Exhibit 10.1
FUNDING AGREEMENT
BETWEEN
XXXXX CONTAINER CORP.
A NEVADA PUBLIC CORPORATION
AND
CROWN HOSPITALITY GROUP, LLC
AN ILLINOIS LIMITED LIABILITY COMPANY
AGREEMENT entered into this 1st day of July 2011 by and between Xxxxx Container
Corp. ("Xxxxx"), and Crown Hospitality Group, LLC, or nominee ("Crown").
RECITALS
WHEREAS, Xxxxx is seeking funding to build production facilities for its
products, namely, biodegradable plastic bottle pre-forms (the "Product");
WHEREAS, Crown agrees to provide Xxxxx with Four Million Dollars, ($4,000,000)
in funding over the next twelve months;
WHEREAS, in consideration for Crown's commitment, Xxxxx will issue Crown Sixty
Million Four Hundred Fifty-Six Thousand Six Hundred and Sixty-Seven (60,456,667)
shares of its restricted common stock upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF CROWN
Crown hereby represents and warrants to Xxxxx that:
1.1 Commitment. Crown agrees to provide Xxxxx with a total Four Million Dollars,
($4,000,000) in funding in exchange for Sixty Million Four Hundred Fifty-Six
Thousand Six Hundred and Sixty-Seven (60,456,667) shares of Casey's restricted
common stock. Funding will be provided as per the schedule listed in Exhibit A.
1.2 Financial Ability. Crown is a corporation duly organized, validly existing
and in good standing, and has the necessary wherewithall to complete this
Agreement through its legal counsel.
1.3 Authority. Crown has authorized the execution of this Agreement and the
consummation of transactions contemplated herein through its legal counsel.
Crown's legal counsel has full power and authority to execute, deliver, and
perform this Agreement and this Agreement is a legal, valid and binding
obligation of Crown, and is enforceable in accordance with its terms and
conditions.
1.4 Full Disclosure. None of the representations and warranties made by Crown
herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by Crown, or on its behalf, contains or will contain any untrue
statement of material fact, or omit any material fact the omission of which
would be misleading.
1.5 Indemnification. Crown agrees to defend and hold Xxxxx harmless against and
in respect to any and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries, and deficiencies, including interest,
penalties, and reasonable attorney's fees, that it shall incur or suffer, which
arise out of, result from or relate to any breach of, or failure by Crown to
perform any of its respective representations, warranties, covenants and
agreements in this Agreement or in any exhibit or other instrument furnished or
to be furnished by Crown under this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF XXXXX
Xxxxx hereby represents and warrants to Crown that:
2.1 Consideration. In consideration of Crown's funding commitment, Xxxxx hereby
agrees to issue to Crown a total of Sixty Million Four Hundred Fifty-Six
Thousand Six Hundred and Sixty-Seven (60,456,667) shares of its restricted
common stock as per the terms listed in Exhibit A. The shares to be issued
represent Casey's total issued and outstanding as of close of business June
30th, 2011 thus giving Crown 50% of Casey's total issued and outstanding as of
the date of this Agreement. In addition, Crown will be offered first right of
refusal for future funding opportunities during the term of this Agreement.
2.2 Use of Funds. Xxxxx agrees that all funds received from Crown will be
strictly used for the establishment and development of two to four production
facilities within the Continental United States and for the use of
manufacturing, marketing, and selling its products.
2.3 Xxxxx will provide two Board of Director seats to Crown upon 50% of funding.
Xxxxx agrees to maintain a five member Board of Directors consisting of two
Crown appointments, two Xxxxx insiders, and one independent. The independent
Board member will also chair the Audit and Compensation Committees.
2.4 Authority. Xxxxx has authorized the execution of this Agreement and the
consummation of transactions contemplated herein, and Xxxxx has full power and
authority to execute, deliver, and perform this Agreement and this Agreement is
a legal, valid and binding obligation of Xxxxx, and is enforceable in accordance
with its terms and conditions.
2.5 Full Disclosure. None of the representations and warranties made by Xxxxx
herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by either, or on their behalf, contains or will contain any untrue
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statement of material fact, or omit any material fact the omission of which
would be misleading.
