COMMON STOCK PURCHASE AGREEMENT by and between and among Giant Beverage, Inc And Frank Iemmiti and Anthony Iemmiti (the “Sellers”) and HISPANICA INTERNATIONAL DELIGHTS OF AMERICA, INC. A DELAWARE CORPORATION (the “Buyer”) dated as of September 23,...
Exhibit 10.1
by and
between and among
Giant Beverage, Inc
And
Xxxxx Xxxxxxx and Xxxxxxx Xxxxxxx
(the
“Sellers”)
and
HISPANICA INTERNATIONAL DELIGHTS OF AMERICA, INC. A DELAWARE
CORPORATION
(the
“Buyer”)
dated
as of
September 23, 2017
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This
Common Stock Purchase Agreement (this “Agreement”) is dated as of
September 23, 2017, between:
Giant
Beverage, Inc., a New York corporation (“Giant”), Xxxxx
Xxxxxxx and Xxxxxxx Xxxxxxx (collectively, the “Seller” or the “Sellers”) and Hispanica
International Delights of America, Inc., a Delaware corporation
(the “Buyer”).
Recitals
●
WHEREAS, the
Sellers own 100% of its issued and outstanding Common Stock of
Giant (the “Common Stock”), which amount is 200 shares
of Common Stock (the “Seller Shares”).
●
WHEREAS, the Seller
wishes to sell to the Buyer, and the Buyer wishes to purchase from
the Seller, all the Common Stock owned by the Seller, subject to
the terms and conditions set forth herein;
●
NOW, THEREFORE, in
consideration of the mutual covenants and agreements hereinafter
set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
1.01.
Definitions.
The
following terms have the meanings specified or referred to in this
Article
I:
“Action” means any 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.
“Affiliate” of a Person means any
other Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common
control with, such Person. The term “control”
(including the terms “controlled by” and “under
common control with”) means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership
of voting securities, by contract or otherwise.
“Business Day” means any day except
Saturday, Sunday or any other day on which commercial banks located
in New York, NY are authorized or required by Law to be closed for
business.
“Commercialization
Rights” shall mean all rights (other than the
Intellectual Property Rights) owned or controlled by Sellers and
Giant, including, but not limited to, the right to manufacture,
have manufactured, use, offer to sell, sell, import and export
including all regulatory filings, inventory, marketing materials,
contracts, manufacturing agreements, online and retail accounts
distributions agreements and all other rights, to commercialize the
Product in the Territory
“Consumer Marketing and Sales Strategy
and Agreements” shall mean Giant Beverage’s
strategy to sell the Product to consumers directly or through third
party retailers, wholesalers or other distributors and any
agreements oral or written with such parties;
“Encumbrance” with respect to any
property or asset, any mortgage, deed of trust, lien, pledge,
security interest, claim, lease, charge, option, right of first
refusal, easement, servitude, proxy, hypothecation, voting trust or
agreement, transfer restriction under any shareholder or similar
agreement, encumbrance or any other comparable restriction or
limitation whatsoever in respect of such property or asset. For the
avoidance of doubt, “Encumbrance” shall exclude any
restrictions on transfer under securities Laws.
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“Equity Interests” means, with
respect to a Person (a) any shares, participations, capital stock
or similar security in a corporation, partnership interests in a
general partnership or limited partnership, membership interests in
a limited liability company, or the comparable instruments for any
other entity, or any other interest entitling the holder thereof to
participate in the profits of such Person, the proceeds or the
disposition of such entity or any portion thereof, or to vote for
the governing body of such entity and (b) options, warrants or
other securities convertible into, or exercisable for, or
exchangeable for, any equity securities (including those set forth
in clause (a)) of such Person.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“GAAP” means Common Stocked States
generally accepted accounting principles, consistently applied and
as in effect from time to time.
“Governmental Authority” means any
federal, state, local or foreign government or political
subdivision thereof, or any agency or instrumentality of such
government or political subdivision, or any self-regulated
organization or other non-governmental regulatory authority or
quasi-governmental authority (to the extent that the rules,
regulations or orders of such organization or authority have the
force of Law), or any arbitrator, court or tribunal of competent
jurisdiction.
“Governmental Order” means any
order, writ, judgment, injunction, decree, stipulation,
determination or award entered by or with any Governmental
Authority.
“Intellectual
Property” means all intellectual property and
intellectual property rights and assets, and all rights, interests
and protections that are associated with, similar to, or required
for the exercise of, any of the foregoing, however arising,
pursuant to the Laws of any jurisdiction throughout the world,
whether registered or unregistered, including any and all: (a)
trademarks, service marks, trade names, brand names, logos, trade
dress, design rights and other similar designations of source,
sponsorship, association or origin, together with the goodwill
connected with the use of and symbolized by, and all registrations,
applications and renewals for, any of the foregoing; (b) internet
domain names, whether or not trademarks, registered in any
top-level domain by any authorized private registrar or
Governmental Authority, web addresses, web pages, websites and
related content, accounts with Twitter, Facebook and other social
media companies and the content found thereon and related thereto,
and URLs; (c) works of authorship, expressions, designs and design
registrations, whether or not copyrightable, including copyrights,
author, performer, moral and neighboring rights, and all
registrations, applications for registration and renewals of such
copyrights; (d) inventions, discoveries, trade secrets, business
and technical information and know-how, databases, data collections
and other confidential and proprietary information and all rights
therein; (e) patents, patent applications, and other patent rights
and any other Governmental Authority-issued indicia of invention
ownership (including inventor’s certificates, xxxxx patents
and patent utility models); and (f) software and firmware,
including data files, source code, object code, application
programming interfaces, architecture, files, records, schematics,
computerized databases and other related specifications and
documentation.
“Knowledge
of GIANT”, “GIANT’s Knowledge” or any
other similar knowledge qualification, means the actual knowledge
of Giant and each of Xxxxx Xxxxxxx and Xxxxxxx
Xxxxxxx.
“Law” means any statute, law,
ordinance, regulation, rule, code, order, constitution, treaty,
common law, judgment, decree, other requirement or rule of law of
any Governmental Authority.
“Loss” or “Losses” means all losses,
liabilities, damages, deficiencies, judgments, awards, interest,
penalties, costs and expenses, including reasonable
attorneys’ and consultants’ fees and expenses and
including any such reasonable fees and expenses incurred in
connection with investigating, defending against or settling any of
the foregoing, and specifically excluding any claims of incidental
or consequential damages or any lost profits or
revenue.
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“Material Adverse Effect” shall
mean any change, event, violation, inaccuracy, circumstance or
effect (any such item, an “Effect”), individually or when
taken together with all other Effects that have occurred prior to
the date of determination of the occurrence of the Material Adverse
Effect, that is or is reasonably likely to (i) materially
impede the authority of GIANT to consummate the transactions
contemplated by this Agreement in accordance with the terms of this
Agreement and Laws, or (ii) be materially adverse to the
business, capitalization, financial condition or results of
operations of GIANT and its subsidiaries taken as a whole;
provided, however that none
of the following shall be taken into account in determining whether
there has been a Material Adverse Effect: any Effect to the extent
attributable to: (a) changes in general economic, business or
political conditions or the securities markets in general; (b)
changes in or affecting the industries in which GIANT operates; (c)
an earthquake or other natural disaster; (d) a change in applicable
Law (or change in the enforcement of any Law by any Governmental
Entity, GAAP; (e) the commencement, continuation or escalation of a
war, civil unrest, material armed hostilities or other material
international or national calamity or act of terrorism, and (f)
changes, effects or circumstances resulting from the announcement
or pendency of this Agreement or the consummation of the
transactions contemplated by this Agreement (including the loss or
departure of employees or adverse developments in relationships
with suppliers, or other business partners but excluding any
Actions arising out of, or in any way connected with, this
Agreement or any other transactions contemplated hereby, but not
including, for the avoidance of doubt, any breach or violation of a
contract resulting from GIANT’s execution, delivery and
performance of this Agreement or the consummation of the
transactions contemplated hereby), except in the case of each of
(a) – (e), to the extent such effect disproportionately
affects GIANT relative to other industry participants.
“Organizational Documents” means
(a) in the case of a Person that is a corporation, its articles or
certificate of incorporation and its by-laws, regulations or
similar governing instruments required by the laws of its
jurisdiction of formation or organization; (b) in the case of a
Person that is a partnership, its articles or certificate of
partnership, formation or association, and its partnership
agreement (in each case, limited, limited liability, general or
otherwise); (c) in the case of a Person that is a limited liability
company, its articles, deed or certificate of formation or
organization, and its limited liability company agreement, by-laws
or operating agreement as amended from time to time; and (d) in the
case of a Person that is none of a corporation, partnership
(limited, limited liability, general or otherwise), limited
liability company or natural person, its governing instruments as
required or contemplated by the laws of its jurisdiction of
organization.
