EX-10.1 3 prhl_8k-ex1001.htm MEMBERSHIP PURCHASE AGREEMENT FOR LEXINGTON POWER & LIGHT MEMBERSHIP INTEREST PURCHASE AGREEMENT
Exhibit 10.1
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT, (“Agreement”) dated as of September 9, 2014, by and among Premier Holding Corporation, a Nevada corporation (the “Purchaser”), Lexington Power & Light LLC, a New York limited liability company (the “Company”), Xxxxx Xxxxxxxx, an individual residing at 00 Xxxxxxxxx Xxxx, Xxxx Xxxxxxxx, Xxx Xxxx 00000 (“Xxxxxxxx”) and Xxxxxxx Xxxxxxxxxx, an individual residing at 00 Xxxx Xxxxxx, Xxxx Xxxxxxxxx Xxxxxxx, Xxx Xxxx 00000 (“Xxxxxxxxxx” and together with Xxxxxxxx, collectively referred to as the “Members”).
ARTICLE I
“Closing Date” shall have the meaning set forth in Section 2.5.
“Contract” means any contract, sub-contract, agreement, lease, license, commitment, sale or purchase order, note, loan agreement, indenture, guaranty or any other instrument, arrangement, or binding understanding of any kind, whether written or oral, and whether express or implied.
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“EBITDA” shall mean earnings before interest, taxes, depreciation and amortization of the Company computed in accordance with U.S. GAAP.
“GAAP” means United States generally accepted accounting principles, consistently applied throughout the specified period and in all prior comparable periods.
“Governmental Entity” means any (i) nation, state, commonwealth, county, city, town, village, district, or other jurisdiction of any nature, (ii) federal, state, local, municipal, foreign, or other government, (iii) federal, state, local or foreign governmental or quasi-governmental authority of any nature (including any agency, branch, department, board, commission, court or tribunal), (iv) multi-national or supra-national organization or body, (v) body exercising, or entitled or purporting to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power, including any court or arbitrator, (vi) self-regulatory organization or (vii) official of any of the foregoing.
“Hutcher Note” means that promissory note, dated as of December 11, 2013, issued by the Company to Xxxxx Xxxxxxx in the principal amount of $200,000, with interest accrued thereon.
“Laws” means all laws, statutes, common law, rules, codes, regulations, restrictions, ordinances, orders, decrees, approvals, directives, judgments, rulings, injunctions, writs and awards of, or issued or entered by, all Governmental Entities.
“Licenses” means all notifications, licenses, permits (including environmental, construction and operation permits), franchises, certificates, approvals, exemptions, classifications, registrations and other similar documents and authorizations issued by any Governmental Entity, and applications therefor.
“Liens” means all mortgages, liens, pledges, security interests, charges, claims, restrictions, title defects, easements, covenants, options, rights of first refusal and encumbrances of any nature whatsoever.
“Party” or “Parties” means, individually, the Purchaser, the Company or any Member, and, collectively, the Purchaser, the Company and the Members.
“Person” means any individual, corporation, partnership, joint venture, limited liability company, trust, unincorporated organization or Governmental Entity.
“Purchase Price” has the meaning ascribed to it in Section 2.2.
“Purchaser” has the meaning ascribed to it in the forepart of this Agreement.
“SEC” shall mean the Securities and Exchange Commission.
“Securities Laws” means the Securities Act of 1933, as amended and the rules and regulations promulgated thereunder and the Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder.
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ARTICLE II
(a)Subject to the terms and conditions hereof, at the Closing, the Members shall sell, assign, transfer and deliver to the Purchaser, and the Purchaser shall purchase and acquire from the Members, the Purchased Interests, free and clear of all Liens in accordance with Exhibit 2.1(a).
(b)The Purchaser shall receive an option to acquire the remaining 15% of the Membership Interests of the Company at the Closing from the Members (the “Option”) in accordance with the Option Agreement, substantially in the form attached hereto as Exhibit 2.1(b).
(c)The Purchaser shall repay the outstanding principal and accrued interest from the Hutcher Note as of the Closing Date, plus all outstanding legal fees.
