AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of December 30, 2013, by and among CHANTICLEER HOLDINGS, INC., a Delaware corporation (the “Parent”), CHANTICLEER HOOTERS I, LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (“Purchaser 1”), CHANTICLEER HOOTERS II, LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (“Purchaser 2”), CHANTICLEER HOOTERS III, LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (“Purchaser 3” and collectively with Purchaser l and Purchaser 2, the “Purchasers”), TACOMA WINGS, L.L.C., an Oregon limited liability company and wholly owned subsidiary of Hooters of Washington, L.L.C. (“Tacoma Wings”), OREGON OWL’S NEST, L.L.C., an Oregon limited liability company and wholly owned subsidiary of Hooters of Oregon Partners, L.L.C. (“OON”) and XXXXXXX BEACH WINGS, L.L.C., an Oregon limited liability company and wholly owned subsidiary of Hooters of Oregon Partners, L.L.C. (“JBW” with each of Tacoma Wings, OON and JBW as a “Company” and collectively the “Companies”), Hooters of Washington, L.L.C., a Kansas limited liability company (“HOW”) and Hooters of Oregon Partners L.L.C., an Oregon limited liability company (“HOOP” and collectively with HOW, the “Members,” collectively with the aforementioned entities, the “Party” or “Parties”).
1.1 Definitions. The following terms, as used herein, shall have the following meanings:
(a) “Action” means any action, claim, dispute, proceeding, suit or investigation (whether civil, criminal, administrative or investigative), or any appeal therefrom.
(b) “Affiliate” means any Person, a spouse of such Person, any child or parent sharing the same household with such Person, any director or officer of such Person, and any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person.
(c) “Agreement” means this Agreement and Plan of Merger and shall include all of the Schedules and Exhibits attached hereto.
(d) “Alternative Transaction” has the meaning assigned to it in Section 6.4.
(e) “Annual Financial Statements” has the meaning assigned to it in Section 4.8(a).
(f) “Approval” means any approval, authorization, consent, license, franchise, order, registration, permit or other confirmation of or by, or filing with, a Person.
(g) “Business Day” means any day other than a Saturday, a Sunday, a legal holiday in the State of Delaware or the State of North Carolina or a day on which commercial banks in the State of Delaware or the State of North Carolina are permitted or authorized to close.
(h) “Certificates of Merger” has the meaning assigned to it in Section 2.3.
(i) “Closing” and “Closing Date” have the meanings assigned to them in Section 2.2.
(j) “Code” means the Internal Revenue Code of 1986, as amended, and the regulations thereunder.
(k) “Company Employee Plans” has the meaning assigned to it in Section 4.16(a).
(l) “Company Employee Benefit Plans” means a qualified, defined contribution, employee benefit (ERISA) plan designed to invest primarily in the equity of a Company.
(m) “Contracts” has the meaning assigned to it in Section 4.10(b).
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(n) “Damages” means any claim, loss, deficiency (financial or otherwise), Liability, cost or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) or damage of any kind or nature whatsoever.
(o) “Effective Time” has the meaning assigned to it in Section 2.3.
(p) “Environmental Laws” means all currently existing foreign, federal, state and local laws, regulations, rules and ordinances relating to pollution or protection of the environment or human health and safety, including, without limitation, laws relating to releases or threatened releases of Hazardous Materials into the indoor or outdoor environment (including, without limitation, ambient air, surface water, groundwater, land, surface and subsurface strata) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, release, transport or handling of Hazardous Materials and all laws and regulations with regard to record keeping, notification, disclosure and reporting requirements respecting Hazardous Materials, and all laws relating to endangered or threatened species of fish, wildlife and plants and the management or use of natural resources.
(q) “ERISA” has the meaning assigned to it in Section 4.16(a).
(r) “Financial Statements” has the meaning assigned to it in Section 4.8(a).
(s) “GAAP” means United States generally accepted accounting principles.
(t) “Governmental Authority” means any United States federal, state, local, foreign or other governmental, administrative or regulatory authority, body, agency, court, tribunal or similar entity.
(u) “Hazardous Materials” means any substance: (i) the presence of which requires or may require investigation or remediation of any kind under any Environmental Laws; (ii) which is defined as “hazardous waste,” “hazardous material,” “residual waste,” “hazardous substance,” “pollutant” or “contaminant” under any federal, state or local statute, regulation, rule or ordinance or amendments thereto including, without limitation, CERCLA and/or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) or (iii) which is otherwise regulated pursuant to any applicable Environmental Law.
(v) “Indemnified Party” means any party entitled to indemnification pursuant to Article 10 hereof.
(w) “Indemnifying Party” means any party required to indemnify an Indemnified Party pursuant to Article 10 hereof.
(x) “Intellectual Property” means trademarks, service marks, trade names, Internet domain names, designs, logos, slogans, and general intangibles of like nature, together with all goodwill, registrations and applications related to the foregoing (collectively, “Trademarks”); patents and industrial designs (including any continuations, divisionals, continuations-in-part, renewals, reissues, and applications for any of the foregoing); copyrights (including any registrations and applications for any of the foregoing); software; “mask works” (as defined under 17 USC ss. 901) and any registrations and applications for “mask works”; Trade Secrets; rights of publicity and privacy relating to the use of the names, likenesses, voices, signatures and biographical information of real persons.
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(y) “Interim Balance Sheets” means the unaudited balance sheets of the Companies as of November 30, 2013 previously delivered to the Parent.
(z) “Interim Financial Statements” means the Interim Balance Sheets together with the unaudited statements of income and cash flow of the Companies for the six-month period ended June 30, 2013 previously delivered to the Parent.
(aa) “Knowledge of the Company,” or similar phrases, means the actual knowledge of Xxxxx Xxxxxxxxxxx and Xxxx Xxxxxxx.
