STOCK PURCHASE AGREEMENT
EXHIBIT 99.1
This Stock Purchase Agreement (this “Agreement”), dated June 2, 2022 is entered into by XXXXXX “XXXXXXX” XXXXXX, MAINTOU BLUE LLC, XXXXXX X. XXXXXX CUSTODIAN FOR XXXXXXX XXXXXX UGMA MI, XXXXXX X. XXXXXX CUSTODIAN FOR XXXX-XXXX XXXXXX UGMA MI, and XXXXXX X. XXXXXX CUSTODIAN FOR XXXXX XXXXXX UGMA MI on the one hand (each a “Seller” and together the “Sellers”), and BT BRANDS, INC., a Wyoming corporation, on the other hand (“Buyer”).
RECITALS
WHEREAS, Sellers own an aggregate of 11,095,085 shares (the “Common Shares”) of common stock (the “Common Stock”), in the amounts set forth opposite their respective names on Schedule I representing approximately 41.4% of the outstanding shares of the class of Common Stock, and 4,882,304 shares of Series A Preferred Stock (“Preferred Shares”), representing 100% of the outstanding shares of the class of preferred stock, of Bagger Dave’s Burger Tavern, Inc., a Nevada corporation (the “Company”);
WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, the Common Shares, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Section 1.01 Purchase and Sale. Subject to the terms and conditions set forth herein, at the Closing, Seller shall sell to Buyer, and Buyer shall purchase from Seller, the Common Shares, free and clear of any mortgage, pledge, lien, charge, security interest, claim, community property interest, option, equitable interest, restriction of any kind (including any restriction on use, voting, transfer, receipt of income, or exercise of any other ownership attribute), or other encumbrance (each, an “Encumbrance”).
Section 1.02 Purchase Price. The aggregate purchase price for the Common Shares shall be $1,260,000 (the “Purchase Price”). Buyer shall pay the Purchase Price to Seller at the Closing in cash by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth in Section 1.02 of the Disclosure Schedules. The term “Disclosure Schedules” means the disclosure schedules, attached hereto and made a part hereof, delivered by Seller concurrently with the execution, closing, and delivery of this Agreement.
ARTICLE II
Section 2.01 Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place simultaneously with the execution of this Agreement on the date of this Agreement (the “Closing Date”) remotely by exchange of documents and signatures (or their electronic counterparts). The consummation of the transactions contemplated by this Agreement shall be deemed to occur at 12:01 a.m. Central Time on the Closing Date.
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Section 2.02 Seller Closing Deliverables. At the Closing, Seller shall deliver to Buyer the following:
(a) Stock powers medallion guaranteed with respect to the Common Shares.
(b) Resignations of the directors and officers of the Company, whose names and titles are set forth on Schedule II hereto, effective as of the Closing Date.
(c) Letter from Xx. Xxxxxx to the board of directors of the Company instructing the Company to cancel the Preferred Shares effective as of the Closing, along with the certificates evidencing the Preferred Shares duly endorsed in blank and medallion guaranteed.
(d) All accounting records and work sheets, minute books and share record and transfer books of the Company.
Section 2.03 Buyer’s Deliveries. At the Closing, Buyer shall deliver the Purchase Price to Seller by wire transfer of immediately available funds to an account designated by Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer personally in his capacity as the Chief Executive Officer of the Company and that the statements contained in this ARTICLE III are true and correct as of the date hereof. For purposes of this ARTICLE III, “Seller’s knowledge,” “knowledge of Seller,” and any similar phrases shall mean the actual or constructive knowledge of Seller, after due inquiry.
Section 3.01 Authority of Seller. Seller has all requisite authority and power and full legal capacity to enter into this Agreement and to consummate the transactions contemplated by this Agreement and to perform his obligations under this Agreement. The execution, delivery and performance by Seller of this Agreement and have been duly authorized by all necessary action and do not require the consent of the Board of Directors of the Company or the shareholders of the Company any consent or approval that has not been validly and lawfully obtained. The execution, delivery and performance by Seller of this Agreement requires no authorization, consent, approval, license, exemption of or filing or registration with any Governmental Authority or other Person (as defined in Section 3.03). This Agreement constitutes the legal, valid and binding obligation of Seller, enforceable against him in accordance with its terms. The term “Governmental Authority” means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any arbitrator, court, or tribunal of competent jurisdiction.
Section 3.02 Organization and Qualification of the Company. The Company is a corporation duly organized, validly existing, and in good standing under the Laws of the state of Nevada and has full corporate power and authority to own, operate, or lease the properties and assets now owned, operated, or leased by it and to carry on its business as it has been and is currently conducted. The Company is duly qualified to conduct business and is in good standing as a foreign corporation in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and no Action has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. The Company’s articles of incorporation and other constitutive or organizational documents of the Company comply with the requirements of applicable Nevada law and are in full force and effect.
