PURCHASE AGREEMENT
Exhibit 10.1
EXECUTION VERSION
dated as of
February 26, 2018
by and among
PRIORITY HOLDINGS, LLC,
M SPAC LLC,
M SPAC HOLDINGS I LLC,
M SPAC HOLDINGS II LLC,
and
M
I ACQUISITIONS, INC.
(solely for purposes of Section 2.06)
TABLE OF CONTENTS
| Page | ||
| ARTICLE I DEFINITIONS | 2 | |
| ARTICLE II PURCHASE AND SALE | 3 | |
| Section 2.01 | Purchase and Sale | 3 |
| Section 2.02 | Purchase Price | 4 |
| Section 2.03 | Effective Time | 4 |
| Section 2.04 | Pre-Closing Deliveries | 4 |
| Section 2.05 | Closing Payments and Deliveries | 4 |
| Section 2.06 | Forfeiture and Earnout | 4 |
| ARTICLE III REPRESENTATIONS AND WARRANTIES OF FOUNDERS | 5 | |
| Section 3.01 | Organization and Good Standing | 5 |
| Section 3.02 | Authorization; Validity of Agreements | 5 |
| Section 3.03 | Consents and Approvals; No Violations | 6 |
| Section 3.04 | Ownership | 6 |
| Section 3.05 | Proceedings; Orders | 6 |
| Section 3.06 | Brokers or Finders | 6 |
| ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PRIORITY | 7 | |
| Section 4.01 | Organization and Good Standing | 7 |
| Section 4.02 | Authorization; Validity of Agreement | 7 |
| Section 4.03 | Consents and Approvals; No Violations | 7 |
| Section 4.04 | Proceedings; Orders | 7 |
| Section 4.05 | Purchase for Investment | 8 |
| Section 4.06 | Brokers or Finders | 8 |
| ARTICLE V COVENANTS | 8 | |
| Section 5.01 | Conduct of Buyer’s Business Pending the Closing | 8 |
| Section 5.02 | Reasonable Best Efforts; Further Assurances | 8 |
| Section 5.03 | Public Announcements | 9 |
| ARTICLE VI CONDITIONS TO CLOSING | 9 | |
| Section 6.01 | Conditions to the Obligation of Priority | 9 |
| ARTICLE VII TERMINATION | 9 | |
| Section 7.01 | Grounds for Termination | 9 |
| Section 7.02 | Effect of Termination | 9 |
| ARTICLE VIII MISCELLANEOUS | 10 | |
| Section 8.01 | Notices | 10 |
| Section 8.02 | Amendments and Modifications | 11 |
| Section 8.03 | Waiver | 11 |
| Section 8.04 | Expenses | 11 |
| Section 8.05 | Assignment | 11 |
| Section 8.06 | Parties in Interest | 11 |
| Section 8.07 | Governing Law | 11 |
| Section 8.08 | Jurisdiction | 11 |
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| Section 8.09 | Waiver of Jury Trial | 12 |
| Section 8.10 | Relationship of the Parties | 13 |
| Section 8.11 | Counterparts; Effectiveness | 13 |
| Section 8.12 | Third-Party Beneficiaries | 13 |
| Section 8.13 | Entire Agreement | 13 |
| Section 8.14 | Severability | 13 |
| Section 8.15 | Non-Survival of Representations, Warranties and Covenants | 14 |
| Section 8.16 | Remedies | 14 |
| Section 8.17 | Representation by Counsel | 14 |
| Section 8.18 | Rules of Construction | 14 |
| Section 8.19 | Headings | 15 |
| Section 8.20 | Inconsistencies with Other Agreements | 15 |
| Section 8.21 | Interpretation | 15 |
| Annexes | |
| Annex I | Knowledge of Founders |
| Annex II | Knowledge of Priority |
| Annex III | Ownership of Acquired SPAC Interests |
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This PURCHASE AGREEMENT (this “Agreement”) is dated as of February 26, 2018, by and among Priority Holdings, LLC, a Delaware limited liability company (“Priority”), M SPAC LLC (“M SPAC”), M SPAC Holdings I LLC (“M SPAC I”), M SPAC Holdings II LLC (“M SPAC II” and collectively with M SPAC I and M SPAC, “Founders”) and, solely for purposes of Section 2.06, M I Acquisitions, Inc., a Delaware corporation (“Buyer”). Each of Priority, Founders and Buyer is sometimes referred to herein as a “Party” and, collectively, as the “Parties”.