(bb) “Law” means any federal, state, local or foreign law, statute, rule, regulation, ordinance, standard, requirement, administrative ruling, order or process (including, without limitation, any zoning or land use law or ordinance, building code, Environmental Law, securities, blue sky, civil rights or occupational health and safety law or regulation) or administrative interpretation thereof, and any court, or arbitrator’s order or process.
(cc) “Leased Real Property” has the meaning assigned to it in Section 4.20(b).
(dd) “Liability” means any debt, liability, commitment or obligation of any kind, character or nature whatsoever, whether known or unknown, secured or unsecured, accrued, fixed, absolute, contingent or otherwise, and whether due or to become due.
(ee) “License Agreements” has the meaning assigned to it in Section 4.11(b).
(ff) “Lien” means any lien, statutory lien, pledge, mortgage, security interest, charge, encumbrance, easement, right of way, covenant, claim, restriction, right, option, conditional sale or other title retention agreement of any kind or nature.
(gg) “Material Adverse Effect” means any change, event, development, condition, occurrence or effect that is, or would reasonably be expected to be (a) materially adverse to the business, financial condition, assets, liabilities, or result of operations of the Companies or the Parent, as the case may be, taken as a whole, or (b) prevents or materially delays or would reasonably be expected to prevent or materially delay, consummation of the Mergers or performance by the Companies of any of their material obligations under this Agreement, excluding, however, in the case of each of (a) and (b), any result, event, fact, change or effect resulting from, arising out of or relating to: (i) general financial or capital market, economic or political conditions (including, without limitation, any changes arising out of acts of terrorism or war, extreme or severe weather conditions or other force majeure events), provided that such changes do not have a substantially disproportionate impact on the relevant Party or Parties, taken as a whole, relative to other companies operating in the same industry in which the relevant Party operates, (ii) the announcement of this Agreement or the pendency of the transactions contemplated hereby, as the case may be, including, without limitation, any loss of, or adverse change in, the relationships of the Party with its employees, licensors, licensees, customers, distributors, partners or suppliers that is related thereto, (iii) any failure to take any action or the taking of any action at the written direction, or with the prior written consent, of the relevant counter-Party hereto, (iv) events or conditions that generally affect the industry in which a Party hereto operates; or (v) the taking of any action required by this Agreement or the failure to take any action prohibited by this Agreement.
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(hh) “Mergers” has the meaning assigned to it in Section 2.1.
(ii) “Parent Common Stock” means the common stock of the Parent.
(jj) “Person” means any individual, partnership, corporation, Limited Liability Company, association, business trust, joint venture, governmental entity, business entity or other entity of any kind or nature, including any business unit of such Person.
(kk) “Party” means a party to the Agreement.
(ll) “Personal Property Leases” has the meaning assigned to it in Section 4.10(a).
(mm) “Real Property Leases” has the meaning assigned to it in Section 4.20(b).
(nn) “Representatives” means with respect to any Person, its stockholders, employees, officers, directors, investment bankers, attorneys, agents, representatives or Affiliates.
(oo) “SEC Documents” has the meaning assigned to it in Section 5.9(b).
(pp) “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(qq) “Securities Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereto.
(rr) “Subsidiary” or “Subsidiaries” when used with respect to any Person or entity means any other Person or entity, whether incorporated or unincorporated, of which (i) more than fifty percent of the securities or other ownership interests or (ii) securities or other interests having by their terms ordinary voting power to elect more than fifty percent of the board of directors or others performing similar functions with respect to such corporation or other organization, is directly owned or controlled by such Person or by any one or more of its Subsidiaries.
(ss) “Surviving Company” has the meaning assigned to it in Section 2.1.
(tt) “Tax” means any United States federal, state or local or foreign income, gross receipts, license, severance, occupation, premium, environmental (including taxes under Code Section 59A), customs, duties, profits, disability, registration, alternative or add-on minimum, estimated, withholding, payroll, employment, unemployment insurance, social security (or similar), excise, sales, use, value-added, occupancy, franchise, real property, personal property, business and occupation, windfall profits, capital stock, stamp, transfer, workmen’s compensation or other tax, fee or imposition of any kind whatsoever, including any interest, penalties, additions, assessments or deferred liability with respect thereto, whether disputed or not.
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(uu) “Tax Audits” has the meaning assigned to it in Section 4.14(e).
(vv) “Tax Law” means the Law (including any applicable regulations or any administrative pronouncement) of any Governmental Authority relating to any Tax.
(ww) “Tax Return” means any federal, state, local or foreign return, declaration, report, claim for refund, amended return, declaration of estimated Tax or information return or statement relating to Taxes, and any schedule, exhibit, attachment or other materials submitted with any of the foregoing, and any amendment thereto.
(xx) “Third Party Claim” has the meaning assigned to it in Section 10.4.
(yy) “Trade Secrets” means any and all technology, trade secrets and other confidential information, know-how, inventions, proprietary processes, formulae, algorithms, models, and methodologies held for use or used in or necessary for the conduct of the Company’s or its Subsidiaries’ business as currently conducted or contemplated to be conducted.
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2.2 Closing. The closing of the Mergers (the “Closing”) shall take place (i) at the offices of Chanticleer Holdings, Inc., 00000 Xxx Xxxx, Xxxxx 000; Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, on or about December 31, 2013, but in any event within three Business Days after the day on which the last to be fulfilled or waived of the conditions set forth in Articles VII and VIII (other than those conditions that by their nature are to be fulfilled at the Closing, but subject to the fulfillment or waiver of such conditions) shall be fulfilled or waived in accordance with this Agreement, or (ii) at such other place and time or on such other date as the parties may agree in writing (the “Closing Date”). Notwithstanding anything to the contrary, if Parent is required to obtain complete NASDAQ review of this Agreement and transaction contemplated hereby (the “Nasdaq Review”) then the Closing will be held at the earliest practicable date following Parent’s receipt of review completion.