(a)Guaranteed Payments: The Purchaser shall remit the following to the Members or their designees:
(i)The Purchaser shall remit the Members on a pro rata basis an aggregate amount equal to Five Hundred Thousand United States Dollars ($500,000) and payable pursuant to the terms of the Promissory Notes, in the form attached hereto as Exhibit 2.2(a)(1) and Exhibit 2.2(a)(2) issued to each of Xxxxxxxx and Xxxxxxxxxx, respectively (the “Purchase Price Notes”). The Purchaser hereby agrees that any failure to make timely payments as set forth under the Purchase Price Notes or this Section 2.2, the Members shall have the right to promptly (i) terminate this Agreement and any further obligation hereunder; and (ii) the sale and transfer of Purchased Interests to the Purchaser shall be deemed terminated (the “Termination Rights”); provided, that the Purchaser shall be entitled to retain an amount of Membership Interests equal to (x) the amount of issued and outstanding Membership Interests issued and outstanding multiplied by (y) the quotient of (i) the amount of cash actually paid by the Purchaser pursuant to the Purchase Price Note and (ii) $6,000,000. The Purchase Price Notes shall provide for thirty (30) day cure periods for any default of any monetary obligations. In the event the Members exercise the Termination Rights, the Purchaser shall promptly cooperate with any instruments or requirements necessary to effectuate the Termination Rights and such termination of any rights granted pursuant to the Third Amended and Restated Operating Agreement, attached hereto as Exhibit 2.2(a)(3) (the “Post Closing Operating Agreement”). In the event of such uncured default the Members shall be entitled to retain any of the amounts paid pursuant to the Purchase Price Notes prior to the default and any of the shares of Common Stock issued pursuant to Section 2.2(a)(ii); provided, however, nothing contained herein shall be deemed as a waiver of any rights or remedies of Members, at law or equity, arising out of or relating to such default.
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(ii)The Purchaser shall issue to the Members an aggregate amount of Seven Million Five Hundred Thousand (7,500,000) of shares (the “Guaranteed Equity Consideration”) of the Purchaser’s restricted common stock issued at Closing in the name of the Members, or their designees (subject to adjustment as described herein), with the following legend (the “Restricted Stock Legend”):
“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO PREMIER HOLDING CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.”
(b) Contingent Funding Obligation. The Purchaser hereby agrees and covenants that it use its best efforts during the period commencing on the date hereof through the first anniversary of the date hereof (the “Funding Period”) to obtain additional equity or convertible debt financing (the “Financing”) from third parties on an arm’s length and commercially reasonable basis for a minimum of $1,000,000 (the “Financing Proceeds”). The parties hereby agree that fifty percent (50%) of the Financing Proceeds shall be allocated as follows (i) first to the Members on a pro rata basis in the amount of $500,000; and (ii) thereafter any amounts in excess of the payment to the Members shall be allocated to the Company for working capital purposes for fiscal year ended 2015 in accordance with the terms of the Post Effective Operating Agreement.
(c)Earnout Payments: For the period commencing as of the Closing Date through the second anniversary thereafter (“Earnout Period”), upon the Company achieving an EBITDA of at least $2,500,000 (the “EBITDA Threshold”) for the most recent completed 12 fiscal months from the preceding year, the Purchaser shall remit within five (5) business days of receipt of audited financial statements of the Companyto the Members or any of their designees shall be entitled to the following on a pro rata as set forth on Exhibit 2.1(a): (i) Five Hundred Thousand Dollars ($500,000) (the “Earnout Cash Consideration”); and (ii) an aggregate amount of 2,500,000 shares of restricted Common Stock (the “Earnout Equity Consideration” and together with the Earnout Cash Consideration collectively referred to as the “Earnout Consideration”), with a Restricted Stock Legend or any other legend required by applicable Law. Notwithstanding anything to the contrary hereunder, in the event the Purchaser or any subsidiary thereof does not direct customer referrals resulting in gross revenues for the Company of at least $50,000,000 on an annual basis during the Earnout Period, the Members shall be entitled to all of the Earnout Consideration regardless of whether the EBIDTA Threshold is met by the Company.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY & MEMBERS
The Members and the Company represent and warrant to Purchaser that the statements contained in this Article III are true and correct as of the date of this Agreement, and will be true and correct as of the Closing Date (as though made then and as though such Closing Date was substituted for the date of this Agreement throughout this Article III). The Members have delivered a Disclosure Schedule (including exhibits thereto) to Purchaser setting forth certain information, the disclosure of which is required or appropriate in relation to any or all of the following representations and warranties.
