EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
by and among
CME REALTY, INC.,
V GEORGIO ENTERPRISES, LLC
and
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Dated as of August 25, 2015
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of August 25, 2015 (this "AGREEMENT"),
by and among CME REALTY, INC., a Nevada corporation ("PURCHASER" or "CME"), V
GEORGIO ENTERPRISES, LLC, a Florida limited liability company ("VGE") and ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇., the sole member of VGE ("▇▇▇▇▇▇," and together with VGE,
individually, a "SELLER" and collectively, "SELLERS"). Purchaser, VGE and ▇▇▇▇▇▇
are sometimes referred to herein individually, as a "PARTY" and collectively, as
the "PARTIES."
R E C I T A L S
WHEREAS, Sellers own certain intellectual property and other rights and
other assets related to V Georgio Vodka (the "BRAND"); and
WHEREAS, upon the terms and conditions set forth herein, Purchaser desires
to purchase such assets of Sellers and Sellers desire to sell such assets to
Purchaser, in each case relating to the Business.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained herein, the Parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 ASSETS BEING SOLD. Upon the terms and subject to the conditions of this
Agreement, on the Closing Date (as defined in SECTION 3.1 below), Sellers are
selling, conveying, assigning and transferring to Purchaser, and Purchaser is
purchasing and acquiring from Sellers, all of Sellers' right, title and interest
in and to all of the properties, rights and assets of Sellers, wherever
situated, of every kind, nature and description, tangible or intangible,
constituting relating to the Brand, whether arising by contract, law or
otherwise, all as the same shall exist on the Closing Date (such assets being
referred to collectively as the "ASSETS"), including, without limitation, the
following:
(a) All intellectual property related to the Brand, as more fully
described in SECTION 1.1(A) of Sellers Disclosure Schedule (as hereinafter
defined), including, without limitation, all trade names, trademarks, service
marks, product names, brand names, slogans and logos (whether or not registered)
and all existing and pending Federal, state and foreign registrations and
applications therefore and all Internet, electronic and on-line rights, domain
names, related URLs and all of the domain name registrations in respect thereof,
in each case, used related to the Brand and all goodwill associated with all of
the foregoing (collectively, the "MARKS"); all copyrights owned by and all
rights of Sellers under any copyright laws or any contract with authors,
photographers or other creators, including, without limitation, work for hire
agreements, together with any copyright registrations and applications therefor
related to the Brand (collectively, the "COPYRIGHTS"); all other proprietary or
other trade rights, know-how and trade secrets related to the Brand, whether or
not, and all agreements which relate to any of the foregoing (the Marks and the
Copyrights being collectively, the "INTELLECTUAL PROPERTY"); and the right to
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▇▇▇ (without recourse to Sellers) for and recover damages, assert, settle and/or
release any claims or demands and obtain all other remedies and relief at law or
equity for any past, present or future infringement or misappropriation of any
of the Intellectual Property.
(b) All past or present vendor and supplier lists related to the
Brand, including without limitation, lists of vendors for bottle supply,
packaging, manufacturing and bottling, advertising and promotional materials
(whether in printed form or computer or other electronic media), product
promotional teams and brand ambassadors;
(c) All past or present lists of wholesalers, distributors, retailers
and other customers for of the Brand in the United States, its territories and
possessions, the Caribbean and elsewhere worldwide;
(d) All lists, mailing lists, documents, information and records
(whether in printed form or computer or other electronic media) related, in each
case, to past, present and prospective customers for the Brand;
(e) All existing files, accounting records, correspondence, internal
reports and contractual documents related to the Brand, including databases and
records (whether in printed form or computer or other electronic media);
(f) All copy, films, digital media, mechanicals, graphics, artwork,
camera-ready plates, plate-making film, photographs and other reproduction
materials related to the Brand, including billboard, radio television and
Internet advertisements, commercials and infomercials related to the Brand,
whether in the possession of Sellers or third parties;
(g) All promotional materials, rate cards, market research studies,
audience research and sales media kits related to the Brand;
(h) Each past and present contract, agreement, commitment or
arrangement of any kind that is related to the Brand, including those
specifically set forth in SECTION 1.1 (H) of the Sellers' Disclosure Schedule
(collectively, the "CONTRACTS");
(i) All past and present permits and licenses that are related to the
Brand, including those specifically set forth in SECTION 1.1 (I) of the Sellers'
Disclosure Schedule (collectively, the "PERMITS");
(j) All past and present product formulations for the Brand, if any;
and software, software systems, databases and database systems, whether owned,
leased or licensed, that are used in connection with the Business; and
(k) All of the goodwill related to the Assets and the Brand.
