ASSET PURCHASE AGREEMENT between WILLIAM THOMASON, RICHARD JONES, AND THOMASON JONES COMPANY, LLC and DRAGONFLY ENERGY CORP. dated as of April 22, 2022
Exhibit 10.28
between
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
AND ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY, LLC
and
DRAGONFLY ENERGY CORP.
dated as of
April 22, 2022
TABLE OF CONTENTS
| PAGES | ||||
| ARTICLE I | PURCHASE AND SALE | 1 | ||
| Section 1.01 | Purchase and Sale of Assets | 1 | ||
| Section 1.02 | No Liabilities | 1 | ||
| Section 1.03 | Purchase Price | 2 | ||
| Section 1.04 | Allocation of Purchase Price | 2 | ||
| Section 1.05 | Earn Out | 2 | ||
| Section 1.06 | Withholding Tax | 2 | ||
| ARTICLE II | CLOSING | 2 | ||
| Section 2.01 | Closing | 2 | ||
| Section 2.02 | Closing Deliverables | 2 | ||
| ARTICLE III | REPRESENTATIONS AND WARRANTIES OF SELLER | 3 | ||
| Section 3.01 | Organization and Authority of Seller; Enforceability | 4 | ||
| Section 3.02 | No Conflicts; Consents | 4 | ||
| Section 3.03 | Title to Purchased Assets | 4 | ||
| Section 3.04 | Condition of Assets | 4 | ||
| Section 3.05 | Inventory | 4 | ||
| Section 3.06 | Intellectual Property | 4 | ||
| Section 3.07 | Compliance With Laws | 5 | ||
| Section 3.08 | Legal Proceedings | 5 | ||
| Section 3.09 | Brokers | 5 | ||
| Section 3.10 | Full Disclosure | 5 | ||
| ARTICLE IV | REPRESENTATIONS AND WARRANTIES OF BUYER | 6 | ||
| Section 4.01 | Organization and Authority of Buyer; Enforceability | 6 | ||
| Section 4.02 | No Conflicts; Consents | 6 | ||
| Section 4.03 | Legal Proceedings | 6 | ||
| Section 4.04 | Brokers | 6 | ||
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| ARTICLE V | COVENANTS | 6 | ||
| Section 5.01 | Public Announcements | 6 | ||
| Section 5.02 | Transfer Taxes | 7 | ||
| Section 5.03 | Further Assurances | 7 | ||
| ARTICLE VI | INDEMNIFICATION | 7 | ||
| Section 6.01 | Survival | 7 | ||
| Section 6.02 | Indemnification By Seller | 7 | ||
| Section 6.03 | Indemnification By Buyer | 8 | ||
| Section 6.04 | Indemnification Procedures | 8 | ||
| Section 6.05 | Tax Treatment of Indemnification Payments | 8 | ||
| Section 6.06 | Effect of Investigation | 8 | ||
| Section 6.07 | Cumulative Remedies | 8 | ||
| ARTICLE VII | MISCELLANEOUS | 9 | ||
| Section 7.01 | Expenses | 9 | ||
| Section 7.02 | Notices | 9 | ||
| Section 7.03 | Headings | 9 | ||
| Section 7.04 | Severability | 9 | ||
| Section 7.05 | Entire Agreement | 10 | ||
| Section 7.06 | Successors and Assigns | 10 | ||
| Section 7.07 | No Third-party Beneficiaries | 10 | ||
| Section 7.08 | Amendment and Modification | 10 | ||
| Section 7.09 | Waiver | 10 | ||
| Section 7.10 | Governing Law | 10 | ||
| Section 7.11 | Submission to Jurisdiction | 10 | ||
| Section 7.12 | Waiver of Jury Trial | 10 | ||
| Section 7.13 | Specific Performance | 10 | ||
| Section 7.14 | Counterparts | 10 | ||
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This Asset Purchase Agreement (this “Agreement”), dated as of April 22, 2022, is entered into between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇”), ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“▇▇▇▇▇”), and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Company, LLC (“TJC”), a Washington Limited Liability corporation (individually, each a Seller, and collectively “Seller”) and Dragonfly Energy Corp., a Nevada corporation (“Buyer”).
