatment.
“Affiliate”
means any corporation, firm, partnership or other entity that directly or indirectly controls, is controlled by or is under common
control with a Party, with “control” meaning ownership of greater than fifty percent (50%) of the voting stock or
other voting interests in the Party or the right to receive over fifty percent (50%) of the profits or earnings of the Party.
Such other relationship as in fact results in actual control over the management, business, and affairs of a Party shall also
be deemed to constitute control.
“Agreement”,
“hereto”, “hereunder”, “herein” and similar expressions mean this Intellectual Property
License Agreement.
“Applicable
Laws” means any law, regulation, rule, guidance, order, judgment or decree having the force of law in the Territory.
“Business
Day” means any day other than (i) Saturday or Sunday or (ii) a day that is a legal holiday in New York, New York, or
(iii) any other day on which banks in New York, New York are required to be closed.
“Commercial
Sale” means any shipment of the Licensed Products in the Territory pursuant to an arm’s length sale by Synergy
or its Affiliates to a Third Party.
“Commercialize”
means marketing, using, distributing, promoting, offering for sale, and selling the Licensed Products.
“Effective
Date” means the date specified in the initial paragraph of this Agreement.
“Force
Majeure” has the meaning set forth in Section 0.
“GMP”
means good manufacturing practices as required under the rules of the applicable Governmental Authority in the Territory.
“Governmental
Authority” means any federal, state, provincial, or municipal government body, commission, agency, board, court or tribunal
in the Territory and having jurisdiction in the particular circumstances.
“Hand
Indemnified Party” has the meaning set forth in Section 0.
“Hand
Marks” means the trade-marks “Hand MD”, and any other marks Hand may adopt for use for the Licensed Products.
“Improvements”
means any new indications, dosage strengths, reformulations, line extensions or other advances in, modifications or improvements
to the Licensed Products.
“Know-How”
means all scientific, technical, manufacturing, marketing, production, sales and other information relating to the Licensed Products,
as well as any other intellectual property for or related to the Licensed Products, that is known to or controlled by Hand and
which is reasonably necessary for the Commercialization of the Licensed Products in accordance with the terms of this Agreement.
“Launch”
means the date of the first Commercial Sale in the Territory of the applicable Licensed Product.
“Licensed
Products” means the Hand MD skincare products and all Improvements thereto.
“Minimum
Royalty” means $0 for the first 12 months following the Effective Date; $250,00 for months 13 through 24 following the
Effective Date; and $500,000 for months 25 through 36 following the Effective Date.
“Net
Sales” means the gross amounts invoiced by or on behalf of Synergy and its Affiliates for sales of Products to third
parties that are not Affiliates of Synergy in bona fide, arm’s-length transactions, plus any amounts not invoiced in connection
with any wholesale or retail level discounted prices, less the following deductions if and to the extent they are (i) determined
in accordance with Synergy’s accounting standards, (ii) actually taken by Synergy or its Affiliates and (iii) included in
the gross invoiced sales price of any Licensed Products or otherwise directly paid or incurred by Synergy or its Affiliates with
respect to the sale of Licensed Products:
|
(a) |
charge-backs; |
|
|
|
|
(b) |
bad
debt; and |
|
|
|
|
(c) |
amounts
repaid or credited by reasons of defects, rejections, recalls, returns. |
“Party”
means either Hand or Synergy and “Parties” means both Hand and Synergy.
“Regulatory
Approval” means any and all approvals, marketing authorizations, registrations and licenses (including amendments and
supplements thereto) necessary from a Governmental Authority for the Commercialization or manufacture of the Licensed Products
in or for the Territory.
“Regulatory
Submissions” means all applications, filings, dossiers and the like submitted to a Governmental Authority for the purpose
of obtaining Regulatory Approval.
“SDEA”
means the Safety Data Exchange Agreement to be entered into by the Parties within ninety (90) days after the Effective Date.
“Specifications”
means the finished product specifications for each Licensed Product as required by the applicable Regulatory Approval and
as may be modified from time to time in accordance with the provisions of this Agreement.
“Synergy
Indemnified Party” has the meaning set forth in Section 0.
“Territory”
means worldwide.
“Third
Party” means any person other than the Parties and their Affiliates.
Other
Definitional and Agreement References. References to any agreement, contract, statute, act, or regulation are to that agreement,
contract, statute, act, or regulation as amended, modified or supplemented from time to time in accordance with the terms hereof
and thereof.
Ambiguities.
Ambiguities, if any, in this Agreement shall not be construed against any Party, irrespective of which Party may be deemed to
have authored the ambiguous provision.
Sections
and Headings. The term “Section” refers to the specified Section of this Agreement, unless otherwise specified.
Headings and captions of the Sections hereof are for convenience only and are not to be used in the interpretation of this Agreement.
Dollars.
References in this Agreement to “Dollars” or “$” shall mean the legal tender of the United States, unless
otherwise noted.
Date
References. References from or through any date mean, unless otherwise specified, from and including or through and including,
respectively.
Gender.
Words of one gender include the other gender.
Include,
Includes, Including. Whenever the words “include”, “includes” or “including” are used
in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are
in fact followed by those words or words of like import.
Solidary
Obligations. Unless specified otherwise in this Agreement, the obligations of any Party consisting of more than one person
are solidary (joint and several).
No
Strict Construction. This Agreement has been prepared jointly and shall not be strictly construed against either Party.
Number
of Days. Whenever this Agreement refers to a number of days, unless otherwise specified, such number shall refer to calendar
days.
Party
References. Reference to any Party includes the successors and permitted assigns of that Party.
Singular/Plural.
Words using the singular or plural number also include the plural or singular number, respectively.
GRANT
OF RIGHTS
License.
Subject to the terms of this Agreement, Hand hereby grants to Synergy and Synergy hereby accepts, for the Term, and for
the Territory, an exclusive license under the Know-How to Commercialize the Licensed Products.
Sublicensing.
Synergy may sublicense its rights granted hereunder or use sub-distributors or third party service providers to exercise its rights
or fulfill its obligations hereunder. All sublicense agreements, distribution or
other arrangements or agreements shall be consistent with the terms and conditions of this Agreement, and Synergy assumes full
responsibility for any actions taken by any sublicensee, distributor or other party and any of the expenses, costs, or fees incurred
by any sublicensee, distributor or other party.
No
Implied Licenses. Neither Party grants to the other Party any right or license to use any of its intellectual property, Know-How
or other proprietary information, materials or technology, or to practice any of its patent, trademark, or trade dress rights,
except as expressly set forth in this Agreement.
Restriction
on Hand. During the Term of this Agreement, Hand shall not: (i) solicit or accept orders for
distribution of Licensed Products to a Third Party for sale or distribution in the Territory; (ii) distribute any Licensed
Products for sale or use in the Territory; or (iii) grant any license or right with respect to the Licensed Products in
the Territory.
Performance
by Affiliates. The Parties agree that their respective rights and obligations may be exercised or performed by any of their
Affiliates; provided, however, that each Party shall be fully responsible and liable for the actions of such Affiliates in the
performance of such obligations and shall ensure that such Affiliate complies with the terms of this Agreement.
REGULATORY
AND DEVELOPMENT
Regulatory
Submissions. Synergy shall be solely responsible, at its expense, for preparing, filing, and managing any Regulatory Submission
and for maintaining any Regulatory Approval for the Licensed Products in the Territory. Hand shall provide reasonable assistance
to Synergy in making submissions to Governmental Authorities and maintaining such Regulatory Approvals. Unless otherwise required
by Applicable Law, any Regulatory Approvals shall be filed, owned and held in the name of Synergy. Synergy shall notify Hand of
all Regulatory Submissions that it submits.
Regulatory
Correspondence. Each Party shall promptly (and in any event, within five (5) Business Days of the date of receipt of notice)
notify the other Party in writing of, and shall provide the other Party with copies of, any material correspondence received from
a Governmental Authority in the Territory. In the event that a Party receives any material regulatory letter requiring a response,
the other Party will cooperate fully with the receiving Party in preparing such response and will promptly provide the receiving
Party with any data or information required by the Receiving Party in preparing any such response.