“Person” shall mean an individual
or entity, including a partnership, a limited liability company, a
corporation, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, or a Governmental
Authority (or any department, agency, or political subdivision
thereof).
“SEC Rule 144” means Rule 144
promulgated by the SEC under the Securities Act.
“SEC Rule 145” means Rule 145
promulgated by the SEC under the Securities Act.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Selling Expenses” means all
selling commissions, and stock transfer taxes applicable to the
sale of Registrable Securities, and fees and disbursements of
counsel for the Seller, except for the fees and disbursements of
the Seller Counsel borne and paid for by the Buyer as provided in
Section
4.03(g).
“Tax” (or collectively,
“Taxes”) shall
mean any and all U.S. federal, state, local and non-U.S. taxes,
assessments and other governmental charges, duties (including stamp
duty), impositions and liabilities, including capital gains tax,
taxes based upon or measured by gross receipts, income, profits,
sales, use and occupation, value added, ad valorem, transfer,
franchise, withholding, payroll, recapture, employment, escheat,
unclaimed property, excise and property taxes as well as public
imposts, fees and social security charges (including health,
unemployment, workers’ compensation and pension insurance)
together with any interest or any penalty, addition to tax or
additional amount (whether disputed or not) imposed by any
Governmental Authority responsible for the imposition of any such
tax (domestic or foreign).
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“Tax Return” shall mean any return
(including any information return), report, statement, declaration,
estimate, schedule, notice, notification, form, election,
certificate or other document or information 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 or in connection with
the administration, implementation or enforcement of or compliance
with any Law relating to any Tax, including any amendment thereof
or attachment thereto.
“Territory” shall mean
worldwide in all fields whatsoever.
“Trademark” and “Trademark
Applications” shall mean those trademark and trademark
applications owned or controlled by Sellers and the Giant Beverage
relating to the Product in the Territory as listed in Exhibit C
attached hereto;
“Transaction Documents” means this
Agreement and each other agreement or certificate delivered by
Buyer or Seller pursuant to this Agreement.
1.02. Incorporation. Any Schedules or
Exhibits referenced herein are hereby incorporated into this
Agreement.
1.03 Purchase and Sale. Subject to the
terms and conditions set forth herein, the closing of the
transactions contemplated by this Agreement (the
“Closing”) shall
take place at ____New York time on the second (2nd) Business Day
following satisfaction (or, to the extent not prohibited by Law,
waiver by the party to this Agreement entitled to the benefits
thereof) of all of the conditions set forth in Article VI of this Agreement
(other than those conditions that, by their nature, are to be
satisfied by actions taken at the Closing, but subject to the
satisfaction (or waiver) of those conditions at the Closing) (the
“Closing Date”),
unless another time, date or place is agreed to in writing by the
Buyer and the Seller. At the Closing: (i) the Seller shall sell to
the Buyer, and the Buyer shall purchase from the Seller, all the
Seller’s right, title and interest the Common Stock, free and
clear of all Encumbrances, other than Permitted Encumbrances, and
(ii) Seller shall assign to the Buyer and the Buyer shall assume
from the Seller, the shareholder loans reflected on Exhibit (the
“Loans”), for
the consideration specified in Section 1.04 (the
“Acquisition”).
Regardless of the actual time of the Closing, except as otherwise
expressly provided herein, for tax and accounting purposes, the
Closing shall be deemed effective as of the close of business on
the Closing Date.
1.04 Purchase Price/Expenses. In
consideration for the purchase of the Seller Shares, at the
Closing:
a)
The Buyer shall pay
the Seller $600,000, payable as follows: (a) Buyer shall pay off
the Seller’s loans due to Xxxxx Fargo and Empire State Bank
(the “Payoff”) as reflected in the Seller’s
balance sheet as of July 31, 2017 (Balance Sheet attached hereto as
Exhibit ___), which loans in the aggregate total $184,917.90; (b)
$124,082,10 to be deposited into the Seller’s Checking
Operating Account to be used as the Seller’s working capital;
and (c) the Buyer shall pay the Seller 1,455,000
shares.
b)
Consistent with
the terms of 1.04(a), the Buyer shall issue and sell to the
Sellers, free and clear of all Encumbrances, 1,455,000 shares of
Common Stock of the Buyer (“Buyer Shares” or the
“Stock Consideration”).
c)
If after 12 months
from the date of this Agreement, the Buyer’s shares are
trading below twenty ($0.20) cents, then the Buyer shall issue
485,000 additional shares to accomplish the full Stock
Consideration.
d)
Pursuant to the
Lockup and Leak out Agreements attached hereto as Exhibits __, the
Stock Consideration shall be locked up for a period of 12 months
following the execution of this Agreement and thereafter shall be
subject to a leak out of 25% the previous 30 days daily
volume.
Except
as otherwise expressly provided herein, the expenses incurred in
connection with the negotiation, execution, and delivery of this
Agreement and the consummation of the transactions in the Agreement
shall be paid by the party incurring such costs and expenses,
including that the Buyer shall be responsible for its due diligence
expenses.
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1.05 Transactions to be Effected at the
Closing.
(a)
On or prior to the Closing Date, the following
transactions shall be effected:
(i)
The Buyer shall
deliver to the Seller one or more stock certificates representing
the Buyer Shares, duly executed by authorized officers of the
Buyer.
(ii)
The Seller shall
deliver to the Buyer one or more stock certificates representing
the Seller Shares, duly executed by authorized officers of
Giant.
(iii)
This Agreement and
all other agreements, documents, instruments or certificates
required to be delivered on the Closing Date by the respective
parties shall be delivered at or prior to the Closing Date in
accordance with the terms hereof.
(iv)
On and as of the
Closing Date, GIANT shall have sufficient cash and working capital
to allow GIANT to operate in the ordinary course of business
consistent with past practices. Further, sufficient cash shall be
available on the date of Closing to pay federal and state income
taxes on taxable income through the date of Closing.
Notwithstanding anything to the contrary in this Agreement, the
Buyer and the Seller acknowledge and agree that if the Seller
determines, in its reasonable discretion, that GIANT requires
additional cash on the Closing Date for the condition in the
immediately preceding sentence to be satisfied, then the Sellers
may promptly contribute a portion of the proceeds of the Purchase
Price (after receipt thereof from the Buyer) to GIANT to ensure
that such condition will be satisfied after giving effect to any
such contribution, without violating this Section
1.05(a)(iv).
(v)
The amount of
working capital and taxes due to be available on the date of
Closing shall be mutually agreed upon by the Sellers and Buyer, but
in no event, shall the amount of working capital available at
closing be less than the amount of working capital on Giant’s
balance sheet as of the date of execution of this
Agreement.
(vi)
Buyer shall confirm
and acknowledge to Sellers that Xxxxx Xxxxxxx receive the following
compensation in connection with his position as the General Manager
of Giant consistent with his past compensation.
(vii)
Xxxxx Xxxxxxx and
Xxxxxxx Xxxxxxx shall be required to execute a non-compete
agreement agreeing not to compete in a similar business of the
Buyer. The term of the non-compete agreement shall be for a period
of not less than 5 years commencing upon the termination of his
employment contract with the Buyer and shall contain such other
provisions as shall be mutually agreed upon prior to
Closing.
(viii)
Sellers and the
Giant shall sell and assign all their Intellectual Property Rights
for the Product in the Territory to Purchaser, and Buyer shall
immediately assume all future expenses related to the prosecution
and maintenance of Intellectual Property Rights for the Products in
the Territory. In the event Buyer requests the assistance of
Sellers and in the prosecution and maintenance of the Intellectual
Property Rights for the Product in the Territory, Sellers and the
Giant Beverage shall so cooperate with Purchaser.
(ix)
Sellers and Giant
shall provide Buyer and convey the following assets of Giant with
copies of all current hard and soft marketing, contacts, suppliers,
email database, software, hardware and website including domain
names backend materials available in Sellers’s possession
relating to websites listed in Exhibit__ in the Territory on or
prior to closing the Transaction.
(x)
Post-closing,
Xxxxxxxx Xxxxxx shall assume the position of Chief Executive
Officer of Giant.
(xi)
The Buyer shall
execute a lease agreement for a term of 5 years with Iemmiti &
Iemmiti, LLC as the Lessor for 3 of the 4 units located at 00
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxx Xxxx 00000, obligating the Buyer
to pay monthly rent of $8,500 on the lst of each month beginning on
_____, 2017 (and an amount reflecting the pro-rated month for the
time period between signing this Purchase Agreement and the lst of
the next month), which monthly lease amount shall be subject to a 2
½ % increase each succeeding year of said lease.
