ex101.htm


    Exhibit 10.1


    
      
         

        The confidential portions of this exhibit have been filed separately
with the Securities and Exchange Commission pursuant to a confidential treatment
request in accordance with Rule 406 under the Securities Act of 1933, and Rule
24b-2, under the Securities Exchange Act of 1934, Redacted portions of this
exhibit are marked by an [***].

         

      

    

    Acquisition
Option Agreement

     

    of
Scientific Nanomedicine, Inc., from Edward R. Flynn, Ph.D., by Manhattan
Scientifics, Inc.

     

    This
Acquisition Option Agreement (“Agreement”) is made by and
among Senior Scientific LLC, a New Mexico limited liability company having a
place of business in Albuquerque, NM (“SS”), Edward R. Flynn, Ph.D.
("Dr. Flynn"), Scientific
Nanomedicine, Inc., a Delaware corporation ("SNMI") and Manhattan
Scientifics, Inc., a Delaware corporation having a place of business in New
York, New York (“MSI”),
and is effective as of ____________ (the “Effective Date”).

     

    
      	
              1.  

            	
              Background.

            


    

     

    
      	
              1.1.  

            	
              SNMI
      is a corporation, wholly owned by Dr. Flynn, established for the
      commercialization of technology owned by Dr. Flynn or SS, and generally
      related to detection of biological materials, including detection and
      treatment of cancer, with application to other areas of biology as
      well.

            


    

     

    
      	
              1.2.  

            	
              SS
      and Dr. Flynn have previously assigned to SNMI all interest in technology
      generally related to detection of biological materials, including
      detection and treatment of cancer, with application to other areas of
      biology as well, as set forth in the Technology Transfer Agreement between
      Senior Scientific LLC and SNMI (the “Transfer Agreement”);
      which Transfer Agreement has been provided to MSI and acknowledged by
      MSI.

            


    

     

    
      	
              1.3.  

            	
              MSI
      advances technologies with potential world-changing impact to the
      threshold of commercialization by following the principles of purpose,
      dedication and cooperation.

            


    

     

    
      	
              1.4.  

            	
              MSI
      desires to obtain an option to acquire SNMI, including all IP assigned to
      SNMI under the Transfer Agreement, for purposes of raising capital and
      securing partnerships with industry leaders suitable for successful
      commercialization of the technology, with the intent to exercise the
      option and acquire SNMI if one or more large commercial partners can be
      found to [***], and Dr. Flynn desires to grant the option
      [***].

            


    

     

    
      	
              1.5.  

            	
              [***].

            


    

     

    
      	
              2.  

            	
              Definitions.
      The following terms shall have the meanings set forth
    below.

            


    

     

    
      	
              2.1. 

            	
              Assigned IP. Assigned IP
      as defined in the Transfer
  Agreement.

            


    

     

    
      	
              2.2. 

            	
              Affiliate. An “Affiliate” of a party is
      any entity that, directly or indirectly, controls the party, is controlled
      by the party, or is under common control with the
      party.

            


    

     

    
      	
              3.  

            	
              MSI Option to Acquire
      SNMI.

            


    

     

    
      	
              3.1.  

            	
              MSI
      shall have the right to acquire 100% of the ownership of SNMI from Dr.
      Flynn at any time during the Option Period (the “Option Period” is the
      Initial Option Period and all applicable Extension
    Periods).

            


    

     

    
      	
              3.2.  

            	
              MSI
      may exercise its option by giving Dr. Flynn written notice of exercise,
      accompanied by payment of the Purchase
Price.

            


    

     

    
      	
              3.3.  

            	
              The
      Purchase Price shall be (a) US$[***], plus (b) [***] shares of the
      restricted common stock of MSI, subject to applicable law and subject to
      [***]. The Purchase Price shall be reduced by any payments and stock
      issuances for extensions of the Option Period made by MSI prior to the
      notice of exercise.

            


    

     

    
      	
              3.4.  

            	
              Simultaneously
      with receipt of the Purchase Price, Dr. Flynn shall transfer to MSI 100%
      of the shares in SNMI.

            


    

     

    
      	
              4.  

            	
              Option
      Period.

            


    

     

    
      	
              4.1.  

            	
              The
      Option Period shall begin on the Effective Date and extend until the date
      that is nine months after the Effective Date (the “Initial Option
      Period”).

            


    

     

    
      	
              4.2.  

            	
              If
      MSI pays to Dr. Flynn US$[***] and [***] shares of the restricted common
      stock of MSI, subject to applicable law and subject to [***] on or before
      the end of the Initial Option Period (together the “First Payment”), then
      the Option Period shall continue until the date that is [***] months after
      the Effective Date (the “First Extension
      Period”).