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ARTICLE
III
CONVERSION OF SHARES
3.1 Effect on Membership Interests.
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“THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR APPLICABLE STATE SECURITIES LAWS AND THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SALE OR TRANSFER IS EFFECTIVE UNDER THE ACT OR (II) THE TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE ACT, AND IF THE ISSUER REQUESTS, AN OPINION SATISFACTORY TO THE CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.”
ARTICLE
IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANIES
Each Company hereby represents and warrants to the Parent and Purchasers, as of the date hereof and as of the Closing Date, as follows:
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(a) The authorized membership interests of the Company consists solely of common Company membership interests. All common Company membership interests outstanding immediately prior to Closing are being cancelled concurrently with the Closing. No preferred membership interests are outstanding. No membership interests are held as treasury shares, and no preferred membership interests are held as treasury shares.
(b) All of the issued and outstanding Company membership interests are validly issued and free of preemptive rights and were issued in compliance with all applicable Laws concerning the issuance of securities. There are not any membership interests of the Company issued or outstanding or any options, warrants, subscriptions, calls, rights, convertible securities or other agreements or commitments obligating the Company to issue, transfer, sell, redeem, repurchase or otherwise acquire any shares of its membership interests or securities. There are not any notes, bonds, debentures or other indebtedness of the Company having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters upon which the Company’s members may vote. There are no outstanding contractual obligations, commitments, understandings or arrangements of the Company to repurchase, redeem or otherwise acquire or make any payment in respect of or measured or determined based on the value or market price of any membership interests of the Company, and there are no irrevocable proxies with respect to membership interests of the Company. There are no agreements or arrangements pursuant to which the Company is or could be required to register shares of Company membership interests or other securities under the Securities Act.
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(a) Except as set forth in Schedule 4.7(a) and except for the filing of the applicable Certificate of Merger, no declaration, filing or registration with, notice to, or Approval of, any Governmental Authority is required to be made, obtained or given by or with respect to the Company in connection with the execution, delivery or performance by the Company of this Agreement, the performance by it of its obligations hereunder or the consummation by it of the transactions contemplated hereby.
(b) The Company has all Approvals required for its operation and the use and ownership or leasing of its properties and assets that constitute part of the business, as currently operated, used, owned or leased. All of such Approvals are valid, in full force and effect and in good standing, except where the failure to be so would not, individually or in the aggregate, have a Material Adverse Effect. There is no proceeding pending or, to the knowledge of the Company, threatened, that disputes the validity of any such Approval or that is likely to result in the revocation, cancellation or suspension, or any adverse modification of any such Approval.
4.8 Financial Statements; No Undisclosed Liabilities.
(a) The Company has delivered to the Parent, and Parent acknowledges the receipt of, true, correct and complete copies of the Company’s balance sheets as of December 31, 2011, 2012, and 2013 and the statements of income for the years ended December 31, 2011, 2012, and 2013 (the “Annual Financial Statements”). Should the Closing occur after December 31, 2013, the Company shall deliver to the Purchaser unaudited financial statements for the monthly periods ended December 31, 2013 and the related statements of cash flows, once such financial statements have been prepared by the Company (the “Alternate Financial Statements,” collectively with the Annual Financial Statement, the “Financial Statements”). The Financial Statements are based upon the information contained in the books and records of the Company and fairly present, in all material respects, the financial condition of the Company as of the dates thereof and results of operations for the periods referred to therein.
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(b) Except for the indebtedness set forth on Schedule 4.8(b) or as reflected in the Interim Balance Sheet, the Company does not have, and as a result of the transactions contemplated by this Agreement, will not have, any Liabilities (whether absolute, accrued, contingent or otherwise, and whether due or to become due), except for Liabilities (i) incurred in the ordinary course of business consistent with past practice since the date of the Interim Balance Sheet, or (ii) which, individually or in the aggregate, will not have a Material Adverse Effect.
4.9 Absence of Certain Changes.
(a) Since December 31, 2012 and, prior to the date hereof, the Company has conducted its business in the ordinary course, consistent with past practice, and there has not been any event, occurrence or development which, individually or in the aggregate, would have a Material Adverse Effect on the Company, other than as shown on the Interim Financial Statements:
(i) any grant of any severance or termination pay to (or amendment to any such existing arrangement with) any director, officer or employee of the Company; entering into of any employment, deferred compensation, supplemental retirement or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of the Company; increase in, or accelerated vesting and/or payment of, benefits under any existing severance or termination pay policies or employment agreements; or increase in or enhancement of any rights or features related to compensation, bonus or other benefits payable to directors, officers or senior employees of the Company, in each case, other than in the ordinary course of business consistent with past practice.
(ii) any declaration, setting aside or payment of any distribution with respect to any membership interests of the Company or any repurchase, redemption or other acquisition by the Company of any outstanding membership interests or any options, warrants, subscriptions, calls, rights, convertible securities or other agreements or commitments which obligate the Company to issue, transfer, sell, redeem, repurchase or otherwise acquire any securities;
(iii) any amendment of any material term of any outstanding security of the Company;
(iv) any change in any method of accounting or accounting practice by the Company, except for any such change which is not material or which is required by reason of a concurrent change in GAAP; or
(v) any material Tax election made or changed, any material audit settled or any material amended Tax Returns filed.
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4.10 Leases of Personal Property; Material Contracts; No Default.
(a) Schedule 4.10(a) hereto sets forth a true and complete list of each lease of personal property to which the Company is a party or by which it or its properties or assets are bound which provides for payments in excess of $10,000 per annum and which has a remaining term in excess of one year (collectively, the “Personal Property Leases”). The Company has delivered or made available to the Parent a true and complete copy of each of the Personal Property Leases.
(b) Schedule 4.10(b) hereto sets forth a true and complete list of all agreements (including, but not limited to any agreements relating to indebtedness or future expenditures) involving amounts greater than $10,000.00 individually or $25,000.00 in the aggregate, to which the Company is a party or by which it or any of its properties or assets are bound (collectively, the “Contracts”). The Company has delivered or made available to the Parent a true and complete copy of each of the Contracts or other agreements listed on Schedule 4.10(b) hereto.