WHEREAS, as contemplated by that Contribution Agreement (the “Contribution Agreement”), dated as of the date hereof, by and among Priority Investment Holdings, LLC (“PIH”), Priority Incentive Equity Holdings, LLC (“XXXX”) and Buyer, PIH and XXXX have agreed to contribute to Buyer, and Buyer has agreed to acquire from PIH and XXXX, 100% of the issued and outstanding Equity Interests of Priority upon the terms and subject to the conditions set forth therein (such contribution and acquisition, the “Priority Acquisition”);
WHEREAS, (a) M SPAC is the record and beneficial owner of (i) 277,941 SPAC Units (the “M SPAC Units”) and (ii) 294,168 SPAC Founders Shares (the “M SPAC Founders Shares”); (b) M SPAC I is the record and beneficial owner of (i) 60,000 SPAC Units (the “M SPAC I Units”) and (ii) 64,574 SPAC Founders Shares (the “M SPAC I Founders Shares”); and (c) M SPAC II is the record and beneficial owner of (i) 83,166 SPAC Units (the “M SPAC II Units” and collectively with the M SPAC Units and the M SPAC I Units, the “Acquired SPAC Units”) and (ii) 94,468 SPAC Founders Shares (the “M SPAC II Founders Shares” and collectively with the M SPAC Founders Shares and the M SPAC I Founders Shares, the “Acquired Founders Shares” and collectively with the Acquired SPAC Units, the “Acquired SPAC Interests”);
WHEREAS, in connection with the Priority Acquisition, Founders desire to sell to Priority, and Priority desires to purchase from Founders, the Acquired SPAC Interests, effective as of immediately prior to the Priority Acquisition, in exchange for the consideration described herein and otherwise upon the terms and subject to the conditions set forth herein (such sale and purchase, the “Acquired SPAC Interests Purchase”); and
WHEREAS, effective immediately upon the Acquired SPAC Interests Purchase and immediately prior to the Priority Acquisition, Priority shall distribute the Acquired SPAC Interests to the Sellers (as defined in the Contribution Agreement).
NOW, THEREFORE, in consideration of the respective representations, warranties, covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:
ARTICLE I
Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Contribution Agreement. Each of the following terms shall have the following meanings:
“Agreement” has the meaning set forth in the Preamble.
“Acquired Founders Shares” has the meaning set forth in the Recitals.
“Acquired SPAC Interests” has the meaning set forth in the Recitals.
“Acquired SPAC Interests Purchase” has the meaning set forth in the Recitals.
“Acquired SPAC Units” has the meaning set forth in the Recitals.
“Effective Time” has the meaning set forth in Section 2.03.
“Founders” has the meaning set forth in the Preamble.
“Founders Earnout Payment” has the meaning set forth in Section 2.06(b)(ii).
“Founders Earnout Calculation Delivery Date” has the meaning set forth in Section 2.06(c).
“Founders Material Adverse Effect” means any event, development, or change that would have or reasonably be expected to have a material adverse effect on the ability of any Founder or Buyer, as applicable, to perform its obligations hereunder, or that would prevent, materially impede, interfere with, hinder or delay the consummation by any Founder or Buyer, as applicable, of the transactions contemplated hereby.
“Forfeited Shares” means 174,863 SPAC Founders Shares, as specified on Annex III hereto.
“Knowledge of Founders” or any similar phrase means the actual knowledge of the Persons identified in Annex I attached hereto.
“Knowledge of Priority” or any similar phrase means the actual knowledge of the Persons identified in Annex II attached hereto.
“M SPAC” has the meaning set forth in the Preamble.
“M SPAC Founders Shares” has the meaning set forth in the Recitals.
“M SPAC Units” has the meaning set forth in the Recitals.
“M SPAC I” has the meaning set forth in the Preamble.
“M SPAC I Founders Shares” has the meaning set forth in the Recitals.
“M SPAC I Units” has the meaning set forth in the Recitals.
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“M SPAC II” has the meaning set forth in the Preamble.
“M SPAC II Founders Shares” has the meaning set forth in the Recitals.
