Exhibit 10.5 


 





 



 


ASSET
PURCHASE AGREEMENT


 


BY
AND BETWEEN


 


ACTIVATION
THERAPEUTICS INC.


as
Seller,


 


AND


 


OLAREGEN
THERAPEUTIX INC.


as
Buyer,


 


Dated
as of July 15, 2018


 





 



 




    	 



    	 



    

 


TABLE
OF CONTENTS


 





	ARTICLE
    I PURCHASE AND SALE OF ASSETS	2
	1.1	Purchase
    and Sale of Assets	2
	1.2	Assumption
    of Liabilities & Reimbursement of Credit	3
	1.3	Closing	3
	1.4	Payment	3
	1.5	Transfer
    Documents	3
	1.6	Further
    Assurances	4
	1.7	Transfer
    Taxes	4
	ARTICLE
    II purchase price	4
	2.1	Purchase
    Price	4
	ARTICLE
    III REPPRESENTATIONS AND WARRANTIES OF THE
    SELLER	5
	3.1	Organization,
    Good Standing and Qualification of the Seller	5
	3.2	Authorization;
    Binding Obligation	5
	3.3	Consents
    and Approvals	5
	3.4	No
    Violation	5
	3.5	Legal
    Proceedings	6
	3.6	Title
    to Assets.	6
	3.7	Intellectual
    Property.	7
	3.8	FDA
    Compliance; Compliance with Healthcare Laws.	7
	ARTICLE
    IV REPRESENTATIONS AND WARRANTIES OF THE BUYER	9
	4.1	Organization
    and Good Standing	9
	4.2	Authorization;
    Binding Obligation	9
	4.3	Consents
    and Approvals	9
	4.4	No
    Violation	9
	4.5	Legal
    Proceedings	9
	4.6	Audit
    Rights	10
	4.7	Seniority
    of the Total Additional Consideration	10
	4.8	Accelerated
    Payment of Total Additional Consideration	10
	4.9	Financial
    Ability	10
	ARTICLE
    V COVENANTS	10
	5.1	Conduct
    of Business Pending Closing.	10
	5.2	Cooperation;
    Approvals, Filings and Consents.	11
	5.3	Notice
    of Certain Events.	12
	5.4	Control
    of Business	12
	5.5	Mutual
    Cooperation	12
	ARTICLE
    VI CONDITIONS PRECEDENT TO CLOSING	13
	6.1	Conditions
    to Obligation of Each Party	13
	ARTICLE
    VII INDEMNIFICATION	13
	7.1	Indemnity
    By Seller.	13
	7.2	Indemnity
    By Buyer.	14
	7.3	Insurance
    Claims.	14



 






    	 



    	 



    

 


	ARTICLE
    VIII TERMINATION, AMENDMENT, WAIVER AND EXPENSES	14
	8.1	Termination	14
	8.2	Effect
    of Termination	15
	8.3	Expenses	15
	8.4	Amendment
    and Waiver	15
	ARTICLE
    IX MISCELLANEOUS	15
	9.1	Entire
    Agreement	15
	9.2	Assignment	16
	9.3	Counterparts	16
	9.4	Governing
    Law; Venue	16
	9.5	Specific
    Performance	16
	9.6	Interpretation	16
	9.7	Severability	17
	9.8	Notices	17
	9.9	Representation
    by Counsel	18
	9.10	Construction.	18
	9.11	Waivers	18
	9.12	Third
    Party Beneficiaries	18
	9.13	Waiver
    of Jury Trial	18


 


	SCHEDULES:	 
	 	 
	Schedule
    1	Table
    of Definitions
	Schedule
    1.1(a)	Seller
    Assigned Contracts
	Schedule
    1.1(b)	Intellectual
    Property
	Schedule
    1.2(a)	Assumed
    Credits to Buyer
	 	 
	EXHIBITS:
    	 
	 	 
	Exhibit
    A	Form
    of Trademark Assignment
	Exhibit
    B	Form
    of Patent Assignment
	Exhibit
    C	License
    Agreement
	Exhibit
    D	Patents
    and Trademarks


 




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ASSET
PURCHASE agreement 


 


THIS
ASSET PURCHASE AGREEMENT (this “Agreement”), dated as of July 15, 2018, is made by and between, Activation Therapeutics Inc., a Delaware corporation (the “Seller”),
and Olaregen Therapeutix Inc., a Delaware C Corp (the “Buyer” and/or “Olaregen”), becomes
effective upon the Seller’s receipt of the total $650,000 amount due and payable pursuant to ARTICLE II, Section 2.1 paid
no later than the close of business on September 16, 2018 pursuant to ARTICLE I, Section 1.3 of this Agreement. 


 


WHEREAS,
the Seller is engaged, among other things, in the business of developing and commercializing Excellagen®, an FDA
cleared formulated fibrillar collagen product for use in wound care (the “Business”), and owns substantially
all of the assets used in connection with the operation of the Business; and,


 


WHEREAS,
subject to the terms and conditions set forth in this Agreement, the Seller wishes to sell, assign and transfer to the Buyer,
and the Buyer wishes to purchase from the Seller, all of the Seller’s right, title and interest in and to the Acquired Assets
(as defined below); and,


 


WHEREAS,
the Seller will retain a license to exclusive rights to the Business in each of the following countries and/or territories: Greater
China (including Macau), Hong Kong, Taiwan, the Russian Federation, and the Commonwealth of Independent States (“CIS”)
(including Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan and Uzbekistan) (collectively
the “Retained Territories”); and


 


WHEREAS,
the Seller will also retain a license to exclusive rights to Excellagen® in combination with the therapeutic use
of exosomes (the “Licensed Technology”) and the Buyer desires to allow Seller to retain such rights; and


 


WHEREAS,
the terms and conditions governing a license from the Buyer to the Seller of the Retained Territories and the Licensed Technology
shall be duly memorialized in a license agreement between the parties, in substantially the same form as that annexed hereto as
Exhibit C (the “License Agreement”); and


 


WHEREAS,
capitalized terms used and not otherwise defined herein shall have the meanings set forth on Schedule I attached hereto.