            


    

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

    
       

      
        The confidential portions of this exhibit have been filed separately
with the Securities and Exchange Commission pursuant to a confidential treatment
request in accordance with Rule 406 under the Securities Act of 1933, and Rule
24b-2, under the Securities Exchange Act of 1934, Redacted portions of this
exhibit are marked by an [***].

         

      

    

     

    
      	
              4.3.  

            	
              If,
      in addition to the First Payment, MSI issues to Dr. Flynn [***] shares of
      the restricted common stock of MSI, subject to [***] (the “Second Payment”), on or
      before the end of the First Extension Period, then the Option Period shall
      continue under the date that is [***] months after the Effective Date (the
      “Second Extension
      Period”).

            


    

     

    
      	
              4.4.  

            	
              If,
      in addition to the First Payment and the Second Payment, MSI issues to Dr.
      Flynn [***] shares of the restricted common stock of MSI, subject to [***]
      (the “Third
      Payment”), on or before the end of the Second Extension Period,
      then the Option Period shall continue under the date that is [***] months
      after the Effective Date (the “Third Extension
      Period”).

            


    

     

    
      	
              4.5.  

            	
              If
      MSI does not exercise its option [***], then MSI shall have no rights to
      acquire SNMI hereunder.

            


    

     

    
      	
              5.  

            	
              Acquisition of
      SNMI. Each Party consents to and approves of MSI’s acquisition of
      SNMI, and acknowledges that the rights and obligations of SS, Dr. Flynn,
      and SNMI under the Transfer Agreement will be unchanged by the change in
      ownership of SNMI from Dr. Flynn to MSI. MSI acknowledges that it has
      reviewed the Transfer Agreement and agrees that SNMI shall continue to
      abide by its terms after any acquisition by MSI of the shares of SNMI
      under this Agreement.

            


    

     

    
      	
              6.  

            	
              IP Protection and
      Filing During the Option
Period.

            


    

     

    
      	
              6.1.  

            	
              MSI
      will assist SNMI in developing an IP protection plan concerning the
      Assigned IP.

            


    

     

    
      	
              6.2.  

            	
              [***].

            


    

     

    
      	
              6.3.  

            	
              SNMI,
      Dr. Flynn, and SS acknowledge and agree that all patent applications filed
      under this section are solely to protect MSI’s interest in the option to
      acquire SNMI, and that neither MSI nor its counsel has any obligation to
      SNMI, Dr. Flynn, or SS regarding such patent applications, including
      without limitation the content, filing, and prosecution of such patent
      applications. MSI, SNMI, SS, and Dr. Flynn all consent to the counsel of
      MSI’s choosing to work on such patent applications, and acknowledge that
      such counsel represents only MSI, and that SNMI, SS, and Dr. Flynn have
      been advised to and have sought separate counsel regarding their interest
      in this Agreement, including their interest, if any, in patent
      applications under this section.

            


    

     

    
      	
              6.4.  

            	
              During
      the Option Period, MSI will act in a commercially reasonable manner to
      protect the Assigned IP while MSI seeks to commercialize the Assigned
      IP.

            


    

     

    
      	
              7.  

            	
              Term and
      Termination.

            


    

     

    
      	
              7.1.  

            	
              This
      Agreement shall be effective as of the Effective Date, and shall continue
      until the end of the Option Period.

            


    

     

    
      	
              7.2.  

            	
              Subject
      to the Dispute Resolution provisions hereof, either party may assert
      claims for damages or equitable relief due to the other party’s material
      breach that remains uncured after a reasonable period in light of the
      nature of the obligation, the nature of the breach, and any reasonable
      opportunity to cure.

            


    

     

    
      	
              8.  

            	
              Representations,
      Warranties and Covenants.

            


    

     

    
      	
              8.1.  

            	
              Each
      of MSI, SNMI, and SS represents and warrants to the other that it is a
      corporation (in the case of MSI and SNMI) or limited liability company (in
      the case of SS) duly organized, validly existing, and in good standing
      under the laws of its state of incorporation or organization, having a
      place of business as set forth above, that it has the power and authority
      to enter into this Agreement and that all corporate and other action
      required to be taken on behalf of such party to authorize the execution
      and delivery of this Agreement and to carry out the transactions
      contemplated herein, has been duly and properly
  taken.

            


    

     

    
      	
              8.2.  

