TRANSACTION TEAM

 

 

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CLOSING/EXHIBIT CHECKLIST

 

 

 

ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this "Agreement"), dated as of September 30, 2015 (the "Effective Date"), is entered into between AMBREW, LLC, a Washington limited liability company ("Buyer") and AMERICAN BREWING COMPANY, INC., a Washington corporation ("Seller").

WHEREAS, Seller is engaged in the business of production and distribution of malted beverages through the operation of a brewery at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and the related operation of a tap room for the retail sale of malted beverages and brewery related merchandise (the "Business"); and

WHEREAS, Seller wishes to sell and assign to Buyer, and ▇▇▇▇▇ wishes to purchase and assume from Seller, substantially all the assets, and certain specified liabilities described below, of the Business, 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
definitions

The following terms have the meanings specified or referred to in this Article I:

"Accounts Receivable" has the meaning set forth in Section 2.01(a).

"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.

"Advance Deposit" means the amount set forth in Section 2.06.

"Agreement" has the meaning set forth in the preamble.

"Allocation Schedule" has the meaning set forth in Section 2.07.

"Applicable Law" means the laws of the State of Washington and federal law.

"Assigned Contracts" has the meaning set forth in Section 2.01(c).

"Assignment and Assumption Agreement" has the meaning set forth in Section 3.02(a)(ii).

"Assignment and Assumption of Lease-Production" has the meaning set forth in Section 3.02(a)(vi).

Asset Purchase Agreement Page 1

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"Assigned Contracts" has the meaning set forth in Section 2.01(c).

"Assignment and Assumption Agreement" has the meaning set forth in Section 3.02(a)(ii).

"Assignment and Assumption of Lease-Production" has the meaning set forth in Section 3.02(a)(vi).

 "Assignment and Assumption of Lease-Warehouse" has the meaning set forth in Section 3.02(a)(vii).

"Assumed Liabilities" has the meaning set forth in Section 2.03.

"Benefit Plan" means an employee benefit plan, within the meaning of ERISA, established and maintained by Seller.

"Bill of Sale" has the meaning set forth in Section 3.02(a)(i).

"Books and Records" has the meaning set forth in Section 2.01(j).

"Business" has the meaning set forth in the recitals.

"Business Day" means any day except Saturday, Sunday or any other day on which commercial banks located in Seattle, Washington are authorized or required by Law to be closed for business.

"Buyer" has the meaning set forth in the preamble.

"Buyer Closing Certificate" has the meaning set forth in Section 7.03(e).

"Buyer Indemnitees" has the meaning set forth in Section 8.02.

"CERCLA" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.

"Closing" has the meaning set forth in Section 3.01.

"Closing Date" has the meaning set forth in Section 3.01.

"Code" means the Internal Revenue Code of 1986, as amended.

"Contracts" means all contracts, leases, deeds, mortgages, licenses, instruments, notes, commitments, undertakings, indentures, joint ventures and all other agreements, commitments and legally binding arrangements, whether written or oral.

"Direct Claim" has the meaning set forth in Section 8.04(c).

"Disclosure Schedules" means the Disclosure Schedules delivered by Seller concurrently with the execution and delivery of this Agreement.

"Dollars or $" means the lawful currency of the United States.

 

"Effective Date" means September 30, 2015, at 11:59 PM.

"Employees" mean those Persons employed by Seller in connection with the Business immediately prior to the Closing.

"Encumbrance" means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

"Environmental Claim" means any Action, Governmental Order, lien, fine, penalty, or, as to each, any settlement or judgment arising therefrom, by or from any Person alleging liability of whatever kind or nature (including liability or responsibility for the costs of enforcement proceedings, investigations, clean-up, governmental response, removal or remediation, natural resources damages, property damages, personal injuries, medical monitoring, penalties, contribution, indemnification and injunctive relief) arising out of, based on or resulting from: (a) the presence, Release of, or exposure to, any Hazardous Materials; or (b) any actual or alleged non-compliance with any Environmental Law or term or condition of any Environmental Permit.

"Environmental Law" means any applicable Law, and any Governmental Order or binding agreement with any Governmental Authority: (a) relating to pollution (or the clean-up thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal or remediation of any Hazardous Materials. The term "Environmental Law" includes, without limitation, the following (including their implementing regulations and any state analogs): the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C. §§ 7401 et seq.; and the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651 et seq.

 

"Environmental Notice" means any written directive, notice of violation or infraction, or notice respecting any Environmental Claim relating to actual or alleged non-compliance with any Environmental Law or any term or condition of any Environmental Permit.

