STOCK PURCHASE AGREEMENT AMONG EDGAR C. GENTLE, III, JOHN PAIT, AND GARY PARK, AS SELLERS, AND ATTIS INFRASTRUCTURE LLC, AS BUYER AUGUST 31, 2018 STOCK PURCHASE AGREEMENT

Exhibit 10.1

 

 

 

 

 

 

 

 

 

STOCK PURCHASE AGREEMENT

 

AMONG

 

▇▇▇▇▇ ▇. GENTLE, III,

 

▇▇▇▇ ▇▇▇▇,

 

AND

 

▇▇▇▇ ▇▇▇▇,

 

AS SELLERS,

 

AND

 

ATTIS INFRASTRUCTURE LLC,

AS BUYER

 

 

 

 

 

 

 

AUGUST 31, 2018

 

 

 

 

 

 

 

 

 

 

 

STOCK PURCHASE AGREEMENT

 

This STOCK PURCHASE AGREEMENT (this “Agreement”), is dated and made effective as of August 31, 2018 (“Effective Date”), is entered into by and among (i) ATTIS INFRASTRUCTURE LLC, a Delaware limited liability company (“Buyer”), headquartered in Milton, Georgia, and (ii) ▇▇▇▇▇ ▇. GENTLE, III (“Gentle”), ▇▇▇▇ ▇▇▇▇ (“▇▇▇▇”), ▇▇▇▇ ▇▇▇▇ (“Park” and, together with Gentle and ▇▇▇▇, the “Sellers”), and CUSTOM CABLE SERVICES, INC., an Alabama Corporation (“CCS”).

 

WHEREAS, the Parties hereto are executing and delivering this Agreement in reliance upon an exemption from securities registration pursuant to Section 4(2), Rule 506 of Regulation D (“Regulation D”), as promulgated by the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”);

 

WHEREAS, Sellers each own 210 shares of the common stock of CUSTOM CABLE SERVICES, INC., an Alabama corporation (the “CCS”), collectively corresponding to 630 shares of CCS common stock, and 100% of the issued and outstanding capital stock of CCS (the “Seller Shares”);

 

WHEREAS, ▇▇▇▇ and Park (together, the “Operating Sellers”) have agreed to enter into substantially the same form of employment agreements as the forms attached in Exhibits (a)-(b) hereto (“Key Employment Agreements”); and,

 

WHEREAS, Buyer desires to purchase, and Sellers desire to sell, upon and subject to the terms and conditions herein, the Seller Shares on and subject to the terms and provisions hereinafter set forth.

 

NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows.

 

1. Certain Matters

 

1.1 Certain Definitions. Except as otherwise expressly provided herein or unless the context otherwise requires, initially capitalized terms used in this Agreement have the meanings set forth in Schedule 1.0.

 

2. Purchase and Sale

 

2.1 Acquisition. On and subject to the terms and conditions of this Agreement and applicable Transaction Documents, at the Closing, Sellers shall sell, assign, transfer and deliver 100% of their respective right, title and interest in, to and under the Seller Shares to Buyer in exchange for the Purchase Price in accordance with the terms set forth in Schedule 2.0, free and clear of all Liens other than Permitted Encumbrances. As used herein, the term “Acquisition” shall mean and refer to the purchase of the Seller Shares by Buyer.

 

2.2 The Closing. Upon the terms and subject to the conditions hereinbefore and hereinafter set forth, the consummation of this Agreement and the Acquisition contemplated herein (the "Closing") shall take place on or before SEPTEMBER ____, 2018, or, if all of the conditions to the Closing are not satisfied on that date, on the first date thereafter on which all of such conditions are satisfied. As used herein, the term “Closing Date” shall mean and refer to the purchase of the Seller Shares by Buyer. The Closing may take place by hand delivery of the cash for the Seller Shares, and delivery and exchange of documents by facsimile or electronic mail with originals to follow by overnight courier.

 

2.3 Deliveries and Actions of Sellers at Closing. At or prior to Closing, Sellers shall deliver (or cause to be delivered) to Buyer documents, instruments, agreements and other materials itemized in Schedule 2.3.

 

2.4 Deliveries and Actions of Buyer at Closing. At or prior to Closing, Buyer shall deliver (or cause to be delivered) to Sellers documents, instruments, agreements and other materials itemized in Schedule 2.4.

 

2.5 Taking of Necessary Action; Further Action. The Buyer, Sellers and CCS will take all reasonable and lawful action as may be necessary or appropriate in order to effectuate the Sellers Acquisition in accordance with this Agreement on the Closing Date.

 

3. Warranties and Representations Relating to Seller and CCS

 

Sellers represent and warrant to Buyer that the statements contained in this Section 3 are true, correct and complete as of the Effective Date and as of the Closing Date, subject to and except as set forth in the Seller Disclosure Schedule delivered by Sellers to Buyer on the date hereof. Nothing in the Seller Disclosure Schedule shall be deemed adequate to disclose an exception to a representation or warranty made herein unless the Seller Disclosure Schedule identifies the exception with reasonable particularity and describes the relevant facts in reasonable detail. Without limiting the generality of the foregoing, the mere listing (or inclusion of a copy) of a document or other item shall not be deemed adequate to disclose an exception to a representation or warranty made herein (unless the representation or warranty has to do with the existence of the document or other item itself). The Seller Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in this Section 3.

 

 

3.1 Due Organization, Authorization and Good Standing. CCS is duly organized, validly existing and in good standing under the laws of Alabama. CCS is qualified to do business and is in good standing as a foreign Person, as the case may be, in each jurisdiction in which the ownership of its properties and the nature and extent of the activities transacted by it makes such qualification necessary. CCS has full corporate power and corporate authority to carry on its business, to own and use the properties owned and used by it and to perform its obligations under this Agreement.

 

3.2 Capitalization. Sellers are the sole holders of the Seller Shares and, collectively, the sole shareholders of CCS. The Seller Shares have been validly issued and are fully vested, paid and nonassessable. None of the Sellers have assigned, mortgaged, hypothecated or pledged any interest in the Seller Shares to any third party. No third party has any ownership, claim, lien or economic interest in CCS either as a shareholder or otherwise. There are no warrants, rights, options, conversion privileges, stock purchase plans or other contractual obligations which obligate Sellers to offer, issue, purchase or redeem any equity or other interest of CCS or other ownership interest or debt or other securities convertible into or exchangeable for shares of CCS capital stock (now, in the future or upon the occurrence of any contingency) or which provides for any equity appreciation or similar right. There are no shareholder agreements in existence to which either the Sellers, CCS, or the Seller Shares are in any way bound, except a buy and sell agreement which Sellers and CCS hereby waive.

 

3.3 Authorization. Sellers have the requisite power and authority to enter into, execute, deliver and perform this Agreement, and/or to consummate all transactions contemplated thereby. The execution and delivery of this Agreement by Sellers and the consummation by Sellers of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate or other action, and no other corporate or partnership proceedings on the part of Sellers are necessary to authorize this Agreement or to consummate the transactions so contemplated. This Agreement is the valid and legally binding obligation of Sellers, enforceable against each of them in accordance with the terms, subject to bankruptcy, insolvency, moratorium, reorganization and similar laws of general applicability affecting the rights and remedies of creditors and to general principles of equity, regardless of whether enforcement is sought in proceedings in equity or at law.

 

3.4 No Violation or Approval.

 

3.4.1 Subject to and except as set forth on Section 3.4 of the Seller Disclosure Schedule, neither the execution and delivery of this Agreement by Seller, nor the consummation or performance of any of the Contemplated Transactions will, directly or indirectly (with or without notice or lapse of time): (i) Breach or otherwise conflict with any provision of the Organizational Documents of CCS, or contravene any resolution adopted by the officers, managers, or members of CCS; (ii) Breach or otherwise conflict with any Legal Requirement or Order to which Sellers or CCS may be subject or give any Governmental Body or other Person the right to challenge the Contemplated Transactions or to exercise any remedy or obtain any relief under any Legal Requirement or any Order to which Sellers or CCS may be subject; (iii) Breach or otherwise conflict with or result in a violation or Breach of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held or being applied for by or on behalf of CCS, or that otherwise relates to CCS, or the CCS business; (iv) to Sellers’ knowledge, cause Buyer (or any Related Person thereof) to become subject to, or to become liable for the payment of, any Tax; (v) Breach or otherwise conflict with any provision of, or give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any contract or agreement to which CCS is a party or by which CCS is bound; or (vi), result in the imposition or creation of any Lien on CCS, or the CCS business.

 

3.4.2 Subject to and except as set forth on Section 3.4 of the Seller Disclosure Schedule, neither Sellers nor CCS are required to give any notice to, or obtain any Consent from, any Person in connection with the execution and delivery of this Agreement or the consummation of any of the Contemplated Transactions, including any Consent required in order to preserve and maintain all Governmental Authorizations required for the ownership and continued operation of the CCS business, either before or after Closing, and the consummation of the Contemplated Transactions. Any registration, declaration, or filing with, or Consent, or Governmental Authorization or Order by, any Governmental Body with respect to CCS that is required in connection with the consummation of the Contemplated Transactions has been completed, made, or obtained on or before the Closing Date.

 

 

3.5 Litigation. Except as set forth in Section 3.5 of the Seller Disclosure Schedule (which lists pending or threatened Proceedings, all of which are referred to as “Current Litigation Matters”), (i) there is no pending or, to each of the Sellers’ Knowledge, threatened Proceeding by or against Sellers or CCS that relates to or may affect CCS, or the CCS business, that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, any of the Contemplated Transactions; (ii) no event has occurred or circumstance exists that is reasonably likely to give rise to or serve as a Basis for the commencement of any such Proceeding; (iii) there is no Order to which Sellers or CCS, or the CCS business are subject or that in any way relates to or could reasonably be expected to affect CCS, or the CCS business; (iv) no officer, director, member, manager, agent or employee of the CCS is subject to any Order that prohibits such officer, director member, manager, agent or employee from engaging in or continuing any conduct, activity or practice relating to the CCS business; (v) each of Sellers and CCS are, and at all times have been, in compliance with all of the terms and requirements of any Order; (vi) no event has occurred or circumstance exists that is reasonably likely to constitute or result in (with or without notice or lapse of time) a violation of or failure to comply with any term or requirement of any such Order; and (vi), neither Sellers nor CCS has received any notice or other communication (whether written or oral) from any Governmental Body or any other Person regarding any actual, alleged, possible or potential violation of, or failure to comply with, any term or requirement of any such Order.

 

3.6 CCS Financial Matters. The CCS EBITDA will be confirmed at closing (“Closing EBITDA”). An internal draft of the unaudited balance sheet and statement of income of CCS as of and for the three fiscal years ended December 31, 2017, three months ended March 31, 2018, and six months ended June 30, 2018 (collectively, the “CCS Financial Statements”), shall be provided on or before the Closing and attached hereto in Exhibit 3.6, which is hereby incorporated by reference herein. The CCS Financial Statements (including the notes thereto) have been prepared in good faith by the staff of CCS, present fairly the financial condition of the CCS as of such dates and the results of operations of CCS for such periods, are correct and complete, and are consistent with the books and records of CCS (which books and records are correct and complete); provided, however, that the CCS Financial Statements are subject to normal adjustments (which will not be material individually or in the aggregate). Subject to and except as disclosed in Section 3.6 of the Seller Disclosure Schedule, (i) the CCS Debts shall be fully paid and satisfied at the Closing, (ii) CCS has not incurred any Liability, and there is no Basis for any present or future action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against CCS giving rise to any Liability; (iii) all Accounts Receivable that are reflected in the CCS Financial Statements and/or in the business records of CCS represent valid obligations arising from sales actually made or services actually performed by CCS in the Ordinary Course of Business; (iv) there is no contest, defense or right of set-off currently being claimed or, to the Knowledge of Seller, expected to be claimed, by any account debtor with respect to any Account Receivable, or any part thereof; (v) except to the extent paid prior to the Closing Date, such Accounts Receivable are or will be as of the Closing Date current and collectible net of the respective reserves shown on the CCS Financial Statements and/or in the business records of CCS (which reserves are adequate and calculated consistent with past practice); (vi) subject to such reserves, each of such Accounts Receivable either has been or will be collected in full, without any setoff, within ninety (90) days after the day on which it first becomes due and payable; and (vii), Sellers have provided Buyer with a complete and accurate list of the current Accounts Receivable of CCS current to within five (5) days of the Closing Date, which list sets forth the aging of each such Account Receivable.

 

3.7 Taxes. Sellers and CCS have complied with all of their obligations with respect to the timely payment of all Tax applicable to the Seller Shares, CCS, and all CCS Assets. All Taxes owed by or attributable to the Sellers, CCS, and the CCS Assets have been paid. There is no proceeding through 2017, or audit by any taxing authority or any claim for refund now in progress through 2017, pending or threatened against or with respect to the Sellers or CCS regarding taxes with respect to the Seller Shares, CCS, or the CCS Assets. Sellers have no Knowledge of any reasonable basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any encumbrance or lien on the Seller Shares, CCS, or any of the CCS Assets. Except as set forth in Section 3.7 of the Seller Disclosure Schedule, CCS has duly filed, on a timely basis all Tax Returns which they are required to file, and all material liabilities for Tax (including interest and penalties) have been paid. CCS has paid all required withholding taxes with respect to employees and independent contractors. Except as set forth in the Seller Disclosure Schedule, there are in effect no waivers or extensions of the applicable statutes of limitations for tax liabilities for any period, and no taxing authority has asserted either orally or in writing any adjustment that could result in an additional Tax for which CCS is or may be liable and there is no pending audit, examination, investigation, dispute, proceeding or claim for which CCS has received notice relating to any Tax for which any one of them is or may be liable. Except as set forth in the Seller Disclosure Schedule, there are no agreements in writing with any taxing authority by CCS. Except as set forth in the Seller Disclosure Schedule, CCS has not been nor is it included in any consolidated, affiliated, combined, unitary or other similar Tax Returns and there are no tax sharing agreements to which CCS has now or ever has been a party. Except as set forth in the Seller Disclosure Schedule, CCS is not a party to any agreement, contract, arrangement or plan that would result in the payment of any “excess parachute payments” within the meaning of Code Section 280G (or any comparable provision of state, local or foreign law).