            	
              Each
      of Dr. Flynn and SNMI represents and warrants that Dr. Flynn is the sole
      owner of 100% of the shares of SNMI, and that no other party has any
      rights to any shares or other ownership interest in SNMI, and that Dr.
      Flynn has complete and sole authority to transfer the shares of SNMI, and
      that such shares shall be fully paid and nonassessable. Each of Dr. Flynn
      and SNMI represents, warrants, and covenants that no other party will be
      granted any shares or other ownership interest or claim (including without
      limitation any liens) to any shares or ownership interest in SNMI, and
      that Dr. Flynn, at all times while this Agreement is in force, will have
      complete and sole authority to transfer the shares, and that Dr. Flynn and
      SNMI will execute all instruments necessary to accomplish such transfer as
      set forth in this Agreement. SNMI and Dr. Flynn agree that all shares of
      SNMI will have a legend placed thereon specifically referring to this
      Agreement and MSI’s rights hereunder, and that, if any other party does
      acquire any interest in the shares of SNMI, that such interest shall be
      subject to MSI’s rights under this
Agreement.

            


    

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    
       

      
        The confidential portions of this exhibit have been filed separately
with the Securities and Exchange Commission pursuant to a confidential treatment
request in accordance with Rule 406 under the Securities Act of 1933, and Rule
24b-2, under the Securities Exchange Act of 1934, Redacted portions of this
exhibit are marked by an [***].

         

      

    

     

    
      	
              8.3.  

            	
              Each
      of Dr. Flynn, SS, SNMI and MSI represents and warrants that it has
      disclosed to the other Party any written or electronic mail communications
      actually received by it which alleges it has violated or, by conducting
      its obligations as currently proposed under this Agreement, would violate,
      any of the Intellectual Property rights of any third
  party.

            


    

     

    
      	
              8.4.  

            	
              Each
      of SS and Dr. Flynn represents that, to its actual knowledge, it owned and
      had the right to assign the Assigned IP as set forth in the Transfer
      Agreement; and that it obtained its rights fully in accordance with
      applicable laws, rules and regulations; and that it has not granted any
      licenses or other rights to any of the Assigned IP (except for reserved
      rights to the US government in developments made under US government
      grants); and covenants that it shall not grant any licenses or other
      rights to any of the Assigned IP (except for reserved rights to the US
      government in developments made under US government
      grants).  [***].

            


    

     

    
      	
              8.5.  

            	
              Noncircumvent.
      Each of Dr. Flynn and SS covenants that it will not solicit or engage in
      business related to the Assigned IP or SNMI with any MSI-Referred Party
      without MSI’s written consent. An “MSI-Referred Party” is
      any party, and affiliates of any party, with whom MSI has done any of the
      following: introduced the party to any of the Assigned IP, executed
      written agreements relative to any of the Assigned IP, engaged in
      negotiations relative to rights in any of the Assigned IP or
      commercialization of any of the Assigned IP. If MSI has not exercised its
      option at the expiration of the Option Period, then MSI will provide to
      Dr. Flynn and SS a list of MSI-Referred Parties. This Noncircumvent
      obligation shall extend for 5 (five) years after expiration of the Option
      Period.

            


    

     

    
      	
              8.6.  

            	
              Financing and
      Cooperation. Dr. Flynn will cooperate with SNMI and MSI in the
      commercialization of the Assigned IP, provided that MSI shall pay
      [***].

            


    

     

    
      	
              8.7.  

            	
              Right of First
      Negotiation. If SS or Dr. Flynn proposes to sell or otherwise
      dispose of any property that is specifically suited to any of the Assigned
      IP (including, as examples, scientific instruments, research instruments,
      and computer interfaces; but not including general office equipment or
      supplies), then MSI shall be offered the first opportunity to purchase
      such property upon mutually agreeable terms. MSI shall have 30 days from
      the offer to negotiate the purchase, during which period MSI, SS, and Dr.
      Flynn will negotiate in good faith the terms of the purchase, and then SS
      and Dr. Flynn may consider other sales or
  transfers.

            


    

     

    
      	
              9.  

            	
              Miscellaneous.

            


    

     

    
      	
              9.1.  

            	
              Further
      Assurances. Each Party hereby agrees to execute and deliver any
      further assignments and other documents as the other Party reasonably
      believes to be necessary to effect the provisions of this Agreement, or
      other enjoyment of the rights granted to such other Party
      hereunder.

            


    

     

    
      	
              9.2.  

            	
              Force Majeure.
      The parties shall not be responsible for any failure to perform due to the
      occurrence of any events beyond their reasonable control which render
      their performance impossible or onerous. Dr. Flynn's death or disability
      shall not void the obligations of MSI under this
  Agreement.