(xii)
The Buyer shall
assume the credit card and all supplier’s debt in the amount
of $165,119 and
$107,235, respectively, as reflected on the balance sheet of the
Seller as of July 31, 2017.
(xiii)
Xxxxx Xxxxxxx and
Xxxxxxx Xxxxxxx shall each execute the Non-Competition,
Non-Solicitation and Non-Disclosure Agreements attached here to as
Exhibits _.
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(b) As
of the Closing, in the event that there is an adjustment to the
Balance Sheet of the Seller as of July 31, 2017, i.e. higher or
lower liabilities or higher or lower assets than previously agreed
to by the Buyer and the Seller, the Seller shall hold back the Note
until there is an appropriate adjustment to the Note on a dollar
for dollar basis thereby increasing or decreasing the principal
amount of the Note due from Hispanica to Xxxxx Xxxxxxx and Xxxxxxx
Xxxxxxx as the circumstances dictate. If the liabilities are higher
or lower than 5% when comparing the July 31, 2017 balance sheet,
there shall be no such adjustment.
(c)
Should there be new payables due after the Closing that the Seller
failed to disclose to the Buyer, there shall be corresponding
decreases on a dollar for dollar basis in the
Share
Consideration.
(d)
The Closing is
further subject to the satisfaction or waiver of the following
conditions on or prior to the Closing Date:
(i)
Board of Director
Approval. If required by applicable law, the Agreement and the
transactions specified herein shall have been approved by the Board
of Directors, or similar governing body, of GIANT, the Sellers and
the Buyer.
(ii)
Shareholder
Approval. If required by applicable law, the majority of voting
shares (or equivalent equity security) of GIANT, the Buyer and the
Sellers shall approve the Agreement and the transactions
hereby.
(iii)
Government
Approval. All necessary government filings and approvals and all
approvals by third parties (if any) necessary for the approval of
the transactions shall have been obtained.
ARTICLE II
Representations and Warranties concerning GIANT
Except
as set forth in the disclosure schedules delivered with this
Agreement (the “Disclosure
Schedules”) (it being expressly agreed that the
disclosures in any section or subsection of the Disclosure
Schedules shall qualify the corresponding section or subsection of
this Agreement and any other section or subsection of the Agreement
to the extent such matter’s relevance to such other section
or subsection is reasonably apparent), GIANT makes the following
representations and warranties to the Buyer as of the date hereof,
except for representations and warranties made as of a specific
date, the accuracy of which will be determined only as of the
specified date.
2.01
Organization and Authority of GIANT. GIANT has full power
and authority to enter this Agreement, to carry out its obligations
hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution and delivery by
GIANT of this Agreement, the performance by GIANT of its
obligations hereunder and thereunder and the consummation by GIANT
of the transactions contemplated hereby and thereby have been duly
authorized by all requisite action on the part of GIANT. When this
Agreement is duly executed by GIANT and delivered to the Buyer,
this Agreement shall constitute a legal, valid and binding
obligation of GIANT enforceable against it in accordance with its
terms. When each other Transaction Document to which GIANT is, or
will be, a party has been duly executed and delivered by GIANT,
such Transaction Document will constitute a legal and binding
obligation of the Sellers enforceable against it in accordance with
its terms.
2.02
Qualification of GIANT. GIANT is duly organized, validly
existing and in good standing under the Laws of their respective
jurisdictions or organization and have full power and authority to
own, operate or lease the properties and assets now owned, operated
or leased by them and to carry on their business as it has been and
is currently conducted, except as, individually or in the
aggregate, would not have a Material Adverse Effect. Schedule 2.02 sets forth each
jurisdiction in which GIANT is licensed or qualified to do
business, and GIANT is duly licensed or qualified to do business
and is in good standing in each jurisdiction in which the
properties owned or leased by it or the operation of its business
as currently conducted makes such licensing or qualification
necessary, except where the failure to be so licensed or qualified,
individually or in the aggregate, would not have a Material Adverse
Effect.
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2.03
Capitalization.
(a) The Sellers are the
record owner of and has good and valid title to the Common Stock,
free and clear of all Encumbrances other than Permitted
Encumbrances. The Common Stock have been duly authorized and are
validly issued and fully-paid.
(b) The Common Stock
was issued in compliance with applicable Laws. The Common Stock
were not issued in violation of the Organizational Documents of
GIANT or its Affiliates or any other agreement, arrangement or
commitment to which the Sellers or GIANT is a party and are not
subject to or in violation of any preemptive or similar rights of
any Person.
(c) There are no
outstanding or authorized options, warrants, convertible securities
or other rights, agreements, arrangements or commitments of any
character relating to the Common Stock or obligating the Sellers to
sell any of its Common Stock. Other than the Organizational
Documents of GIANT, there are no voting trusts, proxies or other
agreements or understandings in effect with respect to the voting
or transfer of any of the Common Stock.
2.04 No Other Interests Subsidiaries or
Affiliates. Schedule () sets forth a list
of all Persons whose equity interests are owned by GIANT, directly
or indirectly, as of the Closing Date. GIANT does not own, or have
any interest in any shares or have an ownership interest in any
other Person other than (prior to Closing), except as set forth on
Schedule
().
2.05 No Conflicts; Consents. The
execution, delivery and performance by GIANT of this Agreement, and
the consummation of the transactions contemplated hereby and
thereby, do not and will not: (a) conflict with or result in a
violation or breach of, or default under, any provision of the
Organizational Documents of GIANT; (b) conflict with or result in a
material violation or breach of any provision of any Law or
Governmental Order applicable to GIANT; (c) require the consent,
notice or other action by any Person, conflict with, result in a
material violation or breach of, constitute a default or an event
that, with or without notice or lapse of time or both, would
constitute a default under, result in the acceleration of or create
in any party the right to accelerate, terminate, modify or cancel
any Material Contract to which GIANT is a party or by which GIANT
is bound or to which any of their respective properties and assets
are subject or any material permit affecting the properties, assets
or business of GIANT; or (d) result in the creation or imposition
of any Encumbrance on any properties or assets of GIANT, other than
Permitted Encumbrances. Other than any consents, approvals, filings
and Governmental Orders required under the Laws of Spain, no
consent, approval, permit, Governmental Order, declaration or
filing with, or notice to, any Governmental Authority is required
by or with respect to GIANT in connection with the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby and thereby.
2.06 Financial Statements. Complete
copies of GIANT’s financial statements consisting of the
balance sheet of GIANT as of July 31, 2017 for the period then
ended and the related statements of income for the year then ended
(the “Financial
Statements”), are set forth in Schedule () or have been
delivered to the Buyer. Except as disclosed in the Financial
Statements, the Financial Statements have been prepared to the best
of GIANT’s ability in accordance with GAAP, applied on a
consistent basis throughout the period involved, subject to, as
applicable, normal and recurring year-end adjustments (the effect
of which will not be materially adverse) and the absence of notes.
The Financial Statements are based on the books and records of
GIANT, and present in all material respects the financial condition
of GIANT as of the respective dates they were prepared and the
results of the operations of GIANT for the periods indicated. The
balance sheet of GIANT as of July 31, 2017 is referred to herein as
the “Balance
Sheet” and the date thereof as the “Balance Sheet Date”. GIANT
maintains a standard system of accounting established and
administered in accordance with GAAP.
2.07 Undisclosed Liabilities. To
GIANT’s knowledge, GIANT has no material liabilities,
obligations or commitments of any nature whatsoever, absolute or
contingent, accrued or unaccrued, matured or un-matured or
otherwise except (a) those which are adequately reflected or
reserved against in the Balance Sheet as of the Balance Sheet Date,
and (b) those which have been incurred in the ordinary course of
business consistent with past practice since the Balance Sheet Date
and which are not, individually or in the aggregate, material in
amount.
