Replies to post #96580 on Arrayit Corporation (ARYC)

[cngreen]

you know financials most likely wont be released before then.

[Delsurfer]

I bought one of the documents Mike which I copied and pasted below. This goes through each of the plaintiff's 48 points. I didn't purchase each exhibit but each point references an exhibit where you can get more info (i.e. the Contribution agreement referenced on many of these points) Nothing too earth-shattering here I don't think. Need to see some of the details and Arrayit's response.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x
REUBEN TAUB, IRWIN L. ZALCBERG : 15 Civ. 01366 (ALC)
and IRWIN ZALCBERG PROFIT SHARING
PLAN, :
Plaintiffs, :
- against - :
ARRAYIT CORPORATION, RENE SCHENA, :
MARK SCHENA and TODD MARTINSKY,
:
Defendants.
:
-----------------------------------x
RULE 56.1 STATEMENT OF UNDISPUTED MATERIAL FACTS
In accordance with Rule 56.1 of the Local Rules of this
Court, plaintiffs submit this statement of material facts as to
which there is no genuine issue to be tried, as follows:

1. Reuben Taub (“Taub”) is a citizen of the State of
New York. (Taub Dec., ¶ 2.)

2. Irwin L. Zalcberg (“Zalcberg”) is a citizen of the
State of Illinois. (Zalcberg Dec., ¶ 2.)

3. Irwin Zalcberg Profit Sharing Plan (the “Plan”) is
a citizen of the State of Illinois. (Zalcberg Dec., ¶ 2.)

4. Arrayit Corporation (“Arrayit”) is a citizen of
the States of California and Nevada. (Tokayer Dec., ¶ 3.)

5. Rene Schena (“Rene”) is a citizen of the State of
California. (Tokayer Dec., ¶ 4.)

6. Mark Schena (“Mark”) is a citizen of the State of
California. (Tokayer Dec., ¶ 5.)

7. Todd Martinsky (“Todd”) is a citizen of the State
of California. (Tokayer Dec., ¶ 5.)

8. This court has jurisdiction over this action
pursuant to 28 U.S.C. § 1332(a) because the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and
costs, and is between citizens of different States. (See ¶¶ 1-7,
above.)

9. On or about August 11, 2014, Taub filed a
commercial litigation in the Supreme Court of the State of New
York, County of New York, Index No. 652454/2014, for defendants’
failure “to properly disclose withholding and other tax
liabilities of the Company” and making “misrepresentations
concerning the development costs for, and the Company’s ownership
interest in OvaDX” (the “Prior New York Action”), which was
subsequently discontinued pursuant to a Contribution Agreement
between the parties. (Tokayer Dec., Ex. E.)

10. On August 19, 2015, the parties entered into a
Contribution Agreement. (Tokayer Dec., Ex. F.)

11. The Contribution Agreement obligated Arrayit,
Mark, Todd and their Affiliates to contribute to Array Molecular
Corp. (“AM”) information, assets and licenses relating to a Food
Testing Product. (Tokayer Dec., Ex. F, §§ 1.1, 1.2, 5.1.)

12. The assets and licenses were to be delivered free
and clear of any and all liens and encumbrances (Tokayer Dec.,
2 Case 1:15-cv-01366-ALC-JLC Document 168-1 Filed 09/04/18 Page 2 of 8
Ex. F, § 1.3.)

13. The closing was to occur on November 17, 2014, or
such other date as shall be agreed to. (Tokayer Dec., Ex. F, §
6.2.)

14. The Contribution Agreement further required a
doubling of the shares authorized to be purchased with each
warrant previously issued to investors purchasing stock in
Arrayit’s October 2013 private placement (the “Warrants”).
(Tokayer Dec., Ex. F, § 1.9(a)(I).)

15. The Contribution Agreement required defendants to
modify the Warrants so that they could be exercised without
restriction, at a purchase price of 10 cents, for six months
after registration of the warrants with the Securities and
Exchange Commission (“SEC”). (Tokayer Dec., Ex. F, §
1.9(a)(ii).)