(c) Except as set forth on Schedule 4.10(c) hereto, the Company has performed in all material respects, or is now performing in all material respects, its obligations under, and is not in default (and would not by the lapse of time or the giving of notice or both be in default) under, or in breach or violation of, nor has it received notice of any asserted claim of a material default by the Company under, or a material breach or violation by a Company of, any of the Personal Property Leases or Contracts and, to the Knowledge of the Company, the other party or parties thereto are performing in all material respects and are not in violation thereunder.
4.11 Intellectual Property Matters.
(a) Schedule 4.11(a) sets forth, for all Intellectual Property owned by the Company, a complete and accurate list, of all U.S. and foreign: (i) patents and patent applications; (ii) registered Trademarks and material unregistered Trademarks; and (iii) copyright registrations, copyright applications and material unregistered copyrights.
(b) Schedule 4.11(b) sets forth a complete and accurate list of all agreements granting or obtaining any right to use or practice any rights under any Intellectual Property, or right to compensation from the Company by reason of the use, exploitation, or sale of any Intellectual Property, to which the Company is a party or otherwise bound, as licensee or licensor thereunder, including, without limitation, license agreements, settlement agreements and covenants not to xxx (collectively, the “License Agreements”).
(c) Except as set forth on Schedule 4.11(c): (i) the Company owns or has the right to use all Intellectual Property, free and clear of all liens or other encumbrances; (ii) any Intellectual Property owned or used by the Company has been duly maintained, is valid and subsisting, in full force and effect and has not been cancelled, expired or abandoned; to the Knowledge of the Company the Company has no knowledge that any of its operations constitute infringement or misappropriation, on any Intellectual Property right of another Person; (iii) the Company has not received notice from any third party regarding any assertion or claim challenging the validity of any Intellectual Property owned or used by the Company and the Company does not have any Knowledge of any basis for such a claim; (iv) the Company has not licensed or sublicensed its rights in any Intellectual Property; and (v) the Company has no Knowledge that any third party is misappropriating, infringing, diluting or violating any Intellectual Property owned by the Company;
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(a) The Company has duly and timely filed (or there has been filed on its behalf) with the appropriate Governmental Authorities all material Tax Returns required to be filed by it, and all such Tax Returns are true, correct and complete in all material respects; and timely paid (or properly accrued on the Company’s books), or there has been paid on its behalf all Taxes due from it or claimed to be due from it by any Governmental Authority (whether or not set forth on any Tax Return);
(b) The Company has complied in all material respects with all applicable Tax Laws relating to the payment and withholding of Taxes and has, within the time and manner prescribed by law, withheld and paid over to the proper Governmental Authority all amounts required to be withheld and paid over under all applicable Tax Laws;
(c) There are no Liens for Taxes upon the assets or properties of the Company except for statutory Liens for current Taxes not yet due;
(d) The Company has not requested any extension of time within which to file any Tax Return in respect of any taxable year which has not since been filed, and no outstanding waivers or comparable consents regarding the application of the statute of limitations with respect to any Taxes or Tax Returns has been given by or on behalf of the Company;
(e) No federal, state, local or foreign audits, review, or other Actions (“Tax Audits”) exist or have been initiated with regard to any Taxes or Tax Returns of the Company, and the Company has not received any notice of such a Tax Audit;
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(f) All Tax deficiencies which have been claimed, proposed or asserted against the Company by any taxing authority have been fully paid, and there are no other Tax Audits by any taxing authority in progress relating to the Company or the business of the Company, nor has the Company or to the Company’s Knowledge, any of its members or officers received any notice from any taxing authority that it intends to conduct such an audit or investigation. No issue has been raised by any taxing authority in any current or prior examination which, by application of the same principles, would reasonably be expected to result in a proposed deficiency for any subsequent period. The Company is not subject to any private letter ruling of the Internal Revenue Service or any comparable ruling of any other taxing authority;
(g) No claim has been made by a Taxing authority in a jurisdiction where the Company does not file Tax Returns to the effect that the Company is or may be subject to taxation by that jurisdiction;
(a) For purposes of this Agreement, the term “Company Employee Plans” shall mean and include: all Company Employee Benefit Plans, arrangement or policy applicable to any employee or former employee of the Company and each plan, program, policy, agreement or arrangement (written or oral), providing for compensation, bonuses, profit-sharing, option or other equity related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other employee benefits of any kind, whether funded or unfunded, which is maintained, administered or contributed to by the Company and covers any employee or former employee of the Company, or under which the Company has any Liability contingent or otherwise (including but not limited to each material “employee benefit plan,” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), but excluding any such plan that is a “multiemployer plan,” as defined in Section 3(37) of ERISA). Neither the Company nor any of its Affiliates contributes to, or is required to contribute to, any “multiemployer plan” as defined in Section 3(37) of ERISA. Schedule 4.16(a) sets forth a true, accurate and complete list of all Company Employee Plans.
(b) Each Company Employee Plan has been established and maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations (including but not limited to ERISA and the Code) which are applicable to such Company Employee Plan, except where failure to so comply would not, individually or in the aggregate, have a Material Adverse Effect on the Company.
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(c) Except as set forth on Schedule 4.16(c), (i) no officer or other employee of the Company will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit (including any acceleration of vesting or lapse of repurchase rights or obligations with respect to any Company Employee Plan or other benefit under any compensation plan or arrangement of the Company) solely as a result of the transactions contemplated hereby; and (ii) no payment made or to be made to any current or former employee of the Company or any of its Affiliates by reason of the transactions contemplated hereby (whether alone or in connection with any other event, including, but not limited to, a termination of employment) will constitute an “excess parachute payment” within the meaning of Section 280G of the Code.
