UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
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Date of Report (Date of earliest event
reported): December 29, 2015
REDHAWK HOLDINGS CORP.
(Exact name of registrant as specified
in its charter)
Nevada
(State or other jurisdiction of incorporation)
000-54323
(Commission file number)
20-3866475
(I.R.S. Employer Identification No.)
219 Chemin Metairie Road, Youngsville,
LA 70592
(Address of principal executive offices)(Zip
Code)
(337) 269-5933
(Company's telephone number, including
area code)
N/A
(Former name or former
address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 2.01. Completion of Acquisition or
Disposition of Assets.
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1. |
On December 31, 2015, RedHawk Holdings Corp. (the “Company”) acquired 280,000 Class A Units of fully paid, non-assessable units of limited liability company interests in Towers Hotels Fund 2013, LLC (the “Units”) from Beechwood Properties, LLC (“Beechwood”), an entity owned and controlled by G. Darcy Klug, the Chief Financial Officer of the Company, for $625,000, as evidenced by that certain Assignment of Member’s LLC Interest, dated December 31, 2015, by and between Beechwood and RedHawk Land & Hospitality, LLC (the “Assignment of Member’s LLC Interest”). The purchase price was paid by the Company with the issuance of 625 shares of the Company’s Series A Preferred Stock (par value of $1,000 per share and stated value equal to $1,000 per share) (“Series A Preferred Stock”). The Series A Preferred Stock shares were issued in reliance upon an exemption provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”). The purchase price of the Units was determined by an independent third party valuation. |
The
above summary of the Assignment of Member’s LLC Interest does
not purport to be complete and is qualified in its entirety by the Assignment of Member’s LLC Interest,
a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
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2. |
On December 31,
2015, the Company acquired certain residential real estate rental property from Beechwood for $300,000, consisting of
$35,000 in land costs and $265,000 in buildings and improvements, as evidenced by that certain Act of Sale, dated
November 13, 2015, by and between Beechwood and RedHawk Land & Hospitality, LLC (the “Act of
Sale”). The purchase price was paid by the Company with the issuance of 300 shares of Series A Preferred Stock
and the purchase price was determined by an independent third party appraisal. The Series A Preferred Stock shares were
issued in reliance upon an exemption provided by Section 4(a)(2) of the Securities Act. The property bears the municipal
address of 219 Chemin Metairie Road, Youngsville, Louisiana 70592 and will be initially used as the Company’s
corporate offices. |
The
above summary of the Act of Sale does not purport to be complete and is qualified in its entirety by the Act of Sale, a copy of
which is attached as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.
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3. |
On December 30, 2015, Beechwood transferred to the Company $1,862,049.80 of cash and marketable securities in exchange for 1,000 shares of the Company’s newly designated Series B Preferred Stock (par value of $1,000 per share and stated value equal to $1,000 per share) (“Series B Preferred Stock”) and the Company’s assumption of the principal amount of a $1,130,000 line of credit payable to Regions Bank (the “Note”), as evidenced by that certain Assignment of Securities with Assumption of Securities Based Line of Credit, dated December 30, 2015, by and between Beechwood and the Company (the “Assignment of Securities with Assumption of Securities Based Line of Credit”). The Note is dated September 4, 2015, had a principal balance of $980,000 on December 30, 2015, accrues interest at one-month LIBOR plus 3% and matures in September 2016. The Series B Preferred Stock shares were issued in reliance upon an exemption provided by Section 4(a)(2) of the Securities Act. |
The
above summary of the Assignment of Securities with Assumption of Securities Based Line of Credit does
not purport to be complete and is qualified in its entirety by the Assignment of Securities with Assumption of Securities
Based Line of Credit, a copy of which is attached as Exhibit 10.3 to this Current Report
on Form 8-K and incorporated herein by reference.
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4. |
On December 31, 2015, the Company completed the acquisition of certain tangible and intangible high-quality medical device assets, including the Disintegrator™ Insulin Needle Destruction Unit (the “NDD”) and the Carotid Artery Non-Contact Thermometer, in exchange for 60,000,000 restricted shares (the “Restricted Shares”) of the Company’s common stock, as evidenced by that certain Asset Purchase Agreement, dated December 31, 2015, by and among Big Horse Holdings, Inc., Jason M. Roth, and RedHawk Medical Products & Services, LLC (the “Asset Purchase Agreement”). The Restricted Shares are subject to achievement of certain product-development milestones as described therein. |
The
above summary of the Asset Purchase Agreement does not purport to be complete and
is qualified in its entirety by the Asset Purchase Agreement, a copy of which is attached
as Exhibit 10.4 to this Current Report on Form 8-K and incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity
Securities.
On November 12, 2015, the Company entered into
a $100,000 line of credit loan agreement with Beechwood. On December 31, 2015, Beechwood converted all of the then-outstanding
principal and accrued interest balance into 100 shares of the Company’s Series A Preferred Stock, pursuant to that certain
Commercial Note Line of Credit, dated November 12, 2015, by and between Beechwood and the Company (the “Commercial Note
Line of Credit”). The Series A Preferred Stock shares were issued in reliance upon an exemption provided by Section 4(a)(2)
of the Securities Act.
The above
summary of the Commercial Note Line of Credit does not purport to be complete and
is qualified in its entirety by the Commercial Note Line of Credit, a copy of which
is attached as Exhibit 10.5 to this Current Report on Form 8-K and incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation
or Bylaws; Change in Fiscal Year.
On December 29, 2015, pursuant to a Certificate
of Designation of Series B Preferred Stock filed with the Nevada Secretary of State, the Company designated 1,000 shares of the
Company’s authorized preferred stock as Series B Preferred Stock. The holders of the Series B Preferred Stock are entitled
to receive cumulative dividends at a rate of 5% per annum, payable quarterly in cash, or, at the Company’s option, such dividends
shall be accreted to, and increase, the stated value of the issued Series B Preferred Stock (“PIK”). Holders
of the Series B Preferred Stock are entitled to votes on all matters submitted to stockholders at a rate of 10 votes for each share
of common stock into which the Series B Preferred Stock may be converted. After six months from issuance, each share of Series
B Preferred Stock is convertible at the option of the holder into the number of shares of common stock equal to the quotient of
the stated value, as adjusted for PIK dividends, by $0.01, as adjusted for stock splits and dividends.
A copy of the Certificate of Designation of
Series B Preferred Stock is attached as Exhibit 3.1 to this Current Report on Form 8-k and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
Exhibit No. |
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Description |
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3.1 |
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Certificate of Designation of Series B Preferred Stock. |
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10.1 |
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Assignment of Member’s LLC Interest, dated December 31, 2015, by and between Beechwood Properties, LLC and RedHawk Land & Hospitality, LLC. |
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10.2 |
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Act of Sale, dated November 13, 2015, by and between Beechwood
Properties, LLC and RedHawk Land & Hospitality, LLC. |
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10.3 |
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Assignment of Securities with Assumption of Securities Based Line of Credit, dated December 30, 2015, by and between Beechwood Properties, LLC and RedHawk Holdings Corp. |
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10.4 |
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Asset Purchase Agreement, dated December 31, 2015, by and among Big Horse Holdings, Inc., Jason M. Roth, and RedHawk Medical Products & Services, LLC |
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10.5 |
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Commercial Note Line of Credit, dated November 12, 2015, by and between Beechwood Properties, LLC and RedHawk Holdings Corp. |
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99.1 |
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Press Release issued by RedHawk Holdings Corp. dated January 4, 2016. |
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
Date: January 5, 2016 |
RedHawk Holdings Corp. |
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By: |
/s/ Daniel J. Schreiber |
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Name: |
Daniel J. Schreiber |
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Title: |
Chief Executive Officer |
EXHIBIT 3.1
REDHAWK HOLDINGS CORP.
CERTIFICATE OF DESIGNATION
OF
SERIES B PREFERRED STOCK
Section 1. Definitions.
For the purposes hereof, the following terms shall have the following meanings:
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or
any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to
close.
“Common
Stock” means the Company’s common stock, par value $0.001 per share, and stock of any other class of securities
into which such securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or its Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other
instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to
receive, Common Stock.
“Company”
shall mean RedHawk Holdings Corp., a Nevada corporation.
“Conversion
Date” shall have the meaning set forth in Section 6(a).
“Conversion
Rate” shall have the meaning set forth in Section 6(b).
“Conversion
Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Series B Preferred
in accordance with the terms hereof.
“Holder”
shall have the meaning given such term in Section 2.
“Junior
Securities” means the Common Stock and all other Common Stock Equivalents of the Company other than those securities
which are explicitly senior or pari passu to the Series B Preferred in dividend rights or liquidation preference.
“Liquidation”
shall have the meaning set forth in Section 5.
“Notice
of Conversion” shall have the meaning set forth in Section 6(a).
“Original
Issue Date” means the date of the first issuance of the Series B Preferred shares in question regardless of the number
of transfers of any particular shares of Series B Preferred and regardless of the number of certificates which may be issued to
evidence such Series B Preferred.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Series
B Preferred” shall have the meaning set forth in Section 2.
“Securities”
means the Series B Preferred and the Underlying Shares.
“Share
Delivery Date” shall have the meaning set forth in Section 6(c)(i).
“Stated
Value” shall have the meaning set forth in Section 2, as the same may be increased from time to time pursuant to Section
3(a).
“Trading
Day” means a day on which the New York Stock Exchange is open for business.
“Transfer
Agent” means VStock Transfer, LLC and any successor transfer agent of the Company.
“Underlying
Shares” means the shares of Common Stock issued and issuable upon conversion of the Series B Preferred in accordance
with the terms of this Certificate of Designation.
Section 2. Designation,
Amount and Par Value. The series of preferred stock shall be designated as the Series B Preferred Stock (the “Series
B Preferred”) and the number of shares so designated shall be one thousand (1,000) (which shall not be subject to increase
without the written consent of all of the holders of the Series B Preferred (each, a “Holder” and collectively,
the “Holders”)). Each share of Series B Preferred shall have a par value of $1,000.00 per share and a stated
value equal to $1,000.00 per share, subject to increase as set forth in Section 3(a) below (the “Stated Value”).
Section 3. Dividends.
(a) Dividends in
Cash or in Kind. Holders shall be entitled to receive, and the Company shall pay, cumulative dividends at the rate per share
(as a percentage of the Stated Value per share) of 5.0% per annum, payable quarterly within 30 days of January 1, April 1, July
1 and October 1 of each year, beginning on the first such date after the Original Issue Date and on each Conversion Date (with
respect only to Preferred Stock being converted) (each such date, a “Dividend Payment Date”) (if any Dividend
Payment Date is not a Trading Day, the applicable payment shall be due on the next succeeding Trading Day) in cash, or at the Company’s
option, such dividends shall be accreted to, and increase, the outstanding Stated Value.
(b) Dividend Calculations.
Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods,
and shall accrue daily commencing on the Original Issue Date, and shall be deemed to accrue from such date whether or not earned
or declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of
dividends. Dividends shall cease to accrue with respect to any Series B Preferred converted as provided for herein. Except as otherwise
provided herein, if at any time the Company pays dividends partially in cash and partially through accretion to Stated Value, then
such payment shall be distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder
on such Dividend Payment Date.
Section 4. Voting
Rights. Except as otherwise provided herein or as otherwise required by law, holders of Series B Preferred shall vote together
with the Common Stock on all matters submitted to stockholders. Each Series B Preferred share shall be entitled to ten (10) votes
on all matters submitted to a vote of the stockholders of the Company for each share of Common Stock into which such Series B Preferred
could have been converted on the last Dividend Payment Date. Also, as long as any shares of Series B Preferred are outstanding,
the Company shall not, without the affirmative vote of a majority of the Holders of the then outstanding shares of the Series B
Preferred, alter or change adversely the powers, preferences or rights given to the Series B Preferred (including by issuance of
more senior preferred stock) or alter or amend this Certificate of Designation.
Section 5. Liquidation.
Upon any liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary (a “Liquidation”),
the Holders shall be entitled to receive out of the assets, whether capital or surplus, of the Company an amount equal to the Stated
Value of the Series B Preferred and any other fees or liquidated damages then due and owing thereon under this Certificate of Designation,
for each share of Series B Preferred, before any distribution or payment shall be made to the holders of any Junior Securities,
and if the assets of the Company shall be insufficient to pay in full such amounts, then the entire assets to be distributed to
the Holders shall be ratably distributed among the Holders in accordance with the respective amounts that would be payable on such
shares if all amounts payable thereon were paid in full.
Section 6. Conversion.
a) Conversions at
Option of Holder. Each share of Series B Preferred shall be convertible, at any time following the six (6) month anniversary
of the Original Issue Date, and from time to time from and thereafter at the option of the Holder thereof into Common Stock at
the Conversion Rate. Holders shall effect conversions by providing the Company with the form of conversion notice attached hereto
as Annex A (a “Notice of Conversion”). Each Notice of Conversion shall specify the number of shares of
Series B Preferred to be converted, the number of shares of Series B Preferred owned prior to the conversion at issue, the number
of shares of Series B Preferred owned subsequent to the conversion at issue and the date on which such conversion is to be effected,
which date may not be prior to the date the applicable Holder delivers such Notice of Conversion to the Company (such date, the
“Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall
be the date that such Notice of Conversion to the Company is deemed delivered hereunder. No ink-original Notice of Conversion shall
be required. The calculations and entries set forth in the Notice of Conversion shall control in the absence of manifest or mathematical
error. To effect conversions of shares of Series B Preferred, a Holder shall not be required to surrender the certificate(s) representing
the shares of Series B Preferred to the Company unless all of the shares of Series B Preferred represented thereby are so converted,
in which case such Holder shall deliver the certificate representing such shares of Series B Preferred promptly following the Conversion
Date at issue. Shares of Series B Preferred converted into Common Stock or redeemed in accordance with the terms hereof shall be
canceled and shall not be reissued.
b) Conversion Rate.
Each share of Series B Preferred shall be convertible into the number of shares of Common Stock equal to the quotient of: (1) the
Stated Value, as may be increased from time to time pursuant to Section 3(a), by (2) $0.010 (the “Conversion Rate”).
c) Mechanics of
Conversion
i. Delivery of Conversion
Shares Upon Conversion. Not later than five (5) Trading Days after each Conversion Date (the “Share Delivery Date”),
the Company shall deliver, or cause to be delivered, to the converting Holder the number of Conversion Shares being acquired upon
the conversion of the Series B Preferred. If the Common Stock is listed or quoted for public trading and upon request of the Holder,
the Company shall deliver the Conversion Shares required to be delivered by the Company under this Section 6 electronically through
the Depository Trust Company or another established clearing corporation performing similar functions.
ii. Failure to Deliver
Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as directed
by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Company at
any time on or before its receipt of such Conversion Shares, to rescind such Conversion, in which event the Company shall promptly
return to the Holder any original Series B Preferred certificate delivered to the Company and the Holder shall promptly return
to the Company the Conversion Shares issued to such Holder pursuant to the rescinded Conversion Notice.
iii. Obligation Absolute.