"Environmental Permit" means any Permit, letter, clearance, consent, waiver, closure, exemption, decision or other action required under or issued, granted, given, authorized by or made pursuant to Environmental Law.

"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.

"Excluded Assets" has the meaning set forth in Section 2.02.

"Excluded Books and Records" means the minute books of the Seller, records related to operations and assets of Seller other than the Business, and other company records of Seller that relate exclusively to Seller's organizational form or capitalization.

"Excluded Contracts" has the meaning set forth in Section 2.02(a).

"Excluded Liabilities" means any Liabilities of Seller, whether accrued or fixed, absolute or contingent, known or unknown, determined or determinable and whether incurred prior to or after the Closing Date, other than each specific liability that Buyer has expressly identified as an Assumed Liability.

"Financial Statements" has the meaning set forth in Section 4.04.

"GAAP" means United States generally accepted accounting principles 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.

"Hazardous Materials" means: (a) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or manmade, that is hazardous, acutely hazardous, toxic, or words of similar import or regulatory effect under Environmental Laws; and (b) any petroleum or petroleum-derived products, radon, radioactive materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation and polychlorinated biphenyls.

 

"Indemnified Party" has the meaning set forth in Section 8.04.

"Indemnifying Party" has the meaning set forth in Section 8.04.

"Insurance Policies" has the meaning set forth in Section 4.13.

"Intellectual Property Assets" has the meaning set forth in Section 4.10.

"Inventory" has the meaning set forth in Section 2.01(b).

"Keg Deposits" means amounts conditionally or provisionally held by Seller to be refunded to third parties, including amounts held as security for the return of Seller property included in the Assets, including but not limited to deposits for the rent or use of kegs, dispensing equipment, or other property of Seller.

"Key Employee" means each of ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.

"Knowledge of Seller or Seller's Knowledge" or any other similar knowledge qualification, means the actual or constructive knowledge of any director or officer of Seller.

"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.

"Lease Agreement-Production" means that certain HARBOR SQUARE Warehouse NNN Lease, dated June 25, 2010, between Seller, as Tenant, and Port of ▇▇▇▇▇▇▇, a Washington port district, as Landlord, for 102A, Building 4, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, by its terms incorporating Suite 101A, Building 4, 180 West Dayton, Edmonds, Snohomish County, WA, effective as of January 1, 2013, and as (1) amended June 30, 2010, to include shared storage yard space,  (2) __________________________________ to ___________________________; and (3) amended and extended November 12, 2013, to extend the term of December 31, 2015.

"Lease Agreement-Warehouse" means the Lease dated November 12, 2013, between Seller, as Tenant, and Port of ▇▇▇▇▇▇▇, a port district in the state of Washington, as Landlord, as amended by Amendment to Lease No. 1 dated December 24, 2014, for premises identified as Suites 102A-D, in Building 5, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, and together with the Lease Agreement-Production, each a "Lease Agreement" and together the "Lease Agreements".

"Liabilities" means liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise.

"License Agreement" has the meaning set forth in Section 2.10.

 

"Losses" means losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

"Material Adverse Effect" means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, prospects, condition (financial or otherwise) or assets of the Business, (b) the value of the Purchased Assets, or (c) the ability of any party to consummate the transactions contemplated hereby on a timely basis.

"Material Contracts" has the meaning set forth in Section 4.07(a).

"Material Customers" has the meaning set forth in Section 4.12.

"Outside Termination Date" means December 30, 2015, unless the parties mutually agree to a different date.

"Permits" means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained, or required to be obtained, from Governmental Authorities.

"Person" means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity.

"Pinnacle Obligation" means the amount owed by Seller to Pinnacle Capital Partners, LLC, a Washington limited liability company, pursuant to three Equipment Financing Agreements, dated January 15, 2015, June 4, 2015, and June 4, 2015, together with all fees, costs, as of the Closing Date, which such amount owed as of August 31, 2015, was $______________; together with and subject to the Encumbrance granted in connection therewith.

"Pre-Closing Tax Period" means any taxable period ending on or before the Closing Date and, with respect to any taxable period beginning before and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date.

"Products" has the meaning set forth in Section 4.20.

"Purchase Price" has the meaning set forth in Section 2.05.

"Purchased Assets" has the meaning set forth in Section 2.01.

 

"Recipes and Formulas" means the ▇▇▇▇▇▇'▇ logs, notes, recipes, formulas, instructions, and know-how related to the operation of the brewery and brewing equipment, the Purchased Assets and the Business, including but not limited to those related to Products.

"Release" means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandonment, disposing or allowing to escape or migrate into or through the environment (including, without limitation, ambient air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata or within any building, structure, facility or fixture).

"Representative" means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.