“M SPAC II Units” has the meaning set forth in the Recitals.
“Party” and “Parties” have the meaning set forth in the Preamble.
“Permitted Liens” means restrictions on the transfer of securities arising under applicable securities Laws or the Organizational Documents of Buyer.
“Priority” has the meaning set forth in Preamble.
“Priority Acquisition” has the meaning set forth in the Recitals.
“Priority Material Adverse Effect” means any event, development, or change that would have or reasonably be expected to have a material adverse effect on the ability of Priority to perform its obligations hereunder, or that would prevent, materially impede, interfere with, hinder or delay the consummation by Priority of the transactions contemplated hereby.
“Purchase Price” has the meaning set forth in Section 2.02.
“SPAC Founders Shares” means Buyer shares of common stock that were sold to Founders at a price of $0.02 per share.
“SPAC Units” means the units issued by Buyer to Founders, consisting of one share of Buyer common stock and one SPAC Warrant.
“SPAC Warrant” means a warrant issued by Buyer to Founders, entitling the holder thereof to purchase one share of Buyer common stock in accordance with the terms and conditions of the Warrant Agreement.
“Warrant Agreement” means that warrant agreement, dated as of September 13, 2016, by and between Buyer and American Stock Transfer & Trust Company, as warrant agent thereunder.
ARTICLE II
Section 2.01 Purchase and Sale. Upon the terms and subject to the conditions set forth herein, effective as of the Effective Time, Founders shall sell, assign, transfer, convey and deliver to Priority, and Priority shall purchase, accept and acquire from Founders, the Acquired SPAC Interests (in the amounts specified on Annex III attached hereto), free and clear of all Liens (other than Permitted Liens).
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Section 2.05 Closing Payments and Deliveries.
(a) At the Effective Time, Priority shall pay, or cause to be paid, to each Founder an amount in cash equal to the amount specified on Annex III by wire transfer of immediately available funds in accordance with the wire instructions delivered by Founders pursuant to Section 2.04.
(b) At the Effective Time, each Founder shall deliver, or cause to be delivered, to Priority certificates representing the Acquired SPAC Interests held by such Founder duly endorsed in blank for transfer or accompanied by a stock power or other applicable instrument of transfer duly executed by such Founder in blank form or in favor of Priority.
Section 2.06 Forfeiture and Earnout.
(a) The Parties agree that, at the Closing, the Forfeited Shares shall be canceled by Buyer.
(b) In consideration for the cancelation of the Forfeited Shares pursuant to Section 2.06(a), if, after the Closing, Buyer is permitted to issue any Equity Interests pursuant to and in accordance with the Buyer Incentive Plan, in the first year that Buyer is permitted to issue any such Equity Interests, Buyer shall, at its election in its sole discretion, either:
(i) issue 174,863 shares of Common Stock in the aggregate to Founders in accordance with Annex III; or
(ii) pay, or cause to be paid, to each Founder, an amount in cash equal to equal to (A) the number of shares specified on Annex III hereto multiplied by (B) the volume weighted average closing price of the Common Stock on NASDAQ for the 20 trading days prior to the Founders Earnout Calculation Delivery Date (the “VWAP”) and any such payment or issuance pursuant to this Section 2.06(b), (the “Founders Earnout Payment”); provided that, for the avoidance of doubt, Founders shall only be entitled to one Founders Earnout Payment.
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(c) On or before the date which is 120 days after the last day of each fiscal year during the period commencing on the date hereof and ending on December 31, 2020 (a “Founders Earnout Calculation Delivery Date”), Buyer shall prepare and deliver to Founders a written statement setting forth in reasonable detail (i) Buyer’s calculation of Adjusted EBITDA for such fiscal year; (ii) Buyer’s conclusion as to whether any Equity Securities may be issued pursuant to and in accordance with the Buyer Incentive Plan in respect of such fiscal year; and (iii) if the Founders Earnout Payment is owed in respect of such fiscal year, (A) Buyer’s election under Section 2.06(b) and (B) Buyer’s calculation of the VWAP, if applicable; provided that Buyer’s obligations under this Section 2.06(c) shall terminate upon payment of the Founders Earnout Payment.