The Company’s obligation to issue and deliver the Conversion Shares upon conversion of Series B Preferred in accordance with
the terms hereof are absolute and unconditional, irrespective of any action or inaction by a Holder to enforce the same, any waiver
or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same,
or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by such Holder or any other
Person of any obligation to the Company or any violation or alleged violation of law by such Holder or any other person, and irrespective
of any other circumstance which might otherwise limit such obligation of the Company to such Holder in connection with the issuance
of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Company of
any such action that the Company may have against such Holder. In the event a Holder shall elect to convert any or all of the Series
B Preferred, the Company may not refuse conversion based on any claim that such Holder or anyone associated or affiliated with
such Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on
notice to Holder, restraining and/or enjoining conversion of all or part of the Series B Preferred of such Holder shall have been
sought and obtained. In the absence of such injunction, the Company shall issue Conversion Shares and, if applicable, cash, upon
a properly noticed conversion.
iv. Reservation of
Shares Issuable Upon Conversion. The Company covenants that it will at all times reserve and keep available out of its authorized
and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Series B Preferred, each as herein
provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the
other holders of the Series B Preferred), not less than such aggregate number of shares of the Common Stock as shall be issuable
upon the conversion of the then outstanding shares of Series B Preferred. The Company covenants that all shares of Common Stock
that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.
v. Fractional Shares.
No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Series B Preferred. As
to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Company shall at
its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by
the Conversion Rate or round up to the next whole share.
vi. Transfer Taxes
and Expenses. The issuance of Conversion Shares on conversion of this Series B Preferred shall be made without charge to any
Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares,
provided that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance
and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares of Series B
Preferred and the Company shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons
requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction
of the Company that such tax has been paid. The Company shall pay all Transfer Agent fees required for same-day processing of any
Notice of Conversion and all fees to the Depository Trust Company (or another established clearing corporation performing similar
functions) required for same-day electronic delivery of the Conversion Shares.
Section 7. Certain
Adjustments.
a) Stock Dividends
and Stock Splits. If the Company, at any time while this Series B Preferred is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any other Common Stock Equivalents
(which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon conversion of this Series
B Preferred), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way
of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues, in the event of a
reclassification of shares of the Common Stock, any shares of capital stock of the Company, then the Conversion Rate shall be multiplied
by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Company)
outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding
immediately after such event. Any adjustment made pursuant to this Section 7(a) shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination or re-classification.
b) Calculations.
All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be.
For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall
be the sum of the number of shares of Common Stock (excluding any treasury shares of the Company) issued and outstanding.
c) Notice to the
Holders.
i. Adjustment to Conversion
Rate. Whenever the Conversion Rate is adjusted pursuant to any provision of this Section 7, the Company shall promptly deliver
to each Holder a notice setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts
requiring such adjustment.
ii. Notice to Allow
Conversion by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company
shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer
of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted
into other securities, cash or property or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Company, then, in each case, the Company shall cause to be filed at each office or agency maintained
for the purpose of conversion of this Series B Preferred, and shall cause to be delivered to each Holder at its last address as
it shall appear upon the stock books of the Company, at least twenty (20) calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record
to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such
reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date
as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common
Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share
exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the
validity of the corporate action required to be specified in such notice.
Section 8. Miscellaneous.
a) Notices.
Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation,
any Notice of Conversion, shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight
courier service, addressed to the Company, at 219 Chemin Metairie Road, Youngsville, Louisiana, 70592, Attention: Daniel J. Schreiber,
or such other address as the Company may specify for such purposes by notice to the Holders delivered in accordance with this Section
8. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered
personally, by facsimile, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile
number or address of such Holder appearing on the books of the Company, or if no such facsimile number or address appears on the
books of the Company, at the principal place of business of such Holder. Any notice or other communication or deliveries hereunder
shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number set forth in this Section prior to 5:30 p.m. (Central time) on any date, (ii) the next Trading
Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth
in this Section on a day that is not a Trading Day or later than 5:30 p.m. (Central time) on any Trading Day, (iii) the second
Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given.
b) Absolute Obligation.
Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay liquidated damages, as applicable, on the shares of Series B Preferred at
the time, place, and rate, and in the coin or currency, herein prescribed.
c) Lost or Mutilated
Series B Preferred Certificate. If a Holder’s Series B Preferred certificate shall be mutilated, lost, stolen or destroyed,
the Company shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in
lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Series B Preferred
so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate,
and of the ownership hereof reasonably satisfactory to the Company.
d) Governing Law.
All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be
governed by and construed and enforced in accordance with the internal laws of the State of Nevada, without regard to the principles
of conflict of laws thereof.
e) Waiver. Any
waiver by the Company or a Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed
to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation
or a waiver by any other Holders. The failure of the Company or a Holder to insist upon strict adherence to any term of this Certificate
of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right
thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion.
Any waiver by the Company or a Holder must be in writing.
f) Severability.
If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation
shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable
to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates
the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum
rate of interest permitted under applicable law.
g) Next Business
Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day.
h) Headings.
The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not
be deemed to limit or affect any of the provisions hereof.
i) Status of Converted
or Redeemed Series B Preferred. If any shares of Series B Preferred shall be converted, redeemed or reacquired by the Company,
such shares shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated as Series
B Preferred.
*********************
ANNEX A
NOTICE OF CONVERSION
(To
be Executed by the Registered Holder in order to Convert Shares of Series B Preferred Stock)
The undersigned hereby elects to convert
the number of shares of Series A Convertible Preferred Stock indicated below into shares of common stock, par value $0.001 per
share (the “Common Stock”), of RedHawk Holdings Corp., a Nevada corporation (the “Company”),
according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a Person
other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith
such certificates and opinions as may be required by the Company. No fee will be charged to the Holders for any conversion, except
for any such transfer taxes.
Conversion calculations:
Date to Effect Conversion: _____________________________________________
Number of shares of Series B
Preferred owned prior to Conversion: _______________
Number of shares of Series B
Preferred to be Converted: ________________________
Number of shares of Common Stock
to be Issued: ___________________________
Applicable Conversion Rate:____________________________________________
Number of shares of Series B
Preferred subsequent to Conversion: ________________
Address for Delivery: ______________________
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[HOLDER] |
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Name: |
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Title: |
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EXHIBIT 10.1
ASSIGNMENT OF MEMBER’S LLC INTEREST
TOWER HOTELS FUND 2013 LLC
This Assignment of Member’s
LLC Interest (this “Assignment”) is made and entered into effective as of December 31, 2015 (the “Effective
Date”) by and between Beechwood Properties, LLC, a Louisiana limited liability company (“Beechwood” or “Assignor”),
and RedHawk Land & Hospitality, LLC, a Louisiana limited liability company (“RedHawk” or “Assignee”).
RECITALS:
WHEREAS, Beechwood
is the owner of 280,000 Class A Units of fully paid, non-assessable units of LLC Interest (the “Units”) in Tower
Hotels Fund 2013 LLC, a Hawaii limited liability company (the “Company”);
WHEREAS, Beechwood
desires to sell all of its Units to RedHawk (the “Assigned Units”); and
WHEREAS, RedHawk
desires to purchase from Beechwood the Assigned Units on the terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE,
in consideration of the mutual covenants and agreements contained herein and the payment of $1,000.00 and other valuable consideration
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Assignment
and Resignation. Effective as of the Effective Date, Beechwood hereby unconditionally and irrevocably sells, grants, transfers,
assigns, conveys and delivers, without any warranty whatsoever except as expressly provided for herein, but with full substitution
and subrogation in and to all the rights and actions of warranty which it has or may have against all preceding owners and vendors
to RedHawk, all of its right, title, and interest in and to the Assigned Units, free and clear of any and all liens, charges and
encumbrances.
2. Acceptance
and Assumption. Effective as of the Effective Date RedHawk hereby accepts from Beechwood the Assigned Units, and agrees to
assume the duties, liabilities and obligations arising under or in connection with the Assigned Units on or after the Effective
Date, including but not limited to the duties, liabilities and the obligations arising under or in connection with the Tower Hotels
Fund 2013 LLC Operating Agreement dated effective as of December 17, 2013, as amended (the “LLC Operating Agreement”).
3. Representations
and Warranties. Beechwood represents and warrants that: (i) it is the sole legal and beneficial owner of the Assigned
Units; (ii) it owns the Assigned Units free and clear of all liens, claims, charges and encumbrances; and (iii) it has
the full power and authority to transfer, assign, convey and deliver to RedHawk all of its right, title and interest in and to
such Assigned Units, subject only to the approval requirements set forth in Section 8.1 of the LLC Operating Agreement.
4. Future
Cooperation on Subsequent Documents. The parties agree to execute, acknowledge where necessary, and deliver unto the other
party all such other and additional instruments, notices, and other documents and to do all such other and further acts and things
as may be necessary more fully to grant, convey, bargain, sell, transfer and assign the rights, interests and property transferred
or intended so to be.
5.
Successors and Assigns. This Assignment shall be binding upon, and shall inure to the benefit of, the parties hereto and their
successors and assigns.
6. Modification
and Waiver. No supplement, modification, waiver or termination of this Assignment or any provision hereof shall be binding
unless executed in writing by the parties to be bound thereby. No waiver of any provision of this Assignment shall constitute a
waiver of any other provision (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
7. Severability.
If any term or other provision of this Assignment is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Assignment 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 Assignment so as to effect the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the greatest extent possible.
8. Governing
Law. This Assignment shall be governed by and construed in accordance with the laws of the State of Louisiana (without regard
to principles of conflict of laws).
9. Counterparts.
This Assignment may be executed in multiple counterparts, each of which shall be deemed an original and all of which shall constitute
but one and the same instrument. This Assignment may be executed by facsimile
signature (including signatures in Adobe PDF or similar format) and delivery of an executed counterpart of a signature page
of this Assignment by facsimile or electronic transmission of a PDF file shall be effective delivery of a manually executed counterpart
of this Assignment.
IN WITNESS WHEREOF,
this Assignment of Membership’s LLC Interest has been executed by the parties below to be effective as of the Effective
Date
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ASSIGNOR: |
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BEECHWOOD PROPERTIES, LLC |
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By: |
/s/ G. Darcy Klug |
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G. Darcy Klug, Manager |
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ASSIGNEE: |
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REDHAWK LAND & HOSPITALITY, LLC |
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By: |
/s/ Daniel J. Schreiber |
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Daniel J. Schreiber, Manager |
CONSENT TO ASSIGNMENT
Effective as of the effective
date of the foregoing Assignment and pursuant to the provisions of Section 8.1 of the LLC Operating Agreement, the undersigned
Supermajority of the Members and the Manager of the Company hereby consent to the foregoing Assignment and do hereby classify Assignee
as a Member pursuant to and as defined in the LLC Operating Agreement.
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MANAGER: |
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TOWER DEVELOPMENT, INC., MANAGER |
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By: |
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MEMBERS: |
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MICHAEL V. PAULIN RLT |
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By: |
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SCHREIBER FAMILY TRUST |
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/s/ Daniel J. Schreiber |
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DANIEL J. SCHREIBER |
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BANADAR INVESTMENTS |
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By: |
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/s/ Peter Hershorn |
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PETER HERSHORN |
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/s/ Maurice W. Nicholson |
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MAURICE W. NICHOLSON |
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TYRIE LEE JENKINS TRUST |
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By: |
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AIDEN HOLDINGS |
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By: |
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LIFESTYLE RETAIL PROPERTIES LLC |
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By: |
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/s/ Yee Shum Severson |
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YEE SHUM SEVERSON |
Exhibit 10.2
STATE OF LOUISIANA
PARISH OF LAFAYETTE
ACT OF SALE
BE IT KNOWN that on the
date set forth below, but effective for all purposes as of November ___, 2015 (the “Effective Date”) before me, Notary
Public, duly commissioned and qualified in the State and Parish aforesaid, and in the presence of the undersigned witnesses, personally
came and appeared:
BEECHWOOD PROPERTIES, LLC (last
four digits of Tax Id No. 7341), a Louisiana limited liability company domiciled at 219 Chemin Metairie Road, Youngsville, Louisiana
70592, represented herein by G. Darcy Klug, its sole Manager (hereinafter referred to as “Seller”)
who declared that for and in consideration
of THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00), (the “Purchase Price”) the receipt and sufficiency
of which is hereby acknowledged, payable as set forth below, Seller does hereby sell and deliver with full warranty of title and
with subrogation to all rights and actions of warranty Seller may have against any predecessors in title, unto:
REDHAWK LAND & HOSPITALITY,
LLC, (last four digits of Tax ID No. 4879) whose mailing address is 219 Chemin Metairie Road, Youngsville, Louisiana 70592,
represented herein by G. Darcy Klug, its sole Manager (hereinafter referred to as “Purchaser”),
the following described property, to-wit:
That certain parcel of ground, together
with all buildings and improvements thereon and the component parts thereof, and all rights, ways, privileges, servitudes, advantages
and appurtenances thereon, and thereunto appertaining, being known and designated as TRACT 4, LANEUVELLE-HOLIDAY, PHASE I, a
Subdivision, situated in the Parish of Lafayette, Louisiana. Said parcel has a frontage of 100 feet on LaNeuvelle Road, No. 2,
by a depth between parallel lines of 120 feet and has the further dimensions and boundaries as are shown on that certain plat of
survey prepared by Gerald E. Reaux dated April 26, 1978, a copy of which is attached to Entry No. 1978-15603 of the Conveyance
Records of Lafayette Parish, Louisiana, which plat is made a part hereof by reference thereto (the “Property”).
The Property bears the municipal
address of 219 Chemin Metairie Road, Youngsville, Louisiana 70592.
Being a portion of the property acquired
by Beechwood Properties, LLC by Dation En Paiement dated March 4, 2011, recorded March 7, 2011 under Entry No. 2011-00008405 in
the conveyance records of Lafayette Parish, Louisiana.
The Purchase Price is payable
as follows: Purchaser has, as of the Effective Date, caused to have issued and delivered to Seller 300 shares (par value of $1,000
per share and stated value equal to $1,000 per share) of Series A Preferred Stock of Redhawk Holdings Corp.
The Seller
hereby waives any vendor's lien it may have, and any other right it may have to rescind this sale in whole or in part for inadequate
consideration or any other reason.
All agreements, stipulations
and obligations assumed herein shall inure to the benefit of and be binding upon the heirs, successors and assigns of the respective
parties. Purchaser’s heirs and assigns shall have and hold the described property in full ownership forever.