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2.08 Absence of Certain Changes, Events and
Conditions. Since the Balance Sheet Date, and other than in
the ordinary course of business consistent with past practice, to
GIANT’s knowledge, there has not been, with respect to GIANT,
any:
(a)
event, occurrence or development that has had, or could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect;
(b)
amendment of the Organizational Documents of
GIANT;
(c)
issuance of additional Common Stock in
GIANT;
(d)
issuance, sale or other disposition of, or creation of
any Encumbrance other than a Permitted Encumbrance on, any capital
stock in GIANT, or grant of any options, warrants or other rights
to purchase or obtain (including upon conversion, exchange or
exercise) any capital stock in GIANT;
(e)
declaration or payment of any distributions on or in
respect of any capital stock in GIANT or redemption, purchase or
acquisition of any of GIANT’s outstanding capital
stock;
(f)
material change in any method of accounting or
accounting practice of GIANT, except as required by GAAP, as
applicable, or as disclosed in the notes to the Financial
Statements;
(g) material
change in GIANT’s cash management practices and its policies,
practices and procedures with respect to collection of accounts
receivable, establishment of reserves for uncollectible accounts,
accrual of accounts receivable, inventory control, prepayment of
expenses, payment of trade accounts payable, accrual of other
expenses, deferral of revenue and acceptance of customer
deposits;
(h)
entry into any contract that would constitute a
Material Contract;
(I)
incurrence, assumption or guarantee of any material
indebtedness for borrowed money except unsecured current
obligations and liabilities incurred in the ordinary course of
business consistent with past practice.
(j)
transfer, assignment, sale or other disposition of any
of the assets shown or reflected in the Interim Balance Sheet or
cancellation of any material debts or entitlements;
(k)
transfer, assignment or grant of any license or
sublicense of any material Intellectual Property of
GIANT;
(l)
material damage, destruction or loss (whether covered
by insurance) to its property;
(m)
any material capital investment in, or any material
loan to, any other Person;
(n)
acceleration, termination, material modification to or
cancellation of any Material Contract to which GIANT is a party or
by which it is bound;
(o)
any material capital expenditures;
(p)
imposition of any material Encumbrance other than a
Permitted Encumbrance upon any of GIANT’s properties or
assets, tangible or intangible;
(q)
any material loan to (or forgiveness of any loan to),
or entry into any other transaction with, any of its members or
current or former managers, officers and employees;
(r)
entry into a new line of business or abandonment or
discontinuance of existing lines of business;
(s)
adoption of any plan of merger, consolidation,
reorganization, liquidation or dissolution or filing of a petition
in bankruptcy under any provisions of federal or state bankruptcy
Law or consent to the filing of any bankruptcy petition against it
under any similar Law;
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(t)
purchase, lease or other acquisition of the right to
own, use or lease any property or assets for an amount in excess of
$___, individually (in the case of a lease, per annum) or $_____ in
the aggregate (in the case of a lease, for the entire term of the
lease, not including any option term), except for purchases of
inventory or supplies in the ordinary course of business consistent
with past practice;
(u) acquisition
by merger or consolidation with, or by purchase of a substantial
portion of the assets, Common Stock or other equity of, or by any
other manner, any business or any Person or any division
thereof;
(v)
action by GIANT to make, change or rescind any Tax
election, amend any Tax Return or take any position on any Tax
Return, take any action, omit to take any action or enter into any
other transaction that would have the effect of increasing the Tax
liability or reducing any Tax asset of the Buyer in respect of any
Post-Closing Tax Period; or
(w)
any contract to do any of the foregoing, or any action
or omission that would result in any of the foregoing.
2.09
Material Contracts.
(a)
Except as set forth on Schedule ( ), there are no
agreements, understandings, instruments, contracts or proposed
transactions to which GIANT is a party or by which it is bound that
involve (i) obligations (contingent or otherwise) of, or
payments to, GIANT in excess of $____ in any twelve month period,
or (ii) the license of any patent, copyright, trademark, trade
secret or other proprietary right to or from GIANT (other than
off-the shelf, shrink-wrapped or "click to accept" software
licenses or other licenses to generally commercially available
software), (the “Material
Contracts”).
(b) Each
Material Contract is valid and binding on GIANT in accordance with
its terms and is in full force and effect. Neither GIANT or, to its
Knowledge, any other party thereto is in material breach of or
default under (or is alleged to be in breach of or default under),
or has provided or received any notice of any intention to
terminate, any Material Contract subject to Laws of general
application relating to bankruptcy, insolvency and the relief of
debtors; and rules of law governing specific performance,
injunctive relief and other equitable remedies. No event or
circumstance has occurred that, with notice or lapse of time or
both, would constitute an event of default under any Material
Contract or result in a termination thereof or would cause or
permit the acceleration or other changes of any right or obligation
or the loss of any benefit thereunder.
2.10
Title to Assets; Real Property.
(a) GIANT
owns no real property. To its knowledge, GIANT has good and valid
leasehold interest in all property that it leases and all material
personal property and other material assets reflected in the
Financial Statements, other than properties and assets sold or
otherwise disposed of in the ordinary course of business consistent
with past practice. All such properties and assets (including
leasehold interests) are free and clear of Encumbrances, except
(a) as reflected in the Financial Statements, (b) liens
for Taxes not yet due and payable, and (c) such imperfections
of title and encumbrances, if any, which do not detract from the
value or interfere with the present use of the property subject
thereto or affected thereby (the foregoing, the “Permitted Encumbrances”). Any
property and facilities held under lease by GIANT is held by it
under valid, subsisting and enforceable leases of which GIANT is
complying, except where the failure to be complying would not
reasonably be expected to result in a Material Adverse Effect on
GIANT.
(b)
Schedule (
) lists (i) the street address of each parcel of leased
property; (ii) the landlord under the lease, the rental amount
currently being paid, and the expiration of the term of such lease
or sublease for each leased or subleased property; and (iii) the
current use of such property. GIANT is not a sub lessor or grantor
under any sublease or other instrument granting to any other Person
any right to the possession, lease, occupancy or enjoyment of any
leased property. The use and operation of the property in the
conduct of GIANT’s business do not violate in any material
respect any material Law, covenant, condition, restriction,
easement, license, permit or agreement. To GIANT’s Knowledge,
no material improvements constituting a part of the property
encroach on real property owned or leased by a Person other than
GIANT. There are no Actions pending nor, to GIANT’s
Knowledge, threatened against or affecting property or any portion
thereof or interest therein in the nature or in lieu of
condemnation or eminent domain proceedings.
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2.11 Condition and Sufficiency of
Assets. The buildings, plants, structures, furniture,
fixtures, machinery, equipment, vehicles and other items of
tangible personal property of GIANT are adequate for the uses to
which they are being put. The buildings, plants, structures,
furniture, fixtures, machinery, equipment, vehicles and other items
of tangible personal property currently owned or leased by GIANT,
together with all other properties and assets of GIANT, are
sufficient for the continued conduct of GIANT’s business
after the Closing in substantially the same manner as conducted
prior to the Closing and constitute materially all of the rights,
property and assets necessary to conduct the business of GIANT as
currently conducted.
2.12 Inventory. All inventory of GIANT,
whether reflected in the Interim Balance Sheet, consists of a
quality and quantity usable and salable in the ordinary course of
business consistent with past practice, except for obsolete,
damaged, defective or slow-moving items that have been written off
or written down to fair market value or for which adequate reserves
have been established. All such inventory is owned by GIANT free
and clear of all Encumbrances, other than Permitted Encumbrances,
and no inventory is held on a consignment basis. The quantities of
each item of inventory (whether raw materials, work-in-process or
finished goods) are not excessive, but are reasonable in the
present circumstances of GIANT.
2.13 Accounts Receivable. The accounts
receivable reflected on the Financial Statements (a) have arisen
from bona fide transactions entered by GIANT involving the sale of
goods or the rendering of services in the ordinary course of
business consistent with past practice; and (b) constitute only
valid, undisputed claims of GIANT not subject to claims of set-off
or other defenses or counterclaims other than normal cash discounts
accrued in the ordinary course of business consistent with past
practice.
2.14 Insurance. Schedule () sets forth a true
and complete list of all current policies or binders of fire,
liability, product liability, umbrella liability, real and personal
property, workers’ compensation, vehicular, directors’
and officers’ liability, fiduciary liability and other
casualty and property insurance maintained by GIANT and relating to
the assets, business, operations, employees, officers and managers
of GIANT (collectively, the “Insurance Policies”). Such
Insurance Policies are in full force and effect. GIANT has not
received any written notice of cancellation of, premium increase
with respect to, or material alteration of coverage under, any of
such Insurance Policies. All premiums due on such Insurance
Policies have been paid in accordance with the payment terms of
each Insurance Policy. The Insurance Policies do not provide for
any retrospective premium adjustment or other experience-based
liability on the part of GIANT. All such Insurance Policies (a) are
valid and binding in accordance with their terms; and (b) have not
been subject to any lapse in coverage. There are no claims related
to the business of GIANT pending under any such Insurance Policies
as to which coverage has been questioned, denied or disputed or in
respect of which there is an outstanding reservation of rights.
