SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO

RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

RULE 13d-2(a)

 

 

ATRINSIC, INC.

(Name of Issuer)

Common Stock, par value $0.000001 per share

(Title of Class of Securities)

04964C208

(CUSIP Number)

Garo H. Armen

3 Forbes Road

Lexington, MA 02421

212-994-8200

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

with copies to:

Kenneth S. Goodwin, Esq.

Meister Seelig & Fein LLP

125 Park Avenue, 7^th Floor

New York, NY 10017

(212) 655-3563

February 12, 2016

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ¨

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

 

 

 

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

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13D

 

CUSIP No. 04964C208		Page 2 of 7 Pages

 

1		NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)   Garo H. Armen
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a)  ¨        (b)  ¨
3		SEC USE ONLY
4		SOURCE OF FUNDS (See Instructions)       PF
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)    ¨
6		CITIZENSHIP OR PLACE OF ORGANIZATION       United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER
				8		SHARED VOTING POWER       57,821,440,628 (1) (2)
				9		SOLE DISPOSITIVE POWER
				10		SHARED DISPOSITIVE POWER       57,821,440,628 (1) (2)
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON       57,821,440,628 (1) (2)
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)    ¨
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   34.1% (1) (based on 149,770,843,633 shares of common stock outstanding as of February 12, 2016)
14		TYPE OF REPORTING PERSON (See Instructions)       IN

 

(1)	Includes vested warrants to purchase 19,381,714,215 shares common stock, assuming conversion of the Series B Preferred Stock.

(2)	Based on a total of 149,770,843,633 shares of common stock outstanding, assuming conversion of the Series B Preferred Stock.

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13D

 

CUSIP No. 04964C208		Page 3 of 7 Pages

 

1		NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)   Garo H. Armen IRA
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a)  ¨        (b)  ¨
3		SEC USE ONLY
4		SOURCE OF FUNDS (See Instructions)       PF
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)    ¨
6		CITIZENSHIP OR PLACE OF ORGANIZATION       United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER
				8		SHARED VOTING POWER       57,821,440,628 (1) (2)
				9		SOLE DISPOSITIVE POWER
				10		SHARED DISPOSITIVE POWER       57,821,440,628 (1) (2)
11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON       57,821,440,628 (1) (2)
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)    ¨
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   34.1% (1) (based on 149,770,843,633 shares of common stock outstanding as of February 12, 2016)
14		TYPE OF REPORTING PERSON (See Instructions)       IN

 

(1)	Includes vested warrants to purchase 19,381,714,215 shares common stock, assuming conversion of the Series B Preferred Stock.

(2)	Based on a total of 149,770,843,633 shares of common stock outstanding, assuming conversion of the Series B Preferred Stock.

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		13D
CUSIP No.: 04964C208				Page 4 of 7 Pages

 

Item 1.

Security and Issuer

This Schedule 13D relates to the Common Stock, par value $.000001 per share (the “Common Stock”), of Atrinsic, Inc., a Delaware corporation (the “Company”). The address of the Company’s principal executive offices is 149 Fifth Avenue, Suite 500, New York, NY 10010.

 

Item 2.

Identity and Background

This Schedule 13D is being filed jointly by Garo H. Armen and Garo H. Armen IRA (the “IRA”). Mr. Armen has sole voting and investment power with respect to all investments held by the IRA. Mr. Armen and the IRA are each referred to herein individually as a “Reporting Person” and collectively as the “Reporting Persons.”

Mr. Armen’s principal occupation is as Chairman and Chief Executive Officer Agenus, Inc., a publicly held biotechnology company focused on the development of technologies and products to treat cancers and infectious diseases. The Reporting Persons’ principal business address is 3 Forbes Road, Lexington, MA 02420. Mr. Armen is also the Chairman and a director of the Company.

The Reporting Persons have not been convicted in any criminal proceeding (excluding traffic violations and similar misdemeanors), and have not been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding were subject to a judgment, decree or final order enjoining future violations of, or prohibiting activity subject to, federal or state securities laws or finding any violation with respect to such laws during the last five years.