 

 

3.8 Title to Seller Shares. Sellers have good and valid title to the Seller Shares, in each case free and clear of all claim, charge, lease, covenant, easement, encumbrance, security interest, lien, option, pledge, rights of others, or restriction (whether on voting, sale, transfer, disposition or otherwise), whether imposed by agreement, understanding, law, equity or otherwise, of any kind or character (collectively, “Liens”). Sellers shall transfer the Seller Shares to Buyer free and clear of all Liens other than Permitted Encumbrances.

 

3.9 Title to Assets. Except for permitted encumbrances as defined and itemized in Section 3.9 of the Seller Disclosure Schedule (“Permitted Encumbrances”), CCS has good and marketable title to all of the assets reflected in the CCS Financial Statements as owned by them (other than assets disposed of since the date of the last CCS Financial Statements in the Ordinary Course of Business or as contemplated by this Agreement), or acquired since the date of the last CCS Financial Statements, or as set forth in the Seller Disclosure Schedule (“CCS Assets”), free and clear of any and all Liens, except as set forth in the Seller Disclosure Schedule. Section 3.9 of the Seller Disclosure Schedule contains a complete and accurate list of the CCS Assets. The CCS Assets are sufficient to operate CCS without interruption in the Ordinary Course of Business.

 

3.9.1 Real Property; Tangible Personal Property. Except as stated in the Seller Disclosure Schedule, CCS does not own, lease or sublease real property, except for its headquarters in Fultondale, Alabama. Except as disclosed in the Seller Disclosure Schedule, (i) each item of Tangible Personal Property of CCS (including any and all Tangible Personal Property set forth on Section 3.9.1 of the Seller Disclosure Schedule) is in good repair and good operating condition, ordinary wear and tear excepted, is suitable for immediate use in the Ordinary Course of Business, is free from latent and patent defects and is being operated and maintained in all material respects in accordance with industry standards and prescribed operating instructions (if any) necessary to ensure the effectiveness of equipment warranties and/or service plans; and (ii), no item of Tangible Personal Property is in need of repair or replacement other than as part of routine maintenance in the Ordinary Course of Business. If applicable, Tangible Personal Property owned or leased by CCS is and will be as of Closing in the possession of CCS.

 

3.9.2 Intangible Personal Property; Intellectual Property Assets. Section 3.9.2 of the Seller Disclosure Schedule contains a complete and accurate list and summary of all Intellectual Property owned or possessed by CCS, or which CCS has the right to use pursuant to a valid and enforceable, written license, sublicense, agreement, or permission (collectively and together with the Intangible Personal Property, the “Intellectual Property Assets”). Such Intellectual Property Assets constitute all of the Intellectual Property necessary for the operation of the businesses of CCS as presently conducted. The Intellectual Property Assets do not infringe on the intellectual property rights of any Person. CCS is the owner or licensee of all right, title and interest in and to each of the Intellectual Property Assets, free and clear of all Liens except for Permitted Encumbrances. CCS has the right to use all of the Intellectual Property Assets without payment to any third party except as disclosed in the applicable agreements disclosed in then Seller Disclosure Schedule. CCS owns or has the right to use pursuant to ownership, license, sublicense, agreement, permission, or free and unrestricted availability to general public, all of the Intellectual Property Assets used by CCS, subject to the terms of applicable agreements itemized in the Seller Disclosure Schedule. CCS has not interfered with, infringed upon, misappropriated, or otherwise come into conflict with any Intellectual Property rights of third parties, and neither Sellers nor CCS, or their respective members, managers, directors and officers and employees has ever received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that CCS must license or refrain from using any intellectual property rights of any third party). Except as disclosed in the Seller Disclosure Schedule, to the Knowledge of Seller, no third party has interfered with, infringed upon, misappropriated, or otherwise come into conflict with any proprietary intellectual property rights of CCS.

 

3.10 Operations in Conformity with Law, Etc. Except as set forth in Section 3.10 of the Seller Disclosure Schedule: (i) CCS is, and at all times has been, in full compliance with each Legal Requirement that is or was applicable to it or to the conduct or operation of CCS, the CCS Assets, and the CCS business; (ii) no event has occurred or circumstance exists that (with or without notice or lapse of time) (a) may constitute or result in a violation by CCS of, or a failure on the part of CCS to comply with, any Legal Requirement, or (b) may give rise to any obligation on the part of CCS to undertake, or to bear all or any portion of the cost of, any Remedial Action of any nature; and (iii), neither the Sellers nor CCS have received any notice or other communication (whether oral or written) from any Governmental Body or any other Person regarding (a) any actual, alleged, possible or potential violation of, or failure to comply with, any Legal Requirement, or (b) any actual, alleged, possible or potential obligation on the part of CCS to undertake, or to bear all or any portion of the cost of, any Remedial Action of any nature.

 

 

3.11 Labor Relations. CCS has complied in all respects at all times with all Legal Requirements, including all Occupational Safety and Health Laws, relating to employment practices, terms and conditions of employment, equal employment opportunity, nondiscrimination, immigration, wages, hours, benefits, payment of social security and similar Taxes, collective bargaining and other requirements under applicable Legal Requirements. To Sellers’ Knowledge, CCS is not liable for the payment of any Taxes, including any social security and similar Taxes, fines, penalties, interest, back wages, front pay, liquidated or compensatory damages, exemplary damages or other amounts, however designated, for failure to comply with any of the foregoing Legal Requirements. CCS has not been, and are not now, a party to any collective bargaining agreement or other labor Contract. There has not been, there is not presently pending or existing, and to Sellers’ Knowledge, there is not threatened, any strike, slowdown, picketing, work stoppage or employee grievance process involving CCS. No event has occurred or circumstance exists that could provide the Basis for any work stoppage or other labor dispute. There has not been, there is not presently pending or existing, and, to the Knowledge of Seller, there is not overtly threatened any Proceeding, charge, grievance proceeding or other claim against or affecting CCS (or any director, officer, manager, member or employee thereof) relating to the actual or alleged violation of any Legal Requirement pertaining to labor relations or employment matters, including any charge or complaint filed by an employee or union with the National Labor Relations Board, the Equal Employment Opportunity Commission or any comparable Governmental Body, and there is no organizational activity or other labor dispute against or affecting CCS or its business. There is no organizational activity or other labor dispute against or affecting CCS and no application or petition for an election of or for certification of a collective bargaining agent is pending. No grievance or arbitration Proceeding exists that might have a Material Adverse Effect upon CCS or the conduct of its business. Neither CCS nor Sellers have been served notice of, and CCS and Sellers do not otherwise have Knowledge of, any grievance or arbitration Proceeding by any employee of CCS that might have an adverse effect upon CCS, or the conduct of the CCS business. There has been no charge of discrimination filed against or, to Sellers’ Knowledge, threatened against CCS with the Equal Employment Opportunity Commission or similar Governmental Body. There is no lockout by CCS of any employees of CCS, and no such action is contemplated by Sellers or CCS.

 

3.12 No Adverse Change. Since the formation of CCS, there has not been any Material Adverse Change in the CCS business, operations, prospects, CCS Assets, results of operations or condition (financial or other) of the CCS, and, to the Knowledge of Sellers, no event has occurred or circumstance exists that may result in such a Material Adverse Change. Neither Sellers nor CCS have received any notice or other communication (written or oral) from any Governmental Body or any other Person regarding the ability of CCS to own or operate or the intention of any Governmental Body to challenge or oppose the Buyer’s ownership or operation of same. No action has been taken by the Sellers or CCS, or any other officer, director, manager, or member of either Sellers or CCS, that would have a Material Adverse Effect on CCS or the Contemplated Transactions. CCS has conducted its businesses only in the Ordinary Course of Business. Except as set forth in the Seller Disclosure Schedule, without limiting the generality of the foregoing, since the Closing Date: (i) CCS has not entered into any agreement, Contract, lease, or license (or series of related agreements, contracts, leases, and licenses) outside the Ordinary Course of Business; (ii) no party (including CCS) has accelerated, terminated, modified, given rise to a notice of default, or cancelled any agreement, Contract, lease, Permit, Governmental Authorization, or license (or series of related agreements, contracts, leases, and licenses) to which CCS is a party, or by which it is bound, or which affects the CCS Assets; (iii) CCS has not granted any Liens upon any of the CCS Assets, tangible or intangible; (iv) CCS has made no capital expenditure (or series of related capital expenditures) outside the Ordinary Course of Business; (v) CCS has made no capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans, and acquisitions); (vi) CCS has not issued any note, bond, or other debt security, or created, incurred, assumed, or guaranteed any indebtedness for borrowed money or capitalized lease obligation; (vii) CCS has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any CCS Assets; (viii) CCS has not caused any change to be made or authorized in the Organizational Documents of CCS; (ix) CCS has not issued, sold, pledged or otherwise disposed of any of its equity interests, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of equity interests or securities; (x) CCS has not declared, set aside, or paid any dividend or made any distribution with respect to its equity interests (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its equity interests; (xi) CCS has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property and CCS Assets, including any Property or any Business; (xii) CCS has not made any loan to, or entered into any other transaction with, any of its members, managers, officers, directors, or employees; (xiii) CCS has not entered into any employment Contract, severance or other benefit agreement, consulting agreement or collective bargaining agreement, written or oral, or modified the terms of any existing such Contract or agreement; (xiv) CCS has not granted any increase in the base compensation of any of its officers, directors, members, managers or employees outside the Ordinary Course of Business; (xv) CCS has not adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its members, managers, officers, directors and employees (or taken any such action with respect to any other Employee Benefit Plan); (xvi) CCS has not made any other change in employment terms for any of its directors, officers, members, managers and employees outside the Ordinary Course of Business; (xvii) CCS has not made or pledged to make any charitable or other capital contribution; (xviii) CCS has not discharged, in whole or in part, a material Liability or Lien outside the Ordinary Course of Business; (xix) CCS has not disclosed any Confidential Information; (xx) there has not been any other material occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business involving CCS; (xxi) there has been no indication by any customer or supplier of CCS of an intention to discontinue or change the terms of its relationship with the CCS; (xxii) there has been no change in the accounting methods, principles or practices for financial accounting with respect to CCS (except for those changes required by the independent auditors of CCS to comply with GAAP) or for IRS reporting purposes; and (xxiii), neither the Sellers nor CCS has committed to do any of the foregoing.

 

 

3.13 Permits. Section 3.13 of the Seller Disclosure Schedule contains a complete and accurate list of all permits, licenses, Consents, Governmental Authorizations and Approvals (collectively, the “Permits”): (i) owned by CCS that are necessary or required to own, construct, operate and develop the businesses of CCS, the CCS Assets, and the Properties; and (ii), for which CCS has made application with respect to the ownership, operation, construction, and development of its business and the Properties where such application is still pending as of the date hereof and at Closing. CCS has not received any notice (written or oral) from any Governmental Body of rejection of any such application or any notice (written or oral) that any such application is being considered for rejection. Each Permit is valid and in full force and effect, as applicable. The Permits listed or required to be listed in Section 3.13 of the Seller Disclosure Schedule collectively constitute all of the Permits necessary or required to permit the CCS to lawfully conduct and operate its business in accordance with all Legal Requirements. CCS is, and at all times has been, in full compliance with all of the terms and requirements of each Permit listed or required to be listed in Section 3.13 of the Seller Disclosure Schedule. Sellers have delivered, or has caused to be delivered, to Buyer (or its Representatives) copies of all Permits and Approvals and applications therefor referred to above in this Section 3.15, and all other correspondence between Sellers or CCS (or their respective Representatives) and the applicable Governmental Bodies in connection with such Permits and applications therefor. No event has occurred or circumstance exists that may (with or without notice or lapse of time) constitute or result directly or indirectly in a violation of or a failure to comply with any term or requirement of any Permit, or result directly or indirectly in the revocation, withdrawal, suspension, cancellation or termination of, or any modification to, any Permit or Approval. Neither Sellers nor CCS have received any notice or other communication (whether oral or written) from any Governmental Body or any other Person regarding any actual, alleged, possible or potential violation of or failure to comply with any term or requirement of any Permit, or any actual, proposed, possible or potential revocation, withdrawal, suspension, cancellation, termination of or modification to any Permit. All applications required to have been filed for the renewal of the Governmental Authorizations listed or required to be listed in Section 3.13 of the Seller Disclosure Schedule have been duly filed on a timely basis with the appropriate Governmental Bodies, and all other filings required to have been made with respect to such Permits have been duly made on a timely basis with the appropriate Governmental Bodies.