"Restricted Business" means the ownership or operation of a Small Craft Brewery.

"Restricted Period" has the meaning set forth in Section 6.05(a).

"Seller" has the meaning set forth in the preamble.

"Seller Closing Certificate" has the meaning set forth in Section 7.02(g).

"Seller Indemnitees" has the meaning set forth in Section 8.03.

"Seller's WSLCB License" has the meaning given in Section 8.03(e).

"Small Craft Brewery" means a craft brewery with sales of less than 20,000 barrels per year.

"Sublease" has the meaning set forth in Section 2.11.

"Tangible Personal Property" has the meaning set forth in Section 2.01(d).

"Taxes" means all federal, state, local, foreign and other income, gross receipts, sales, use, production (including TTB), ad valorem, transfer, documentary, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties.

 

"Tax Return" means any return, declaration, report, claim for refund, information return or statement or other document relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

"Territory" means the state of Washington.

"Third Party Claim" has the meaning set forth in Section 8.04(a).

"Transaction Documents" means this Agreement, the Bill of Sale, the Assignment and Assumption Agreement, License Agreement, Assignment and Assumption of Lease-Production (with landlord consent), the Assignment and Assumption of Lease-Warehouse (with landlord consent), and the other agreements, instruments and documents required to be delivered at the Closing.

"TTB" means the Alcohol and Tobacco Tax and Trade Bureau, United States Department of Treasury.

"WSLCB" means the Washington State Liquor and Cannabis Board.

"WSLCB Condition" has the meaning given in Section 7.03(i).

ARTICLE II
purchase and sale

Section 2.01   Purchase and Sale of Assets.  Subject to the terms and conditions set forth herein, at the Closing, Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase from Seller, free and clear of any Encumbrances except as expressly set forth herein, all of Seller's right, title and interest in, to and under all of the assets, properties and rights of every kind and nature, whether personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or acquired prior to Closing (other than the Excluded Assets), which relate to, or are used or held for use in connection with, the Business (collectively, the "Purchased Assets"), including, without limitation, the following:

 

Section 2.02   Excluded Assets.  Notwithstanding the foregoing, the Purchased Assets shall not include the following assets (collectively, the "Excluded Assets"):

Section 2.03   Assumed Liabilities.  Buyer shall assume and agree to pay, perform and discharge only the Liabilities of Seller listed on Section 2.03 of the Disclosure Schedules (collectively, the "Assumed Liabilities"), and no other Liabilities, which Assumed Liabilities are one of the following:

 

Contracts but only to the extent that such Liabilities thereunder are required to be performed after the Closing Date, relate to periods of time or actions taken after the Closing Date, were incurred in the ordinary course of business and do not relate to any failure to perform, improper performance, warranty or other breach, default or violation by Seller on or prior to the Closing;

Section 2.04   Excluded Liabilities.  Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Excluded Liabilities. Seller shall pay and satisfy in due course all Excluded Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:

 

 

Section 2.05   Purchase Price.  The purchase price for the Purchased Assets and the obligations set forth in Section 6.05 (collectively, the "Purchase Price") shall be Seven Hundred Fifty Thousand Dollars ($750,000).

Section 2.06   Payment of Purchase Price and Closing Costs.  On or before October 1, 2015, Buyer shall deliver to Seller by wire transfer or immediately available funds, as an advance deposit of the Purchase Price, an amount equal to the difference between the Purchase Price and the amount required at such date to satisfy and discharge in full the Pinnacle Obligations (the "Advance Deposit").  Subject to the Closing occurring and at such Closing, Buyer shall assume the Pinnacle Obligations (including all interest and other charges due thereon from the Effective Date until the Closing Date), and the Advance Deposit shall be deemed fully earned and released to Seller. The Advance Deposit shall be returned to Buyer if, notwithstanding Buyer's good faith efforts to satisfy the conditions to closing, they have not been satisfied by the Outside Termination Date and the parties do not mutually agree to extend such date.  At the time of delivery of the Advance Deposit, and until its return upon termination of this Agreement or application to the Purchase Price at the Closing, Seller's obligation to refund the Advance Deposit shall be evidenced and secured by the Equipment Finance Agreements in the form attached hereto as Exhibit C (the "Interim Finance Documents").