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3.1Organization of the Company. The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New York. The property and business activity of the Company is an independent energy services company (“ESCO”) that sells electricity and natural gas. The Company is duly qualified, licensed or admitted to do business and is in good standing in those jurisdictions listed on Schedule 3.1(a) in which the character of its activities requires such qualification or licensing.
3.3Required Consents. Schedule 3.3 sets forth each action, consent, approval, notification, waiver, authorization, order or filing (each, a “Required Consent” and collectively, the “Required Consents”) under any Law, License or Contract to which the Company is or any of the Members is a party that is necessary with respect to the execution, delivery and performance of this Agreement to avoid a breach or violation of, or giving rise to any right of termination, cancellation or acceleration of any right or obligation or to a loss of any benefit under any such Law, License or Contract. Except as set forth on Schedule 3.3, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required with respect to the Company or any of the Members in connection with the execution, delivery or performance of this Agreement.
(a)The Company shall furnish to the Purchaser on or before the Closing Date true and complete copies of the audited consolidated balance sheets of the Company as of December 31, 2012 and December 31, 2013 and the related consolidated statements of operations, statement of changes in member’s equity and cash flows for the years then ended, together with the notes thereto, (the “Audited Financial Statements”), setting forth in each case in comparative form the corresponding figures for the corresponding dates and periods of the previous fiscal year, together with reports of auditors thereon. The Audited Financial Statements fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries, if any, as of the respective dates thereof, and the results of operations, changes in stockholder’s equity and cash flows for the periods set forth therein, all in conformity with GAAP. The parties hereby agree that all the costs of the Audited Financial Statements shall be borne by the Purchaser.
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(b)The Members and the Company shall cause all financial information to be available for inspection and review by Purchaser, including its executive officers, accountants, lawyers, and consultants for due diligence. Further, the Members and the Company shall cooperate with the preparation of the financial statements, including notes to financial statements and pro forma statements to enable Purchaser to complete all filings with the Securities and Exchange Commission in a timely manner.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser represents and warrants to the Members that the statements contained in this Article IV are true and correct as of the date of this Agreement, and will be true and correct as of the Closing Date (as though made then and as though such Closing Date was substituted for the date of this Agreement throughout this Article IV).
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4.4 Capitalization of Purchaser. Schedule 4.4(a) accurately and completely sets forth the capital structure of the Purchaser by listing thereon the number of shares of capital stock of the Purchaser which are authorized and which are issued and outstanding. All of the issued and outstanding shares of capital stock of the Purchaser have been duly authorized and validly issued and are fully paid and non-assessable. Except as set forth on Schedule 4.4(b), there are no outstanding options, warrants, conversion rights, subscriptions or other rights entitling any Person to acquire or receive, or requiring the Purchaser to issue, any shares of its capital stock or securities convertible into, or exchangeable for, shares of capital stock. Except as set forth on Schedule 4.4(c) there are no outstanding Contracts of the Purchaser or any other Person to purchase, redeem, or otherwise acquire any of the shares of capital stock of the Purchaser or securities or obligations of any kind convertible into any shares of capital stock of the Purchaser. There are no dividends which have accrued or been declared, but are unpaid on the capital stock of the Purchaser. Except as set forth on Schedule 4.4(d), there are no outstanding or authorized stock appreciation, phantom stock, stock plans or similar rights with respect to the Purchaser. Except as set forth herein the Purchaser has not granted any registration rights to any third parties.