RECITALS
WHEREAS, Seller wishes to sell to Buyer, and ▇▇▇▇▇ wishes to purchase from Seller, the rights of Seller to the Purchased Assets (as defined herein), subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.01 Purchase and Sale of Assets. Subject to the terms and conditions set forth herein, Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase from Seller, all of Seller’s right, title and interest in the assets set forth on Schedule 1.01 of the disclosure schedules (“Disclosure Schedules”) attached hereto (the “Purchased Assets”), free and clear of any mortgage, pledge, lien, charge, security interest and claims or other encumbrance whether known or unknown to Seller as of the date of this Agreement (“Encumbrance”).
Section 1.02 No Liabilities. Buyer shall not assume any liabilities or obligations of Seller’s business of any kind, whether known or unknown, contingent, matured or otherwise, whether currently existing or hereinafter arising.
Section 1.03 Purchase Price. The aggregate purchase price for the Purchased Assets, not to exceed seven hundred thousand dollars ($700,000) for Inventory as listed in Schedule 1.01, will be finalized as set forth herein (the “Purchase Price”). The Buyer shall pay the Purchase Price to Seller in exchange for Seller’s delivery of the Purchased Assets with certain events occurring after signature of this Agreement as described herein.
Options shall be issued to each of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ under terms described in Option Agreements entered into with each of them, in accordance with section 7(a) of the 2021 Stock Incentive Plan, attached in Schedule 1.03 of the Disclosure Schedules. Issuance of the Options is subject to execution of the Employment Offers by each of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ and shall occur as soon as possible after each of ▇▇▇▇▇▇▇▇’▇ and ▇▇▇▇▇’ employment start dates. Execution of the Employment Offers is a pre-condition for finalizing this Agreement.
Payment of the cash portion of the Purchase Price is subject to itemization, listing, invoicing and delivery of Schedule 1.01 Inventory items by Seller and then completion by Buyer upon receipt of an audit and final count of such Schedule 1.01 Inventory items, which audit and final count shall be completed in a timely and efficient manner. The cash portion of the Purchase Price shall be in the form of a cashier’s check payable to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Company, LLC no later than August 15, 2022.
Section 1.04 Allocation of Purchase Price. Seller and ▇▇▇▇▇ agree to allocate the Purchase Price among the Purchased Assets for all purposes (including tax and financial accounting) in accordance with Schedule 1.04 of the Disclosure Schedules; those amounts due for Completed Products and Components will be determined upon Buyer’s completion of a final count of Schedule 1.01 items delivered by Seller. Buyer and Seller shall file all tax returns (including amended returns and claims for refund) and information reports in a manner consistent with such allocation.
Section 1.05 Earn Out. If, within twenty-four months of this Agreement Dragonfly Energy Corp. realizes three million dollars ($3,000,000) in gross sales of product either a) sold under the Wakespeed brand and/or b) which incorporates any portion of Purchased IP as listed in Schedule 3.06(b) to this Agreement, then the Company will pay to ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ each the amount of one million dollars ($1,000,000) as soon as reasonably practicable. This payment may be made in cash or common stock of Dragonfly Energy Corp, in the sole discretion of the Company. If the payment is made in cash, it shall be made out as checks to each of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ respectively. From and after Closing, the Company shall implement a system, if not already in place, which allows for the accurate tracking of all products to be sold under the Wakespeed brand as well as any product which incorporates Purchased IP referenced in Schedule 3.06(b).
Section 1.06 Withholding Tax. Buyer shall be entitled to deduct and withhold from the Purchase Price all taxes that Buyer may be required to deduct and withhold under any applicable tax law. All such withheld amounts shall be treated as delivered to Seller hereunder.
ARTICLE II
CLOSING
Section 2.01 Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place as described in this document with the execution of this Agreement as dated deemed to be the closing date (the “Closing Date”) occurring at the offices of Dragonfly, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇. The consummation of the transactions contemplated by this Agreement shall be deemed to occur at 12:01 a.m. on the Closing Date except as otherwise described herein. agreement.
Section 2.02 Closing Deliverables.