Seller and Purchaser agree
that the improvements and all other items on the property are transferred by Seller to Purchaser on an “AS IS” and
“WHERE IS” basis, in their present condition and that these are being transferred by Seller to Purchaser without any
warranty whatsoever on the part of the Seller, except as to title. Purchaser hereby expressly waives all warranties as to the property
herein sold, whether expressed or implied by this or any other writing or representation, as well as any warranties provided by
law. This waiver applies to all warranties of any nature, express or implied, including without limitation warranties of fitness
for a particular purpose, or otherwise, except merchantability of title. Purchaser understands that under Articles 2520 through
2548 of the Louisiana Civil Code and other provisions of law, this sale would ordinarily include a warranty, implied by Louisiana,
against certain defects in the property sold. Purchaser expressly waives any and all such warranties, with respect to all defects,
whether apparent of latent, visible or not visible and regardless of whether Purchaser is presently aware of such defects. This
waiver of warranty extends to all defects, even if the defect or defects render the property absolutely useless, or so inconvenient
and imperfect that Purchaser would not have purchased it had it known of the defect. Purchaser also waives any rights Purchaser
might have or ever have relative to this sale: a) to any redhibitory action; b) to the return all or any portion of the purchase
price; c) to rescind or revoke the sale; or d) to have Seller repair or replace all or any part of the property conveyed. Seller,
however, does assign and transfer to Purchaser and rights of warranty that Seller might have, if any, against others pertaining
thereto. Purchaser hereby acknowledges that Purchaser has read and understands the foregoing waiver of warranty, that the waiver
has been pointed out and explained to Purchaser, and that questions or doubts Purchaser has concerning same have been answered
satisfactorily. Seller and Purchaser acknowledged and stipulate that the sales price was negotiated and agreed upon after consideration
of the waiver of warranty herein set forth.
Taxes for the current year
will be paid by Purchaser, but pro-rated between Seller and Purchaser as of the Effective Date. In accordance with La. R.S. 9:2721,
notice is given that the Purchaser is designated as the party to whom all property tax and assessment notices are to be mailed,
said notices to be sent to the address shown above for said Purchaser.
All parties signing herein
have declared themselves to be of full legal capacity, and have declared that the name, marital status, and address of each is
correct, as set forth above.
All parties to this act
confirm, acknowledge, and agree that the notary public before whom the Seller and Purchaser execute this act shall have no responsibility
or liability whatsoever of any nature, type, or kind, express or implied, for (1) obtaining mortgage, conveyance, tax and any and
all other researches and certifies, (2) examining title to the Property, (3) obtaining a title insurance policy insuring title
to the Property, or (4) obtaining a survey of the Property. This act shall become effective upon its execution by the last party
to execute this act.
THUS DONE AND SIGNED in
the City of Lafayette, Lafayette Parish, Louisiana, in the presence of the undersigned competent witnesses and me, Notary, on this
_____ day of November, 2015.
WITNESSES: |
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BEECHWOOD PROPERTIES, LLC |
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/s/ G. Darcy Klug |
Print: |
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G. DARCY KLUG, MANAGER |
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REDHAWK LAND & HOSPITALITY, LLC |
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/s/ G. Darcy Klug |
Print: |
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G. DARCY KLUG, |
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MANAGER |
___________________________________
NOTARY PUBLIC
Print Name: _________________________________
State Bar No./Notary Identification No.: ________________
Commission expires: ______________________
EXHIBIT 10.3
ASSIGNMENT OF SECURITIES WITH ASSUMPTION
OF SECURITIES BASED LINE OF CREDIT
This Assignment of Securities
with Assumption of Securities Based Line of Credit (this “Agreement”) is entered into as of December 30, 2015 (the
“Effective Date”), by and between Beechwood Properties, LLC (“Beechwood”) and Redhawk Holdings Corp. (“Redhawk”).
RECITALS
WHEREAS, Beechwood is the
owner of the assets listed on Exhibit “A” attached hereto and made a part hereof which assets are currently held in
that certain Joint Agency Agreement account number 5260001442 at Regions Bank (“Regions”);
WHEREAS, Beechwood has
executed and delivered that certain Promissory Note dated September 4, 2015 in the principal amount of $1,130,000 payable to the
order of Regions (the “Note”) which Note is a revolving line of credit note, has a current outstanding principal balance
as of the Effective Date of $980,000 and was executed and delivered in connection with that certain Loan Agreement dated September
4, 2015 by and between Beechwood and Regions (the “Loan Agreement”);
WHEREAS, Beechwood is willing
to transfer to Redhawk all assets listed on Exhibit “A” other than the Independence Energy Corp. stock (such assets
to be transferred being referred to hereinafter as the “Transferred Assets”) with such Transferred Assets having a
value as of the Effective Date of $1,862,049.80 in exchange for Redhawk’s assumption of the Note and Loan Agreement and Redhawk’s
issuance to Beechwood of 1000 shares (par value of $1,000.00 per share and stated value equal to $1,000.00 per share) of Series
B Convertible Preferred Stock of Redhawk Holdings Corp.
NOW, THEREFORE,
in consideration of the foregoing and their respective representations, warranties, covenants and undertakings herein contained,
and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Beechwood and Redhawk
hereby agree as follows:
| 1. | Beechwood hereby assigns, transfers and conveys the Transferred Assets to Redhawk free and clear
of all liens and security interests other than the liens and security interests in favor of Regions and Beechwood and Redhawk will
work together to have the Transferred Assets moved expeditiously to an investment account in the name of Redhawk Holdings Corp. |
| 2. | Beechwood represents that all accrued interest on the Note has been paid in full as of the Effective
Date. |
| 3. | Redhawk hereby agrees to issue and deliver to Beechwood on the Effective Date 1000 shares (par
value of $1,000.00 per share and stated value equal to $1,000.00 per share) of Series B Convertible Preferred Stock of Redhawk
Holdings Corp. |
| 4. | Beechwood agrees that from and after the Effective Date, it will not borrow any additional amounts
(or allow any additional amounts to be advanced) under the Note unless (i) Redhawk expressly requests Beechwood to do so for the
benefit of Redhawk and (ii) all such additional amounts borrowed from Regions or advanced by Regions under the Note are immediately
deposited into an account of Redhawk. |
| 5. | Redhawk hereby assumes and agrees to pay, in full, to its complete and final discharge, any and
all amounts now or hereafter due and payable or owing under the Note, including but not limited to the current principal balance
due (which as of the Effective Date is $980,000.00) and all interest accruing after the Effective Date and further agrees
to fully comply with and discharge all of the terms and conditions of the Note and Loan Agreement from and after the Effective
Date to the same extent as if Purchaser had personally executed the Note and Loan Agreement. |
| 6. | To the extent any payments due under the Note or Loan Agreement are made by Regions debiting any
account of Beechwood by auto debit provision or otherwise, Redhawk agrees that it will reimburse Beechwood for such debited amount
within two (2) business days of receipt of notice of such debit from Beechwood. |
| 7. | Beechwood agrees that it will not amend the Note or the Loan Agreement without the prior written
consent of Redhawk. |
| 8. | Beechwood acknowledges and agrees in favor of Regions that all of
the terms and conditions of the Note and the Loan Agreement shall remain in full force and effect, and the execution of this Agreement
shall not be considered a novation of the Note or the Loan Agreement. Beechwood further acknowledges and agrees in favor of Regions
that its obligations owed to Regions as borrower shall survive the execution of this Agreement. |
EXECUTED in multiple counterparts
in the presence of the undersigned competent witnesses, on this _____ day of December, 2015.
WITNESSES: |
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BEECHWOOD PROPERTIES, LLC |
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/s/ G. Darcy Klug |
Print: |
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G. DARCY KLUG, MANAGER |
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Print: |
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REDHAWK HOLDINGS CORP. |
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/s/ Daniel J. Schreiber |
Print: |
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DANIEL J. SCHREIBER, CEO |
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Print: |
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EXHIBIT A
Exhibit 10.4
ASSET PURCHASE AGREEMENT
among
BIG HORSE HOLDINGS, INC.
and JASON M. ROTH
Sellers
and
REDHAWK MEDICAL PRODUCTS
& SERVICES, LLC
Buyer
dated
as of
December
31, 2015
TABLE
OF CONTENTS
Article
I Definitions |
1 |
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Article
II Purchase and Sale |
7 |
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Section 2.01 Purchase and Sale of Assets |
7 |
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Section 2.02 Excluded Assets |
8 |
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Section 2.03 Assumed Liabilities |
9 |
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Section 2.04 Excluded
Liabilities |
9 |
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Section 2.05 Purchase Price |
10 |
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Section 2.07 Allocation of Purchase Price |
11 |
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Section 2.08 Withholding Tax |
13 |
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Article
III Closing |
13 |
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Section 3.01 Closing |
13 |
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Section 3.02 Closing Deliverables |
13 |
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Article
IV Representations and warranties of seller |
14 |
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Section 4.01 Organization and Qualification
of Seller |
14 |
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Section 4.02 Authority of Seller |
15 |
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Section 4.03 No Conflicts; Consents |
15 |
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Section 4.04 Intentionally
Omitted |
16 |
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Section 4.05 Liabilities |
16 |
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Section 4.06 Intentionally Omitted |
16 |
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Section 4.07 Material Contracts |
16 |
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Section 4.08 Title to Purchased Assets |
17 |
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Section 4.09 Condition and Sufficiency
of Assets |
18 |
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Section 4.10 Intentionally Omitted |
18 |
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Section 4.11 Intellectual Property |
18 |
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Section 4.12 Inventory |
19 |
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Section 4.13 Intentionally Omitted |
20 |
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Section 4.14 Customers and Suppliers |
20 |
Section
4.15 Insurance |
20 |
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Section 4.16 Legal Proceedings; Governmental
Orders |
21 |
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Section 4.17 Compliance With Laws; Permits;
FDA; Testing |
21 |
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Section 4.18 Intentionally
Omitted |
22 |
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Section 4.19 Employee Benefit Matters |
22 |
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Section 4.20 Employment Matters |
22 |
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Section 4.21 Taxes |
23 |
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Section 4.22 Brokers |
23 |
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Section 4.23 Full Disclosure |
24 |
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Article
V Representations and warranties of buyer |
24 |
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Section 5.01 Organization of Buyer |
24 |
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Section 5.02 Authority of Buyer |
24 |
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Section 5.03 No Conflicts; Consents |
24 |
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Section 5.04 Brokers |
25 |
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Section 5.05 Legal Proceedings |
25 |
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Article
VI Covenants |
25 |
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Section 6.01 Employees and Employee Benefits |
25 |
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Section 6.02 Confidentiality |
26 |
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Section 6.03 Non-competition;
Non-solicitation |
26 |
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Section 6.04 Governmental
Approvals and Consents |
27 |
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Section 6.05 Books and Records |
27 |
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Section 6.06 Public Announcements |
28 |
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Section 6.07 Bulk Sales Laws |
28 |
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Section 6.08 Receivables |
28 |
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Section 6.09 Transfer Taxes |
28 |
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Section 6.10 Further Assurances |
28 |
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Article
VII Conditions to closing |
29 |
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Section 7.01 Conditions to Obligations
of All Parties |
29 |
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Section 7.02 Conditions to Obligations
of Buyer |
29 |
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Section 7.03 Conditions
to Obligations of Seller |
30 |
Article VIII Indemnification |
32 |
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Section 8.01 Survival |
32 |
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Section 8.02 Indemnification By Seller |
32 |
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Section 8.03 Indemnification By Buyer |
32 |
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Section 8.04 Certain Limitations |
33 |
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Section 8.05 Indemnification Procedures |
33 |
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Section 8.06 Payments |
35 |
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Section 8.07 Tax Treatment of Indemnification Payments |
35 |
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Section 8.08 Effect of Investigation |
36 |
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Section 8.09 Exclusive Remedies |
36 |
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Article IX Miscellaneous |
36 |
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Section 9.01 Expenses |
36 |
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Section 9.02 Notices |
36 |
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Section 9.03 Interpretation |
37 |
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Section 9.04 Headings |
38 |
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Section 9.05 Severability |
38 |
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Section 9.06 Entire Agreement |
38 |
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Section 9.07 Successors and Assigns |
38 |
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Section 9.08 No Third-party Beneficiaries |
39 |
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Section 9.09 Amendment and Modification;
Waiver |
39 |
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Section 9.10 Governing Law; Submission
to Jurisdiction; Waiver of Jury Trial |
39 |
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Section 9.11 Specific Performance |
40 |
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Section 9.12 Counterparts |
40 |
EXHIBITS
Exhibit A – Bill of Sale
Exhibit B – Assignment and Assumption Agreement
Exhibit C – Intellectual Property Assignment
Exhibit D – Consulting Agreement
DISCLOSURE SCHEDULES
Schedule 2.01(b) - Inventory
Schedule 2.01(c) – Assigned Contracts
Schedule 2.01(e) – Tangible Personal
Property
Schedule 2.02(d) – Excluded Assets
Schedule 2.02(a) – Excluded Contracts
Schedule 2.03(a) – Assumed Accounts
Payable
Schedule 2.06 – Purchase Price
Allocation
Schedule 4.01 – Jurisdictions
in which Seller is licensed to do business
Schedule 4.03 – Consents and Notices
Schedule 4.05 – Liabilities
Schedule 4.07(a) – Material Contracts
Schedule 4.08 – Permitted Encumbrances
Schedule 4.09 – Condition and
Sufficiency of Assets
Schedule
4.11(a) – Intellectual Property Registrations and Intellectual Property Assets
Schedule
4.11(b) – Intellectual Property Agreements
Schedule
4.14(a) - Material Customers
Schedule
4.14(b) - Material Suppliers
Schedule
4.15- Insurance
Schedule
4.16 - Legal Proceedings and Governmental Orders
Schedule
4.17(a) - Compliance with Laws, Permits, FDA and Testing
Schedule
4.17(b) – Permits
Schedule
4.19(a) – Employee Benefits
Schedule
4.21 – Taxes
ASSET
PURCHASE AGREEMENT
This Asset Purchase
Agreement (this "Agreement"), dated as of December 31, 2015, is entered into between Big Horse Holdings, Inc.,
a Florida corporation and Jason M. Roth (collectively "Seller") and RedHawk Medical Products & Services, LLC,
a Louisiana limited liability company ("Buyer").
RECITALS
WHEREAS, Seller
is engaged in the business of designing, manufacturing, marketing, distributing and selling certain high-quality medical devices,
including the Disintegrator Insulin Needle Destruction Unit (the “NDD”) and the Carotid Artery Non-Contact Thermometer
(the “CAT”) (the "Business"); and
WHEREAS, Seller
wishes to sell and assign to Buyer, and Buyer wishes to purchase and assume from Seller, substantially all the assets, and certain
specified liabilities, of the Business, subject to the terms and conditions set forth herein;
NOW, THEREFORE,
in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Article
I
Definitions
The following terms
have the meanings specified or referred to in this Article I:
"Accounts
Receivable" has the meaning set forth in Error! Reference source not found..
"Action" means
any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation,
citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at
law or in equity.
"Affiliate" of
a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person. The term "control" (including the terms "controlled by" and "under
common control with") means the possession, directly or indirectly, 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.
"Agreement" has
the meaning set forth in the preamble.
"Allocation
Schedule" has the meaning set forth in Section 2.06.
"Assigned
Contracts" has the meaning set forth in Section 2.01(c).
