Membership Interest Purchase Agreement by and among Axolotl Biologix, LLC, a Delaware limited liability company and Carmell Corporation, A Delaware corporation and Burns Ventures, LLC, a Texas limited liability company and a Texas individual and AXO...
Exhibit 10.1
Membership Interest Purchase Agreement
by and among
Axolotl Biologix, LLC,
a Delaware limited liability company and
Carmell Corporation,
A Delaware corporation and
Xxxxx Ventures, LLC,
a Texas limited liability company and
H. Xxxxxx Xxxxx,
a Texas individual and
AXO XP, LLC,
An Arizona limited liability company and
Protein Genomics, Inc.
a Delaware corporation
dated as of
March 20 , 2024
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”) is made and entered into on this March 20 , 2024, by and among Axolotl Biologix, LLC, a Delaware limited liability company, (the “Company”), Carmell Corporation, Inc., a Delaware corporation (“Seller”), Xxxxx Ventures, LLC, a Texas limited liability company (“BVLLC”), H. Xxxxxx Xxxxx, an individual resident of Texas (“Xxxxx”), AXO XP, LLC, an Arizona limited liability company (“AXPLLC”), and Protein Genomics, LLC, a Delaware corporation (“PGEN” and together with BVLLC, Xxxxx, and AXPLLC, referred to herein individually as the (“Buyer”) and collectively as the (“Buyers”). Each of Seller and Xxxxxx referred to as Party and, together, as Parties.
RECITALS
WHEREAS, the Company was the subject of that certain Agreement and Plan of Merger dated July 26, 2023, and as amended, by and among Seller (formerly known as Carmell Therapeutics Corporation), Aztec Merger Sub, Inc., and Company (formerly known as Axolotl Biologix, Inc.) (the “Merger Agreement”);
WHEREAS, Seller owns one hundred percent (100%) of the issued and outstanding Equity Interests of the Company.
WHEREAS, the Buyers desire to purchase or otherwise acquire from Sellers, and the Sellers desire to sell or otherwise convey to the Buyers, all of the Company’s issued and outstanding Equity Interests, on the terms and subject to the conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the premises, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto (intending to be legally bound) hereby agree as follows:
ARTICLE I DEFINITIONS AND INTERPRETATION
SECTION 1.01. DEFINITIONS
As used in this Agreement, the following initially capitalized terms shall have the meanings given to such terms in this Section 1.01 below:
“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.
“Agreement” shall have the meaning ascribed in the Preamble herein. “AXPLLC” shall have the meaning ascribed in the Preamble herein.
“Benefit Plans” means each and every Multiemployer Plan, pension, benefit, retirement, profit-sharing, deferred compensation, welfare, fringe-benefit, excess benefit, profit sharing, bonus, incentive, stock purchase, stock ownership, stock option, stock appreciation right, employment, severance, salary continuation, termination, change-of-control, health, life, disability, group insurance, or vacation agreement, plan, policy, program, contract or arrangement, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, which is maintained, sponsored, contributed to, or required to be contributed to by the Company for the benefit of any current or former employee, director, officer or independent contractor of the Company or any spouse or dependent of such individual or under which the Company has any liability.
“Xxxxx” shall have the meaning ascribed in the Preamble herein.
“Xxxxx Notes” means those certain Promissory Notes by and between Axolotl Biologix, Inc., as Maker and BVLLC as Payee as follows and as modified by that certain Promissory Note Modification Agreement by and between Company and BVLLC dated October 18, 2021 with maturity on December 31, 2024, 7% applicable interest, and quarterly interest payments:
|
Date of Note |
Principal Amount of Note |
1 |
04/11/2019 |
$660,000 |
2 |
09/11/2019 |
$500,000 |
3 |
12/15/2019 |
$500,000 |
4 |
02/25/2020 |
$500,000 |
5 |
04/13/2020 |
$500,000 |
6 |
08/10/2020 |
$500,000 |
7 |
10/27/2020 |
$250,000 |
8 |
12/09/2020 |
$100,000 |
9 |
12/15/2020 |
$500,000 |
10 |
01/18/2021 |
$600,000 |
11 |
02/24/2021 |
$500,000 |
12 |
03/31/2021 |
$500,000 |
13 |
05/26/2021 |
$300,000 |
14 |
06/17/2021 |
$300,000 |
“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in Phoenix, Arizona, are authorized or required by Law to be closed for business.
“Buyer Indemnified Persons” means, collectively, the Buyer, its Affiliates, and each of their respective officers, directors, employees, shareholders, agents, successors and permitted assigns (including, after the Closing, the Company); and each of them individually is a “Buyer Indemnified Person”. Each Buyer Indemnified Person not a party hereto is hereby expressly made and designated as a third-party beneficiary of this Agreement and shall have the right, power, and authority to enforce the rights granted to him, her or it hereunder as though he, she or it were a party hereto.
“Buyers” shall have the meaning ascribed in the Preamble herein.
“Buyers Counsel” shall have the meaning ascribed in Section 13.06 herein. “BVLLC” shall have the meaning ascribed in the Preamble herein.
“Closing” means the consummation of the transactions contemplated by this Agreement. “Closing Cash Balance” shall have the meaning ascribed in Section 2.03(d)herein. “Closing Date” means the date on which the Closing actually occurs.
“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the regulations and other guidance promulgated thereunder.
“Code” means the Internal Revenue Code of 1986, as amended. “Company” shall have the meaning ascribed in the Preamble herein.
“Control” (including “Controlling”, “Controlled” or “under common Control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Copyrights” has the meaning set forth in the definition of Intellectual Property Rights. “Domain Names” shall have the meaning ascribed in Section 5.23(e) herein.
“Effective Time” shall have the meaning ascribed in Section 3.01(b) herein.
“Environment” means all soil, land surface or subsurface strata, surface waters, ground waters, drinking water supplies, streams, sediments, ambient air (including indoor air), plant and animal life and any other environmental medium or natural resource.
“Environmental Laws” means all Laws concerning pollution or protection of the Environment, including all Laws relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, Release, threatened Release, control or cleanup of any Hazardous Materials.
“Environmental Permit” means any Permit, letter, clearance, consent, waiver, closure, exemption, decision or other action required under or issued, granted, given, authorized by or made pursuant to Environmental Law.
"Equity Interests” shall mean any membership interest, equity ownership, or other record of ownership interest on the books or records of the Company, or any security issued with respect to an ownership interest in the Company.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended. “Fundamental Claim Losses” means all Losses attributable to Fundamental Claims.
“Fundamental Claims” means all claims made by the Buyer Indemnified Persons pursuant to: (a) Section 10.01(a); (b) Section 10.01(b)(i) for the breach of a Fundamental Representation and Warranty; and (c) Section 10.01(b)(iii).
