MEMBERSHIP INTEREST PURCHASE AGREEMENT By GEX Management, Inc. (“Buyer”) And Julia Hashemieh. (“Seller”) MEMBERSHIP INTEREST PURCHASE AGREEMENT
Exhibit 10.1
By
GEX
Management, Inc. (“Buyer”) And
Xxxxx
Xxxxxxxxx. (“Seller”)
THIS MEMBERSHIP INTEREST PURCHASE
AGREEMENT (this “Agreement”) is entered into
effective as of August 3, 2018 (“Effective Date”) by and among GEX
Management, Inc., a Texas corporation (“Buyer”), and Xxxxx Xxxxxxxxx, an
individual residing in California (“Seller”) (collectively
“Parties” and individually
“Party”), for
the purchase of the 26% of the member interests in Payroll Express,
LLC, a California limited liability company (“PAYEX”).
RECITALS
WHEREAS, PAYEX is a limited liability
company that owns certain service agreements of which true and
correct copies have been reviewed and sent to Buyer by Seller;
and
WHEREAS, the Seller owns seventy-five
percent (75%) of the member interests in PAYEX (the
“PAYEX Member
Interest”); and
WHEREAS, Buyer wishes to buy from
Seller, and Seller wishes to sell to Buyer the PAYEX Member
Interests, subject to the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the
mutual agreements and covenants contained herein and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Buyer and Seller hereby agree as
follows:
Article
I.
SALE
AND PURCHASE OF PAYEX
1.0 Sale
and Purchase of PAYEX Member Interest; Consideration. The
Seller hereby agrees, subject to the terms and conditions of this
Agreement, to sell, assign, transfer and deliver to Buyer at the
Closing (as hereinafter defined) free and clear of all liens,
claims, charges, limitations, agreements, restrictions and
encumbrances whatsoever, the PAYEX Member Interest for the
consideration specified in Section 1.1. The Seller hereby
transfers all title over the PAYEX Member Interest to Buyer at the
time of Closing, which includes all rights and obligations
connected to the PAYEX Member Interest including but not limited to
all rights to dividends, capital, all voting rights and for
avoidance of doubt any dividends which are due but not yet paid
will become due and paid to Buyer. The transfer is effective at the
execution of this Agreement and the issuance of the consideration
defined in Section1.2.
1.1
Total Purchase Price for PAYEX Member
Interest. The total purchase price for the PAYEX Member
Interest shall be two hundred and fifty thousand dollars ($250,000)
and two million warrants of GXXM stock (“Cash Consideration”).
1.2 Closing.
The closing of the sale and purchase of the PAYEX Member Interest
to the Buyer shall take place contemporaneously with the execution
of this Agreement at the offices of the Seller (the
“Closing”).
Buyer shall deliver to Seller the Cash Consideration by initiating
a wire transfer to Seller’s bank. In the event that the sale
of PAYEX Member Interest does not close, both Buyer and PAYEX
mutually agree that PAYEX will repay the convertible note with
Civitas Alternative Lending, LLC that was executed on June 4,
2018.
Article
II.
REPRESENTATIONS
AND WARRANTIES
2.0
Representations and
Warranties of Buyer. PAYEX and Seller represents and
warrants to and agrees to Seller, as follows:
(a) Organization;
Power and Authority; Authorization; Subsidiaries. PAYEX is a
limited liability company duly organized, validly existing and in
good standing under the laws of the State of California and Seller
has full corporate power and authority to execute and deliver this
Agreement and to perform the Seller’s obligations hereunder
and thereunder. Seller has all requisite power and authority and
all authorizations, licenses and permits necessary to own, lease
and operate its properties and other assets, to conduct its
businesses as presently conducted and as proposed to be conducted.
The execution, delivery and performance by Seller of this Agreement
and has been duly and validly authorized by all necessary corporate
action.