16. The Contribution Agreement
(the “Five-Year Warrant”). (Tokayer Dec., Ex. F, § 1.9(a)(iii).)

17. The Contribution Agreement also required that a
five-year warrant for 500,000 shares of Arrayit common stock,
with an exercise price at 10 cents, be issued to the person
paying the legal and other costs of the Registration Statement
3 Case 1:15-cv-01366-ALC-JLC Document 168-1 Filed 09/04/18 Page 3 of 8
(the “Five-Year Warrant”). (Tokayer Dec., Ex. F, § 1.9(a)(iii).)

18. The shares underlying the Five-Year Warrant were
to be reflected in the Registration Statement filed with the SEC.
(Tokayer Dec., Ex. F, § 1.9(a)(iii).)

19. The Contribution Agreement required defendants to
reimburse the person paying the costs for the Registration
Statement from the proceeds of the exercise of the Warrants.
(Tokayer Dec., Ex. F, § 1.9(a)(iii).)

20. The Contribution Agreement additionally required
that, upon execution of the Agreement, 5 million Arrayit shares
(the “Zalcberg Shares”) and a three-year warrant for 7 million
shares, with an exercise price of 10 cents or 20 cents depending
on when the warrant is exercised (the “Three-Year Warrant”), be
issued to Zalcberg or the Plan, as Zalcberg may direct. (Tokayer
Dec., Ex. F, § 1.9©.)

21. The Zalcberg Shares were to be reflected in the
Registration Statement filed with the SEC. (Tokayer Dec., Ex. F,
§ 1.9(a).)

22. The shares underlying the Three-Year Warrant were
to be reflected in the Registration Statement filed with the SEC.
(Tokayer Dec., Ex. F, § 1.9(a).)

23. The Contribution Agreement prohibited defendants
from issuing, or agreeing to issue, any other “equity securities”
for a period of six months from the date of the execution of the
4 Case 1:15-cv-01366-ALC-JLC Document 168-1 Filed 09/04/18 Page 4 of 8
Agreement, except under certain conditions. (Tokayer Dec., Ex.
F, § 5.2.)

24. Simultaneously with the execution of the
Contribution Agreement, Taub and Zalcberg executed releases
relating to matters arising prior to the date of the Agreement.
(Tokayer Dec., Ex. I to Ex. F.)

25. On or about August 25, 2014, Taub discontinued the
Prior New York Action with prejudice. (Tokayer Dec., Ex. J.)

26. In contravention of the Contribution Agreement,
information, assets and licenses relating to the Food Testing
Product were not contributed to AM. (Taub Dec., ¶ 12; Tokayer
Dec., Exs. J, ¶ 1; Q, ¶ 12; and R, ¶ 7.)

27. In contravention of the Contribution Agreement,
the Registration Statement was not filed with the SEC. (Taub,
Dec., ¶ 13; Ruben Dec., ¶ 2; Tokayer Dec., Ex. C, at 39.)

28. In contravention of the Contribution Agreement,
the Warrants were not doubled, modified and issued as required by
§ 1.9(a) of the Contribution Agreement. (Taub Dec., ¶ 13; Ruben
Dec., ¶ 2; Tokayer Dec., Exs. J, ¶ 2; and Q, ¶ 11.)

29. In contravention of the Contribution Agreement, no
registration statement was filed reflecting the underlying shares
relating to the Warrants. (Tokayer Dec., Ex. J, ¶ 4; Taub Dec.,
¶ 13; Ruben Dec., ¶ 2.)

30. Taub paid $25,000 for the legal and other costs of
5
Case 1:15-cv-01366-ALC-JLC Document 168-1 Filed 09/04/18 Page 5 of 8
the Registration Statement. (Taub Dec., ¶ 13; Tokayer Dec., Exs.
C, at 39; and J, ¶ 5.)

31. In contravention of the Contribution Agreement,
the Five-Year Warrant contemplated by § 1.9(a) of the
Contribution Agreement was not issued. (Taub Dec., ¶ 13; Ruben
Dec., ¶ 2; Tokayer Dec., Exs. J, ¶ 6; and Q, ¶ 11.)