"Assignment
and Assumption Agreement" has the meaning set forth in Section 3.02(a)(ii).
"Assignment
and Assumption of Lease" has the meaning set forth in Error! Reference source not found..
"Assumed
Liabilities" has the meaning set forth in Section 2.03.
"Audited
Financial Statements" has the meaning set forth in Section 4.04.
"Basket" has
the meaning set forth in Section 8.04(a).
"Benefit
Plan" has the meaning set forth in Section 4.19(a).
"Bill of
Sale" has the meaning set forth in Section 3.02(a)(i).
"Books and
Records" has the meaning set forth in Section 2.01(k).
"Business" has
the meaning set forth in the recitals.
"Business
Day" means any day except Saturday, Sunday or any other day on which commercial banks located in Lafayette, Louisiana
are authorized or required by Law to be closed for business.
"Buyer" has
the meaning set forth in the preamble.
"Buyer Closing
Certificate" has the meaning set forth in Section 7.03(e).
"Buyer Indemnitees" has
the meaning set forth in Section 8.02.
“CAT”
means the Carotid Artery Non-Contact Thermometer (and all related Intellectual Property) designed, manufactured, marketed,
distributed and/or sold by Seller.
"Closing" has
the meaning set forth in Section 3.01.
"Closing
Date" has the meaning set forth in Section 3.01.
"Code" means
the Internal Revenue Code of 1986, as amended.
“Consulting
Agreement” has the meaning set forth in Section 3.02(a)(v).
"Contracts" means
all contracts, leases, deeds, mortgages, licenses, instruments, notes, commitments, undertakings, indentures, joint ventures and
all other agreements, commitments and legally binding arrangements, whether written or oral.
"Direct
Claim" has the meaning set forth in Section 8.05(c).
"Disclosure
Schedules" means the Disclosure Schedules delivered by Seller and Buyer concurrently with the execution and delivery
of this Agreement.
"Dollars
or $" means the lawful currency of the United States.
"Encumbrance" means
any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security
interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction
on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.
"ERISA" means
the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
"ERISA Affiliate" means
all employers (whether or not incorporated) that would be treated together with the Seller or any of its Affiliates as a "single
employer" within the meaning of Section 414 of the Code.
"Excluded
Assets" has the meaning set forth in Section 2.02.
"Excluded
Contracts" has the meaning set forth in Section 2.02(a).
"Excluded
Liabilities" has the meaning set forth in Section 2.04.
"Financial
Statements" has the meaning set forth in Section 4.04.
“FDA”
means the Food and Drug Administration, of the United States Department of Health and Human Services.
"GAAP" means
United States generally accepted accounting principles in effect from time to time.
"Government
Contracts" has the meaning set forth in Section 4.07(a)(viii)
"Governmental
Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency
or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory
authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority
have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
"Governmental
Order" means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with
any Governmental Authority.
“Gross
Profit Margin” has the meaning set forth in Section 2.05(b).
"Indemnified
Party" has the meaning set forth in Section 8.05.
"Indemnifying
Party" has the meaning set forth in Section 8.05.
"Insurance
Policies" has the meaning set forth in Section 4.15.
"Intellectual
Property" means all intellectual property and industrial property rights and assets, and all rights, interests and
protections that are associated with, similar to, or required for the exercise of, any of the foregoing, however arising, pursuant
to the Laws of any jurisdiction throughout the world, whether registered or unregistered, including any and all: (a) trademarks,
service marks, trade names, brand names, logos, trade dress, design rights and other similar designations of source, sponsorship,
association or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications
and renewals for, any of the foregoing; (b) internet domain names, whether or not trademarks, registered in any top-level domain
by any authorized private registrar or Governmental Authority, web addresses, web pages, websites and related content, accounts
with Twitter, Facebook and other social media companies and the content found thereon and related thereto, and URLs; (c) works
of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights, author, performer,
moral and neighboring rights, and all registrations, applications for registration and renewals of such copyrights; (d) inventions,
discoveries, trade secrets, business and technical information and know-how, databases, data collections and other confidential
and proprietary information and all rights therein; (e) patents (including all reissues, divisionals, provisionals, continuations
and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent
rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates, petty patents
and patent utility models); (f) software and firmware, including data files, source code, object code, application programming
interfaces, architecture, files, records, schematics, computerized databases and other related specifications and documentation;
(g) royalties, fees, income, payments and other proceeds now or hereafter due or payable with respect to any and all of the foregoing;
and (h) all rights to any Actions of any nature available to or being pursued by Seller to the extent related to the foregoing,
whether accruing before, on or after the date hereof, including all rights to and claims for damages, restitution and injunctive
relief for infringement, dilution, misappropriation, violation, misuse, breach or default, with the right but no obligation to
sue for such legal and equitable relief, and to collect, or otherwise recover, any such damages.
"Intellectual
Property Agreements" means all licenses, sublicenses, consent to use agreements, settlements, coexistence agreements,
covenants not to sue, permissions and other Contracts (including any right to receive or obligation to pay royalties or any other
consideration), whether written or oral, relating to any Intellectual Property that is used in or necessary for the conduct of
the Business as currently conducted to which Seller is a party, beneficiary or otherwise bound.
"Intellectual
Property Assets" means all Intellectual Property that is owned by Seller and used in or necessary for the conduct
of the Business as currently conducted.
"Intellectual
Property Assignments" has the meaning set forth in Section 3.02(a)(iii).
"Intellectual
Property Registrations" means all Intellectual Property Assets that are subject to any issuance, registration, application
or other filing by, to or with any Governmental Authority or authorized private registrar in any jurisdiction, including registered
trademarks, domain names and copyrights, issued and reissued patents and pending applications for any of the foregoing.
"Inventory" has
the meaning set forth in Section 2.01(b).
"Knowledge
of Seller or Seller's Knowledge" or any other similar knowledge qualification, means the actual or constructive knowledge
of Seller and any director or officer of Seller, after due inquiry.
"Law" means
any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement
or rule of law of any Governmental Authority.
"Liabilities" means
liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent,
accrued or unaccrued, matured or unmatured or otherwise.
"Losses" means
losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever
kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing
any insurance providers; provided, however, that "Losses" shall not include punitive damages, except in the case
of fraud or to the extent actually awarded to a Governmental Authority or other third party.
"Material
Adverse Effect" means any event, occurrence, fact, condition or change that is, or could reasonably be expected to
become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or
otherwise) or assets of the Business, (b) the value of the Purchased Assets, or (c) the ability of Seller to consummate the transactions
contemplated hereby on a timely basis.
"Material
Contracts" has the meaning set forth in Section 4.07(a).
"Material
Customers" has the meaning set forth in Section 4.14(a).
"Material
Suppliers" has the meaning set forth in Section 4.14(b)..
“NDD”
means the Disintegrator Insulin Needle Destruction Unit (and all related Intellectual Property) designed, manufactured, marketed,
distributed and/or sold by Seller.
"Permits" means
all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained,
or required to be obtained, from Governmental Authorities.
"Permitted
Encumbrances" has the meaning set forth in Section 4.08(a).
"Person" means
an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization,
trust, association or other entity.
"Post-Closing
Tax Period" means any taxable period beginning after the Closing Date and, with respect to any taxable period beginning
before and ending after the Closing Date, the portion of such taxable period beginning after the Closing Date.
"Pre-Closing
Tax Period" means any taxable period ending on or before the Closing Date and, with respect to any taxable period
beginning before and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date.
"Purchase
Price" has the meaning set forth in Section 2.05.
"Purchased
Assets" has the meaning set forth in Section 2.01..
"Representative" means,
with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and
other agents of such Person.
"Restricted
Business" means the business of inventing, designing, manufacturing, marketing, distributing and selling medical
products and medical devices, including the Disintegrator Insulin Needle Destruction Unit and the Carotid Artery Non-Contact Thermometer
and any and all devices that compete or might be deemed to compete with the NDD or the CAT.
“Restricted
Common Stock” means the Sixty Million (60,000,000) shares of the Restricted Common Stock of RedHawk Holdings Corp. (“RedHawk”
- OTC: IDNG), the parent corporation of Buyer, referred to in Section 2.05 hereof.
"Restricted
Period" has the meaning set forth in Section 6.03(a).
“Restricted
Shares” means the Restricted Common Stock.
"Seller" has
the meaning set forth in the preamble.
"Seller
Closing Certificate" has the meaning set forth in Section 7.02(h).
"Seller
Indemnitees" has the meaning set forth in Section 8.03.
"Tangible
Personal Property" has the meaning set forth in Section 2.01(e).
"Taxes" means
all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, documentary,
franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated,
excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits,
customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties
with respect thereto and any interest in respect of such additions or penalties.
"Tax Return" means
any return, declaration, report, claim for refund, information return or statement or other document relating to Taxes, including
any schedule or attachment thereto, and including any amendment thereof.
"Territory" means
North America, South America, Europe, Asia, Africa and Australia.
"Third Party
Claim" has the meaning set forth in Section 8.05(a).
"Transaction
Documents" means this Agreement, the Bill of Sale, the Assignment and Assumption Agreement, Intellectual Property
Assignment, the Employment Agreement, and the other agreements, instruments and documents required to be delivered at the Closing.
"Union" has
the meaning set forth in Section 4.20(b).
Article
II
Purchase
and Sale
Section
2.01 Purchase and Sale of Assets. Subject
to the terms and conditions set forth herein, at the Closing, Seller shall sell, assign, transfer, convey and deliver to Buyer,
and Buyer shall purchase from Seller, free and clear of any Encumbrances other than Permitted Encumbrances, all of Seller's right,
title and interest in, to and under all of the assets, properties and rights of every kind and nature, whether real, personal or
mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired (other than
the Excluded Assets), which relate to, or are used or held for use in connection with, the Business (collectively, the "Purchased
Assets"), including, without limitation, the following:
(a) cash
and cash equivalents;
(b) all
inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories, including without
limitation, those listed on Section 2.01(b) of the Disclosures ("Inventory");
(c) all
Contracts, including Intellectual Property Agreements, set forth on Section 2.01(c) of the Disclosure Schedules (the "Assigned
Contracts");
(d) all
Intellectual Property Assets;
(e) all
furniture, fixtures, equipment, machinery, tools, vehicles, office equipment, supplies, computers, telephones and other tangible
personal property, including, without limitation, those listed on Section 2.01(e) of the Disclosure Schedules (the "Tangible
Personal Property");
(f) all
Permits, which are held by Seller and required for the conduct of the Business as currently conducted or for the ownership and
use of the Purchased Assets, including, without limitation, those listed on Section 4.17(b) of the Disclosure Schedules;
(g) all
rights to any Actions of any nature available to or being pursued by Seller to the extent related to the Business, the Purchased
Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise;
(h) all
prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment,
deposits, charges, sums and fees (including any such item relating to the payment of Taxes);
(i) all
of Seller's rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased
Assets;
(j) all
insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed
Liabilities;
(k) originals,
or where not available, copies, of all books and records, including, but not limited to, books of account, ledgers and general,
financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price
lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry
files, research and development files, records and data (including all correspondence with any Governmental Authority), sales material
and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic
plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Intellectual
Property Assets and the Intellectual Property Agreements ("Books and Records"); and
(l) all
goodwill and the going concern value of the Business.
Section
2.02 Excluded Assets. Notwithstanding
the foregoing, the Purchased Assets shall not include the following assets (collectively, the "Excluded
Assets"):
(a) Contracts,
including Intellectual Property Agreements, that are not Assigned Contracts (the "Excluded Contracts"); provided
that such contracts and agreements are not deemed by Buyer to be material to the Business;
(b) the
corporate seals, organizational documents, minute books, stock books, Tax Returns, books of account or other records having to
do with the corporate organization of Seller;
(c) all
Benefit Plans and assets attributable thereto;
(d) the
assets, properties and rights specifically set forth on Section 2.02(d) of the Disclosure Schedules; and
(e) the
rights which accrue or will accrue to Seller under the Transaction Documents.
Section
2.03 Assumed Liabilities. Subject to the
terms and conditions set forth herein, Buyer shall assume and agree to pay, perform and discharge only the following Liabilities
of Seller (collectively, the "Assumed Liabilities"), and no other Liabilities:
(a) those
trade accounts payable of Seller set forth on Section 2.03(a) of the Disclosure Schedules in favor of third parties in connection
with the Business that remain unpaid and are not delinquent as of the Closing Date; and
(b) all
Liabilities in respect of the Assigned Contracts but only to the extent that such Liabilities thereunder are required to be performed
after the Closing Date, were incurred in the ordinary course of business and do not relate to any failure to perform, improper
performance, warranty or other breach, default or violation by Seller on or prior to the Closing.
Section
2.04 Excluded Liabilities. Notwithstanding
the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall
not be responsible to pay, perform or discharge any Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever
other than the Assumed Liabilities (the "Excluded Liabilities"). Seller shall,
and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay
and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the
following:
(a) any
Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this
Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation,
fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any
Liability for (i) Taxes of Seller (or any stockholder or Affiliate of Seller) or relating to the Business, the Purchased Assets
or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated
hereby or that are the responsibility of Seller pursuant to Section 6.14; or (iii) other Taxes of Seller (or any stockholder or
Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any stockholder or Affiliate of
Seller) that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability
or otherwise by operation of contract or Law);
(c) any
Liabilities relating to or arising out of the Excluded Assets;
(d) any
Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation
of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any
product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied
representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a
product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects
of any products at any time manufactured or sold or any service performed by Seller on or prior to the Closing Date;
(f) any
recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller on or prior to
the Closing Date;
(g) any
Liabilities of Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee
of Seller;
(h) any
Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants
of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued
vacation, workers' compensation, severance, retention, termination or other payments;
(i) any
Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances
or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller;
(j) any
trade accounts payable of Seller (i) to the extent not accounted for on the Interim Balance Sheet; (ii) which constitute intercompany
payables owing to Affiliates of Seller; (iii) which constitute debt, loans or credit facilities to financial institutions; or (iv)
which did not arise in the ordinary course of business;
(k) any
Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work
orders that (i) do not constitute part of the Purchased Assets issued by the Business' customers to Seller on or before the Closing;
(ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to Buyer pursuant to this
Agreement;
(l) any
Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller
(including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section
8.03 as Seller Indemnitees;
(m) any
Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not
validly and effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the representations and warranties
with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by
Seller of such Contracts prior to Closing;
(n) any
Liabilities associated with debt, loans or credit facilities of Seller and/or the Business owing to financial institutions; and
(o) any
Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any
Law or Governmental Order.
Section
2.05 Purchase Price. The aggregate purchase
price for the Purchased Assets shall be Sixty Million (60,000,000) shares of the Restricted Common Stock of RedHawk Holdings Corp.