            


    

     

    
      	
              9.3.  

            	
              Headings. The
      headings of the articles, paragraphs, and clauses used in this Agreement
      are included for convenience only and are not to be used in interpreting
      or construing this Agreement.

            


    

     

    
      	
              9.4.  

            	
              Governing Law.
      This Agreement and all disputes concerning its execution, formation,
      interpretation, performance, breach, termination, validity, or
      enforceability shall be governed by and interpreted and enforced in
      accordance with the laws of the United States of America and the State of
      New Mexico, without regard to any principles of conflicts of law. In any
      action brought arising out of this Agreement, including without limitation
      any action to enforce the terms of this Agreement or to recover damages
      from a breach of this Agreement, but not including actions against third
      parties for infringement of IP rights, the parties agree to the exclusive
      jurisdiction and venue of the state court of general jurisdiction and, if
      appropriate, to a federal court sitting in the state of New Mexico, and
      agree that neither party shall raise any objection to such personal
      jurisdiction or venue.

            


    

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    
      
        The confidential portions of this exhibit have been filed separately
with the Securities and Exchange Commission pursuant to a confidential treatment
request in accordance with Rule 406 under the Securities Act of 1933, and Rule
24b-2, under the Securities Exchange Act of 1934, Redacted portions of this
exhibit are marked by an [***].

         

      

    

     

    
      	
              9.5.  

            	
              Trademarks and
      Publicity. No party shall use any trademark of any other party
      without first obtaining express written permission from the other. No
      party shall make any public disclosure, including press releases,
      disclosing the business relationship of any of the parties hereto or any
      aspect thereof or identifying the other party, without the express written
      permission of the party to be identified. MSI, SNMI, Dr. Flynn and SS will
      cooperate in drafting a joint press release announcing the signing of this
      Agreement, and on other joint press releases from time to time. Neither
      party shall disclose specific terms of this Agreement, without the prior
      consent of the other party or to the extent required by applicable law or
      regulation, in which case the parties shall discuss the claimed lawful or
      regulatory duty before making disclosure of all or any part of this
      Agreement.

            


    

     

    
      	
              9.6.  

            	
              Dispute
      Resolution. Any disputes arising from or related to this Agreement
      shall be addressed and resolved in three phases. First, an offended party
      shall notify the other parties in writing of the events or occurrences
      that give rise to a dispute. Within ten days of the actual receipt of the
      notice, responsible representatives of the parties shall meet and, in good
      faith, attempt to address and resolve the dispute through negotiation. If
      the negotiations fail to resolve the dispute, the parties shall jointly
      select a mediator and, within twenty days of the failed negotiations,
      participate in mediation at a location within the State of New Mexico
      selected by the mediator. Unless otherwise agreed by the parties, the
      mediation shall conclude within forty-five days of the receipt of the
      initial notice required under this paragraph. If the parties fail to
      resolve fully their dispute through mediation, then any party may file a
      lawsuit against another party.

            


    

     

    
      	
              9.7.  

            	
              Attorney's
      Fees. In the event legal proceedings arising out of or relating to
      this Agreement are initiated by either party against the other, the
      substantially prevailing party shall be entitled to recover its reasonable
      expenses and costs, including attorneys’
fees.

            


    

     

    
      	
              9.8.  

            	
              Waiver. No
      claim or right arising out of a material breach of this Agreement can be
      discharged in whole or in part by a waiver of the claim or rights unless
      it is in writing and signed by the aggrieved
  party.

            


    

     

    
      	
              9.9.  

            	
              Notices. All
      notices and other communications required herein shall be in writing and
      shall be either delivered personally or be sent by certified mail, postage
      prepaid, return receipt requested. Items delivered personally shall be
      deemed delivered one day after dispatch; items sent by certified or
      registered mail shall be deemed delivered three (3) days after mailing.
      The addresses of the parties for purposes of this provision
      are:

            


    

     

    
      	
              9.9.1.  

            	
              MSI:

            


    

     

    
      	
               
      

            	
              Chief
      Executive Officer

            


    

     

    
      	
               
      

            	
              Manhattan
      Scientifics, Inc.

            


    

     

    
      	
               
      

            	
              113
      Niagara

            


    

     

    
      	
               
      

            	
              Kirkland,
      Quebec H9J3B2 Canada

            


    

     

    
      	
              9.9.2.  