(b) Non-Contravention;
Governmental Authorities and Consents. The execution,
delivery and performance of this Agreement does not and will not
violate, result in creation of a lien under, or cause a default or
a breach of any term or provision of (i) any statute or other law
applicable to Buyer, (ii) any rule or regulation of any
governmental agency or authority applicable to Seller, (iii) any
agreement, document or instrument to which Seller is a party or by
which it is bound, (iv) any judgment, order or decree of any court
or governmental agency or authority applicable to Seller or PAYEX
or (v) the organizational documentation of PAYEX or any resolution
of the Seller’s Board of Directors, members or managers. No
consent, approval, or other authorization is required on the part
of any person, governmental authority or other entity in connection
with the execution, delivery and performance of this Agreement by
the Seller.
(c) No
Undisclosed Liabilities. PAYEX does not have any undisclosed
liabilities or obligations of any nature (whether accrued,
absolute, contingent or otherwise) that would be required to be
reflected on a balance sheet or in notes thereto prepared in
accordance with United States generally accepted accounting
principles applied on a consistent basis, except for liabilities or
obligations (i) disclosed in Buyer’s financial statements,
(ii) incurred in the ordinary course of
business and consistent with past practices since the date of the
latest Buyer balance sheet and (iii) that are not material in the
aggregate to PAYEX or Seller. Seller and PAYEX have filed all
necessary tax returns and/or audit documentation with the proper
tax and/or regulatory authority.
(d)
Bankruptcy Matters. Seller and
PAYEX are not subject to any voluntary case under title 11 of the
United States Code or any other bankruptcy, insolvency or similar
law of any state, federal, foreign or other jurisdiction, nor has
any Person commenced an involuntary case against or involving the
Seller and/or PAYEX under title 11 of the United States Code or any
other bankruptcy, insolvency any similar law of any state, federal,
foreign or other jurisdiction.
(e)
PAYEX’s Capitalization.
All of the PAYEX Member Interest has been duly authorized, are
validly issued, fully paid and non-assessable, and are owned of
record beneficially by Seller, free and clear of all
encumbrances. Upon consummation of the transactions
contemplated herein, Buyer shall own an additional 26% of the PAYEX
Member Interest free and clear of all encumbrances, for a total of
51% non-dilutive ownership of PAYEX Member Interest.
(f) All
of the PAYEX Member Interest was issued in compliance with
applicable laws. None of the PAYEX Member Interest was issued in
violation of any agreement, arrangement or commitment to which
Seller is a party or is subject to or in violation of any
preemptive or similar rights of any person.
(g) Legal
Proceedings; Governmental Orders. There is no claim, action,
cause of action, demand, lawsuit, arbitration, inquiry, audit,
notice of violation, proceeding, litigation, citation, summons,
subpoena or investigation of any nature, civil, criminal,
administrative, regulatory or otherwise whether at Law or in equity
(“Actions”) are
pending or, threatened or accrued (i) against or by PAYEX and/or
Seller affecting any of its properties or assets or (ii) against or
by PAYEX and/or Seller that challenges or seeks to prevent, enjoin
or otherwise delay the transactions contemplated by this
Agreement.
(i)
Assets and Real Property of
PAYEX. PAYEX owns certain service agreements (the
“Service
Agreements”) that have been received and sent to
Buyer, in their true and correct form. The Service Agreements are
free from any mortgages, liens, pledges, charges, encumbrances,
equities, claims, covenants, conditions or restrictions except as
shown on the financial records of PAYEX or disclosed herein by
PAYEX and/or Seller.
2.1 Representations
and Warranties of Buyer. Buyer represents and warrants
and agrees to Seller, as follows:
(a) Organization
of the Buyer. Buyer is a Texas corporation and is duly
organized, validly existing, and in good standing in the State of
Texas.
(b) Authorization
of Transaction. Seller, through its Board of Directors, has
full capacity, power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby. Buyer does not
need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions
contemplated by this Agreement.