(“RedHawk” - OTC: IDNG), the parent corporation of Buyer (the "Purchase Price"),
plus the assumption of the Assumed Liabilities. The Purchase Price shall be paid as follows:
(a) The
initial tranche of 20,000,000 shares of Restricted Common Stock of RedHawk shall vest in favor of Seller upon achievement of the
following described product-development milestones:
(i) 1,000,000 Restricted Shares shall
vest in favor of Seller upon completion of manufacturing upgrades for the NDD satisfactory to Buyer in the exercise of reasonable
business discretion;
(ii) 1,000,000 Restricted Shares shall
vest in favor of Seller upon completion of unit tooling for the NDD satisfactory to Buyer in the exercise of reasonable business
discretion;
(iii) 3,000,000 Restricted Shares shall
vest in favor of Seller upon submission to Buyer of proof of filing of worldwide patents for the NDD. Buyer shall pay all patent
application fees and the related costs and expenses of obtaining the patents, including legal fees;
(iv) 1,000,000 Restricted Shares shall
vest in favor of Seller upon completion of concept design drawings for the NDD satisfactory to Buyer in the exercise of its reasonable
business discretion;
(v) 1,000,000 Restricted Shares shall
vest in favor of Seller upon completion of a mechanical prototype for the NDD satisfactory to Buyer in the exercise of its reasonable
business discretion;
(vi) 3,000,000 Restricted Shares shall
vest in favor of Seller upon completion of a product model for the NDD satisfactory to Buyer in the exercise of its reasonable
business discretion;
(vii) 1,000,000 Restricted Shares shall
vest in favor of Seller upon completion of computer assisted drawings of the product model for the NDD satisfactory to Buyer in
the exercise of its reasonable business discretion;
(viii) 1,000,000 Restricted Shares shall
vest in favor of Seller upon completion of the research and development necessary to market the NDD satisfactory to Buyer in the
exercise of its reasonable business discretion;
(ix) 1,000,000 Restricted Shares shall
vest in favor of Seller upon completion of soft tooling for the NDD satisfactory to Buyer in the exercise of its reasonable business
discretion
(x) 1,000,000 Restricted Shares shall
vest in favor of Seller upon completion of Beta testing for the NDD satisfactory to Buyer in the exercise of its reasonable business
discretion;
(xi) 1,000,000 Restricted Shares shall
vest in favor of Seller upon completion of bench testing for the NDD satisfactory to Buyer in the exercise of its reasonable business
discretion;
(xii) 1,000,000 Restricted Shares shall
vest in favor of Seller upon completion and execution of the contracts required for the marketing, manufacturing and distribution
of the NDD satisfactory to Buyer in the exercise of its reasonable business discretion; and
(xiii) 4,000,000 Restricted Shares shall
vest in favor of Seller upon completion, and approval by Buyer, of the initial full production run of the NDD.
(b) The
second tranche of 20,000,000 Shares of Restricted Common Stock of RedHawk shall vest in favor of Seller
upon completion and collection of the sale proceeds of 100,000 NDD units with a Gross Profit Margin (as determined and calculated
using GAAP) of 50% or more. For purposes of this provision, Gross Profit Margin means sales revenue less product cost from the
manufacturer.
(c) The
final tranche of 20,000,000 Shares of Restricted Common Stock of RedHawk shall vest in favor of Seller
upon receipt of patents providing worldwide global patent coverage.
(d) The
Restricted Shares shall not be sold, offered for sale, contracted to sell, optioned, pledged, mortgaged, encumbered or otherwise
transferred or encumbered, weather by long sale, short sale, option, hedge, pledge, security agreement, grant of rights, or similar
transaction, during the one hundred eighty (180) day period following the respective vesting of such Restricted Shares. The Restricted
Shares shall include a legend or notation describing the above referenced 180 day prohibition on the transfer and encumbrance of
the shares. The Restricted Shares shall be delivered by Buyer to Seller within 180 days of the vesting of the respective Restricted
Shares. At the expiration of the 180 day period, the restrictive legend may be removed from the Restricted Shares.
Section
2.06 Allocation of Purchase Price. Seller
and Buyer agree that the Purchase Price and the Assumed Liabilities (plus other relevant items) shall be allocated among the Purchased
Assets for all purposes (including Tax and financial accounting) as shown on the allocation schedule (the "Allocation
Schedule") set forth in Section 2.06 of the Disclosure Schedules.
Section
2.07 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 provision of Tax Law. All such withheld amounts shall be treated as delivered to Seller hereunder.
Section
2.08 Third Party Consents. To
the extent that Seller's rights under any Contract or Permit constituting a Purchased Asset, or any other Purchased Asset, may
not be assigned to Buyer without the consent of another Person which has not been obtained, this Agreement shall not constitute
an agreement to assign the same if an attempted assignment would constitute a breach thereof or be unlawful, and Seller, at its
expense, shall use its reasonable best efforts to obtain any such required consent(s) as promptly as possible. If any such consent
shall not be obtained or if any attempted assignment would be ineffective or would impair Buyer's rights under the Purchased Asset
in question so that Buyer would not in effect acquire the benefit of all such rights, Seller, to the maximum extent permitted by
law and the Purchased Asset, shall act after the Closing as Buyer's agent in order to obtain for it the benefits thereunder and
shall cooperate, to the maximum extent permitted by Law and the Purchased Asset, with Buyer in any other reasonable arrangement
designed to provide such benefits to Buyer. Notwithstanding any provision in this Section 2.08 to the contrary, Buyer shall
not be deemed to have waived its rights under Section 7.02(d) hereof unless and until Buyer either provides written waivers
thereof or elects to proceed to consummate the transactions contemplated by this Agreement at Closing.
Article
III
Closing
Section
3.01 Closing. Subject
to the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the "Closing")
shall take place at the offices of Gordon, Arata, McCollam, Duplantis & Eagan, LLC, 400 E. Kaliste Saloom Road, Suite 4200
at 10:00 am CT, on December 29, 2015 or at such other time, date or place as Seller and Buyer may mutually agree upon in
writing. The date on which the Closing is to occur is herein referred to as the "Closing Date".
Section
3.02 Closing Deliverables.
(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 Seller, transferring the
tangible personal property included in 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;
(iii) an
assignment[s] 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 Intellectual Property Assets to Buyer;
(iv) the
Employment Agreement in the form of Exhibit D hereto (the "Consulting Agreement") and duly executed by the employee;
(v) the
Seller Closing Certificate;
(vi) the
certificates of the Secretary or Assistant Secretary of Seller required by Section 7.02(i) and Section 7.02(j);
(vii) 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
(b) At
the Closing, Buyer shall deliver to Seller the following:
(i) the
Purchase Price;
(ii) the
Assignment and Assumption Agreement duly executed by Buyer;
(iii) the
Consulting Agreement duly executed by Buyer;
(iv) the
Buyer Closing Certificate;
(v) the
certificates of the Secretary or Assistant Secretary of Buyer required by Section 7.03(f) and Section 7.03(g).
Article
IV
Representations
and warranties of seller
Except as set forth
in the correspondingly numbered Section of the Disclosure Schedules, Seller represents and warrants to Buyer that the statements
contained in this Article IV are true and correct as of the date hereof.
Section
4.01 Organization and Qualification of Seller. Seller
is a corporation duly organized, validly existing and in good standing under the Laws of the state of Florida and has full corporate
power and authority to own, operate or lease the properties and assets now owned, operated or leased by it and to carry on the
Business as currently conducted. Section 4.01 of the Disclosure Schedules sets forth each jurisdiction in which Seller is
licensed or qualified to do business, and Seller is duly licensed or qualified to do business and is in good standing in each jurisdiction
in which the ownership of the Purchased Assets or the operation of the Business as currently conducted makes such licensing or
qualification necessary.
Section
4.02 Authority of Seller. Seller
has full corporate power and authority to enter into this Agreement and the other Transaction Documents to which Seller is a party,
to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution
and delivery by Seller of this Agreement and any other Transaction Document to which Seller is a party, the performance by Seller
of its obligations hereunder and thereunder and the consummation by Seller of the transactions contemplated hereby and thereby
have been duly authorized by all requisite corporate action on the part of Seller. This Agreement has been duly executed and delivered
by Seller, and (assuming due authorization, execution and delivery by Buyer) this Agreement constitutes a legal, valid and binding
obligation of Seller enforceable against Seller in accordance with its terms. When each other Transaction Document to which Seller
is or will be a party has been duly executed and delivered by Seller (assuming due authorization, execution and delivery by each
other party thereto), such Transaction Document will constitute a legal and binding obligation of Seller enforceable against it
in accordance with its terms.
Section
4.03 No Conflicts; Consents. The
execution, delivery and performance by Seller of this Agreement and the other Transaction Documents to which it is a party, and
the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation
or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents of
Seller; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Seller,
the Business or the Purchased Assets; (c) [except as set forth in Section 4.03 of the Disclosure Schedules,] require the
consent, notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default or
an event that, with or without notice or lapse of time or both, would constitute a default under, result in the acceleration of
or create in any party the right to accelerate, terminate, modify or cancel any Contract or Permit to which Seller is a party or
by which Seller or the Business is bound or to which any of the Purchased Assets are subject (including any Assigned Contract);
or (d) result in the creation or imposition of any Encumbrance other than Permitted Encumbrances on the Purchased Assets. No consent,
approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with
respect to Seller in connection with the execution and delivery of this Agreement or any of the other Transaction Documents and
the consummation of the transactions contemplated hereby and thereby.
Section
4.04 Intentionally Omitted.
Section
4.05 Liabilities. Seller
has no Liabilities with respect to the Business, except (a) those which are adequately reflected in Section 4.05 of the
Disclosure Schedules and (b) those which have been incurred in the ordinary course of business consistent with past practice and
which, individually do not exceed $1,000 or in the aggregate exceed $10,000.
Section
4.06 Intentionally Omitted.
Section
4.07 Material Contracts.
(a) Section
4.07(a) of the Disclosure Schedules lists each of the following Contracts, whether written or verbal (x) by which any of the
Purchased Assets are bound or affected or (y) to which Seller is a party or by which it is bound in connection with the Business
or the Purchased Assets (such Contracts, (including without limitation, brokerage contracts) listed or otherwise disclosed in Error!
Reference source not found.of the Disclosure Schedules and all Intellectual Property Agreements set forth in Section 4.11(b)
of the Disclosure Schedules, being "Material Contracts"):
(i) all
Contracts involving aggregate consideration in excess of $10,000 and which, in each case, cannot be cancelled without penalty or
without more than 90 days' notice;
(ii) all
Contracts that require Seller to purchase or sell a stated portion of the requirements or outputs of the Business or that contain
"take or pay" provisions;
(iii) all
Contracts that provide for the indemnification of any Person or the assumption of any Tax, environmental or other Liability of
any Person;
(iv) all
Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person
or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(v) all
broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing consulting
and advertising Contracts;
(vi) all
employment agreements and Contracts with independent contractors or consultants (or similar arrangements) and which are not cancellable
without material penalty or without more than 90 days' notice;
(vii) except
for Contracts relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees);
(viii) all
Contracts with any Governmental Authority ("Government Contracts");
(ix) all
Contracts that limit or purport to limit the ability of Seller to compete in any line of business or with any Person or in any
geographic area or during any period of time;
(x) all
joint venture, partnership or similar Contracts;
(xi) all
Contracts for the sale of any of the Purchased Assets or for the grant to any Person of any option, right of first refusal or preferential
or similar right to purchase any of the Purchased Assets;
(xii) all
powers of attorney with respect to the Business or any Purchased Asset;
(xiii) all
collective bargaining agreements or Contracts with any Union; and
(xiv) all
other Contracts that are material to the Purchased Assets or the operation of the Business and not previously disclosed pursuant
to this Section 4.07.
(b) Each
Material Contract is valid and binding on Seller in accordance with its terms and is in full force and effect. None of Seller or,
to Seller's Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under)
in any material respect, or has provided or received any notice of any intention to terminate, any Material Contract. No event
or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material
Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation
or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments
and supplements thereto and waivers thereunder) have been made available to Buyer. There are no material disputes pending or threatened
under any Contract included in the Purchased Assets.
Section
4.08 Title to Purchased Assets. Seller
has good and valid title to, or a valid leasehold interest in, all of the Purchased Assets. All such Purchased Assets (including
leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as "Permitted
Encumbrances"):
(a) those
items set forth in Section 4.08 of the Disclosure Schedules;
(b) liens
for Taxes not yet due and payable;
(c) mechanics',
carriers', workmen's, repairmen's or other like liens arising or incurred in the ordinary course of business consistent with past
practice or amounts that are not delinquent and which are not, individually or in the aggregate, material to the Business or the
Purchased Assets; or
(d) liens
arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary
course of business consistent with past practice which are not, individually or in the aggregate, material to the Business or the
Purchased Assets.
Section
4.09 Condition and Sufficiency of Assets. Except
as set forth in Section 4.09 of the Disclosure Schedules, the buildings, plants, structures, furniture, fixtures, machinery,
equipment, vehicles and other items of tangible personal property included in the Purchased Assets are structurally sound, are
in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such buildings,
plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property is in need
of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. The Purchased
Assets are sufficient for the continued conduct of the Business after the Closing in substantially the same manner as conducted
prior to the Closing and constitute all of the rights, property and assets necessary to conduct the Business as currently conducted.
None of the Excluded Assets are material to the Business.
Section
4.10 Intentionally Omitted.
Section
4.11 Intellectual Property.
(a) Section
4.11(a) of the Disclosure Schedules lists all (i) Intellectual Property Registrations and (ii) Intellectual Property Assets,
including software, that are necessary, material or desirable to the operation of the Business as currently conducted or as proposed
to be conducted or which relate to the research, development, manufacture use or sale of the NDD or the CAT. All required filings
and fees related to the Intellectual Property Registrations have been timely filed with and paid to the relevant Governmental Authorities
and authorized registrars, and all Intellectual Property Registrations are otherwise in good standing. Seller has provided Buyer
with true and complete copies of file histories, documents, certificates, office actions, correspondence and other materials related
to all Intellectual Property Registrations.
(b) Section
4.11(b) of the Disclosure Schedules lists all Intellectual Property Agreements. Seller has provided Buyer with true and complete
copies of all such Intellectual Property Agreements, including all modifications, amendments and supplements thereto and waivers
thereunder. Each Intellectual Property Agreement is valid and binding on Seller in accordance with its terms and is in full force
and effect. None of Seller or, to Seller's Knowledge, any other party thereto is in breach of or default under (or is alleged to
be in breach of or default under), or has provided or received any notice of breach or default of or any intention to terminate,
any Intellectual Property Agreement. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute
an event of default under any Intellectual Property Agreement or result in a termination thereof or would cause or permit the acceleration
or other changes of any right or obligation or the loss of any benefit thereunder.
