SURRENDER AND MUTUAL RELEASE AGREEMENT
Exhibit
10.4
This
Surrender and Mutual Release (“Agreement”) is made this
31stday of July, 2019, by and between PoC Capital, LLC, a
California limited liability company (“POC”) and
Exactus, Inc., a Nevada corporation (the “Company”)
(collectively the “Parties”).
WHEREAS, on or
about June 30, 2016, the Parties entered into a Stock and Warrant
Subscription Agreement (the “Subscription Agreement”),
under which POC subscribed for and received the following
securities issued to POC by the Company (collectively, the
“Securities”):
(A)
200,000 shares of restricted common stock, par value $0.0001 per
share [1,600,000 shares prior to the Company’s 1 for 8
reverse split effected March 11, 2019] (the “Common
Stock”);
(B)
warrants to purchase 208,333 shares of Common Stock exercisable at
$4.80 per share [1,666,667 warrants exercisable at $0.60 per share
prior to the Company’s 1 for 8 reverse split effected March
11, 2019] (the “Warrants”);
(C)
1,733,334 shares of Series C Convertible Preferred Stock, par value
$0.0001 per share (the “Series C Preferred Stock”),
and;
WHEREAS, as
consideration for the Securities acquired under the Subscription
Agreement, POC entered into a Master Services Agreement dated June
30, 2016 (the “Master Services Agreement”) with the
Company and Integrium, LLC, under which, among other things, POC
became obligated to fund up to the first $1,000,000 in certain
research study costs and fees which may become due to Integrium,
LLC under the Master Services Agreement; and
WHEREAS, POC and
the Company have agreed that some portion of the Securities shall
be surrendered for cancellation, and that the Parties shall release
and settle all obligations and potential claims and causes of
action whatsoever which may exist between them with regard to the
Subscription Agreement and the Master Services
Agreement,
THEREFORE, for and
in consideration of the promises and covenants herein contained,
and for other valuable consideration received, the sufficiency of
which is hereby expressly acknowledged, it is hereby mutually
agreed by and between the Parties hereto, and each of them, as
follows:
1. Surrender of Securities.
Effective upon the date of this Agreement, POC hereby agrees that
the Warrants, and the Series C Preferred Stock shall be null and
void and that POC shall have no further rights relating thereto.
Additionally, upon the date of this Agreement, POC hereby
surrenders 180,000 shares of Common Stock to the Company. The
Company will take all action necessary with regard to its transfer
agent and its books of account to cancel each of the Securities
listed above and will perform the necessary actions to remove the
restrictions on the remaining Common Stock. In addition, the
Company will use its best efforts to arrange and provide for, at
the Company’s expense, all proper and valid legal opinions
necessary for the deposit and trading of the remaining Common Stock
and any other Common Stock held by POC.
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2. Definitions used in Sections 3 and
4. For purpose of Sections 3 and 4 of this Agreement, the
terms the “Company” and “POC” shall include
the following persons and/or entities: the named persons and/or
entities individually, jointly, severally and on behalf of their
respective affiliated and/or subsidiary companies and partnerships,
together with any and all past and present trustees, receivers,
board members, employees, officers, directors, shareholders,
partners, agents, representatives, subsidiaries, unincorporated
divisions, insurance carriers, sureties, consultants, attorneys,
successors, assigns, heirs, executors, administrators, tenants,
licensees, invitees, joint venturers, members and related persons,
predecessors, entities or companies.
3. POC’s Release of the
Company. With the exception of the obligations set forth in
this Agreement, POC hereby fully releases and discharges the
Company of and from all claims, actions, causes of action, demands,
rights, agreements, promises, liabilities, losses, damages, costs
and expenses, of every nature and character, description and
amount, either known or unknown, without limitation or exceptions,
whether based on theories of tort, fraud, misrepresentation,
contract, breach of contract, breach of the covenant of good faith
and fair dealing, violation of statute, ordinance, or any other
theory of liability or declaration of rights whatsoever, which POC
may now have or may hereinafter acquire against the Company,
whether asserted or not, arising from or related to, directly or
indirectly, the Master Services Agreement or the Subscription
Agreement.
4. Company’s Release of POC.
With the exception of the obligations set forth in this Agreement,
the Company hereby fully release and discharge POC of and from all
claims, actions, causes of action, demands, rights, agreements,
promises, liabilities, losses, damages, costs and expenses, of
every nature and character, description and amount, either known or
unknown, without limitation or exceptions, whether based on
theories of tort, fraud, misrepresentation, contract, breach of
contract, breach of the covenant of good faith and fair dealing,
violation of statute, ordinance, or any other theory of liability
or declaration of rights whatsoever, which the Company may now have
or may hereinafter acquire against POC, whether asserted or not,
arising from or related to, directly or indirectly, the Master
Services Agreement or the Subscription Agreement.