Mr. Armen is a citizen of the United States.

 

Item 3.

Source and Amount of Funds or Other Consideration

On February 12, 2015, the Company’s wholly-owned subsidiary, Protagenic Acquisition Corp., a Delaware corporation, was merged (the “Merger”) into Protagenic Thereapeutics, Inc. (“Protagenic”), and Protagenic became a wholly-owned subsidiary of the Company. Pursuant to the Merger, the holders of the outstanding common stock of Protagenic received an aggregate of 6,612,838 shares of the Company’s Series B Preferred Stock, par value $0.000001 per share (the “Series B Preferred Stock”). Each share of Series B Preferred Stock votes as a single class with the Company’s Common Stock on the basis of 15,463.7183 votes per share of Series B Preferred Stock. At such time as the Company files an amendment to its certificate of incorporation with the Secretary of State of the State of Delaware effecting a 1-for-15,463.7183 reverse stock split (the “Reverse Split”) of its outstanding Common Stock, with special treatment for certain of its stockholders to preserve round lot stockholders and the rounding up for fractional shares, then all the outstanding shares of Series B Preferred Stock will immediately and automatically convert into shares of Common Stock (the “Mandatory Conversion”), except for Series B Preferred Stock held by certain holders who have adopted a “blocker” provision (the “Blocker”) preventing the automatic conversion of such shares of Series B Preferred Stock that would cause each such holder of Series B Preferred Stock to beneficially own more than 9.9% of the Company’s Common Stock. At the consummation of the Mandatory Conversion, the holders of Super Voting Preferred Stock will be entitled to receive Common Stock at the conversion rate of 1 share of fully paid and non-assessable Common Stock for 1 share of Series B Preferred Stock.

The beneficial ownership of Common Stock reported in this Schedule 13D by the Reporting Persons is based on the Reporting Persons’ ownership of the Company’s Series B Preferred Stock, on an as-converted-to-Common-Stock basis, without giving effect to the Reverse Split and the Blocker, and assumes a total of 149,770,843,633 shares of Common Stock outstanding as of February 12, 2016.

On February 12, 2016, the Reporting Persons and each of Strategic Bio Partners, LLC, Gregory H. Ezikian, Alexander Arrow, Mark Berg, David A. Lovejoy and Larry N. Feinberg entered into a Voting Agreement (“Voting Agreement”) pursuant to which such parties became obligated, for so long as the Voting Agreement remains in effect according to its terms, to vote Garo H. Armen’s four nominees, and Strategic Bio Partners, LLC’s one nominee, to the Company’s Board of Directors. The authorized number of directors is five. The current members of

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		13D
CUSIP No.: 04964C208				Page 5 of 7 Pages

 

the Board of Directors are Mr. Armen, Robert B. Stein, Khalil Barrage, Gregory H. Ezikian and Joshua Silverman. Messrs. Armen, Stein Barrage and Ekizian are the nominees of Mr. Armen, while Mr. Silverman is the nominee of Strategic Bio Partners, LLC.

The Voting Agreement also obligates the Reporting Persons and the other parties to the Voting Agreement to vote to approve the amendment of the Company’s certificate of incorporation, as amended, to authorize the Reverse Split. In the event that any of the parties to the Voting Agreement fail to vote their respective shares to approve the matters covered by the Voting Agreement, each of the parties has granted to the Company, or any designee of the Company, with full power of substitution, a proxy to vote their respective shares to approve such matters.

The Voting Agreement is attached hereto as Exhibit 1, and incorporated herein by reference.

The Reporting Persons acquired 2,205,801 shares of Series B Preferred Stock from the Company in exchange for 2,205,801 shares of common stock, $.001 par value, of Protagenic in connection with the Merger. On February 11, 2016 Mr. Armen purchased 280,000 shares of Series B Preferred Stock for a purchase price of $1.25 per share, or an aggregate purchase price of $350,000. The purchase price was paid by the cancellation of $350,000, inclusive of principal and interest, of debt owed by Protagenic to Mr. Armen.