1.2 NO ASSUMPTION OF LIABILITIES. The Parties hereby acknowledge and agree
that Purchaser is not assuming any liabilities of Sellers of any nature
whatsoever, whether absolute, accrued, contingent or otherwise, disclosed or
undisclosed, and whether or not related to the Brand or the Assets.
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ARTICLE II
PURCHASE PRICE AND PAYMENT
2.1 PURCHASE PRICE. In consideration of the sale, transfer, conveyance and
assignment of the Assets by Sellers to Purchaser, Purchaser hereby agrees to
purchase the Assets and Liabilities on the Closing Date for a purchase price
consisting of 1,400,000 "RESTRICTED" shares of Purchaser's common stock, par
value $0.001 (the "CME SHARES") and $1,000,000 in cash, including $15,000 which
has been advanced by Purchaser to Sellers prior to the Closing Date (the
"PURCHASE PRICE"). The Purchase Price shall be payable as follows:
(a) Issuance, at Closing, of the CME Shares registered in the names
and denominations set forth in SECTION 2.1 (A) of Sellers' Disclosure Schedule;
(b) $60,000, on the Closing Date;
(c) $75,000, on or before fifteen (15) days after the Closing Date
(d) $100,000, on or before forty-five (45) days after the Closing
Date; and
(e) The balance of $750,000, in three installments of $250,000 each,
on or before ninety (90) days, one hundred eighty (180) days and two hundred
seventy (270) days after the Closing Date.
Purchaser shall not be in default of its obligations under SUBSECTIONS (C), (D)
and (E), as long as the payments due thereunder (the "INSTALLMENT PAYMENTS") are
made by Purchaser to Sellers within thirty (30) days of the due date of each
Installment Payment. Payment of the Installment Payments shall be secured by a
first priority security interests in the Assets granted at Closing by Purchasers
to Sellers pursuant to a Security Agreement between Purchaser and Sellers in the
form of EXHIBIT A hereto (the "SECURITY AGREEMENT"). All cash payments made
pursuant to this SECTION 2.1 shall be made by wire transfer in immediately
available funds to such bank or brokerage account as may be designated by
Sellers in writing.
2.2 ALLOCATION OF PURCHASE PRICE. It is expressly understood by the Parties
that the allocation of Purchase Price has been negotiated at arm's length
between the Parties and reflects, to the best of each Party's knowledge, the
fair market value of the Assets. The Parties agree to allocate the Purchase
Price among the Assets as set forth in SECTION 2.2 of Sellers' Disclosure
Schedule. Each of Purchaser and Sellers agrees to file its or his federal income
tax returns and its or his other tax returns (including any forms or reports
required to be filed pursuant to Section 1060 of the Code, the regulations
promulgated thereunder and any provisions of applicable state and local law
("1060 FORMS") reflecting such allocation and to take no position contrary
thereto unless required to do so pursuant to a determination (as defined in
Section 1313(a) of the Code)). The Parties agree further to cooperate in the
preparation of any 1060 Forms and to file such 1060 Forms in the manner required
by applicable law.
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ARTICLE III
CLOSING
3.1 CLOSING DATE. The closing of the transactions contemplated by this
Agreement ("CLOSING") shall occur, by exchange of executed documents delivered
via facsimile or electronically, contemporaneously with the execution of this
Agreement (the "CLOSING DATE").
3.2 CLOSING DELIVERIES BY SELLERS. At Closing, Sellers execute and deliver
to Purchaser:
(a) A ▇▇▇▇ of Sale and Assignment of the Assets from Sellers to V
Georgio, Inc., a Florida corporation and wholly-owned subsidiary of CME (the
"SUBSIDIARY"), in the form of EXHIBIT B hereto (the "▇▇▇▇ OF SALE");
(b) Assignments of individual items of Intellectual Property and/or
Permits as requested by and in form and substance satisfactory to CME;
(c) The employment agreement between ▇▇▇▇▇▇ and the Subsidiary in the
form of EXHIBIT C hereto (the "EMPLOYMENT AGREEMENT"), executed by the ▇▇▇▇▇▇;
(d) A Non-Competition Agreement in the form of EXHIBIT D hereto (the
"NON-COMPETITION AGREEMENT");
(e) The Security Agreement;
(f) Such information regarding Sellers, the Assets and the Brand as
CME may request in order to fulfill its filing obligations under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), with respect to itself
and its executive officers, directors and principal shareholders; and
(g) Such other documents as may be necessary to effect the
consummation of the transactions contemplated by this Agreement.