 

3.14 Environmental Matters. CCS has not treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, manufactured, distributed, or released any substance, including without limitation any Hazardous Material, or owned or operated any property or facility (and no such property or facility is contaminated by any such substance) so as to give rise to any current or future Liabilities, including any Liability for fines, penalties, response costs, corrective action costs, personal injury, property damage, natural resources damages or attorney’s fees, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”), the Solid Waste Disposal Act, as amended (“SWDA”) or any other Environmental Laws. The Properties do not now contain nor have the Properties contained any underground storage tanks or Hazardous Material. Neither this Agreement nor the consummation of the Contemplated Transactions will result in any obligations for site investigation or cleanup, or notification to or consent of government agencies or third parties, pursuant to any of the so-called “transaction-triggered” or “responsible property transfer” Environmental Laws. CCS has not assumed, or has otherwise become subject to, any Liability, including without limitation any obligation for corrective or Remedial Action, of any other Person relating to Environmental Laws. CCS has complied in all respects, and is presently in compliance in all respects, with all applicable Environmental Laws pertaining to the ownership and operation of the CCS Assets, the Properties and the CCS business. Neither Sellers nor CCS have received any communication alleging that they are not in compliance with any Environmental Law. CCS has not taken any action that could reasonably result in any Liability (other than minor Liabilities of nominal or no financial or other consequence) relating to (i) the environmental conditions on, under, or about the Properties or any real property that is presently owned, leased or otherwise used by CCS, or upon which CCS locates any Tangible Personal Property; or (ii), the present use, management, handling, transport, treatment, generation, storage, disposal or release of any Hazardous Material. There are no pending or threatened Proceedings of any nature resulting from any Environmental, Health and Safety Liabilities or arising under or pursuant to any Environmental Law with respect to or affecting CCS, the CCS Assets, the Properties, or the CCS business. No Property contains wetlands, vegetation, animal species or significant historic/archaeological sites which are subject to special regulations or limitations under any Legal Requirement. No unacceptable material has deposited or buried on or under the Properties in violation of any Permit, Governmental Authorization or Legal Requirement; no toxic wastes or Hazardous Materials have been deposited, disposed of, stored, generated or released on or from the Properties, and there are no cemeteries, grave sites or other burial sites located on the Properties.

 

 

3.15 Contractual Obligations. The only Contracts to which CCS is a party are described in Section 3.15 of the Seller Disclosure Schedule (“Contracts”), and correct and complete copies of all such Contracts have been provided to Buyer. Except as set forth in applicable Contracts, Sellers does not have and may not acquire any rights under any Contract. Subject to and except as set forth in Section 3.15 of the Seller Disclosure Schedule: (i) the Contracts are legal, valid, binding, enforceable, and in full force and effect (except as enforcement thereof may be limited by applicable Insolvency Laws), and will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the Contemplated Transactions; (ii) none of the Contracts will upon completion or performance thereof have a Material Adverse Effect on the CCS business, or the CCS business; (iii) CCS is, and at all times has been, in compliance with all applicable terms and requirements of the Contracts; (iv) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with or result in a Breach of, or give CCS or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, the Contracts; (v) no party to the Contracts has threatened to terminate its business relationship with CCS for any reason; (vi) neither Sellers nor CCS has given to or received from any other Person any notice or other communication (whether oral or written) regarding the actual, alleged, possible or potential Breach of any Contract; and (vii), no event has occurred or circumstance exists under or by virtue of any Contract that (with or without notice or lapse of time) would cause the creation of any Lien affecting any of the CCS Assets. There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable under the Contracts with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation. Each Contract relating to the sale or provision of services has been entered into in the Ordinary Course of Business and has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement. Sellers have provided to Buyer a complete list of the recurring customers of the CCS business, whether or not such recurring customers are bound by a written contract or agreement with CCS.

 

3.16 Bank Accounts. Section 3.16 of the Seller Disclosure Schedule lists all bank, money market, savings and similar accounts and safe deposit boxes of CCS, specifying the account numbers and the authorized signatories or persons having access to them.

 

3.17 Insurance. The Seller Disclosure Schedule accurately sets forth a list of all current policies of insurance held by CCS. All such policies of insurance are in full force and effect, and no notice of cancellation has been received with respect thereto, and all premiums owed to date have been paid in full.

 

3.18 Affiliated Transactions. Except as set forth in Section 3.18 of the Seller Disclosure Schedule, no member, employee, or any members of their immediate families owns, directly or indirectly (whether as undisclosed principal or otherwise), individually or collectively, any interest in any corporation, partnership, firm or other entity which has any agreement, arrangement or other contractual relationship with CCS.

 

 

3.19 Charter, Bylaws, Minutes, Operating Agreement and Permits. Sellers have heretofore delivered or caused to be delivered (or will hereinafter deliver or cause to be delivered prior to the Closing Date) to Buyer or its counsel accurate and complete copies of the CCS Operating Agreement, written consents and membership books. Nothing contained in any of the foregoing prevents or adversely affects the consummation of the transactions contemplated by this Agreement. A true and correct copy of the CCS Operating Agreement, as amended, of CCS is attached hereto and made a part hereof as Exhibit 7.1, which agreement is in full force and effect and have not been amended or modified in any way.

 

3.20 Restrictive Covenants. CCS is not party to or bound or affected by any commitment, agreement or document which limits the freedom of CCS to compete in any line of business, transfer or move any of or the operations of CCS, or which does or could materially and adversely affect the CCS business after the Closing.

 

3.21 Worker’s Compensation. There are no notices of assessment or any other communications which CCS has received from any workplace safety and insurance board or similar authorities and there are no assessments which have not been paid or accrued on the date hereof, and there are no facts or circumstances which may result in a material increase in liability to any of CCS from any applicable workers' compensation legislation or applicable employee health and safety, training or similar legislation, regulations or rules after the Closing Date.

 

3.22 Corrupt Practices. Except in compliance with all Legal Requirements, neither the Sellers nor CCS, nor any of their Related Persons, or each of their respective officers, directors, employees or agents, have, directly or indirectly, ever made, offered or agreed to offer anything of value to (i) any employees, Representatives or agents of any customers of Sellers or CCS for the purpose of attracting business to Sellers or CCS, or (ii) any domestic governmental official, political party or candidate for government office or any of their employees, Representatives or agents.

 

3.23 Brokers, Finders, Etc. Except as stated in the list of CCS related debts, no broker, finder or investment banker or other party is entitled to any brokerage, finder’s or similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of CCS or Sellers.

 

3.24 Jurisdictions. Section 3.24 of the Seller Disclosure Schedule sets forth a complete list of each State in which Seller, CCS and CCS conduct their Businesses.

 

3.25 No Omissions. No other information provided by or on behalf of Sellers or CCS to Buyer, including, without limitation, information referred to in this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

4. Warranties and Representations Relating to the Buyer

 

Buyer represents and warrants to Sellers that the statements contained in this Section 4 are true and correct as of the Closing Date, except as set forth in the Buyer Disclosure Schedule.

 

4.1 Due Organization, Authorization and Good Standing of Buyer. Buyer is duly organized, validly existing and in good standing under the laws of Delaware. Buyer is qualified to do business and is in good standing as a foreign Person, as the case may be, in each jurisdiction in which the ownership of its properties and the nature and extent of the activities transacted by it makes such qualification necessary. Buyer has full corporate power and corporate authority to carry on its business, to own and use the properties owned and used by it and to perform its obligations under this Agreement.

 

4.2 Authority Relative to this Agreement. Buyer has the requisite corporate power and corporate authority to execute, deliver and perform this Agreement, and consummate all transactions contemplated hereby. The execution and delivery of this Agreement by Buyer and the consummation by the Buyer of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of Buyer are necessary to authorize this Agreement or to consummate the transactions so contemplated. This Agreement is the valid and legally binding obligation of Buyer, enforceable against them in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization and similar laws of general applicability affecting the rights and remedies of creditors and to general principles of equity, regardless of whether enforcement is sought in proceedings in equity or at law.

 

 

4.3 No Violation or Approval. Except as set forth in Schedule 4.3, the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not result in the breach or violation of, or a default under the Charter or Bylaws of Buyer, or any statute applicable to Buyer or any material agreement to which Buyer is a party or by which any of its properties are bound, any fiduciary duty or any order, judgment, decree, rule or regulation of any court or any Government Authority or body having jurisdiction over Buyer or its properties, except where such failure would result in any change in or effect on the business of Buyer, which has a material adverse effect on the ability of Buyer to consummate the transactions contemplated by this Agreement. No consent, approval, order or authorization of, or negotiation, declaration or filing with, any Governmental Authority or entity or other party is required of, and has not been obtained or made by Buyer in connection with the execution and delivery of this Agreement or the consummation of any of the transactions contemplated hereby.

 

4.4 No Material Adverse Breaches, etc. Neither Buyer nor any of its subsidiaries is subject to any charter, corporate or other legal restriction, or any judgment, decree, order, rule or regulation which in the judgment of Buyer’s officers has or is expected in the future to have a material adverse effect on the business, properties, operations, financial condition, results of operations or prospects of Buyer or its subsidiaries. Neither Buyer nor any of its subsidiaries is in breach of any contract or agreement which breach, in the judgment of Buyer’s officers, has or is expected to have a material adverse effect on the business, properties, operations, financial condition, results of operations or prospects of Buyer or its subsidiaries.

 

4.5 Solvency. Buyer is not insolvent and has not committed an act of bankruptcy, proposed a compromise or arrangement to its creditors generally, had any petition in bankruptcy filed against it, filed a petition or undertaken any action proceeding to be declared bankrupt, to liquidate its assets or to be dissolved. The Contemplated Transactions will not cause Buyer to become insolvent or to be unable to satisfy and pay its debts and obligations generally as they come due

 

4.6 Corrupt Practices. Except in compliance with all Legal Requirements, neither the Buyer, nor any of its Related Persons, or each of their respective officers, directors, employees or agents, have, directly or indirectly, ever made, offered or agreed to offer anything of value to (i) any employees, Representatives or agents of any customers of Buyer for the purpose of attracting business to Buyer, or (ii) any domestic governmental official, political party or candidate for government office or any of their employees, Representatives or agents.

 

4.7 Brokers, Finders, Etc. No broker, finder or investment banker or other party is entitled to any brokerage, finder’s or similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer.

 

4.8 No Omissions. No other information provided by or on behalf of Buyer to Sellers, including, without limitation, information referred to in this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

5. Covenants Relating to Sellers and CCS

 

5.1 Best Efforts. Sellers shall use its best efforts timely to satisfy each of the conditions to be satisfied by it hereunder.

 

5.2 Restrictions on Transfer, Proxies and Noninterference. Sellers and CCS shall not, directly or indirectly, except pursuant to the terms of this Agreement (i) offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to or consent to the offer for sale, transfer, tender, pledge, encumbrance, assignment or other disposition of, any or all Seller Shares; (ii) grant any proxies or powers of attorney, deposit any such Seller Shares into a voting trust or enter into a voting agreement with respect to any such Seller Shares; or (iii), take any action that would make any representation or warranty contained in Section 3 (Warranties and Representations Relating to Sellers and CCS) untrue or incorrect or have the effect of preventing or disabling any Entity from performing its obligations under this Agreement.

 

5.3 Conduct of Business by CCS Pending the Closing. From the date hereof and on and prior to the Closing, except as otherwise disclosed, permitted or required by this Agreement, CCS will conduct business only in the Ordinary Course of Business and substantially as presently operated and use reasonable efforts to maintain the value of the CCS business as a going concern. From the date hereof and prior to the Closing, CCS will not, without the prior written consent of the Seller: enter into any transactions otherwise than on an arms’ length basis with any Affiliate of CCS (other than as contemplated by this Agreement and the transactions in the Ordinary Course of Business of CCS); pay any compensation other than in the Ordinary Course of Business or increase any compensation of any officer or employee; enter into any new contracts or agreements to incur any Liabilities (including without limitation, any capital lease); amend the operating agreement of CCS; sell, lease or otherwise dispose of any material assets (except for sales and other dispositions in the Ordinary Course of Business and as may otherwise be permitted by the terms of this Agreement); propose or adopt any changes to the accounting principles used by CCS material to its financial condition or business except as permitted by Generally Accepted Accounting Principles; make any capital expenditures in any month with respect to the CCS business or enter into any contract or commitment therefor other than in the Ordinary Course of Business; pay any dividends; or, commit to do any of the foregoing.

 

 

5.4 Further Assurances; Cooperation. Sellers shall use their best efforts to cooperate with Buyer and to diligently perform under the Transaction Documents. At and after the Closing, Sellers shall execute and deliver such further instruments of conveyance and transfer as Buyer (and/or Buyer’s designee) may reasonably request to convey and transfer effectively the Seller Shares. The Parties will cooperate reasonably with each other and with their respective representatives in connection with any steps required to be taken as part of their respective obligations under this Agreement, and will (a) furnish upon request to each other such further information, (b) execute and deliver to each other such other documents, and (c) do such other acts and things, all as any other party may reasonably request for the purpose of carrying out the intent of this Agreement and the Contemplated Transactions.

 

5.5 Access to CCS. Sellers and CCS shall afford Buyer, its representatives, accountants and counsel full reasonable (so as not to disrupt business) access to all of the properties, records and documents of CCS and shall furnish Buyer and such representatives, accountants and counsel such financial and other information with respect to the business, properties, records, and documents of the CCS as Buyer and such representatives, accountants and counsel shall from time to time reasonably request. Such access shall be granted during normal business hours and Sellers shall assist Buyer with such inspection. In the event of termination of this Agreement, Buyer will immediately return to Sellers all documents, work papers and other materials obtained in connection with the Contemplated Transactions.

 

5.6 Employees and Customer Lists. From and after the date of this Agreement until the earlier to occur of the Closing or termination of this Agreement, Buyer may have access to: (i) the personnel, employees and agents employed by CCS, upon the prior written consent of Sellers; (ii) the CCS customer lists (the “Customer Lists”), provided Purchaser shall not make copies or duplicates or otherwise reproduce the information contained in the Customer Lists prior to Closing.