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein set forth
the Seller, and the Buyer hereby agree as follows:


 




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ARTICLE
I


 


PURCHASE
AND SALE OF ASSETS


 


1.1 Purchase
and Sale of Assets. Upon the closing of the transaction subject of this Agreement (the “Closing”) (as defined
more fully below), and upon the terms and conditions herein set forth, the Seller shall sell, transfer, assign and deliver to
the Buyer, and relinquish to the Buyer in perpetuity, free and clear of all Liens, all of its right, title and interest in and
to the assets to be acquired (the “Acquired Assets”). For purposes of this Agreement, these Assets include
the following: 


 


(a) worldwide
rights, other than those Licensed back to the Seller in the Retained Territories, to the current Excellagen® product, and
the license to exclusive rights to Excellagen® in combination with the therapeutic use of exosomes;


 


(b) all
Excellagen precursors (i.e., biological and chemical substances or materials obtained as part of the Excellagen product manufacturing
process, except raw materials), formulations and potential applications;


 


(c) all
product extensions of Excellagen including all products comprising Excellagen in combination with other biologics and small molecules,
and other cellular therapies, all protocols, documents, scientific and manufacturing know-how and discoveries concerning, respecting
and/or relating to the Excellagen® product, its precursors, formulations, combinations, enhancements, extensions and potential
applications; all pre-clinical and clinical research and trial data for the Excellagen® product and its combinations, including
any and all health, economic and patient reported outcomes data with the exception of (a) above;


 


(d) FDA
510(K) cleared for Excellagen®, together with any and all filing documentation;


 


(e) any
and all other FDA applications or draft applications for Excellagen®, its precursors, combinations or derivatives;


 


(f) any
and all applications for Excellagen®, its precursors, combinations or derivatives filed with any European regulatory body,
together with any and all regulatory submissions made anywhere else in the world other than in the Retained Territories;


 


(g) all
data received or to be received and any intellectual property filed or to be filed from the Seller’s collaboration with
Orbsen Therapeutics, Ireland;


 


(h) all
rights, title and interest in, to or under (i) each and every contract listed on Schedule 1.1(a) attached hereto; (ii)
all non-competition, non-solicitation, confidentiality, assignment of invention and similar agreements to which the Seller is
a party or under which the Seller possesses any actual or beneficial rights and/or interests the primary purpose of which are
to provide for non-competition, non-solicitation, confidentiality, assignment of invention or similar covenants running in favor
of the Seller; and, (iii) any other agreement entered into by the Seller with any third-party from the date of this Agreement
through the date of the Closing, which agreement the Buyer, in its sole discretion, agrees in writing to assume. Taken together,
these contracts and/or agreements shall be known as the “Assigned Contracts”;


 


(i) the
Seller’s Intellectual Property, including patents, trademark and domain name, listed on Schedule 1.1(b); and,


 


(j) the
Seller’s existing credit of $200,000 with Collagen Solutions Ltd.


 




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1.2 Assumption
of Liabilities & Reimbursement of Credit. At the Closing, and upon the terms and conditions herein set forth, the Buyer shall
assume from the Seller only the following Liabilities and Credits (collectively, the “Assumed Liabilities and Credits”):


 


(a) obligations
of the Seller, as applicable, for performance arising only after the Closing under the Assigned Contracts, to the extent that
the Seller’s rights thereunder are assigned to the Buyer hereunder;


 


(b) a
credit, in the total amount of Two Hundred Thousand Dollars ($200,000), arising from the Assigned Contracts with such amount in
the form of a discount applied on future orders placed with Collagen Solutions Ltd.; and


 


1.3 Closing.
Subject to the terms and conditions herein set forth, the Closing will take place on or before September 16, 2018 (the “Closing
Date”). The Closing shall be held at the offices of Gene Biotherapeutics, 11568 Sorrento Valley Road Suite #14, San
Diego CA 92121, unless another place is agreed to in writing by the parties hereto (it being understood that the Closing may be
affected by the delivery of documents via e-mail, facsimile and/or overnight courier). The consummation of the transactions contemplated
by this Agreement at the Closing shall be deemed to occur at 12:01 a.m. (PST) on the Closing Date.


 


1.4 Payment.
At the Close, the Buyer shall wire or cause to be wired to the bank account of the Seller the cash amount of Four Hundred and
Twenty-Five Thousand Dollars ($425,000). This is in addition to the total $225,000 deposit that has already been made to date
towards this Agreement.


 


1.5 Transfer
Documents. At the Closing, and in addition to any other Closing documents and things required by ARTICLE VI hereof, the parties
shall execute and deliver, or cause to be executed and delivered, one to the other, the following documents (collectively, the
“Transfer Documents”):


 


(a) the
Seller shall execute and deliver to the Buyer one or more trademark assignments in substantially the same form as that annexed
hereto as of Exhibit A (the “Trademark Assignment”), which may be necessary or required to transfer,
assign and/or convey to the Buyer the trademarks, if any, being acquired by the Buyer from the Seller pursuant to this Agreement;


 


(b) the
Seller shall execute and deliver to the Buyer one or more patent assignments in substantially the same form as that annexed hereto
as Exhibit B (the “Patent Assignment”), which may be necessary or required to transfer, assign and/or
convey to the Buyer the patents, if any, being acquired by the Buyer from the Seller pursuant to this Agreement; and


 


(c) the
Seller shall execute and deliver to the Buyer the License Agreement in substantially the same form as that annexed hereto as Exhibit
C (the “License Agreement”), which may be necessary or required to transfer, assign and/or convey to the
Seller the licensing rights in the Retained Territories as well as the use of Excellagen in combination with exosomes pursuant
to this Agreement; and


 




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(d) the
Seller shall execute and deliver to the Buyer all such other bills of sale, assignments, including, without limitation, intellectual
property right assignments, trade name assignments and/or domain name assignments, endorsements, certificates of title, consents
and other pertinent instruments and documents of conveyance and transfer in a form reasonably satisfactory to the Buyer, as the
Buyer shall, in its sole discretion, deem reasonably necessary to effectuate the transfer, assignment and/or conveyance to it
of the entirety of the Seller’s right, title and/or interest in and to all, or any of, the Acquired Assets.


 


1.6 Further
Assurances. At any time and from time to time after the Closing, at the request of the Buyer and without further consideration,
the Seller shall execute and deliver such other instruments of sale, transfer, conveyance, assignment and/or confirmation to the
Buyer, and shall take such other and further action, as may reasonably be necessary or required to validate, ratify and/or confirm
the transfer, assignment and/or conveyance of the Acquired Assets to the Buyer and the Buyer’s corresponding ownership thereof.
Each of the parties hereto shall execute such other documents and take such further action as may reasonably be necessary or required
to effectuate the transactions contemplated by this Agreement.


 


1.7 Transfer
Taxes. Each Party shall bear its own tax liabilities arising from the transaction(s) contemplated by this Agreement.