(a) At the Closing, Seller shall deliver to Buyer the following:
(i) a bill of sale in the form of Exhibit A hereto (the “Bill of Sale”) and duly executed by ▇▇▇▇▇▇, transferring the Purchased Assets to Buyer;
(ii) an assignment and assumption agreement in the form of Exhibit B hereto (the “Assignment and Assumption Agreement”) and duly executed by Seller, effecting the assignment to and assumption by Buyer of the Purchased Assets and the Assumed Liabilities;
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(iii) assignments in the form of Exhibit C hereto (the “Intellectual Property Assignments”) and duly executed by Seller, transferring all of Seller’s right, title and interest in and to the trademark registrations and applications, patents and patent applications, copyright registrations and applications, and domain name registrations included in the Purchased Assets to Buyer;
(iv) a certificate of the Secretary or Assistant Secretary (or equivalent officer) of Seller certifying as to (A) the resolutions of the board of directors of Seller, duly adopted and in effect, which authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby, and (B) the names and signatures of the officers of Seller authorized to sign this Agreement and the documents to be delivered hereunder;
(v) such other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Buyer, as may be required to give effect to this Agreement; and
(vi) Washington State Department of Revenue Request for Tax Status Form completed by Seller.
(vii) Accepted Offers of Employment from each of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇.
(viii) A signed release from American Power Systems, Inc. (“APS”) releasing ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Company, Inc. from its Agreement with APS dated July 17, 2019. This signed release shall be deemed executed prior to the signing of this Agreement.
(b) At the Closing, Buyer shall deliver to Seller the following:
(i) the Assignment and Assumption Agreement duly executed by ▇▇▇▇▇; and
(ii) a certificate of the Secretary or Assistant Secretary (or equivalent officer) of Buyer certifying as to (A) the resolutions of the board of directors of Buyer, duly adopted and in effect, which authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby, and (B) the names and signatures of the officers of Buyer authorized to sign this Agreement and the documents to be delivered hereunder.
(iii) Offers of Employment signed by ▇▇▇▇▇ ▇▇▇▇▇▇ on behalf of Dragonfly Energy Corp. Inc.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that the statements contained in this Article III are true and correct as of the date hereof to the best of Seller’s knowledge. For purposes of this Article III, “Seller’s knowledge,” “knowledge of Seller” and any similar phrases shall mean the actual knowledge of Seller.
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Section 3.01 Organization and Authority of Seller; Enforceability. Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Washington. Seller has full corporate power and authority to enter into this Agreement and the documents to be delivered hereunder, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Seller of this Agreement and the documents to be delivered hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Seller. This Agreement and the documents to be delivered hereunder have been duly executed and delivered by ▇▇▇▇▇▇, and (assuming due authorization, execution and delivery by ▇▇▇▇▇) this Agreement and the documents to be delivered hereunder constitute legal, valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms.
Section 3.02 No Conflicts; Consents. The execution, delivery and performance by Seller of this Agreement and the documents to be delivered hereunder, and the consummation of the transactions contemplated hereby, do not and will not: (a) violate or conflict with the articles of organization, by-laws or other organizational documents of Seller; (b) violate or conflict with any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Seller or the Purchased Assets; (c) conflict with, or result in (with or without notice or lapse of time or both) any violation of, or default under, or give rise to a right of termination, acceleration or modification of any obligation or loss of any benefit under any contract or other instrument to which Seller is a party or to which any of the Purchased Assets are subject; or (d) result in the creation or imposition of any Encumbrance on the Purchased Assets. No consent, approval, waiver or authorization is required to be obtained by Seller from any person or entity (including any governmental authority) in connection with the execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby.
Section 3.03 Title to Purchased Assets. Seller owns and has good title to the Purchased Assets, free and clear of Encumbrances.
Section 3.04 Condition of Assets. The tangible personal property included in the Purchased Assets is in good condition and is adequate for the uses to which it is being put, and none of such tangible personal property is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost.
Section 3.05 Inventory. All inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories included in the Purchased Assets consist of a quality and quantity usable and salable in the ordinary course of business.
Section 3.06 Intellectual Property.
(a) “Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (i) trademarks and service marks, including all applications and registrations and the goodwill connected with the use of and symbolized by the foregoing; (ii) copyrights, both registered and unregistered, including all applications and registrations related to the foregoing; (iii) trade secrets and confidential know-how; (iv) patents and patent applications; (v) websites and internet domain name registrations with the exception of “▇▇▇▇▇▇▇▇.▇▇▇”; and (vi) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present and future infringement and any other rights relating to any of the foregoing). For the avoidance of doubt, Intellectual Property includes source code, product designs, and manufacturing know how.