The shares of Common Stock that are deemed to be beneficially owned by the Reporting Persons as of the date of this Schedule 13D include warrants to purchase 1,253,367 shares of Series B Preferred Stock. These warrants were exchanged in the Merger for warrants originally issued by Protagenic to purchase 1,253,367 shares of Protagenic common stock. Prior to the Reverse Split, the warrants are exercisable for Series B Preferred Stock for an exercise price of $1.00 per share; after the Reverse Split, the warrants will entitle Mr. Armen to buy Common Stock for an exercise price of $1.00 per share. Warrants to purchase 300,000 shares expire in May 2021, while warrants to purchase 953.367 shares expire in February 2023. Payment of the exercise price for the warrants may be by (i) cash, (ii) through a net or cashless exercise, or (iii) by any combination of (i) and (ii) above. The Reporting Person must pay the warrant exercise price at the time of exercise.

 

Item 4.

Purpose of Transaction

Reference is made to the disclosure set forth under Item 3 of this Schedule 13D, which disclosure is incorporated herein by reference.

The Reporting Persons acquired the securities of the Company for investment purposes. The Reporting Persons disclaim any membership in a group relating to the Company except with respect to the matters relating to the Voting Agreement described above, as to which matters the Reporting Persons have agreed to vote.

The Reporting Persons have no present plans or proposals which relate or would result in any of the matters set forth in paragraphs (a) through (j) of Item 4 of Schedule 13D.

 

Item 5.

Interest in Securities of the Issuer

The information contained in Items 3 and 4 is hereby incorporated herein by reference.

The Reporting Persons are the beneficial owners of 3,739,168 shares of Series B Preferred Stock, which includes vested warrants to purchase 1,253,367 shares of Series B Preferred Stock. These shares and warrants are convertible into 57,821,440,628 shares (the “Shares”) of Common Stock, which represents approximately 34.1% of the Company’s outstanding shares of Common Stock. This percentage assumes (i) conversion of all of the outstanding Series B Preferred Stock, (ii) the 400,000,000 shares of Common Stock listed as outstanding in the Company’s most recent Quarterly Report on Form 10-Q filed November 13, 2015 and (iii) the 2,205,801 shares of Series B Preferred Stock reported in this Schedule 13D and the 1,253,367 shares of Series B Preferred Stock that would be issued to the Reporting Persons upon the exercise of all warrants held by the Reporting Persons.

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		13D
CUSIP No.: 04964C208				Page 6 of 7 Pages

 

Mr. Armen has the sole power vote or direct the vote of, and to dispose of or direct the disposition of, the Shares.

Transactions by the Reporting Persons in Common Stock effected in the past 60 days are described in Item 3 above.

 

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

The information set forth and/or incorporated by reference in Items 3 through 5 is hereby incorporated by reference into this Item 6.

Other than as set forth above or incorporated herein by reference, the Reporting Persons do not have any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Company, including but not limited to the transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies.

 

Item 7.

Material to Be Filed as Exhibits

 

Exhibit No.		Description
1		Voting Agreement, dated February 12, 2016.

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		13D
CUSIP No.: 04964C208				Page 7 of 7 Pages

 

SIGNATURE

After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: February 16, 2016

 

/s/ Garo H. Armen
Garo H. Armen
Garo H. Armen IRA
By:		/s/ Garo H. Armen
Garo H. Armen

Exhibit 1

VOTING AGREEMENT

This VOTING AGREEMENT (this “Agreement”) is entered into as of February 12, 2016 (the “Effective Date”) by and among Atrinsic, Inc., a Delaware corporation (the “Company”), the parties listed as stockholders of Protagenic Therapeutics, Inc. (the “Protagenic Therapeutics Stockholders”) on the signature pages hereto, and Strategic Bio Partners, LLC (“Strategic”), each such person a “Stockholder” and collectively, the “Stockholders”.