(c) Seller
is the sole and exclusive legal and beneficial, and with respect to the Intellectual Property Registrations, record owner of all
right, title and interest in and to the Intellectual Property Assets, and has the valid right to use all other Intellectual Property
used in or necessary for the conduct of the Business as currently conducted or as proposed to be conducted, in each case, free
and clear of Encumbrances other than Permitted Encumbrances. Without limiting the generality of the foregoing, Seller has entered
into binding, written agreements with every current and former employee of Seller, and with every current and former independent
contractor, whereby such employees and independent contractors (i) assign to Seller any ownership interest and right they may have
in the Intellectual Property Assets; and (ii) acknowledge Seller's exclusive ownership of all Intellectual Property Assets. Seller
has provided Buyer with true and complete copies of all such agreements.
(d) The
Intellectual Property Assets and Intellectual Property licensed under the Intellectual Property Agreements are all of the Intellectual
Property necessary to operate the Business as presently conducted or as proposed to be conducted. The consummation of the transactions
contemplated hereunder will not result in the loss or impairment of or payment of any additional amounts with respect to, nor require
the consent of any other Person in respect of, the Buyer's right to own, use or hold for use any Intellectual Property as owned,
used or held for use in the conduct of the Business as currently conducted or as proposed to be conducted.
(e) Seller's
rights in the Intellectual Property Assets are valid, subsisting and enforceable. Seller has taken all reasonable steps to maintain
the Intellectual Property Assets and to protect and preserve the confidentiality of all trade secrets included in the Intellectual
Property Assets, including requiring all Persons having access thereto to execute written non-disclosure agreements.
(f) The
conduct of the Business as currently and formerly conducted, and the Intellectual Property Assets and Intellectual Property licensed
under the Intellectual Property Agreements as currently or formerly owned, licensed or used by Seller, have not infringed, misappropriated,
diluted or otherwise violated, and have not, do not and will not infringe, dilute, misappropriate or otherwise violate, the Intellectual
Property or other rights of any Person. No Person has infringed, misappropriated, diluted or otherwise violated, or is currently
infringing, misappropriating, diluting or otherwise violating, any Intellectual Property Assets.
(g) There
are no Actions (including any oppositions, interferences or re-examinations) settled, pending or threatened (including in the form
of offers to obtain a license): (i) alleging any infringement, misappropriation, dilution or violation of the Intellectual Property
of any Person by Seller in connection with the Business; (ii) challenging the validity, enforceability, registrability or ownership
of any Intellectual Property Assets or Seller's rights with respect to any Intellectual Property Assets; or (iii) by Seller or
any other Person alleging any infringement, misappropriation, dilution or violation by any Person of any Intellectual Property
Assets. Seller is not subject to any outstanding or prospective Governmental Order (including any motion or petition therefor)
that does or would restrict or impair the use of any Intellectual Property Assets.
Section
4.12 Inventory. All Inventory, consists
of a quality and quantity usable and salable in the ordinary course of business consistent with past practice, except for obsolete,
damaged, defective or slow-moving items that have been written off or written down to fair market value or for which adequate reserves
have been established. All Inventory is owned by Seller free and clear of all Encumbrances, and no Inventory is held on a consignment
basis. The quantities of each item of Inventory (whether raw materials, work-in-process or finished goods) are not excessive, but
are reasonable in the present circumstances of Seller.
Section
4.13 Intentionally Omitted.
Section
4.14 Customers and Suppliers.
(a) Section
4.14(a) of the Disclosure Schedules sets forth with respect to the Business (i) each customer who has paid aggregate consideration
to Seller for goods or services rendered in an amount greater than or equal to $10,000 for each of the three most recent fiscal
years (collectively, the "Material Customers"); and (ii) the amount of consideration paid by each Material Customer
during such periods. Except as set forth in Section 4.14(a) of the Disclosure Schedules, Seller has not received any notice,
and has no reason to believe, that any of the Material Customers has ceased, or intends to cease after the Closing, to use the
goods or services of the Business or to otherwise terminate or materially reduce its relationship with the Business.
(b) Section
4.14(b) of the Disclosure Schedules sets forth with respect to the Business (i) each supplier to whom Seller has paid consideration
for goods or services rendered in an amount greater than or equal to $10,000 for each of the three most recent fiscal years (collectively,
the "Material Suppliers"); and (ii) the amount of purchases from each Material Supplier during such periods. Except
as set forth in Section 4.14(b) of the Disclosure Schedules, Seller has not received any notice, and has no reason to believe,
that any of the Material Suppliers has ceased, or intends to cease, to supply goods or services to the Business or to otherwise
terminate or materially reduce its relationship with the Business.
Section
4.15 Insurance. Section 4.15
of the Disclosure Schedules sets forth (a) a true and complete list of all current policies or binders of fire, liability, product
liability, umbrella liability, real and personal property, workers' compensation, vehicular, fiduciary liability and other casualty
and property insurance maintained by Seller or its Affiliates and relating to the Business, the Purchased Assets or the Assumed
Liabilities (collectively, the "Insurance Policies"); and (b) with respect to
the Business, the Purchased Assets or the Assumed Liabilities, a list of all pending claims and the claims history for Seller since
January 1, 2013. [Except as set forth on Section 4.15 of the Disclosure Schedules,] there are no claims related to
the Business, the Purchased Assets or the Assumed Liabilities pending under any such Insurance Policies as to which coverage has
been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights. Neither Seller nor any
of its Affiliates has received any written notice of cancellation of, premium increase with respect to, or alteration of coverage
under, any of such Insurance Policies. All premiums due on such Insurance Policies have either been paid or, if not yet due, accrued.
All such Insurance Policies (a) are in full force and effect and enforceable in accordance with their terms; (b) are provided by
carriers who are financially solvent; and (c) have not been subject to any lapse in coverage. None of Seller or any of its Affiliates
is in default under, or has otherwise failed to comply with, in any material respect, any provision contained in any such Insurance
Policy. The Insurance Policies are of the type and in the amounts customarily carried by Persons conducting a business similar
to the Business and are sufficient for compliance with all applicable Laws and Contracts to which Seller is a party or by which
it is bound. True and complete copies of the Insurance Policies have been made available to Buyer.
Section
4.16 Legal Proceedings; Governmental Orders.
(a) There
are no Actions pending or, to Seller's Knowledge, threatened against or by Seller (a) relating to or affecting the Business, the
Purchased Assets or the Assumed Liabilities; or (b) that challenge or seek to prevent, enjoin or otherwise delay the transactions
contemplated by this Agreement. No event has occurred or circumstances exist that may give rise to, or serve as a basis for, any
such Action.
(b) There
are no outstanding Governmental Orders and no unsatisfied judgments, penalties or awards against, relating to or affecting the
Business.
Section
4.17 Compliance With Laws; Permits; FDA; Testing.
(a) Seller
has complied, and is now complying, with all Laws applicable to the conduct of the Business as currently conducted or the ownership
and use of the Purchased Assets. There are no actual or threatened enforcement actions by any court or regulatory body, including
but not limited to the FDA. All reports, documents, claims, permits and notices that must be filed, maintained, or furnished to
regulatory authorities, including the FDA, by Seller or any person that manufactures, develops, packages, processes, labels, tests
or distributes the NDD or the CAT have been so filed, maintained or furnished. No permit issued by the FDA has been limited, suspended
or revoked nor is the FDA considering such action. All preclinical testing and clinical trials being funded or conducted by Seller
are being conducted and comply with experimental protocols, procedures and controls, accepted professional scientific standards
and applicable law.
(b) All
Permits required for Seller to conduct the Business as currently conducted or for the ownership and use of the Purchased Assets
have been obtained by Seller and are valid and in full force and effect. All fees and charges with respect to such Permits as of
the date hereof have been paid in full. Section 4.17(b) of the Disclosure Schedules lists all current Permits issued to
Seller which are related to the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets,
including the names of the Permits and their respective dates of issuance and expiration. No event has occurred that, with or without
notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse or limitation of any
Permit set forth in Section 4.17(b) of the Disclosure Schedules.
Section
4.18 Intentionally Omitted.
Section
4.19 Employee Benefit Matters.
(a) Section
4.19(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment,
consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change
in control, retention, severance, vacation, paid time off, welfare, fringe-benefit and other similar agreement, plan, policy, program
or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including
each "employee benefit plan" within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or
not subject to ERISA, which is or has been maintained, sponsored, contributed to, or required to be contributed to by Seller for
the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Business
or any spouse or dependent of such individual, or under which Seller or any of its ERISA Affiliates has or may have any Liability,
or with respect to which Buyer or any of its Affiliates would reasonably be expected to have any Liability, contingent or otherwise
(as listed on Section 4.19(a) of the Disclosure Schedules, each, a "Benefit Plan").
(b)
There is no pending or, to Seller's Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits),
and no Benefit Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental
Authority or the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction
or similar program sponsored by any Governmental Authority.
(c) Neither
the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence
of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor
or consultant of the Business to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or
increase the amount of compensation due to any such individual; (iii) increase the amount payable under or result in any other
material obligation pursuant to any Benefit Plan; (iv) result in "excess parachute payments" within the meaning of Section
280G(b) of the Code; or (v) require a "gross-up" or other payment to any "disqualified individual" within the
meaning of Section 280G(c) of the Code.
Section
4.20 Employment Matters.
(a) As
of the date hereof, all compensation, including wages, commissions and bonuses payable to all employees, independent contractors
or consultants of the Business for services performed on or prior to the date hereof have been paid in full and there are no outstanding
agreements, understandings or commitments of Seller with respect to any compensation, commissions or bonuses.
(b) Seller
is not, and has not been for the past three years, a party to, bound by, or negotiating any collective bargaining agreement or
other Contract with a union, works council or labor organization (collectively, "Union"), and there is not, and
has not been for the past three years, any Union representing or purporting to represent any employee of Seller, and no Union or
group of employees is seeking or has sought to organize employees for the purpose of collective bargaining. There has never been,
nor has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar
labor disruption or dispute affecting Seller or any employees of the Business. Seller has no duty to bargain with any Union.
(c) There
are no Actions against Seller pending, or to the Seller's Knowledge, threatened to be brought or filed, by or with any Governmental
Authority or arbitrator in connection with the employment of any current or former applicant, employee, consultant or independent
contractor of the Business, including, without limitation, any claim relating to unfair labor practices, employment discrimination,
harassment, retaliation, equal pay, wages and hours or any other employment related matter arising under applicable Laws.
Section
4.21 Taxes.
(a) All
Tax Returns with respect to the Business required to be filed by Seller for any Pre-Closing Tax Period have been, or will be, timely
filed. Such Tax Returns are, or will be, true, complete and correct in all respects. All Taxes due and owing by Seller (whether
or not shown on any Tax Return) have been, or will be, timely paid.
(b) Seller
has withheld and paid each Tax required to have been withheld and paid in connection with amounts paid or owing to any Employee,
independent contractor, creditor, customer, shareholder or other party, and complied with all information reporting and backup
withholding provisions of applicable Law.
(c) No
extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of Seller.
(d) All
deficiencies asserted, or assessments made, against Seller as a result of any examinations by any taxing authority have been fully
paid.
(e) Seller
is not a party to any Action by any taxing authority. There are no pending or threatened Actions by any taxing authority.
(f) There
are no Encumbrances for Taxes upon any of the Purchased Assets nor[, to Seller's Knowledge,] is any taxing authority in the process
of imposing any Encumbrances for Taxes on any of the Purchased Assets (other than for current Taxes not yet due and payable).
(g) Seller
is not a "foreign person" as that term is used in Treasury Regulations Section 1.1445-2.
(h) Seller
is not, and has not been, a party to, or a promoter of, a "reportable transaction" within the meaning of Section 6707A(c)(1)
of the Code and Treasury Regulations Section 1.6011 4(b).
Section
4.22 Brokers. No broker,
finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions
contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Seller.
Section
4.23 Full Disclosure. No
representation or warranty by Seller in this Agreement and no statement contained in the Disclosure Schedules to this Agreement
or any certificate or other document furnished or to be furnished to Buyer pursuant to this Agreement contains any untrue statement
of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances
in which they are made, not misleading.
Article
V
Representations and warranties of buyer
Buyer represents and
warrants to Seller that the statements contained in this Article V are true and correct as of the date hereof.
Section
5.01 Organization of Buyer. Buyer
is a limited liability company duly organized, validly existing and in good standing under the Laws of the state of Louisiana.
Section
5.02 Authority of Buyer. Buyer
has full corporate power and authority to enter into this Agreement and the other Transaction Documents to which Buyer is a party,
to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution
and delivery by Buyer of this Agreement and any other Transaction Document to which Buyer is a party, the performance by Buyer
of its obligations hereunder and thereunder and the consummation by Buyer of the transactions contemplated hereby and thereby have
been duly authorized by all requisite corporate action on the part of Buyer. This Agreement has been duly executed and delivered
by Buyer, and (assuming due authorization, execution and delivery by Seller) this Agreement constitutes a legal, valid and binding
obligation of Buyer enforceable against Buyer in accordance with its terms. When each other Transaction Document to which Buyer
is or will be a party has been duly executed and delivered by Buyer (assuming due authorization, execution and delivery by each
other party thereto), such Transaction Document will constitute a legal and binding obligation of Buyer enforceable against it
in accordance with its terms.
Section
5.03 No Conflicts; Consents. The
execution, delivery and performance by Buyer of this Agreement and the other Transaction Documents to which it is a party, and
the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation
or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents of
Buyer; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Buyer;
or (c) require the consent, notice or other action by any Person under any Contract to which Buyer is a party. No consent, approval,
Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect
to Buyer in connection with the execution and delivery of this Agreement and the other Transaction Documents and the consummation
of the transactions contemplated hereby and thereby.
Section
5.04 Brokers. No broker,
finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transactions
contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Buyer.
Section
5.05 Legal Proceedings. There
are no Actions pending or, to Buyer's knowledge, threatened against or by Buyer or any Affiliate of Buyer that challenge or seek
to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. No event has occurred or circumstances exist
that may give rise or serve as a basis for any such Action.
Article
VI
Covenants
Section
6.01 Employees and Employee Benefits.
(a) Commencing
on the Closing Date, Seller shall terminate all employees of the Business who are actively at work on the Closing Date, and, at
Buyer's sole discretion, Buyer may offer employment, on an "at will" basis, to any or all of such employees.
(b) Seller
shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any
current or former employee, officer, director, independent contractor or consultant of the Business, including, without limitation,
hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period
relating to the service with Seller at any time on or prior to the Closing Date and Seller shall pay all such amounts to all entitled
persons on or prior to the Closing Date.
(c) Seller
shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability
benefits brought by or in respect of current or former employees, officers, directors, independent contractors or consultants of
the Business or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing
Date. Seller also shall remain solely responsible for all worker's compensation claims of any current or former employees, officers,
directors, independent contractors or consultants of the Business which relate to events occurring on or prior to the Closing Date.
Seller shall pay, or cause to be paid, all such amounts to the appropriate persons as and when due.