3.3 CLOSING DELIVERIES AND ACTIONS BY CME. At Closing, CME shall execute
and/or deliver to Sellers:
(a) Certificates evidencing the CME Shares registered in the names and
denominations set forth in SECTION 2.1 (A) of Sellers' Disclosure Schedule;
(b) The resignation of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇") as a director and
executive officer of CME and his compliance with the ▇▇▇▇▇▇ Share Contribution
(as hereinafter defined);
(d) The Employment Agreement;
(e) The Non-Competition Agreement;
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(f) The Security Agreement; and
(g) Such other documents as may be necessary to effect the
consummation of the transactions contemplated by this Agreement.
3.4 ADDITIONAL CLOSING AND POST-CLOSING ACTIONS BY THE PARTIES.
(a) At Closing, Purchaser shall cause ▇▇▇▇▇▇ to contribute 25,000,000
"restricted" shares of CME's common stock held of record by him to the capital
of the Company, whereupon such shares of common stock will be cancelled and
returned to treasury (the "▇▇▇▇▇▇ SHARE CONTRIBUTION").
(b) Following Closing, Purchaser shall timely file all reports
required to be filed by it under the Exchange Act to report consummation of the
transactions contemplated by this Agreement and the Parties shall cooperate with
respect thereto.
(c) Following Closing, CME shall undertake a private offering of its
securities on terms reasonably satisfactory to the Parties, which shall be
structured to generated gross proceeds of not less than $1,400,000 ($350,000 per
quarter) post-Closing (the "PRIVATE OFFERING"). The net proceeds of the Offering
shall be used for the manufacturing, marketing and distribution of the Brand's
vodka product line and for general and working capital purposes. Sellers shall
cooperate with CME in providing all information requested by CME with respect to
the Assets, the Brand and the post-Closing plan of operations, as CME deems
necessary for the preparation of the Offering documentation.
(d) The Parties shall, post-Closing, cooperate with each other and
take such other actions are reasonably necessary to consummate the transactions
contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
4.1 REPRESENTATIONS AND WARRANTIES OF CME. CME hereby represents and
warrants to Sellers as follows:
(a) ORGANIZATION AND QUALIFICATION. CME is a corporation, duly
incorporated, validly existing and in good standing under the laws of the State
of Nevada, with the requisite corporate power and authority to own and use its
properties and assets and to carry on its business as currently conducted. CME
is not qualified to do business as a foreign corporation in any other
jurisdiction, there being no jurisdiction in which the character of its business
requires such qualification. CME has no subsidiaries.
(b) AUTHORIZATION; ENFORCEMENT. CME has the requisite corporate power
and authority to enter into and to consummate the transactions contemplated by
this Agreement and all other agreements contemplated to be executed and
delivered hereunder (collectively, the "TRANSACTION AGREEMENTS") and otherwise
to carry out its obligations hereunder and thereunder. The execution and
delivery of the Transaction Agreements by CME and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all
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necessary action on the part of CME and no further action is required by CME or
its shareholders. The Transaction Agreements have been duly executed by CME and,
when delivered in accordance with the terms hereof, will constitute the valid
and binding obligations of CME enforceable against CME in accordance with their
respective terms. CME is not in violation of any of the provisions of its
articles of incorporation or bylaws.
(c) CAPITALIZATION. The number of authorized, issued and outstanding
shares of capital stock of CME prior to the consummation of the transactions
contemplated hereby, is as set forth in the SEC Documents (as hereinafter
defined). No shares of capital stock of CME are entitled to preemptive or
similar rights, nor is any holder of capital stock of CME entitled to statutory
preemptive or similar rights arising out of any agreement or understanding with
CME. Except as contemplated by this Agreement, there are no outstanding options,
warrants, rights to subscribe to, calls, or commitments of any character
whatsoever relating to securities, rights or obligations convertible into or
exchangeable for, or giving any Person (as hereinafter defined) any right to
subscribe for or acquire any shares of capital stock of CME, or contracts,
commitments, understandings, or arrangements by which CME is or may become bound
to issue additional shares of capital stock of CME, or securities or rights
convertible or exchangeable into shares of capital stock of CME.