W I T N E S S E T H:

WHEREAS, as of the date hereof, each Stockholder holds and is entitled to vote (or to direct the voting of) shares of (i) common stock, par value $0.000001 per share of the Company (the “Common Stock”), and/or (ii) shares of Series B preferred stock, par value $0.000001 per share, of the Company (the “Series B Shares”, and together with the Common Stock, the “Voting Shares”), of the Company (such Voting Shares, together with any other Voting Shares the voting power of which is acquired by such Stockholders during the period from the date hereof through the date on which this Agreement is terminated in accordance with its terms (such period, the “Voting Period”), are collectively referred to herein as the “Subject Shares”);

WHEREAS, the Company has entered into an Agreement and Plan of Merger with Protagenic Therapeutics, Inc., a Delaware corporation (“Protagenic”), pursuant to which a newly organized, wholly-owned subsidiary of the Company has merged with and into Protagenic, with Protagenic remaining as the surviving entity and a wholly-owned subsidiary of the Company (the “Merger”);

WHEREAS, simultaneously with the Merger and to provide the capital required by the Company for working capital and other purposes, the Company has offered Series B Shares to investors in a private placement transaction (the “PPO”) in compliance with Rule 506 of Regulation D of the Securities Act of 1933, as amended;

WHEREAS, the initial closing of the PPO and the closing of the Merger have taken place as of the Effective Date; and

WHEREAS, as an inducement to the parties’ willingness to consummate the transactions contemplated by the Merger Agreement, the Company and the Stockholders are entering into this Agreement.

NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants, and conditions set forth herein, the parties mutually agree as follows:

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ARTICLE I

DEFINITIONS

Section 1.1 Capitalized Terms. For purposes of this Agreement, capitalized terms used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.

ARTICLE II

VOTING AGREEMENT AND IRREVOCABLE PROXY

Section 2.1 Agreement to Vote the Subject Shares. Each Stockholder hereby agrees that, during the Voting Period, at any duly called meeting of the stockholders of the Company (or any adjournment or postponement thereof) or action taken by written consent in lieu of a meeting, each Stockholder shall, if a meeting is held, appear at the meeting, in person or by proxy, or otherwise cause his Subject Shares owned at any time to be counted as present thereat for purposes of establishing a quorum, and he shall vote (or cause to be voted), in person or by proxy, all of his Subject Shares:

(a) to ensure that the size of the Board shall be set and remain at five (5) directors unless increased by the Board;

(b) to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the Stockholders, one person designated by Strategic shall be elected to the Board, which individual shall initially be Josh Silverman;

(c) to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the Stockholders, four persons designated by Garo H. Armen (as long as he is an officer or director of the Company) shall be elected to the Board, which individuals shall initially be Garo H. Armen, Robert B. Stein, Khalil Barrage and Gregory H. Ekizian; and

(d) to ensure that the Company files an amendment to its certificate of incorporation to effect a one-for-15,463.7183 reverse stock split.

Section 2.2 Grant of Irrevocable Proxy. If requested by the Company, each Stockholder shall appoint the Company and any designee of the Company, and each of them individually, as each Stockholder’s proxy, with full power of substitution and resubstitution, to vote during the Voting Period with respect to any and all of the Subject Shares on the matters and in the manner specified in Section 2.1. Each Stockholder shall take such further action or execute such other instruments as may be reasonably necessary to effectuate the intent of any such proxy. Each Stockholder affirms that any irrevocable proxy given by such Stockholder with respect to this Agreement and the transactions contemplated hereby shall be given to the Company by such Stockholder to secure the performance of the obligations of the Stockholder under this Agreement. It is agreed that the Company (and its officers on behalf of the Company) will use the irrevocable proxy that may be granted by each Stockholder only in accordance with applicable law and only if such Stockholder fails to comply with Section 2.1 and that, to the

 

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extent the Company (and its officers on behalf of the Company) uses any such irrevocable proxy, he will only vote the Subject Shares subject to such irrevocable proxy with respect to the matters specified in, and in accordance with the provisions of, Section 2.1.

Section 2.3 Nature of Irrevocable Proxy. Any proxy granted pursuant to Section 2.2 to the Company by the Stockholders shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by the Stockholders. Any proxy that may be granted hereunder shall terminate upon the termination of this Agreement.