 

5.7 Non-Competition and Non-Solicitation. Through and including JUNE 30, 2023 (the “Restrictive Period”), upon and subject to the terms and conditions of the Transaction Documents, and for so long as no Event of Default has occurred under the Transaction Documents, Sellers, each on their own behalf, hereby agree that they shall not, directly or indirectly, for itself or on behalf of, or in conjunction with, any other person, company, firm, partnership, association, corporation or business or organization, entity or enterprise,

 

5.7.1 within the United States or Canada be engaged or employed in any capacity by, or own, operate, manage or control a business which is competitive with the business of CCS (except for passive, minority equity investments in, or providing senior or mezzanine debt financing to, a business that is competitive with Buyer’s Business, which shall be allowed);

 

5.7.2 solicit or attempt to solicit business from any third party which was a customer or prospective customer of CCS within two (2) years prior to the date of this Agreement with a view to sell or provide any products or services competitive with any products or services of CCS; or

 

5.7.3 for any reason whatsoever, employ or attempt to employ or assist anyone else in employing any employee of CCS (whether or not such employment is full-time or is pursuant to a written contract), except with permission of Buyer.

 

In the event the enforceability of this Section 5.7 shall be challenged in a court of competent jurisdiction and any applicable Sellers is not enjoined from breaching any term of this Agreement, then, if such court finds that the challenged term is enforceable, the applicable time periods set forth herein shall be deemed tolled upon the filing of the lawsuit challenging the enforceability of the applicable provision until the dispute is finally resolved and all periods of appeal have expired. In the event any Party is required to engage the services of an attorney at law to enforce any provision of this Agreement, said Party may recover from the breaching Party, in addition to any other damages to which it may be entitled, including, without limitation, its reasonable attorneys’ fees and expenses of litigation. Sellers each hereby acknowledge that breach of any of the provisions contained in this Section 5.6 could result in irreparable damage and injury to Buyer, which injury could not be adequately compensated by money damages or other legal remedies. Accordingly, in the event of such a breach of any of the provisions of this Section 5.6, in addition to, and not in limitation of, any remedies which may be available to Buyer under the Transaction Documents, Buyer may seek equitable relief against the breaching Party for such breaches, including, without limitation, an injunction or an order for a specific performance. If Buyer seeks to enjoin any such breaching Party from breaching any such provision of this paragraph, the breaching Party hereby waives the defense that Buyer has or will then have an adequate remedy at law. Nothing in this paragraph shall be deemed to limit Buyer’s remedies at law or equity for any breach by any Sellers of any provision of the Transaction Documents which may be pursued or availed by Buyer.

 

 

5.8 Transition. Sellers will take no any action that is designed or intended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of the Company from maintaining the same business relationships with the Company after the Closing as it maintained with the Company prior to the Closing. Each Seller will refer all customer inquiries relating to the Business or Assets to the Company from and after the Closing. For a period of sixty (60) days following the Closing, the parties will cooperate to provide each other with reasonable information systems support to permit a smooth transfer of business operations. In such regard, during such sixty (60)-day period, Sellers will provide Buyer with reasonable billing and other information systems support in connection with the operation of the Company and the Business.

 

6. Corporate Matters

 

6.1 Allocation of Purchase Price. The consummation of the Acquisition hereunder is a sale of stock, not assets. Buyer and Sellers hereby agree (i) that the Purchase Price consideration payable for the Seller Shares is comprised of the Closing Consideration and Escrow Consideration stated in Section 2.2 of Schedule 2.0 hereto, and (ii) that the amounts payable in connection with any CCS Debt, including, without limitation, the CCS Capitalization amounts stated in Section 2.3 of Schedule 2.0, are not included in the Purchase Price.

 

6.2 Confidentiality. The term “Confidential Information” shall mean that information of a Party (“Disclosing Party”) which is disclosed to another Party (“Receiving Party”) pursuant to this Agreement, and shall include, but not be limited to, trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, schematics, designs, contracts, customer lists, financial information, sales and marketing plans and business information. The Parties agree that the term “Confidential Information” shall also be construed to include the existence and identity of specific third parties named in the Seller Disclosure Schedule that were, are, or which may become party to one or more agreements, transactions, disputes, or litigation involving CCS, and the existence and nature of any of the foregoing (collectively, “Proprietary Matters”). The Parties hereby agree and acknowledge that any disclosure of Confidential Information involving Proprietary Matters could materially adversely affect the relationship or rights of CCS in connection with such matters, and that, notwithstanding anything stated herein to the contrary, no disclosure of Confidential Information involving Proprietary Matters shall be made by any Party without the express written consent of the other Parties hereto unless as may be required by law, and, even then, on a need-to-disclose basis after exhausting all available confidential treatment and such other options to prevent general public disclosure. Each Party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other Party. The Receiving Party shall, at all times, both during the term of this Agreement and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as expressly permitted under the terms of this Agreement or by a separate written agreement. The Receiving Party shall take all reasonable steps to prevent unauthorized disclosure or use of the Disclosing Party’s Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized persons. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, consultants and permitted sublicensees who need access to such Confidential Information in order to effect the intent of this Agreement and who have entered into confidentiality agreements with such person’s employer which protects the Confidential Information of the Disclosing Party. The Receiving Party shall promptly give notice to the Disclosing Party of any unauthorized use or disclosure of Disclosing Party’s Confidential Information. The Receiving Party agrees to assist the Disclosing Party to remedy such unauthorized use or disclosure of its Confidential Information, which remedies shall include injunctive relief without the necessity of posting a bond or proving damages. These obligations shall not apply to the extent that Confidential Information includes information which: is already known to the Receiving Party at the time of disclosure, which knowledge the Receiving Party shall have the burden of proving; is, or, through no act or failure to act of the Receiving Party, becomes publicly known; is received by the Receiving Party from a third party without restriction on disclosure; is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party, which independent development the Receiving Party will have the burden of proving; is approved for release by written authorization of the Disclosing Party; is required to be disclosed by a government agency to further the objectives of this Agreement, by a proper order of a court of competent jurisdiction, or is required to be disclosed by law or pursuant to the requirements of a recognized stock exchange; provided, however that the Receiving Party will use its best efforts to minimize such disclosure and will consult with and assist the Disclosing Party in obtaining a protective order prior to such disclosure. For avoidance of doubt, no public disclosure shall be made by any Party hereto at any time in the absence of the prior written consent of each of the other Parties hereto, including pursuant to any applicable requirement to file a current report on Form 8K, or other regulatory disclosure in connection with the execution hereof.

 

 

6.2.1 Each Seller hereby acknowledges and agrees that, through his ownership or operation of CCS, he has occupied positions of trust and confidence with respect to CCS up to the date hereof and has had access to, and has become familiar with, some or all of the following documents, materials and information relating to CCS, any and all of which constitute confidential and proprietary information of CCS (collectively, the "CCS Confidential Information"): (i) Customer Lists, current and anticipated customer requirements, price lists, market studies and business plans; (ii) historical and projected sales data, financial data and projections, capital spending budgets and operating budgets; (iii) personnel training techniques and materials, and personnel files; (iv) environmental studies, reports, and analyses, and any related regulatory filings or submissions, including summaries, memoranda, reports, compilations or other derivations thereof; and (v) any and all other confidential or proprietary information concerning the affairs or conduct of CCS prior to the date hereof, whether prepared by or on behalf of the parties hereto.

 

6.2.2 Each Seller hereby acknowledges and agrees that the protection of CCS Confidential Information is necessary to protect and preserve the value of CCS, the CCS Assets and the Business, and that without such protection, Buyer would not have entered into this Agreement and consummated the Contemplated Transactions. Accordingly, subject to the provisions of Section 6.2.3, each Seller hereby covenants and agrees, for himself, his representatives and affiliates and his successors and permitted assigns, that, without the prior written consent of Buyer (which consent will be at the Buyer's absolute discretion to give or withhold), each Seller will not, nor will any Seller cause or permit any of his representatives or affiliates to, at any time on or after the Closing Date and through the fifth anniversary of the Closing Date, directly or indirectly, disclose to any third party or use for his own account or benefit or for the account or benefit of any other party, any CCS Confidential Information.

 

6.2.3 The provisions of the preceding paragraph will not apply to any CCS Confidential Information (i) that Sellers can demonstrate with documentary evidence is generally known to, and available for use by, the public other than as a result of the breach of this Agreement or any other agreement pursuant to which any person (including the party or any Representative or Affiliate thereof) owes any duty of confidentiality to the other party or previously owed any duty of confidentiality to the other party, or (ii) that is required to be disclosed pursuant to law or an administrative or judicial order so long as Buyer is notified of any such proceeding prior to the issuance of such order as set forth below. If a Seller (including any representative or affiliate thereof) becomes compelled by any Legal Requirement or an administrative or judicial order to disclose any CCS Confidential Information, such Seller will provide Buyer with prompt written notice of such requirement so that Buyer or CCS may seek a protective order or other remedy in respect of such compelled disclosure. If such a protective order or other remedy is not obtained by or is not available to Buyer or CCS, then such Seller will be responsible for ensuring that only the minimum portion of such CCS Confidential Information that is legally required to be disclosed is so disclosed, and such Seller will use all reasonable efforts to obtain assurances that confidential treatment will be given to such CCS Confidential Information.

 

6.3 Indemnification.

 

6.3.1 Sellers’ Liability Cap and Survival. Subject to the provisions of this Section 6, all representations, warranties, covenants and obligations of the Parties contained in this Agreement and in the agreements, instruments and other documents delivered pursuant to this Agreement will survive the Closing and the consummation of the Contemplated Transactions.

 

6.3.2 Indemnification by Buyer. Buyer hereby covenants and agrees that, to the fullest extent permitted by Legal Requirement, it will defend, indemnify and hold harmless Sellers and their Related Persons and Representatives, and their respective officers, directors, members, managers, employees, agents, and Representatives, and all successors and assigns of the foregoing (collectively, the “Seller Indemnified Persons”), for, from and against any Adverse Consequences, arising from or in connection with: (i) any Breach of any representation, warranty, covenant, obligation or agreement made by Buyer in the Transaction Documents, the Schedules and Exhibits hereto, the certificates delivered hereunder, any transfer instrument, or any other certificate, document, writing or instrument delivered by Buyer pursuant to or otherwise in connection with the Transaction Documents; (ii) any Liability of Buyer or its Related Persons; or (iii), any claim by any Person for any brokerage or finder’s fee, commission or similar payment based upon any agreement or understanding made, or alleged to have been made, by any Person with Buyer in connection with this Agreement or any of the Contemplated Transactions.

 

 

6.3.3 Indemnification by Sellers. Subject to a cap of $153,333.33 for each individual Seller (“Indemnity Caps”), Sellers hereby covenant and agree that, to the fullest extent permitted by Legal Requirement, they will defend, indemnify and hold harmless Buyer, and its Related Persons and Representatives, and their respective officers, directors, members, managers, employees, agents, and Representatives, and all successors and assigns of the foregoing (collectively, the “Buyer Indemnified Persons”), for, from and against any Adverse Consequences arising from or in connection with: (i) any Breach of any representation, warranty, covenant, obligation or agreement made by Sellers in the Transaction Documents, the Schedules and Exhibits hereto, the certificates delivered hereunder, any transfer instrument, or any other certificate, document, writing or instrument delivered by Sellers pursuant to or otherwise in connection with the Transaction Documents; (ii) any Liability of CCS based on facts, events or circumstances occurring before the Closing Date, or arising out of or in connection with the ownership and operation of CCS, the CCS Assets, and the CCS business prior to the Closing Date, or facts and circumstances relating specifically to CCS, the CCS Assets, and the CCS business existing at or prior to the Closing, respectively, whether or not such Liabilities or claims were known or unknown, absolute, accrued or contingent, on such date; (iii) any Liability of CCS to Sellers or any Related Person of Sellers (except in connection with Permitted Encumbrances prior to the date on which Buyer has fully performed under the Transaction Documents); or (iv) any claim by any Person for any brokerage or finder’s fee, commission or similar payment based upon any agreement or understanding alleged to have been made by such Person with any Sellers in connection with this Agreement or any of the Contemplated Transactions.

 

6.3.3.1 In addition to its indemnification obligations under Section 6.3.3, subject to the Indemnity Caps, Sellers hereby covenant and agree that, to the fullest extent permitted by Legal Requirement, they will defend, indemnify and hold harmless the Buyer Indemnified Persons for, from and against any Adverse Consequences (including costs of cleanup, containment or other Remedial Action) arising out of acts or neglect occurring or conditions existing at or before Closing from or in connection with: (i) any Environmental, Health and Safety Liabilities arising out of or relating to (a) the conduct of any activity by Seller, CCS, or their Related Persons, or any employee, contractor, agent or Representative thereof, relating to the CCS Assets or Business, (b) the ownership or operation by any Person at any time on or prior to the Closing Date of any of the CCS Assets or Business, or (c), any Hazardous Materials or other contaminants that were present on the CCS Assets at any time on or prior to the Closing Date; or (ii), any bodily injury (including illness, disability or death, regardless of when such bodily injury occurred, was incurred or manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction and deprivation of the use of real property) or other damage of or to any Person or any of the CCS Assets, in any way arising from or allegedly arising from (a) any Hazardous Activity conducted by Seller, CCS, their Related Persons or any employee, contractor, agent or Representative thereof, with respect to the CCS Assets or Business, or (b), from any Hazardous Material that was present or suspected to be present on or before the Closing Date on or at the Properties (or present or suspected to be present on any other property, if such Hazardous Material emanated or allegedly emanated from any Property and was present or suspected to be present on any Property, on or prior to the Closing Date), or Released or allegedly Released by Seller, CCS, their Related Persons, or any Person, on or at any of the Properties or CCS Assets at any time on or prior to the Closing Date. Buyer, either directly or through CCS, will be entitled to control any Remedial Action, any Proceeding relating to a claim that any Environmental Law has been violated and any other Proceeding with respect to which indemnity may be sought under this Section 6.3.