            	
              SS
      and Dr. Flynn:

            


    

     

    
      	
               
      

            	
              Edward
      Flynn, sole member of Senior Scientific
LLC

            


    

     

    
      	
               
      

            	
              [***]

            


    

     

    
      	
               
      

            	
              Albuquerque,
      New Mexico 87111

            


    

     

    
      	
              9.9.3.  

            	
              SNMI:

            


    

     

    
      	
               
      

            	
              [***]

            


    

     

    
      	
               
      

            	
              Albuquerque,
      New Mexico 87111

            


    

     

    
      	
              9.10.  

            	
              Entire
      Agreement. This Agreement constitutes the entire agreement among
      the parties hereto, and shall supersede the terms and conditions of any
      and all prior agreements, understandings, promises, representations, and
      writings made by either party to the other concerning the subject matter
      and the terms and conditions hereof. No subsequent modification,
      amendment, or extension of this Agreement or any of the terms and
      conditions hereof shall be of any force or effect unless it is in writing
      and signed by a duly authorized officer or representative of each of the
      parties.

            


    

     

    
      	
              9.11.  

            	
              Severability.
      The unenforceability, invalidity, or illegality of any provisions of this
      Agreement shall not render the other provisions unenforceable, invalid, or
      illegal. Any unenforceable, invalid, or illegal provision shall be severed
      from this Agreement only to the extent to make the resulting provision
      enforceable, valid, and legal.

            


    

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    
       

      The confidential portions of this exhibit have been filed separately
with the Securities and Exchange Commission pursuant to a confidential treatment
request in accordance with Rule 406 under the Securities Act of 1933, and Rule
24b-2, under the Securities Exchange Act of 1934, Redacted portions of this
exhibit are marked by an [***].

    

     

     

    
      	
              9.12.  

            	
              Counterparts.
      This Agreement may be executed in counterparts with the same force and
      effect as if all signatures appeared on the same
  document.

            


    

     

    
      	
              9.13.  

            	
              Good Faith. The
      parties also promise at all times during the business relationship
      established by this Agreement to execute and fulfill their contractual
      obligations in good faith, and they, and each of them, expressly promise
      at all times to treat each other fairly. All parties have had opportunity
      to review this Agreement with counsel of their choice, and no provision
      shall be construed for or against either party due to the identity of the
      party drafting such provision.

            


    

     

    
      	
              9.14.  

            	
              Bankruptcy. All
      rights and licenses granted to each Party under or pursuant to this
      Agreement are, and shall be deemed to be, for purposes of Section 365(n)
      of the United States Bankruptcy Code, licenses to rights of “intellectual
      property” as defined thereunder. Notwithstanding any provision contained
      herein to the contrary, if either Party is under any proceeding under the
      Bankruptcy Code and the trustee in bankruptcy of such Party, or such
      Party, as a debtor in possession, rightfully elects to reject this
      Agreement, the other Party may, pursuant to 11 U.S.C. Section 365(n) (1)
      and (2) retain any and all of such other Party’s rights hereunder, to the
      maximum extent permitted by law, subject to the payments specified
      herein.

            


    

     

    
      	
              9.15.  

            	
              Assignment. MSI
      may assign, transfer, delegate or sublicense this Agreement or any of its
      rights or obligations under this Agreement to an Affiliate of MSI. MSI may
      not assign, transfer, delegate or sublicense any of its rights or
      obligations under this Agreement to a party that is not an Affiliate of
      MSI without the written consent of Dr. Flynn, which consent shall not be
      unreasonably withheld or delayed. Neither Dr. Flynn nor SNMI may assign,
      transfer, delegate, or sublicense this Agreement or any of its rights or
      obligations under this Agreement without the written consent of MSI, which
      consent shall not be unreasonably withheld or delayed.
    [***].

            


    

     

    INTENDING
TO BE LEGALLY BOUND, THE PARTIES, THROUGH THEIR AUTHORIZED AGENT(S), HAVE
EXECUTED THIS AGREEMENT AS OF THE DATE FIRST EXPRESSED ABOVE.

     

    
      	
              Senior
      Scientific LLC

            	 
      	
              Scientific
      Nanomedicine, Inc.,

               

            
	 
      	 
      	 
      
	
              Edward
      R. Flynn, Ph.D., sole member

            	 
      	
              Edward
      R. Flynn, Ph.D., president

               

            
	 
      	 
      	
              Manhattan
      Scientifics, Inc.

               

            
	 
      	 
      	 
      
	
              Edward
      Flynn, Ph.D., an individual

            	 
      	
              Emmanuel
      Tsoupanarias, CEO

            


    

    
 

     

     

     

    5