Section 2.07   Allocation of Purchase Price.  Seller and Buyer agree that the Purchase Price shall be allocated among the Purchased Assets for all purposes (including Tax and financial accounting) as shown on an allocation schedule (the "Allocation Schedule") to be prepared by Buyer prior to the Closing Date in accordance with IRS pronouncements.  For clarification, the parties intend for accounting and tax allocation purposes that the Purchase Price (the $750,000 described in Section 2.05) shall be increased by the Assumed Liabilities (other than those the benefit of which will be realized by Buyer following Closing, such as the Lease Agreements and hop contracts), and that the gross amount will then be allocated as follows:

 

Section 2.08   Third Party Consents.  To the extent that Seller's rights under any Contract or Permit constituting a Purchased Asset, or any other Purchased Asset, may not be assigned to Buyer without the consent of another Person which has not been obtained, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof or be unlawful, and Seller shall use its reasonable best efforts to obtain any such required consent(s) as promptly as possible. If any such consent shall not be obtained or if any attempted assignment would be ineffective or would impair Buyer's rights under the Purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights, Seller, to the maximum extent permitted by law and the Purchased Asset, shall act after the Closing as Buyer's agent in order to obtain for it the benefits thereunder and shall cooperate, to the maximum extent permitted by Law and the Purchased Asset, with Buyer in any other reasonable arrangement designed to provide such benefits to Buyer.  Without releasing Seller form its obligations to take good faith efforts to obtain approval or consent to assignments, or to perform under the Purchased Asset for the benefit of Buyer, Seller shall not be held liable for any inability of Buyer to assume any Contract or Permit to be assumed pursuant to this Agreement.  Notwithstanding any provision in this Section 2.08 to the contrary, Buyer shall not be deemed to have waived its rights under Section 7.02(d) hereof unless and until Buyer either provides written waivers thereof or elects to proceed to consummate the transactions contemplated by this Agreement at Closing.

Section 2.09   License of Trade Name as Entity Name.  For a period of twelve (12) months commencing on the Closing Date, Seller shall be entitled to the non-exclusive use of the trade name American Brewing solely as its corporate legal name, but not in connection with the active conduct of a trade or business.  In addition, during the 12 month transition period, Buyer shall install a link on Buyer's corporate website that will redirect visitors of the website to Seller's corporate website.  During such period, Seller take commercially reasonable actions to, at the earliest possible times, change its legal name and completely discontinue such use.  Buyer and Seller shall enter into a license agreement (the "License Agreement") in the form attached as Exhibit D setting forth the terms and conditions under which Seller may use such trade name as its legal name.

 

Section 2.10   Dates and Intent.  The parties intend, to the maximum extent possible, provided that the conditions to Closing have occurred, including specifically the WSLCB Condition, that the benefits and obligations of ownership and operation of the Business shall accrue to Buyer beginning as of the Effective Date.  Accordingly, the provisions of this Agreement are intended to be construed to provide that Seller shall operate the business in the ordinary course between the Effective Date and the Closing or termination, as the case may be, and all risk and rewards of ownership all accrue to Buyer, except to that extent that Seller violates the terms of this Agreement.  Seller shall reasonably consult with Buyer regarding operational decisions, but legal compliance and operations shall remain within the control of Seller.  Seller shall maintain all insurance policies in force and continue to use its best efforts to employ all of its employees from the date hereof until the Closing, and all receipts and expenditures of the business shall continue to be deposited into and paid out of the bank account that is to be included in the Purchased Assets. In the event of any insurable claim arising hereunder against Seller involving the Business, Seller shall promptly notify Buyer and make appropriate claim under its applicable insurance.

ARTICLE III
closing

Section 3.01   Closing.  Subject to the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of Buyer, in Tacoma Washington, on the second Business Day after all of the conditions to Closing set forth in Article VII are either satisfied or waived (other than conditions which, by their nature, are to be satisfied on the Closing Date), or at such other time, date or place as Seller and Buyer may mutually agree upon in writing. The date on which the Closing is to occur is herein referred to as the "Closing Date".

Section 3.02   Closing Deliverables.

 

 

ARTICLE IV
representations and warranties of seller

Seller represents and warrants to Buyer that the statements contained in this ARTICLE IV are true and correct as of the date hereof and shall be true and correct as of the Closing.

Section 4.01   Organization and Qualification of Seller.  Seller is a corporation duly organized and validly existing under the Laws of the state of Washington and 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 the Business as currently conducted.  Seller has no subsidiaries.

Section 4.02   Authority of Seller.  Seller has full power and authority to enter into this Agreement and the other Transaction Documents to which Seller is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Seller of this Agreement and any other Transaction Document to which Seller is a party, the performance by Seller of its obligations hereunder and thereunder and the consummation by Seller of the transactions contemplated hereby and thereby have been duly authorized by all requisite action on the part of Seller. This Agreement has been duly executed and delivered by Seller, and (assuming due authorization, execution and delivery by ▇▇▇▇▇) this Agreement constitutes a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms. When each other Transaction Document to which Seller is or will be a party has been duly executed and delivered by Seller (assuming due authorization, execution and delivery by each other party thereto), such Transaction Document will constitute a legal and binding obligation of Seller enforceable against it in accordance with its terms.