 

6.3.4 Time Limitations.

 

6.3.4.1 For purposes of this Agreement, a Buyer Indemnified Person may only assert a claim for indemnification under Section 6.3.3 during the applicable period of time (the “Buyer Claims Period”) commencing on the date of this Agreement and continuing until the date that is TWO (2) YEARS after the Closing Date.

 

6.3.4.2 For purposes of this Agreement, a Sellers Indemnified Person may only assert a claim for indemnification under Section 6.3.2 during the applicable period of time (the “Sellers Claims Period”) commencing on the date of this Agreement and continuing until the date that is TWO (2) YEARS after the Closing Date.

 

 

6.3.4.3 Notwithstanding anything to the contrary in this Section 6, if before 5:00 p.m. (eastern time) on the last day of the applicable Buyer Claims Period or Sellers Claims Period, any Party against which an indemnification claim has been made hereunder has been properly notified in writing of such claim for indemnity hereunder and the basis thereof, including with reasonable supporting details for such claim (to the extent then known), and such claim has not been finally resolved or disposed of as of such date, then such claim will continue to survive and will remain a basis for indemnity hereunder until such claim is finally resolved or disposed of in accordance with the terms of this Agreement.

 

6.3.5 Payment of Claims. A claim for indemnification may be asserted by written notice to the Party from whom indemnification is sought and will be paid promptly after such notice, and satisfying the Party’s right to be heard, together with satisfactory proof of Adverse Consequences or other documents evidencing the basis of the Adverse Consequences sought, are received.

 

6.3.6 Third-Party Claims. No later than ten (10) Business Days after receipt by a Person entitled to indemnity under Section 6 hereof (an “Indemnified Person”) of notice of the assertion of a Third-Party Claim against it, such Indemnified Person shall give notice to the Person obligated to indemnify under such section (an “Indemnifying Person”) of the assertion of such Third-Party Claim and a copy of any writing by which, such Third-Party assertion is made. The failure to notify the Indemnifying Person will relieve the Indemnifying Person of any liability that it may have to any Indemnified Person to the extent that the Indemnifying Person demonstrates that the defense of such Third-Party Claim is materially prejudiced by the Indemnified Person’s failure to give such notice. If an Indemnified Person gives notice to the Indemnifying Person hereunder of the assertion of a Third-Party Claim, the Indemnifying Person shall be entitled to participate in the defense of such Third-Party Claim and, to the extent that it wishes (unless (i) the Indemnifying Person is also a Person against whom the Third-Party Claim is made and the Indemnified Person determines in good faith that joint representation would be inappropriate, or (ii), the Indemnifying Person fails to provide reasonable assurance to the Indemnified Person of its financial capacity to defend such Third-Party Claim and provide indemnification with respect to such Third-Party Claim), to assume the defense of such Third-Party Claim with counsel reasonably satisfactory to the Indemnified Person (provided, such counsel has appropriate experience in the subject matter relating to the claim). After notice from the Indemnifying Person to the Indemnified Person of its election to assume the defense of such Third-Party Claim, the Indemnifying Person shall not, so long as it diligently conducts such defense, be liable to the Indemnified Person hereunder for any fees of other counsel or any other expenses with respect to the defense of such Third-Party Claim, in each case subsequently incurred by the Indemnified Person in connection with the defense of such Third-Party Claim, other than reasonable costs of investigation. If the Indemnifying Person assumes the defense of a Third-Party Claim, such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third-Party Claim are within the scope of and subject to indemnification, and no compromise or settlement of such Third-Party Claims may be effected by the Indemnifying Person without the Indemnified Person’s Consent unless there is no finding or admission of any violation of Legal Requirement or any violation of the rights of any Person, the sole relief provided is monetary damages that are paid in full by the Indemnifying Person; and, the Indemnified Person shall have no liability with respect to any compromise or settlement of such Third-Party Claims effected without its Consent, which shall not be unreasonably withheld. If notice is given to an Indemnifying Person of the assertion of any Third-Party Claim and the Indemnifying Person does not, within ten (10) days after the Indemnified Person’s notice is given, give notice to the Indemnified Person of its election to assume the defense of such Third-Party Claim, the Indemnifying Person will be bound by any determination made in such Third-Party Claim or any compromise or settlement effected by the Indemnified Person.

 

6.3.6.1 Notwithstanding the foregoing, if an Indemnified Person determines in good faith that there is a reasonable probability that a Third-Party Claim may adversely affect it or its Related Persons other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Person may, by notice to the Indemnifying Person, assume the exclusive right to defend, compromise or settle such Third-Party Claim, but the Indemnifying Person will not be bound by any determination of any Third-Party Claim so defended for the purposes of this Agreement or any compromise or settlement effected without its Consent (which may not be unreasonably withheld).

 

6.3.6.2 Sellers hereby consents to the nonexclusive jurisdiction of any court in which a Proceeding in respect of a Third-Party Claim is brought against any Buyer Indemnified Person for purposes of any claim that a Buyer Indemnified Person may have under this Agreement with respect to such Proceeding or the matters alleged therein and agree that process may be served on Sellers with respect to such a claim anywhere in the world.

 

 

6.3.6.3 With respect to any Third-Party Claim subject to indemnification under this Section 6, both the Indemnified Person and the Indemnifying Person, as the case may be, shall keep the other Person fully informed of the status of such Third-Party Claim and any related Proceedings at all stages thereof where such Person is not represented by its own counsel; and the parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third-Party Claim.

 

6.3.6.4 With respect to any Third-Party Claim subject to indemnification under this Section 6, the parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all Confidential Information and the attorney-client and work-product privileges. In connection therewith, each party agrees that: it will use its best efforts, in respect of any Third-Party Claim in which it has assumed or participated in the defense, to avoid production of Confidential Information (consistent with applicable law and rules of procedure); and all communications between any party hereto and counsel responsible for or participating in the defense of any Third-Party Claim shall, to the extent possible, be made so as to preserve any applicable attorney-client or work-product privilege.

 

6.3.7 Limitation of Liability. Notwithstanding anything stated to the contrary herein, the Sellers’ maximum liability under this Section 6.3 shall be limited to the Indemnity Caps for any Claims arising from circumstances which do not involve willful misconduct or fraud.

 

6.3.8 Other Remedies. The foregoing right of any setoff provisions, holdback provisions and indemnification provisions are in addition to, and not in derogation of, any statutory, equitable, or common law remedy any Party may have in connection with this Agreement and the Contemplated Transactions.

 

6.3.9 Escrow Payment to Gentle. Buyer shall deposit $153,333.33 in immediately available U.S. cash funds into an escrow account at Metro Bank in the name of Buyer and Gentle at Closing (“Escrow Account”), which shall be released to Gentle as payment against his pro-rata portion of the Escrow Note in two equal payments of 50% on the first and second anniversaries of the Closing, on and subject to this paragraph, this Agreement and the Transaction Documents. No disbursement from the Escrow Account shall occur without the signature of Buyer’s duly-appointed officer and Gentle.

 

7. Additional Actions and Transactions

 

7.1 Access to Information; Confidentiality. Upon reasonable notice, Sellers and CCS shall afford to the officers, employees, accountants, counsel and other representatives of Buyer, reasonable access, during the period prior to the Closing Date, to all properties, books, contracts, commitments and records; and, during such period, Sellers and CCS shall furnish promptly to Buyer, as the case may be, all information concerning the CCS business, properties and personnel as such parties may reasonably request, and Sellers and CCS shall make available to Buyer and its representatives the appropriate individuals, including attorneys, accountants and other professionals for discussion of its business, properties and personnel as such parties may reasonably request.

 

7.2 Continued Disclosure. From time to time, on and prior to the Closing Date, Buyer, Sellers and CCS shall each promptly notify the other parties upon becoming aware of any fact, occurrence or event that would cause any of their respective representations and warranties contained to be inaccurate or incomplete in any material respect.

 

7.3 Supplemental Schedules. Buyer, Sellers and CCS may (but will not be required to) from time to time prior to the Closing Date, by notice in accordance with the Agreement, supplement or amend their respective disclosure schedules hereto, including without limitation one or more supplements or amendments to correct any matter which would otherwise constitute a breach of any representation, warranty or covenant herein contained.

 

8. Conditions to the Sellers Acquisition

 

8.1 Conditions to the Obligations of Buyer. The obligations of Buyer, to consummate the Closing are subject to the satisfaction, or written waiver by Buyer (“Sellers Exception Notice”), of the following conditions:

 

8.1.1 Representations and Warranties. The representations and warranties of Sellers contained herein, and in any certificate or other writing delivered by Sellers pursuant hereto, shall be true and correct in all material respects at and as of the Closing Date as if made at and as of such time, except for (i) changes contemplated by this Agreement, and (ii) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date), with the same force and effect as if made at and as of the Closing Date.

 

 

8.1.2 Agreements and Covenants; Sellers Closing Deliverables. The Sellers and CCS shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them at or prior to the Closing Date. Sellers and CCS shall have delivered or caused to be delivered to Buyer all of the items specified in Schedule 2.3. All material written consents, assignments, waivers or authorizations that are required as a result of the transactions contemplated by this Agreement shall have been obtained.

 

8.1.3 Material Adverse Effect. No proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted by any person before any court, arbitrator or governmental authority nor shall any such proceeding be pending. There shall have not occurred any events or developments, individually or in the aggregate, resulting in a Material Adverse Effect with respect to CCS.

 

8.1.4 Consummation of Contemplated Transactions. All Contemplated Transactions involving Buyer, Seller, CCS and their respective Related Persons shall have been consummated as of the Closing Date, as such term is defined in applicable Transaction Documents.

 

8.2 Conditions to the Obligations of Seller. The obligations of Seller, to consummate the Closing are subject to the satisfaction, or written waiver by Sellers (“Buyer Exception Notice”), of the following conditions:

 

8.2.1 Representations and Warranties. The representations and warranties of Buyer contained in this Agreement, and in any certificate or other writing delivered by Buyer pursuant hereto, shall be true and correct in all material respects at and as of the Closing Date as if made at and as of such time, except for (i) changes contemplated by this Agreement, and (ii) those representations and warranties which address matters only as of a particular date (which shall have been true and correct as of such date), with the same force and effect as if made on and as of the Closing Date.

 

8.2.2 Agreements and Covenants; Buyer Closing Deliverables. Buyer shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them at or prior to the Closing Date. Buyer shall have delivered or caused to be delivered to Sellers all of the items specified in Schedule 2.4. All material written consents, assignments, waivers or authorizations that are required as a result of the transactions contemplated by this Agreement shall have been obtained.

 

8.2.3 Material Adverse Effect. No proceeding challenging this Agreement or the transactions contemplated hereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted by any person before any court, arbitrator or governmental authority nor shall any such proceeding be pending. There shall have not occurred any events or developments, individually or in the aggregate, resulting in a Material Adverse Effect with respect to Buyer.

 

8.2.4 Consummation of Contemplated Transactions. All Contemplated Transactions involving Buyer, Seller, CCS and their respective Related Persons shall have been consummated as of the Closing Date, as such term is defined in applicable Transaction Documents.

 

9. Termination

 

9.1 Termination. This Agreement may be terminated at any time prior to the Closing Date by mutual written consent of the Buyer and the Seller. In the event of a termination of this Agreement pursuant to this Section, this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto or any of its affiliates, directors, officers, stockholders or members except that nothing herein shall relieve any party from liability for any breach hereof occurring prior to termination. All fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses, whether or not the Sellers Acquisition is consummated.

 

9.2 Events of Default. For purposes of this Agreement, an “Event of Default” shall be additionally construed to mean the occurrence of one or more of the following events of Breach by any Party after the date hereof that remains uncured SIXTY (60) days following written notice of default (each, a “Default Notice”) to the breaching Party(ies) (“Breaching Party” or “Breaching Parties”) from any one or more non-breaching Party(ies) (“Non-Breaching Party” or “Non-Breaching Parties”):

 

9.2.1 Closing Default. The failure of the Closing to occur as of the later of the Closing Date, or, if all of the conditions to the Closing are not satisfied on that date, the first date thereafter on which all of such conditions are satisfied, or such other date as the Parties may mutually agree in writing;

 

 

9.2.2 Payment Default. If any Breaching Party shall, for any reason, fail to comply with any payment obligations as and when due;

 

9.2.3 Representations. If any material representation or warranty made by or on behalf of any Breaching Party, whether contained in this Agreement, or in any other Transaction Document with one or more of the Non-Breaching Parties, and which the Non-Breaching Party(ies) asserting Breach has (or have) proven to have been false or incorrect in any material respect when made;

 

9.2.4 Voluntary Insolvency Proceedings. If Buyer shall (i) apply for or consent to or acquiesce in the appointment of or the taking of possession by a receiver, liquidator, custodian or trustee of itself or of all or any part of its property, (ii) admit in writing its inability, or be generally unable, to pay its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the bankruptcy laws of the United States of America (as now or hereafter in effect) or any similar foreign law, (v) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts, or (vi) take any action for the purpose of effecting any of the foregoing;

 

9.2.5 Involuntary Insolvency Proceedings. A proceeding or case shall be commenced, without the application or consent of Buyer in any court of competent jurisdiction, seeking (i) liquidation, reorganization, dissolution, winding-up or composition or adjustment of debts of Buyer, (ii) the appointment of a trustee, receiver, liquidator, custodian or the like of Buyer, or of all or any part of any of their assets, (iii) similar relief under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts, and such proceeding or case shall continue undismissed, for a period of forty five (45) days; or (iv) any order for relief against Buyer or Seller, shall be entered in an involuntary case under bankruptcy laws of the United States of America, or any similar foreign law, and shall continue undismissed for a period of forty five (45) days;

 

9.2.6 Judgments and Tax Liens. If one or more judgments, attachments, or tax liens exceeding $100,000 in the aggregate are entered against Buyer, or against Buyer’s property, and remain unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days, or enforcement proceedings are commenced with respect to any judgment, attachment, or tax lien against Buyer;

 

9.2.7 Divestiture of Assets. If any order, judgment, or decree shall be entered in any proceeding requiring Buyer to divest itself of any material part of its assets, and if, within forty-five (45) days after entry thereof (unless or until enforcement is sooner commenced), such order, judgment or decree shall not have been discharged or execution thereof stayed pending appeal, or if, within ten (10) days after the expiration of any such stay (unless or until enforcement is sooner commenced), such judgment, order or decree shall not have been discharged; or,

 

9.2.8 Cross Default. The occurrence of any default or Event of Default by Buyer, Sellers and/or Principal under any Transaction Document.