Other
Covenants of Synergy. In addition to its other obligations, commitments and undertakings set out in this Agreement, Synergy
agrees to:
assume
the reasonable costs of intellectual property filings, procurement and maintenance for all intellectual property applications
and registrations associated with the Licensed Products in the Territory; and
assume
all marketing, sales and distribution expenses related to the commercialization of the Licensed Products in the Territory.
Other
Covenants of Hand. In addition to its other obligations, commitments and undertakings set out in this Agreement, Hand agrees
to:
provide
Synergy with all documentation relating to the submissions for Regulatory Approval to the U.S. Food and Drug Administration or
the European Medicines Agency or any other Governmental Authority for the Licensed Products within one (1) month from submission;
where
applicable, provide reasonable assistance to Synergy with the Regulatory Submission of the Licensed Products in the Territory;
provide
full assistance and cooperation with respect to securing intellectual property protection in the Territory for the Licensed Products;
not
assign the intellectual property associated with Licensed Products to any Third Party;
coordinate
Launch activities with Synergy, including pharmacovigilence, pricing, reimbursement, positioning and health care conferences;
and
promptly
provide United States and international marketing and sales materials used for the Licensed Products.
TRADEMARKS
Trade-Mark
License. Hand hereby grants to Synergy, for the Term, an exclusive, royalty-free license to use the Hand Marks in the Territory
in association with the Licensed Products.
Ownership.
Synergy acknowledges that the Hand Marks are owned by Hand. The Hand Marks shall be and remain the sole and exclusive property
of Hand. Synergy shall not contest the ownership of the Hand Marks or the validity of any registration relating thereto. Synergy
agrees, at the request of Hand, to execute any and all proper documents appropriate to assist Hand in obtaining and maintaining
Hand’s rights in and to the Hand Marks.
Licensed
Products to Bear Mark. Licensed Products distributed by Synergy under this Agreement shall bear the Hand Marks, subject to
the approval of such labeling by appropriate Governmental Authorities.
No
Similar Mark. Synergy
will not, without Hand’s prior written consent, register or use in connection
with any product, any trade-mark that is confusingly similar to the Hand Marks.
COMMERCIALIZATION
Safety
Data Exchange Agreement. The parties agree to develop and commit to a Safety Data Exchange Agreement (“SDEA”)
that allows them to fulfill their respective regulatory and pharmacovigilence obligations relating to Adverse Drug Event and Adverse
Drug Reaction reporting. Such SDEA will be completed within ninety (90) days after the Effective Date.
Quality
Complaint Reporting. Synergy shall be solely responsible for collecting and responding to any product quality complaint relating
to the Licensed Products received from a customer in the Territory. Synergy shall investigate and provide Hand, in a timely manner,
with reports resulting from such investigations. If Hand receives a product quality complaint relating to the Licensed Products
from a customer in the Territory, it shall investigate and promptly report the investigation results to Synergy, who will be solely
responsible for communication and response, if any, to the customer in the Territory. If Synergy does not or is unable to respond
to any product quality complaints related to the Licensed Products in a timely manner, Hand shall have the right to do so.
Other
Information. In addition to the foregoing information to be provided, each Party shall provide to the other Party with any:
(i) information relating to the efficacy and/or safety of the Licensed Products, including any recall of the Licensed Products;
(ii) complaints from customers, healthcare professionals or competitors in the Territory relating to the Licensed Products; (iii)
information relating to any potential liability to any Third Party in the Territory that is reasonably likely to arise for either
Party in connection with the Commercialization of the Licensed Products in the Territory; (iv) information relating to any inspections,
inquiries, issues raised or actions taken by any Governmental Authority in the Territory;
and (v) any other information necessary or reasonably desirable to enable each Party to comply with any Applicable Law in the
Territory or elsewhere.
Recall.
Synergy shall advise Hand of any Governmental Authority initiated mandatory recall of Licensed Products in the Territory. Prior
to executing any recall of Licensed Products in the Territory, Synergy shall review with Hand the proposed manner in which the
recall is to be carried out. Synergy will give due consideration to any reasonable recommendation from Hand as to the manner of
conducting the recall, provided that it is agreeable to the applicable Governmental Authority. Synergy shall communicate directly
with the applicable Governmental Authorities in relation to a Licensed Products recall in the Territory.
ROYALTIES
Earned
Royalty. In consideration of its license to the Know-How under this Agreement, Synergy shall pay to Hand a royalty of 5% of
the Net Sales Price of each Licensed Product sold, transferred or otherwise disposed of by or for Synergy in the Territory during
Term pursuant to Section 2.1, not including Sublicensing Royalty (“Earned Royalty”), and 5% of all amounts
received by Synergy from any sublicenses granted pursuant to Section 2.2 (“Sublicensing Royalty; the Earned Royalty
and Sublicensing Royalty shall be collectively the “Royalties”).
Minimum
Royalty. If the total Royalties for any calendar quarter is less than the Minimum Royalty, Synergy shall pay Hand the
Earned Royalty plus the difference between the Minimum Royalty and the Earned Royalty for that calendar quarter. For clarity,
the Minimum Royalty (if any) is calculated quarterly (i.e., for months 13 through 24 following the Effective Date, it is $62,500
per calendar quarter). The Minimum Royalty terminates upon the 3 year anniversary of the Effective Date.
Taxes.
Synergy will make all payments to Hand under this Agreement without deduction or withholding for taxes except to the extent that
any such deduction or withholding is required by law in effect at the time of payment. Any tax required to be withheld on amounts
payable by Synergy under this Agreement will be timely paid by Synergy on behalf of Hand to the appropriate Governmental Authority,
and Synergy will furnish Hand with the corresponding proof of payment of such tax, as may be required in order to enable Hand
to request reimbursement or deduction of the withheld amount, or to otherwise comply with its duties. Synergy and Hand agree to
cooperate to legally minimize and reduce such withholding taxes and provide any information or documentation required by any taxing
authority.
Payment
Terms and Royalty Statements
Synergy
shall pay all Royalties (and Minimum Royalties, if applicable) for each calendar quarter within 60 days of the end of such calendar
quarter. Synergy shall make all payments in US dollars by wire transfer of immediately available funds to a bank account to be
designated in writing by Hand.
On
or before the due date for all payments to Hand pursuant to this Section 6, Synergy shall provide Hand with a statement (“Payment
Statement”) showing:
the
total Net Sales Price of all Licensed Products sold, transferred or otherwise disposed of by Synergy and the total Sublicensing
Revenue accrued in the relevant calendar quarter;
the
calendar quarter for which the Earned Royalties and the Sublicensing Royalties were calculated; and
such
other particulars as are reasonably necessary or as may be reasonably requested by Hand for an accurate accounting of the payments
made pursuant to this Agreement.
6.4 | Records.
During the Term of the Agreement and for a period of 2 years from the termination of
this Agreement, Synergy shall keep complete and accurate records of its and its records
that are reasonably necessary for the calculation of payments to be made to Hand hereunder. |
Audit
Hand,
at its own expense, may at any time within 1 year after receiving any Payment Statement from Synergy, nominate an independent
Certified Public Accountant (“Auditor”) who shall have access to Synergy’s applicable records during
Synergy’s normal business hours for the purpose of verifying all payments made under this Agreement.
Hand
shall provide to Synergy a copy of the Auditor’s audit report within 5 days of Hand’s receipt of the report. If the
report shows that payments made by Synergy are deficient by more than five percent (5%) of the amount that was reported under
this Agreement, Synergy shall pay Hand the deficient amount and the fees and expenses of the Auditor in connection with such audit
within 30 days after Synergy’s receipt of the audit report.
INTELLECTUAL
PROPERTY
Notification
of Third Party Infringement. Each Party shall promptly disclose to the other in writing within ten (10) Business Days, any
actual, alleged, or threatened Third Party infringement or misappropriation in the Territory of any Know-How and any actual, alleged
or threatened infringement or passing off of the Hand Mark, of which such Party becomes aware.