“Fundamental Representations and Warranties” means, collectively, the representations and warranties: (a) made by Sellers inArticle IV; and (b) made by the Company in Section 5.01(a), Section 5.02, Section 5.03, Section 5.05, and Section 5.28; and each such representation and warranty individually is a “Fundamental Representation and Warranty”.
“GAAP” means Generally Accepted Accounting Principles for financial reporting in the United States of America, including those required by the Public Company Accounting Oversight Board as applicable to publicly traded companies.
“Governing Documents” means, with respect to any particular entity: (a) if a corporation, the articles or certificate of incorporation and the bylaws of such entity; (b) if a general partnership, the partnership agreement and any statement of partnership of such entity; (c) if a limited partnership or limited liability partnership, the limited partnership agreement or limited liability partnership agreement and the certificate of limited partnership or limited liability partnership of such entity; (d) if a limited liability company, the articles or certificate of organization or formation and the operating agreement or limited liability company agreement of such entity; (e) if another type of Person, any other charter or similar document adopted or filed in connection with the creation, formation or organization of the Person; (f) all equity holders’ agreements, voting agreements, voting trust agreements, joint venture agreements, registration rights agreements, subscription agreements, restricted share grant agreements, share purchase agreements, share grant plans, or other agreements, plans or documents relating to the organization, management or operation of such entity or relating to the rights, duties and obligations of the equity holders of such entity with respect thereto; and (g) any amendment, modification or supplement to any of the foregoing.
“Governmental Authority” means any: (a) international, multinational, federal, national, state, local, municipal, foreign or other government or political subdivision thereof; (b) governmental authority of such government or political subdivision (including any agency, branch, department, board, commission or other similar governmental entity exercising governmental powers), to extent that the rules, regulations or orders of such authority or governmental entity have the force of Law; (c) entity, authority, agency, ministry, or other similar body exercising executive, legislative, judicial, regulatory or administrative authority or functions of or pertaining to government, including any authority or other quasi-governmental entity established to perform any of such functions; or (d) court or tribunal of competent jurisdiction.
“Hazardous Activity” means any distribution, generation, handling, importing, management, manufacturing, processing, production, refinement, Release, threatened Release, storage, transfer, disposal, transportation, treatment or use of any Hazardous Material.
“Hazardous Material” means any substance, material or waste which is currently regulated by any Governmental Authority, including any material, substance or waste defined or regulated as a “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” “restricted hazardous waste,” “contaminant,” “toxic waste” or “toxic substance” under any provision of Environmental Law, including petroleum, petroleum products, asbestos, asbestos-containing material, lead paint, formaldehyde and polychlorinated biphenyls.
“HSR Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the rules and regulations promulgated thereunder.
“Income Taxes” means, with respect to any Person, any Taxes of such Person calculated based on the gross or net income or gross or net receipts of such Person.
“Indebtedness” means, as of any date of determination and with respect to any Person, without duplication, all: (a) of such Person’s (i) liabilities for borrowed money, (ii) liabilities evidenced by a bond, note, debenture or similar instrument (including a purchase money obligation, deed of trust or mortgage), (iii)
liabilities for or on account of the deferred purchase price of property (excluding trade payables incurred in the ordinary course of business), (iv) liabilities secured by a Lien against any asset of such Person, (v) liabilities in respect of unfunded vested benefits under any Benefit Plan, (vi) liabilities in respect of drawn letters of credit and “swaps” of interest and currency exchange rates (and other interest and currency rate hedging agreements),
(vii) liabilities for the payment of money as a lessee under leases that should be, in accordance with GAAP, recorded as capital leases for financial reporting purposes, and (viii) liabilities in respect of any interest, premiums, penalties, fees or other charges in respect of any indebtedness described in the foregoing clauses (i) through (vii); and (b) any liabilities or obligations described in clause (a) above guaranteed as to payment of principal or interest by such Person.
“Indemnified Person” means any Person entitled to indemnification under this Agreement. “Indemnifying Person” means any Person required to indemnify another Person under this Agreement.
“Insurance Policies” shall have the meaning ascribed in Section 5.24 herein.
“Intellectual Property Rights” means all intellectual property rights and related priority rights protected, created or arising under the Laws of the United States or any other jurisdiction or under any international convention, including all (a) patents and patent applications, industrial designs and design patent rights, including any continuations, divisionals, continuations-in-part and provisional applications and statutory invention registrations, and any patents issuing on any of the foregoing and any reissues, reexaminations, substitutes, supplementary protection certificates, extensions of any of the foregoing (collectively, “Patents”);
(b) trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, Internet domain names, corporate names and other source or business identifiers, together with the goodwill associated with any of the foregoing, and all applications, registrations, extensions and renewals of any of the foregoing (collectively, “Marks”); (c) copyrights and rights in works of authorship, design rights, mask work rights and moral rights, whether or not registered or published, and all registrations, applications, renewals, extensions and reversions of any of any of the foregoing (collectively, “Copyrights”); (d) trade secrets, know-how and confidential and proprietary information, including invention disclosures, inventions and formulae, whether patentable or not; (e) rights in or to Software or other technology; (f) rights in databases and compilations, including rights in data and collections of data, whether machine readable or otherwise; and (g) any other intellectual or proprietary rights protectable, arising under or associated with any of the foregoing, including those protected by any Law anywhere in the world.
“Intended Tax Treatment” shall have the meaning ascribed in Section 11.05herein. “JOBS Act” means the Jumpstart Our Business Startups Act of 2012, as amended.
“Knowledge” means the fact or other matter to which the term “Knowledge” relates is factually known or should be known after reasonable inquiry of such party, and when used in reference to the Company such fact or other matter is known or should be known after reasonable inquiry to any member of the Management Team. It excludes any matter that might be altered by Law after Closing.
“Law” means any constitution, law, ordinance, principle of common law, code, statute, rule, regulation, agency guidelines or treaty of any Governmental Authority, including but not limited to the HSR Act, JOBS Act, WARN Act, Sarbanes Oxley Act, Privacy Laws, and Securities Laws.
“Lien” means any lien, pledge, security interest, encumbrance, mortgage, or restriction.
“Litigation” means any charge, demand, notice of violation, arbitration, audit, litigation, or suit (whether civil, criminal, or administrative) commenced, brought, conducted, or heard by or before any Governmental Authority or arbitrator.
“Losses” means any and all losses, damages, liabilities, judgments, fines, penalties, costs and expenses, including reasonable, documented attorneys’ fees and expenses; provided, however, that Losses shall not include any punitive or exemplary damages unless specifically awarded: (a) to a third party (i.e., a Person that is not a Buyer Indemnified Person or a Seller Indemnified Person, or one of their respective Affiliates) in connection with a Third-Party Claim; or (b) in connection with a claim based on fraud.