GIANT is not in default under, or has otherwise failed to comply
with, in any material respect, any provision contained in any such
Insurance Policy. The Insurance Policies are of the type and in the
amounts customarily carried by Persons conducting a business
similar to GIANT and are sufficient for compliance with all
applicable Laws and Contracts to which GIANT is a party or by which
it is bound.
2.15
Legal Proceedings; Governmental Orders.
(a)
There are no Actions pending or to GIANT’s
Knowledge, threatened (a) against or by GIANT affecting any of its
properties or assets (or by or against any Affiliate thereof
relating to GIANT); or (b) against or by GIANT that challenges or
seeks to prevent, enjoin or otherwise delay the transactions
contemplated by this Agreement. To GIANT’s Knowledge, no
event has occurred or circumstances exist that may give rise to, or
serve as a basis for, any such Action.
(b)
There are no outstanding Governmental Orders and no
unsatisfied judgments, penalties or awards against or affecting
GIANT or any of its properties or assets. To GIANT’s
Knowledge, no event has occurred or circumstances exist that may
constitute or result in (with or without notice or lapse of time) a
violation of any material Governmental Order.
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2.16 Compliance with Laws;
Permits.
(a)
To its knowledge, GIANT is not in violation of any Laws
applicable to it or its business, properties or assets that has had
or could reasonably be expected to result in a Material Adverse
Effect.
(b)
To its knowledge, all permits required for GIANT to
conduct its business have been obtained by it and are valid and in
full force and effect, except where the failure to possess such
permits could not reasonably be expected to result in a Material
Adverse Effect. All fees and charges with respect to such permits
as of the date hereof have been paid in full. Schedule 2.16 lists all current
material permits issued to GIANT, including the names of the
Permits and their respective dates of issuance and expiration. To
GIANT’s Knowledge, no event has occurred that, with or
without notice or lapse of time or both, would reasonably be
expected to result in the revocation, suspension, lapse or
limitation of any permit set forth in Schedule (
).
2.17 Employment Matters. Schedule ( ) contains a list of
all persons who are employees, independent contractors or
consultants of GIANT as of January 2017, including any employee who
is on a leave of absence of any nature, paid or unpaid, authorized
or unauthorized, and sets forth for each such individual the
following: (i) name; (ii) title or position (including whether full
or part time); (iii) hire date; (iv) current annual base
compensation rate; (v) commission, bonus or other incentive-based
compensation; and (vi) a description of the fringe benefits
provided to each such individual as of the date hereof. To its
knowledge, GIANT is not a party to or bound by any collective
bargaining or any other type of labor or union agreement which
covers any employees. To GIANT’s Knowledge, no strike, labor
suit or proceeding or labor administrative proceeding is pending or
to GIANT’s Knowledge, threatened respecting the employees,
and to its knowledge, no such matter has been
threatened.
2.18
Taxes.
(a)
All income and other material Tax Returns required to
be filed on or before the Closing Date by GIANT have been, or will
be, timely filed. Such Tax Returns are, or will be, true, complete
and correct in all material respects. All material Taxes due and
owing by GIANT (whether shown on any Tax Return), as of the Closing
Date, have been, or will be, timely paid.
(b)
GIANT has withheld and paid each material Tax required
to have been withheld and paid in connection with amounts paid or
owing to any employee, independent contractor, creditor, customer,
member or other party, and complied with all information reporting
and backup withholding provisions of applicable Law.
(c)
No claim has been made by any taxing authority in any
jurisdiction where GIANT does not file Tax Returns that it is, or
may be, subject to Tax by that jurisdiction.
(d)
No extensions or waivers of statutes of limitations
have been given or requested with respect to any Taxes of
GIANT.
(e) GIANT
is not a party to any Action by any taxing authority. There are no
pending or to GIANT’s Knowledge, threatened Actions by any
taxing authority.
2.19 Books and Records. The minute books
of GIANT, to the extent records were created, are correct in all
material respects and have been maintained in accordance with sound
business practices. At the Closing, all of such books and records
will be in the possession of GIANT.
2.20 Brokers. Except as set forth on
Schedule __ no
broker, finder or investment banker is entitled to any brokerage,
finder’s or other fee or commission relating to the
transactions contemplated by this Agreement or any other
Transaction Document based upon arrangements made by or on behalf
of the Sellers.
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2.21 Labor Relations. To GIANT’s
Knowledge, no material labor dispute exists or is imminent with
respect to any of the employees of GIANT which has had or could
reasonably be expected to result in a Material Adverse Effect. None
of GIANT’s employees is a member of a union that relates to
such employee’s relationship with GIANT, and GIANT is not a
party to a collective bargaining agreement or any labor or union
agreement which covers GIANT’s employees. To the Knowledge of
GIANT, no officer, director or agent of GIANT, is in violation of
any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition
agreement, or any other Material Contract or agreement or any
restrictive covenant in favor of any third party, and the continued
employment of any GIANT employee by the Buyer will not subject the
Buyer to any liability with respect to any of the foregoing
matters.
ARTICLE III
Representations and Warranties of the Buyer
Except
as set forth in the Disclosure Schedules (it being expressly agreed
that the disclosures in any section or subsection of the Disclosure
Schedules shall qualify the corresponding section or subsection of
this Agreement and any other section or subsection of the Agreement
to the extent such matter’s relevance to such other section
or subsection is reasonably apparent), the Buyer represents and
warrants to the Sellers that the statements contained in this
Article III are true and correct as of the date
hereof.
3.01 Organization and Authority of the
Buyer. The Buyer is a corporation duly organized, validly
existing and in good standing under the Laws of the state of
Florida. The Buyer has full corporate power and authority to enter
into this Agreement, to carry out its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby
and thereby. The execution and delivery by the Buyer of this
Agreement and any other Transaction Document to which the Buyer is
a party, the performance by the Buyer of its obligations hereunder
and thereunder and the consummation by the Buyer of the
transactions contemplated hereby and thereby have been duly
authorized by all requisite corporate action on the part of the
Buyer. This Agreement has been duly executed and delivered by the
Buyer, and this Agreement constitutes a legal, valid and binding
obligation of the Buyer enforceable against the Buyer in accordance
with its terms. When each other Transaction Document to which the
Buyer is or will be a party has been duly executed and delivered by
the Buyer, such Transaction Document will constitute a legal and
binding obligation of the Buyer enforceable against it in
accordance with its terms. The Buyer has made available to the
Sellers true, correct and complete copies of all Organizational
Documents of the Buyer, including all amendments
thereto.
The Buyer has
full power and authority to own, operate or lease the properties
and assets now owned, operated or leased by it and to carry on its
business as it has been and is currently conducted, except as,
individually or in the aggregate, would not have a Material Adverse
Effect. Schedule
3.01 sets forth each jurisdiction in which the Buyer is
licensed or qualified to do business, and the Buyer is duly
licensed or qualified to do business and is in good standing in
each jurisdiction in which the properties owned or leased by it or
the operation of its business as currently conducted makes such
licensing or qualification necessary, except where the failure to
be so licensed or qualified, individually or in the aggregate,
would not have a Material Adverse Effect.
3.02 No Conflicts; Consents. The
execution, delivery and performance by the Buyer of this Agreement,
the Transaction Documents and the consummation of the transactions
contemplated hereby and thereby, do not and will not: (a) conflict
with or result in a violation or breach of, or default under, any
provision of the Organizational Documents of the Buyer; (b)
conflict with or result in a violation or breach of any provision
of any Law or Governmental Order applicable to the Buyer; or (c)
require the consent, notice or other action by any Person under,
conflict with, result in a material violation or breach of,
constitute a default or an event that, with or without notice or
lapse of time or both, would constitute a default under, result in
the acceleration of or create in any party the right to accelerate,
terminate, modify or cancel any Contract to which the Buyer is a
party or is bound or to which any of its properties or assets are
subject (including any Material Contracts) or any permit affecting
the properties, assets or business of the Buyer. Other than any
consents, approvals, filings and Governmental Orders required under
the Laws of Spain, no consent, approval, permit, Governmental
Order, declaration or filing with, or notice to, any Governmental
Authority is required by or with respect to the Buyer in connection
with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and
thereby.
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3.03 Brokers. Except as set forth on
Schedule, no
broker, finder or investment banker is entitled to any brokerage,
finder’s or other fee or commission relating to the
transactions contemplated by this Agreement or any other
Transaction Document based upon arrangements made by or on behalf
of the Buyer.
3.04 Sufficiency of Funds. The Buyer has
sufficient cash on hand or other sources of immediately available
funds to enable it to make payment of the Purchase Price and
consummate the transactions contemplated by this
Agreement.