 

Section 4.03   No Conflicts; Consents.  Except as disclosed in Section 4.03 of the Disclosure Schedules, the execution, delivery and performance of this Agreement and the other 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 certificate of formation, limited liability company agreement or other organizational documents of Seller; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Seller, the Business or the Purchased Assets; (c) conflict with, result in a 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 or Permit to which Seller is a party or by which Seller or the Business is bound or to which any of the Purchased Assets are subject (including any Assigned Contract); or (d) result in the creation or imposition of any encumbrance on the Purchased Assets. Except for notices to WSLCB and/or TTB, no consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Seller in connection with the execution and delivery of this Agreement or any of the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby.

Section 4.04   Financial Information.

 

Section 4.05   Undisclosed Liabilities.  Seller has no Liabilities with respect to the Business, except those which have been incurred in the ordinary course of business consistent with past practice and which are not, individually or in the aggregate, material in amount.  All Assumed Liabilities have been disclosed on the Disclosure Schedules.  Except as set forth on Section 4.05 of the Disclosure Schedules, Seller has no obligations or commitments for (a) the purchase of goods, services, or Inventory, or (b) the sale or delivery of goods, services, or Inventory, and any disclosed obligations are at prices that represent the current fair market value of such goods, services, or Inventory, as the case may be.  Seller has no obligation to purchase any Inventory previously sold by Seller, or to refund all or any portion of the purchase price.

Section 4.06   Absence of Certain Changes, Events and Conditions.  Since December 31, 2014, except as disclosed in the Seller's public filings that have been filed with the Securities and Exchange Commission, there has not been any:

 

 

Section 4.07   Contracts.

 

Section 4.08   Title to Purchased Assets.  Except as set forth in Section 4.08 of the Disclosure Schedules: (a) Seller has good and valid title to, or a valid leasehold interest in or license to use, all of the Purchased Assets; and (b) all such Purchased Assets (including leasehold and licensed interests) are free and clear of Encumbrances, except for the Encumbrance related to the Pinnacle Obligation to be assumed by Buyer.

Section 4.09   Condition and Sufficiency of Assets.  The furniture, trade fixtures, machinery, equipment, and other items of tangible personal property included in the Purchased Assets are structurally sound, are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such furniture, trade fixtures, machinery, equipment, and other items of tangible personal property is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. The Purchased Assets are sufficient for the continued conduct of the Business after the Closing in substantially the same manner as conducted prior to the Closing and constitute all of the rights, property and assets necessary to conduct the Business as currently conducted.  None of the Excluded Assets are material to the Business.

Section 4.10   Intellectual Property.

 

Section 4.11   Inventory.  All Inventory, whether or not reflected in the Balance Sheet, consists of a quality and quantity usable and salable in the ordinary course of business consistent with past practice. All Inventory is owned by Seller free and clear of all 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 Seller.  Section 4.11 of the Disclosure Schedule lists, by distributor, wholesaler, and retail customer, the location of all Kegs and the Keg Deposits accepted from and returnable to each distributor, wholesaler or customer.

Section 4.12   Customers and Suppliers.  Section 4.12 of the Disclosure Schedules sets forth with respect to the Business (i) each customer who has paid consideration to Seller for products during the previous 12 months in excess of $10,000.00 each year (collectively, the "Material Customers"); and (ii) the amount of consideration paid by each Material Customer during such periods. Except as set forth in Section 4.12 of the Disclosure Schedules, Seller has not received any notice, and has no reason to believe, that any of the Material Customers has ceased, or intends to cease after the Closing, to use the goods or services of the Business or to otherwise terminate or materially alter its relationship with the Business.

Section 4.13   Insurance.  True and complete copies of the Insurance Policies held by Seller have been delivered to Buyer. The insurance policies held by Seller will not be assumed by ▇▇▇▇▇, and Buyer shall be responsible for obtaining its own insurance policies as they relate to the Business, the Purchased Assets and the Assumed Liabilities.

Section 4.14   Legal Proceedings; Governmental Orders.

 

Section 4.15   Compliance with Laws; Permits.

Section 4.16   Environmental Matters.