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Section 3.03 Capitalization.
(a) The authorized shares of the Company consist of 100,000,000 shares of Common Stock, of which 26,909,635 shares are issued and outstanding, and 10,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”), of which 4,882,304 shares are outstanding as of the date of this Agreement. All of the outstanding shares of Common Stock and Preferred Stock have been duly authorized, are validly issued, fully paid and nonassessable.
(c) Except as set out in Section 3.03(c) of the Disclosure Schedules, there are no outstanding or authorized options, warrants, convertible securities, stock appreciation, phantom stock, profit participation, or other rights, agreements, or commitments relating to the shares of the Company or obligating Seller or the Company to issue or sell any shares of, or any other interest in, the Company. There are no voting trusts, stockholder agreements, proxies, or other agreements in effect with respect to the voting or transfer of any of the Shares.
(d) The Shares are owned of record and beneficially by Seller, free and clear of all Encumbrances.
(e) Seller owns, of record and beneficially, and has good, valid and indefeasible title to and the right to transfer to Buyer pursuant to this Agreement, the Shares free and clear of any and all Encumbrances. There are no options, rights, voting trusts, shareholder agreements or any other contracts or understandings to which Seller is a party or by which the Seller or the Shares are bound. Upon the transfer, assignment, and delivery of the Shares and payment therefor in accordance with the terms of this Agreement, Buyer shall own all of the Shares, free and clear of all Encumbrances
Section 3.04 No Subsidiaries. The Company does not have, or have the right to acquire, an ownership interest in any other Person.
Section 3.05 No Conflicts or Consents. The execution, delivery, and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby, do not and will not: (a) violate or conflict with any provision of the articles of incorporation, by-laws, or other governing documents of the Company; (b) violate or conflict with any provision of any statute, law, ordinance, regulation, rule, code, treaty, or other requirement of any Governmental Authority (collectively, “Law”) or any order, writ, judgment, injunction, decree, determination, penalty, or award entered by or with any Governmental Authority (“Governmental Order”) applicable to Seller or the Company; (c) require the consent, notice, or filing with or other action by any Person or require any Permit (as defined in Section 3.15), license, or Governmental Order; (d) violate or conflict with, result in the acceleration of, or create in any party the right to accelerate, terminate, or modify any contract, lease, deed, mortgage, license, instrument, note, indenture, joint venture, or any other agreement, commitment, or legally binding arrangement, whether written or oral (collectively, “Contracts”), to which Seller or the Company is a party or by which Seller or the Company is bound or to which any of their respective properties and assets are subject; or (e) result in the creation or imposition of any Encumbrance on any properties or assets of the Company.
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Section 3.06 Financial Statements. Complete copies of the Company’s unaudited financial statements consisting of the balance sheet of the Company as at December 26, 2021 and December 27, 2020 and the related statements of income and retained earnings, stockholders’ equity, and cash flow for the years then ended (the “Financial Statements”) have been delivered to Buyer. The Financial Statements have been prepared in accordance with generally accepted accounting principles in effect in the United States from time to time (“GAAP”), applied on a consistent basis throughout the periods involved. The Financial Statements are based on the books and records of the Company and fairly present in all material respects the financial condition of the Company as of the respective dates they were prepared and the results of the operations of the Company for the periods indicated. The balance sheet of the Company as of December 26, 2021 is referred to herein as the “Balance Sheet” and the date thereof as the “Balance Sheet Date”. The Company maintains a standard system of accounting established and administered in accordance with GAAP.
Section 3.07 Undisclosed Liabilities. The Company has no liabilities, obligations, or commitments of any nature whatsoever, whether asserted, known, absolute, accrued, matured, or otherwise (collectively, “Liabilities”), except: (a) those which are adequately reflected or reserved against in the Balance Sheet as of the Balance Sheet Date; and (b) those which have been incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date and which are not, individually or in the aggregate, material in amount.
Section 3.08 Absence of Certain Changes, Events, and Conditions. Since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any change, event, condition, or development that is, or could reasonably be expected to be, individually or in the aggregate, materially adverse to the business, results of operations, condition (financial or otherwise), or assets of the Company.