(d) ISSUANCE OF THE CME SHARES. The CME Shares are duly authorized,
and, when issued and paid for in accordance with the terms hereof, shall be duly
and validly issued, fully paid and nonassessable, free and clear of all liens,
encumbrances and rights of first refusal of any kind (collectively, "LIENS").
(e) NO CONFLICTS. The execution, delivery and performance of the
Transaction Agreements by CME and the consummation by CME of the transactions
contemplated hereby and thereby do not and will not (i) conflict with or violate
any provision of CME's articles of incorporation or bylaws (each as amended
through the date hereof); (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time, or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time, or both) of, any agreement,
credit facility, indenture or instrument (evidencing a CME debt or otherwise) to
which CME is a party or by which any property or asset of CME is bound or
affected; or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which CME is subject (including federal and state securities laws
and regulations), or by which any property or asset of CME is bound or affected,
except in the case of each of clauses (ii) and (iii), as could not, individually
or in the aggregate, reasonably be expected to have or result in a material
adverse effect on the business, prospects, operations or condition (financial or
otherwise) of CME (a "CME MATERIAL ADVERSE EFFECT"). The business of CME is not
being conducted in violation of any law, ordinance or regulation of any
governmental authority, except for violations which, individually or in the
aggregate, could reasonably be expected to not have or result in a CME Material
Adverse Effect.
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(f) FILINGS, CONSENTS AND APPROVALS. CME is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other U.S. or foreign federal, state,
local or other governmental authority or other person in connection with the
execution, delivery and performance by CME of the Transaction Agreements, other
than filings to be made subsequent to the Closing to report the transactions
contemplated hereby as required by the Securities Act of 1933, as amended (the
"SECURITIES ACT"), the Exchange Act and applicable state securities laws and the
rules and regulations promulgated thereunder.
(g) LITIGATION; PROCEEDINGS. There is no action, suit, notice of
violation, proceeding or investigation pending or, to the knowledge of CME,
threatened against or affecting CME or any of its properties before or by any
court, governmental or administrative agency, or regulatory authority (U.S.
federal, state, county, local or foreign) (i) that adversely affects or
challenges the legality, validity or enforceability of the Transaction
Agreements or the CME Shares or (ii) that could, individually or in the
aggregate, reasonably be expected to have or result in a CME Material Adverse
Effect.
(h) NO DEFAULT OR VIOLATION. CME (i) is not in default under or in
violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by CME), nor has CME
received written notice of a claim that it is in default under or is in
violation of any indenture, loan or credit agreement or any other agreement or
instrument to which it is a party or by which it or any of its properties is
bound, (ii) is not in violation of any order of any court, arbitrator or
governmental body, or (iii) is not in violation of any statute, rule or
regulation of any governmental authority, except as could not, individually or
in the aggregate, reasonably be expected to have or result in a CME Material
Adverse Effect.
(i) PRIVATE OFFERING. Assuming the accuracy of the representations and
warranties of the Sellers set forth in SECTION 4.3 of this Agreement, the offer,
issuance and sale of the CME Shares to the Shareholder as contemplated hereby is
exempt from the registration requirements of the Securities Act and applicable
state securities laws. Neither CME nor any person acting on CME's behalf has
taken any action that could subject the issuance of the CME Shares to the
registration requirements of the Securities Act and applicable state securities
laws.
(j) SEC DOCUMENTS; FINANCIAL STATEMENTS. CME has filed all reports
required to be filed by it under the Exchange Act, including pursuant to Section
13(a) or 15(d) thereof, during such period as CME was required by law to file
such materials (the "SEC DOCUMENTS"). As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Securities Act and the Exchange Act and the rules and regulations promulgated
thereunder. All material agreements to which CME is a party or which are
otherwise required to be filed as exhibits to the SEC Documents have been so
filed. The financial statements of CME included in the SEC Documents comply in
all material respects with applicable accounting requirements and the rules and
regulations of the Securities and Exchange Commission with respect thereto as in
effect at the time of filing. Such financial statements have been prepared in
accordance with U.S. generally accepted accounting principles applied on a
consistent basis during the periods involved, except as may be otherwise
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specified in such financial statements or the notes thereto, and fairly present
in all material respects the financial position of CME as of and for the dates
thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end
audit adjustments.