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4.10Brokers, Finders and Investment Bankers. Neither the Purchaser, nor any officer, member, director or employee of the Purchaser, nor any affiliate of the Purchaser has employed any broker, finder or investment banker or incurred any liability for any investment banking fees, financial advisory fees, brokerage fees or finders’ fees in connection with the transactions contemplated hereby where such liability would be payable by the Company or any Member.
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4.12Full Disclosure. No representation or warranty by the Purchaser in this Agreement or any certificate or other document furnished or to be furnished by the Purchaser to the Members or the Company pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.
ARTICLE V
CONDITIONS TO CLOSING FOR THE COMPANY AND THE MEMBERS
All obligations of the Members under this Agreement are subject to the fulfillment, prior to or as of the Closing Date, of each of the following conditions:
5.3 Purchaser shall have remitted the applicable payment required to repay the Hutcher Note as set forth in Section 2.1(c) hereof.
5.4The Purchaser shall have executed and delivered the Purchase Price Notes to the applicable Member, substantially in the form attached hereto as Exhibit 2.2(a)(1) and Exhibit 2.2(a)(2). The Purchaser shall also cause to be issued the Guaranteed Equity Consideration to the Members or the applicable designees.
5.5The Company shall have executed and delivered the Consulting Agreement, by and between the Company and Lexington Trading Partners, LLC (the “Consultant”), in the form attached hereto as Exhibit 5.5 (the “Consulting Agreement”).
5.6The Company and the Purchaser shall have executed and delivered the Post Effective Operating Agreement.
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5.7The Members shall simultaneously transfer ownership their remaining fifteen (15) Membership Interests to the Consultant as evidenced
5.8The Purchaser shall have executed and delivered the Option Agreement to the Consultant.
5.9The Company shall have issued to the Consultant a certificate evidencing its ownership of 15 Membership Interest Units of the Company.
5.10Purchaser will have delivered to the Members, or caused the delivery of all of the schedules described herein.
5.11 Purchaser will have delivered all documents and instruments evidencing the appointment and the rights granted to the Board Representative as set forth in Section 2.3 hereof.
5.13Purchaser shall have taken such action to add the Board Representative to the Purchaser’s Director and Officer Errors and Omissions Insurance Policy with the coverages as previously disclosed by the Purchaser to the Members and the Company.
5.14Purchaser shall have remitted all payments to third parties in connection with the costs arising from this Agreement, including, but not limited to, any payments to the Company’s auditors and all expenses incurred pursuant to Section 12.2 hereof.
ARTICLE VI
CONDITIONS TO CLOSING FOR THE PURCHASER
All obligations of Purchaser under this Agreement are subject to the fulfillment, prior to or as of the Closing Date, of each of the following conditions:
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6.3In addition to the conveyance and delivery of the Purchased Interests, the Members shall have taken all action necessary to deliver electronic copies all of the Company's corporate books and records, including but not limited to its files, documents, papers, agreements, formulas, books of account, and records pertaining to its business, and evidence of compliance with applicable securities laws, if required and requested by Purchaser's counsel.
6.4The Company’s Financials. Before Closing, the Company will have delivered the Audited Financial Statements to Purchaser.
6.5 The Company and the Consultant shall have executed and delivered the Post Effective Operating Agreement.
6.6The Company shall have delivered the original Hutcher Note marked cancelled evidencing the full repayment and termination of any obligations thereunder.
6.7The Members (or any designees thereof) and the Board Representative shall execute any and all instruments necessary for compliance with applicable Laws to grant the rights hereunder.
ARTICLE VII
PRE-CLOSING COVENANTS OF THE MEMBERS & COMPANY
Up to and including the Closing Date, the Members and the Company covenant that:
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ARTICLE VIII
PRE-CLOSING COVENANTS OF THE PURCHASER
8.1 Maintenance of Capital Structure. Up until the Closing Date, or termination hereof, whichever is the earlier, except as disclosed herein or required under the terms of this Agreement, no change shall be made in the Articles of Incorporation or Bylaws of Purchaser, or the authorized capital stock of Purchaser as set forth on Schedule 4.1 hereof.