Response
to Third Party Infringement. Hand shall have the first right, but not any obligation, to respond to any actual or threatened
infringement of Know-How, the Hand Mark or of any unfair trade practices, trade dress imitation, passing off of counterfeit goods,
or like offenses in the Territory relating to the Licensed Products. If Hand elects to respond to any actual or threatened infringement
by initiating a proceeding, Hand shall use legal counsel of its choice at its expense and shall have full control over the conduct
of such proceeding. Hand may settle or compromise any such proceeding without the consent of Synergy; provided, however, that
if such settlement affects Synergy’s rights under this Agreement, or Synergy’s ability to Commercialize the Licensed
Products within the Territory, or otherwise requires Synergy to admit wrongdoing, fault, or liability, Hand will not settle or
compromise any such proceeding without the written consent of Synergy, such consent not to be unreasonably withheld, conditioned,
or delayed. If Hand elects not to respond to any actual or threatened infringement of the Know-How, the Hand Mark or of any unfair
trade practices, trade dress imitation, passing off of counterfeit goods, or like offenses in the Territory relating to the Licensed
Products, then Synergy shall have the right, but not the obligation, to take action, at its sole expense, in which case Synergy
shall have full control over the conduct of such proceeding and Synergy may settle or compromise any such proceeding without the
consent of Hand; provided, however, that if such settlement affects Hand’s intellectual property rights or its rights under
this Agreement, or otherwise requires Hand to admit wrongdoing, fault, or liability, Synergy will not settle or compromise any
such proceeding without the written consent of Hand, such consent not to be unreasonably withheld, conditioned, or delayed. Synergy
shall be solely responsible for any legal costs or damages awards made in any proceeding that is initiated by Synergy in the event
that Hand elects not to respond to any actual or threatened infringement.
Cooperation.
Each Party shall cooperate reasonably, at its expense, in any enforcement effort initiated by the other Party. The Parties nor
their Affiliates shall contest any joinder in any proceeding sought to be brought by the other Party if such joinder is required
by Law.
Recovery.
Except as otherwise agreed to by the Parties as part of a cost-sharing arrangement, any monetary award recovered from a Third
Party in connection with any proceeding initiated to protect, maintain, defend, or enforce any intellectual property in the Territory
or recovered from a Third Party in connection with any proceeding initiated for infringement or misappropriation of intellectual
property shall first be used to reimburse the Parties for any out-of-pocket legal expenses relating to such proceeding and the
balance being retained by the Party that brought and controlled such litigation.
Infringement
of Third Party IP. If either Party becomes aware that its activities performed hereunder may constitute actual or alleged
infringement or misappropriation of the intellectual property rights of a Third Party, it shall promptly notify the other Party
and the Parties shall promptly discuss a strategy to defend or mitigate against any actual or alleged infringement.
REPRESENTATION
AND WARRANTIES
Hand
Covenants, Representations and Warranties. Hand covenants, represents and warrants (as the case may be) to Synergy that:
Hand
is a corporation duly organized, validly existing and in good standing under the laws of Delaware;
Hand
has the legal right and authority to enter into this Agreement;
Hand
has taken all necessary actions to authorize the execution, delivery and performance of this Agreement;
Hand
has obtained all consents, licenses and authorizations that are necessary to perform its obligations under this Agreement;
Upon
the execution and delivery of this Agreement, this Agreement shall constitute a valid and binding obligation of Hand, enforceable
against Hand in accordance with its terms, except to the extent enforceability is limited by bankruptcy, insolvency or similar
laws affecting creditors’ rights and remedies or equitable principles;
The
performance of Hand’s obligations under this Agreement will not conflict with its organizational documents, as amended,
or result in a breach of any material agreements or contracts to which it is a party;
Hand
has not and will not, during the term of this Agreement, enter into any material agreements or contracts that would conflict with
its obligations under this Agreement;
Hand
solely owns all of the Know-How and Hand Marks licensed to Synergy pursuant to this Agreement and the Know-How licensed
to Synergy pursuant to this Agreement is all of the Know-How that is necessary for Synergy to carry out its obligations and exercise
its rights under this Agreement;
Hand
has not received any notice that the manufacture, sale, or use of the Licensed Products in the Territory infringes
upon any intellectual property rights of any Third Parties in the Territory; and
To
the knowledge of Hand, there are no activities being carried out by Third Parties in the Territory that would constitute infringement
or misappropriation of the Know-How or the Hand Mark.
Synergy
Representations and Warranties. Synergy covenants, represents and warrants to Hand (as the case may be) as follows:
Synergy
is a corporation duly organized, validly existing and in good standing, under the laws of Nevada;
Synergy
has the legal right, authority, and power to enter into this Agreement;
Synergy
has taken all necessary action to authorize the execution, delivery, and performance of this Agreement;
Upon
the execution and delivery of this Agreement, this Agreement shall constitute a valid and binding obligation of Synergy, enforceable
against Synergy in accordance with its terms, except to the extent enforceability is limited by bankruptcy, insolvency or similar
laws affecting creditors’ rights and remedies or equitable principles;
The
performance of Synergy’s obligations under this Agreement will not conflict with its organizational documents or result
in a breach of any material agreements or contracts to which it is a party; and
Synergy
has not and will not, during the term of this Agreement, enter into any material agreements or contracts that would be inconsistent
with its obligations under this Agreement.
WARRANTY
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR EXTENDS ANY WARRANTIES
OF ANY KIND, EITHER EXPRESS OR IMPLIED.
LIMITATIONS
OF LIABILITY. WITHOUT LIMITING THE PARTIES’ OBLIGATIONS REGARDING INDEMNIFICATION, NEITHER PARTY SHALL BE LIABLE TO
THE OTHER PARTY OR TO ANY THIRD PARTY WHO MAY BENEFIT FROM ANY PROVISION OF THIS AGREEMENT FOR SPECIAL, INDIRECT, INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RESULTING FROM LOSS OF USE, LOSS OF PROFITS, INTERRUPTION OR LOSS OF BUSINESS
OR OTHER ECONOMIC LOSS) ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO A PARTY’S PERFORMANCE OR NON-PERFORMANCE HEREUNDER.
Indemnification
by Hand. Hand hereby agrees to defend, indemnify, and hold Synergy, its Affiliates and their respective officers, directors,
employees and agents, (each a “Synergy Indemnified Party”) harmless from and against any Third Party’s
claims for loss, damage, or liability resulting from: (i) any breach of this Agreement or any warranty or covenant provided in
this Agreement by Hand or an Affiliate of Hand; (ii) any violation of Applicable Law by Hand or its Affiliates; and (iii) any
negligent act or omission or willful misconduct of Hand or its Affiliates; (iv) any claim that the sale by Synergy or its Affiliates,
of the Licensed Products infringes on intellectual property rights in the Territory of any other person; (v) any claim arising
from any use, within the approved labelling, made by any person of any of the Licensed Products; in all cases, except to the extent
such Third Party’s claim for loss, damage or liability is the result of: (i) any breach of this Agreement by Synergy or
a Synergy Indemnified Party, (ii) any violation of Applicable Law by Synergy or a Synergy Indemnified Party, or (iii) any negligent
act or omission or willful misconduct of Synergy or a Synergy Indemnified Party.
Indemnification
by Synergy. Synergy hereby agrees to defend, indemnify, and hold Hand, its Affiliates and their respective officers, directors,
employees and agents, (each a “Hand Indemnified Party”) harmless from and against any Third Party’s claims
for loss, damage, or liability resulting from: (i) any breach of this Agreement or any warranty or covenant provided in this Agreement
by Synergy or an Affiliate of Synergy; (ii) any violation of Applicable Law by Synergy or its Affiliates; and (iii) any negligent
act or omission or willful misconduct of Synergy or its Affiliates; in all cases, except to the extent such Third Party’s
claim for loss, damage or liability is the result of: (i) any breach of this Agreement by Hand or a Hand Indemnified Party, (ii)
any violation of Applicable Law by Hand or a Hand Indemnified Party, or (iii) any negligent act or omission or willful misconduct
of Hand or a Hand Indemnified Party.