“Management Team” means, collectively, Xxxxx Xxxxxx and Xxxxx Xxxxxxx. “Marks” has the meaning set forth in the definition of Intellectual Property Rights.
“Material Adverse Effect” means any event or occurrence that has a material negative effect on the business, assets or financial condition of the Company, other than any event or occurrence relating to: (a) changes to the economy of the United States of America, the global economy, or the economies, industries or markets in
which the Company operates; (b) changes in general economic, regulatory or political conditions or changes in the countries, territories or political subdivisions in which the Company operates; (c) changes resulting from acts of war (whether or not declared), military action or any act of terrorism, or the escalation or worsening thereof; (d) changes in the debt, financing, banking or securities markets, including any disruption thereof and any decline in the price of any security or any market index or any change in prevailing interest rates; (e) changes in Law or accounting rules (including GAAP) or the enforcement, implementation or interpretation thereof; (f) changes resulting from compliance with this Agreement; (g) changes resulting from any action taken (or omitted to be taken) with the consent of or at the request of the Buyer; (h) changes resulting from any natural or man-made disaster or acts of God; or (i) changes resulting from any failure by the Company to meet any internal or published financial projections, forecasts, revenue or earnings predictions, performance measures or operating statistics (provided, that the underlying causes of such failures (subject to the other provisions of this definition) shall not be excluded); provided, however, that any event or occurrence referred to in clauses (a), (b), (c), (d), (e) or (h) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred to the extent, and only to the extent, that such event or occurrence has a disproportionate effect on the Company compared to other participants in the industries in which the Company conducts its business.
“Material Customer” shall have the meaning ascribed in Section 5.25(a) herein. “Material Supplier” shall have the meaning ascribed in Section 5.25(b) herein. “Merger Agreement” shall have the meaning ascribed in the Recitals herein.
“Merger Closing Date” means the date of closing of the transactions contemplated by the Merger Agreement.
“Multiemployer Plan” has the meaning set forth in Section (3)37 of ERISA.
“Order” means any award, decision, injunction, judgment, order, ruling, or verdict entered, issued, made or rendered by any court, administrative agency or other Governmental Authority or any arbitrator.
“Patents” has the meaning set forth in the definition of Intellectual Property Rights.
“Permit” means any approval, consent, license, permit, waiver, or other authorization required to be obtained from any Governmental Authority or pursuant to any Law.
“Permitted Liens” means Liens for or relating to taxes and assessments not yet due and payable or being contested in good faith by appropriate procedures; (c) worker’s, carrier’s, mechanic’s, materialman’s and similar Liens relating to amounts that are not yet due and payable; (d) purchase money Liens and Liens securing rental payments under capital lease arrangements; and (e) Liens that are otherwise immaterial in character, amount and extent, and which do not materially detract from the value of or interfere with the present or proposed use of the properties they affect.
“Permitted Update” shall have the meaning ascribed in Section 8.01(e) herein.
“Person” means an individual, partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture, unincorporated organization, association or other entity or any Governmental Authority.
“PGEN” shall have the meaning ascribed in the Preamble herein.
“Post-Closing Tax Period” means, with respect to any Person, any taxable period of such Person that is not a Pre-Closing Tax Period.
“Pre-Closing Tax Period” means, with respect to any Person, any taxable period of such Person ending on or before the Closing Date and, with respect to any taxable period of such Person beginning before and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date.
“Pre-Closing Taxes” means (a) all Taxes of the Company for any Pre-Closing Tax Period; (b) all liability resulting by reason of the several liability of the Company pursuant to Treasury Regulations § 1.1502-6 or any analogous state, local or foreign law or regulation or by reason of the Company having been (or ceasing to be) a member of any consolidated, combined or unitary group on or prior to the Closing Date; and (c) all liability of the Company for Taxes of any other Person pursuant to any contractual agreement entered into, other than at the written request of the Buyer, on or before the Closing Date.
“Privacy Laws” means all Laws that govern the Processing of Personal Data or governing privacy, data protection, data security, data or security breach notification, including, to the extent applicable, the California Online Privacy Protection Act, the California Consumer Privacy Act, the Health Insurance Portability and
Accountability Act of 1996 and state Laws concerning the privacy or security of health information, the CAN- SPAM Act, the Telephone Consumer Protection Act (“TCPA”) and other Laws regulating the use of Personal Data for marketing purposes in the United States.
“Process” (or “Processing” or “Processes”) means the collection, use, storage, processing, recording, distribution, transfer, import, export, protection (including security measures), disposal or disclosure or other activity regarding data (whether electronically or in any other form or medium).
“Purchase Consideration” shall have the meaning ascribed in Section 2.03. “Purchased Equity Interests” means all of the Equity Interest of the Company.
“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, depositing, injecting, escaping, leaching, dumping, or other releasing into or through the Environment.
“Representative” means, with respect to a particular Person, any officer, director, manager, employee, agent, consultant, advisor or other representative of such Person, including legal counsel, accountants, investment bankers and financial advisors.
“Xxxxxxxx-Xxxxx Act” means the Xxxxxxxx-Xxxxx Act of 2002.
“Schedule Supplement” shall have the meaning ascribed in Section 8.01(e)herein. “SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933 together with the rules and regulations promulgated thereunder.
“Securities Laws” means Federal Securities Laws, including the Securities Act, and other applicable domestic securities or similar Laws.
“Seller” shall have the meaning ascribed in the Preamble herein.
“Seller Indemnified Persons” means, collectively, the Sellers, their respective Affiliates and each of their respective officers, directors, employees, shareholders, agents, and successors and permitted assigns (or Persons with similar authority); and each of them individually is a “Seller Indemnified Person”. Each Seller Indemnified Person not a party hereto is hereby expressly made and designated as a third-party beneficiary of this Agreement and shall have the right, power, and authority to enforce the rights granted to him, her or it hereunder as though he, she or it were a party hereto.
“Tax” means (a) any and all federal, state, local, foreign and other taxes, levies, fees, imposts, duties and charges of whatever kind in the nature of a tax (including any interest, penalties or additions to the tax imposed in connection therewith or with respect thereto), imposed, assessed or collected by or under the authority of any Governmental Authority; (b) any liability for the payment of any amounts of the type described in clause (a) as a result of being (or ceasing to be) a member of an affiliated, consolidated, combined or unitary group; and (c) all liabilities for the payment of any amounts described in clauses (a) or (b) as a result of being a transferee of or successor to any Person, by contract or otherwise.