3.08 Compliance with Laws;
Litigation.
(a) The Buyer is in
compliance, and during the five (5) years preceding the date of
this Agreement has been in compliance, in all material respects,
with all Laws applicable to it or the operation of its businesses
or by which any of its assets are bound or affected. Neither the
Buyer nor any of its direct and indirect subsidiaries is in receipt
of, or has received in the five (5) years preceding the date of
this Agreement, any written notice of any material violation of any
Laws applicable to them or the operations of their respective
businesses or by which their assets are bound or
affected.
(b) There are no
Actions pending or, to the knowledge of the Buyer, threatened (a)
against or by the Buyer affecting any of its properties or assets
(or by or against any Affiliate thereof relating to the Buyer); or
(b) against or by the Buyer that challenges or seeks to prevent,
enjoin or otherwise delay the transactions contemplated by this
Agreement. To the knowledge of the Buyer, no event has occurred or
circumstances exist that may give rise to, or serve as a basis for,
any such Action.
(c) There are no
outstanding Governmental Orders and no unsatisfied judgments,
penalties or awards against or affecting the Buyer or any of its
properties or assets (or by or against any Affiliate thereof
relating to the Buyer). To the knowledge of the Buyer, no event has
occurred or circumstances exist that may constitute or result in
(with or without notice or lapse of time) a violation of any such
Governmental Order.
ARTICLE IV
Tax Matters
4.01
Tax Covenants.
(a)
All transfer, documentary, sales, use, stamp,
registration, value added and other such fees (including any
penalties and interest) incurred in connection with this Agreement
(including any real property transfer Tax and any other similar
Tax) shall be borne and paid by the Buyer when due. The Buyer
shall, at its own expense, timely file any Tax Return or other
document with respect to the foregoing taxes or fees (and the
Sellers shall cooperate with respect thereto as
necessary).
(b)
The Buyer shall prepare, or cause to be prepared, all
Tax Returns required to be filed by GIANT after the Closing Date
with respect to a Pre-Closing Tax Period. Any such Tax Return 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. The Buyer shall permit the Sellers to review
and comment on each such Tax Return described in this subsection
before filing and shall make such revisions to such Tax Returns as
are reasonably requested by the Sellers.
(c) Any
Tax refunds that are received by the Buyer, and any amounts
credited against Tax to which the Buyer become entitled, that
relate to Tax periods or portions thereof ending on or before the
Closing Date shall be for the account of the Sellers and the Buyer
shall pay over to the Sellers any such refund or the amount of any
such credit (net of any Taxes of the Buyer or GIANT attributable to
such refund or credit) within 15 days after receipt or entitlement
thereto.
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(d) The
Buyer shall not, and shall not cause or permit GIANT to, (i) amend
any Tax Returns filed with respect to any tax year ending on or
before the Closing Date or with respect to any Straddle Period or
(ii) make any Tax election that has retroactive effect to any such
year or to any Straddle Period, in each such case without the prior
written consent of the Sellers.
4.02
Straddle Period. In the case of Taxes that are payable with
respect to a taxable period that begins before and ends after the
Closing Date (each such period, a “Straddle Period”), the portion of
any such Taxes that are treated as Pre-Closing Taxes for purposes
of this Agreement shall be:
(a)
in the case of Taxes (i) based upon, or related to,
income, receipts, profits, wages, capital or net worth, (ii)
imposed in connection with the sale, transfer or assignment of
property, or (iii) required to be withheld, determined based on an
interim closing of the books as of the close of business on the
Closing Date (and for such purpose, the taxable period of any
partnership or other pass-through entity in which GIANT holds a
beneficial interest shall be deemed to terminate at such time);
and
(b)
in the case of other Taxes, deemed to be the amount of
such Taxes for the entire period multiplied by a fraction the
numerator of which is the number of days in the period ending on
the Closing Date and the denominator of which is the number of days
in the entire period.
ARTICLE V
Conditions to Closing
5.01
Conditions to Obligations of All Parties. The obligations of
each party to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the
Closing, of each of the following conditions:
(a)
No Action shall have been commenced against the Buyer
or the Sellers, which would prevent the Closing. No injunction or
restraining order shall have been issued by any Governmental
Authority, and be in effect, which restrains or prohibits any
transaction contemplated hereby.
5.02
Conditions to Obligations of Buyer. The obligations of Buyer
to consummate the transactions contemplated by this Agreement shall
be subject to the fulfillment or Buyer’s waiver, at or prior
to the Closing, of each of the following conditions:
(a)
All approvals, consents and waivers that are listed in
Section 2.05 shall
have been received, and executed counterparts thereof shall have
been delivered to the Buyer at or prior to the
Closing.
(b)
This Agreement and the Assignment and Assumption Agreement
shall have been executed and delivered by the parties thereto and
true and complete copies thereof shall have been delivered to the
Buyer.
(c)
The Buyer shall have received a certificate, dated the
Closing Date and signed by an authorized officer or director of
GIANT or the Sellers, that each of the conditions set forth in
Section 6.02 have
been waived or satisfied.
(d)
Sellers shall have delivered to the Buyer a good
standing certificate (or its equivalent) for the Sellers from the
secretary of state or similar Governmental Authority of the
jurisdiction under the Laws in which Sellers is
organized.
(e) The
representations and warranties of GIANT contained in Article II of this Agreement
shall be true and correct (without giving effect to any limitation
as to “materiality”, “Material Adverse
Effect” or similar qualifier set forth therein) at and as of
the Closing Date as if made at and as of such time (except to the
extent expressly made as of an earlier date, in which case, as of
such earlier date), except where the failure of such
representations and warranties to be so true, correct and complete,
has not had, individually or in the aggregate, a Material Adverse
Effect.
(h) The
Sellers shall have performed or complied in all material respects
with all obligations and covenants required by this Agreement to be
performed or complied with by the Buyer at or prior to the
Closing.
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5.03
Conditions to Obligations of the Sellers. The obligations of
the Sellers to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment or the
Sellers’s waiver, at or prior to the Closing, of each of the
following conditions:
(a)
This Agreement and the Assignment and Assumption
Agreement shall have been executed and delivered by the parties
thereto and true and complete copies thereof shall have been
delivered to the Sellers.
(b)
The Sellers shall have received a certificate, dated
the Closing Date and signed by a duly authorized officer of the
Buyer, that each of the conditions set forth in Section 6.03 have been
satisfied.
(c)
The Sellers shall have received a resolution adopted by
the board of directors of the Buyer authorizing the execution,
delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby and thereby.
(d)
The Sellers shall have received evidence satisfactory
to the Sellers (in its sole and absolute discretion) that the Buyer
has delivered to the Sellers the Purchase Price by wire transfer of
immediately available funds to the account designated by the
Sellers to the Buyer.
(e) The
Buyer shall deliver to the Sellers one or more stock certificates
representing the Buyer Shares, duly executed by authorized officers
of the Buyer.
(f) The
Buyer shall have delivered to the Sellers a good standing
certificate (or its equivalent) for the Buyer from the secretary of
state or similar Governmental Authority of the jurisdiction under
the Laws in which the Buyer is organized.
(g) The
representations and warranties of the Buyer contained in
Article III of this
Agreement shall be true and correct in all material respects
(without giving effect to any limitation as to
“materiality”, “material adverse effect” or
similar qualifier set forth therein) at and as of the Closing Date
as if made at and as of such time (except to the extent expressly
made as of an earlier date, in which case, as of such earlier
date).
(h) The
Buyer shall have performed or complied in all material respects
with all obligations and covenants required by this Agreement to be
performed or complied with by the Buyer at or prior to the
Closing.
ARTICLE VI
Indemnification
6.01 Survival. The
representations and warranties contained herein shall survive the
Closing Date and shall remain in full force and effect until the
date that is one year from the Closing Date. Notwithstanding the
foregoing, any claims asserted in good faith with reasonable
specificity (to the extent known at such time) and in writing by
notice from the non-breaching party to the breaching party prior to
the expiration date of the applicable survival period shall not
thereafter be barred by the expiration of the relevant
representation or warranty and such claims shall survive until
finally resolved.
6.02 Indemnification by the
Sellers. Subject to the other terms and conditions of this
Article VI, for a
term beginning on the Closing Date and ending on the first
anniversary of the Closing Date, the Sellers shall indemnify and
defend each of the Buyer and its Affiliates (including GIANT) and
their respective representatives (collectively, the “Buyer Indemnitees”)
against, and shall hold each of them harmless from and against, and
shall pay and reimburse each of them for, any and all Losses
(except as provided in this Article VII) incurred by the Buyer
Indemnitees arising out of:
(a)
any material breach of any of the representations or
warranties of the Sellers contained in this Agreement;
or
(b)
any material breach of any covenant, agreement or
obligation to be performed by the Sellers pursuant to this
Agreement.