4.2 REPRESENTATIONS AND WARRANTIES OF SELLERS. Sellers, jointly and
severally, represent and warrant to CME as follows that except as set forth on
the Disclosure Schedule delivered to Purchaser herewith ("SELLERS' DISCLOSURE
SCHEDULE"):
(a) ORGANIZATION AND QUALIFICATION. VGE is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Florida and has the full authority and power to carry on its business,
to enter into this Agreement and all of the other Transaction Agreements to
which it is a party and to carry out the transactions contemplated hereby and
thereby. ▇▇▇▇▇▇ is the sole member of VGE.
(b) AUTHORIZATION; ENFORCEMENT. VGE has the requisite power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and all the other Transaction Agreements to which it is a party and
otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of the Transaction Agreements by Sellers and the consummation by
them of the transactions contemplated hereby and thereby have been duly
authorized by all necessary action on the part of Sellers and no further action
is required by Sellers. The Transaction Agreements have been duly executed by
Sellers and, when delivered in accordance with the terms hereof, will constitute
the valid and binding obligations of Sellers enforceable against Sellers in
accordance with their respective terms. VGE is not in violation of any of the
provisions of its articles of organization or operating agreement.
(c) NO CONFLICT. The execution, delivery and performance of the
Transaction Agreements by Sellers and the consummation by Sellers of the
transactions contemplated hereby and thereby do not and will not (i) conflict
with or violate any provision of VGE's articles of organization or operating
agreement (each as amended through the date hereof); (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time, or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time,
or both) of, any agreement, credit facility, indenture or instrument to which
any Seller is a party or by which the Assets are bound or affected; (iii) result
in a violation of any law, rule, regulation, order, judgment, injunction, decree
or other restriction of any court or governmental authority to which any Seller
or is subject (including federal and state securities laws and regulations), or
by which any of the Assets is bound or affected; (iv) or will result in the
creation of or imposition of (or obligation to create or impose) any lien,
security interest, pledge, charge, claim or encumbrance of any kind ("LIEN")
upon any of the Assets.
(d) NO CONSENTS. No order, consent, approval, license, registration or
validation of, or filing with, or exemption by, any governmental agency,
commission, board or public authority or any third party is required to
authorize, or is required in connection with, the execution, delivery or
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performance by any Seller of this Agreement or any of the other Transaction
Agreements.
(e) TITLE TO AND CONDITION AND SUFFICIENCY OF THE ASSETS. Sellers have
and are transferring to Purchaser hereunder, good, valid and marketable title to
all of the Assets, free and clear of any and all Liens. The Assets comprise all
of the assets, properties, and rights of every type and description, real,
personal and mixed, tangible or intangible, necessary for Purchaser to exploit
and commercialize the Brand worldwide post-Closing.
(f) LITIGATION. There are no lawsuits, inquiries, proceedings or
investigations pending or, to the best of Sellers' knowledge, threatened before
any court or governmental or administrative body or agency against any Seller
related to (i) the transactions contemplated by this Agreement or any of the
other Transaction Agreements; or (ii) any of the Assets, nor, to the best of
Sellers' knowledge, are there any facts which would provide a basis for any such
lawsuit, inquiry, proceeding or investigation. None of the Assets is subject to
any judgment, order or decree entered in any lawsuit or proceeding.
(g) CONTRACTS. Sellers have provided Purchaser with true and correct
copies of the Contracts. Those Contracts noted in SECTION 1.1 (H) of the
Sellers' Disclosure Schedule as being in force in effect, will continue in full
force and effect after the Closing and may be transferred to Purchaser pursuant
to this Agreement, in each case without breaching the terms thereof or resulting
in the forfeiture or impairment of any rights thereunder and without the
consent, approval or act of, or making of any filing with, any third party.
Those Contracts are valid and enforceable against Sellers and, to the best of
Sellers' knowledge, the other parties thereto.
(h) COMPLIANCE WITH LAWS. Neither Seller is in violation of any
applicable federal, state or local law, rule, regulation or ordinance or any
judgment, writ, decree, injunction order or any other requirement of any court
or governmental agency or authority in any manner relating to the Assets, nor
has either received any notice alleging any such violation.
(i) INTELLECTUAL PROPERTY. Sellers are the sole and exclusive owner of
the Intellectual Property, free and clear of any Liens and, to the best
knowledge of Sellers, any infringing or diluting uses thereof by third parties.