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(b) Schedule 306.(b) of the Disclosure Schedules defines and lists all Intellectual Property included in the Purchased Assets (“Purchased IP”). Seller owns or has adequate, valid and enforceable rights to use all the Purchased IP, free and clear of Encumbrances. Seller is not bound by any outstanding judgment, injunction, order or decree restricting the use of the Purchased IP, or restricting the licensing thereof to any person or entity. With respect to the registered Intellectual Property listed on Section 3.06(b) of the Disclosure Schedules, (i) all such Intellectual Property is valid, subsisting and in full force and effect and (ii) Seller has paid all maintenance fees and made all filings required to maintain Seller’s ownership thereof. For all such registered Intellectual Property, Section 3.06(b) of the Disclosure Schedules lists (A) the jurisdiction where the application or registration is located, (B) the application or registration number, and (C) the application or registration date.
(c) To the best of Seller’s knowledge, Seller’s prior and current use of the Purchased IP has not and does not infringe, violate, dilute or misappropriate the Intellectual Property of any person or entity and other than as disclosed, there are no claims pending or threatened by any person or entity with respect to the ownership, validity, enforceability, effectiveness or use of the Purchased IP. To the best of Seller’s knowledge, no person or entity is infringing, misappropriating, diluting or otherwise violating any of the Purchased IP, and neither Seller nor any affiliate of Seller has made or asserted any claim, demand or notice against any person or entity alleging any such infringement, misappropriation, dilution or other violation.
Section 3.07 Compliance With Laws. To the best of Seller’s knowledge, ▇▇▇▇▇▇ has complied, and is now complying, with all applicable federal, state and local laws and regulations applicable to ownership and use of the Purchased Assets.
Section 3.08 Legal Proceedings. There is no claim, action, suit, proceeding or governmental investigation (“Action”) of any nature pending or, to Seller’s knowledge, threatened against or by Seller (a) relating to or affecting the Purchased Assets; or (b) that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. No event has occurred, nor to Seller’s knowledge do circumstances exist that may give rise to, or serve as a basis for, any such Action.
Section 3.09 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller.
Section 3.10 Full Disclosure. To Seller’s best knowledge, no representation or warranty by Seller in this Agreement and no statement contained in the Disclosure Schedules to this Agreement or any certificate or other document furnished or to be furnished to Buyer pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that the statements contained in this Article IV are true and correct as of the date hereof. For purposes of this Article IV, “▇▇▇▇▇’s knowledge,” “knowledge of Buyer” and any similar phrases shall mean the actual or constructive knowledge of any director or officer of Buyer, after due inquiry.
Section 4.01 Organization and Authority of Buyer; Enforceability. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada. ▇▇▇▇▇ has full corporate power and authority to enter into this Agreement and the documents to be delivered hereunder, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by ▇▇▇▇▇ of this Agreement and the documents to be delivered hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Buyer. This Agreement and the documents to be delivered hereunder have been duly executed and delivered by ▇▇▇▇▇, and (assuming due authorization, execution and delivery by Seller) this Agreement and the documents to be delivered hereunder constitute legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms.
Section 4.02 No Conflicts; Consents. The execution, delivery and performance by Buyer of this Agreement and the documents to be delivered hereunder, and the consummation of the transactions contemplated hereby, do not and will not: (a) violate or conflict with the certificate of incorporation, by-laws or other organizational documents of Buyer; or (b) violate or conflict with any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Buyer. No consent, approval, waiver or authorization is required to be obtained by Buyer from any person or entity (including any governmental authority) in connection with the execution, delivery and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby.
Section 4.03 Legal Proceedings. There is no Action of any nature pending or, to ▇▇▇▇▇’s knowledge, threatened against or by ▇▇▇▇▇ that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. No event has occurred nor circumstances exist that may give rise to, or serve as a basis for, any such Action.
Section 4.04 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer.
ARTICLE V
COVENANTS
Section 5.01 Public Announcements. Unless otherwise required by applicable law, neither party shall make any public announcements regarding this Agreement or the transactions contemplated hereby without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed).
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Section 5.02 Transfer Taxes. All transfer, documentary, sales, use, stamp, registration, value added and other such taxes and fees (including any penalties and interest) incurred in connection with this Agreement and the documents to be delivered hereunder shall be borne and paid by Seller when due. Seller shall, at its own expense, timely file any tax return or other document with respect to such taxes or fees (and Buyer shall cooperate with respect thereto as necessary).
Section 5.03 Further Assurances. Following the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the documents to be delivered hereunder.