Section 3.09 Material Contracts. The Contracts between the Company and each of Xxxxxx Food Service Company and Toast Capital LLC, current and complete copies of which previously have been provided to Buyer, are the only Contracts that are material to the Company (such Contracts, together with all Contracts concerning the occupancy, management, or operation of any Real Property (as defined in Section 3.10(a)), being “Material Contracts”). Each Material Contract is valid and binding on the Company in accordance with its terms and is in full force and effect. None of the Company or, to Seller’s knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) in any material respect, or has provided or received any notice of any intention to terminate, any Material Contract.
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Section 3.10 Real Property; Title to Assets.
(b) The Company has a valid leasehold interest in all Real Property and has good and valid title to all personal property and other assets reflected in the Financial Statements or acquired after the Balance Sheet Date (other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practice since the Balance Sheet Date). All such personal property and other assets (including leasehold interests) are free and clear of Encumbrances except for those items set forth in Section 3.10(b) of the Disclosure Schedules.
Section 3.11 Intellectual Property. The Company owns or has the valid and enforceable right to use all Intellectual Property used in or necessary for the conduct of the Company’s business as currently conducted. The conduct of the Company’s business as currently and formerly conducted has not infringed, misappropriated, or otherwise violated the intellectual property or other rights of any Person. No Person has infringed, misappropriated, or otherwise violated any intellectual property.
Section 3.12 Insurance. The Company maintains insurance policies relating to the assets, business, operations and employees of the Company (collectively, the “Insurance Policies”). Such Insurance Policies: (a) are in full force and effect; (b) are valid and binding in accordance with their terms; (c) are provided by carriers who are financially solvent; and (d) have not been subject to any lapse in coverage. Neither the Company nor any of its Affiliates has received any written notice of cancellation of, premium increase with respect to, or alteration of coverage under, any of such Insurance Policies. All premiums due on such Insurance Policies have been paid. The Company is not in default under, or has otherwise failed to comply with, in any material respect, any provision contained in any Insurance Policy. The Insurance Policies are of the type and in the amounts customarily carried by Persons conducting a business similar to the Company and are sufficient for compliance with all applicable Laws and Contracts to which the Company is a party or by which it is bound.
Section 3.13 Legal Proceedings; Governmental Orders.
(a) There are no claims, actions, causes of action, demands, lawsuits, arbitrations, inquiries, audits, notices of violation, proceedings, litigation, citations, summons, subpoenas, or investigations of any nature, whether at law or in equity (collectively, “Actions”) pending or, to Seller’s knowledge, threatened against or by the Company, Seller, or any Affiliate of Seller: (i) relating to or affecting the Company or any of the Company’s properties or assets; or (ii) that challenge or seek to prevent, enjoin, or otherwise delay the transactions contemplated by this Agreement. No event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action. For purposes of this Agreement: (x) “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person; and (y) the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or other ownership interests, by contract, or otherwise.
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Section 3.14 Compliance with Laws; Permits.
Section 3.15 Environmental Matters.
Section 3.16 Employee Benefit Matters. The Company does not now maintain an “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (as amended, and including the regulations thereunder, “ERISA”), whether or not written and whether or not subject to ERISA.
Section 3.17 Employment Matters.
(a) Sellers previously have provided Buyer with a current and complete list of: (i) all employees, independent contractors, and consultants of the Company; and (ii) for each individual described in clause (i), (A) the individual’s title or position, hire date, and compensation, (B) any Contracts entered into between the Company and such individual, and (C) the fringe benefits provided to each such individual. All compensation payable to all employees, independent contractors, or consultants of the Company for services performed on or prior to the Closing Date have been paid in full.
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Section 3.18 Taxes.
(d) Seller is not a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2.
Section 3.19 Books and Records. The minute books and share record and transfer books of the Company, all of which are in the possession of the Company and have been made available to Buyer, are complete and correct.
Section 3.20 Brokers. No broker, finder, or investment banker is entitled to any brokerage, finder’s, or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Seller.
Section 3.21 Full Disclosure. No representation or warranty by Seller in this Agreement and no statement contained in the Disclosure Schedules to this Agreement or any certificate or other document furnished or to be furnished to Buyer pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Section 4.01 Organization and Authority of Buyer. Buyer is a corporation duly organized, validly existing, and in good standing under the Laws of the state of Wyoming. Buyer has full corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby. The execution and delivery by Buyer of this Agreement, the performance by Buyer of its obligations hereunder and thereunder, and the consummation by Buyer of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Buyer. This Agreement and each Transaction Document constitute legal, valid, and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms.
Section 4.02 No Conflicts; Consents. The execution, delivery, and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby, do not and will not: (a) violate or conflict with any provision of the certificate of incorporation, by-laws, or other governing documents of Buyer; (b) violate or conflict with any provision of any Law or Governmental Order applicable to Buyer; or (c) require the consent, notice, declaration, or filing with or other action by any Person or require any Permit, license, or Governmental Order.