 


ARTICLE
II



purchase price


 


2.1 Total
Consideration. The total consideration for the Acquired Assets (the “Total Consideration”) shall be Four Million
Dollars ($4,000,000) payable as follows:


 


(a) Six
Hundred and Fifty Thousand Dollars ($650,000) in cash at the time of the Close including any previous deposits (“Total
Current Consideration”).


 


(b) The
balance of three Million Three Hundred and Fifty Thousand Dollars ($3,350,000) will be payable in quarterly installments equal
to (i) 10.00% of quarterly Net Sales as defined below (“Total Additional Consideration”). Net Sales shall be
defined as total sales less usual and customary sales allowances, including Hub Fees, Sales Concessions, Co-promote Fees, Cost
of Goods Sold and other charges and expenses relating to the sale of comparable pharmaceutical products pursuant to Generally
Accepted Accounting Practices (GAAP), assuming that the Excellagen Average Selling Price per unit (ASP) exceeds $800. In the event
that the ASP is less than $800 per unit, Cost of Goods Sold shall be excluded from the computation of Net Sales.


 


(c) A
refund to Seller of all credits (“Credits”) acquired by Buyer pursuant to section 1.2 which credit refunds
will be paid to Seller by Buyer pro rata as the credits are used to purchase goods and/or services from Collagen Solutions, Ltd.
Said refund of Credits will not exceed the amount of the credits described in section 1.2(b). Such Credits will be adjusted in
the event that certain expenses are required to be expended in order to re-validate, re-launch and/or to re-manufacture Excellagen®
with Collagen Solutions Ltd.


 


(d) The
Buyer may seek to avoid making payments for The Total Additional Consideration and the payment for the existing Credits with existing
suppliers as outlined above by making an additional lump sum payment of $2,750,000 within 120 days after the receipt of the Total
Current Consideration. In the event a payment has already been made for some Credits with existing suppliers by the Buyer, then
the additional lump sum payment will be adjusted accordingly.


 




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(e)
If the Buyer receives the funding from a major New York-based Investment Fund, as has been described to the Seller, or any other
equivalent funding from a third party, the Buyer shall be obligated to pay the Seller $2,750,000 within ten (10) days of the Buyer’s
receipt of such funds.


 


(f) In
the event that the Buyer sells the Intellectual Property and the Purchase Price has not been paid in full, the Seller will be
entitled to receive the unpaid balance due.


 


ARTICLE
III



REPRESENTATIONS AND WARRANTIES OF THE SELLER


 


The
Seller hereby represents and warrants to the Buyer as follows:


 


3.1 Organization,
Good Standing and Qualification of the Seller. The Seller is duly incorporated and validly existing and in corporate and tax good
standing under the Laws of the State of Delaware. The Seller has all requisite power and authority, and is in possession of all
Approvals necessary, to own, lease and operate the Acquired Assets and to carry on the Business as it is now being conducted.


 


3.2 Authorization;
Binding Obligation. The Seller has all necessary power and authority to enter into this Agreement and any Related Agreements,
and to transfer, deliver and/or convey the Acquired Assets to the Buyer. The execution of this Agreement and any Related Agreements,
by the Seller, and consummation of the transactions subject hereof have been duly and validly authorized by all requisite action
on the part of the Seller. The obligations of the Seller set forth in this Agreement and in any Related Agreement shall, at the
time these agreements are executed and delivered, constitute legal, valid and binding obligations of the Seller, as applicable,
enforceable against the Seller in accordance with their terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other Laws of general application affecting enforcement of creditors’ rights, and (ii) as limited by Laws
relating to the availability of specific performance, injunctive relief or other equitable remedies.


 


3.3 Consents
and Approvals. The execution of this Agreement and any Related Agreements, and consummation of the transactions subject hereof,
are not subject to or, in any way, contingent upon, receipt, by the Seller, of any form of approval or consent from any Person,
administrative entity or other Governmental Authority.


 


3.4 No
Violation. The execution of this Agreement and any Related Agreements, and consummation of the transactions subject hereof, do
not or will not (a) conflict with or violate the Organizational Documents of the Seller, (b) conflict with or violate any Law
or Order applicable to the Seller or by which the Seller may be bound, or (c) result in any breach or violation of or constitute
a default under, or result in the creation of a Lien on any of the Acquired Assets pursuant to, any Assigned Contract or other
agreement to which the Seller is a party or is otherwise bound.


 




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3.5 Legal
Proceedings. There is no Action pending or, to the knowledge of the Seller, threatened against or affecting the Seller that would
(a) give any Person the right to enjoin or rescind the transactions subject of this Agreement or (b) otherwise prevent the Seller
from executing and delivering this Agreement and any Related Agreements to the Buyer and/or from fulfilling its obligations to
the Buyer hereunder or thereunder.


 


3.6 Title
to Assets.


 


(a) The
Seller is the sole and exclusive legal and beneficial owner of all right, title and interest in, and has good, valid and marketable
title to, all of the Acquired Assets. The Seller has the power, authority and right to transfer, sell, assign and/or convey, to
the Buyer good, valid and marketable title to all of the Acquired Assets.


 


(b) The
Seller is not in breach of or in material default under the Assigned Contracts, or any of them; nor does there exist any event,
condition or occurrence which (with or without due notice or lapse of time, or both) would give rise to or constitute such a breach
or default on the part of the Seller. To the knowledge of the Seller, no counter-party to the Assigned Contracts, or any of them,
is in default under the terms thereof; nor, to the knowledge of the Seller, does there exist any event, condition or occurrence
which (with or without due notice or lapse of time, or both) would give rise to or constitute such a breach or default on the
part of any such counter-party.


 


(c) Unless
otherwise agreed, at the Closing, the Assigned Contracts, and each of them, shall be in full force and effect, and the obligations
therein set forth shall be valid and binding upon the Seller, on the one hand, and any designated counter-party, on the other,
provided, however, that the executor obligations of the counter-party may be contingent on the receipt of a balance owed, as set
forth in Schedule 1.2(a). Other than stated balances owed, the Seller has no knowledge of any claim, dispute or controversy with
respect to the Assigned Contracts, or any of them. For purposes of clarification, the Seller is responsible for any and all liabilities
with said counter-parties prior to the Closing.


 


(d) The
execution of this Agreement and consummation of the transactions subject hereof will not conflict with, or have any material impact
upon, the terms and/or conditions of the Assigned Contracts, or any of them.


 


(e) In
the event that the Assets are leveraged by the Buyer, and the Purchase Price has not been fully paid to the Seller, the Buyer,
or successor to the Buyer, agrees that any creditor will need to write appropriate language that establishes the priority of the
remaining unpaid balance of the Purchase Price due to the Seller.