Indemnification
Procedure. If an indemnified party intends to claim indemnification under this Section 0, such party shall promptly notify
the other party of any loss, claim, damage, liability or action in respect of which the indemnified party intends to claim such
indemnification, and the indemnifying party shall have a first opportunity to assume the sole defense thereof with counsel selected
by the indemnifying party and approved by the indemnified party acting reasonably; provided, however, that an indemnified party
shall have the right to retain its own counsel and participate fully in the defense, with the fees and expenses to be paid by
the indemnified party. The failure or delay to deliver notice to the indemnifying party, within a reasonable time after the commencement
of any such proceeding, if irreparably prejudicial to the indemnifying party’s ability to defend such proceeding, shall
relieve the indemnifying party of any and all liability to the indemnified party under this Section 0. The indemnified party shall
cooperate fully with the indemnifying party and their legal representatives in the investigation of any loss, claim, damage, or
liability covered by this indemnification, and shall mitigate such loss and damages. Any amount payable in order to satisfy an
indemnity hereunder shall be paid as soon as reasonably possible after the indemnified party has incurred an indemnified expense
and notified the indemnifying party thereof.
Compliance
with Law. Each Party shall comply, and shall require their Affiliates and permitted sublicensees to comply, with all Applicable
Laws relative to their obligations hereunder.
Insurance.
The Parties shall maintain insurance, including product liability insurance, that is adequate to cover their obligations
hereunder and that is consistent with normal business practices of prudent corporations engaged in the same or a similar
business. The Parties acknowledge and agree that such insurance shall not be construed to create a limit with respect to
their indemnification obligations.
TERM
AND TERMINATION
Term.
This Agreement will take effect from the Effective Date and, unless earlier terminated in accordance with the terms herein, will
continue in perpetuity (the “Term”).
Termination
for Breach. Either Party may terminate this Agreement by written notice to the other Party with immediate effect in the following
cases:
In
the event of a petition in bankruptcy or insolvency of the other Party, or in case of the filing by the other Party of any petition
or answer seeking reorganization, readjustment, or rearrangement of its business under any law or any government regulation relating
to bankruptcy or insolvency, or in case of the institution by the other Party of any proceedings for the liquidation or winding
up of its business, or for the termination of its corporate charter.
If
the other Party is otherwise in material default or breach of this Agreement and such default or breach is not cured within (i)
thirty (30) days after written notice thereof is delivered to the defaulting or breaching Party, or (ii) in the case of a breach
that cannot be cured within thirty (30) days, within a reasonable period not exceeding sixty (60) days after written notice thereof
is delivered to the defaulting or breaching Party.
Effect
of Termination. Upon expiry or termination of this Agreement, all licenses and rights granted by Hand hereunder shall terminate
and Synergy will:
except
as provided for in Section 0, cease any Commercialization of the Licensed Products in the Territory; and
within
thirty (30) days or expiry or termination, transfer title to all current and pending Regulatory Approvals for the Licensed Products
to Hand and assist Hand, at Hand’s cost, in submitting appropriate documents to transfer the Regulatory Approvals for the
Licensed Products to Hand or its designee.
Survival.
In the event of the termination of this Agreement for any reason, the following provisions of this Agreement shall survive: Sections
1, 7, 8.5, 8.7, 9.4, 9.5 and 10, and any other terms which, by their nature, require or contemplate performance by the
Parties after expiry or termination. In any event, termination of this Agreement shall not relieve the Parties of any liability
which accrued hereunder prior to the effective date of such termination.
Sell-Off
of Inventory. Upon termination of this Agreement, Synergy shall be entitled to sell off any inventory of the Licensed Products
in Synergy’s possession or control on the date such termination is effective, provided such sales are in the normal course
of business and consistent with sales of the License Products during the Term of this Agreement.
OTHER
PROVISIONS
Further
Assurances. Upon request by either Party and at such Party’s expense, the other Party shall do such further acts and
execute such additional agreements and instruments as may be reasonably necessary to give effect to the purposes of this Agreement.
Independent
Status. Each Party shall act as an independent contractor and shall not bind nor attempt to bind the other Party to any contract,
nor any performance of obligations outside of the license agreement. Nothing contained or done under the Agreement shall be interpreted
as constituting either Party the agent of the other in any sense of the term whatsoever or in the relationship of partners or
joint venturers.
Assignment.
Except in connection with the acquisition of Synergy or the sale of all or substantially all of the assets of Synergy, this Agreement
may not be, directly or indirectly, assigned or transferred, in whole or in part, by a Party to a Third Party without the prior
written consent of the other Party. The rights and obligations contained herein shall enure to the benefit of each Party’s
successors and permitted assigns, and shall be binding on and enforceable against the relevant Party’s successors and permitted
assigns. Any reference in this Agreement to any Party shall be construed accordingly.
Compliance
with law. Each Party shall comply with, and shall not be in violation of any valid applicable international, national, provincial
or local statutes, laws, ordinances, rules, regulations, or other governmental orders of the Territory.
Force
Majeure. No Party shall be responsible for a failure or delay in performance of any of the obligations hereunder due wars,
insurrections, strikes, acts of God, power outages, storms, or actions of regulatory agencies (such events being defined as “Force
Majeure”), provided that the Party seeking relief from its obligations promptly advises the other Party forthwith of
the Force Majeure. A Party whose performance of obligations has been delayed by force majeure shall use commercially reasonable
efforts to overcome the effect of the Force Majeure as soon as possible. The other Party will have no right to demand indemnity
for damage or assert a breach against such Party, provided, however, that if the event of Force Majeure preventing performance
shall continue for more than one (1) month, and such underlying cause would not also prevent other parties from performing such
obligations, then the Party not subject to the event of Force Majeure may terminate this Agreement with a written notice to the
other without any liability hereunder, except the obligation to make payments due to such date.
Notices
and Amendments. Any notice or other communication required or permitted to be given hereunder shall be in writing and shall
be given by internationally recognized international courier, and shall be deemed to have been received at the time it is delivered
to the applicable address noted below. Notices of change of address shall also be governed by this Section 0. Notices and other
communications shall be addressed as follows:
In
the case of Synergy:
Synergy
CHC Corp.
c/o Jack Ross
865
Spring Street
Westbrook,
Maine 04092
E-mail: jack@synergystrips.com
with
a copy to:
Wyrick
Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
U.S.A.
Attention: W. David Mannheim
E-mail: dmannheim@wyrick.com
In
the case of Hand:
[____________]
Attention:
Fax:
E-mail:
with
a copy to:
Klehr
Harrison Harvey Branzberg LLP
1835
Market Street, Suite 1400
Philadelphia,
Pennsylvania 19103
U.S.A.
Attention:
William W. Matthews, III
E-mail: WMatthews@klehr.com
Complete
Agreement. This Agreement embodies all of the understandings and obligations between the Parties with respect to the Licensed
Products and supersedes any prior or contemporaneous agreements and understandings, whether written or oral, between the Parties
with respect to the subject matter hereof. Any amendments or supplements to this Agreement shall not be valid unless executed
in writing by duly authorized officers of both parties.
Waiver.
No failure to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof. Any waiver
granted hereunder shall only be applicable the specific acts covered thereby and shall not apply to any subsequent events, acts,
or circumstances.
Severability.
In the event any portion of this Agreement shall be held illegal, void or ineffective, the remaining portion hereof shall remain
in full force and effect. If any of the terms or provisions of this Agreement are in conflict with any applicable statute or rule
of law, then such terms or provisions shall be deemed inoperative to the extent that they may conflict therewith and shall be
deemed to be modified to conform with such statute or rule of law.
Governing
Law. This Agreement all disputes arising out of or relating to this Agreement, or the performance, enforcement, breach or
termination hereof or thereof, and any remedies relating thereto, shall be construed, governed by and interpreted in accordance
with the laws of the State of Delaware. The Parties hereto irrevocably consent to the exclusive jurisdiction of, the federal and
state courts of the State of Delaware located in Wilmington, Delaware for such purpose. If either Party in its sole judgment,
acting reasonably, believes that any dispute could cause it irreparable harm, such Party will be entitled to seek equitable relief
in order to avoid such irreparable harm.