32. In contravention of the Contribution Agreement, no
registration statement was filed reflecting the underlying shares
relating to the Five-Year Warrant. (Tokayer Dec., Ex. J, ¶ 7;
Taub Dec., ¶ 13; Ruben Dec., ¶ 2.)

33. Taub was not reimbursed for the legal costs of the
Registration Statement as per § 1.9(a) of the Contribution
Agreement. (Tokayer Dec., Ex. J, ¶ 8; Taub Dec., ¶ 13.)

34. In contravention of the Contribution Agreement,
the Zalcberg Shares were not issued as required by § 1.9© of the
Contribution Agreement. (Zalcberg Dec., ¶ 5; Ruben Dec., ¶ 2;
Tokayer Dec., Exs. J, ¶ 10; and Q, ¶ 11.)

35. In contravention of the Contribution Agreement, no
registration statement was filed reflecting the Zalcberg Shares.
(Zalcberg Dec., ¶ 5; Ruben Dec., ¶ 2; Tokayer Dec., Exs. C, at
39; and J, ¶ 11.)

36. In contravention of the Contribution Agreement,
the Three-Year Warrant was not issued as required by § 1.9© of
the Contribution Agreement. (Zalcberg Dec., ¶ 5; Ruben Dec., ¶
6 Case 1:15-cv-01366-ALC-JLC Document 168-1 Filed 09/04/18 Page 6 of 8
2; Tokayer Dec., Exs. J, ¶ 10; and Q, ¶ 11.)

37. In contravention of the Contribution Agreement, no
registration statement was filed which reflected the shares
underlying the Three-Year Warrant. (Zalcberg Dec., ¶ 5; Ruben
Dec., ¶ 2; Tokayer Dec., Exs. C, at 39; and J, ¶ 12.)

38. Defendants executed convertible debentures
totaling over $600,000 within six months of the date of the
Contribution Agreement. (Tokayer Dec., Ex. L.)

39. The execution of convertible debentures violated
the Contribution Agreement. (Taub Dec., ¶ 14.)

40. Defendants’ failure to comply with their
obligations under the Contribution Agreement caused plaintiffs
damage. (Taub Dec., ¶ 12-13; Tokayer Dec., Ex. Y.)

41. The Contribution Agreement provided that
plaintiffs were not responsible for any expenses incurred prior
to closing in developing the Food Testing Product. (Tokayer
Dec., Exs. F, ¶ 1.5; G; Q, ¶ 13; and R, ¶ 8.)

42. On or about October 5, 2015, Brian Kinnerk
(“Kinnerk”) commenced a wage dispute proceeding against Arrayit
before the State of California Department of Labor (the
“California Labor Proceeding”). (Tokayer Dec., Ex. P.)

43. On or about August 22, 2016, as a result of the
California Labor Proceeding, a judgment was entered in favor of
Kinnerk and against Arrayit and Z-Investors LLC, a Nevada
7
Case 1:15-cv-01366-ALC-JLC Document 168-1 Filed 09/04/18 Page 7 of 8
corporation (“Z-Investors”). (Tokayer Dec., Ex. P.)

44. Plaintiffs were not parties to the California
Labor Proceeding. (Taub Dec., ¶ 16; Zalcberg Dec., ¶ 6.)

45. Plaintiffs were not served in connection with the
California Labor Proceeding. (Taub Dec., ¶ 16; Zalcberg Dec., ¶
6.)

46. Plaintiffs did not appear in connection with the
California Labor Proceeding. (Taub Dec., ¶ 16; Zalcberg Dec., ¶
6.)

47. Plaintiffs have no connection to Z-Investors.
(Taub Dec., ¶ 16; Zalcberg Dec., ¶ 6.)

48. Kinnerk was not employed nor paid by Reuben Taub,
Irwin L. Zalcberg or Irwin Zalcberg Profit Sharing Plan; nor did
Kinnerk receive any compensation from them or any related entity.
(Kinnerk Dec., ¶ 1; Taub Dec., 16; Zalcberg Dec., ¶ 7.)

Dated: New York, New York
September 4, 2018
____________/s/_____________
IRA DANIEL TOKAYER, ESQ.
Attorney for Plaintiffs
420 Lexington Ave., Ste. 2400
New York, New York 10170