8.3 Conduct of Business as Usual. Up until the Closing Date, Purchaser shall conduct its operations only in the ordinary course, and that no material change will be made to such operations that might adversely affect the value of Purchaser. The Purchaser shall maintain the D&O Policy.
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ARTICLE IX
(a) Breach or Noncompliance by the Members. The Company or the Members shall fail to comply in any material aspect with any of their representations, warranties, or obligations under this Agreement, or if any of the representations or warranties made by the Members under this Agreement shall be inaccurate in any material respect and is not cured within ten (10) business days of notice of such breach.
(c) Each of the parties hereby agree to deliver any and all due diligence items (“Due Diligence Items") reasonably requested by the other party prior to the Closing Date (“Due Diligence Period”). In the event any party fails to provide such Due Diligence Items or any Due Diligence Item could result in a material adverse effect on the terms of this Agreement or the parties ability to perform their obligations hereunder or any Exhibits hereto, the other party may terminate this Agreement for cause.
(d) In the event either Party’s breach causes the termination of this Agreement, the breaching Party shall be liable for all costs and expenses (including legal expenses) incurred by the other Party in connection with this Agreement, up to a maximum of $100,000.
ARTICLE X
COMPLIANCE WITH SECURITIES LAWS AND POST CLOSING COVENANTS
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(a)Subject to the restrictions set forth in Section 2.4 hereof, for a period of five (5) years from the Closing Date (the “Anti-Dilution Period”), except with respect to any awards under or issuances of shares of Common Stock expressly permitted hereunder, in the event that the Purchaser at any time after the Closing desires to accept a bona fide third party offer (the “Offer”) for the issuance, sale or exchange or any agreement or obligation of the Purchaser to issue, sell or exchange (i) any shares of Common Stock of the Purchaser ; (ii) any other equity security of the Purchaser ; (iii) any other security which by its term is convertible or exchangeable or exercisable for any equity security of the Purchaser ; (iv) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such security described in the foregoing clauses (i) through (iii); or (v) any debt instruments or securities, including promissory notes and convertible debt instruments (the “ROFR Interests”), the Purchaser shall promptly deliver to the Members the terms and conditions of the Offer (the “Offer Notice”).
(b)The Members shall, for a period of twenty (20) days following receipt of the Offer Notice, (the "First Refusal Period"), have the right to purchase up to such portion of the ROFR Interests upon the same terms and conditions specified in the Offer Notice, in order to maintain the Member’s beneficial ownership interest percentage in the Purchaser on a fully diluted basis as of the date of the Offer Notice. Such right shall be exercisable by written notice (the “First Refusal Notice”) delivered to the Purchaser prior to the expiration of the First Refusal Period. If such right is exercised with respect to the ROFR Interests, then the Members and the Purchaser shall effect the purchase and sale of such ROFR Interests purchasable hereunder by the Purchaser, including payment of the purchase price, not more than thirty (30) business days after the receipt of the First Refusal Notice by the Purchaser.
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(c)In the event the First Refusal Notice is not delivered by the Members to the Purchaser within the First Refusal Period, the Members shall be deemed to have irrevocably waived its right of first refusal with respect to such proposed disposition.
(a)The Company’s day to day operations shall be managed by Members or any designees thereof as contemplated by the Consulting Agreement and the Xxxxxxxxxx Employment Agreement.
(b)In the event the Senior Lender or it successor no longer requires the Key Man Insurance Policies currently in place on the lives of certain personnel of the Company, the Members shall be entitled to take assignment of all such policies.
(c)The Purchaser shall cooperate with any cancellation, termination or replacement of the current personal guarantees of the Members for any of the Company’s material Contracts, including, but not limited to, the Company’s Lease, dated as of _______________________.
(d)In the event the Purchaser shall fail to make payments pursuant to the Purchase Price Notes, the Members shall be entitled to issue additional Membership Interests of the Company in their sole and absolute discretion.
(e)The Purchaser shall be responsible for any and all additional capital contributions or liquidity requirements of the Company following the Closing Date; provided that, the Purchaser shall not be entitled to cause any action to issue any additional Membership Interests of the Company during the Anti-Dilution Period.