 


(i) In
the case of a liquidation event by the Buyer, or a successor of the Buyer, and the Assets must be liquidated, either voluntary
or involuntary, then the proceeds from the sale of the Assets shall have priority to paydown the unpaid Purchase Price due to
the Seller (the “Liquidation Preference”).


 


(ii) In
the event that the amount of the Liquidation Preference is not sufficient to cover the unpaid Purchase Price due to the Seller,
then the Seller shall be entitled to a return of the Intellectual Property.


 




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3.7 Intellectual
Property.


 


(a) Schedule
1.1(b) sets forth a complete and accurate list of all United States and foreign patents, trademarks (including unregistered trademarks),
internet domain names and other items comprising the Seller’s Intellectual Property, indicating for each, the applicable
jurisdiction, registration number (or application number), date issued (or date filed), and status (including the next action
or payment and date due). To the knowledge of the Seller, there has been no prior use of any such trademark(s) by any Person which
would confer upon such Person superior rights in or to such trademark(s). No patent included in the Seller’s Intellectual
Property has been or is now involved in any litigation, infringement, interference, reissue, re-examination, opposition, invalidity
or nullity proceeding. To the knowledge of the Seller, there are no trademarks owned by any third- party which potentially conflict
with the trademark(s) included in the Seller’s Intellectual Property. Nor, to the knowledge of the Seller, are there any
patents owned by any third-party which potentially interfere with the patents included in the Seller’s Intellectual Property,
other than art cited by the examiner in the course of patent examination.


 


(b) The
Seller’s Intellectual Property listed on Schedule 1.1(b) constitutes all of the Intellectual Property used in connection
with or necessary for the conduct of the Business as currently conducted, including all Intellectual Property necessary to use,
manufacture, market and distribute the Excellagen® product.


 


(c) The
Seller is the sole and exclusive owner of all of the Seller’s Intellectual Property listed on Schedule 1.1(b) and has a
lawful, valid, and enforceable right to transfer said Intellectual Property to the Buyer free and clear of any and all Liens.
All of the Seller’s Intellectual Property has been created by employees of the Seller, acting within the scope of their
employment, or by independent contractors of the Seller, who have all executed agreements expressly assigning all right, title
and interest in or to such Intellectual Property to the Seller. No portion of the Seller’s Intellectual Property was jointly
developed with any independent third party.


 


3.8 FDA
Compliance; Compliance with Healthcare Laws.


 


(a) The
operations of the Business and, to the knowledge of the Seller, those of any third party involved in the Business, including the
manufacture, import, export, testing, development, processing, packaging, labeling, storage, marketing, and distribution of the
Excellagen® product, are in compliance, in all material respects, with all applicable Laws, Approvals and Orders administered
or issued by the FDA or any foreign regulatory agency with a similar regulatory purpose. There are no pending or, to the knowledge
of the Seller, threatened Actions by the FDA or any other similar foreign regulatory agency against the Seller arising out of
or relating to the Business and/or its operations. The Seller has not received notice of any pending or threatened claim related
to a violation of any Law within the FDA’s regulatory jurisdiction (or any similar foreign law, rule regulation or policy);
nor does the Seller have any knowledge or reason to believe that the FDA or any similar foreign regulatory agency is considering
such action.


 




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(b) The
Seller has not received any Form 483 notice of adverse findings, warning letter, correspondence or notice from the FDA, or similar
foreign regulatory agency, alleging or asserting noncompliance, by the Seller, with any applicable Laws enforced by the FDA or
such similar foreign regulatory agency. Nor does the Seller have any knowledge or reason to believe that any such notice, warning
or correspondence from either the FDA or any similar foreign regulatory agency will be forthcoming.


 


(c) At
all times material, the manufacture of Excellagen® by or on behalf of the Seller has been conducted in full compliance with
all applicable Laws and Regulations, including the FDA’s Quality Systems Regulation. In addition, the Seller, and to the
knowledge of the Seller, any manufacturer of Excellagen® on the Seller’s behalf, is and, at all times material has been,
in compliance with all applicable FDA requirements, including, without limitation, the registration, listing and premarket notification
requirements set forth in 21 U.S.C. § 360, the investigational device exemption set forth in 21 U.S.C. § 360j(g), as
well as any similar requirements applicable in any foreign jurisdiction.


 


(d) The
Seller is not subject to any determination by a Governmental Authority excluding, suspending, debarring or otherwise restricting,
or proposing to restrict, the Seller, or any director, officer, employee, contractor, or agent thereof, from participation in
any government health care program, whether pursuant to 42 U.S.C. § 1320a-7(a) or otherwise.


 


(e) The
Seller is not the subject of any pending or, to the knowledge of the Seller, threatened, investigation by the FDA pursuant to
its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities,” Final Policy set forth in 56 Fed.
Reg. 46191 (September 10, 1991), or any similar investigation by any foreign regulatory agency. The Seller has not committed any
act, made any statement, or failed to make any statement that would provide a basis for the FDA to act adversely against the Seller
under the foregoing Final Policy, and has not committed any act, made any statement or failed to make any statement that would
provide a basis for any foreign regulatory agency to act adversely against the Seller under a similar policy. The Seller has not
employed, in any capacity, any individual who has been debarred or excluded pursuant to the Food, Drug, & Cosmetics Act or
42 U.S.C. § 1320a-7(a), nor has the Seller used, employed, hired or contracted with any clinical investigator who has been
disqualified under 21 C.F.R. § 812.119 or who has engaged in any conduct that would reasonably be expected to result in disqualification
as a clinical investigator under 21 C.F.R. § 812.119. Similarly, the Seller has not used, in connection with any clinical
investigation conducted by or on its behalf, any institutional review board or institution that has been disqualified under 21
C.F.R. § 56.121 or that has engaged in conduct that would reasonably be expected to result in disqualification under 21 C.F.R.
§ 56.121.


 


(f) Any
clinical trials or human and animal studies pertaining to the Business and/or the Excellagen® product were and, if still pending,
are being conducted (to the Seller’s knowledge with respect to such studies conducted by third parties) in all material
respects in accordance with standard medical and scientific research procedures and all applicable rules, regulations and policies
of the FDA, including its current Good Clinical Practices and Good Laboratory Practices, and in compliance with all applicable
domestic and foreign regulatory requirements and/or standards.