“Tax Return” means any return (including any information return or supporting material), report, statement, schedule, notice, form or other document filed with or submitted to, or required to be filed with or submitted to, any Governmental Authority in connection with the determination, assessment, collection or payment of any Tax, and shall include any amended returns required as a result of examination adjustments made by the Internal Revenue Service or other Tax authority.
“Third-Party Claim” shall have the meaning ascribed in Section 10.08(a) herein. “Transfer Taxes” shall have the meaning ascribed in Section 11.04 herein.
“WARN Act” means the Worker Adjustment Retraining and Notification Act of 1988, as well as analogous applicable foreign, state, or local Laws.
“Willful Breach” means an intentional and willful breach, or an intentional and willful failure to perform, in each case that is the consequence of an act or omission by a Party with the knowledge that the taking of such act or failure to take such act would cause a breach of this Agreement.
SECTION 1.02. CONSTRUCTION AND INTERPRETATION
ARTICLE II
SALE OF EQUITY INTERESTS AND THE PURCHASE CONSIDERATION
SECTION 2.01. SALE OF EQUITY INTERESTS
On the terms and subject to the conditions set forth herein, at the Closing and for the consideration further described in this Article II, Seller shall sell, transfer and convey to the Buyers in accordance with their respective percentages set forth on Exhibit A, and the Buyers shall purchase and acquire from the Seller, all of the Purchased Equity Interests.
SECTION 2.02. Reserved
SECTION 2.03. PURCHASE CONSIDERATION
At the Closing, the Seller and Buyers shall transfer the following consideration (“Purchase Consideration”)
SECTION 2.04. Reserved
ARTICLE III
THE CLOSING AND CLOSING DELIVERIES
SECTION 3.01. THE CLOSING
SECTION 3.02. CLOSING DELIVERIES OF SELLER
In addition to any other documents specifically required to be delivered pursuant to this Agreement, Seller shall deliver the following to the Buyers at the Closing:
SECTION 3.03. CLOSING DELIVERIES OF THE COMPANY
In addition to any other documents specifically required to be delivered pursuant to this Agreement, the Company shall deliver the following to the Buyers at Closing:
SECTION 3.04. CLOSING DELIVERIES OF THE BUYERS
In addition to any other documents specifically required to be delivered pursuant to this Agreement, the Buyers shall deliver the following to the Seller at the Closing:
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Seller represents and warrants to the Buyers that the statements set forth in this Article IV about Seller are true and correct as of the Closing.
SECTION 4.01. ORGANIZATION AND GOOD STANDING
Seller is duly organized, validly existing and (where such concept is meaningful) in good standing under the Laws of the jurisdiction of its organization.
SECTION 4.02. AUTHORITY
Seller has full power, authority, and capacity to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary action on the part of Seller. Seller is not a party to, nor aware of the existence of any agreements regarding restrictions of Equity Interests or otherwise encumbering the Equity Interests of the Company.
SECTION 4.03. ENFORCEABILITY
This Agreement has been duly and validly executed and delivered by Seller and constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, receivership or other Laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time in effect.
SECTION 4.04. NO CONFLICT
Seller’s execution, delivery and performance of this Agreement does not, and Seller’s consummation of the transactions contemplated by this Agreement will not: (a) result in a breach of (i) any of the provisions of Seller’s Governing Documents, or (ii) any resolution adopted by the board of directors or shareholders (or equivalent Persons) of Seller; (b) require Seller to obtain the approval, consent or authorization of, or to make any declaration, filing or registration with, any Governmental Authority or other Person; or (d) violate, conflict with, contravene or give any Person the right to exercise any remedy or obtain any relief under any contract to which the applicable Seller is a party or any Order, Law or Permit applicable to Seller.
SECTION 4.05. OWNERSHIP OF EQUITY INTERESTS
Seller: (a) owns (legally, beneficially and of record) the Purchased Equity Interests, free and clear of any and all Liens (other than restrictions imposed by applicable securities Laws); and (b) has the unqualified and unrestricted right, power, and authority to sell, transfer and assign such equity interests to the Buyers as contemplated by this Agreement. No Person, other than the Buyers, has any right or obligation to purchase or acquire any of the Purchased Equity Interests; and Seller has no right or obligation to purchase or acquire any equity interests of the Company or any securities of the Company convertible or exercisable into or for equity interests of the Company. On the Closing Date, pursuant to the terms set forth herein, Seller will sell, transfer, and deliver to the Buyers good and marketable title to the Purchased Equity Interests, free and clear of any Liens (other than restrictions imposed by applicable securities Laws).
SECTION 4.06. COMPLIANCE WITH LAWS; LEGAL PROCEEDINGS
Seller is in compliance with all Laws and Orders which would materially affect its ability to perform its obligations hereunder. There is no Litigation pending or, to Seller’s Knowledge, threatened against or by
Seller or any Affiliate of Seller that challenges or seeks, or could reasonably be expected, to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.
SECTION 4.07. BROKERS
Seller has not incurred and will not incur any obligation or liability, contingent or otherwise, for brokerage or finders’ fees or agents’ commissions or other similar payments in connection with this Agreement or the transactions contemplated by this Agreement.
SECTION 4.08. LITIGATION AND LIENS
Other than as set forth on Schedule 5.18, there has been no Litigation since Merger Closing Date ommenced by or against Seller or the Company which claims or has a right to assert a Lien in the Company or its assets or otherwise encumbering or affecting the Company or its assets made the basis of the transactions set forth in this Agreement. To the Knowledge of the Seller: (a) no such Litigation has been threatened; and (b) no event has occurred or circumstance exists that could reasonably be expected to give rise to or serve as the basis for the commencement of any such Litigation.
ARTICLE V
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY
The Company hereby represents and warrants to the Buyers that the statements set forth in this Article V are true and correct as of the Closing.
SECTION 5.01. ORGANIZATION AND GOOD STANDING
SECTION 5.02. AUTHORITY
The Company has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of the Company, its board of directors and its equity interest holders, as applicable. The Company is not a party to, nor aware of the existence of any shareholder agreement or similar agreement among members regarding restrictions or encumbrances of the equity interests of the Company.
SECTION 5.03. ENFORCEABILITY
This Agreement has been duly and validly executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, receivership or other Laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time in effect.
SECTION 5.04. NO CONFLICT
Other than as set forth on Schedule 5.04, the Company’s execution, delivery and performance of this Agreement does not, and the Company’s consummation of the transactions contemplated by this Agreement will not: (a) result in a breach of (i) any of the provisions of the Company’s Governing Documents, or (ii) any resolution adopted by the board of directors or members (or equivalent Persons) of the Company; (b) give any Governmental Authority or other Person the right to challenge the transactions contemplated by this Agreement; (c) require the Company to obtain the approval, consent or authorization of, or to make any declaration, filing or registration with, any Governmental Authority or other Person; or (d) violate, conflict with, contravene or give any Person the right to exercise any remedy or obtain any relief under any contract to which the Company is a party or any Order, Law or Permit.