ARTICLE III

COVENANTS

Section 3.1 Subject Shares.

(a) Each Stockholder agrees that during the Voting Period such Stockholder shall not, without the Company’s prior written consent, grant any proxies or powers of attorney with respect to any or all of the Subject Shares or agree to vote the Subject Shares on any matter inconsistent with the terms described herein; provided, however, that in the event a Stockholder transfers all or any portion of his Subject Shares such Stockholder shall be permitted to grant stock powers with respect to such transferred Subject Shares.

(b) In the event of (i) a stock dividend or distribution, (ii) any change in the Subject Shares by reason of any stock dividend or distribution, split-up, recapitalization, combination, conversion, exchange of shares or the like or (iii) the conversion of Series B Shares into Common Shares, the term “Subject Shares” shall be deemed to refer to and include the Subject Shares as well as all such stock dividends and distributions and any securities into which or for which any or all of the Subject Shares may be changed, exchanged or converted or which are received in such transaction.

Section 3.2 Voting Trusts. Each Stockholder agrees that it will not, nor will it permit any entity under its control to, deposit any of such Stockholder’s Subject Shares in a voting trust or subject any of its Subject Shares to any arrangement with respect to the voting of such Subject Shares other than as provided herein. Notwithstanding the foregoing, each Stockholder shall be permitted to transfer all or any portion of its Subject Shares to third parties.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER

Each Stockholder hereby represents and warrants to the Company, severally, but not jointly, as follows:

Section 4.1 Authority, etc. The Stockholder (i) if a natural person, represents that the Stockholder has reached the age of 21 and has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof; (ii) if a corporation, partnership, or limited liability company or

 

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partnership, or association, joint stock company, trust, unincorporated organization or other entity, represents that such entity was not formed for the specific purpose of acquiring the Series B Shares, such entity is duly organized, validly existing and in good standing under the laws of the state of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of state law or its charter or other organizational documents, such entity has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof, the execution and delivery of this Agreement has been duly authorized by all necessary action, this Agreement has been duly executed and delivered on behalf of such entity and is a legal, valid and binding obligation of such entity; or (iii) if executing this Agreement in a representative or fiduciary capacity, represents that it has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the subscribing individual, ward, partnership, trust, estate, corporation, or limited liability company or partnership, or other entity for whom the Stockholder is executing this Agreement, and such individual, partnership, ward, trust, estate, corporation, or limited liability company or partnership, or other entity has full right and power to perform pursuant to this Agreement and represents that this Agreement constitutes a legal, valid and binding obligation of such entity. This Agreement has been duly executed and delivered by each Stockholder and (assuming the due authorization, execution and delivery by the Company) constitutes a valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms, except to the extent enforcement is limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and by general equitable principles.

Section 4.2 Ownership of Shares. As of the date hereof, each Stockholder is the lawful owner of the Voting Shares owned by such Stockholder and has the sole power to vote or cause to be voted such shares or shares power to vote or cause to be voted such shares solely with one or more other persons. Each Stockholder has good and valid title to the Voting Shares owned by each Stockholder, free and clear of any and all pledges, mortgages, liens, charges, proxies, voting agreements, encumbrances, adverse claims, options, security interests and demands of any nature or kind whatsoever, other than (i) those created by this Agreement, or (ii) those existing under applicable securities laws.

Section 4.3 No Conflicts. (a) No authorization, consent or approval of any other person is necessary for the execution of this Agreement by each Stockholder and (b) none of the execution and delivery of this Agreement by each Stockholder, the consummation by each Stockholder of the transactions contemplated hereby or compliance by each Stockholder with any of the provisions hereof shall (i) result in, or give rise to, a violation or breach of or a default under any of the terms of any material contract, understanding, agreement or other instrument or obligation to which each Stockholder is a party or by which each Stockholder or any of the Subject Shares or its assets may be bound or (ii) violate any applicable order, writ, injunction, decree, judgment, statute, rule or regulation, except for any of the foregoing as would not reasonably be expected to materially impair each Stockholder’s ability to perform his obligations under this Agreement.