 


(g) The
Seller has not knowingly or willfully solicited, received, paid or offered to pay any remuneration, directly or indirectly, overtly
or covertly, in cash or kind, for the purpose of making or receiving any referral which violated or may have violated any applicable
state or federal anti-kickback Law, including without limitation the Federal Health Care Program Anti-Kickback Statute, 42 U.S.C.
§ 1320a-7b(b) (known as the “Anti-Kickback Statute”).


 




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(h) The
Seller recognizes that in the event of a liquidation event by the Buyer where all the assets of Buyer including the Business Assets
of the Seller that were acquired with this Asset Purchase Agreement must be liquidated, then the proceeds from the sale of these
combined assets will first be used to pay the outstanding and remaining balance due to meet the Total Additional Consideration
due to the Seller. The Seller further recognizes that in the event that this liquidation amount is not sufficient to cover the
remaining and outstanding Total Consideration then the Seller shall have no further recourse and/or claim against the Buyer.


 


ARTICLE
IV



REPRESENTATIONS AND WARRANTIES OF THE BUYER


 


The
Buyer hereby represents and warrants to the Seller as follows:


 


4.1 Organization
and Good Standing. The Buyer is a limited liability company duly organized, validly existing
and in good standing under the Laws of the State of Delaware.


 


4.2 Authorization;
Binding Obligation. The Buyer has all necessary power and authority to enter into this Agreement and any Related Agreements and
to consummate the transactions subject hereof and thereof. The execution of this Agreement and any Related Agreements, by the
Buyer, and the consummation of the transactions subject hereof have been duly and validly authorized by all requisite action on
the part of the Buyer. The obligations of the Buyer set forth in this Agreement and in any Related Agreement shall, at the time
these agreements are executed and delivered, constitute legal, valid, and binding obligations of the Buyer, as applicable, and
shall be enforceable against the Buyer in accordance with their terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other Laws of general application affecting enforcement of creditors’ rights, and (ii) as
limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies.


 


4.3 Consents
and Approvals. The execution of this Agreement and any Related Agreements, and consummation of the transactions subject hereof,
are not subject to or, in any way, contingent upon, receipt, by the Buyer, of any form of approval or consent from any person,
administrative entity or other Governmental Authority.


 


4.4 No
Violation. The execution of this Agreement and any Related Agreements, and consummation of the transactions subject hereof, do
not or will not (a) conflict with or violate the Organizational Documents of the Buyer, (b) conflict with or violate any Law or
Order applicable to the Buyer or by which the Buyer may be bound, or (c) result in any breach or violation of, or constitute a
default under, any agreement to which the Buyer is a party, except where such conflict or breach
would not reasonably be likely to have a material adverse impact upon the Buyer’s ability to consummate the transactions
subject of this Agreement.


 


4.5 Legal
Proceedings. There is no Action pending or, to the knowledge of the Buyer, threatened, against or affecting the Buyer that would
(a) give any Person the right to enjoin or rescind the transactions subject of this Agreement or (b) otherwise prevent the Buyer
from executing and delivering this Agreement and any Related Agreements to the Seller and/or from fulfilling its obligations to
the Seller hereunder or thereunder.


 




    	9



    	 



    

 


4.6
Audit Rights. the Buyer recognizes that the Seller will be entitled to inspect the sales records of Olaregen with four (4)
weeks prior written notice not more than once a year during business hours, by an independent auditor, which is under a
professional duty of confidentiality elected by the Seller. The cost of such inspection shall be borne by the Seller. These
Audit Rights will continue until the total consideration has been paid in full or once the Option to avoid making further
payments has been exercised as described above in Article II (d).


 


4.7 Seniority
of the Total Additional Consideration. In the event the Business Assets are levered by the Buyer, and the Total Additional Consideration
has not been fully paid to the Seller, Olaregen agrees that any lender will need to write appropriate language that establishes
the priority of the remaining balance due on the Total Additional Consideration to the Seller.


 


4.8 Accelerated
Payment of Total Additional Consideration. In the event the Buyer sells the Intellectual Property, and the Total Additional Consideration
has not been paid in full, the Seller will be entitled to receive the balance due and remaining on the Total Additional Consideration
prior to any other payments being made.


 


4.9 Financial
Ability. The Buyer has earmarked sufficient funds available to consummate the transactions subject of this Agreement and to fulfill
its obligations to the Seller pursuant to this Agreement and any Related Agreements.


 


ARTICLE
V



COVENANTS


 


5.1 Conduct
of Business Pending Closing.


 


(a) The
Seller covenants and agrees that, from the date this Agreement is executed through the Closing, or upon the earlier termination
of this Agreement, it shall:


 


(i) preserve
intact all of the Acquired Assets in the ordinary course of Business and in a manner consistent with past practice; and,


 


(ii)
use commercially reasonable efforts to enter into new agreements with each and every counter-party to the Assigned Contracts,
both active and expired. 


 


(b) The
Seller covenants and agrees that, from the date this Agreement is executed through the Closing, or upon the earlier termination
of this Agreement, -it shall not:


 


(i) sell,
transfer, convey, assign, lease, license, pledge or otherwise dispose of any of the Acquired Assets, or any of them;


 




    	10



    	 



    

 


(ii) collateralize,
encumber, impair or cause any Lien to be imposed upon the Acquired Assets, or any of them;


 


(iii) amend
or modify in any material way any existing agreements respecting, concerning or pertaining to the Acquired Assets, or any of them;


 


(iv)
discharge, compromise, satisfy, resolve or commence any Action or waive, assign or release any material rights or claims relating
to the Business and/or the Acquired Assets;


 


(v) engage
in, adopt a plan of and/or begin a complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization
or other reorganization; or,


 


(vi) take
any action or fail to take any action that would result in any of the representations and warranties set forth in ARTICLE III
being rendered false or inaccurate, or which, individually or in the aggregate, would have a have a Business Material Adverse
Effect or otherwise materially impair the ability of the Seller to consummate the transactions subject of this Agreement.


 


5.2 Cooperation;
Approvals, Filings and Consents.


 


(a) Upon
the terms and subject to the conditions set forth in this Agreement, each of the parties hereto shall use commercially reasonable
efforts to take, or cause to be taken, all actions, and do, or cause to be done, and to assist and cooperate with the other in
doing, all things necessary, proper or advisable to consummate the transactions subject of this Agreement and to satisfy or cause
to be satisfied all of the conditions precedent set forth in ARTICLE VI, as applicable to each of them.


 


(b) The
Seller, and the Buyer shall, as promptly as practicable, take any and all commercially reasonable steps necessary to obtain all
required Approvals, if any, from Governmental Authorities and to make all other necessary registrations and filings, if any, which
may be required to execute and deliver this Agreement and any Related Agreements and to consummate the transactions subject hereof
and thereof.