SECTION 5.05. CAPITALIZATION
SECTION 5.06. FINANCIAL STATEMENTS
Attached to Schedule 5.06 are copies of: (a) the unaudited, balance sheet of the Company as of December 31, 2023 (the “Year-End Balance Sheet”) and the related statement of income for the fiscal year then ended (collectively, the “Year-End Financial Statements”); and (b) the unaudited, balance sheet of the Company as of the end of the month immediately preceding the Closing Date (the “Interim Balance Sheet”) and the related statements of income for the month(s) then ended (collectively, the “Interim Financial Statements”) (the Year-End Financial Statements and the Interim Financial Statements, collectively, the “Financial Statements”). The Financial Statements fairly present, in all material respects, the operating results and the financial condition of the Company on the dates and for the periods indicated, subject to normal period- end adjustments and the absence of notes and other presentation items. The Company maintains accurate books and records, in all material respects, reflecting its assets and liabilities in accordance with GAAP.
SECTION 5.07. ACCOUNTS RECEIVABLE
All accounts receivable of the Company that are reflected on the Year-End Balance Sheet or the Interim Balance Sheet, to the extent still remaining unpaid, represent valid obligations arising from sales actually made or services actually performed in the ordinary course of business. All of the accounts receivable, billed and unbilled, as of the Closing Date, are due within one hundred twenty (120) days of the invoice date. There is no contest, claim or right of set-off, other than returns in the ordinary course of business, relating to the amount or validity of any such account receivable. The Company has made available to the Buyers a complete and accurate aging of all accounts receivable reflected on the Interim Balance Sheet.
SECTION 5.08. INVENTORY
All inventory of the Company, including any inventory reflected in the Year-End Balance Sheet or the Interim Balance Sheet is free of any Liens, except for Permitted Liens, and no inventory is held on a consignment basis. All inventories of the Company not so written off have been priced at the lower of cost or market on a first in, first out basis.
SECTION 5.09. NO UNDISCLOSED LIABILITIES
Except as disclosed in the Year-End Balance Sheet, the Interim Balance Sheet, or incurred since the dates thereof in the ordinary course of business, none of which (a) constitute or would constitute a violation or breach of any condition or covenant in this Agreement; or (b) is a liability for breach of contract, tort, infringement, misappropriation or a claim or lawsuit, the Company does not have any liabilities or obligations that would be required to be disclosed on a balance sheet prepared in accordance with GAAP.
SECTION 5.10. NO MATERIAL ADVERSE EFFECT
Except as set forth in Schedule 5.10, to the Knowledge of the Company, no Material Adverse Effect has occurred between Merger Closing Date and Closing Date.
SECTION 5.11. ABSENCE OF OTHER CHANGES AND EVENTS
Except as set forth on Schedule 5.11, since the Merger Closing Date:
(C) any loans, advances, or capital contributions to or investments in any other Person, in each case by the Company;
SECTION 5.12. TAX MATTERS
SECTION 5.13. OWNERSHIP OF ASSETS
To the Knowledge of the Seller, the Company has good and valid title to all of the properties and assets (whether real, personal, or mixed and whether tangible or intangible, including Intellectual Property Rights) that it purports to own, or in the case of leased or subleased assets, valid leasehold interests therein, in each case free and clear of any and all Liens, other than Permitted Liens.
SECTION 5.14. CONDITION AND SUFFICIENCY OF ASSETS
The buildings, labs, structures, fixtures, equipment, and other tangible personal property of the Company are, taken as a whole, in good operating condition and repair, ordinary wear and tear excepted. The properties and assets owned and leased by the Company are sufficient, in all material respects and taken as a whole, for the continued conduct of their businesses immediately after the Closing in substantially the same manner as conducted immediately prior to the Closing.
SECTION 5.15. REAL PROPERTY MATTERS
SECTION 5.16. COMPLIANCE WITH LAWS
The Company is now, and since the Merger Closing Date has been, in compliance with each Law that is applicable to it. To the Knowledge of the Company, no event has occurred or circumstance exists that could reasonably be expected to constitute or result in a material violation by the Company of any applicable Law. The Company has not received any written notice from any Person regarding any failure to comply with any applicable Law.
SECTION 5.17. LICENSES, AUTHORIZATIONS AND PERMITS
SECTION 5.18. LEGAL AND OTHER PROCEEDINGS
Other than as set forth on Schedule 5.18, there has been no Litigation since the Merger Closing Date commenced by or against the Company or otherwise encumbering or affecting the Company or its assets. To the Knowledge of the Company: (a) no such Litigation has been threatened; and (b) no event has occurred or circumstance exists that could reasonably be expected to give rise to or serve as the basis for the commencement of any such Litigation. The Company is not subject to any Order, and there is not any investigation pending or, to the Knowledge of the Company, threatened in which the Company is the subject or target by any Governmental Authority or other Person.
SECTION 5.19. ENVIRONMENTAL MATTERS
SECTION 5.20. EMPLOYEE BENEFIT MATTERS
SECTION 5.21. LABOR AND EMPLOYMENT MATTERS
SECTION 5.22. CONTRACTS AND AGREEMENTS
SECTION 5.23. INTELLECTUAL PROPERTY
SECTION 5.24. INSURANCE
Schedule 5.24 lists all material policies of insurance providing coverage to the Company (collectively, the “Insurance Policies”). All the Insurance Policies are valid and enforceable, issued in the name of the Company as the named insured, no notice of cancellation, non-renewal, termination, premium increase (with respect to the next policy year) or change in coverage has been received with respect thereto, and there is no existing default by any insured thereunder. To the Knowledge of the Company, all the Insurance Policies are sufficient in all material respects for compliance by the Company with all applicable Laws and contracts or agreements to which the Company is a party. The Company has not received: (a) any refusal of coverage under any Insurance Policies; (b) any notice that a defense under any of the Insurance Policies will be afforded with reservation of rights; (c) any notice of cancellation of any of the Insurance Policies; or (d) any other indication that (i) any of the Insurance Policies is no longer in full force or effect, or (ii) that the issuer of any Insurance Policy is not willing or able to perform its obligations thereunder. All premiums and other amounts due on the Insurance Policies have been paid, and the Company has complied in all material respects with the provisions of all the Insurance Policies. The Company has made available to the Buyer true and correct copies of all the Insurance Policies.