 

10. General

 

10.1 Modifications. Any Transaction Documents involving Sellers may be modified only in writing that specifically refers to the proposed modification and applicable Transaction Document(s), and which is signed by an authorized representative of each Party.

 

10.2 Governing Law; Consent to Jurisdiction. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Georgia, without regard to the principles of conflict of laws.

 

10.3 Assignment. This Agreement shall not be assigned by operation of law or otherwise in the absence of the prior written consent of each the Parties hereto.

 

10.4 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by commercial overnight delivery service, or mailed by registered or certified mail (return receipt requested) or sent via facsimile (with confirmation of receipt) to the parties at the below address (or at such other address for a party as shall be specified by like notice). Notice shall be deemed effective upon the earlier of (a) actual receipt, (b) one business day following transmission by facsimile or commercial overnight delivery services, or (c) three business days following registered or certified mail.

 

 

if to Buyer, to:

Attis Infrastructure LLC

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with a copy to (which copies shall not constitute notice):

 

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with a copy to (which copies shall not constitute notice):

 

Gentle, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLC

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10.5 Severability. In the event that any provision of this Agreement is held to be unenforceable by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties so closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.

 

10.6 Entire Agreement. This Agreement, the Transaction Documents, and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto, including the Exhibits, the Seller Disclosure Schedule, the Buyer Disclosure Schedule, and the other Schedules constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, and are not intended to confer upon any other person any rights or remedies hereunder.

 

10.7 Amendment and Waiver. This Agreement may be amended only by a written agreement executed by the parties hereto. No provision of this Agreement may be waived except by a written document executed by the party entitled to the benefits of the provision. No waiver of a provision will be deemed to be or will constitute a waiver of any other provision of this Agreement. A waiver will be effective only in the specific instance and for the purpose for which it was given, and will not constitute a continuing waiver.

 

 

10.8 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reasons of this Agreement.

 

10.9 Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on the part of any party hereto in the exercise of any right hereunder shall impair such right to be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right. Except as otherwise set forth herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy. The Parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled at law or in equity, and the Parties hereto hereby waive the requirement of any posting of a bond in connection with the remedies described herein

 

10.10 Counterparts. This Agreement may be executed in any number of counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which together shall constitute one and the same agreement.

 

10.11 Waiver of Jury Trial and Dispute Resolution. AS A MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT, EACH PARTY HERETO IRREVOCABLY, VOLUNTARILY, AND KNOWINGLY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT AND/OR ANY AND ALL OTHER DOCUMENTS RELATED TO THIS TRANSACTION. Any dispute respecting this Agreement will be resolved amicably to the extent possible. If not, the dispute shall be mediated by an agreed mediator. Failing that, it shall be resolved by private arbitration in Atlanta GA by an agreed arbitrator, following AAA Commercial Arbitration rules but not through AAA.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

 

- SIGNATURE PAGE FOLLOWS]

 

 

IN WITNESS WHEREOF the parties have duly executed, or caused their duly authorized representative, to execute this Stock Purchase Agreement.

 

ATTIS INFRASTRUCTURE LLC
By:
Name:	▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:	Manager
▇▇▇▇▇ ▇. GENTLE, III
By:
	▇▇▇▇▇ ▇. Gentle, III
	Individually
▇▇▇▇ ▇▇▇▇
By:
	▇▇▇▇ ▇▇▇▇
	Individually
▇▇▇▇ ▇▇▇▇
By:
	▇▇▇▇ ▇▇▇▇
	Individually
CUSTOM CABLE SERVICES, INC.
By:
	▇▇▇▇ ▇▇▇▇
	Chief Executive Officer

 

[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]

 

 

INDEX OF SCHEDULES AND EXHIBITS

 

Schedules

 

Schedule 1.0	Certain Definitions
Schedule 2.0	The Acquisition
Schedule 2.3	Sellers Closing Deliveries
Schedule 2.4	Buyer Closing Deliveries
Schedule 3.0	Seller Disclosure Schedule
Schedule 4.0	Buyer Disclosure Schedule

 

Exhibits

 

Exhibit 2.1(a)	Assignment Agreement, Gentle
Exhibit 2.1(b)	Assignment Agreement, ▇▇▇▇
Exhibit 2.1(c)	Assignment Agreement, Park
Exhibit 2.2.1	Disbursement Letter
Exhibit 2.2.2(a)	Escrow Note, Gentle
Exhibit 2.2.2(b)	Escrow Note, ▇▇▇▇
Exhibit 2.2.2(c)	Escrow Note, Park
Exhibit 2.3(a)	▇▇▇▇ Employment Agreement
Exhibit 2.3(b)	Park Employment Agreement
Exhibit 3.3(a)	Written Consent, Sellers
Exhibit 3.3(b)	Written Consent, CCS
Exhibit 3.6	CCS Financial Statements
Exhibit 3.9.1	Lease Letter Agreement
Exhibit 4.2(a)	Written Consent, Buyer

 

 

SCHEDULE 1.0

 

Certain Definitions

 

Accounts Receivable means (i) all trade and other accounts receivable and other rights to payment from past or present customers of CCS, and the full benefit of all security for such accounts or rights to payment, including all trade and other accounts receivable representing amounts receivable in respect of services rendered to customers of the Business, and (ii) any claim, remedy or other right related to any of the foregoing

 

Action shall mean any claim, action, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation by or before any governmental authority.

 

Adverse Consequences shall mean all actions, suits, Proceedings, hearings, investigations, charges, complaints, claims, demands, diminutions in value, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement or claims, obligations, Taxes, Liens, losses, interest, expenses (including costs of investigation and defense), any other Liability and fees, including court costs and reasonable attorneys’ fees and expenses, whether or not involving a Third-Party Claim.

 

Affiliate shall mean, any Person directly or indirectly controlling, controlled by or under common control with the specified Party or Person. For purposes of this definition, the term control including the terms controlling, controlled by and under common control with) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or otherwise.

 

Affiliated Group means any affiliated group within the meaning of Code Section 1504(a) or any similar group defined under a similar provision of state, local or foreign law.

 

Agreement has the meaning set forth in the preface.

 

Approval means those certain Governmental Authorizations, if any, to be obtained by Sellers on or before the Closing in the name of the applicable Company from any Governmental Body having jurisdiction over the Properties, or the Businesses, in order for the Permits to be issued to Buyer.

 

Basis shall mean any past or present fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction that forms or could form the basis for any specified consequence.

 

Breach shall mean any breach of, or any inaccuracy in, any representation or warranty or any breach of, or failure to perform or comply with, any covenant, obligation or agreement, in or of this Agreement or any other Contract, agreement or instrument (whether or not related to this Agreement), or in or of any corporate, Company or partnership organizational document or agreement, any Governmental Authorization, Order or Legal Requirement, or any other breach of any written instrument, or any event which with the passing of time or the giving of notice, or both, would constitute such a breach, inaccuracy or failure

 

Business Day means any day other than a Saturday or Sunday or any other day on which banks in Tennessee are permitted or required by Legal Requirement to be closed.

 

Business shall mean the operating and other activities currently conducted in the ordinary course of the applicable entity’s business.

 

Buyer Disclosure Schedule shall the disclosure schedule set forth in Schedule 4.0.

 

Buyer has the meaning set forth in the preface.

 

Buyer Indemnity means the indemnity provided by Buyer in Section 6.4.2 hereof.

 

Bylaws shall mean, each the bylaws or operating agreement of the applicable entity.

 

COBRA means the requirements of Part 6 of Subtitle B of Title I of ERISA and Code Section 4980B and of any similar state law.

 

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

 

Confidential Information has the meaning set forth in Section 6.3.

 

Consent shall mean any approval, consent, ratification, waiver or other authorization.

 

 

Contemplated Transactions shall mean all of the transactions contemplated by this Agreement and Transaction Documents.

 

Contract means any agreement, contract, license, lease, consensual obligation, promise or undertaking (whether written or oral and whether express or implied), whether or not legally binding.

 

EBITDA shall mean the CCS consolidated earnings before interest, taxes, depreciation and amortization for each applicable calendar year.

 

Effective Date has the meaning set forth in the preface.

 

Employee Benefit Plan means all employee benefit plans as defined by Section 3(3) of the Employee Retirement Income Security Act of 1974 (ERISA), all specified fringe benefit plans as defined in Section 6039D of the Code, and all other bonus, incentive-compensation, deferred-compensation, profit-sharing, stock-option, stock-appreciation-right, stock-bonus, stock-purchase, employee-stock-ownership, savings, severance, change-in-control, supplemental-unemployment, layoff, salary-continuation, retirement, pension, health, life-insurance, disability, accident, group-insurance, vacation, holiday, sick-leave, fringe-benefit or welfare plan, and any other employee compensation or benefit plan, agreement, policy, practice, commitment, contract or understanding (whether qualified or nonqualified, currently effective or terminated, written or unwritten) and any trust, escrow or other agreement related thereto that (i) is maintained or contributed to by CCS or any other corporation or trade or business controlled by, controlling or under common control with Sellers (within the meaning of Section 414 of the Code or Section 4001(a)(14) or 4001(b) of ERISA) (ERISA Affiliate) or has been maintained or contributed to in the last six (6) years by CCS or any ERISA Affiliate, or with respect to which any Company or any ERISA Affiliate has or may have any liability, and (ii) provides benefits, or describes policies or procedures applicable to any current or former director, officer, employee or service provider of any Company or any ERISA Affiliate, or the dependents of any thereof, regardless of how (or whether) liabilities for the provision of benefits are accrued or assets are acquired or dedicated with respect to the funding thereof.

 

Employee Welfare Benefit Plan has the meaning set forth in ERISA Section 3(1).

 

Environment means soil, land surface or subsurface strata, surface waters, groundwaters, drinking water supply, stream sediments, ambient air (including indoor air), plant and animal life and any other environmental medium or natural resource.

 

Environmental Law means any Legal Requirement that requires or relates to (i) advising appropriate Governmental Bodies, employees or the public of any intended Release, actual Release or Threat of Release of pollutants or Hazardous Materials, violations of discharge limits or other prohibitions and the commencement of activities, such as resource extraction or construction, that could have significant impact on the Environment; (ii) preventing or reducing to acceptable levels the Release of pollutants or Hazardous Materials into the Environment; (iii) reducing the quantities, preventing the Release or minimizing the hazardous characteristics of wastes that are generated; (iv) assuring that products are designed, formulated, packaged and used so that they do not present unreasonable risks to human health or the Environment when used or disposed of; (v) protecting resources, species or ecological amenities; (vi) reducing to acceptable levels the risks inherent in the transportation of pollutants, Hazardous Materials or other potentially harmful substances; (vii) cleaning up pollutants that have been Released, preventing the Threat of Release or paying the costs of such clean up or prevention; (viii) making responsible Persons pay private parties, or groups of them, for damages done to their health or the Environment or permitting self-appointed representatives of the public interest to recover for injuries done to public assets; or (ix), governing or regulating any Hazardous Activities.

 

Environmental, Health and Safety Liabilities means any and all costs, damages, Adverse Consequences, expenses, Liabilities and/or other responsibility arising from or under any Environmental Law or Occupational Safety and Health Law, including those consisting of or relating to: (i) any environmental, health or safety matter or condition (including on-site or off-site contamination, and/or occupational safety and health regulation of any chemical substance or product); (ii) any fine, penalty, judgment, award, settlement, Proceeding, damages, Adverse Consequence, loss, claim, demand or response, remedial or inspection cost or expense arising under any Environmental Law or Occupational Safety and Health Law; (iii) financial responsibility under any Environmental Law or Occupational Safety and Health Law for cleanup costs or corrective action, including any cleanup, removal, containment or other remediation or response actions (Cleanup) required by any Environmental Law or Occupational Safety and Health Law (whether or not such Cleanup has been required or requested by any Governmental Body or any other Person) and for any natural resource damages; and/or (iv), any other compliance, corrective or remedial measure required under any Environmental Law or Occupational Safety and Health Law. For purposes of this definition, the terms removal, remedial and response action include the types of activities covered by the United States Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA).

 

 

Event of Default means those defined in the Agreement..

 

GAAP or Generally Accepted Accounting Principles means generally accepted accounting principles as in effect in the United States of America, as determined by the Financial Accounting Standards Board from time to time, applied on a consistent basis as of the date of any application thereof.

 

Governmental Authorization means any zoning approvals, permits (including the Permits), franchise rights, rights-of-way, Consent, license, permission, registration, permit or other right or approval issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement and all pending applications therefor or renewals thereof.

 

Governmental Body means any (i) nation, state, county, city, town, borough, village, district or other jurisdiction; (ii) federal, state, county, local, municipal, foreign or other government; (iii) governmental or quasi-governmental authority of any nature (including any agency, branch, department, board, commission, court, tribunal or other entity exercising governmental or quasi-governmental powers); (iv) body exercising, or entitled or purporting to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power; (v) Indian tribal authority; (vi) multinational organization or body, or (vii) official of any of the foregoing.