-16-
6.03
Indemnification by the Buyer. Subject to the other terms and
conditions of this Article
VII, for a term beginning on the Closing Date and ending on
the first anniversary of the Closing Date, the Buyer shall
indemnify and defend each of the Sellers and its Affiliates and
their respective representatives (collectively, the “Sellers Indemnitees”)
against, and shall hold each of them harmless from and against, and
shall pay and reimburse each of them for, any and all Losses
incurred by the Sellers Indemnitees arising out of:
(a)
any material breach of any of the representations or
warranties of the Buyer contained in this Agreement; or
(b)
any material breach of any covenant, agreement or
obligation to be performed by the Buyer pursuant to this
Agreement.
6.04
Indemnification Procedures. The party making a claim under
this Article VII is
referred to as the “Indemnified Party”, and the party
against whom such claims are asserted under this Article VII is referred to as
the “Indemnifying
Party”.
(a)
Third Party
Claims. If any Indemnified Party receives notice of the
assertion or commencement of any Action made or brought by any
Person who is not a party to this Agreement or an Affiliate of a
party to this Agreement or a Representative of the foregoing (a
“Third Party
Claim”) against such Indemnified Party with respect to
which the Indemnifying Party is obligated to provide
indemnification under this Agreement, the Indemnified Party shall
give the Indemnifying Party reasonably prompt written notice
thereof, but in any event not later than 30 calendar days after
receipt of such notice of such Third Party Claim. The failure to
give such prompt written notice shall not, however, relieve the
Indemnifying Party of its indemnification obligations, except and
only to the extent that the Indemnifying Party forfeits rights or
defenses by reason of such failure. Such notice by the Indemnified
Party shall describe the Third-Party Claim in reasonable detail,
shall include copies of all material written evidence thereof and
shall indicate the estimated amount, if reasonably practicable, of
the Loss that has been or may be sustained by the Indemnified
Party. The Indemnifying Party shall have the right to participate
in, or by giving written notice to the Indemnified Party, to assume
the defense of any Third Party Claim at the Indemnifying
Party’s expense and by the Indemnifying Party’s own
counsel, and the Indemnified Party shall cooperate in good faith in
such defense; provided,
that if the Indemnifying Party is the Sellers, such Indemnifying
Party shall not have the right to defend or direct the defense of
any such Third Party Claim that (x) is asserted directly by or on
behalf of a Person that is a supplier or customer of GIANT, or (y)
seeks an injunction or other equitable relief against the
Indemnified Party. In the event that the Indemnifying Party assumes
the defense of any Third-Party Claim, subject to Section 6.04(b), it shall have
the right to take such action as it deems necessary to avoid,
dispute, defend, appeal or make counterclaims pertaining to any
such Third-Party Claim in the name and on behalf of the Indemnified
Party. The Indemnified Party shall have the right to participate in
the defense of any Third-Party Claim with counsel selected by it
subject to the Indemnifying Party’s right to control the
defense thereof. The fees and disbursements of such counsel shall
be at the expense of the Indemnified Party, provided, that if it is adjudicated
that, (A) there are legal defenses available to an Indemnified
Party that are different from or additional to those available to
the Indemnifying Party; or (B) there exists a conflict of interest
between the Indemnifying Party and the Indemnified Party that
cannot be waived, the Indemnifying Party shall be liable for the
reasonable fees and expenses of counsel to the Indemnified Party in
each jurisdiction for which the Indemnified Party determines
counsel is required. If the Indemnifying Party does not assume the
defense of the proceeding, the Indemnified Party must obtain the
Indemnifying Party’s advance approval of the legal counsel
engaged by the Indemnified Party to defend the proceeding. The
Indemnifying Party shall not unreasonably withhold its approval of
any legal counsel proposed to be engaged by the Indemnified Party.
If the Indemnifying Party elects not to compromise or defend such
Third-Party Claim, fails to promptly notify the Indemnified Party
in writing of its election to defend as provided in this Agreement,
or fails to diligently prosecute the defense of such Third-Party
Claim, the Indemnified Party may, subject to Section 6.04(b), pay,
compromise, defend such Third-Party Claim and seek indemnification
for any and all Losses based upon, arising from or relating to such
Third-Party Claim. The Sellers and the Buyer shall cooperate with
each other in all reasonable respects in connection with the
defense of any Third-Party Claim.
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(b)
Settlement of Third
Party Claims. Notwithstanding any other provision of this
Agreement, the Indemnifying Party shall not enter into settlement
of any Third-Party Claim without the prior written consent of the
Indemnified Party, except as provided in the Indemnification
Section herein. If a firm offer is made to settle a Third Party
Claim without leading to liability or the creation of a financial
or other obligation on the part of the Indemnified Party and
provides, in customary form, for the unconditional release of each
Indemnified Party from all liabilities and obligations in
connection with such Third Party Claim and the Indemnifying Party
desires to accept and agree to such offer, the Indemnifying Party
shall give written notice to that effect to the Indemnified Party.
If the Indemnified Party fails to consent to such firm offer within
ten days after its receipt of such notice, the Indemnified Party
may continue to contest or defend such Third-Party Claim and in
such event, the maximum liability of the Indemnifying Party as to
such Third-Party Claim shall not exceed the amount of such
settlement offer. If the Indemnified Party fails to consent to such
firm offer and also fails to assume defense of such Third-Party
Claim, the Indemnifying Party may settle the Third-Party Claim upon
the terms set forth in such firm offer to settle such Third-Party
Claim. If the Indemnified Party has assumed the defense pursuant to
the Indemnification Section herein it shall not agree to any
settlement without the prior written consent of the Indemnifying
Party (which consent shall not be unreasonably withheld or
delayed).
(c)
Direct Claims.
Any Action by an Indemnified Party on account of a Loss which does
not result from a Third-Party Claim (a “Direct Claim”) shall be
asserted by the Indemnified Party giving the Indemnifying Party
reasonably prompt written notice thereof, but in any event not
later than 30 days after the Indemnified Party becomes aware of
such Direct Claim. The failure to give such prompt written notice
shall not, however, relieve the Indemnifying Party of its
indemnification obligations, except and only to the extent that the
Indemnifying Party forfeits rights or defenses because of such
failure. Such notice by the Indemnified Party shall describe the
Direct Claim in reasonable detail, shall include copies of all
material written evidence thereof and shall indicate the estimated
amount, if reasonably practicable, of the Loss that has been or may
be sustained by the Indemnified Party. The Indemnifying Party shall
have 30 days after its receipt of such notice to respond in writing
to such Direct Claim. The Indemnified Party shall allow the
Indemnifying Party and its professional advisors to investigate the
matter or circumstance alleged to give rise to the Direct Claim,
and whether and to what extent any amount is payable in respect of
the Direct Claim and the Indemnified Party shall assist the
Indemnifying Party’s investigation by giving such information
and assistance (including access to GIANT’s premises and
personnel and the right to examine and copy any accounts, documents
or records) as the Indemnifying Party or any of its professional
advisors may reasonably request. If the Indemnifying Party does not
so respond within such 30-day period, the Indemnifying Party shall
be deemed to have rejected such claim, in which case the
Indemnified Party shall be free to pursue such remedies as may be
available to the Indemnified Party on the terms and subject to the
provisions of this Agreement.
6.05 Exclusions and Payments. An
Indemnifying Party is not liable to an Indemnified Party for any
Loss, unless: (i) the Indemnified Party requests payment or
reimbursement of the Loss; (ii) the Indemnified Party furnishes the
Indemnifying Party with evidence reasonably establishing the nature
and amount of the Loss; (iii) the amount of the Loss has been
determined and is absolute and liquidated (not contingent); and
(iv) the cumulative amount of all Losses exceeds $____.
Furthermore, an Indemnifying Party is not liable for any Loss to
the extent that (A) it is paid or payable as a whole or in part by
an insurance policy, (B) the Indemnifying Party is actually
prejudiced by any failure of the Indemnified Party to promptly
notify the Indemnifying Party of any fact, event, or proceeding
(including any claim, action, demand, inquiry, lawsuit, or
investigation, whether formal or informal, pending, threatened, or
completed, or civil, criminal, administrative, or investigative)
that results in, or reasonably could be expected to result in, the
incurrence of a Loss, or (C) it is reduced by an amount equal to
any Tax benefit realized or reasonably expected to be realized by
the Indemnified Party as a result of such Loss. The maximum,
aggregate liability of the Indemnifying Party for all Losses is
limited to $______. This Article VI shall be the sole and exclusive
remedy of the parties to this Agreement for any claims arising
under this Agreement, including claims of fraud, any inaccuracy in
or breach of any representation, warranty or covenant in this
Agreement.