(d) If the Founders Earnout Payment is required to be made by Buyer pursuant to Section 2.06(b), such Founders Earnout Payment shall be made no later than 15 Business Days of the applicable Founders Earnout Calculation Delivery Date.
(e) Notwithstanding any other provision of this Agreement to the contrary, Buyer shall be entitled to deduct and withhold from the Founders Earnout Payment such amounts as it is required to deduct and withhold with respect to such Founders Earnout Payment under any provision of U.S. federal, state, local, or non-U.S. tax law. Any amounts so deducted and withheld shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF FOUNDERS
Founders represent and warrant to Priority that all of the statements contained in this ARTICLE III are true as of the date hereof and as of the Effective Time.
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Section 3.03 Consents and Approvals; No Violations. Neither the execution, delivery or performance by each Founder of this Agreement, nor the consummation by such Founder or Buyer of the transactions contemplated hereby, will (a) conflict with or violate any provision of any Organizational Documents of any Founder or Buyer; (b) result in a breach of, or constitute (with or without due notice or lapse of time or both) a default or give rise to any right of termination, cancellation or acceleration under, any of the terms, conditions or provisions of any Contract to which any Founder or Buyer is a party or by which any Founder or Buyer or any of its properties or assets may be bound; (c) violate any Laws applicable to any Founder or Buyer or any of the properties or assets of any Founder or Buyer; (d) require on the part of any Founder or Buyer any filing or registration with, notification to, or authorization, consent or approval of, any Governmental Authority; or (e) result in the creation or imposition of any Lien (other than Permitted Liens) on any assets or properties of any Founder or Buyer, except, in the cases of clauses (b) through (e) of this Section 3.03, as would not reasonably be expected to have, individually or in the aggregate, a Founder Material Adverse Effect.
(a) Except for (i) this Agreement and the other Transaction Documents and (ii) the Organizational Documents of Founders and Buyer, neither Buyer nor any Founder has (A) granted any outstanding options, warrants, rights or other securities convertible into, or exchangeable or exercisable for, any Equity Interests of Buyer; (B) entered into any Contracts relating to the issuance, sale, transfer, voting or registration of any Equity Interests of Buyer, or options, warrants, rights or other securities convertible into, or exchangeable or exercisable for, any of the foregoing; or (C) granted or authorized any stock appreciation, phantom stock, profit participation or similar rights (in each case as to which Buyer has any outstanding liabilities or obligations).
(b) Each Founder is the holder of the Acquired SPAC Interests set forth across such Founder’s name on Annex III attached hereto, and, at the Closing, assuming the performance by Priority of its obligations under Section 2.05(a), the Acquired SPAC Interests will be free and clear of all Liens (other than Permitted Liens).
Section 3.05 Proceedings; Orders. There are no Proceedings pending or, to the Knowledge of Founders, threatened, against any Founder, nor are there any Orders naming any Founder, or by which any Founder is bound, which remain outstanding or unsatisfied, except, in each case, as would not reasonably be expected to have, individually or in the aggregate, a Founders Material Adverse Effect.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PRIORITY
Priority represents and warrants to Founders that all of the statements contained in this ARTICLE IV are true as of the date hereof.
Section 4.01 Organization and Good Standing. Priority is a Delaware limited liability company validly existing and in good standing under the laws of the jurisdiction of its formation and has all requisite company power and authority to own, lease and operate its properties and to carry on its business as is now being conducted. Priority is duly qualified or licensed and in good standing to do business as a foreign limited liability company in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a Priority Material Adverse Effect.
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Section 4.05 Purchase for Investment.
(a) Priority is an “accredited investor” within the meaning of Section 506 of Regulation D promulgated under the Securities Act.
(b) The Acquired SPAC Interests will be acquired for investment for Priority’s own account and not with a view to the distribution of any part thereof (or participation therein) in violation of the Securities Act. Priority does not have any contract, undertaking or agreement with any Person to sell, transfer, or grant participations with respect to the Acquired SPAC Interests.
(c) Priority’s financial condition is such that it is able to bear the risk of holding the Acquired SPAC Interests for an indefinite period of time and can bear the loss of its entire investment in the Acquired SPAC Interests.
(d) Priority (either alone or together with its advisors) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Acquired SPAC Interests and is capable of bearing the economic risks of such investment.