Section
6.02 Confidentiality. From
and after the Closing, Seller shall, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause
its or their respective Representatives to hold, in confidence any and all information, whether written or oral, concerning the
Business, except to the extent that Seller can show that such information (a) is generally available to and known by the public
through no fault of Seller, any of its Affiliates or their respective Representatives; or (b) is lawfully acquired by Seller, any
of its Affiliates or their respective Representatives from and after the Closing from sources which are not prohibited from disclosing
such information by a legal, contractual or fiduciary obligation. If Seller or any of its Affiliates or their respective Representatives
are compelled to disclose any information by judicial or administrative process or by other requirements of Law, Seller shall promptly
notify Buyer in writing and shall disclose only that portion of such information which Seller is advised by its counsel in writing
is legally required to be disclosed, provided that Seller shall use reasonable best efforts to obtain an appropriate protective
order or other reasonable assurance that confidential treatment will be accorded such information.
Section
6.03 Non-competition; Non-solicitation
(a) For
a period of three years commencing on the Closing Date (the "Restricted Period"), Seller shall not, and shall
not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business
in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory
in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause,
induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing
or former client or customer of Seller and any Person that becomes a client or customer of the Business after the Closing), or
any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective
relationship. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an investment, securities of any
Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls,
such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During
the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit
any person who is offered employment by Buyer or is or was employed in the Business during the Restricted Period, or encourage
any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general
solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.03
shall prevent Seller or any of its Affiliates from hiring (i) any employee whose employment has been terminated by Buyer or (ii)
after one year from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) Seller
acknowledges that a breach or threatened breach of this Section 6.03 would give rise to irreparable harm to Buyer, for which
monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller
of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect
of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and
any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(d) Seller
acknowledges that the restrictions contained in this Section 6.03 are reasonable and necessary to protect the legitimate
interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated
by this Agreement. In the event that any covenant contained in this Section 6.03 should ever be adjudicated to exceed the
time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly
empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic,
product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.03 and each
provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or
provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Section
6.04 Governmental Approvals and Consents
(a) Each
party hereto shall, as promptly as possible, use reasonable best efforts to obtain, or cause to be obtained, all consents, authorizations,
orders and approvals from all Governmental Authorities that may be or become necessary for its execution and delivery of this Agreement
and the performance of its obligations pursuant to this Agreement and the other Transaction Documents. Each party shall cooperate
fully with the other party and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals.
The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt
of any required consents, authorizations, orders and approvals.
(b) Seller
and Buyer shall use reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are described
in Section 4.03 of the Disclosure Schedules.
Section
6.05 Books and Records.
(a) In
order to facilitate the resolution of any claims made against or incurred by Seller prior to the Closing, or for any other reasonable
purpose, for a period of five years after the Closing, Buyer shall:
(i) retain
the Books and Records (including personnel files) relating to periods prior to the Closing in a manner reasonably consistent with
the prior practices of Seller; and
(ii) upon
reasonable notice, afford the Seller's Representatives reasonable access (including the right to make, at Seller's expense, photocopies),
during normal business hours, to such Books and Records.
(b) In
order to facilitate the resolution of any claims made by or against or incurred by Buyer after the Closing, or for any other reasonable
purpose, for a period of five years following the Closing, Seller shall:
(i) retain
the books and records (including personnel files) of Seller which relate to the Business and its operations for periods prior to
the Closing; and
(ii) upon
reasonable notice, afford the Buyer's Representatives reasonable access (including the right to make, at Buyer's expense, photocopies),
during normal business hours, to such books and records.
Section
6.06 Public Announcements. Unless
otherwise required by applicable Law or stock exchange requirements, Seller shall not make any public announcements in respect
of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without the prior written
consent of Buyer.
Section
6.07 Bulk Sales Laws. The
parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction that may
otherwise be applicable with respect to the sale of any or all of the Purchased Assets to Buyer; it being understood that any Liabilities
arising out of the failure of Seller to comply with the requirements and provisions of any bulk sales, bulk transfer or similar
Laws of any jurisdiction which would not otherwise constitute Assumed Liabilities shall be treated as Excluded Liabilities.
Section
6.08 Receivables. From
and after the Closing, if Seller or any of its Affiliates receives or collects any funds relating to any Accounts Receivable or
any other Purchased Asset, Seller or its Affiliate shall remit such funds to Buyer within five Business Days after its receipt
thereof. From and after the Closing, if Buyer or its Affiliate receives or collects any funds relating to any Excluded Asset, Buyer
or its Affiliate shall remit any such funds to Seller within five Business Days after its receipt thereof.
Section
6.09 Transfer Taxes. All
transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and
interest) incurred in connection with this Agreement and the other Transaction Documents (including any real property transfer
Tax and any other similar Tax) 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
6.10 Further Assurances. Following
the Closing, each of the parties hereto shall, and shall cause their respective Affiliates to, execute and deliver such additional
documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the
provisions hereof and give effect to the transactions contemplated by this Agreement and the other Transaction Documents.
Article
VII
Conditions to closing
Section
7.01 Conditions to Obligations of All Parties. The
obligations of each party to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at
or prior to the Closing, of each of the following conditions:
(a) No
Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and
has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation
of such transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof.
(b) Seller
shall have received all consents, authorizations, orders and approvals from the Governmental Authorities referred to in Section
4.03 in form and substance reasonably satisfactory to Seller, and no such consent, authorization, order and approval shall
have been revoked.
Section
7.02 Conditions to Obligations of Buyer. The
obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer's
waiver, at or prior to the Closing, of each of the following conditions:
(a) Other
than the representations and warranties of Seller contained in Section 4.01, Section 4.02, Section 4.04 and
Section 4.22, the representations and warranties of Seller contained in this Agreement, the other Transaction Documents
and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation
or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation
or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing
Date with the same effect as though made at and as of such date (except those representations and warranties that address matters
only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations
and warranties of Seller contained in Section 4.01, Section 4.02, Section 4.04 and Section 4.22 shall
be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though
made at and as of such date (except those representations and warranties that address matters only as of a specified date, the
accuracy of which shall be determined as of that specified date in all respects).
(b) Seller
shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this
Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No
Action shall have been commenced against Buyer or Seller, which would prevent the Closing. No injunction or restraining order shall
have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.
(d) All
approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules shall have been received, and
executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.
(e) Seller
shall have delivered to Buyer duly executed counterparts to the Transaction Documents (other than this Agreement) and such other
documents and deliveries set forth in Section 3.02(a).
(f) Buyer
shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.
(g) All
Encumbrances relating to the Purchased Assets shall have been released in full, other than Permitted Encumbrances, and Seller shall
have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of the release of such Encumbrances.
(h) Buyer
shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions
set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (the "Seller Closing Certificate").
(i) Buyer
shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that
attached thereto are true and complete copies of all resolutions adopted by the managers and members of Seller authorizing the
execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions
contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted
in connection with the transactions contemplated hereby and thereby.
(j) Buyer
shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying the names
and signatures of the officers of Seller authorized to sign this Agreement, the Transaction Documents and the other documents to
be delivered hereunder and thereunder.
(k) Seller
shall have delivered to Buyer such other documents or instruments as Buyer reasonably requests and are reasonably necessary to
consummate the transactions contemplated by this Agreement.
Section
7.03 Conditions to Obligations of Seller. The
obligations of Seller to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Seller's
waiver, at or prior to the Closing, of each of the following conditions:
(a) Other
than the representations and warranties of Buyer contained in Section 5.01, Section 5.02 and Section 5.04,
the representations and warranties of Buyer contained in this Agreement, the other Transaction Documents and any certificate or
other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty
qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty
not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the
same effect as though made at and as of such date (except those representations and warranties that address matters only as of
a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and
warranties of Buyer contained in Section 5.01, Section 5.02 and Section 5.04 shall be true and correct in
all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such
date.
(b) Buyer
shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this
Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date.
(c) No
injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits
any material transaction contemplated hereby.
(d) Buyer
shall have delivered to Seller duly executed counterparts to the Transaction Documents (other than this Agreement) and such other
documents and deliveries set forth in Section 3.02(b).
(e) Seller
shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Buyer, that each of the conditions
set forth in Section 7.03(a) and Section 7.03(b) have been satisfied (the "Buyer Closing Certificate").
(f) Seller
shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached
thereto are true and complete copies of all resolutions adopted by the sole manager and sole member of Buyer authorizing the execution,
delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated
hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection
with the transactions contemplated hereby and thereby.
(g) Seller
shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names
and signatures of the officers of Buyer authorized to sign this Agreement, the Transaction Documents and the other documents to
be delivered hereunder and thereunder.
(h) Buyer
shall have delivered to Seller such other documents or instruments as Seller reasonably requests and are reasonably necessary to
consummate the transactions contemplated by this Agreement.
Article
VIII
Indemnification
Section
8.01 Survival. Subject
to the limitations and other provisions of this Agreement, the representations and warranties contained herein shall survive the
Closing and shall remain in full force and effect until the date that is three years from the Closing Date; provided, that
the representations and warranties in (i) Section 4.01, Section 4.02, Section 4.08, Section 4.09, Section
4.22, Section 5.01, Section 5.02 and Section 5.04 shall survive indefinitely, (ii) Section 4.19
and Section 4.21 shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver,
mitigation or extension thereof) plus 60 days. All covenants and agreements of the parties contained herein shall survive the Closing
indefinitely or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in good faith with
reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching
party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant
representation or warranty and such claims shall survive until finally resolved.
Section
8.02 Indemnification By Seller. Subject
to the other terms and conditions of this Article VIII, Seller shall indemnify and defend each of Buyer and its Affiliates
and their respective Representatives (collectively, the "Buyer Indemnitees")
against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses
incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of:
(a) any
inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement, the other Transaction
Documents or in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement, as of the date such
representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for
representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined
with reference to such specified date);
(b) any
breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement, the other
Transaction Documents or any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement;
(c) any
Excluded Asset or any Excluded Liability; or
(d) any
Third Party Claim based upon, resulting from or arising out of the business, operations, properties, assets or obligations of Seller
or any of its Affiliates conducted, existing or arising on or prior to the Closing Date.
Section
8.03 Indemnification By Buyer. Subject
to the other terms and conditions of this Article VIII, Buyer shall indemnify and defend each of Seller and its Affiliates
and their respective Representatives (collectively, the "Seller Indemnitees")
against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses
incurred or sustained by, or imposed upon, the Seller Indemnitees based upon, arising out of, with respect to or by reason of:
(a) any
inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement, the other Transaction
Documents or in any certificate or instrument delivered by or on behalf of Buyer pursuant to this Agreement, as of the date such
representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for
representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined
with reference to such specified date);
(b) any
breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement, the other
Transaction Documents or any certificate or instrument delivered by or on behalf of Buyer pursuant to this Agreement; or
(c) any
Assumed Liability.
Section
8.04 Certain Limitations. The
indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Seller
shall not be liable to the Buyer Indemnitees for indemnification under Section 8.02(a) until the aggregate amount of all
Losses in respect of indemnification under Section 8.02(a) exceeds $25,000 (the "Basket"), in which event
Seller shall be required to pay or be liable for all such Losses from the first dollar.
(b) Buyer
shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all
Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Buyer shall be required to
pay or be liable for all such Losses from the first dollar.
(c) For
purposes of this Article VIII, any inaccuracy in or breach of any representation or warranty shall be determined without
regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such
representation or warranty.
Section
8.05 Indemnification Procedures. The
party making a claim under this Article VIII is referred to as the "Indemnified Party",
and the party against whom such claims are asserted under this Article VIII is referred to as the "Indemnifying
Party".
(a) Third
Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any
Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a
"Third Party Claim") against such Indemnified Party with respect to which the Indemnifying Party is obligated
to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written
notice thereof, but in any event not later than 30 calendar days after receipt of such notice of such Third Party Claim. The failure
to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except
and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified
Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof
and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified
Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to
assume the defense of any Third Party Claim at the Indemnifying Party's expense and by the Indemnifying Party's own counsel, and
the Indemnified Party shall cooperate in good faith in such defense; provided, that if the Indemnifying Party is Seller,
such Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (x) is asserted
directly by or on behalf of a Person that is a supplier or customer of the Business, or (y) seeks an injunction or other equitable
relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject
to Section 8.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal
or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified
Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying
Party's right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified
Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available
to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists
a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall
be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified
Party determines counsel is required. If the Indemnifying Party elects not to compromise or defend such Third Party Claim, fails
to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently
prosecute the defense of such Third Party Claim, the Indemnified Party may, subject to Section 8.05(b), pay, compromise,
defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third
Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any
Third Party Claim, including making available records relating to such Third Party Claim and furnishing, without expense (other
than reimbursement of actual out-of-pocket expenses) to the defending party and management employees of the non-defending party
as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
(b) Settlement
of Third Party Claims. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement
of any Third Party Claim without the prior written consent of the Indemnified Party, except as provided in this Section 8.05(b).
If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation
on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from
all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree
to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party
fails to consent to such firm offer within 10 Business Days after its receipt of such notice, the Indemnified Party may continue
to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third
Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer
and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon the terms
set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed the defense pursuant to Section
8.05(a), it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not
be unreasonably withheld or delayed).
(c) Direct
Claims. Any Action by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (a "Direct
Claim") shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof,
but in any event not later than 30 days after the Indemnified Party becomes aware of such Direct Claim. The failure to give such
prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to
the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party
shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate
the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying
Party shall have 30 days after its receipt of such notice to respond in writing to such Direct Claim. The Indemnified Party shall
allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the
Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall
assist the Indemnifying Party's investigation by giving such information and assistance (including access to the Indemnified Party's
premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of
its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such 30 day period, the
Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified Party shall be free to pursue such
remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
Section
8.06 Payments. Once
a Loss is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this Article VIII, the Indemnifying
Party shall satisfy its obligations within 15 Business Days of such final, non-appealable adjudication by wire transfer of immediately
available funds. The parties hereto agree that should an Indemnifying Party not make full payment of any such obligations within
such 15 Business Day period, any amount payable shall accrue interest from and including the date of agreement of the Indemnifying
Party or final, non-appealable adjudication to but excluding the date such payment has been made at a rate per annum equal to 18%
per annum. Such interest shall be calculated daily on the basis of a 365 day year and the actual number of days elapsed without
compounding.
Section
8.07 Tax Treatment of Indemnification Payments. All
indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for Tax
purposes, unless otherwise required by Law.
Section
8.08 Effect of Investigation. The
representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party's right to indemnification with
respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified
Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives
knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified
Party's waiver of any condition set forth in Section 7.02 or Section 7.03, as the case may be.
Section
8.09 Exclusive Remedies. Subject
to Section 6.03 and Section 9.11, the parties acknowledge and agree that their sole and exclusive remedy with respect
to any and all claims (other than claims arising from fraud, criminal activity or willful misconduct on the part of a party hereto
in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement
or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification
provisions set forth in this Article VIII. In furtherance of the foregoing, each party hereby waives, to the fullest extent
permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant,
agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the
other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except
pursuant to the indemnification provisions set forth in this Article VIII. Nothing in this Section 8.09 shall limit
any Person's right to seek and obtain any equitable relief to which any Person shall be entitled or to seek any remedy on account
of any party's fraudulent, criminal or intentional misconduct.