 


(c) The
Seller shall, as promptly as practicable, use its best efforts to obtain all other consents from third parties that, in the reasonable
discretion of the Buyer, are necessary or desirable to consummate the transactions subject of this Agreement (“Third
Party Consents”).


 


(d)
The Seller shall make commercially reasonable efforts to arrange for the drafting and filing of additional patent applications
relating to the Excellagen® product and/or the Business in the European Union, as well as in Asia, the Middle East, and Latin
America (the “New Patents”). The cost of the New Patents will be borne by Buyer, with the exception of the
PCT patent application which shall be borne by the Seller, including patent attorney fees and filing costs; provided, however,
the Buyer will not be obligated to reimburse the Seller for time spent arranging the drafting and filing of the New Patents.


 




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5.3 Notice
of Certain Events.


 


(a) During
the period from the date this Agreement is executed through the Closing, or upon the earlier termination of this Agreement, the
Seller shall promptly notify the Buyer in writing of: (i) any event, condition, fact or circumstance that occurred or existed
on or prior to the effective date of this Agreement, respecting which the Seller becomes aware following the execution of this
Agreement, which has caused or constitutes an inaccuracy in and/or breach of any representation or warranty made by the Seller
herein; (ii) any event, condition, fact or circumstance that occurs, arises or exists after the effective date of this Agreement,
respecting which the Seller becomes aware, which has caused or constitutes an inaccuracy in or breach of any representation or
warranty made by the Seller herein and, (iii) any material breach of any covenant or obligation herein set forth on the part of
the Seller.


 


(b) In
addition to the foregoing, during the period from the date this Agreement is executed through the Closing, or upon the earlier
termination of this Agreement, the Seller shall give prompt written notice to the Buyer of (i) any notice or other communication
received from any Person alleging that the consent of such Person is or may be required to consummate the transactions subject
of this Agreement, or any of them, (ii) any notice or other communication received from any Governmental Authority concerning,
pertaining to or respecting any Approval which may be necessary or required to consummate the transactions subject of this Agreement,
or any of them, (iii) any Action commenced or threatened concerning, involving or relating to the Business, the Acquired Assets,
the Seller’s Intellectual Property and/or the transactions subject of this Agreement, (iv) the occurrence of any event of
breach or default under, the Assigned Contracts, or any of them, (v) any notice or other communication received from any Person
concerning, involving or respecting the Assigned Contracts, or any of them, and, (vi) any change, event or circumstance which
would reasonably be expected to materially delay or impede the ability of the Seller to consummate the transactions subject of
this Agreement and/or to fulfill its contractual obligations to the Buyer hereunder.


 


(c) During
the period from the date this Agreement is executed through the Closing, or upon the earlier termination of this Agreement, the
Buyer shall give prompt written notice to the Seller of (i) any notice or other communication received from any Person alleging
that the consent of such Person is or may be required to consummate the transactions subject of this Agreement, or any of them,
(ii) any notice or other communication received from any Governmental Authority concerning, pertaining to or respecting the transactions
subject of this Agreement, or any of them, or, (iii) any change, event or circumstance which would reasonably be expected to materially
delay or impede the ability of the Buyer to consummate the transactions subject of this agreement and/or to fulfill its contractual
obligations to the Seller hereunder.


 


5.4 Control
of Business. Nothing contained in this Agreement shall give the Buyer the right to control or direct the operations of the Business,
directly or indirectly, prior to the Closing. Prior to the Closing, the Seller shall exercise complete control and supervision
over the operations of the Business, consistent with the terms and conditions herein set forth.


 


5.5
Mutual Cooperation. From and after the Closing Date, the Seller, on the one hand, and the Buyer, on the other, shall
use their respective best and reasonable efforts to provide the other with such books, records and information, and to make
available to the other such personnel or representatives, as reasonably may be necessary to enable either party (i) to
respond to pertinent inquiries received from any Governmental Authority or third-party professional, (ii) to prepare any
applicable filings (including tax filings), or (iii) to prosecute or defend against any Action concerning, arising out of
and/or relating to the conduct of the Business prior to or after the Closing Date. It is understood and agreed that the party
who seeks and receives from the other any form of the assistance provided for above shall promptly reimburse the latter for
any and all out-of-pocket expenses incurred and paid in connection with the rendition of such assistance, including
reasonable legal fees and disbursements. Neither party shall be obligated to reimburse the other for the value of any time
spent rendering the assistance provided for in this paragraph, irrespective of the status (e.g., employee, independent
contractor, consultant) of the Person(s) rendering any such assistance.


 




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ARTICLE
VI



CONDITIONS PRECEDENT TO CLOSING


 


6.1 Conditions
to Obligation of Each Party. The respective obligations of the parties to close upon the transactions subject of this Agreement
are contingent upon the following:


 


(a) Governmental
Approvals. All necessary Approvals from Governmental Authorities, if any, shall have been obtained, and any applicable waiting
periods shall have expired.


 


(b) No
Injunctions or Restraints; Illegality. No temporary restraining order, preliminary or permanent injunction or other Order
(whether temporary, preliminary or permanent) issued by any Court of competent jurisdiction or other legal restraint or prohibition
shall have issued barring, preventing or interfering, in any way, with the consummation of the transactions subject of this Agreement,
or any of them; nor shall any Action seeking any form of such relief then be pending.


 


(c) Representations
and Warranties. The representations and warranties of both the Seller and the Buyer, as set forth, respectively, in Articles
III and IV of this Agreement shall be true and correct in all material respects, both at the time this Agreement is executed and
as of the Closing Date (except for representations and warranties made as of a specified date, the legitimacy and accuracy of
which will be determined only as of that date).


 


(d) Purchase
Price. The Buyer shall have tendered to the Seller the consideration provided for in Section 2.1(a) above.


 


ARTICLE
VII



INDEMNIFICATION


 


7.1 Indemnity
By Seller. The Seller shall indemnify and hold harmless the Buyer, its members, officers, directors, employees, agents, affiliates
and customers from and against any and all costs (including reasonable legal fees), damages, expenses, losses, suits, claims and
demands, in any manner caused by, resulting from or arising out of (i) any breach of this Agreement by the Seller or, (ii) any
third-party claim or suit arising out of or relating to the negligence or willful misconduct on the part of the Seller, its affiliates,
officers, directors, employees, agents and/or representatives.