 

Section 4.17   Employee Benefit Matters.  Seller is not a party to any Benefit Plan with unfunded liabilities.  Each Benefit Plan complies, and has from its inception complied, in all material respects with all applicable requirements of ERISA, including reporting requirements, and all qualification requirements of the Code.  No Benefit Plan has any amount of unfunded benefit liabilities (within the meaning of Section 4001(a)(18) of ERISA).  Each Benefit Plan (i) has complied with all notification and continuation coverage requirements of COBRA, Section 4980B of the Code and regulations thereunder; (ii) has not engaged in any nonexempt prohibited transaction; (iii) has not experienced any reportable event as defined in ERISA; and (iv) has not terminated.  Seller has no nonqualified deferred compensation, severance pay, or other employee pension plans.

Section 4.18   Employees and Labor Matters.

 

Section 4.19   Taxes.

 

Section 4.20   Products.  Section 4.20 of the Disclosure Schedule lists all of the Products produced by Seller during the five (5) years preceding the Closing Date.  Each product designed, developed, manufactured, made, produced, provided, distributed, or sold by or on behalf of Seller or the Business ("Products") is and has been, in compliance with (a) all requirements of Law, including all applicable standards for quality and workmanship and (b) the terms and conditions of the Contracts under which the Products have been sold. Except as set forth on Section 4.20 of the Disclosure Schedules, Seller has no Liabilities, whether based on strict liability, negligence, breach of warranty (express or implied), breach of contract or otherwise, in respect of any Product or other item sold by Seller prior to Closing.  All packaging, labeling, branding and similar materials relating to the Products are, and have been, in compliance with all requirements of Law.

Section 4.21   Brokers.  No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Seller.

Section 4.22   Certain Business Relationships.  Except as set forth in Section 4.22 of the Disclosure Schedule, neither Seller nor any employee, director, officer, shareholder, or other third party: (i) owns any property or right, tangible or intangible, which is used in and material to the Business, (ii) has any claim to or cause of action against Seller or the Purchased Assets, (iii) owes any money or other thing of value to, or is owed any money or other thing of value by, Seller, or (iv) otherwise is party to any Contract or relationship relating to the Business.

Section 4.23   Full Disclosure.  No representation or warranty by Seller in this Agreement and no statement contained in the Disclosure Schedules to this Agreement or any certificate or other document furnished or to be furnished to Buyer pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.

 

ARTICLE V
representations and warranties of buyer

Buyer represents and warrants to Seller that the statements contained in this ARTICLE V are true and correct as of the date hereof and will be true and correct as of the Closing Date.

Section 5.01   Organization of Buyer.  Buyer is a limited liability company duly organized, validly existing and in good standing under the Laws of the state of Washington.

Section 5.02   Authority of Buyer.  Buyer has full entity power and authority to enter into this Agreement and the other Transaction Documents to which ▇▇▇▇▇ is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of this Agreement and any other Transaction Document to which ▇▇▇▇▇ is a party, the performance by ▇▇▇▇▇ of its obligations hereunder and thereunder and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly authorized by all requisite entity action on the part of Buyer. This Agreement has been duly executed and delivered by ▇▇▇▇▇, and (assuming due authorization, execution and delivery by Seller) this Agreement constitutes a legal, valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms. When each other Transaction Document to which Buyer is or will be a party has been duly executed and delivered by ▇▇▇▇▇ (assuming due authorization, execution and delivery by each other party thereto), such Transaction Document will constitute a legal and binding obligation of Buyer enforceable against it in accordance with its terms.

Section 5.03   No Conflicts; Consents.  The execution, delivery and performance by Buyer of this Agreement and the other Transaction Documents to which it is a party, 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 certificate of formation, operating agreement, or other organizational documents of Buyer; or (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Buyer. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Buyer in connection with the execution and delivery of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby.

Section 5.04   Brokers.  No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Buyer.

 

Section 5.05   Sufficiency of Funds.  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.

Section 5.06   Legal Proceedings.  There are no Actions pending or, to ▇▇▇▇▇'s knowledge, threatened against or by ▇▇▇▇▇ that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. No event has occurred or circumstances exist that may give rise or serve as a basis for any such Action.

ARTICLE VI
covenants

Section 6.01   Conduct of Business Prior to the Closing.  From the date hereof until the Effective Date, except as otherwise provided in this Agreement or consented to in writing by Buyer (which consent shall not be unreasonably withheld or delayed), Seller shall (a) conduct the Business in the ordinary course of business consistent with past practice, including selling and production practices, including producing and keeping  on hand sufficient inventory to meet the reasonably foreseeable sales of the Business following the Closing date; and (b) use its best efforts to maintain and preserve intact its current Business organization, operations and franchise and to preserve the rights, franchises, goodwill and relationships of its Employees, customers, lenders, suppliers, regulators and others having relationships with the Business.  From the Effective Date to the Closing Date, in addition to the foregoing clauses (a) and (b), Seller shall keep Buyer reasonably apprised of the cash flow needs of the Business and reasonably consult with Buyer regarding material decisions related to the Business (even though in the ordinary course).