Sellers have neither abandoned nor granted any license, permit or other consent
or authorization to any third party to use any of the Intellectual Property None
of the Intellectual Property is subject to any outstanding order, decree,
judgment, stipulation, injunction or restriction or agreement restricting the
scope or use thereof. To the best of Sellers' knowledge, none of the
Intellectual Property infringes on any trademarks, Internet domain names,
copyrights or any other intellectual property rights of any kind of any third
party.
(j) PERMITS. The Permits are in full force and effect and neither
Seller has received any notice of proceedings relating to the revocation or
modification of any Permit.
(k) DISCLOSURE. No representation or warranty of Sellers contained in
this Agreement or any of the Transaction Agreements and no statement contained
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in any certificate, Schedule, Exhibit or other document furnished to Purchaser
in connection with this Agreement contains any untrue statement of a material
fact, or to the best of Sellers' knowledge, omits to state a material fact
necessary to make the statements herein or therein not misleading.
4.3 INVESTMENT REPRESENTATIONS OF SELLERS. Sellers, jointly and severally,
represent and warrant to CME as follows:
(a) INVESTMENT INTENT. Sellers are acquiring the CME Shares for their
own accounts. Sellers are acquiring the CME Shares for investment purposes only
and not with a view to or for distributing or reselling the CME Shares or any
part thereof or interest therein
(b) STATUS. Each Seller is an "ACCREDITED INVESTOR" as defined in Rule
501(a) under the Securities Act.
(c) EXPERIENCE OF SELLERS. The Shareholder has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in the
CME Shares, and has so evaluated the merits and risks of such investment.
(d) ABILITY OF SELLERS TO BEAR RISK OF INVESTMENT. Sellers are able to
bear the economic risk of an investment in the CME Shares and, at the present
time, are able to afford a complete loss of such investment.
(e) ACCESS TO INFORMATION. Sellers acknowledge that they have been
afforded (i) the opportunity to ask such questions as they have deemed necessary
of, and to receive answers from, representatives of CME concerning the terms and
conditions of the issuance of the CME Shares and the merits and risks of
investing in the CME Shares; (ii) access to information about CME and CME's
financial condition, results of operations, business, properties, management and
prospects sufficient to enable Sellers to evaluate their investment; and (iii)
the opportunity to obtain such additional publicly available information that
CME possesses or can acquire without unreasonable effort or expense that is
necessary to make an informed investment decision with respect to the investment
and to verify the accuracy and completeness of CME's representations and
warranties contained herein.
(f) RELIANCE. Sellers understand and acknowledge that (i) the CME
Shares are being issued to Sellers under the Securities Act and applicable state
securities laws in a private offering that is exempt from the registration
provisions of the Securities Act and applicable state securities laws; and (ii)
the availability of such exemption depends in part on, and CME will rely upon
the accuracy and truthfulness of, the representations and warranties of Sellers
set forth in this SECTION 4.3 and Sellers hereby consent to such reliance.
(g) TRANSFER RESTRICTIONS.
(i) The CME Shares may only be disposed of pursuant to an effective
registration statement under the Securities Act and applicable state securities
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laws, or pursuant to an available exemption from or in a transaction not subject
to the registration requirements of the Securities Act or applicable state
securities laws. In connection with any transfer of the CME Shares other than
pursuant to an effective registration statement, CME may require the transferor
thereof to provide to CME an opinion of counsel selected by the transferor, the
form and substance of which opinion shall be reasonably satisfactory to CME, to
the effect that such transfer does not require registration of such transferred
securities under the Securities Act and applicable state securities laws.
(ii) Sellers agree to the imprinting, so long as is required under the
Securities Act and the rules and regulations thereunder, or an appropriate
restrictive legend on the certificates evidencing the CME Shares.
ARTICLE V
INDEMNIFICATION
5.1 SURVIVAL. All of the provisions of this Agreement shall survive the
Closing indefinitely, except that the representations and warranties of Sellers,
on the one hand, and the representations and warranties of CME on the other
hand, shall survive until the first anniversary of the Closing Date.
5.2 INDEMNITY BY SELLERS. Sellers,, jointly and severally, shall indemnify
CME and hold CME and CME's directors, officers and employees harmless against
and in respect of any and all damages, losses, claims, penalties, liabilities,
costs and expenses (including, without limitation, all fines, interest,
reasonable and actual legal fees and expenses and amounts paid in settlement),
that arise from or relate or are attributable to (and without giving effect to
any tax benefit to the indemnified party) (a) any misrepresentation or breach of
warranty by Sellers in this Agreement or any of the other Transaction
Agreements; or (b) any breach of any covenant or agreement on the part of
Sellers in this Agreement or in any of the other Transaction Agreements.