Public
Announcements. Neither Party shall originate any publicity, news release, or public announcements relating to this Agreement
(including, without limitation, its existence, its subject matter, the Parties’ performance, any amendment hereto, or performance
hereunder), whether to the public or press, stockholders, or otherwise, without the prior written consent of the other Party,
save only such announcements that are required by law or the rules of any relevant stock exchange to be made or that are otherwise
agreed to by the Parties. If a Party decides to make an announcement, whether required by law or otherwise, it shall give the
other Party reasonable notice of the text of the announcement so that the other Party shall have an opportunity to comment upon
the announcement. To the extent that the receiving Party reasonably requests the deletion of any information in any such announcement,
the disclosing Party shall delete such information unless, in the opinion of the disclosing Party’s legal counsel, such
information is required by law or the rules of any relevant stock exchange to be disclosed. The timing and content of the initial
press release relating to this Agreement, if any, including its existence, the subject matter to which it relates and the transactions
contemplated herein will, except as otherwise required by law or any stock exchange rules, be determined jointly by the Parties.
Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be considered one and the same Agreement and
shall become effective when a counterpart hereof has been signed by each of the Parties and delivered to the other Party.
Time
of Essence. Time shall be of the essence of this Agreement and of each provision hereof.
[Signature
page follows]
In
witness whereof, the parties have signed this Agreement.
SYNERGY CHC CORP. |
|
HAND MD CORP. |
|
|
|
|
|
By:
|
/s/
Jack Ross |
|
By:
|
/s/
Jack Ross |
Name:
|
Jack
Ross |
|
Name:
|
Jack
Ross |
Title:
|
President
and Chief Executive Officer |
|
Title:
|
President |
Signature
Page – Intellectual Property License Agreement
Exhibit
10.12
CONSULTING
AGREEMENT
THIS
CONSULTING AGREEMENT (this “Agreement”) is made and entered into as of August 18, 2015 (the “Effective
Date”), by and between Synergy CHC Corp., a Nevada corporation (the “Company”), and Kara Harshbarger
(the “Consultant”).
WITNESSETH
WHEREAS,
the Company desires to engage Consultant to provide certain services on an independent contractor basis as outlined below, and
Consultant wishes to provide such services to Company; and
WHEREAS,
the Company and Consultant desire to establish and document the terms and conditions of the consulting relationship between them.
NOW,
THEREFORE, in consideration of the mutual promises and obligations of the parties set forth herein and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties, intending to be legally bound,
agree as follows:
1.
Appointment of Consultant; Services. Company appoints Consultant and Consultant hereby accepts appointment as an independent
contractor to perform services related to marketing and sales as may be requested by the Company from time to time, which may
include, without limitation, the services described on Exhibit A hereto (the “Services”).
2.
Term; Termination. This Agreement will be effective as of the Effective Date and will continue in effect for one year, unless
earlier terminated by either party upon written notice to the other party. If Company terminates Consultant other than for cause
during the term, then the payments set forth in Section 5 will continue until the end of the term.
3.
Duties of Consultant. Consultant agrees to diligently, competently, and to the best of her ability perform the Services, provided
that Consultant will at all times retain sole and absolute discretion and judgment in the manner and means of carrying out the
Services. Other than expenses that are preapproved by the Company in writing, Consultant will be responsible for her expenses
incurred in connection with the performance of the services described herein, including, without limitation, the costs and expenses
of any insurance, office space, and supplies, as well as any applicable taxes, withholdings, contributions, fees or charges levied
or required by any governmental entity as a result of Consultant’s performance of the Services; provided, however,
for the purposes of this Section 3, the Company hereby preapproves any and all QVC travel expenses as well as press travel expenses
for two meetings annually in New York City with beauty editors. Consultant will obtain and maintain all licenses, permits and
approvals necessary to perform the Services.
4.
Services for Others. During Consultant’s engagement with the Company, Consultant will be free to perform services for
other persons and entities, provided that performance of such services does not materially interfere with Consultant’s performance
of the Services under this Agreement, and Consultant will comply with Sections 9, 10, and 12 of this Agreement with respect to
her services for or on behalf of other persons and entities.
5.
Compensation of Consultant. As compensation for the performance of the Services, the Company will pay Consultant a consulting
fee of ten thousand dollars ($10,000) per month while this Agreement remains in effect, prorated for any partial months. Consultant
will be paid in advance in installments of ten thousand dollars ($10,000) on the 1st day of each month while this Agreement remains
in effect, upon receipt of an invoice from Consultant. The initial payment of $10,000 shall be payable on August __, 2015.
6.
Independent Contractor Status of Consultant.
(a)
Consultant’s legal status is an independent contractor of Company. Nothing in this Agreement makes Consultant the agent,
partner, joint venturer, employee, or legal representative of Company for any purpose whatsoever; nor shall Consultant hold herself
out as such. Consultant will have no authority to bind Company in any manner or for any purpose.
(b)
Consultant (and any employees or agents of Consultant) will not be employees of Company for any purpose, including for purposes
of the Fair Labor Standards Act’s minimum wage and overtime provisions, nor any other provision of federal, state, or local
law applicable to employees. Further, Consultant understands and agrees that Consultant (and any employees or agents of Consultant)
will not be entitled to any employment benefits that may be made available by the Company to its employees, including but not
limited to vacation pay, sick leave, retirement benefits, social security, workers’ compensation, health or disability benefits,
and unemployment insurance benefits.
(c)
Consultant acknowledges that Consultant has not relied on any statements or representations by the Company or its attorneys
with respect to the tax treatment of any compensation due under this Agreement. Consultant understands that the Company will not
be responsible for withholding or paying any federal, state, or local income, social security, or other taxes in connection with
any compensation paid under this Agreement, and Consultant agrees that Consultant is solely responsible for any such tax payments.
7.
Representations. Consultant hereby represents and warrants to Company that (a) Consultant is free to enter into this Agreement
with Company and to perform the Services described herein; (b) the execution of this Agreement and the performance of the Services
by Consultant will not result in the breach of any express or implied, oral or written, contract or agreement, to which Consultant
is bound (including, without limitation, any non-competition agreement with a current or prior employer); and (c) the execution
of this Agreement and the performance of the Services will not at any time interfere with or violate any third party rights (including,
without limitation, the use, disclosure, misappropriation, or infringement of any confidential information, proprietary rights
or intellectual property belonging to any other person or entity).
8.
Indemnification.
(a)
Consultant agrees to indemnify and hold Company harmless from and against any and all third party liabilities, claims, causes
of action, losses, costs, fees (including, without limitation, attorneys’ fees), expenses, damages and penalties arising
out of or relating to the acts or omissions of Consultant or her agents in performing Consultant’s obligations under this
Agreement (including, without limitation, any negligence or intentional misconduct in performing the Services, or any breach of
any representation, warranty or other provision of this Agreement by Consultant).
(b)
Company agrees to indemnify and hold Consultant harmless from and against any and all third party liabilities, claims, causes
of action, losses, costs, fees (including, without limitation, attorneys’ fees), expenses, damages and penalties arising
out of or relating to the acts or omissions of Company or its agents in performing Company’s obligations under this Agreement
(including, without limitation, any breach of any representation, warranty or other provision of this Agreement by Company).
9.
Ownership of Intellectual Property.
(a)
Consultant will immediately and fully disclose in writing to the Company all intellectual property and other proprietary information,
including without limitation, all inventions, methods, processes, innovations, discoveries, developments, ideas, technologies,
computer code and programs, macros, trade secrets, know-how, formulae, designs, patterns, marks, names, improvements, industrial
designs, mask works, works of authorship, technical materials relating to the business of the Company conceived or developed for
the Company by the Consultant during her engagement by the Company (collectively, “Intellectual Property”)
whether or not any such Intellectual Property is patentable, copyrightable, or otherwise protectable. Notwithstanding the foregoing,
this Agreement shall not be construed to apply to, and shall not create any assignment of, any Intellectual Property of Consultant
that Consultant developed entirely on Consultant’s own time without using the Company’s equipment, facilities, or
trade secret information, except for Intellectual Property that results from any work performed by the Consultant for the Company.