 




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7.2 Indemnity
By Buyer. The Buyer shall indemnify and hold harmless the Seller, its affiliates, officers, directors, employees, agents and customers
from and against any and all costs (including reasonable legal fees), damages, expenses, losses, suits, claims and demands, in
any manner caused by, resulting from or arising out of (i) any breach of this Agreement by the Buyer or, (ii) any third-party
claim or suit arising out of or relating to the negligence or willful misconduct on the part of the Buyer, its members, affiliates,
officers, directors, employees, agents and/or representatives.


 


7.3 Insurance
Claims. If Losses with respect to any claim for indemnification pursuant to Section 7.1 may be subject to coverage under any policy
of insurance owned by the Seller, the Seller shall, at the request of the Buyer, and without further consideration, use commercially
reasonable efforts to seek and recover the value of such Losses from the carrier who issued said policy and, thereafter, pay over
any sums recovered to the Buyer. If Losses with respect to any claim for indemnification pursuant to Section 7.2 may be subject
to coverage under any policy of insurance owned by the Buyer, the Buyer shall, at the request of the Seller, and without further
consideration, use commercially reasonable efforts to seek and recover the value of such Losses from the carrier who issued said
policy and, thereafter, pay over any sums recovered to the Seller.


 


ARTICLE
VIII



TERMINATION, AMENDMENT, WAIVER AND EXPENSES


 


8.1 Termination.
Following its execution, this Agreement may be terminated, and the transactions subject hereof cancelled or abandoned at any time
prior to the Closing upon the occurrence of one or more of the following conditions:


 


(a) By
written mutual consent of both the Buyer and the Seller;


 


(b) By
either the Buyer or the Seller if the Closing shall not have occurred on or before September 16, 2018 (the “Outside Date”);
provided, however, that the right to terminate this Agreement under this sub-section shall not be available to any
party whose failure to satisfy or fulfill its obligations hereunder results in, or is the cause of, the failure to close on or
before such date;


 


(c) By
either the Buyer or the Seller if any Court or Governmental Authority shall have issued a final and non-appealable Order or similar
mandate restraining, enjoining or otherwise prohibiting the Closing;


 


(d) By
the Buyer, if the Buyer is not in material breach of any its obligations under this Agreement, and the Seller is in material breach
of its representations, warranties or obligations hereunder, which breach is incapable of being cured or, if capable of being
cured, is not cured prior to the earlier of (a) the Business Day before the Outside Date, or (b) within twenty (20) calendar days
of the date on which the Seller is notified by the Buyer of any such material breach; or


 




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(e) By
the Seller, if the Seller is not in material breach of any of its obligations under this Agreement, and the Buyer is in material
breach of its representations, warranties or obligations hereunder, which breach is incapable of being cured or, if capable of
being cured is not cured prior to the earlier of (i) the Business Day before the Outside Date, or (ii) within twenty (20) days
of the date on which the Buyer is notified by the Seller of any such material breach.


 


8.2 Effect
of Termination. In the event this Agreement is terminated pursuant to Section 8.1 hereof, it shall become null and void, and the
parties respective obligations, one to the other, as herein set forth, shall cease; provided, however, that if, at the time of
termination, one party has sustained Losses arising out of or resulting from any prior material breach of this Agreement by the
other, said party shall retain the right to seek recompense from the other in respect of any and all Losses so sustained.


 


8.3 Expenses.
Each of the parties hereto shall bear responsibility for payment of any and all fees, costs and expenses incurred by it in connection
with the negotiation and preparation of this Agreement and/or in furtherance the transactions contemplated hereby, including,
without limitation, legal, accounting and consulting fees, whether or not the Closing occurs. The foregoing notwithstanding, the
parties hereto may agree, at any time prior to the Closing, to share in certain costs and/or expenses associated with the completion
of the transactions subject of this Agreement.


 


8.4 Amendment
and Waiver. This Agreement may only be amended in writing, by an instrument duly authorized and executed by the Buyer and the
Seller and/or their respective representatives. Each of the parties hereto may seek to extend the time within which to perform
or satisfy its respective obligations to the other pursuant to this Agreement, or, in lieu thereof, to waive the performance of
such obligations, or any of them. Any such extension or waiver sought shall be valid only if set forth in a writing duly authorized
and executed by both the Buyer and the Seller and/or their respective representatives.


 


ARTICLE
IX



MISCELLANEOUS


 


9.1 Entire
Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and the transactions
contemplated hereby, and all prior negotiations, agreements and undertakings, both written and oral, with respect hereto are merged
into this Agreement. Each party hereto expressly acknowledges that, in executing and delivering this Agreement, it is not relying
upon any warranties, representations, promises or statements, except to the extent the same are expressly set forth in this Agreement.
The Related Agreements, together with the Schedules and Exhibits annexed hereto and any other agreements, documents and instruments
to be delivered in connection herewith, are hereby incorporated by reference and made a part of this Agreement. (See also,
Section 9.6 below.) The foregoing notwithstanding, it is understood and agreed that the Confidentiality Agreement shall survive
the execution of this Agreement pending consummation of the transactions subject hereof, following which it shall terminate.


 




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9.2 Assignment.
The Seller shall not assign or transfer this Agreement or any of its rights hereunder, or delegate any of its obligations hereunder
to any third-party, without the prior written consent of the Buyer, unless such assignment is being made to an entity which is
an Affiliate of the Seller (as defined in Schedule I hereto), in which case no specific consent will be required. The Buyer may
assign or otherwise transfer this Agreement or any of its rights hereunder, or delegate any of its obligations hereunder; provided,
however, that no such assignment or transfer shall relieve the Buyer of its obligations to the Seller pursuant to this Agreement.
Subject to the foregoing, this Agreement and the rights and obligations herein set forth shall inure to the benefit of, and be
binding upon, the parties hereto, and each of their respective successors, heirs and permitted assigns.


 


9.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall be
deemed one and the same instrument. For the convenience of the parties, faxed and/or electronic signatures shall be treated as,
and deemed to be, original signatures.


 


9.4 Governing
Law; Venue. This Agreement shall be governed by the Laws of the State of New York without giving effect to any choice of law or
conflict of law provision or rule. All Actions arising out of or relating to this Agreement shall be heard and determined in any
state or federal court sitting in the State of New York, County of New York. Each of the parties to this Agreement irrevocably
submits to the exclusive jurisdiction of the state courts of New York and to the jurisdiction of the United States District Court
for the Southern District of New York for the purpose of any Action arising out of or relating to this Agreement. Each of the
parties to this Agreement consents to service of process by delivery in accordance with the provisions set forth in Section 9.8
hereof.