 

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ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company hereby represents and warrants to each Stockholder as follows:

Section 5.1 Due Organization, etc. The Company is a Delaware corporation duly organized and validly existing under the laws of Delaware. The Company has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by the Company have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and (assuming the due authorization, execution and delivery by each Stockholder) constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent enforcement is limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and by general equitable principles.

Section 5.2 No Conflicts. (a) No authorization, consent or approval of any other person is necessary for the execution of this Agreement by the Company and (b) none of the execution and delivery of this Agreement by the Company, the consummation by the Company of the transactions contemplated hereby or compliance by the Company with any of the provisions hereof shall (i) conflict with or result in any breach of the organizational documents of the Company, (ii) result in, or give rise to, a violation or breach of or a default under any of the terms of any material contract, understanding, agreement or other instrument or obligation to which the Company is a party or by which the Company or any of its assets may be bound or (iii) violate any applicable order, writ, injunction, decree, judgment, statute, rule or regulation, except for any of the foregoing as would not reasonably be expected to materially impair the Company’s ability to perform its obligations under this Agreement.

ARTICLE VI

TERMINATION

Section 6.1 Termination. This Agreement shall automatically terminate, and neither the Company nor the Stockholders shall have any rights or obligations hereunder and this Agreement shall become null and void and have no effect upon the earliest to occur of: (a) the approval of the holders of at least 90% of the Subject Shares (which percentage shall take into account any Subject Shares owned by a Stockholder that are not eligible to vote pursuant to any limitations on voting under the terms of the Series B Shares), (b) the closing of a firm commitment underwritten public offering of the Company’s shares of Common Stock resulting in gross proceeds of at least $20 million or (iii) three years from the Effective Date. The termination of this Agreement shall not prevent either party from seeking any remedies (at law or in equity) against the other party or relieve any party from liability for such party’s willful and material breach of any terms of this Agreement. Notwithstanding anything to the contrary herein, (i) the provisions of Article VII shall survive the termination of this Agreement and (ii) if a Stockholder effectuates a sale, transfer or other disposition of its Subject Shares to a party that is not a Stockholder during the Voting Period, the transferee shall not acquire Subject Shares subject to the terms of this Agreement.

 

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ARTICLE VII

MISCELLANEOUS

Section 7.1 Further Actions. Each of the parties hereto agrees to take any all actions and to do all things reasonably necessary or appropriate to effectuate this Agreement.

Section 7.2 Amendments, Waivers, etc. This Agreement may not be amended, changed, supplemented, waived or otherwise modified, except upon the execution and delivery of a written agreement executed by the holders of at least 75% of the Subject Shares. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance.

Section 7.3 Notices. All notices or other communications which are required or permitted under this Agreement shall be in writing and sufficient if delivered by hand, by facsimile transmission, by registered or certified mail, post pre-paid, or by courier or overnight carrier, to the persons at the addresses set forth below (or at such other address as may be provided hereunder), and shall be deemed to have been delivered as of the date so delivered:

 

If to the Company   Atrinsic, Inc. 149 Fifth Avenue, Suite 500 New York, NY 10010 Attn: Robert Ziroyan, President Facsimile: 508.734.2177 Email: rziroyan@protagenic.com		Copy to (which copy shall not constitute notice hereunder):   Meister Seelig & Fein LLP 125 Park Avenue, 7th Floor New York, NY 10017 Attn: Mark J. Seelig, Esq. Facsimile: (646) 539-3655 Email: mjs@msf-law.com

If to the Stockholders:

To each Stockholder at the address set forth on the signature page hereto or at such other address as any party shall have furnished to the other parties in writing.

Section 7.4 Headings. Headings of the Articles and Sections of this Agreement are for convenience of the parties only, and shall be given no substantive or interpretive effect whatsoever.

Section 7.5 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the

 

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application of such provision to any person or any circumstance, is invalid or unenforceable (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application of such provision, in any other jurisdiction.