Section 6.02   Access to Information.  From the date hereof until the Closing, Seller shall, (a) afford Buyer and its Representatives full and free access to and the right to inspect all of the assets, premises, Books and Records, Contracts and other documents and data related to the Business; (b) furnish Buyer and its Representatives with such financial, operating and other data and information related to the Business as Buyer or any of its Representatives may reasonably request; and (c) instruct the Representatives of Seller to cooperate with Buyer in its investigation of the Business. No investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller in this Agreement.

 

Section 6.03   Employees and Employee Benefits.

 

Section 6.04   Confidentiality.  From and after the Closing, Seller shall hold, and shall use its best efforts to cause its Representatives to hold, in confidence any and all information, whether written or oral, concerning the Business, except to the extent that Seller can show that such information (a) is generally available to and known by the public through no fault of Seller or its Representatives; or (b) is lawfully acquired by Seller or its Representatives from and after the Closing from sources which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If Seller or any of its Representatives is compelled to disclose any information by judicial or administrative process or by other requirements of Law, Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information which Seller is advised by its counsel in writing is legally required to be disclosed, provided that Seller shall use best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.  Seller will not terminate, release, or waive the benefits of any confidentiality agreement or other provision protecting Seller's confidential information, and hereby assigns to Buyer all rights to enforce confidentiality provisions for the benefit of Seller as being for the benefit of Buyer, and to the extent that the same are deemed or determined not be enforceable by ▇▇▇▇▇, Seller agrees to enforce the same in its own name for the benefit of Buyer.  This Section 6.04 shall exclude any filings required to be made by Seller with the Securities and Exchange Commission, including, but not limited to, a Form 8-K.

Section 6.05   Seller Non-compete and Non-solicitation.

 

Notwithstanding the foregoing provisions of this Subsection 6.05(b), nothing in this Section 6.05(b) shall prevent Seller from hiring, after the expiration of any non-competition periods set forth in any agreement between Buyer and such employee, (i) any employee whose employment has been terminated by Buyer, or (ii) after one year from the date of termination of employment, any employee whose employment has been terminated by the employee.

 

Section 6.06   Governmental Approvals and Consents.

Section 6.07   Public Announcements.  Except as required by Applicable Law, prior to Closing, neither Seller nor Buyer shall make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without the prior consent of the other party.  Buyer acknowledges that Seller is a 34 Act reporting company and is required to make public disclosure of its entry into this Agreement; provided that the terms hereof shall not be disclosed prior to Closing without Buyer's express consent.

Section 6.08   Collection of Accounts Receivable.  From and after the Closing, if Seller receives or collects any funds relating to any Purchased Asset (including but not limited to Accounts Receivable), Seller shall hold the same in trust for the benefit of Buyer and remit any such funds to Buyer within five (5) Business Days after receipt thereof.

Section 6.09   Transfer Taxes.  All transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement and the other Transaction Documents shall be borne by the party obligated with respect thereto absent a contrary allocation by agreement of the parties.  By way of example and not limitation, Buyer shall be responsible for the payment of any sales or use Taxes on purchased tangible personal property, and Seller shall pay any B&O or similar gross receipts taxes to the extent applicable to the transactions contemplated hereby.

 

Section 6.10   Tax Clearance Certificates.  If requested by ▇▇▇▇▇, Seller shall notify all of the taxing authorities in the jurisdictions that impose Taxes on Seller or where Seller has a duty to file Tax Returns of the transactions contemplated by this Agreement in the form and manner required by such taxing authorities, if the failure to make such notifications or receive any available tax clearance certificate (a "Tax Clearance Certificate") could subject the Buyer to any Taxes of Seller. If any taxing authority asserts that Seller is liable for any Tax, Seller shall, in its sole discretion, have the right to contest such potential Tax, until a resolution is reached, prior to paying any amount of the Tax.

Section 6.11   Further Assurances.  Following the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the other Transaction Documents.  Without limiting the foregoing, Seller specifically agrees to provide all documents and consents necessary for the Seller's URL, domain name and other items associated with or related to the Seller's website are transferred to Buyer.

Section 6.12   TTB Notice; Transition.  Promptly following the Closing, and in any event within thirty (30) days thereafter, Buyer shall file a ▇▇▇▇▇▇'▇ Notice with all required supplemental information with the TTB.  Buyer shall have the right to conduct operations and report to the TTB following Closing using Seller's TTB ▇▇▇▇▇▇'▇ Notice and filing numbers, and shall defend, indemnify, and hold Seller harmless from and against any Losses in connection therewith.