The Company acknowledges that Consultant, subject to the Non-competition provisions of Section 12, below, may create inventions,
methods, processes, innovations, discoveries, developments, ideas, technologies, computer code and programs, macros, trade secrets,
know-how, formulae, designs, patterns, marks, names, improvements, industrial designs, mask works, works of authorship, technical
materials for third parties during the term of this Agreement.
(b)
Consultant does hereby, and will from time to time immediately upon the conception or development of any Intellectual Property
in the course of Consultant’s engagement with the Company assign to the Company all of her right, title and interest in
and to all such Intellectual Property (whether or not patentable, registrable, recordable or protectable by copyright and regardless
of whether the Company pursues any of the foregoing). If any Intellectual Property falls within the definition of “work
made for hire,” as such term is defined in 17 U.S.C. § 101, such Intellectual Property will be considered “work
made for hire,” and the copyright of such Intellectual Property will be owned solely and exclusively by the Company. If
any Intellectual Property does not fall within such definition of “work made for hire” then the right, title, and
interest in and to such Intellectual Property of Consultant will be assigned to the Company pursuant to the first sentence of
this Section 9(b).
(c)
Consultant will execute and deliver any assignment instruments and do all other things reasonably requested by the Company
(both during and after Consultant’s engagement with the Company) in order to more fully vest in the Company sole and exclusive
right, title, and interest in and to all Intellectual Property. Consultant agrees to cooperate with and provide reasonable assistance
to the Company in the preparation of applications for letters patent, copyright, and other forms of protection for Intellectual
Property, including but not limited to the execution and delivery of any instruments reasonably requested by the Company (both
during and after Consultant’s engagement with the Company), in order to protect the Company’s interest in and to all
Intellectual Property. If the Company is unable for any reason to secure Consultant’s signature on any lawful and necessary
document required to apply for or execute any patent, trademark, copyright or other applications with respect to any Intellectual
Property (including renewals, extensions, continuations, divisions or continuations in part thereof), Consultant hereby irrevocably
designates and appoints the Company and its then current Chief Executive Officer as Consultant’s agent and attorney-in-fact
to act for and in behalf and instead of Consultant, to execute and file any such application and to do all other lawfully permitted
acts to further the prosecution and issuance of patents, trademarks, copyrights or other rights thereon with the same legal force
and effect as if executed by Consultant.
10.
Confidential Information.
(a)
Consultant acknowledges that during her engagement with Company, Consultant will have access to certain highly-sensitive,
confidential, and proprietary information belonging to the Company or third parties who may have furnished such information under
obligations of confidentiality, relating to and used in the Company’s business (collectively, “Confidential Information”).
Consultant acknowledges that, unless otherwise available to the public, Confidential Information includes, but is not limited
to, the following categories of information and material, including all copies, notes, or other reproductions or replicas thereof:
financial statements and information; budgets, forecasts, and projections; business and strategic plans; marketing, sales, and
distribution strategies; research and development projects; records relating to any intellectual property developed by, owned
by, controlled, licensed, or maintained by the Company; information related to the Company’s inventions, research, products,
designs, methods, know-how, formulae, techniques, systems, processes; customer lists; non-public information relating to the Company’s
customers, suppliers, employees, distributors, or investors; the specific terms of the Company’s agreements or arrangements,
whether oral or written, with any customer, supplier, vendor, or contractor with which the Company may be associated from time
to time; and any and all information relating to the operation of the Company’s business which the Company may from time
to time designate as confidential or proprietary or that Consultant reasonably knows should be, or has been, treated by the Company
as confidential or proprietary. Confidential Information encompasses all formats in which information is preserved, whether electronic,
print, or any other form, including all originals, copies, notes, or other reproductions or replicas thereof.
(b)
Confidential Information does not include any information that: (i) at the time of disclosure is generally known to, or readily
ascertainable by, the public; (ii) becomes known to the public through no fault of Consultant or other violation of this Agreement;
or (iii) is disclosed to Consultant by a third party under no obligation to maintain the confidentiality of the information.
(c)
Consultant agrees that Consultant will maintain the confidentiality of the Confidential Information at all times during and
following her engagement by the Company and will not, directly or indirectly, use or disclose any Confidential Information for
any purpose other than to the extent necessary to perform the Services.
(d)
The restrictions in Section 10(c) above will not apply to any information to the extent that Consultant is required to disclose
such information by law, provided that the Consultant (i) notifies the Company of the existence and terms of such obligation (to
the extent Consultant is not legally prohibited or restricted from doing to), (ii) gives the Company a reasonable opportunity
to seek a protective or similar order to prevent or limit such disclosure (to the extent Consultant is not legally prohibited
or restricted from doing to), and (iii) only discloses that information actually required to be disclosed.
11.
Return of Property. Upon termination of Consultant’s engagement with the Company for any reason, or at any time upon
request of the Company, Consultant will promptly deliver to the Company all Confidential Information in any form along with all
personal property belonging to the Company that is in Consultant’s possession, custody, or control, including, without limitation,
all files, memoranda, designs, correspondence, manuals, programs, data, records, notes, notebooks, reports, papers, equipment,
computer software, proposals, or any other file, material, document or possession (whether in hard copy or any electronic format),
however obtained, along with any reproductions or copies. Notwithstanding the foregoing, Consultant may retain Confidential Information
to the extent required to demonstrate her compliance with any legal, fiduciary or professional obligations, as well as Confidential
Information contained in deleted emails and electronic documents which are archived by or on her behalf but are not accessible
by the individuals who created or received such emails or documents, provided that in each case any retained Confidential Information
shall remain subject to the confidentiality and non-use obligations set forth herein in accordance with the terms of this Agreement.
12.
Non-Competition and Non-Solicitation. The parties acknowledge and agree that Consultant, through her association with Company
as an independent contractor, will acquire a considerable amount of knowledge and goodwill with respect to the business of Company
(including but not limited to its customer relationships), which knowledge and good will are extremely valuable to Company and
which would be extremely detrimental to Company if used by Consultant to compete with Company. It is therefore understood and
agreed that it is necessary for Consultant to be bound by certain reasonable covenants in order to afford fair protection to Company
from unfair competition by Consultant. Consequently, as a material inducement for Company to engage Consultant, Consultant agrees
to the restrictive covenants described herein.
(a)
Definitions. The following definitions are applicable to this Section 12:
(i)
“Business” means the marketing and sale of skincare, nail polish and nail care products, including but
not limited to products under the brand name Hand MD.
(ii)
“Customer” means any person or entity who is or was a customer or client of the Company at the time of,
or during the 12 month period prior to, the termination of Consultant’s engagement with the Company.
(iii)
“Restricted Period” means the period commencing on the date of termination of Consultant’s engagement
with the Company and ending twelve (12) months after such date; provided, however, that the period shall be tolled and shall not
run during any time Consultant is in violation of this Section 12, it being the intent of the parties that the Company is entitled
to a full twelve (12) months post-engagement free of Consultant’s competition and solicitation as described in this Section
12.
(iv)
“Territory” means the United States of America, it being understood that the business of the Company is
nationwide in scope.
(b)
Non-Competition. During Consultant’s engagement with the Company and during the Restricted Period, Consultant will not
(i) engage in the Business in the Territory (other than on behalf of the Company), or (ii) hold a position based in or with responsibility
for all or part of the Territory, with any person or entity engaging in the Business, whether as an employee, consultant, or otherwise,
in which Consultant will have duties, or will perform or be expected to perform services for such person or entity, that is or
are the same as or substantially similar to the services actually performed by Consultant for the Company within the twelve (12)
month period immediately preceding the termination of Consultant’s engagement with the Company, or in which Consultant will
use or disclose or be reasonably expected to use or disclose any confidential or proprietary information of the Company.