ARTICLE XI
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11.2Indemnification Obligations of the Purchaser. The Purchaser shall indemnify and hold harmless the Members (the "Member Indemnified Parties") from, against and in respect of any and all claims, liabilities, obligations, losses, damages, costs, expenses, penalties, fines and judgments (at equity or at law, including statutory and common) and damages whenever arising or incurred (including amounts paid in settlement, costs of investigation and reasonable attorneys’ fees and expenses) arising out of or relating to: (i) any breach or inaccuracy of any representation or warranty made by the Purchaser in this Agreement, whether such representation and warranty is made as of the date hereof or as of the Closing Date; or (ii) any breach of any covenant, agreement or undertaking made by the Purchaser in this Agreement. The claims, liabilities, obligations, losses, damages, costs, expenses, penalties, fines and judgments of the Member Indemnified Parties described in this Section 11.2 as to which the Member Indemnified Parties are entitled to indemnification are collectively referred to as “Company Losses”.
11.3Indemnification Procedure.
(a)Promptly following receipt by an indemnified party (an "Indemnified Party") of notice by a third party of any complaint, dispute or claim or the commencement of any audit, investigation, action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for any Purchaser Losses or any Company Losses (as the case may be), such Indemnified Party shall provide written notice thereof to the Purchaser or the Company, as the case may be (the “Indemnifying Party”); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability hereunder with respect to such claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within ten (10) days thereafter assuming full responsibility for any Purchaser Losses or Company Losses (as the case may be) resulting from such audit, investigation, action or proceeding, to assume the defense of such audit, investigation, action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 10-day period, then any Purchaser Losses or any Company Losses (as the case may be), shall include the reasonable fees and disbursements of counsel for the Indemnified Party as incurred. In any audit, investigation, action or proceeding for which indemnification is being sought hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party (as the case may be) shall at all times use reasonable efforts to keep the Indemnifying Party or Indemnified Party (as the case may be) reasonably apprised of the status of the defense of any matter the defense of which it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
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(b)No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party (which may not be unreasonably withheld or delayed), unless such settlement, compromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of, or related to, such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent (x) includes an unconditional release of the Indemnified Party from all liability arising out of, or related to, such claim, (y) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any order, judgment or term that in any manner affects, restrains or interferes with the business of the Indemnified Party.
(c)In the event an Indemnified Party claims a right to payment pursuant hereto, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party (a “Notice of Claim”). Such Notice of Claim shall specify the basis for such claim. The failure by any Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any claim made pursuant to this Section 11(c). In the event the Indemnifying Party does not notify the Indemnified Party within fifteen (15) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under this Section 11 or the amount thereof, the claim specified by the Indemnified Party in such Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. In the event the Indemnifying Party has timely disputed its liability with respect to such claim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five (5) business days following the final determination of the merits and amount of such claim, the Indemnifying Party shall pay to the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder.
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ARTICLE XII
To the Purchaser: | Premier Holding Corporation | |
0000 Xxxxxxxx Xxxxxx, Xxxx X Xxxxxx, Xxxxxxxxxx 00000 Attn: Xxxxxxx Xxxxxxxxx Facsimile No.: (000) 000-0000 |
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with a copy to: | Weed & Co. L.C. | |
0000 XxxXxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx Xxxxx, XX 00000-0000 Attn: Xxxx Xxxx Facsimile No.: (949) 475-908 |
To the Company | ||
Or the Members: | Xxxxx Xxxxxxxx & Xxxxxxx Xxxxxxxxxx 000 Xxxxxxx Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 Facsimile No: (000) 000-0000 | |
with a copy to: | Davidoff Hutcher & Citron LLP 000 Xxxxx Xxxxxx 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn: Xxxxx Xxxxxxx, Esq. Facsimile No.: (000) 000-0000 |
or to such other representative or at such other address of a Party as such Party may furnish to the other parties in writing. Any such notice, communication or delivery shall be deemed given or made (a) on the date of delivery, if delivered in person, (b) upon transmission by facsimile if receipt is confirmed by telephone, (c) on the first (1st) Business Day following delivery to a national overnight courier service or (d) on the fifth (5th) Business Day following it being mailed by registered or certified mail. Any Party may change its address for the receipt of notices, requests, demands, claims and other communications hereunder by giving each other Party notice of such change in the manner herein set forth.