 

Hazardous Activity means, with respect to any Person (including any Party or their Related Persons), the distribution, generation, handling, importing, management, manufacturing, processing, production, refinement, Release, storage, transfer, transportation, treatment or use (including any withdrawal or other use of groundwater) of Hazardous Material in, on, under, about or from any Property or other facility or real property owned, leased, operated or otherwise used by such Person or any of its contractors in connection with the conduct of the business of such Person, or from any other asset of such Person, into the Environment and any other act, business, operation or thing that increases the danger, or risk of danger, or poses an unreasonable risk of harm, to persons or property, whether on or off the aforementioned Properties, facilities or other real property, beyond what is authorized by any Environmental Law relating to the business of such Person.

 

Hazardous Material means any substance, material or waste which is or will foreseeably be regulated by any Governmental Body, including any material, substance or waste which is defined as a hazardous waste, hazardous material, hazardous substance, extremely hazardous waste, restricted hazardous waste, contaminant, pollutant, toxic waste or toxic substance under any provision of Environmental Law, and including petroleum, petroleum products, asbestos, presumed asbestos-containing material or asbestos-containing material, urea formaldehyde and polychlorinated biphenyls.

 

Improvements means all buildings, structures, fixtures, building systems and equipment, and all components thereof, including the roof, foundation, load-bearing walls, and other structural elements thereof, heating, ventilation, air conditioning, mechanical, electrical, plumbing and other building systems, environmental control, remediation and abatement systems, sewer, storm, and waste water systems, irrigation and other water distribution systems, parking facilities, fire protection, security and surveillance systems, and telecommunications, computer, wiring, and cable installations, all of which are included in the Properties.

 

Indebtedness or Debt means: (a) any indebtedness (including all accrued interest) for borrowed money or issued in substitution for or exchange of indebtedness for borrowed money; (b) any indebtedness evidenced by any note, bond, debenture or other debt security; (c) any indebtedness for the deferred purchase price of property or services with respect to Sellers or CCS is liable, contingently or otherwise, as obligor or otherwise; (d) any commitment by which Sellers or CCS assures a creditor against loss (including, without limitation, contingent reimbursement obligations with respect to letters of credit); (e) any indebtedness guaranteed in any manner by Sellers or CCS (including, without limitation, guarantees in the form of an agreement to repurchase or reimburse); (f) any obligations under capitalized leases with respect to which Sellers or CCS is liable, contingently or otherwise, as obligor, guarantor or otherwise, or with respect to which obligations Sellers or CCS assures a creditor against loss; (g) any TRAC or synthetic leases; (h) any indebtedness secured by a Lien on the Seller Shares; (i) any unsatisfied obligation for withdrawal liability to a Multiemployer Plan as such terms are defined under ERISA; (j) the deficit or negative balance, if any, in the checking account of CCS; and (k), any credit card debt.

 

Indemnified Person has the meaning set forth in Section 6.4.

 

Indemnifying Person has the meaning set forth in Section 6.4.

 

 

Insolvency Laws means any bankruptcy, insolvency, reorganization, moratorium or other similar Legal Requirement affecting the enforcement of creditors rights generally, and general principles of equity (regardless of whether enforcement is considered in a proceeding in law or equity).

 

Insolvent means being unable to pay debts as they mature, or as obligations become due and payable.

 

Intangible Personal Property means all intangible property used or held for use by CCS, of whatever type or description, including (a) the business as a going concern; (b) goodwill of CCS; (c) all files, records and correspondence; (d) telephone numbers, telecopy numbers; (e) all rights in Internet web sites and Internet domain names presently used by CCS, and links; (f) all registered and unregistered copyrights in both published works and unpublished works; (g) all names or trade names of or used by CCS, assumed fictional business names, trade names, registered and unregistered trademarks, service marks and applications; (h) all know-how, trade secrets, confidential or proprietary information, customer lists, software, technical information, data, process technology, plans, drawings and blue prints; and (i), all right, title and interest in and to all Company Documents, Company Contracts, and all Permits, Governmental Authorizations, Approvals, Consents, licenses and other permits and approvals of CCS.

 

Intellectual Property Assets shall mean all Intellectual Property owned or possessed by CCS as itemized in Section 3.9 of Schedule 3.0, or which CCS has the right to use pursuant to a valid and enforceable, written license, sublicense, agreement, or permission, and the Intangible Personal Property itemized in Section 3.9 of Schedule 3.0.

 

IRS means the United States Internal Revenue Services and, to the extent relevant, the United States Department of the Treasury.

 

Knowledge means, when used to qualify a representation, warranty or other statement of a Party to this Agreement, (i) the knowledge that management of the Party actually has with respect to the particular fact or matter that is the subject of such representation, warranty or other statement, and (ii) the knowledge that management of the Party could reasonably be expected to have as prudent and responsible owners and operators of the assets and the businesses of such Party, or in the case of Seller, the ownership and operation of CCS, after having conducted a reasonably comprehensive inquiry or investigation with respect to the fact or matter that is the subject of such representation, warranty or other statement. A Person (other than an individual) will be deemed to have Knowledge of a particular fact or other matter if any individual who is serving, or who has at any time served, as a director, officer, partner, member, manager, executor or trustee of that Person (or in any similar capacity) has, or at any time had, Knowledge of that fact or other matter (as set forth in (a) and (b) above), and any such individual (and any individual party to this Agreement) will be deemed to have conducted a reasonably comprehensive investigation regarding the accuracy of the representations and warranties made herein by that Person or individual.

 

Legal Requirement means any federal, state, local, municipal, foreign, international, multinational or other constitution, law, ordinance, principle of common law, code, regulation, statute or treaty.

 

Liability means with respect to any Person (including any Party), any Indebtedness, liability, penalty, damage, loss, cost or expense, obligation, claim, deficiency, or guaranty of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise, and whether or not the same is required to be accrued on the financial statements of such Person, including any liability for Taxes.

 

Lien means with respect to any Person, any mortgage, right of way, easement, encroachment, any restriction on use, servitude, pledge, lien, charge, hypothecation, security interest, encumbrance, adverse right, interest or claim, community or other marital property interest, condition, equitable interest, encumbrance, license, covenant, title defect, option, or right of first refusal or offer or similar restriction, voting right, transfer, receipt of income or exercise of any other attribute of ownership, except for any liens for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings for which adequate reserves have been established and accrued on the financial statements of such Person in accordance with GAAP.

 

Material Adverse Effect or Material Adverse Change means any effect or change that would be materially adverse to the business, assets, condition (financial or otherwise), operating results, operations, or business prospects of the applicable Party, taken as a whole, including the ability for such Party to own, construct, operate and develop its business, the transfer or issuance, if applicable, of any Permit, Consent, Governmental Authorization, license or other permit or approval contemplated by this Agreement or reasonably necessary to the continued operation of the applicable Party’s business, or on the ability of either Party to timely consummate the Contemplated Transactions, except for any adverse change or event arising from or relating to (a) general economic conditions or conditions which generally affect the business of the applicable Party and the industry in which it competes, and (b) public or industry knowledge of the Contemplated Transactions.

 

 

Multiemployer Plan has the meaning set forth in ERISA Section 3(37).

 

Occupational Safety and Health Law means any Legal Requirement designed to provide safe and healthful working conditions and to reduce occupational safety and health hazards, including the Occupational Safety and Health Act, and any program, whether governmental or private (such as those promulgated or sponsored by industry associations and insurance companies), designed to provide safe and healthful working conditions.

 

Order means any order, injunction, judgment, decree, ruling, assessment or arbitration award of any Governmental Body or arbitrator.

 

Ordinary Course of Business means an action taken by a Person will be deemed to have been taken in the ordinary course of business only if that action (i) is consistent in nature, scope and magnitude with the past practices of such Person and is taken in the ordinary course of the normal, day-to-day operations of such Person; (ii) does not require authorization by the board of directors, owners, shareholders, interest holders, members or managers of such Person (or by any Person or group of Persons exercising similar authority) and does not require any other separate or special authorization of any nature; and (iii), is similar in nature, scope and magnitude to actions customarily taken, without any separate or special authorization, in the ordinary course of the normal, day-to-day operations of other Persons that are in the same line of business as such Person).

 

Organizational Documents means: (i) with respect to a corporation, the certificate or articles of incorporation and bylaws; (ii) with respect to any other Person any charter or similar document adopted or filed in connection with the creation, formation or organization of a Person; (iii) any operating agreement, partnership agreement, shareholder agreement or similar agreement; and (iv), any amendment to any of the foregoing.

 

Party and Parties shall mean and refer to one or more of the undersigned, as applicable.

 

Permits has the meaning set forth in Section 3.13.

 

Permitted Designee shall mean, as applicable, the designee or assignee of a Party hereto.

 

Permitted Encumbrances has the meaning set forth in Section 3.8 of Schedule 3.0.

 

Person means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock holding company, a trust, a joint venture, an unincorporated organization, any other business entity, joint venture or other entity Governmental Body (or any department, agency, or political subdivision thereof).

 

Principal has the meaning set forth in the Preamble to this Agreement.

 

Principal Indemnity means the indemnity provided by Principal in the Principal Indemnity Agreement.

 

Principal Market has the meaning set forth in Schedule 2.0.

 

Principal’s Interest means 100% of Principal’s direct and indirect ownership interest in, to and under the equity of Sellers.

 

Proceeding means any action, arbitration, audit, hearing, investigation, litigation or suit (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, whether public or private) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Body, court, or arbitrator.

 

Property or Properties has the meaning set forth in the background facts described in the Seller Disclosure Schedule, including, without limitation, the Tangible Personal Property, Intellectual Property Assets, Intellectual Property, and Intangible Personal Property (including air, oil, gas, mineral, and water rights together with all Permits).

 

Purchase Price has that meaning set forth in Section 2.2 of Schedule 2.0 hereto.

 

Real Property Lease means (i) any long-term lease of land in which most of the rights and benefits comprising ownership of the land and the Improvements thereon or to be constructed thereon, if any, are transferred to the tenant for the term thereof or (ii) any lease or rental agreement pertaining to the occupancy of any improved space on any real property.

 

 

Related Person means: (i) with respect to a particular individual: (a) each other member of such individual’s Family; (b) any Person that is directly or indirectly controlled by any one or more members of such individual’s Family; (c) any Person in which members of such individual’s Family hold (individually or in the aggregate) a Material Interest; and (d), any Person with respect to which one or more members of such individual’s Family serves as a director, officer, partner, executor or trustee (or in a similar capacity); and, (ii) with respect to a specified Person other than an individual: (a) any Person that directly or indirectly controls, is directly or indirectly controlled by or is directly or indirectly under common control with such specified Person; (b) any Person that holds a Material Interest in such specified Person; (c) each Person that serves as a director, officer, partner, executor or trustee of such specified Person (or in a similar capacity); (d) any Person in which such specified Person holds a Material Interest; and (e), any Person with respect to which such specified Person serves as a general partner or a trustee (or in a similar capacity). For purposes of this definition, (a) control (including controlling, controlled by, and under common control with) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and shall be construed as such term is used in the rules promulgated under the Securities Act; (b) the Family of an individual includes (i) the individual; (ii) the individual’s spouse; (iii) any other natural person who is related to the individual or the individual’s spouse within the second degree; and (iv), any other natural person who resides with such individual; and (c), Material Interest means direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Exchange Act of 1934) of voting securities or other voting interests representing at least ten percent (10%) of the outstanding voting power of a Person or equity securities or other equity interests representing at least ten percent (10%) of the outstanding equity securities or equity interests in a Person.

 

Release means any release, spill, emission, leaking, pumping, pouring, dumping, emptying, injection, deposit, disposal, discharge, dispersal, leaching or migration on or into the Environment or into or out of any property.

 

Remedial Action means all actions, including any capital expenditures, required or voluntarily undertaken: (i) to clean up, remove, treat or in any other way address any Hazardous Material or other substance; (ii) to prevent the Release or Threat of Release or to minimize the further Release of any Hazardous Material or other substance so it does not migrate or endanger or threaten to endanger public health or welfare or the Environment; (iii) to perform pre-remedial studies and investigations or post-remedial monitoring and care; or (iv), to bring the Properties and the operations conducted (or to be conducted) thereon into compliance with Environmental Laws and environmental Governmental Authorizations.

 

Representative means with respect to a particular Person, any director, officer, manager, employee, agent, consultant, advisor, accountant, financial advisor, legal counsel or other representative of that Person.

 

SEC Documents has the meaning set forth in Section 6.3.

 

SEC has the meaning set forth in the preface.

 

Securities Act means the Securities Act of 1933, as amended.

 

Sellers have the meaning set forth in the preface.

 

Seller Disclosure Schedule shall mean the disclosure schedule set forth in Schedule 3.0.

 

Sellers Indemnity means the indemnity provided by Sellers in Section 6.4.3 hereof subject to the Indemnity Caps.

 

Seller Shares has the meaning set forth in Section 2.1 of Schedule 2.0 hereto.

 

Tangible Personal Property means the tangible personal property itemized on in Section 3.9.1 of the Seller Disclosure Schedule, and all other tangible personal property used or useful in the Business, including all machinery, equipment, scales, compactors, containers, bailers, tools, spare parts, furniture, office equipment, computer hardware, supplies, materials, vehicles, trade fixtures and other items of tangible personal property of every kind owned or leased by CCS (wherever located and whether or not carried on the books of CCS or Seller), together with any express or implied warranty by the manufacturers or lessors of any item or component part thereof and all maintenance records and other documents relating thereto.