SECTION 5.25. CUSTOMERS AND SUPPLIERS
SECTION 5.26. Reserved
SECTION 5.27. BANK ACCOUNTS
Schedule 5.27 contains a true and correct list of all of the bank accounts, investment accounts, safe deposit boxes, lock boxes and safes held by, or in the name of, the Company, and the names of all officers, employees or other individuals who are authorized to make withdrawals therefrom or dispositions thereof.
SECTION 5.28. BROKERS AND FINDERS
The Company has not incurred and will not incur any obligation or liability, contingent or otherwise, for brokerage or finders’ fees or agents’ commissions or other similar payments in connection with this Agreement or the transactions contemplated by this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
Each of the Buyers hereby individually and severally represents and warrants to the Seller that the statements set forth in this Article VI are true and correct as of Closing. For the avoidance of doubt, no Buyer makes any representation or warranty in this Article IV about any other Buyer.
SECTION 6.01. ORGANIZATION AND GOOD STANDING
Such entity Buyers are a corporation, or limited liability company, duly formed, validly existing and in good standing under the Laws of its respective state of formation, including BVLLC as a limited liability company in Texas, AXPLLC as a limited liability company in Arizona, and PGEN as a corporation in Delaware. Xxxxx is an individual resident of the State of Texas.
SECTION 6.02. AUTHORITY
The Buyers each have full power and authority to execute and deliver this Agreement and to perform its respective obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary action on the part of each such Buyer.
SECTION 6.03. ENFORCEABILITY
This Agreement has been duly and validly executed and delivered by the Buyers and constitutes a valid and legally binding obligation of each such Buyer, enforceable against each such Buyer in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, receivership or other Laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time in effect.
SECTION 6.04. NO CONFLICT
The Buyers’ execution, delivery and performance of this Agreement does not, and the Buyers’ consummation of the transactions contemplated by this Agreement will not: (a) result in a breach of any of the provisions of such Buyers’ respective Governing Documents, or (ii) any resolution adopted by the board of directors, manager(s) or member(s) (or equivalent Persons) of each such Buyer; (b) give any Governmental Authority or other Person the right to challenge the transactions contemplated by this Agreement; (c) require such Buyer to obtain the approval, consent or authorization of, or to make any declaration, filing or registration with, any Governmental Authority or other Person, or (d) violate, conflict with, contravene or give any Person the right to exercise any remedy or obtain any relief under any contract to which such Buyer is a party or any Order, Law or Permit.
SECTION 6.05. BROKER’S FEES.
Each such Buyer has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement.
SECTION 6.06. COMPLIANCE WITH LAWS; LEGAL PROCEEDINGS
Each such Buyer is in compliance with all Laws and Orders which would materially affect its ability to perform its obligations hereunder. There is no Litigation pending or, to such Buyer’s Knowledge, threatened against or by such Buyer that challenges or seeks, or could reasonably be expected, to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.
SECTION 6.07. INVESTMENT INTENT
Each such Buyer is acquiring the equity interests of the Company as provided herein for its own account and not with a view to their sale or distribution in violation of the Securities Act, any applicable state blue sky laws, or any other applicable securities Laws. Such Buyer is an “accredited investor” as such term is defined in Regulation D under the Securities Act. Such Buyer acknowledges that the equity interests of the Company are not registered under the Securities Act or any applicable state blue Sky Laws or any other applicable securities Laws.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
SECTION 7.01. SURVIVAL OF SELLER’S REPRESENTATIONS AND WARRANTIES
All representations and warranties made by the Seller in Article IV or in the certificates delivered by the Seller pursuant to Section 9.01(d)(i) shall survive the execution and delivery of this Agreement and the Closing until the first (1st) anniversary of the Closing Date, at which time they shall expire and be of no further force or effect, other thanany representation or warranty that was not true when made and was made with the intent to defraud Buyer, which shall survive indefinitely.
SECTION 7.02. SURVIVAL OF COMPANY’S REPRESENTATIONS AND WARRANTIES
All representations and warranties made by the Company in Article V or in the certificate delivered by the Company pursuant to Section 9.01(d)(ii) shall survive the execution and delivery of this Agreement and the Closing (and shall be enforceable against the Seller) until the first (1st) anniversary of the Closing Date, at which time they shall expire and be of no further force or effect, other than: (i) the Fundamental Representations and Warranties which shall survive until the third (2nd) anniversary of the Closing Date; (ii) any representation or warranty made by the Company in Section 5.12 (Taxes) which shall survive until the date on which the statute of limitations applicable to the matter covered by such representation and warranty expires; and (iii) any representation or warranty that was not true when made and was made with the intent to defraud Buyer, which shall survive indefinitely.
SECTION 7.03. SURVIVAL OF BUYERS’ REPRESENTATIONS AND WARRANTIES
All representations and warranties made by the Buyers in Article VI or in the certificate delivered by the Buyers pursuant to Section 9.02(c) shall survive the execution and delivery of this Agreement and the Closing (and shall be enforceable against the Buyer by whom the representation or warranty was made) until the first (1st) anniversary of the Closing Date, at which time they shall expire and be of no further force or effect, other than any representation or warranty that was not true when made and was made with the intent to defraud the Sellers, which shall survive indefinitely.
SECTION 7.04. MAKING OF CLAIMS
ARTICLE VIII
COVENANTS AND AGREEMENTS OF THE PARTIES
SECTION 8.01. PRE-CLOSING COVENANTS OF SELLER AND THE COMPANY
SECTION 8.02. PRE-CLOSING COVENANTS OF THE BUYER
SECTION 8.03. FURTHER ASSURANCES
If any further action is necessary or desirable to carry out the purposes of this Agreement, each of the parties hereto will use commercially reasonable efforts to take such further action (including the execution and delivery of such further instruments and documents) as any other party reasonably may request, all at the sole cost and expense of the requesting party (unless the requesting party is entitled to indemnification therefor under Article X below).
SECTION 8.04. Reserved.
SECTION 8.05. RELEASE
AND
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
ARTICLE IX CONDITIONS TO CLOSING
SECTION 9.01. THE BUYERS’ CONDITIONS PRECEDENT
The obligation of the Buyers to consummate the transactions contemplated by this Agreement is subject to the fulfillment at or prior to the Closing of each of the following conditions, except to the extent any such condition (or portion thereof) is waived in writing by the Buyer:
SECTION 9.02. SELLER’S CONDITIONS PRECEDENT
The obligation of Seller to consummate the transactions contemplated by this Agreement is subject to the fulfillment at or prior to the Closing of each of the following conditions, except to the extent any such condition (or portion thereof) is waived in writing by the Sellers:
ARTICLE X INDEMNIFICATION
SECTION 10.01. INDEMNIFICATION BY SELLER
SECTION 10.02. INDEMNIFICATION BY THE BUYER AND THE COMPANY
From and after the Closing and subject to the limitations set forth herein, the Buyers, each severally, and the Company shall indemnify the Seller Indemnified Persons for all Losses resulting from:
SECTION 10.03. RESERVED.