(d) The Company is in compliance in all material respects with all applicable federal, state, local and foreign statutes, laws (including, without limitation, common law), judicial decisions, regulations, ordinances, rules, judgments, orders and codes respecting employment, employment practices, labor, terms and conditions of employment and wages and hours, and no work stoppage or labor strike against the Company is pending or threatened, nor is the Company or its Subsidiaries involved in or threatened with any labor dispute, grievance, or litigation relating to labor matters involving any employees, in each case except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company. There are no suits, Actions, disputes, claims (other than routine claims for benefits), investigations or audits pending or, to the Knowledge of the Company, threatened in connection with any Company Employee Plan, but excluding any of the foregoing which would not have a Material Adverse Effect on the Company.
(e) Schedule 4.16(e) sets forth all management, consulting, non-compete and employment agreements of the Company.
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(a) The Company does not own any real property.
(b) Set forth on Schedule 4.20(b) hereto is a list of all leases, subleases, licenses and other agreements (collectively, the “Real Property Leases”) under which the Company uses or occupies or has the right to use or occupy any real property used by the Company (the land, buildings and other improvements covered by the Real Property Leases being herein called the “Leased Real Property”).
(c) The Company has performed in all material respects, or is now performing in all material respects, its obligations under, and is not in default (and would not by the lapse of time or the giving of notice or both be in default) under, or in breach or violation of, nor has it received notice of any asserted claim of a material default by the Company under, or a material breach or violation by the Company of any of the Real Property Leases and, to the Knowledge of the Company, the other party or parties thereto are performing in all material respects and are not in violation thereunder.
4.22 Inventory. Schedule 4.22 sets forth the Company’s inventory as of December 8, 2013.
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ARTICLE
V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERs AND PARENT
Each of the Parent and the Purchasers hereby represent and warrant to the Members and Companies as follows:
5.1 Organization and Good Standing. Each Purchaser is a limited liability company, and the Parent is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware and have the requisite power and authority and all governmental licenses, authorizations, consents and approvals required to own, operate and lease their properties and assets and to conduct their business as it is now being owned, operated, leased and conducted. Each Purchaser and Parent are duly qualified or licensed to do business as a foreign corporation or foreign limited liability companies, as applicable, and are in good standing as a foreign corporation or foreign limited liability company, as applicable, in every jurisdiction in which the failure to be so qualified or licensed or in good standing would have a Material Adverse Effect on a Purchaser’s or Parent’s business or operations or would adversely affect its ability to consummate the transactions provided for or contemplated by this Agreement.
5.2 Corporate Records. Copies of the certificate of incorporation of the Parent and the articles of organization or certificate of formation, as applicable, of the Purchasers, certified by the Secretary of State of the State of Delaware, and of the by-laws of the Parent and the limited liability company agreements of the Purchasers, certified by the Secretary of such company, heretofore delivered to the Companies are true and complete copies of such instruments as amended to the date of this Agreement. Such governing documents of the Parent and Purchasers are in full force and effect. The Parent and Purchasers are not in violation of any provision of their respective governing documents.
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5.8 Parent’s Common Stock and NASDAQ Compliance.
(a) At the time of each issuance of Parent’s Common Stock pursuant to this Agreement, including any issuance pursuant to the exercise of any Warrant, and at the time of issuance of each Warrant, pursuant to this Agreement, Parent Common Stock is not, and will not be, subject to any preemptive rights, rights of first refusal, subscription or similar rights that have not been properly waived. At the time of each issuance of Parent Common Stock pursuant to this Agreement, such Parent Common Stock, including any issuance pursuant to the exercise of any Warrant, and at the time of issuance of each Warrant, pursuant to this Agreement, has been, and will be, duly authorized by all necessary corporate action on the part of Parent, and any Parent Common Stock issued pursuant to the terms of this Agreement will be validly issued, fully paid and non-assessable and free from any Lien.
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(b) Except for issues disclosed in Parent’s SEC filings, Parent is, and since September 30, 2010 has been in compliance with the applicable listing rules and corporate governance rules and regulations of NASDAQ.
(c) Parent is permitted to use Form S-1 to register its shares of common stock.
5.9 Issuance Valid; SEC Filings; Financial Statements.
(a) At the time of each issuance of Parent Common Stock pursuant to this Agreement, such issuance will be exempt from the registration requirements of the Securities Act and all applicable state securities laws, and will have been issued in compliance with all applicable rules and regulations of the NASDAQ Stock Market (or such other securities exchange or quoting service that makes the primary market in shares of Parent Common Stock if it is not then listed on the NASDAQ Stock Market). Upon the effectiveness of a registration statement relating to, or covering, any shares of Parent Common Stock issued to the Members pursuant to this Agreement, such shares of Parent Common Stock and shares underlying the Warrants shall be freely tradable under the Securities Act by the holder thereof without restriction under the Securities Act.
(b) Except for issues disclosed in Parent’s SEC filings, Parent has filed (or, where permitted, furnished) all reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated therein) required to be filed (or furnished) under the Securities Act, the Exchange Act, or the Xxxxxxxx-Xxxxx Act of 2002 (including the rules and regulations thereunder) by Parent or any of its subsidiaries with the SEC since September 30, 2009 (such documents, together with any documents filed during such period by Parent with the SEC on a voluntary basis on Current Reports on Form 8-K, collectively, the “SEC Documents”). Except for issues disclosed in Parent’s SEC filings, as of their respective dates, the SEC Documents, as the same have been amended, supplemented, modified or superseded by subsequent SEC Documents filed prior to the date of this Agreement, complied in all material respects with the requirements of the Securities Act, the Exchange Act, and the Xxxxxxxx-Xxxxx Act of 2002 to the extent applicable to such SEC Documents, and none of the SEC Documents when filed (and, in the case of any registration statement under the Securities Act, at the time it was declared effective), or if amended or superseded by a filing prior to the date of this Agreement, on the date of such subsequent filing, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. No event has occurred as a consequence of which Parent would be required to file a Current Report on Form 8-K pursuant to the requirements of the Exchange Act as to which such a report has not been timely filed with the SEC. The financial statements of Parent contained or incorporated by reference in the SEC Documents have been prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by Form 10-Q and Regulation S-X promulgated by the Securities and Exchange Commission) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Parent and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations, changes in shareholders’ equity, and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end adjustments and the absence of footnotes if applicable) after giving effect to any amendments or supplements thereto filed prior to the date of this Agreement. Except for liabilities and obligations (A) reflected or reserved against in the most recent balance sheet (or described in the notes thereto) of Parent included in the SEC Documents, (B) incurred in connection with this Agreement or the transactions contemplated by this Agreement, (C) incurred since September 30, 2013, in the ordinary course of business, or (D) that have been publicly announced, neither Parent nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that, individually or in the aggregate, have had or would reasonably be expected to have a material adverse effect on the assets, properties, liabilities, financial condition or results of operations of Parent and its subsidiaries taken as a whole.