ARTICLE VI
INDEMNIFICATION
Section 6.01 Survival. All representations, warranties, covenants and agreements contained herein and all related rights to indemnification shall survive for a period of one year following Closing .
Section 6.02 Indemnification By Seller. Seller shall defend, indemnify and hold harmless Buyer, its affiliates and their respective stockholders, directors, officers and employees from and against all claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including attorneys’ fees and disbursements, arising from or relating to:
(a) any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement or any document to be delivered hereunder;
(b) any and all liabilities of TJC;
(c) any and all litigation arising after the execution of this agreement, against TJC, whether or not Dragonfly is named a party to the litigation;
(d) any and all liabilities of ▇▇▇▇▇▇▇▇;
(e) any and all litigation arising after the execution of this agreement, against ▇▇▇▇▇▇▇▇[, whether or not Dragonfly is named a party to the litigation;
(f) any and all liabilities of ▇▇▇▇▇;
(g) any and all litigation arising after the execution of this agreement, against ▇▇▇▇▇, whether or not Dragonfly is named a party to the litigation; or
(h) liabilities arising out of the business activity of all Sellers;
(i) any litigation or liability relating to the Purchased Assets that was incurred or accrued before Closing;
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(j) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement or any document to be delivered hereunder.
Section 6.03 Indemnification By Buyer. Buyer shall defend, indemnify and hold harmless Seller, its affiliates and their respective stockholders, directors, officers and employees from and against all claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including attorneys’ fees and disbursements, arising from or relating to:
(a) any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement or any document to be delivered hereunder;
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement or any document to be delivered hereunder.
(c) any litigation or liability relating to the Purchased Assets that was incurred or accrued after Closing.
Section 6.04 Indemnification Procedures. Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification (the “Indemnified Party”) shall promptly provide written notice of such claim to the other party (the “Indemnifying Party”). In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any Action by a person or entity who is not a party to this Agreement, the Indemnifying Party, at its sole cost and expense and upon written notice to the Indemnified Party, may assume the defense of any such Action with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall be entitled to participate in the defense of any such Action, with its counsel and at its own cost and expense. If the Indemnifying Party does not assume the defense of any such Action, the Indemnified Party may, but shall not be obligated to, defend against such Action in such manner as it may deem appropriate, including, but not limited to, settling such Action, after giving notice of it to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate and no action taken by the Indemnified Party in accordance with such defense and settlement shall relieve the Indemnifying Party of its indemnification obligations herein provided with respect to any damages resulting therefrom. The Indemnifying Party shall not settle any Action without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed).
Section 6.05 Tax Treatment of Indemnification Payments. All indemnification payments made by the parties under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for tax purposes, unless otherwise required by law.
Section 6.06 Effect of Investigation. ▇▇▇▇▇’s right to indemnification or other remedy based on the representations, warranties, covenants and agreements of Seller contained herein will not be affected by any investigation conducted by Buyer with respect to, or any knowledge acquired by Buyer at any time, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement.
Section 6.07 Cumulative Remedies. The rights and remedies provided in this Article VI are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
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ARTICLE VII
MISCELLANEOUS
Section 7.01 Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses except that the Buyer shall bear a) the costs of packaging and shipping the Purchased Assets required to be sent from Seller’s business location(s) to that of Buyer and b) the costs of re-assigning patents from Seller to Buyer.
Section 7.02 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 7.02):
| If to Seller: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Company, LLC |
| E-mail: | |
| Attention: | |
| with a copy to: | ▇▇▇▇▇ ▇▇▇▇▇▇ Law, PLLC |
| E-mail: | |
| Attention: | |
| If to Buyer: | Dragonfly Energy Corp. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ E-mail: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel |
Section 7.03 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Section 7.04 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
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Section 7.05 Entire Agreement. This Agreement and the documents to be delivered hereunder constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and the documents to be delivered hereunder, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.
Section 7.06 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder.
Section 7.07 No Third-party Beneficiaries. Except as provided in Article VI, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 7.08 Amendment and Modification. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.
Section 7.09 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Section 7.10 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction).
Section 7.11 Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of Nevada in each case located in the city of Reno and county of Washoe, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Section 7.12 Waiver of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
Section 7.13 Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.
Section 7.14 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
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| ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY, LLC | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Title: | Member | |
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| DRAGONFLY ENERGY CORP. | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: | Chief Executive Officer | |
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