Section 4.03 Investment Purpose. Buyer is acquiring the Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof or any other security related thereto within the meaning of the Securities Act of 1933, as amended (the “Securities Act”). Buyer acknowledges that Seller has not registered the offer and sale of the Shares under the Securities Act or any state securities laws, and that the Shares may not be pledged, transferred, sold, offered for sale, hypothecated, or otherwise disposed of except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable.
Section 4.04 Brokers. No broker, finder, or investment banker is entitled to any brokerage, finder’s, or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Buyer.
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ARTICLE V
Section 5.01 Confidentiality. From and after the Closing, Seller shall, and shall cause its Affiliates and its and their respective directors, officers, employees, consultants, counsel, accountants, and other agents (collectively, “Representatives”) to, hold in confidence any and all information, in any form, concerning the Company, except to the extent that Seller can show that such information: (a) is generally available to and known by the public through no fault of Seller, any of its Affiliates, or their respective Representatives; or (b) is lawfully acquired by Seller, any of its Affiliates, or their respective Representatives from and after the Closing from sources which are not prohibited from disclosing such information by any obligation. If Seller or any of its Affiliates or their respective Representatives are compelled to disclose any information by Governmental Order or Law, Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information which is legally required to be disclosed; provided, however, Seller shall use reasonable best efforts to obtain as promptly as possible an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.
Section 5.02 Non-Competition; Non-Solicitation.
(b) Except as provided in the last sentence of this subsection (b), during the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any current or former employee of the Company or encourage any employee to leave the Company’s employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, however, nothing in this Section 5.02(b) shall prevent Seller or any of its Affiliates from hiring: (i) any employee terminated by the Company; or (ii) after one hundred eighty (180) days from the date of resignation, any employee that has resigned from the Company. Seller acknowledges and agrees that Xxxxx Xxxx, a current employee of the Company, may resign from the Company upon the Closing Date and accept employment with Xx. Xxxxxx but that she will otherwise be bound by the terms of this Section 5.02.
(c) Seller acknowledges that a breach or threatened breach of this Section 5.02 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, or specific performance (without any requirement to post bond).
(d) Seller acknowledges that the restrictions contained in this Section 5.02 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.02 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction or any Governmental Order, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law or such Governmental Order. The covenants contained in this Section 5.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
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Section 5.03 Health Insurance. Buyer shall pay the health insurance of Xx. Xxxxxx for a period of twelve months after the Closing Date by remitting to him a check in the amount necessary to cover his current health insurance at least five days prior to the end of each month.
Section 5.04 Consulting Services. Xx. Xxxxxx agrees to provide to the Buyer without charge, at Buyer’s reasonable request, up to 15 hours of consulting services in each month for the twelve months after the Closing Date.
Section 5.05 Further Assurances. Following the Closing, each of the parties hereto shall, and shall cause their respective Affiliates to, execute and deliver such additional documents and instruments and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.
ARTICLE VI
Section 6.01 Indemnification by Seller. Subject to the other terms and conditions of this ARTICLE VI, Seller shall indemnify and defend each of Buyer and its Affiliates (including the Company) and their respective Representatives (collectively, the “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to, or by reason of:
Section 6.02 Indemnification by Buyer. Subject to the other terms and conditions of this ARTICLE VI, Buyer shall indemnify and defend each of Seller and its Affiliates and their respective Representatives (collectively, the “Seller Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Seller Indemnitees based upon, arising out of, with respect to, or by reason of:
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Section 6.03 Indemnification Procedures. Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification (the “Indemnified Party”) shall promptly provide written notice of such claim to the other party (the “Indemnifying Party”). In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any Action by a Person who is not a party to this Agreement, the Indemnifying Party, at its sole cost and expense and upon written notice to the Indemnified Party, may assume the defense of any such Action with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall be entitled to participate in the defense of any such Action, with its counsel and at its own cost and expense. If the Indemnifying Party does not assume the defense of any such Action, the Indemnified Party may, but shall not be obligated to, defend against such Action in such manner as it may deem appropriate, including settling such Action, after giving notice of it to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate and no action taken by the Indemnified Party in accordance with such defense and settlement shall relieve the Indemnifying Party of its indemnification obligations herein provided with respect to any damages resulting therefrom. The Indemnifying Party shall not settle any Action without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed).
Section 6.04 Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein and all related rights to indemnification shall survive the Closing and shall remain in full force and effect until the date that is one year from the Closing Date.
Section 6.05 Cumulative Remedies. The rights and remedies provided for in this ARTICLE VI are cumulative and are in addition to and not in substitution for any other rights and remedies available at Law or in equity or otherwise.