2.6 Indemnification. Xxxxx agrees to defend and hold Crown harmless against and
in respect of any and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries, and deficiencies, including interest,
penalties, and reasonable attorney's fees, that it shall incur or suffer, which
arise out of, result from or relate to any breach of, or failure by Xxxxx to
perform any of its representations, warranties, covenants and agreements in this
Agreement or in any exhibit or other instrument furnished or to be furnished by
Xxxxx under this Agreement.
ARTICLE III
REMEDIES
3.1 Legal Action and Costs. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default, or misrepresentation in connection with any of
the provisions of this agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorney's fees and other costs incurred
in that action or proceeding, in addition to any other relief to which it or
they may be entitled.
3.2 Termination. This Agreement may be terminated in writing with the signatures
of both Crown and Xxxxx. Unless so terminated, this Agreement shall remain in
effect until the completion of the funding commitment and each relative Note is
either paid in full, or converted into shares as per the terms of this
Agreement.
3.3 Severability In the event that any one or more provisions herein shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof.
ARTICLE IV
MISCELLANEOUS
4.1 Captions and Headings. The Article and paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no way be deemed
to define, limit, or add to the meaning of any provision of this Agreement.
4.2 No Oral Change. This Agreement and any provisions hereof, may not be waived,
changed, modified or discharged orally, but it can be changed by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or, discharge is sought.
4.3 Non-Waiver. Except as otherwise expressly provided herein, no waiver of any
covenant, condition, or provision of this Agreement shall be deemed to have been
made unless expressly in writing and signed by the party against whom such
waiver is charged.
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4.4 Time of Essence. Time is of the essence of this Agreement and each and every
part hereof.
4.5 Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings and merges any all such prior discussions and/or agreements
herein.
4.6 Choice of Law. This Agreement and its application shall be governed by the
laws of the State of Nevada.
4.7 Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
4.8 Notices. All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on the
date of service if served personally on the party to whom notice is to be given,
by first class mail, registered or certified, postage prepaid, and properly
addressed as follows:
Crown: Xxxxx X Xxxxxxx
Crown Hospitality Group, LLC
000 X. Xxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000
Xxxxx: Xxxxxx X Xxxxx
Xxxxx Container Corp.
0000 X. Xxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
4.9 Binding Effect. This Agreement shall inure to and be binding upon the heirs,
executors, personal representatives successors and assigns of each of the
parties to this Agreement.
4.10 Effect of Closing. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall survive the
Closing of this Agreement.
4.11 Brokers. The parties hereto represent that no finder's fee has been paid or
is payable by any party.
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4.12 Expenses. Each party will pay its own legal, accounting and any other
out-of-pocket expenses reasonably incurred in connection with this transaction,
whether or not the transaction contemplated hereby is consummated.
4.13 Facsimile Signatures as Originals. Original signatures transmitted by
facsimile, or email scan, communication shall constitute originals for the
purpose of validly executing this Agreement.
AGREED TO AND ACCEPTED as of the date first above written.
CROWN HOSPITALITY GROUP, LLC:
By: /s/ Xxxxx X Xxxxxxx Dated: 7/1/11
-------------------------------------- -----------------
Xxxxx X Xxxxxxx, Managing Member
XXXXX CONTAINER CORP:
By: /s/ Xxxxxx X Xxxxx Dated: 7/4/11
-------------------------------------- -----------------
Xxxxxx X Xxxxx, President & C.E.O.
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Exhibit A
As per the Funding Agreement dated July 1, 2011. Both parties agree to the
following schedule. Xxxxx will deliver the following stock certificates within
seven business days following funding. Crown will provide funding no later then
the following dates.
* July 2011 -
* Funding - $400,000
* Shares to be issued - 6,045,667
* September 2011 -
* Funding - $1,000,000
* Shares to be issued - 15,114,167
* December 2011 -
* Funding - $1,000,000
* Shares to be issued - 15,114,167
* March 2012 - June 2012
* Funding - $1,600,000
* Shares to be issued - 24,182,666
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