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(c) Each of the principal executive officer of Parent and the principal financial officer of Parent (or each former principal executive officer of Parent and each former principal financial officer of Parent, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Securities Exchange Act and Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 with respect to the SEC Documents, and the statements contained in such certifications were when made true and accurate. Neither Parent nor any of its subsidiaries has outstanding, or has arranged any outstanding, “extensions of credit” to directors or executive officers within the meaning of Section 402 of the Xxxxxxxx-Xxxxx Act of 2002.
(d) Parent’s “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Securities Exchange Act) are reasonably designed to ensure that all information (both financial and non-financial) required to be disclosed by Parent in the reports that it files or submits under the Securities Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the principal executive officer and principal financial officer of Parent required under the Securities Exchange Act with respect to such reports. Parent and each of its subsidiaries has established and maintains a system of “internal controls over financial reporting” (as defined in Rule 13a-15(f) and Rule 15d-15(f) of the Securities Exchange Act) that, except as set forth in the next sentence, is sufficient to provide reasonable assurance (i) regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, (ii) that receipts and expenditures of Parent and its subsidiaries are being made only in accordance with the authorization of management and Parent’s board of directors, and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Parent’s and its subsidiaries’ assets that could have a material effect on Parent’s financial statements. Parent has disclosed, based on its most recent evaluation of internal controls, to its outside auditors and the audit committee of the board of directors of Parent, which disclosures have been disclosed in the SEC Documents to the extent required by the Securities Exchange Act, (i) any significant deficiencies or material weaknesses (as such terms are defined by the Public Company Accounting Oversight Board) in the design or operation of internal control over financial reporting which would reasonably be expected to adversely affect Parent’s ability to record, process, summarize and report financial information or (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in Parent’s internal control over financial reporting. Since September 30, 2013, any material change in internal control over financial reporting required to be disclosed in any SEC Document has been so disclosed.
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6.1 Each Company covenants and agrees that from the date of this Agreement until the Closing Date, except as otherwise consented to by the Parent in writing:
(a) Conduct of the Company. From the date of this Agreement until the Closing, the Companies shall conduct their businesses in the ordinary course consistent with past practice and shall use its commercially reasonable best efforts to preserve intact its business organization.
Without limiting the generality of the foregoing and, without the prior written consent of the Parent, from the date of this Agreement until the Closing:
(i) The Companies will not adopt or propose any change in its certificate of formation or articles of organization or operating agreement;
(ii) From the date of this Agreement until Closing, the Companies shall conduct their respective businesses in the ordinary course consistent with past practices and shall use their commercially reasonable best efforts to preserve intact their business organizations;
(iii) The Companies will not adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Companies;
(iv) The Companies will not issue or sell any equity of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any equity of any class or series of the Companies;
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(v) The Companies will not (A) split, combine, subdivide or reclassify its outstanding equity, or (B) declare, set aside or pay any distribution payable in cash, equity or property with respect to their equity;
(vi) The Companies will not redeem, purchase or otherwise acquire directly or indirectly any equity of the Companies;
(vii) The Companies will not amend the terms (including the terms relating to accelerating the vesting or lapse of repurchase rights or obligations) of any employee equity options or other equity based awards;
(viii) The Companies will not (A) grant any severance or termination pay to (or amend any such existing arrangement with) any officer or employee of the Companies, (B) enter into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer or employee of the Companies, (C) increase any benefits payable under any existing severance or termination pay policies or employment agreements, (D) increase (or amend the terms of) any compensation, bonus or other benefits payable to officers or employees of the Companies, or (E) permit any officer or employee who is not already a party to an agreement or a participant in a plan providing benefits upon or following a “change in control” to become a party to any such agreement or a participant in any such plan;
(ix) The Companies will not acquire any assets or property of any other Person except in the ordinary course of business consistent with past practice;
(x) The Companies will not sell, lease, license or otherwise dispose of any assets or property except pursuant to existing contracts or commitments or except in the ordinary course of business consistent with past practice;
(xi) The Companies will not enter into any joint venture, partnership or other similar arrangement;
(xii) The Companies will not take any action that would make any representation or warranty of the Companies hereunder inaccurate in any material respect at, or as of any time prior to, the Closing Date;
(xiii) The Companies will not make or change any material Tax election, settle any material audit or file any material amended Tax Returns;
(xiv) The Companies will not incur any indebtedness, other than ordinary trade payables incurred in the ordinary course (it being understood and agreed that the accrual of interest with respect to indebtedness in existence on the date of this Agreement shall not be deemed to be incurrence of indebtedness); and
(xv) The Companies will not agree or commit to do any of the foregoing.
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6.2 The Parent covenants and agrees that from the date of this Agreement until the Closing Date, except as otherwise consented to by the Companies in writing:
(i) The Parent and the Purchasers will not take any action that would make any representation or warranty of the Parent and the Purchasers hereunder inaccurate in any material respect at, or as of any time prior to, the Closing Date;
(ii) The Parent shall promptly seek Nasdaq review of the quotation of all shares of Parent Common Stock to be issued hereunder, if required, and shall promptly respond to any Nasdaq inquiry or request for information relating to such Nasdaq review;
(iii) The Parent will timely file all SEC Documents required to be filed by it;
(iv) The Parent will not take any action that would make any representation or warranty of the Parent hereunder inaccurate in any material respect at, or as of any time prior to, the Closing Date.