(c)
Non-Solicitation. During Consultant’s engagement with the Company and during the Restricted Period, Consultant will
not, directly or indirectly, on Consultant’s own behalf or on behalf of any other party (except on behalf of the Company):
(i)
Call upon, solicit, divert, encourage or attempt to call upon, solicit, divert, or encourage any Customer for purposes of
marketing, selling, or providing products or services to such Customer that are similar to or competitive with those offered by
the Company;
(ii)
Accept as a customer any Customer for purposes of marketing, selling, or providing products or services to such Customer that
are similar to or competitive with those offered by the Company;
(iii)
Induce, encourage, or attempt to induce or encourage any Customer to reduce, limit, or cancel its business with the Company;
or
(iv)
Solicit, induce, or attempt to solicit or induce any employee or consultant of the Company to terminate his or her employment
or engagement with the Company.
(d)
Reasonableness of Restrictions. Consultant acknowledges and agrees that (i) the restrictive covenants in this Agreement are
essential elements of Consultant’s engagement by the Company and are reasonable given Consultant’s access to the Company’s
confidential information and the substantial knowledge and goodwill Consultant will acquire with respect to the business of the
Company as a result of Consultant’s engagement by the Company; (ii) the restrictive covenants contained in this Agreement
are reasonable in time, territory, and scope, and in all other respects. Should any part or provision of this Section 12 be held
invalid, void, or unenforceable in any court of competent jurisdiction, such invalidity, voidness, or unenforceability shall not
render invalid, void, or unenforceable any other part or provision of this Agreement. The parties further agree that if any portion
of this Section 12 is found to be invalid or unenforceable by a court of competent jurisdiction because its duration, territory,
or other restrictions are deemed to be invalid or unreasonable in scope, the invalid or unreasonable terms shall be replaced by
terms that are valid and enforceable and that come closest to expressing the intention of such invalid or unenforceable terms.
13.
Remedies. Consultant acknowledges and agrees that Consultant’s breach or threatened breach of Sections 9, 10, 11, and/or
12 of this Agreement will result in immediate and irreparable injury to Company, which injury will not be subject to redress by
monetary damages. Accordingly, Consultant agrees that Company is entitled to enforce this Agreement by seeking a temporary restraining
order, preliminary and permanent injunction and/or any other appropriate equitable relief to prevent or retrain such breach. Nothing
in this Section prohibits the Company from pursuing any other remedies available to it in law or equity, including but not limited
to the recovery of monetary damages. The Company will be entitled to recover its costs incurred in connection with any action
to enforce Sections 9, 10, 11, and/or 12 of this Agreement, including reasonable attorneys’ fees and expenses, to the maximum
extent permitted by law.
14.
Benefit; Assignment. The rights, duties and obligations of the parties under this Agreement shall inure to the benefit and
shall be binding upon their respective successors and permitted assigns. Neither this Agreement nor the respective rights, duties,
obligations and responsibilities of Consultant under this Agreement may be assigned or transferred, in whole or in part, by Consultant
to any other person, association, organization, company or other entity (including subcontractors) without the prior written consent
of Company.
15.
Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware,
without regard to that body of law known as choice of law. Any litigation arising out of or related to this Agreement will be
brought exclusively in the state or federal courts located in Wilmington, Delaware. Each party (a) consents to the personal jurisdiction
of said courts, (b) waives any venue or inconvenient forum defense to any proceeding maintained in such courts, and (c) agrees
not to bring any proceeding arising out of or relating to this Agreement in any other court.
16.
Miscellaneous.
(a)
The provisions of Sections 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16 will survive the termination of this Agreement for any
reason.
(b)
Should any provision of this Agreement or the application thereof, to any extent, be held invalid or unenforceable, the remainder
of this Agreement and the application thereof, other than those provisions held invalid or unenforceable, shall not be affected
thereby and shall continue valid and enforceable to the fullest extent permitted by law or equity.
(c)
No waiver by either party of any breach of this Agreement shall be construed as a waiver of any succeeding breach of this
Agreement.
(d)
This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together
will constitute one and the same agreement. Facsimile or PDF reproductions of original signatures will be deemed binding for the
purpose of the execution of this Agreement.
(e)
This Agreement represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations
or agreements, either written or oral regarding the subject matter thereof.
(f)
This Agreement may be amended only by a written instrument signed by both Company and Consultant.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date first above written.
CONSULTANT: |
|
COMPANY: |
|
|
|
Kara
Harshbarger |
|
Synergy CHC Corp. |
|
|
|
|
/s/
Kara Harshbarger |
|
By: |
/s/
Jack Ross |
Kara
Harshbarger |
|
|
Jack Ross, Chief
Executive Officer |
Exhibit
A
Sales,
marketing, and product development other consulting services.
Assistance
with development of at least two new products for the Company.
EMBARGOED
FOR USE BEFORE |
Contact:
|
After
9am (Eastern) |
Jack
Ross, Chairman / CEO |
August
19, 2015 |
Synergy
CHC Corp |
|
Jack@synergychc.com |
|
615-939-9004 |
|
|
Synergy
CHC Corp Acquires Anti-Aging Business From Hand MD Corp®
Westbrook,
Maine, August 19, 2015 – Synergy CHC Corp (OTCQB: SNYR) a consumer health care company, today announced it has acquired
a 50% ownership stake in Hand MD Corp and has secured the global exclusive sales, marketing & distribution rights for all
channels for this innovative anti-aging hand care product line up contributed to Hand MD Corp. by Hand MD, LLC.
![](image_003.jpg)
Under
the terms of the agreement, Synergy will pay Hand MD Corp consideration of US$1,500,000 in Synergy CHC stock at $0.70 per share.
It will also pay minimum yearly royalty payments in year two of $250,000 and minimum yearly royalty payments of $500,000 in year
three. Minimum royalty payments to Hand MD Corp are due quarterly starting in year two.
There
are no further minimum commitments due on royalties other than year two and three. Royalty payments are calculated based on 5%
of net sales.
“HAND
MD, LLC is thrilled to partner with Synergy,” says co-founder Kara Harshbarger. “Thanks to advancements in anti-aging,
our face no longer reveals our true age but our hands do. Hand MD is clinically proven to rejuvenate aging hands and through our
collaboration with Synergy, we are bringing the ultimate hand solution to the forefront of the marketplace.”
“We
are pleased to add another unique offering to our portfolio; it is consistent with the company’s strategy to grow by further
acquisition. We are deliberately seeking to generate shareholder value through the addition of products that help improve the
lives of customers while leveraging our existing distribution relationships. We will continue to be active on the acquisition
trail” said Jack Ross, President and CEO of Synergy.
About
Hand MD®
Hand
MD is the world’s first anti-aging skincare line formulated specifically for the hands. Hands reveal a woman’s true
age and the rejuvenation of the hand has become women’s #1 aging concern. Developed by Kara Harshbarger and renowned celebrity
dermatologist Dr. Alex Khadavi, Hand MD’s extensive clinical trials show significant improvement in the appearance of fine
lines and wrinkles, skin hydration, hyper-pigmentation and radiance. HAND MD launched on QVC and sold out in an astonishing 5
minutes. www.hand-md.com
About
Synergy CHC Corp.
Synergy
CHC Corp. is a Consumer Health Care Company that is in the process of building a portfolio of best-in-class consumer product brands.
Synergy’s strategy is to grow its portfolio both organically and by further acquisition. www.synergychc.com
About
FOCUSfactor® “Another Synergy Brand”
FOCUSfactor
is sold at America’s leading retailers such as Costco, Sam’s Club, Wal-Mart, BJ’s Walgreens and The Vitamin
Shoppe. FOCUSfactor, America’s leading brain health supplement, is a nutritional supplement that includes a proprietary
blend of brain supporting vitamins, minerals, antioxidants and other nutrients. In December 2012, the United States Patent and
Trademark Office issued US Patent 8,329,227 covering FOCUSfactor’s proprietary formulation “for enhanced mental function.”
The issuance of the patent marked one of the few times a patent has been issued for a nationally branded nutritional supplement.
FOCUSfactor is clinically tested with results demonstrating improvements in focus, concentration and memory in healthy adults.
www.focusfactor.com
About
Neuragen® “Another Synergy Brand”
Neuragen®
is a topical product that works directly at the site of the pain as opposed to oral products. Neuragen® reduces the spontaneous
firing of damaged peripheral nerves. By calming these firings at the source, Neuragen® is clinically shown to reduce shooting
and burning pains quickly and without the side effects of orally taken medications. This is in part due to the small lipophilic
molecules found in Neuragen® which rapidly carry the active ingredients through the rough outer layer of the skin to the site
of the pain. Neuragen® is available over the counter in most local pharmacies either in the diabetic section or the analgesic
(pain) section. For more information, please visit www.neuragen.com.