SECTION 10.04. MITIGATION OF LOSSES
The Indemnified Person shall (and, after the Closing, the Company shall) use commercially reasonable efforts to mitigate any Losses that are indemnifiable hereunder, whether by asserting claims against third parties, by qualifying for a benefit that may reduce or eliminate an indemnified matter, or otherwise.
SECTION 10.05. INSURANCE AND THIRD-PARTY PAYMENTS
Payments by Seller or Buyers pursuant to this Article X in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Person or any of their respective Affiliates in respect of any such Loss; provided, that the amount of such proceeds or payment actually received shall be net of: (a) any deductibles for the applicable insurance policies; (b) any increase in the premium for the applicable insurance policies arising from such Losses; and (c) any other reasonable, documented costs incurred in connection with collecting such proceeds or payment.
SECTION 10.06. RESERVED.
SECTION 10.07. INDEMNITY AS SOLE RECOURSE
The sole recourse and exclusive remedy of any Indemnified Person for breaches of or inaccuracies in any representations, warranties, covenants or agreements contained in this Agreement, or in any certificate delivered in connection herewith, shall be indemnification under this Article X and the Indemnified Person may not bring any other claim whatsoever in connection therewith. The foregoing provisions of this Section
10.07 shall not: (a) preclude the Indemnified Person from (i) asserting other remedies in connection with claims based on fraud, (ii) seeking injunctive or other equitable relief, or (iii) exercising their rights under or pursuant to Section 13.10.
Notwithstanding anything in this Agreement to the contrary, to the extent a Party would be entitled to indemnification pursuant to the terms of the Merger Agreement with respect any claim, such Party shall not be obligated to indemnify any Party hereunder.
SECTION 10.08. THIRD-PARTY CLAIMS
SECTION 10.09. ADJUSTMENTS TO THE PURCHASE PRICE
The parties hereto shall treat any amounts payable under this Article X by the Sellers as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.
ARTICLE XI TAX MATTERS
SECTION 11.01. PREPARATION OF TAX RETURNS
The Buyer shall prepare, or cause to be prepared, all Tax Returns required to be filed by the Company after the Closing Date with respect to any Pre-Closing Tax Period. All such Tax Returns shall be prepared in a manner consistent with past practice (unless otherwise required by Law) and without a change of any election or any accounting method. Pursuant to Section 10.01(b)(iii), the Seller shall bear the responsibility for the Taxes shown as due on all such Tax Returns for all periods through the end of the Closing Date.
SECTION 11.02. MUTUAL COOPERATION
The parties shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with the filing of Tax Returns and any audit, Litigation or other proceeding with respect to Taxes. Such cooperation shall include the retention (consistent with each party’s document retention policy) and (upon the other party’s request) the provision of records and information which are reasonably relevant to any such Tax Return, audit, Litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
SECTION 11.03. WITHHOLDINGS
Neither Seller, Buyers nor the Company shall withhold any amount from any payment made pursuant to this Agreement, provided that Seller or any Buyer receiving a payment provide an IRS Form W-9 as contemplated under Sections 3.02 and 3.04 hereof.
SECTION 11.04. TRANSFER TAXES
All transfer, documentary, sales, use, stamp, registration and other similar Taxes and other governmental charges, and all conveyance fees, recording charges and other similar fees and charges incurred in connection with consummation of the transactions contemplated by this Agreement (collectively, “Transfer Taxes”) shall be borne and paid by fifty percent (50%) by Buyers and fifty percent (50%) by the Seller. Each party hereto shall use its commercially reasonable efforts to minimize the amount of such Transfer Taxes and to cooperate in the preparation, execution and filing of all Tax Returns and other documents required in connection with such Transfer Taxes.
SECTION 11.05. TAX TREATMENT
Buyers and Seller acknowledge and agree that the transfer of the Purchased Equity Interests pursuant to this Agreement shall be treated for applicable Income Tax purposes as a transfer by Seller to Buyers of all of the assets, subject to all of the liabilities, of the Company, followed by a contribution of such assets and liabilities by Buyers to a new partnership (the “Intended Tax Treatment”). Buyers, Seller and the Company shall report the transactions contemplated by this Agreement in accordance with the Intended Tax Treatment for all applicable Income Tax purposes. Except as specifically provided herein, no party makes any representation or covenant to any other party regarding the tax treatment or consequences of the transactions contemplated by this Agreement, and each party acknowledges that it has relied only upon its own advisors regarding the tax treatment or consequences of such transactions.
ARTICLE XII TERMINATION OF THIS AGREEMENT
SECTION 12.01. TERMINATION EVENTS
This Agreement may be terminated:
SECTION 12.02. EFFECT OF TERMINATION
If this Agreement is terminated under Section 12.01above, no party hereto shall have any further rights or obligations under this Agreement, except: (a) under Section 8.02(c), and Article XIIIbelow, which shall survive indefinitely; and (b) that the foregoing shall not relieve any party of any liability resulting from fraud or such party’s intentional breach of, this Agreement.
ARTICLE XIII MISCELLANEOUS
SECTION 13.01. ASSIGNMENT
The Buyers may not assign any of their rights or delegate any of their obligations under this Agreement without the prior written consent of Seller or (prior to the Closing) the Company; provided, that the Buyers may assign this Agreement without the consent of any other party to any Affiliate of the Buyers (but notwithstanding such assignment shall remain liable in all respects for the performance of this Agreement). The Seller may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Buyers and (prior to the Closing) the Company.
SECTION 13.02. NOTICES
All notices, requests, consents, claims, demands, waivers 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 facsimile or e-mail 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 (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be 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 13.02):
If to the Seller: Carmell Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 000
Pittsburgh, PA 15203
Attention: Xxxxx Xxxxxxxx, Chief Financial Officer
E-mail: xx@xxxxxxxxxxx.xxx
If to Buyers: Xxxxx Ventures, LLC
5480 Longvue
Frisco, Texas 75034
Attention: Xxxxxx Xxxxx
Email: xxxxxx0000@xxx.xxx
With a copy to (which shall not constitute notice):
Xxxxx Xxxxxxx & Xxxxxx, LLLP
00000 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Houston, Texas 77060
Attention: Xxxxxxx X. Xxxxxx, Xx.