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12.7 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal Laws of the State of New York without reference to its choice of law rules. Each Party irrevocably and unconditionally (a) consents to submit to the exclusive jurisdiction of the state courts sitting in the State of New York and of the United States District Court for the Southern District of New York for any action, dispute, suit or proceeding arising out of or relating to this Agreement (and each party irrevocably and unconditionally agrees not to commence any such action, dispute, suit or proceeding except in such courts), (b) waives any objection to the laying of venue of any such action, dispute, suit or proceeding in any such courts and (c) waives and agrees not to plead or claim that any such action, dispute, suit or proceeding brought in any such court has been brought in an inconvenient forum. Each Party hereby irrevocably waives any and all rights to trial by jury in any legal proceeding arising out of or related to this Agreement. If any Party shall commence any action or proceeding for any relief against any other Party, declaratory or otherwise, arising out of this Agreement, the substantially prevailing Party shall have its reasonable attorneys’ fees and costs related to such action or proceeding and/or enforcing any judgment or order granted therein paid by the adverse Party or Parties in such action or proceeding, all of which shall be deemed to have accrued upon the commencement of such action or proceeding and shall be paid whether or not such action or proceeding is prosecuted to judgment..
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SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.
“Purchaser”
Premier Holding Corporation
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
“Members”
Xxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: an individual and the owner and holder of 65 membership units of the Company
Xxxxxxx Xxxxxxxxxx
By: /s/ Xxxxxxx Xxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxx
Title: an individual and the owner and holder of 35 membership units of the Company
“the Company”
Lexington Power and Light, LLC
By: /s/ Xxxxxxx Xxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
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Exhibit 2.1(b).
OPTION AGREEMENT
OPTION AGREEMENT, (“Agreement”) dated as of September __, 2014 (the “Effective Date”) by and between Premier Holding Corporation, a Nevada corporation (“PRHL”) and Lexington Trading Partners, LLC, a New York limited liability company (the “Member”), a member of Lexington Power and Light, LLC, a limited liability company organized under the laws of New York (the “the Company”).
ARTICLE I
“Member” shall mean Lexington Trading Partners, LLC and its successors and assigns, the owner and holder of 15 membership interest units of the Company.
ARTICLE II
Exercise. The Option must be exercised by PRHL between the Effective Date and December 31, 2018 (the “Option Period”). To exercise the Option under this Agreement, PRHL shall any time within the Option Period deliver to the Member an unmodified and fully executed Notice of Exercise in the form attached hereto as Exhibit A (“Notice of Exercise”). Within twenty (20) business days of the Member receipt of the unmodified and fully executed Notice of Exercise, PRHL shall deliver to Member consideration of Twenty Million United States Dollars ($20,000,000) (the “Consideration”). The Consideration is payable one-half in cash and one-half in common stock of PRHL. The value of the PRHL common stock shall be determined based upon the 10 day volume weighted closing price for PRHL common stock as reported by Bloomberg, NASDAQ, OTC Bulletin Board or other nationally recognized stock reporting service for the 10 trading days immediately preceding the Notice of Exercise.
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Entire Agreement. This Agreement, including the exhibits attached hereto and the documents referenced herein, constitute the entire agreement between the parties hereto relative to the subject matter hereof. Any prior negotiations, correspondence, or understandings relative to the subject matter hereof shall be deemed to be merged in this Agreement and the exhibits attached hereto. This Agreement may not be amended or modified except in writing executed by both of the parties hereto.