5.3 INDEMNITY BY CME. CME shall indemnify Sellers and hold Sellers harmless
against and in respect of any and all damages, losses, claims, penalties,
liabilities, costs and expenses (including, without limitation, all fines,
interest, reasonable and actual legal fees and expenses and amounts paid in
settlement), that arise from or relate or are attributable to (and without
giving effect to any tax benefit to the indemnified party) (a) any
misrepresentation or breach of warranty by CME in this Agreement or any of the
other Transaction Agreements; or (b) any breach of any covenant or agreement on
the part of CME in this Agreement or any of the other Transaction Agreements.
5.4 NOTICE TO INDEMNITOR; RIGHT OF PARTIES TO DEFEND. Promptly after the
assertion of any claim by a third party or occurrence of any event which may
give rise to a claim for indemnification from an indemnifying Party
("INDEMNITOR") under this ARTICLE V, an indemnified party ("INDEMNITEE") shall
notify the Indemnitor in writing of such claim. The Indemnitor shall have the
right to assume the control and defense of any such action (including, but
without limitation, tax audits), provided that the Indemnitee may participate in
the defense of such action subject to the Indemnitor's reasonable direction and
at Indemnitee's sole cost and expense. The Party contesting any such claim shall
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be furnished all reasonable assistance in connection therewith by the other
Party or Parties and be given full access to all information relevant thereto.
In no event shall any such claim be settled without the Indemnitor's consent.
ARTICLE VI
MISCELLANEOUS
6.1 FEES AND EXPENSES. Each party to this Agreement shall pay the fees and
expenses of its or its advisers, counsel, accountants and other experts, if any,
and all other expenses incurred by such party incident to the negotiations,
preparation, execution, delivery and performance of this Agreement, PROVIDED,
HOWEVER, that CME shall reimburse Sellers at Closing for up to $10,000 in legal
fees and expenses incurred in connection with this Agreement and the
transactions contemplated hereby.
6.2 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, together with the other
Agreements and the Schedules and Exhibits hereto and thereto, contains the
entire understanding of the Parties with respect to the subject matter hereof
and supersede all prior agreements and understandings, oral or written, with
respect to such matters, which the Parties acknowledge have been merged into
such documents, Schedules and Exhibits.
6.3 NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (a) upon receipt, if sent by
nationally recognized overnight courier service; or (b) on the fifth (5th) day
after deposit in the U.S. mail, postage prepaid, certified return receipt
requested. The address for such notices and communications shall as follows:
If to CME: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
If to Sellers: ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
or such other address as may be designated in writing hereafter, in the same
manner, by such Party.
6.4 AMENDMENTS; WAIVERS. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
all the Parties; or, in the case of a waiver, by the Party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of any Party to
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exercise any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter.
6.5 HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
ay of the provisions hereof.
6.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the Parties and their successors and permitted assigns. No
Party may assign this Agreement or any of the rights or obligations hereunder
without the written consent of the other Parties, PROVIDED, HOWEVER, that CME
may assign its rights (but not its obligations) hereunder to the Subsidiary.
6.7 NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the Parties and their respective successors and permitted assigns and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person.
6.8 GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of Florida without regard to the
principles of conflicts of law thereof. Each Party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in Broward
County, Florida, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the interpretation or enforcement of this Agreement),
and hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper. Each Party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof to
such party at the address in effect for notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law.
6.9 ATTORNEYS' FEES. In any suit, action or proceeding brought with respect
to interpretation or enforcement of this Agreement, the prevailing Party shall
be entitled to recover attorneys' fees and costs at both the trial and appellate
levels.
6.10 EXECUTION. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each Party and
delivered to the other Parties, it being understood that all Parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile or electronic transmission, such signature shall create a valid and
binding obligation of the Party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile or
electronic signature page were an original thereof.
6.11 SEVERABILITY. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affecting or impaired thereby and the Parties will attempt to
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agree upon a valid and enforceable provision that shall be a reasonable
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
PURCHASER:
CME REALTY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
SELLERS:
V GEORGIO ENTERPRISES, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Manager
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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