Section 7.6 Entire Agreement; Assignment. This Agreement constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, between the parties, or any of them, with respect to the subject matter hereof. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding two sentences, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

Section 7.7 Parties in Interest. The Company and the Stockholders hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder, including, without limitation, the right to rely upon the representations and warranties set forth herein. The representations and warranties in this Agreement are the product of negotiations among the parties hereto and are for the sole benefit of the parties hereto. Any inaccuracies in such representations and warranties are subject to waiver by the parties hereto in accordance with Section 7.2 without notice or liability to any other person. In some instances, the representations and warranties in this Agreement may represent an allocation among the parties hereto of risks associated with particular matters regardless of the knowledge of any of the parties hereto. Consequently, persons other than the parties hereto may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

Section 7.8 Interpretation. When a reference is made in this Agreement to an Article or Section, such reference shall be to an Article or Section of this Agreement unless otherwise indicated. Whenever the words “include,” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant thereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented in accordance with the terms hereof, including (in the case

 

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of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors and assigns. Each of the parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement must be construed as if drafted by all the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement.

Section 7.9 Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.

Section 7.10 Specific Performance. The parties acknowledge that any breach of this Agreement would give rise to irreparable harm for which monetary damages would not be an adequate remedy and that, in addition to other rights or remedies, the parties shall be entitled to seek enforcement of any provision of this Agreement by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of this Agreement, without the necessity of proving the inadequacy of monetary damages as a remedy.

Section 7.11 Submission to Jurisdiction. The parties hereby irrevocably submit to the exclusive jurisdiction of the United States District Court for the Southern District of New York located in the borough of Manhattan in the City of New York, or if such court does not have jurisdiction, the Supreme Court of the State of New York, New York County, for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby. Each of the parties hereto further agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set forth in Section 7.3 (or to such other address for notices as provided by such party pursuant to Section 7.3) or in any other manner permitted by law shall be effective service of process for any action, suit or proceeding in New York with respect to any matters to which it has submitted to jurisdiction as set forth above in the immediately preceding sentence. Each of the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in (i) the United States District Court for the Southern District of New York or (ii) the Supreme Court of the State of New York, New York County, and hereby further irrevocably and unconditionally waives and agrees not to please or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

Section 7.12 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

 

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EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.12.

Section 7.13 Counterparts. This Agreement may be executed in two or more counterparts (including by facsimile or electronic submission via .pdf file), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (including by facsimile or electronic submission via .pdf file) to the other parties.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as of the day and year first above written.

 

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IN WITNESS WHEREOF, the undersigned have caused this Voting Agreement to be duly executed as of the day and year first above written.

PROTAGENIC THERAPEUTICS, INC. STOCKHOLDERS

 

/s/ Garo H. Armen Garo H. Armen   Address:   c/o Atrinsic, Inc.                   149 Fifth Avenue, Suite 500                   New York, NY 10010				/s/ Garo H. Armen Garo H. Armen IRA   Address:   c/o Atrinsic, Inc.                   149 Fifth Avenue, Suite 500                   New York, NY 10010
/s/ Gregory H. Ekizian Gregory H. Ekizian   Address:   1902 South Ardsley Street,                   Tampa Florida 33629				/s/ Gregory H. Ekizian Gregory H. Ekizian Revocable Trust   Address:   1902 South Ardsley Street,                   Tampa Florida 33629
/s/ Alexander Arrow Alexander Arrow   Address:   c/o Atrinsic, Inc.                   149 Fifth Avenue, Suite 500                   New York, NY 10010				/s/ Mark Berg Mark Berg   Address:   210 Circle Rd,                   Syosset, NY 11791
/s/ Mark Berg Mark Berg IRA   Address:   210 Circle Rd,                   Syosset, NY 11791				/s/ Larry N. Feinberg Larry N. Feinberg   Address:   808 North St.                   Greenwich, CT 06831
/s/ David A. Lovejoy David A. Lovejoy   Address:   149 Baker St.                    Stouffville, Ontario, L4A 1K6                    Canada

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IN WITNESS WHEREOF, the undersigned have caused this Voting Agreement to be duly executed as of the day and year first above written.