Interpretation. Whenever the context requires, the singular shall include the plural, the plural shall include the singular, the whole shall include any part thereof, any gender shall include both other genders, the term “person” shall include an individual, partnership (general or limited), corporation, limited liability company, trust, or other entity or association or combination thereof. The section headings contained in this Agreement are for purposes of reference only and shall not limit, expand, or otherwise affect the construction of any provision of the Agreement. Time is of the essence of this Agreement. The provisions of this Agreement shall be construed both as covenants and conditions in the same manner as though the words importing such covenants and conditions were used in each separate provision hereof.
No Waiver. Acceptance by either party of any performance less than required hereby shall not be deemed to be a waiver of the rights of such party to enforce all of the terms and conditions hereof. Except as otherwise expressly provided herein, no waiver of any such right hereunder shall be binding unless reduced to writing and signed by the party to be charged therewith.
Invalidity of Provision. If any provision of this Agreement, as applied to either party or to any circumstance, shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, the same shall in no way affect, to the maximum extent permitted by applicable law, any other provision of this Agreement, the application of any such provision under circumstances different from those adjudicated by the court, or the validity or enforceability of the Agreement as a whole.
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original of this Agreement and all of which, when taken together, shall be deemed to constitute one and the same agreement. Any party to this Agreement may deliver an executed copy hereof by facsimile or electronic transmission in a portable document format (PDF) to another party hereto and any such delivery shall have the same force and effect as any other delivery of a manually signed copy of this Agreement.
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Drafting. This Agreement has been negotiated between the Parties and, for construction and enforcement purposes, shall not be deemed the drafting product of any one Party.
Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York without reference to its choice of law rules. Each Party irrevocably and unconditionally (a) consents to submit to the exclusive jurisdiction of the state courts sitting in the State of New York and of the United States District Court for the Southern District of New York for any action, dispute, suit or proceeding arising out of or relating to this Agreement (and each party irrevocably and unconditionally agrees not to commence any such action, dispute, suit or proceeding except in such courts), (b) waives any objection to the laying of venue of any such action, dispute, suit or proceeding in any such courts and (c) waives and agrees not to plead or claim that any such action, dispute, suit or proceeding brought in any such court has been brought in an inconvenient forum. Each Party hereby irrevocably waives any and all rights to trial by jury in any legal proceeding arising out of or related to this Agreement. If any Party shall commence any action or proceeding for any relief against any other Party, declaratory or otherwise, arising out of this Agreement, the substantially prevailing Party shall have its reasonable attorneys’ fees and costs related to such action or proceeding and/or enforcing any judgment or order granted therein paid by the adverse Party or Parties in such action or proceeding, all of which shall be deemed to have accrued upon the commencement of such action or proceeding and shall be paid whether or not such action or proceeding is prosecuted to judgment.
Day of Performance. In computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included. The term “business day” means any calendar day which is not a Saturday, Sunday, or federal holiday. Any deadline, expiration date, or other date on which performance is due, as described in this Agreement, which does not fall on a business day, shall be automatically extended to occur on the first immediately following business day.
No Third Party Beneficiaries.This Agreement is for the sole and exclusive benefit of the parties hereto and no third party is intended or shall have any rights hereunder. PRHL shall not be entitled to assign, transfer or convey any of the rights contained herein without the express written consent of the Members.
Fairness. Each party represents and agrees that the terms of this Agreement, and the transactions contemplated herein, are fair and reasonable to such party, taking into account all existing circumstances affecting the parties. The parties further represent and agree that they have had full and sufficient opportunity to obtain separate tax advice and legal counsel in the matters related to this Agreement.
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
“PRHL”
Premier Holding Corporation
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
“Member”
LEXINGTON TRADING PARTNERS, LLC
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Manager and the owner and holder of 15 membership interest units of the Company
“the Company”
Lexington Power and Light, LLC
By: /s/ Xxxxxxx Maganello
Name: Xxxxxxx Maganello
Title: Vice President
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Exhibit A
To
Option Agreement
NOTICE OF EXERCISE OF OPTION
Premier Holding Corporation provides notice to Lexington Trading Partners, LLC (owner and holder of 15 membership units of the Company) of its exercise of the Option set forth in the foregoing Option Agreement.
Dated: ____________, 20__
Premier Holding Corporation
By: _______________
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
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