(e) Priority acknowledges that the Acquired SPAC Interests have not been registered under the Securities Act or under any state or foreign securities Laws.
ARTICLE V
Section 5.02 Reasonable Best Efforts; Further Assurances. Priority and Founders will use their respective reasonable best efforts to take, or cause to be taken (including by causing any Affiliates to take actions), all actions and to do, or cause to be done, all things necessary or desirable under applicable Laws to consummate the transactions contemplated hereby.
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ARTICLE VI
Section 6.01 Conditions to the Obligation of Priority. The obligation of Priority to consummate the closing of the transactions contemplated hereby shall be subject to the satisfaction, or (to the extent permitted by applicable Law) waiver by Priority on or prior to the Effective Time, of one of the following conditions:
(a) the satisfaction, or (to the extent permitted by applicable Law) waiver by the applicable Person as expressly set forth in the Contribution Agreement of each of the conditions set forth in Article VI of the Contribution Agreement; or
(b) if (i) the Contribution Agreement is terminated pursuant to and in accordance with Article VII thereof and (ii) Priority does not have a right to terminate this Agreement pursuant to Section 7.01(b) or Section 7.01(c).
ARTICLE VII
(a) by the mutual written agreement of Founders and Priority;
(b) by Priority if (i) the Contribution Agreement is terminated by Sellers pursuant to subsection (e) of Section 7.01 thereof or (ii) (A) the Contribution Agreement is terminated pursuant to any other subsection of Section 7.01 thereof and (B) at the time of such termination, the Contribution Agreement could have been terminated by Sellers pursuant to subsection (e) of Section 7.01 thereof (without giving effect to any notice or cure provisions with respect thereto; or
(c) by Priority if there has been a material breach by Founders of any representation, warranty, covenant or agreement set forth herein.
Section 7.02 Effect of Termination. If this Agreement is terminated and the transactions contemplated hereby are abandoned in accordance with Section 7.01, this Agreement shall become void and of no further force and effect (other than Section 5.03, this Section 7.02, and ARTICLE VIII, each of which shall survive the termination of this Agreement and be enforceable by the Parties), and there shall be no liability or obligation on the part of any Party to the other Party. Nothing in this ARTICLE VII shall be deemed to impair the right of either Party to compel specific performance by the other Party of its obligations under this Agreement.
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ARTICLE VIII
(i) if to Priority, to:
c/o
PSD Partners
00 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Email: xxxxxxx@xxx.xx
Attn: Xxxxxx X. Xxxxxx
with copy (which shall not constitute notice) to:
Xxxxxxx
Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Email: xxxxxxx.xxxxxxxx@xxx.xxx
Attn: Xxxxxxx X. Xxxxxxxx
(ii) if to Founders, to:
c/o
Magna Management, LLC
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Email: xxxx.xxxxxx@xxx.xx
Attn: Xxxx Xxxxxx
with a copy (which shall not constitute notice) to:
Loeb
& Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Email: xxxxxxx@xxxx.xxx
Attn: Xxxxxxxx Xxxxxx
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Section 8.07 Governing Law. This Agreement shall be construed, performed and enforced in accordance with the Laws of the State of Delaware (without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction) as to all matters, including matters of validity, construction, effect, performance and remedies.
Section 8.08 Jurisdiction.
(a) Each of the Parties irrevocably agrees that any Proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other Party or its successors or assigns, shall be brought and determined exclusively in the United State District Court for the District of Delaware or any state court sitting in the City of Wilmington in the State of Delaware. Each of the Parties hereby irrevocably submits with regard to any such Proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any Proceeding relating to this Agreement or the transactions contemplated hereby in any court other than the aforesaid courts. Each of the Parties hereby agrees that service of process, summons, notice or document by registered mail addressed to them at its address provided in Section 8.01 shall be effective service of process against them for any such Proceeding brought in any of the aforesaid courts.
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(b) Each of the Parties hereby irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any Proceeding with respect to this Agreement, (i) any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason other than the failure to serve in accordance with Section 8.01; (ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any Proceeding commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise); and (iii) to the fullest extent permitted by the applicable Law, any claim that (A) such Proceeding in such court is brought in an inconvenient forum; (B) the venue of such Proceeding is improper; or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
Section 8.09 Waiver of Jury Trial.