Once a
Loss is agreed to by the Indemnifying Party or finally adjudicated
to be payable pursuant to this Article VI, the Indemnifying Party
shall satisfy its obligations within 15 Business Days of such
final, non-appealable adjudication by wire transfer of immediately
available funds.
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ARTICLE VII
Miscellaneous
7.01
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 hereby shall be paid by the party incurring such costs
and expenses, whether or not the Closing shall have
occurred.
7.02
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 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):
If to
the Sellers:
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with a
copy (which shall not constitute notice) to:
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If to
the Buyer:
000
Xxxxxxxxx Xxx 0xx Xxxxx
Xxx
Xxxx, XX 00000
c: 000
000 0000
Attn:
Xxxxxxxx Xxxxxx
Chairman &
CEO
If to
Buyer’s Counsel
Xxxxxxxxx X.
Xxxxxx, P. A.
xxxxxxx@xxxxxxxxxxxxxxxxxx0.xxx
(000)
000-0000
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7.03
Interpretation. For purposes of this Agreement, (a) the
words “include,” “includes” and
“including” shall be deemed to be followed by the words
“without limitation”; (b) the word “or” is
not exclusive; (c) the words “herein,”
“hereof,” “hereby,” “hereto”
and “hereunder” refer to this Agreement as a whole; and
(d) except as otherwise expressly provided, any information
“delivered” or “made available” to the
Buyer shall include that information (i) contained in the
virtual data room hosted by GIANT at least two (2) calendar days
prior to the Closing Date or (ii) otherwise provided in
writing (including electronically) to the Buyer or its
representatives, as applicable, on or prior to the Closing Date.
Unless the context otherwise requires, references herein: (x) to
Articles, Sections, Schedules and Exhibits mean the Articles and
Sections of, and Schedules and Exhibits attached to, this
Agreement; (y) to an agreement, instrument or other document means
such agreement, instrument or other document as amended,
supplemented and modified from time to time to the extent permitted
by the provisions thereof and (z) to a statute means such statute
as amended from time to time and includes any successor legislation
thereto and any regulations promulgated thereunder. This Agreement
shall be construed without regard to any presumption or rule
requiring construction or interpretation against the party drafting
an instrument or causing any instrument to be drafted. The
Schedules and Exhibits referred to herein shall be construed with,
and as an integral part of, this Agreement to the same extent as if
they were set forth verbatim herein.
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7.04 Headings. The headings in this
Agreement are for reference only and shall not affect the
interpretation of this Agreement.
7.05 Severability. If any term or
provision of this Agreement is invalid, illegal or unenforceable in
any jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other term or provision of this Agreement or
invalidate or render unenforceable such term or provision in any
other jurisdiction. Upon a determination that any term or other
provision is invalid, illegal or unenforceable, the parties hereto
shall negotiate in good faith to modify this Agreement so as to
affect the original intent of the parties as closely as possible in
a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to
the greatest extent possible.
7.06 Entire Agreement. This Agreement,
together with the Option and Purchase Agreement, constitutes the
sole and entire agreement of the parties to this Agreement with
respect to the subject matter contained herein and therein, and
supersede all prior and contemporaneous understandings and
agreements, both written and oral, with respect to such subject
matter. In the event of any inconsistency between the statements in
the body of this Agreement, the Exhibits and Schedules (other than
an exception expressly set forth as such in the Schedules), the
statements in the body of this Agreement will control.
7.07 Legal Representation. Each party to
this Agreement has read and fully understands the terms and
provisions hereof, has reviewed this Agreement with its legal
counsel and/or advisor, has executed this Agreement based upon such
party’s own judgment and advice of counsel, and knowingly,
voluntarily, and without duress, agrees to all of the terms set
forth in this Agreement. The parties have participated jointly in
the negotiation and drafting of this Agreement. If an ambiguity or
question of intent or interpretation arises, this Agreement will be
construed as if drafted jointly by the parties and no presumption
or burden of proof will arise favoring or disfavoring any party
because of authorship of any provision of this Agreement. Except as
expressly set forth in this Agreement, neither the parties nor
their affiliates, advisors and/or their attorneys have made any
representation or warranty, express or implied, at law or in equity
with respect of the subject matter contained herein. Without
limiting the generality of the previous sentence, the Buyer, its
affiliates, advisors and/or attorneys have made no representation
or warranty to the Sellers concerning the state or federal tax
consequences to the Sellers regarding the transactions contemplated
by this Agreement.
7.08 Successors and Assigns. This
Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted
assigns. Neither party may assign its rights or obligations
hereunder without the prior written consent of the other party,
which consent shall not be unreasonably withheld or delayed;
provided, however, the
Sellers may, without the prior written consent of the Buyer, assign
all or any portion of its rights under this Agreement to one or
more of its Affiliates, investors and/or equity owners. No
assignment shall relieve the assigning party of any of its
obligations hereunder.
7.09 No Third-party Beneficiaries.
Except as provided herein, this Agreement is for the sole benefit
of the parties hereto and their respective successors and permitted
assigns and nothing herein, express or implied, is intended to or
shall confer upon any other Person or entity any legal or equitable
right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
7.10 Amendment and Modification; Waiver.
This Agreement may only be amended, modified or supplemented by an
agreement in writing signed by the Buyer and the Sellers, which
amendment, once so executed, shall be binding on all parties to
this Agreement as though direct signatories hereto. No waiver by
any party of any of the provisions hereof shall be effective unless
explicitly set forth in writing and signed by the party so waiving.
No waiver by any party shall operate or be construed as a waiver in
respect of any failure, breach or default not expressly identified
by such written waiver, whether of a similar or different
character, and whether occurring before or after that waiver. No
failure to exercise, or delay in exercising, any right, remedy,
power or privilege arising from this Agreement shall operate or be
construed as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege.
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7.11 Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial.
(a)
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without
giving effect to any choice or conflict of law provision or rule
(whether of the State of New York or any other
jurisdiction).
(b)
ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
BASED UPON THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE COMMON
STOCKED STATES OF AMERICA OR THE COURTS OF THE STATE OF NEW YORK,
AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. THE PARTIES
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING
OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND
IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH
PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO
REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE
FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.11(c).
7.12 Specific Performance. The parties
agree that irreparable damage would occur if any provision of this
Agreement were not performed in accordance with the terms hereof
and that the parties shall be entitled to specific performance of
the terms hereof, in addition to any other remedy to which they are
entitled at law or in equity.
7.13 Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed an
original, but all of which together shall be deemed to be one and
the same agreement. A signed copy of this Agreement delivered by
facsimile, e-mail or other means of electronic transmission shall
be deemed to have the same legal effect as delivery of an original
signed copy of this Agreement.
7.14 Termination by the Sellers. If any
of the conditions set forth in Section 6.03 of this Agreement
have not been satisfied by 5:00 PM New York time on [●],
20172 (the “Sellers Option Time”), this
Agreement may be terminated and the transactions contemplated by
this Agreement may be abandoned by the Sellers, at its option, for
any reason or no reason, at any time after the Sellers Option Time.
In the event of termination by the Sellers pursuant to this
Section 7.15,
written notice of such termination shall be given to the Buyer
(e-mail shall suffice) and the transactions contemplated by the
Agreement shall be terminated, without further action, notice or
deed by any party to this Agreement. If this Agreement is
terminated and the transactions contemplated hereby are abandoned
as described in this Section 7.15, this Agreement
shall become null and void and of no further force and effect,
without any liability or obligation on the part of any party to
this Agreement, except for the provisions of Sections 4.01, 4.02,
4.03, 4.04, 4.06 and Article VIII of this Agreement,
all of which shall survive such termination. Nothing in this
Section 7.15,
however, shall be deemed to release any party to this Agreement
from any liability for damages for any breach by such party of the
terms and provisions of this Agreement in the event of such
party’s fraud or willful misconduct, or to impair the
availability of the remedy of specific performance in accordance
with Section
7.12.
2 NTD: To insert the date which is two Business Days
after the date of execution of the Common Stock Purchase
Agreement.
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Giant,
the Sellers and the Buyer have caused this Agreement to be executed
as of the date first written above.
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SELLERS:
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/s/ Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
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/s/ Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
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BUYER:
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By:
/s/ Xxxxxxxx
Xxxxxx
Name:
Xxxxxxxx Xxxxxx
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GIANT:
By:
Name:
Title
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-22-