ARTICLE VII
Section 7.01 Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.
Section 7.02 Notices. All notices, claims, demands, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid, if sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 7.02):
| If to Seller: | XX Xxx 000 Xxxxxx, XX 00000 Email: xxxxxxxx@xxxxxxx.xxx |
| If to Buyer: | 000 Xxxx Xxxx Xxxxxx, Xxxxx 0X Xxxx Xxxxx, XX 00000 Email: xxxxxxxx@xxxxxxxxxxxxx.xxx Attention: Xxxxxxx Xxxxxxx, Chief Financial Officer |
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Section 7.03 Interpretation; Headings. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Section 7.04 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement.
Section 7.05 Entire Agreement. This Agreement and exhibits, schedules and the Disclosure Schedules constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
Section 7.06 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder.
Section 7.07 Amendment and Modification; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any right or remedy arising from this Agreement shall operate or be construed as a waiver thereof. No single or partial exercise of any right or remedy hereunder shall preclude any other or further exercise thereof or the exercise of any other right or remedy.
Section 7.08 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
(a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Wyoming without giving effect to any choice or conflict of law provision or rule (whether of the State of Wyoming or any other jurisdiction). Any legal suit, action, proceeding, or dispute arising out of or related to this Agreement or the transactions contemplated hereby shall may be instituted exclusively in the federal or state courts (and of the appropriate appellate courts therefrom) located in the city of Cheyenne, county of Laramie, state of Wyoming and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, proceeding, or dispute.
Section 7.09 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission (including signature via DocuSign or similar services) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| SELLERS: | BUYER: |
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| XXXXXX XXXXXXX XXXXXX | |
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| /s/ Xxxxxx Xxxxxxx Xxxxxx | By:/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx Chief Financial Officer |
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| MANITOU BLUE LLC |
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| /s/ Xxxxxx Xxxxxxx Xxxxxx
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| Xxxxxx Xxxxxxx Xxxxxx Manager
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| XXXXXX X. XXXXXX CUSTODIAN XXXXXXX XXXXXX UGMA MI |
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| /s/ Xxxxxx Xxxxxxx Xxxxxx |
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| XXXXXX X. XXXXXX CUSTODIAN XXXX-XXXX XXXXXX UGMA MI |
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| /s/ Xxxxxx Xxxxxxx Xxxxxx |
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| XXXXXX X. XXXXXX CUSTODIAN XXXXX XXXXXX UGMA MI
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| /s/ Xxxxxx Xxxxxxx Xxxxxx |
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DEFINITIONS CROSS-REFERENCE TABLE
The following terms have the meanings set forth in the location in this Agreement referenced below:
| Term |
| Section |
| Actions |
| Section 3.14(a) |
| Affiliate |
| Section 3.13 |
| Agreement |
| Preamble |
| Balance Sheet |
| Section 3.06 |
| Balance Sheet Date |
| Section 3.06 |
| Buyer |
| Preamble |
| Buyer Indemnitees |
| Section 6.01 |
| Closing |
| Section 2.01 |
| Closing Date |
| Section 2.01 |
| Company |
| Recitals |
| Contracts |
| Section 3.05 |
| Disclosure Schedules |
| Section 1.02 |
| Encumbrance |
| Section 1.01 |
| Environmental Laws |
| Section 3.16(a) |
| ERISA |
| Section 3.17(a) |
| Financial Statements |
| Section 3.06 |
| GAAP |
| Section 3.06 |
| Governmental Authority |
| Section 2.02(d) |
| Governmental Order |
| Section 3.05 |
| Hazardous Substances |
| Section 3.16(a) |
| Indemnified Party |
| Section 6.03 |
| Indemnifying Party |
| Section 6.03 |
| Insurance Policies |
| Section 3.13 |
| Law |
| Section 3.05 |
| Liabilities |
| Section 3.07 |
| Losses |
| Section 6.04 |
| Material Contracts |
| Section 3.09(a) |
| Permits |
| Section 3.15(b) |
| Person |
| Section 3.03(b) |
| Purchase Price |
| Section 1.02 |
| Real Property |
| Section 3.10(a) |
| Representatives |
| Section 5.01 |
| Restricted Business |
| Section 5.02(a) |
| Restricted Period |
| Section 5.02(a) |
| Securities Act |
| Section 4.03 |
| Seller |
| Preamble |
| Seller Indemnitees |
| Section 6.02 |
| Shares |
| Recitals |
| Tax Returns |
| Section 3.19(a) |
| Territory |
| Section 5.02(a) |
| 14 |