 

Tax or Taxes means any income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, property, environmental, windfall profit, customs, vehicle, airplane, boat, vessel or other title or registration, capital stock, franchise, employees’ income withholding, foreign or domestic withholding, social security, unemployment, disability, real property, personal property, sales, use, transfer, value added, alternative, add-on minimum and other tax, fee, assessment, levy, tariff, charge or duty of any kind whatsoever and any interest, penalty, addition or additional amount thereon imposed, assessed or collected by or under the authority of any Governmental Body or payable under any tax-sharing agreement or any other Contract, whether disputed or not and including any obligations to indemnify or otherwise assume or succeed to the Tax liability of any other Person.

 

 

Tax Return means any return (including any information return), report, statement, schedule, notice, form, declaration, claim for refund or other document or information filed with or submitted to, or required to be filed with or submitted to, any Governmental Body in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any Legal Requirement relating to any Tax.

 

Third Party Claim means any claim, issuance of any Order or the commencement of any Proceeding by any Person who is not a Party to this Agreement, including a Related Person of a Party, any domestic or foreign court, or Governmental Body.

 

Threat of Release means a reasonable likelihood of a Release that may require action in order to prevent or mitigate damage to the Environment that may result from such Release.

 

Trading Day means any day during which the Principal Market shall be open for business.

 

Transaction Documents shall mean this Agreement, and any and all documents, instruments and certificates executed, delivered and/or issued before, at and after Closing in connection herewith and therewith and all further actions and transactions included in the Contemplated Transactions, including all schedules and exhibits hereto and thereto, each of which are hereby incorporated by reference herein.

 

 

SCHEDULE 2.0

 

The Acquisition and Capitalization

 

On and subject to the terms and conditions of this Agreement and the Transaction Documents, at the Closing and at all relevant times thereafter, Buyer shall pay the Purchase Price to Sellers and/or Sellers’ Permitted Designee(s) in exchange for the sale, assignment, transfer, and delivery of the Seller Shares to Buyer and/or Buyer’s Permitted Designee(s) in accordance with the terms of this Schedule 2.0. As used herein, the term “Acquisition” shall mean and refer to the purchase of the Seller Shares in exchange for payment of the Purchase Price.

 

2.1 Seller Shares. As used herein, the term “Seller Shares” shall mean the Seller Shares issuable to Buyer and/or Buyer’s Permitted Designee at the Closing and at all relevant times thereafter in exchange for the Purchase Price in accordance with the terms of this Schedule 2.0 In consideration of the Purchase Price at the Closing hereunder, Sellers shall each execute and deliver the form of assignments attached hereto in Exhibits 2.1(a)-(c) to give effect to the assignment by each Seller of their respective portion of the Seller Shares directly to Buyer (“Seller Share Assignment”), in each case free and clear of all Liens.

 

2.2 Purchase Price. As used herein, the term “Purchase Price” shall mean the sum of (i) the Closing Consideration and (ii) the Escrow Consideration.

 

2.2.1 On and subject to the terms and conditions of this Agreement and the Transaction Documents, Buyer shall pay $900,000.00 (“Closing Consideration”) in the form of immediately available U.S. cash funds, by wire transfer in equal, one-third increments to or on behalf of each of the Sellers at the Closing to the accounts specified in Exhibit 2.2.1(“Disbursement Letter”).

 

2.2.2 On and subject to the terms and conditions of this Agreement and the Transaction Documents, Buyer shall pay $460,000.00 to Sellers (“Escrow Consideration”), in equal, one-third increments to or on behalf of each of the Sellers at the Closing in the form of three equal $153,333.33 subordinate secured promissory notes in substantially the same form as the form of note attached hereto in Exhibits 2.2.2(a)-(c) (collectively, the “Escrow Notes”). The Escrow Notes shall be payable in full on or before December 31, 2019 (“Maturity Date”), and shall accrue interest at 6% per annum; provided, however, that all accrued interest shall be waived if the balances due under the Escrow Notes are paid in full as of the Maturity Date. The principal balance of the Escrow Notes issued to Park and ▇▇▇▇ (but not Gentle) shall be subject to downward adjustment in the event and to the extent that the CCS average annual EBITDA for the two years ended December 31, 2019, is less than $1,000,000 per year. Thus, for example, if the CCS average annual EBITDA as of said date is $950,000 per year, then the principal balance due under the Park and ▇▇▇▇ Escrow Notes shall be reduced by a total of $50,000, which reduction shall be allocated equally to the Park and ▇▇▇▇ Escrow Notes. Buyer shall deposit $153,333.33 in the form of immediately available U.S. cash funds in the Escrow Account, which funds shall be released to Gentle in two equal payments of 50% on the first and second anniversaries of the Closing, on and subject to this paragraph, this Agreement and the Transaction Documents.

 

2.2.3 Subject to adjustment pursuant to the preceding paragraph in the case of the Escrow Note payments to ▇▇▇▇ and Park, for avoidance of doubt, the Purchase Price shall be equal to $1,360,000, which amount shall be allocated as follows: (a) $453,333.33 to Gentle, (b) $453,333.33 to ▇▇▇▇, and (c) $453,333.33 to Park.

 

2.3 CCS Debt. Buyer hereby acknowledges that CCS is subject those certain CCS Debts evidenced by the debt instruments and agreements itemized in Schedule 3.0 hereto, which shall remain in effect as of and after the Closing. Buyer hereby agrees to execute commercially reasonable guaranty and/or assumption agreements as may be reasonably necessary in connection with the CCS Debt agreements, as well as any reasonably necessary guaranty, intercreditor and/or subordination agreements which may be required in connection with each of the foregoing. Buyer agrees to use commercially reasonable efforts to cause CCS to refinance all CCS Debts that have been personally guaranteed by one or more of the Sellers on terms which remove all such personal guarantees on or before December 31, 2019.

 

2.3.1 On and subject to the terms and conditions of this Agreement and the Transaction Documents, Buyer shall pay $179,675.48 (“Shareholder Loan Repayment”) in the form of immediately available U.S. cash funds, by wire transfer of (a) $128,675.48 to Gentle, (b) $21,500.00 to ▇▇▇▇, and (c) $29,500 to Park at the Closing to the accounts specified in the Disbursement Letter.

 

2.3.2 On and subject to the terms and conditions of this Agreement and the Transaction Documents, Buyer shall make a capital contribution of $100,000.00 to CCS (“Consultant Payment”) in the form of immediately available U.S. cash funds, by wire transfer at the Closing to the account specified in the Disbursement Letter.

 

 

EXHIBIT 2.1(a)

 

Seller ▇▇▇▇ of Sale And Share Assignment

 

STATE OF GEORGIA

 

KNOW ALL MEN BY THESE PRESENTS THAT:

 

▇▇▇▇▇ ▇. GENTLE III (“Seller”), for his pro rata portion of the Purchase Price, the receipt and sufficiency of which are hereby acknowledged by Seller, does and has GRANTED, BARGAINED, SOLD, CONVEYED, TRANSFERRED AND DELIVERED, and by these presents does GRANT, BARGAIN, SELL, CONVEY, TRANSFER AND DELIVER unto ATTIS INFRASTRUCTURE LLC (“Buyer”), free and clear of any third party claim, lien or encumbrance, all Seller’s right, title and interest in, to and under the Seller Shares owned by this Seller, which is one-third thereof. This conveyance is made pursuant the terms of that certain Stock Purchase Agreement made and entered into effective as of AUGUST 31, 2018 (the "Effective Date") between Buyer and Seller (the “SPA”), the terms of which are expressly incorporated herein and made a part hereof.

 

TO HAVE AND TO HOLD the same unto Buyer and Buyer’s successors and assigns forever.

 

Seller hereby reincorporates and reaffirms each and every representation and warranty made by Seller in Section 3 of the SPA. All covenants of the Parties as contained in the SPA which have not been fulfilled or waived as of the date hereof shall survive the execution and delivery of this instrument and shall not be merged herewith. In the event of any conflict or inconsistency between the terms of the SPA and the terms hereof, the SPA shall govern. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the SPA.

 

AND SELLER DOES HEREBY COVENANT AND AGREE to warrant and forever defend title to the Seller Shares unto Buyer and Buyer’s successors and assigns, against the claim or claims of any and all persons whatsoever to the Seller Shares.

 

IN WITNESS WHEREOF, Sellers have executed this instrument as of the Effective Date.

 

WITNESS
By:			By:
Print:			Name:	▇▇▇▇▇ ▇. Gentle, III
				Individually

CONSENT

 

The undersigned, as the duly appointed President of CCS, hereby consents to the sale and transfer of ownership of the Seller Shares as set forth herein and to the admission of Buyer as a shareholder CCS in respect of the Seller Shares assigned hereunder. So consented and agreed, as of the Effective Date.

 

WITNESS			CUSTOM CABLE SERVICES, INC.
By:			By:
Print:			Name:	▇▇▇▇ ▇▇▇▇
			Title:	President

 

 

EXHIBIT 2.1(b)

 

Seller ▇▇▇▇ of Sale And Share Assignment

 

STATE OF GEORGIA

 

KNOW ALL MEN BY THESE PRESENTS THAT:

 

▇▇▇▇ ▇▇▇▇ (“Seller”), for $300,000 in immediately available U.S. cash funds, the receipt and sufficiency of which are hereby acknowledged by Seller, does and has GRANTED, BARGAINED, SOLD, CONVEYED, TRANSFERRED AND DELIVERED, and by these presents does GRANT, BARGAIN, SELL, CONVEY, TRANSFER AND DELIVER unto ATTIS INFRASTRUCTURE LLC (“Buyer”), free and clear of any third party claim, lien or encumbrance, all Seller’s right, title and interest in, to and under the Seller Shares owned by this Seller, which is one-third thereof. This conveyance is made pursuant the terms of that certain Stock Purchase Agreement made and entered into effective as of AUGUST 31, 2018 (the "Effective Date") between Buyer and Seller (the “SPA”), the terms of which are expressly incorporated herein and made a part hereof.

 

TO HAVE AND TO HOLD the same unto Buyer and Buyer’s successors and assigns forever.

 

Seller hereby reincorporates and reaffirms each and every representation and warranty made by Seller in Section 3 of the SPA. All covenants of the Parties as contained in the SPA which have not been fulfilled or waived as of the date hereof shall survive the execution and delivery of this instrument and shall not be merged herewith. In the event of any conflict or inconsistency between the terms of the SPA and the terms hereof, the SPA shall govern. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the SPA.

 

AND SELLER DOES HEREBY COVENANT AND AGREE to warrant and forever defend title to the Seller Shares unto Buyer and Buyer’s successors and assigns, against the claim or claims of any and all persons whatsoever to the Seller Shares.

 

IN WITNESS WHEREOF, Sellers have executed this instrument as of the Effective Date.

 

WITNESS
By:			By:
Print:			Name:	▇▇▇▇ ▇▇▇▇
				Individually

 

CONSENT

 

The undersigned, as the duly appointed Chief Executive Officer of CCS, hereby consents to the sale and transfer of ownership of the Seller Shares as set forth herein and to the admission of Buyer as a shareholder CCS in respect of the Seller Shares assigned hereunder. So consented and agreed, as of the Effective Date.

 

WITNESS			CUSTOM CABLE SERVICES, INC.
By:			By:
Print:			Name:	▇▇▇▇ ▇▇▇▇
			Title:	Chief Executive Officer

 

 

EXHIBIT 2.1(c)

 

Seller ▇▇▇▇ of Sale And Share Assignment

 

STATE OF GEORGIA

 

KNOW ALL MEN BY THESE PRESENTS THAT:

 

▇▇▇▇ ▇▇▇▇ (“Seller”), for $300,000 in immediately available U.S. cash funds, the receipt and sufficiency of which are hereby acknowledged by Seller, does and has GRANTED, BARGAINED, SOLD, CONVEYED, TRANSFERRED AND DELIVERED, and by these presents does GRANT, BARGAIN, SELL, CONVEY, TRANSFER AND DELIVER unto ATTIS INFRASTRUCTURE LLC (“Buyer”), free and clear of any third party claim, lien or encumbrance, all Seller’s right, title and interest in, to and under the Seller Shares owned by this Seller, which is one-third thereof. This conveyance is made pursuant the terms of that certain Stock Purchase Agreement made and entered into effective as of AUGUST 31, 2018 (the "Effective Date") between Buyer and Seller (the “SPA”), the terms of which are expressly incorporated herein and made a part hereof.

 

TO HAVE AND TO HOLD the same unto Buyer and Buyer’s successors and assigns forever.

 

Seller hereby reincorporates and reaffirms each and every representation and warranty made by Seller in Section 3 of the SPA. All covenants of the Parties as contained in the SPA which have not been fulfilled or waived as of the date hereof shall survive the execution and delivery of this instrument and shall not be merged herewith. In the event of any conflict or inconsistency between the terms of the SPA and the terms hereof, the SPA shall govern. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the SPA.

 

AND SELLER DOES HEREBY COVENANT AND AGREE to warrant and forever defend title to the Seller Shares unto Buyer and Buyer’s successors and assigns, against the claim or claims of any and all persons whatsoever to the Seller Shares

 

IN WITNESS WHEREOF, Sellers have executed this instrument as of the Effective Date.

 

WITNESS
By:			By:
Print:			Name:	▇▇▇▇ ▇▇▇▇
				Individually

 

CONSENT

 

The undersigned, as the duly appointed President of CCS, hereby consents to the sale and transfer of ownership of the Seller Shares as set forth herein and to the admission of Buyer as a shareholder CCS in respect of the Seller Shares assigned hereunder. So consented and agreed, as of the Effective Date.

 

WITNESS			CUSTOM CABLE SERVICES, INC.
By:			By:
Print:			Name:	▇▇▇▇ ▇▇▇▇
			Title:	President

 

Schedules to Stock Purchase Agreement

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