(c) Noncontravention.
To Buyer’s knowledge, neither the execution and the delivery
of this Agreement, nor the consummation of the transactions
contemplated hereby, will in any material respect (A) violate any
constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Buyer or is
subject or any provision of its organization documents, as
applicable or (B) conflict with, result in a breach of, constitute
a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require
any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Buyer is a party or by
which any of Buyer's assets is subject.
Article
III.
INDEMNIFICATION
Seller
shall defend, indemnify and hold Buyer and its officers, directors,
and affiliates (collectively, the
“Buyer’s Indemnified
Parties”) harmless from any and all Third Party Claims
and Losses resulting from (a) any material breach or material
inaccuracy of a representation or warranty of Seller and/or PAYEX
contained in this Agreement; or (b) any failure by Seller to
perform or comply with any covenant applicable to it contained in
this Agreement. Seller’s liability under this indemnification
provision will not be limited to the amount that Buyer has paid to
the Seller under this Agreement.
Article
IV.
GENERAL
4.0
Expenses. Except as otherwise
expressly provided herein, all costs and expenses, including,
without limitation, fees and disbursements of counsel, financial
advisors and accountants,
incurred in connection with this Agreement and the transactions
contemplated herein shall be paid by the Party incurring such costs
and expenses, whether or not the Closing shall have
occurred.
4.1 Assignment.
This Agreement and the other agreements entered into by the Parties
in connection herewith will be binding on the Parties hereto and
their respective heirs, estates, guardians, executors,
administrators, successors and assigns; provided, however, other
than the Parties and their respective heirs, estates, guardians,
executors, administrators, successors and assigns, nothing in this
Agreement express or implied, is intended to confer upon any other
Person any rights, remedies, obligations or liabilities of any
nature whatsoever under or by reason of this
Agreement.
4.2 Severability.
If any term of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, then (a) such
provision will be interpreted, construed or reformed to the extent
reasonably required to render the same valid, enforceable and
consistent with the original intent underlying such provision; (b)
such provision will remain in effect to the extent it is not
invalid or unenforceable; and (c) the remainder of this Agreement
shall remain in full force and effect and shall in no way be
invalidated.
4.3 Waiver.
A delay or failure in enforcing any right or remedy afforded
hereunder or by law shall not prejudice or operate to waive that
right or remedy or any other right or remedy for a future breach of
this Agreement, whether of a like or different
character.
4.4 Governing
Law. This Agreement, including any exhibits attached hereto,
shall be construed in accordance with the substantive and
procedural laws of the United States and the State of Texas
applicable to agreements executed and wholly performed therein,
without regard to rules or principles of conflict of laws that
might require the application of the laws of any other
jurisdiction.
4.5 Entire
Agreement. This Agreement, including any exhibits attached
hereto, sets forth the entire agreement between the Parties and
supersedes all contracts, proposals or agreements, whether oral or
in writing, and all negotiations, discussions and conversations,
between the Parties with respect to the subject matter contained in
this Agreement. Any policies, agreements or understandings made
between the Parties relating to the subject matter of this
Agreement and not explicitly set forth in this Agreement are void
and unenforceable. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf
of each Party hereto.
4.6
Counterparts. This Agreement
may be executed in counterparts, each of which shall be considered
an original hereof but all of which together shall constitute one
agreement. It is the express intent of the Parties to be bound by
the exchange of signatures on this Agreement via
electronictransmissionsororiginalsignatures.
IN
WITNESS WHEREOF, each of the Parties hereto, intending to be
legally bound, has executed this Agreement as of the date first set
forth above.
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Buyer:
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By:
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Xxxx Xxxxxx, Chief
Executive Officer and Chairman
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Seller:
Xxxxx
Xxxxxxxxx
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By:
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Xxxxx
Xxxxxxxxx
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PAYEX:
Payroll
Express, LLC
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By:
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Xxxxx
Xxxxxxxxx
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