Forward-Looking
Statements
This
press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 that
are subject to risks and uncertainties. All statements, other than statements of historical facts, regarding management’s
expectations, beliefs, goals, plans or Synergy’s prospects should be considered forward-looking. Readers are cautioned that
actual results may differ materially from projections or estimates due to a variety of important factors, including: Synergy’s
ability to integrate the Hand MD® product line into its current
operations; Synergy’s dependence on third parties for its research and development, manufacturing and distribution functions;
Synergy’s’ dependence on its license relationships; the risks and uncertainties associated with Synergy’s ability
to manage its limited cash resources; obtaining additional financing to support Synergy’s operations; protecting the intellectual
property developed by or licensed to Synergy for Hand MD®; and
Synergy’s ability to build its operations to support its business strategy and promote its products. These and other risks
are described in greater detail in Synergy’s filings with the SEC, copies of which are available free of charge at the SEC’s
website (www.sec.gov) or upon request from Synergy. Synergy may not actually achieve the goals or plans described in its
forward-looking statements, and investors should not place undue reliance on these statements. Synergy assumes no obligation and
does not intend to update these forward-looking statements, except as required by law.
IMMEDIATE
RELEASE |
Contact: |
August
20, 2015 |
Jack
Ross, Chairman / CEO |
|
Synergy
CHC Corp |
|
Jack@synergychc.com |
|
615-939-9004 |
Synergy
CHC Corp. Names Al Baumeler EVP Sales & Marketing (Retail)
WESTBROOK,
ME (August 20, 2015) — Synergy CHC Corp. (OTCQB:SNYR), a company that markets
and distributes consumer products primarily in the health and wellness industry, today announces that Al Baumeler has been named
EVP Sales & Marketing (Retail). Based on the company’s growth strategy, product lines and experience in the retail sector,
this role is key to our management team.
Al
has served as the Senior Vice President of Marketing for HNS Global since 2012. At HNS, Al managed the company’s supplement
portfolio, developing growth strategies and driving sales and product development for the company. HNS doubled in company sales
from 2012 to 2013 and was subsequently sold to a private equity firm in May 2014.
Before
joining HNS, Al was Chief Marketing Officer at Natrol where he oversaw marketing, sales and new product development in a portfolio
that included vitamin supplements and sports nutrition brands. During his tenure at Natrol, Al helped drive profitability by overhauling
5 brands to compete more effectively and launching over 30 higher margin products in under 3 years while expanding distribution
among key retailers in club, mass and drug.
Prior
to HNS, Al was at Rexall Sundown, where he was Vice President of Marketing responsible for managing the Sundown Vitamin portfolio
and Osteo-BiFlex, where he repositioned the brand which resulted in increased sales of 27% to $135MM. Al has had various leadership
positions in marketing with Novartis, Wyeth and Reckitt Benckiser managing brands like Robitussin, Advil Cold & Sinus, Benefiber,
Ex-Lax, Maalox, Dulcolax and Lysol. Al has a Bachelor’s Degree in Engineering from Rutgers University and an MBA from Columbia
Business School.
“We
are pleased to welcome Al to the Synergy team,” says Jack Ross, CEO, Synergy CHC Corp. “His diverse background in
marketing consumer products will be a major asset in our planned expansion of market share and our global foot print for our various
product lines.”
On
August 18, Synergy completed its third acquisition this year. Synergy now has Focus Factor, Hand MD & Neuragen in its portfolio
of brands. Synergy will seek to continue to add both quality brands and quality management to drive shareholders value.
Synergy
is also pleased to announce the launch of its new website. The new website can be found at www.synergychc.com. Please visit
anytime for all current investor information.
About
Synergy CHC Corp.
Synergy
CHC Corp. (OTCQB:SNYR) is a consumer health care company, that is in the process of building a portfolio of best-in-class consumer
product brands. Synergy’s strategy is to grow its portfolio both organically and by further acquisition. www.synergychc.com
About
FOCUSfactor®
FOCUSfactor
is sold at America’s leading retailers such as Costco, Sam’s Club, BJ’s, Walmart, Walgreens and The Vitamin
Shoppe. FOCUSfactor, America’s leading brain health supplement, is a nutritional supplement that includes a proprietary
blend of brain supporting vitamins, minerals, antioxidants and other nutrients. In December 2012, the United States Patent and
Trademark Office issued US Patent 8,329,227 covering FOCUSfactor’s proprietary formulation “for enhanced mental function.”
The issuance of the patent marked one of the few times a patent has been issued for a nationally branded nutritional supplement.
FOCUSfactor is clinically tested with results demonstrating improvements in focus, concentration and memory in healthy adults.
The
issuance of the patent for FOCUSfactor came after a 2011 clinical study report which showed that FOCUSfactor improves memory,
concentration and focus in healthy adults. The clinical study of FOCUSfactor was sponsored by Factor Nutrition Labs and was conducted
by Cognitive Research Corporation, a full-service contract research organization that specializes in the effects of nutritional
supplements and pharmaceutical products on human cognition. The study was conducted in compliance with all applicable country
requirements for the conduct of clinical studies, including those outlined by the International Conference on Harmonization, Consolidated
Guidelines on Good Clinical Practices, and the Food and Drug Administration. www.focusfactor.com
About
Hand MD
Hand
MD is the world’s first anti-aging skincare line formulated specifically for the hands. Hands reveal a woman’s true
age and the rejuvenation of the hand has become women’s #1 aging concern. Developed by Kara Harshbarger and renowned celebrity
dermatologist Dr. Alex Khadavi, Hand MD’s extensive clinical trials show significant improvement in the appearance of fine
lines and wrinkles, skin hydration, hyper-pigmentation and radiance. HAND MD launched on QVC and sold out in 5 minutes. www.hand-md.com
About
Neuragen®
Neuragen®
is a topical product that works directly at the site of the pain as opposed to oral products. Neuragen® reduces the spontaneous
firing of damaged peripheral nerves. By calming these firings at the source, Neuragen® is clinically shown to reduce shooting
and burning pains quickly and without the side effects of orally taken medications. This is in part due to the small lipophilic
molecules found in Neuragen® which rapidly carry the active ingredients through the rough outer layer of the skin to the site
of the pain. Neuragen is available over the counter in most local pharmacies either in the diabetic section or the analgesic (pain)
section. www.neuragen.com
Forward-Looking
Statements
This
press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 that
are subject to risks and uncertainties. All statements, other than statements of historical facts, regarding management’s expectations,
beliefs, goals, plans or Synergy’s prospects should be considered forward-looking. Readers are cautioned that actual results
may differ materially from projections or estimates due to a variety of important factors, including: Synergy’s ability to attract
and retain employees to support its current operations and planned expansion; Synergy’s ability to integrate acquired product
lines into its current operations; Synergy’s dependence on third parties for its research and development, manufacturing
and distribution functions; Synergy’s dependence on its license relationships; the risks and uncertainties associated with
Synergy’s ability to manage its limited cash resources; obtaining additional financing to support Synergy’s operations;
protecting the intellectual property developed by or licensed to Synergy for Brands; and Synergy’s ability to build its
operations to support its business strategy and promote its products. These and other risks are described in greater detail in
Synergy’s filings with the SEC, copies of which are available free of charge at the SEC’s website (www.sec.gov) or
upon request from Synergy. Synergy may not actually achieve the goals or plans described in its forward-looking statements, and
investors should not place undue reliance on these statements. Synergy assumes no obligation and does not intend to update these
forward-looking statements, except as required by law.
Synergy CHC (CE) (USOTC:SNYR)
Historical Stock Chart
From Jun 2024 to Jul 2024
Synergy CHC (CE) (USOTC:SNYR)
Historical Stock Chart
From Jul 2023 to Jul 2024