OPTION AGREEMENT #1
EXHIBIT 10.5
This OPTION AGREEMENT (this “Agreement”) is effective as of March 30, 2020, by and between Sament Capital Investments, Inc., a California corporation (“Sament”), and Edible Garden Incorporated, a Wyoming corporation (the “Company” and together with Sament, each a “Party” and collectively, the “Parties”).
RECITALS
The Company desires to offer Sament an option to purchase shares (the “Shares”) of the Company’s common stock (the “Common Stock”), and Sament desires to accept such option from the Company, upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
AGREEMENT
ARTICLE 1
OPTION
1.1 Grant of Option. On the terms and subject to the conditions set forth in this Agreement, the Company hereby grants Sament an option (the “Option”) to purchase eighty-nine (89) Shares (the “Option Shares”), upon the occurrence of one of the events described in clauses (a)-(e) below, or as otherwise mutually agreed to by the Parties, or at any time between the one (1) year and five (5) year anniversary of the date of this Agreement (the “Option Exercise Period”).
(a) an acquisition by an individual, entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Securities Exchange Act of 1934, as amended) of effective control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of fifty percent (50%) or more of the aggregate votes of the then-issued and outstanding voting securities of the Company, (b) the Company merges into or consolidates with any other individual or corporation, partnership, trust, association, limited liability company, or other entity of any kind (a “Person”), or any Person merges into or consolidates with the Company and, after giving effect to such transaction, the stockholders of the Company immediately prior to such transaction own fifty percent (50%) or less of the aggregate voting power of the Company or the successor entity of such transaction, (c) the Company sells or transfers all or substantially all of its assets to another Person and the stockholders of the Company immediately prior to such transaction own fifty percent (50%) or less of the aggregate voting power of the acquiring entity immediately after such transaction, (d) an underwritten public offering by the Company of its Common Stock, a registered direct offering by the Company of its Common Stock, or a reverse merger of the Company into a public company, or (e) the sale by the Company of Common Stock or securities that are convertible into or exercisable or exchangeable for Common Stock in one or a series of related transactions at a valuation of at least $10,000,000.
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1.2 Exercise of Option
(a) Notice of Intent to Exercise Option. The Option shall be exercised automatically immediately prior to the occurrence of one of the events described in clauses (a)-(e) above. If an event described in clauses (a)-(e) above does not occur prior to the one year anniversary of the date of this Agreement, Sament may exercise the Option during the Option Exercise Period by delivering written notice thereof to the Company (the “Exercise Notice”).
(b) Purchase of Shares. The closing (the “Closing”) of the purchase of the Option Shares shall take place immediately prior to the occurrence of one of the events described in clauses (a)-(e) above, or two (2) business days after receipt by the Company of the Exercise Notice. At the Closing, (i) the Company shall transfer all of its rights, title and interest in the Option Shares to Sament, and (ii) Sament shall deliver to the Company $1.00 by check or wire transfer of immediately available funds. Each Party hereby agrees to execute and deliver all documents and instruments reasonably necessary to effectuate the Closing.
ARTICLE 2
MISCELLANEOUS
If to the Company:
Edible Garden Incorporated
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If to Sament:
Sament Capital Investments, Inc.
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2.2 Successors and Assigns; Assignment. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective heirs, legal representatives, successors and assigns of the Parties hereto; provided, that, no Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other non-assigning Party. Any purported assignment in contravention of the foregoing shall be deemed null and void.
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2.3 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
2.4 Governing Law. All issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of New Jersey, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New Jersey or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New Jersey.
2.5 Arbitration. Any and all claims or disputes between the Parties that arise from or relate or pertain in any way to this Agreement, to the Parties’ rights or obligations under this Agreement, to the subject matter of this Agreement, or the arbitrability of any such claim or dispute shall be resolved solely and exclusively by binding arbitration in the State of New Jersey before a panel of three Arbitrators in a confidential arbitration proceeding to be conducted by JAMS in the English language pursuant to the JAMS International Arbitration Rules and Procedures. No person shall be eligible to serve as arbitrator in any such proceeding unless he or she shall have served as a state or federal Judge or Justice of a court within the State of New Jersey for at least five years. The prevailing Party or Parties to any such dispute shall be entitled to recover all of its or their reasonable attorneys' fees and other costs of the arbitration, and any related judicial proceedings, from the non-prevailing Party or Parties. Each Party to this Agreement hereby consents irrevocably to the jurisdiction of the state and federal courts located in the State of New Jersey for the purpose of enforcing this Agreement to arbitrate and for the purposes of any proceedings to confirm, vacate or modify any arbitration award rendered hereunder. Any Party may also apply to any court anywhere in the world for the purpose of enforcing any such arbitration award. Without limiting the foregoing, each Party agrees that service of process on such Party as provided in this Agreement shall be deemed effective service of process on such Party.
2.6 Counterparts. This Agreement and any amendments hereto may be executed in any number of counterparts, each of which shall be deemed to be an original but all of which together shall constitute but one and the same instrument.
2.7 Entire Agreement. This Agreement constitutes the entire understanding among the Parties with respect to the subject matter hereof. Any agreement, discussions, or negotiations among the Parties prior to the date hereof with respect to the purchase of the Shares is superseded by this Agreement. Except as expressly provided herein, nothing in this Agreement, express or implied, is intended to confer upon any party, other than the Parties hereto, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
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2.8 Amendment; Waiver. No provision of this Agreement may be amended except in a written instrument signed by the Parties. No provision of this Agreement may be waived except in a written instrument signed by the Party waiving the benefit to which it is otherwise entitled. No waiver of any provision, condition, or requirement of this Agreement shall be deemed to be a waiver continuing into the future or a waiver on a subsequent occasion or a waiver of any other provision, condition, or requirement of this Agreement, nor shall any delay or omission of any Party to exercise any right hereunder in any manner impair such Party’s ability to exercise such right.
2.9 Expenses. Each Party hereto shall pay its own costs and expenses involved in carrying out the transactions contemplated by this Agreement.
2.10 Exclusive Remedies. The remedies provided in this Agreement for a breach of a Party’s obligations hereunder shall be exclusive and shall preclude the assertion by any Party hereto of any other rights or the seeking of any other remedies against any other Party hereto, whether at law or equity.
2.11 Further Assurances. Subject to the terms and conditions of this Agreement, each of the Parties shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable, under applicable law or otherwise, to fulfill its obligations under this Agreement.
2.12 Stock Dividends and Stock Splits. If the Company, at any time while this Agreement is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock, (ii) subdivides outstanding shares of Common Stock into a larger number of shares, or (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, then the number of Shares of Common Stock issuable to Sament pursuant to this Agreement shall be automatically adjusted proportionately.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
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| SAMENT CAPITAL INVESTMENTS, INC. |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
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| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: | President/COO | ||
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| COMPANY: |
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| Edible Garden Incorporated |
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| By: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
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| Title: | Treasurer |
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