Section 6.13   WSLCB Application; Transition. 

 

Section 6.14   Further Assurances.  Following the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the other Transaction Documents.  Without limiting the foregoing, Seller specifically agrees to provide all documents and consents necessary to record the transfer of the Intellectual Property Assets, and for the Seller's URL, domain name and other items associated with or related to the Seller's website are transferred to Buyer.

ARTICLE VII
conditions to closing

Section 7.01   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:

Section 7.02   Conditions to Obligations of Buyer.  The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or ▇▇▇▇▇'s written waiver, at or prior to the Closing, of each of the following conditions:

 

 

Section 7.03   Conditions to Obligations of Seller.  The obligations of Seller to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Seller's written waiver, at or prior to the Closing, of each of the following conditions:

 

ARTICLE VIII
indemnification

Section 8.01   Survival.  Subject to the limitations and other provisions of this Agreement, the representations, warranties and covenants contained herein shall survive the Closing indefinitely or for the period explicitly specified therein.

Section 8.02   Indemnification By Seller.  Subject to the other terms and conditions of this ARTICLE VIII, Seller shall indemnify and defend Buyer and its 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 incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of:

Section 8.03   Indemnification By Buyer.  Subject to the other terms and conditions of this ARTICLE VIII, ▇▇▇▇▇ shall indemnify and defend Seller and its Representatives (collectively, the "Seller 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 or sustained by, or imposed upon, the Seller Indemnitees based upon, arising out of, with respect to or by reason of:

 

Section 8.04   Indemnification Procedures.  The party making a claim under this ARTICLE VIII is referred to as the "Indemnified Party", and the party against whom such claims are asserted under this ARTICLE VIII is referred to as the "Indemnifying 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 8.04(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. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 6.04) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.

 

 

Section 8.05   Payments.  Once a Loss is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this ARTICLE VIII, the Indemnifying Party shall satisfy its obligations within thirty (30) days of such final, non-appealable adjudication by wire transfer of immediately available funds. The parties hereto agree that should an Indemnifying Party not make full payment of any such obligations within such thirty (30) day period, any amount payable shall accrue interest from and including the date of agreement of the Indemnifying Party or final, non-appealable adjudication to the date such payment has been made at a rate per annum equal to the lesser of the highest rate allowed by law or twelve percent (12%). Such interest shall be calculated daily on the basis of a 365 day year and the actual number of days elapsed.  Additionally, if any delay in payment or satisfaction of the underlying Loss or Liability causes the Indemnified Party to incur further Loss or Liabilities, then the Indemnifying Party shall be obligated to pay such costs or obligations and/or indemnify the Indemnified Party from and against the same.

Section 8.06   Tax Treatment of Indemnification Payments.  All indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.

Section 8.07   Effect of Investigation; Materiality.  The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party's right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party's waiver of any condition set forth in Section 7.02 or Section 7.03, as the case may be. For purposes of this ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.

 

ARTICLE IX
termination

Section 9.01   Termination.  This Agreement may be terminated at any time prior to the Closing:

 

 

 

Section 9.02   Effect of Termination.  In the event of termination of this Agreement in accordance with this Agreement, this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto except:

ARTICLE X
miscellaneous

Section 10.01   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.

Section 10.02   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 10.02):

 

 

 

Section 10.03   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; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and Exhibits mean the Articles and Sections of, and Disclosure 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 Disclosure 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.

Section 10.04   Headings.  The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

Section 10.05   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 such 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 effect 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.

Section 10.06   Entire Agreement.  This Agreement and the other Transaction Documents constitute 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 and those in the other Transaction Documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.

 

Section 10.07   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, that prior to the Closing Date, Buyer may, without the prior written consent of Seller, assign all or any portion of its rights under this Agreement to one or more of its direct or indirect wholly-owned subsidiaries.

Section 10.08   No Third-party Beneficiaries.  Except as provided in ARTICLE VIII, this Agreement is for the sole benefit of the parties hereto and their 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.

Section 10.09   Amendment and Modification; Waiver.  This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party 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.

Section 10.10   Governing Law; Jurisdiction; Service of Process; Waiver of Jury Trial.

 

Section 10.11   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.

Section 10.12   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.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

Exhibit A – Tangible Personal Property Listing

Exhibit B – Assumed Liabilities Detail

Exhibit C – Advance Deposit/Interim Finance Agreement

Exhibit D – License for use of name

Exhibit E – Bill of Sale

Exhibit F – Assignment and Assumption Agreement (Contracts)

Exhibit G – Assignment and Assumption of Lease-Production

Exhibit H – Assignment and Assumption of Lease-Warehouse