(a) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY OR CLAIM THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS Section 8.09(a) AND EXECUTED BY EACH PARTY). THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER AGREEMENTS OR DOCUMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of the transactions contemplated hereby, including contract claims, tort claims, breach-of-duty claims and all other common law and statutory claims. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.
(b) EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS; (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS; (III) IT MAKES SUCH WAIVERS VOLUNTARILY; AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 8.09.
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(a) Each Party acknowledges and agrees that irreparable injury to the other Party would occur if any provision hereof were not performed in accordance with its specific terms or were otherwise breached, and that such injury would not be adequately compensable in damages because of the difficulty of ascertaining the amount of damages that would be suffered in the event that this Agreement were breached. It is accordingly agreed that, subject to the further provisions of this Section 8.16, prior to the valid termination of this Agreement pursuant to Section 7.01, each Party shall be entitled, in addition to any other remedy to which it is entitled at law or in equity, to specific enforcement of, and injunctive relief, without proof of actual damages, to prevent any breach or violation of, the terms hereof, and the other Party shall not take action, directly or indirectly, in opposition to the Party seeking such relief on the grounds that any other remedy or relief is available at law or in equity. Any requirements for the securing or posting of any bond with such remedy are hereby waived.
(b) The Parties agree that in no case shall either Party be entitled to any indirect, consequential, incidental, punitive or special damages (including loss of future revenue, lost profits, diminution in value or multiple of earnings damages) in connection with any claim arising out of or related to this Agreement or the transactions contemplated hereby.
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Section 8.21 Interpretation.
(a) The phrases “the date of this Agreement”, “the date hereof” and terms of similar import, unless the context otherwise requires, shall be deemed to refer to February 26, 2018.
(b) The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
(c) References to Articles and Sections are to Articles and Sections of this Agreement unless otherwise specified.
(d) Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular.
(e) The word “or” shall be inclusive and not exclusive, unless the context otherwise requires.
(f) Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import.
(g) “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form.
(h) References to any Contract are to that Contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.
(i) References to any Person include the successors and permitted assigns of that Person; provided, however, that, for the avoidance of doubt, nothing in this Section 8.21(i) is intended to authorize, nor shall it be deemed to have authorized, any assignment or transfer not otherwise permitted by this Agreement.
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(j) The word “day”, unless otherwise indicated, shall be deemed to refer to a calendar day. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. If the last day for the giving of any notice or the performance of any act required or permitted under this Agreement is a day that is not a Business Day, then the time for the giving of such notice or the performance of such action shall be extended to the next succeeding Business Day.
(k) Unless the context otherwise requires, references to “Law”, “Laws” or to a particular Law shall be deemed to refer to such Law as amended from time to time, and to the rules and regulations promulgated thereunder.
[Signature Page Follows.]
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| FOUNDERS: | ||
| M SPAC LLC | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: Managing Member | ||
| M SPAC HOLDINGS I LLC | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: Managing Member | ||
| M SPAC HOLDINGS II LLC | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: Managing Member | ||
[Signature Page to Purchase Agreement]
| PRIORITY: | ||
| PRIORITY HOLDINGS, LLC | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: Chief Executive Officer | ||
[Signature Page to Purchase Agreement]
Annex I
Knowledge of Founders
| 1. | Xxxxxx Xxxxx |
| 2. | Xxxx Xxxxxx |
Annex II
Knowledge of Priority
| 1. | Xxxxxx X. Xxxxxx |
Annex III
Ownership of Acquired SPAC Interests
| Founder | Acquired SPAC Units | Acquired Founders Shares | Cash Payment pursuant to Section 2.05(a) | Forfeited Shares | Shares issued or Cash paid pursuant to Section 2.06(b)(i) or 2.06(b)(ii) |
M
SPAC LLC |
277,941
|
294,168 | $1,814,474.97 | 113,500 | 113,500 |
| M
SPAC HOLDINGS I LLC |
60,000 | 64,574 | $301,781.02 | 24,915 | 24,915 |
| M
SPAC HOLDINGS II LLC |
83,166 | 94,468 | $1,779.01 | 36,449 | 36,449 |
| TOTAL |
421,107 | 453,210 | $2,118,035.00 | 174,863 | 174,863 |