 


9.5 Specific
Performance. The rights and remedies of the parties hereto shall be cumulative. The transactions contemplated by this Agreement
are unique transactions and any failure on the part of either of the parties hereto to consummate these transactions on the terms
and conditions herein set forth may not be fully compensable in damages. Any actual or threatened breach of this Agreement by
either of the parties hereto, therefore, may cause the other to suffer irreparable harm. Accordingly, and in addition to any other
remedies which may be available to either of the parties hereto arising out of any actual or threatened breach of this Agreement
by the other, the non-breaching party shall also have the right to seek specific performance of this Agreement.


 


9.6 Interpretation.
The Schedules and Exhibits annexed hereto are an integral part of this Agreement, and each of them is incorporated herein by reference.
As such, unless otherwise indicated, all references herein to this “Agreement” shall be deemed to encompass or include
both this Agreement and the annexed Schedules and Exhibits. Other than for words which start a sentence or paragraph, capitalized
terms in this Agreement, its recitals, Schedules and Exhibits, shall have the meaning ascribed to them in Schedule I hereto. Words
not so defined in this Agreement shall have the meaning found in Merriam-Webster’s Dictionary. In addition, when used herein,
the words “include,” “includes” and “including” shall be deemed, in each case, to be followed
by the words “without limitation.” Similarly, unless otherwise indicated, the word “herein” and similar
references shall be deemed to encompass or include the entire Agreement, rather than any specific provision or section hereof.
The Table of Contents and the headings contained in this Agreement are for reference purposes only and shall not, in any way,
affect the meaning or substance of this Agreement. The term “$” shall mean United States dollars. For purposes of
construction, all pronouns herein set forth shall be deemed to include or encompass the masculine, feminine, neuter, singular
and plural forms thereof. Finally, any reference to the Buyer or Seller found in this Agreement shall be deemed to encompass or
include each party, together with their respective Affiliates.


 




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9.7 Severability.
If any term or provision of this Agreement is found to be invalid, illegal or incapable of being performed, all other terms and
provisions of this Agreement shall nevertheless remain in full force and be valid and enforceable to the fullest extent permitted
by law; provided, however, that in the event any such finding or determination is made, the parties hereto agree to use their
best efforts to modify, supplement and/or amend this Agreement, as may reasonably be necessary, to enable them to consummate the
transactions subject of this Agreement, if possible.


 


9.8
Notices. All notices or other communications which are required or permitted hereunder shall be in writing and shall be sufficient
if delivered personally, by electronic mail, by overnight courier or by registered or certified mail, postage prepaid, return
receipt requested, to the following:


 


	 	If
    to the Buyer:
	 	 
	 	Olaregen
    Therapeutix Inc.
	 	Mr.
    Anthony Dolisi
	 	Chief
    Executive Officer
	 	1001
    Avenue of the Americas, 10th floor
	 	New
    York, NY 10018
	 	Email:
    tonydolisi@yahoo.com
	 	 
	 	with
    a copy to (which shall not constitute notice):
	 	 
	 	Stuart
    L. Melnick, Esq.
	 	Law
    Offices Stuart L. Melnick, LLC
	 	315
    Madison Avenue, Suite 901
	 	New
    York, NY 10017
	 	Email:
    stuart@melnick-law.com
	 	 
	 	If
    to the Seller:
	 	 
	 	Gene
    Biotherapeutics Inc.
	 	Chris
    Reinhard, Chief Executive Officer
	 	11568
    Sorrento Valley Rd., Suite 14
	 	San
    Diego, CA 92121
	 	creinhard@angionetics.com


 




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	 	with
    a copy to (which shall not constitute notice):
	 	 
	 	James
    A. Mercer III
	 	Sheppard
    Mullin Richter & Hampton
	 	12275
    El Camino Real, Suite 200
	 	San
    Diego, CA 92130
	 	jmercer@sheppardmullin.com


 


or
to such other address as the party to whom notice is to be given may have furnished to the other in writing. All such notices
or communications shall be deemed to be received (a) in the case of personal delivery, on the date of such delivery, (b) in the
case of overnight courier, on the next Business Day after the date when sent, (c) in the case of electronic mail, on the date
sent, and, (d) in the case of regular mail, on the second Business Day following the date on which the mailing containing such
communication was posted for delivery.


 


9.9 Representation
by Counsel. Each of the parties hereto acknowledges that it has been advised by legal counsel in the course of negotiations leading
to the formation and execution of this Agreement and any Related Agreements. Each also acknowledges that it has had a full and
fair opportunity to review and inquire about this Agreement, the Related Agreements, the Assigned Contracts, applicable Schedules
and Exhibits, and other pertinent documentation, as well as the substance and construction thereof. 


9.10 Construction.The
parties have participated jointly in the negotiations leading to the formation of this Agreement; each also has participated in
the drafting of this Agreement. As such, in the event any ambiguity or question of intent or interpretation arises, there shall
be no presumption or burden of proof favoring or disfavoring either of the parties hereto. 


 


9.11 Waivers.
The failure on the part of any party to this Agreement to take action against the other arising out of or by reason of the latter’s
breach of any term or provision of this Agreement shall not constitute a waiver of that party’s right to enforce any other
term or provision of this Agreement or to take action against such breach or default or any subsequent breach or default. To be
effective any waiver must be in writing and signed by the waiving party.


 


9.12 Third
Party Beneficiaries. Nothing in this Agreement is intended to confer, nor may any term or provision set forth in this Agreement
be construed to confer, any rights, interests, remedies, obligations or liabilities upon any Person other than the parties hereto,
their respective representatives, successors and/or assigns. The representations and warranties contained in this Agreement are
for the sole benefit of the parties hereto and are not to be relied upon by any other Person for any reason or purpose whatsoever.


 


9.13 Waiver
of Jury Trial. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES. EACH, THEREFORE, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN CONNECTION WITH ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.


 




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NOW,
THEREFORE, the parties hereto have executed or caused this Asset Purchase Agreement to be executed, by their duly authorized representatives,
as of the date first written above.


 


	 	BUYER:
	 	 
	 	OLAREGEN
    THERAPEUTIX INC.
	 	 
	 	By: 	/s/
    Anthony Dolisi
	 	Name:	 Anthony Dolisi
	 	Title:	Chief Executive Officer
	 	 
	 	SELLER:
	 	 
	 	ACTIVATION
    THERAPEUTICS INC.
	 	 
	 	By: 	/s/
    Christopher J. Reinhard
	 	Name:	 Christopher J. Reinhard
	 	Title:	Chief Executive Officer