(v) Conduct of the Parent. From the date of this Agreement until the Closing, the Parent shall conduct its business in the ordinary course consistent with past practice and shall use its commercially reasonable best efforts to preserve intact its business organization.
Without limiting the generality of the foregoing and, without the prior written consent of the Company, from the date of this Agreement until the Closing:
(1) | The Parent will not adopt or propose any change in its certificate of incorporation or bylaws; |
(2) | The Parent will not adopt a plan or agreement of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization of the Parent; |
(3) | The Parent will not issue or sell any equity of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any equity of any class or series of the Parent, other than as disclosed in Parent’s public securities filings; |
(4) | The Parent will not (A) split, combine, subdivide or reclassify its outstanding equity, or (B) declare, set aside or pay any distribution payable in cash, equity or property with respect to its equity; and |
(5) | The Parent will not redeem, purchase or otherwise acquire directly or indirectly any equity of the Parent. |
(vi) The Parent will not agree or commit to do any of the foregoing.
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ARTICLE
VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASERS AND/OR PARENT
The obligations of the Purchasers and/or Parent to effect the Closing hereunder are subject to the satisfaction, at or prior to the Closing, of all of the following conditions:
7.1 Representations and Warranties True. The representations and warranties contained in Article IV hereof, in the Schedules to this Agreement, and in all certificates delivered by the Companies to the Parent pursuant hereto or in connection with the transactions contemplated hereby shall be true and accurate in all material respects as of the date when made and shall be deemed to be made again at and as of the Closing Date and shall then be true and accurate in all material respects (except for changes contemplated by this Agreement and except for representations and warranties that by their terms speak as of the date of this Agreement or some other date which shall be true and correct only as of such date).
7.2 Performance of Covenants. The Companies shall have performed and complied with each and every covenant, agreement and condition required by this Agreement to be performed or complied with by them prior to or on the Closing Date.
7.3 No Governmental Proceeding. No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, judgment, decree, injunction or other order (whether temporary, preliminary or permanent) that is in effect and prohibits the consummation of the transactions contemplated by this Agreement.
7.4 Certificates. The Companies shall have furnished the Parent with such certificates to evidence compliance with the conditions set forth in this Article VII as may be reasonably requested by Parent.
7.5 Consents. The Companies shall have obtained all consents which, the failure to so obtain would have a Material Adverse Effect.
7.6 No Material Adverse Effect. There shall have been, between the date of this Agreement and the Closing Date, no Material Adverse Effect.
7.7 Delivery of Good Standing Certificates and Resolutions. The Purchaser shall have received certificates of good standing with respect to the Company and its Subsidiaries issued by the jurisdiction of its organization. The Purchaser shall have received copies of the resolutions of each Company and its Subsidiaries approving this Agreement, the Merger and the transactions contemplated herein, certified by an appropriate officer.
7.8 Financial Statements. Each Company shall have provided the Parent with copies of the Annual Financial Statements and the Interim Financial Statements.
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7.9 Officer Resignations. Effective as of the Effective Time, each of the Companies’ officers shall have resigned.
7.10 Certain Notices. From and after the date of this Agreement until the Effective Time, each Company shall promptly notify the Parent of: (a) the occurrence, or non-occurrence of any event that would be likely to cause any condition to the obligations of any party to effect the Mergers or any other transaction contemplated by this Agreement not to be satisfied or (b) the failure of the Companies to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it pursuant to this Agreement which would reasonably be expected to result in any condition to the obligations of any party to effect the Mergers or any other transaction contemplated by this Agreement not to be satisfied; provided, however, that the delivery of any notice pursuant to this Section 7.11 shall not cure any breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
7.11 Public Announcements. Each Company agrees that no public release or announcement concerning the transactions contemplated hereby shall be issued by any party without the prior written consent of the Parent (which consent shall not be unreasonably withheld or delayed), except as such release or announcement may be required by applicable law or the rules or regulations of any applicable United States securities exchange or regulatory or governmental body to which the relevant party is subject, in which case the party required to make the release or announcement shall use its reasonable best efforts to allow each other party reasonable time to comment on such release or announcement in advance of such issuance. Each Company agrees that the press release announcing the execution and delivery of this Agreement shall be a joint release of, and shall not be issued prior to the approval of the Parent.
7.12 Approval of Company Members and Managers. The approval of this Agreement by the Members and Managers of the Companies shall have been obtained and the Companies shall have provided evidence satisfactory to Parent that the Members are all “accredited investors” within the meaning of the Securities Act.
7.13 Shareholder Approval of Parent Shareholders. If required, the approval of this Agreement by the Parent’s shareholders shall have been obtained.
ARTICLE
VIII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANIES
The obligations of the Companies to effect the Closing hereunder are subject to the satisfaction, at or prior to the Closing, of all of the following conditions:
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ARTICLE
IX
TERMINATION, AMENDMENT AND WAIVER
9.1 Termination. This Agreement may be terminated at any time prior to the Closing Date:
(a) by mutual consent of the Parent and the Companies;
(b) by either the Parent or the Companies if there has been a material misrepresentation or material breach on the part of the other parties (i.e., the Seller Parties or the Buyer Parties) in the representations, warranties or covenants set forth in this Agreement which is not cured within ten Business Days after such other party has been notified in writing of the intent to terminate this Agreement pursuant to this clause (b);
(c) by either the Parent or the Companies, if any permanent injunction or action by any court or other Governmental Authority of competent jurisdiction enjoining, denying Approval of or otherwise prohibiting consummation of any of the transactions contemplated by this Agreement shall become final and nonappealable;
(d) by Parent if the Closing has not occurred on or before January 31, 2014, or such later date as the parties may agree upon, unless the Parent or Purchasers are in breach of this Agreement; or
(e) by the Companies if the Closing has not occurred on or before January 31, 2014, or such later date as the parties may agree upon, unless the Members or a Company are in breach of this Agreement.