E-mail: xxxxxxx@xx-xxxxxxx.xxx
If to the Company:
(if prior to Closing)
Carmell Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 000
Pittsburgh, PA 15203
Attention: Xxxxx Xxxxxxxx, Chief Financial Officer
E-mail: xx@xxxxxxxxxxx.xxx
(if after Closing)
Axolotl Biologix, LLC
0000 X. Xxxxxx Xx., Xxxxx 00
Flagstaff, AZ 86004
Attn: Xxxx Xxxxxxxx, CEO
E-Mail:xxxxxxxxx@xxxxxx.xxx
with a copy (which shall not constitute notice) to:
Xxxxx Xxxxxxx & Xxxxxx, LLLP
00000 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Houston, Texas 77060
Attention: Xxxxxxx X. Xxxxxx, Xx.
E-mail: xxxxxxx@xx-xxxxxxx.xxx
A party may change its address, contact person, or email address by providing written notice, in accordance with the foregoing provisions of this Section 13.02, to the other parties of such change. Notwithstanding the foregoing, all notices from the Buyers in respect of any claim against a Buyer (and not all Buyers) shall be delivered to the appropriate Buyer to the address set forth beneath the signature block relating to such Buyer on the signature pages hereto with a copy to (which shall not constitute notice) the Buyers as set forth in this Section 13.02).
SECTION 13.03. EXPENSES
All costs, fees and expenses incurred by any party incident to the negotiation and preparation of this Agreement and to the performance and compliance with all agreements contained herein, including the fees, expenses and disbursements of any Representatives, counsel and accountants engaged by any such party, shall be borne solely by the party which has incurred such expense.
SECTION 13.04. GOVERNING LAW; FORUM; WAIVER OF JURY TRIAL
SECTION 13.05. PARTIAL INVALIDITY
In case any one or more of the provisions contained 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 provisions of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
SECTION 13.06. LEGAL REPRESENTATION
Each of the parties to this Agreement hereby agrees that Xxxxx Xxxxxxx & Xxxxxx, LLLP (“Buyers Counsel”) has served as counsel to the Buyers in connection with the negotiation, preparation, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby, and that following the Closing, Buyers’ Counsel may serve as counsel to the Company, any Buyer, or any director, manager, member, partner, owner, officer, employee, or Affiliate thereof in connection with any claim, dispute, or other matter arising out of or relating to this Agreement or the transactions contemplated by this Agreement or any representation of such Buyers or the Company, or any of their Affiliates, and each of the parties hereto hereby waives any conflict of interest arising therefrom or in connection therewith.
SECTION 13.07. EXECUTION IN COUNTERPARTS; FACSIMILE AND E-MAIL SIGNATURES
This Agreement may be executed in one or more counterparts, each of which shall be considered an original counterpart, and all of which shall be considered to be but one agreement and shall become a binding agreement when each party shall have executed one counterpart and delivered it to the other party hereto. A signature affixed to a counterpart of this Agreement and delivered by facsimile or electronic mail by any Person is intended to be its, his or her signature and shall be valid, binding and enforceable against the party on whose behalf it has been affixed.
SECTION 13.08. ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS
This Agreement (along with each other agreement, certificate, document, or instrument executed in connection herewith) contains the entire understanding of the parties hereto with regard to the subject matter contained in this Agreement and supersedes all prior agreements or understandings of the parties. Subject to Section 8.01(e), the parties may amend, modify, and supplement this Agreement only by the written agreement of the Buyers, on the one hand, and Seller, on the other hand. The failure of any party to this Agreement to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.
SECTION 13.09. PUBLIC ANNOUNCEMENTS
The parties shall consult with each other before making or issuing, or causing or permitting any Person to make or issue, any public statement or press release with respect to this Agreement or the transactions contemplated by this Agreement. No party shall issue any press release or make any public statement before obtaining the other parties’ prior written approval, except that no such approval shall be necessary to the extent disclosure may be required by Law, in which case the party issuing such press release or making such public statement shall make reasonable efforts to notify the other of the existence of such requirement prior to publication. The Buyers and the Seller will consult with each other concerning the means by which employees, customers,
suppliers, and others having dealings with Company will be informed of the transactions contemplated by this Agreement, if at all, and the Buyers will have the right to be present for any such communication.
SECTION 13.10. SPECIFIC PERFORMANCE
Each of the parties hereto acknowledges that the rights of each party to consummate the transactions contemplated hereby are unique and recognizes and affirms that in the event of a breach of this Agreement by any such party, money damages may be inadequate, and the non-breaching party may have no adequate remedy at Law. Accordingly, the parties hereto agree that such non-breaching party shall have the right, in addition to any other rights and remedies existing in its favor at Law or in equity, to seek to enforce its rights and the other party’s obligations hereunder not only by an action for damages but also by an action, for specific performance, injunctive and/or other equitable relief (without posting of bond or other security). Each of the parties hereto agrees not to raise any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by a Seller or the Company, on the one hand, and to prevent or restrain
breaches of this Agreement by Xxxxx, on the other hand, and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the parties under this Agreement.
SECTION 13.11. PARTIES IN INTEREST
This Agreement shall be binding upon and inure solely to the benefit of each party hereto and its successors and permitted assigns and, except as specifically identified herein (including with respect to the Buyer Indemnified Persons and the Seller Indemnified Persons not parties hereto, each of whom is expressly made a third-party beneficiary hereof), nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
CARMELL CORPORATION.
By: /s/ Xxxxx Xxxxxx
Title: Chairman and CEO
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
AXOLOTL BIOLOGIX, LLC.
By: /s/ Xxxxx Xxxxxx
Title: Chairman and CEO
Name:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
XXXXX VENTURES, LLC
By: /s/ H. Xxxxxx Xxxxx
H. Xxxxxx Xxxxx, Manager
5480 Longvue
Frisco, Texas 75034
Attn: Xxxxxx Xxxxx
Email:Xxxxxx0000@xxx.xxx
H. XXXXXX XXXXX, Individually
By: /s/ H. Xxxxxx Xxxxx
5480 Longvue
Frisco, Texas 75034
Attn: Xxxxxx Xxxxx
Email: Xxxxxx0000@xxx.xxx
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
PROTEIN GENOMICS, INC.
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx, President
PMB 1319
0000 X. Xxx 00X
Sedona, AZ 86336
Attn: Xxxx Xxxxxx, President / CEO
Email: xxxx@xxxxxxxxxx.xxx
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
AXO XP, LLC
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, Manager
0000 X. Xxxxxx Xxxxx Xxxx
Scottsdale, AZ 85260
Attn: Xxxxxx Xxxxxxxx, Manager
Email: xxxx@xxxxxxxxxxxxxxxxxx.xxx