5. Scope of Release. Subject to the terms and
conditions stated herein, the Parties acknowledge and agree that
the release given above constitutes a full, complete, fair and
final release, including any and all disputes, claims or causes of
action, known or unknown, contingent or accrued which may now exist
between them. The Parties acknowledge that they are aware that
they, or their attorneys, may hereafter discover facts different
from or in addition to those which they or their attorney now know
or believe to be true with respect to the claims, demands, debts,
liabilities, accounts, obligations, and causes of action of every
kind so released, and each agrees that the general release so given
shall be and remain in effect as a full and complete release of the
Parties released thereby notwithstanding any such different or
additional facts.
6. Miscellaneous.
a. No Admission of Liability. Each
of the Parties agrees that this Agreement is a compromise and shall
never be treated as an admission of liability of any Party hereto
for any purpose, and that liability therefor is expressly denied by
each of the Parties.
b. Entire Agreement. This
Agreement constitutes the entire agreement between the Parties. All
negotiations, proposals, modifications and agreements prior to the
date hereof between the Parties are merged into this Agreement and
superseded hereby. There are no other terms, conditions, promises,
understandings, statements, or representations, express or implied,
concerning this Agreement unless set forth in writing and signed by
all of the Parties.
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c. Amendments. This Agreement may
only be modified by an instrument in writing executed by the
Parties.
d. Attorneys' Fees. Should any
action (at law or in equity, including but not limited to an action
for declaratory relief) or proceeding be brought arising out of,
relating to or seeking the interpretation or enforcement of the
terms of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with the terms of this
Agreement, the prevailing party, as decided by the Court, shall be
entitled to reasonable attorneys' fees and costs incurred in
addition to any other relief or damages which may be awarded. This
entitlement to fees shall include fees incurred in connection with
any appeal or bankruptcy proceeding.
▇. ▇▇▇▇▇▇▇▇▇. Should any term,
part, portion or provision of this Agreement be decided or declared
by the Courts to be, or otherwise found to be, illegal or in
conflict with the applicable law of any State or of the United
States, or otherwise be rendered unenforceable or ineffectual, the
validity of the remaining parts, terms, portions and provision
shall be deemed severable and shall not be affected thereby,
providing such remaining parts, terms, portions or provisions can
be construed in substance to constitute the agreement that the
Parties intended to enter into in the first instance.
f. Successors and Assigns. This
Agreement shall be binding and inure to the benefit of the Parties,
their respective predecessors, parents, subsidiaries and affiliated
corporations, all officers, directors, shareholders, agents,
employees, attorneys, assigns, successors, heirs, executors,
administrators, and legal representatives of whatsoever kind or
character in privity therewith.
g. Counterparts. This Agreement
may be executed in multiple counterparts and by facsimile each of
which shall be an original, but all of which shall be deemed to
constitute one instrument. The delivery of an executed counterpart
of this Agreement by electronic means, including by facsimile or by
".pdf" attachment to email, shall be deemed to be valid delivery
thereof binding upon all the parties and shall be accepted by the
parties to this Agreement as valid and binding in lieu of original
signatures.
h. Governing Law. This Agreement
shall be governed by and construed exclusively in accordance with
the internal laws of the State of Nevada without regard to the
conflicts of laws principles thereof.
i. Understanding of Agreement. The
Parties each acknowledge that they have fully read the contents of
this Agreement and that they have had the opportunity to obtain the
advice of counsel of their choice, and that they have full,
complete and total comprehension of the provisions hereof and are
in full agreement with each and every one of the terms, conditions
and provisions of this Agreement. As such, the Parties agree to
waive any and all rights to apply an interpretation of any and all
terms, conditions or provisions hereof, including the rule of
construction that such ambiguities are to be resolved against the
drafter of this Agreement. For the purpose of this instrument, the
Parties agree that ambiguities, if any, are to be resolved in the
same manner as would have been the case had this instrument been
jointly conceived and drafted.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date set forth above their respective signatures
below.
PoC
Capital, LLC
By:
___________________________
▇▇▇▇▇
▇▇▇▇▇, Managing Director
By:
___________________________
▇▇▇▇▇▇▇
▇▇▇▇▇▇, CFO
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