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10.4 Matters Involving Third Parties.
(a) If any third party shall commence an Action against any Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification under Section 10.1 or 10.2, the Indemnified Party shall notify the Indemnifying Party in writing as soon as practicable.
(b) The Indemnifying Party shall have the right to defend the Indemnified Party against the Third Party Claim with counsel of its choice and reasonably acceptable to the Indemnified Party so long as (i) the Indemnifying Party shall notify the Indemnified Party in writing (within 30 days after its receipt of notice, in accordance with Section 12.5, of the Third Party Claim as provided in Section 10.4 or, if the Indemnifying Party has disputed the claim for indemnification, then within ten days of a final determination that such claim is a valid claim under Section 10.1 or 10.2) that the Indemnified Party will be entitled to indemnification under Section 10.1 or 10.2 hereof from and against any Damages the Indemnified Party may suffer arising out of the Third Party Claim and (ii) the Indemnifying Party diligently conducts the defense of the Third Party Claim. It is agreed that no delay on the part of the Indemnified Party in notifying any Indemnifying Party of a claim (including any Third Party Claim) will relieve the Indemnifying Party thereby unless said Indemnifying Party is prejudiced by such failure to give notice.
(c) So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 10.4(b) above, (i) the Indemnified Party may retain separate co-counsel, at its sole cost and expense, and participate in the defense of the Third Party Claim; provided that, if there is a conflict between the Indemnified Party and the Indemnifying Party with respect to the subject matter of the Third Party Claim, the Indemnified Party may retain separate counsel at the expense of the Indemnifying Party, (ii) the Indemnified Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, (iii) the Indemnified Party shall cooperate within reason with the Indemnifying Party’s defense of such Third Party Claim and (iv) the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed.
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(a) The Members shall have no liability (for indemnification or otherwise) with respect to claims under this Section 10 until the total of all Damages with respect to such matters exceeds fifty thousand dollars ($50,000), and then only for Damages in excess of such amount. Additionally, the Members shall not have any liability for claims under this Section 10, individually or in the aggregate, in excess of $300,000.
(b) Notwithstanding any provision herein, no party hereto shall in any event be liable to any other party hereto or its Affiliates, officers, directors, employees, agents or representatives on account of any indemnity obligation set forth in this Article 10 for any indirect, consequential, special, incidental or punitive damages (including lost profits, loss of use, damage to goodwill or loss of business); provided that such limitation shall not limit recovery with respect to any Third-Party Claim.
(a) If the Closing occurs, the Members will have liability (for indemnification or otherwise) with respect to any breach of a representation or warranty in this Agreement only if on or before the eighteen (18) month anniversary of the Closing Date, Parent notifies the Members of a claim specifying the factual basis of the claim in reasonable detail to the extent then known by Parent.
(b) If the Closing occurs, the Parent will have liability (for indemnification or otherwise) with respect to any breach of a representation or warranty in this Agreement only if on or before the eighteen (18) month anniversary of the Closing Date, the Members notify the Parent of a claim specifying the factual basis of the claim in reasonable detail to the extent then known by the Members.
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The parties hereto agree that:
11.3 Expenses. Each Party shall be responsible for its own expenses incurred in this transaction.
12.2 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware.
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If to the Parent, Purchaser, or Surviving Corporation:
Attention: Xxxxxxx Xxxxxx
00000 Xxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile No.: 704.366.2463
If to the Companies (pre-Closing) or the Members (post-Closing):
HOOTWINC, LLC
Attn: Xxxxx Xxxxxxxxxxx
0000 Xxxxx Xxx
Xxxxxxxxx, XX 00000
Facsimile No.: 760.966.0037
with a copy to (which shall not constitute notice):
Husch Xxxxxxxxx LLP
Attn: Xxxxxx X. Xxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Facsimile No: 816.983.8080
or to such other address as the Person to whom notice is to be given may have specified in a notice duly given to the sender as provided herein. Such notice, request, claim, demand, waiver, consent, approval, or other communication shall be deemed to have been given as of the date personally delivered or telefaxed, five Business Days after deposit with the U.S. Postal Service if mailed, or one Business Day if delivered by overnight mail, and, if given by any other means, shall be deemed given only when actually received by the addressees.
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[Signatures follow on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
PARENT: | |
CHANTICLEER HOLDINGS, INC. |
By: | ||
Print Name: | ||
Title: |
PURCHASERS: | |
CHANTICLEER HOOTERS I, LLC |
By: | ||
Print Name: | ||
Title: |
CHANTICLEER HOOTERS II, LLC |
By: | ||
Print Name: | ||
Title: |
CHANTICLEER HOOTERS III, LLC |
By: | ||
Print Name: | ||
Title: |
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COMPANIES: | ||
TACOMA WINGS, L.L.C. | ||
By: | ||
Print Name: Xxxxx X. Xxxxxxxxxxx | ||
Title: Manager |
OREGON OWL’S NEST, L.L.C. | ||
By: | ||
Print Name: Xxxxx X. Xxxxxxxxxxx | ||
Title: Manager |
XXXXXXX BEACH WINGS, L.L.C. | ||
By: | ||
Print Name: Xxxxx X. Xxxxxxxxxxx | ||
Title: Manager |
MEMBERS: | ||
HOOTERS OF WASHINGTON, L.L.C. | ||
By: | ||
Print Name: Xxxxx X. Xxxxxxxxxxx | ||
Title: Manager |
HOOTERS OF OREGON PARTNERS, L.L.C. | ||
By: | ||
Print Name: Xxxxx X. Xxxxxxxxxxx | ||
Title: Manager |
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