Article
IX
Miscellaneous
Section
9.01 Expenses. Except
as otherwise expressly provided herein, all costs and expenses, including, without limitation, fees and disbursements of counsel,
financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the Closing shall have occurred.
Section
9.02 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 fifth 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 9.02):
If to Seller: |
Big Horse Holdings, Inc.
1900 NW 32nd Street
Pompano Beach, Florida 33064
E-mail: jmroth@me.com
Attention: Jason M. Roth |
|
|
with a copy to: |
Barrry Roderman, Esq.
E-mail: bgr@barryroderman.com
|
If to Buyer: |
RedHawk Medical Products & Services,
LLC
219 Chemin Metairie Road
Youngsville, Louisiana 70592
E-mail: darcy.klug@redhawkenergycorp.com
Attention: G. Darcy Klug |
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with a copy to: |
Gordon, Arata, McCollam, Duplantis &
Eagan, LLC
400 E. Kaliste Saloom Road, Suite 4200
Lafayette, Louisiana 70508
E-mail: smasur@gordonatata.com
Attention: Samuel E. Masur |
Section
9.03 Interpretation. For
purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to
be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein,"
"hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Unless
the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and Exhibits mean the Articles
and Sections of, and Disclosure Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document
means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted
by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation
thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule
requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The
Disclosure Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the
same extent as if they were set forth verbatim herein.
Section
9.04 Headings. The
headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Section
9.05 Severability. If
any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term
or provision in any other jurisdiction. Except as provided in Section 6.03(d), upon such determination that any term or
other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Section
9.06 Entire Agreement. This
Agreement and the other Transaction Documents constitute the sole and entire agreement of the parties to this Agreement with respect
to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements,
both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body
of this Agreement and those in the other Transaction Documents, the Exhibits and Disclosure Schedules (other than an exception
expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.
Section
9.07 Successors and Assigns. This
Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted
assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed[; provided, however, that prior to the Closing Date, Buyer may, without
the prior written consent of Seller, assign all or any portion of its rights under this Agreement to one or more of its direct
or indirect wholly-owned subsidiaries]. No assignment shall relieve the assigning party of any of its obligations hereunder.
Section
9.08 No Third-party Beneficiaries. Except
as provided in Article VIII, 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
9.09 Amendment and Modification; Waiver. This
Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any
party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving.
No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified
by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure
to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed
as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Section
9.10 Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial.
(a) This
Agreement shall be governed by and construed in accordance with the internal laws of the State of Louisiana without giving effect
to any choice or conflict of law provision or rule (whether of the State of Louisiana or any other jurisdiction).
(b) ANY
LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE
OF LOUISIANA IN EACH CASE LOCATED IN THE CITY OF LAFAYETTE AND PARISH OF LAFAYETTE, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL
TO SUCH PARTY'S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT
IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS 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, THE OTHER TRANSACTION
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A)
NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE
FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.10(c).
Section
9.11 Specific Performance. The
parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the
terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy
to which they are entitled at law or in equity.
Section
9.12 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed
to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission
shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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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BIG HORSE HOLDINGS, INC. |
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By |
/s/ Jason M. Roth |
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Jason M. Roth, President |
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/s/ Jason M. Roth |
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Jason M. Roth |
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REDHAWK MEDICAL PRODUCTS |
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& SERVICES, LLC |
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By |
/s/ G. Darcy Klug |
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G. Darcy Klug, Manager |
EXHIBIT 10.5
Commercial Note
Line of Credit
$100,000.00 |
November 12, 2015 |
Subject to the terms and conditions of
this Commercial Note for Line of Credit (the “Note”), Beechwood Properties, LLC (“Lender”) has made a Line
of Credit Loan (the “Line of Credit”) to RedHawk Holdings Corp., a Nevada corporation (the “Borrower”),
in the maximum principal amount of ONE HUNDRED THOUSAND and no/100 ($100,000.00) dollars. This Line of Credit is a non-revolving
loan, and the principal amount available under this Line of Credit shall be reduced by the amount of each advance and shall not
be increased after payments have reduced the amount outstanding.
REPAYMENT: |
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All outstanding principal and accrued interest shall be due and payable in full on October 31, 2016 (the “Maturity Date”). Upon fifteen (15) business day’s advance notice, Borrower may prepay without penalty any principal on this Note in whole or in part and any prepayments made on this Note shall be applied to the principal payment(s) due on this Note. |
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INTEREST: |
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Interest shall accrue on this Note at the rate of 5.0% per annum from date of advance until paid, payable in monthly installments of interest only, payable in arrears, commencing on November 30, 2015 and continuing on the same day of each month thereafter, with a final payment of all principal and outstanding interest due (along with any other fees and expenses) and payable on the Maturity Date. |
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DEFAULT RATE: |
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After maturity, whether that maturity results from acceleration or otherwise, interest shall, to the extent permitted by law, accrue at the Default Rate. Additionally, upon the occurrence of any Default (and from and after the date of such occurrence) and following the declaration of the Borrower’s Default, interest shall, to the extent permitted by law, accrue at the Default Rate. The “Default Rate” shall be the maximum rate authorized by applicable law, and if applicable law establishes no maximum rate, then Eighteen Percent (18%) per annum. All interest shall be computed on the basis of the actual number of days elapsed over a year composed of 360 days. Interest shall accrue from the first date that funds are advanced to Borrower until all sums due hereunder are paid in full. |
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ADVANCES: |
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Advances totaling approximately $44,000.00 have been made through the date of this Note. |
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From time to time, and as a condition to each advance under the Line of Credit, Borrower shall submit to Lender a borrowing request, setting forth the principal amount of the advance requested by Borrower from Lender pursuant to the terms hereof, the total amount advanced to date and the requested date of funding. The amount of the requested advance when added to the then outstanding principal balance of the Line of Credit shall not exceed $100,000.00. Such borrowing request shall be made no later than seven (7) business days prior to the requested day of funding. Lender is not obligated to make any additional advances pursuant to any borrowing request and all future advances are in the sole discretion of the Lender. |
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Each advance under this Note and each payment on this Note shall be evidenced by entries in the Lender’s and Borrower’s internal records, which shall be prima facie evidence of (a) the amount of principal and interest owing on this Note from time to time; (b) the amount of each advance made to Borrower under this Note; and (c) the amount of each principal and/or interest payment received by Lender on this Note. The failure to make an accurate entry of advances and payments shall not limit or otherwise affect the obligation of Borrower to repay funds actually advanced by Lender hereunder. |
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OPTIONAL CONVERSION: |
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Subject to the conditions herein, Lender shall have the right, but not the obligation, to convert the amount of any prepayment and all outstanding principal, accrued but unpaid interest, and any other fees, costs and expenses owing to the Lender at maturity into shares of the Company’s Series A preferred stock, par value $1,000.00 per share (the “Preferred Stock”). Such conversions may be made at the Lender’s option upon maturity or any prepayment. |
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In order to convert the amounts outstanding into Preferred Stock, no later than ten (10) business days prior to the Maturity Date, or within seven (7) business days of Borrower’s notice of prepayment, the Lender shall provide written notice of its option to convert amounts owed into shares of the Company Preferred Stock. The number of whole shares of Preferred Stock to be issued shall be equal to: (1) the aggregate amount (including accrued but unpaid interest and fees) owed, or in the event of a conversion upon prepayment, the amount prepaid, by Borrower to Lender divided by (2) the par value of each share of Preferred Stock. The Borrower shall pay Lender cash in lieu of any fractional shares of Preferred Stock that would otherwise be issued. |
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THE PREFERRED STOCK INTO WHICH THIS NOTE IS CONVERTIBLE, AND THE COMMON STOCK INTO WHICH THE PREFERRED STOCK IS CONVERTIBLE HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. |
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DEFAULT: |
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The occurrence of the failure of Borrower to make any payment of principal or interest under this Note when due shall be considered an event of default (“Default”). In the event of a Default, Lender will be under no further obligation to comply with any obligations with respect to this Note. |
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Upon the occurrence of a Default, Lender may pursue any one or more of the following remedies: |
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(i) |
cancel this Note by written notice to Borrower, in which event Lender shall be fully released and relieved of all further obligations and liabilities to Borrower hereunder; provided however, that Borrower shall not be released from any of its obligations and liabilities owed to Lender hereunder; |
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(ii) |
institute appropriate proceedings to specifically enforce performance hereof; or |
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(iii) |
accelerate maturity of the Note, and demand payment (or conversion into Preferred Stock) of the principal sums due hereunder with interest, advances and costs, and in default of said payment or any part hereof and pursue any or all of its other rights and remedies provided by law. |
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The remedies herein provided shall be in addition to and not in substitution for the rights and remedies which would otherwise be vested in Lender at law or in equity, all of which rights and remedies are specifically reserved by Lender. The remedies herein provided or otherwise available to Lender shall be cumulative and may be exercised concurrently. The failure to exercise any of the remedies herein provided shall not constitute a waiver thereof, nor shall exercise of any of the remedies hereby provided prevent the subsequent or concurrent resort to any other remedy or remedies. It is intended that all remedies herein provided or otherwise available to Lender shall continue and be available to Lender until all sums due it by reason of this Note have been paid to it in full and all obligations of Borrower pursuant to this Note have been satisfied. |
Each party to this Note waives presentment
for payment, demand, notice of dishonor, protest, pleas of discussion and division. To secure the indebtedness evidenced by this
Note, including, without limitation, future advances, with interest, reasonable and documented attorneys' fees, documented expenses
of collection and documented costs, Borrower further agrees to pay any and all documented charges, documented fees, documented
costs and/or documented taxes levied or assessed against Lender in connection with this Note. If any payment on this Note is eleven
(11) days or more late, Borrower agrees to pay to the Lender, in addition to the amount otherwise due hereunder, a delinquency
charge of 5.00% of the unpaid amount of payment, or $50.00, whichever is greater. Late charges will not be assessed following declaration
of default and acceleration of maturity of this Note. In the event that any payment under this Note by check or preauthorized charge
is later dishonored or returned to Lender unpaid due to nonsufficient funds, Borrower agrees to pay Lender an additional NSF check
charge equal to $50.00. The provisions of this Note may not be waived or modified except in writing, signed by Lender. No failure
or delay of Lender in exercising its rights shall be construed as a waiver.
SUCCESSORS AND ASSIGNS. This Note
is binding upon and shall inure to the benefit of the Lender and the Borrower and their respective successors and assigns, except
that the Borrower may not assign or transfer any of its rights or obligations under this Note without the prior written consent
of the Lender.
ENTIRE AGREEMENT; AMENDMENT; WAIVERS.
This Note embodies the final, entire agreement among the parties hereto and supersedes any and all prior commitments, agreements,
representations, and understandings, whether written or oral, relating to the subject matter hereof and may not be contradicted
or varied by evidence of prior, contemporaneous, or subsequent oral agreements or discussions of the parties hereto. There are
no oral agreements among the parties hereto. The provisions of this Note to which the Borrower is a party may be amended or waived
only by an instrument in writing signed by the parties hereto.
COUNTERPARTS. This Note may be executed
in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
SEVERABILITY. Any provision of this
Note held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this
Note and the effect thereof shall be confined to the provision held to be invalid or illegal.
APPLICABLE LAW. This Note shall
be governed by and construed and enforced in accordance with the internal laws of the State of Louisiana, without regard to the
principals of conflict of laws thereof.
Lender:
Beechwood Properties, LLC
By: |
/s/ G. Darcy Klug |
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Name: G. Darcy Klug |
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Title: Manager |
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Borrower:
RedHawk Holdings Corp.
By: |
/s/ Daniel J. Schreiber |
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Name: Daniel J. Schreiber |
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Title: Chief Executive Officer |
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Exhibit 99.1
FOR IMMEDIATE RELEASE |
JANUARY 4, 2016 |
Media Contact:
Julie Calzone
(337) 235-2924
jcalzone@calzone.com
Company Contacts:
Daniel J. Schreiber, CEO
(858) 509-8800
dan@redhawkholdingscorp.com
G. Darcy Klug, CFO
(337) 269-5933
darcy.klug@redhawkholdingscorp.com
REDHAWK COMPLETES MEDICAL DEVICE PURCHASE
RedHawk Receives $1.0 Million Working
Capital Infusion
Youngsville, Louisiana
– RedHawk Holdings Corp. (OTC: IDNG) (“RedHawk” or the “Company”) announced today it has
completed the previously announced acquisition of certain high-quality medical device technology, including the tangible and intangible
assets, for the Disintegrator™ Insulin Needle Destruction Unit (“Disintegrator”) and the Carotid Artery Non-Contact
Thermometer (“CAT”). The Disintegrator is the only needle destruction device approved by the United States Food and
Drug Administration. With the acquisition, RedHawk also said it has named the products’ inventor, Jason M. Roth, as the President
of its medical device business unit, RedHawk Medical Products & Services, LLC (“RedHawk Medical”).
Concurrent with completion
of the asset acquisition, the Company received from Beechwood Properties, LLC (“Beechwood”), a working capital injection
of approximately $1.9 million of cash and marketable securities, net of a $1.0 million, 3.5% per annum, line of credit. The working
capital infusion was received in exchange for 1,000 shares of the Company’s newly designated 5% Series B Preferred Stock,
$1,000 par value. Additionally, Beechwood converted into 100 shares of the Company’s 5% Series A Preferred Stock, $1,000
par value, $100,000 of the Company’s outstanding obligation to Beechwood.
Beechwood beneficially
owns approximately 55.8% of RedHawk’s outstanding common stock. Mr. G. Darcy Klug, the Company’s Chief Financial Officer
and Secretary, owns and controls Beechwood.
Commenting on the completion
of the acquisition of the Disintegrator, Daniel J. Schreiber, Chief Executive Officer, said, “The acquisition of the Disintegrator™
and the CAT, combined with the addition of Jason to our management team, is just the first step in building our medical device
business unit. Further strategic acquisitions are anticipated. Jason is widely recognized in the medical industry for his creative
and inventive medical device talents. He is an exciting addition to the RedHawk management team.”
“During the 2015
year,” continued Schreiber, “We restructured our balance sheet in order to position RedHawk to pursue various strategic
acquisitions. With closings of the Disintegrator acquisition and the Beechwood working capital infusion, RedHawk’s balance
sheet has improved dramatically. We can now focus on closing other previously announced acquisitions and maximizing revenues and
profitability”
Jason M. Roth said,
commenting on the acquisition and his joining RedHawk Medical, “I am thrilled to be associated with RedHawk Medical and to
be an integral part of the outstanding RedHawk management team. I believe the Company is well positioned to bring new and exciting
medical products into both the U.S. and European medical marketplace. I believe these new and exciting products, combined with
additional strategic business combinations currently under consideration, will help accelerate the growth of RedHawk Medical.”
“I invented the
Disintegrator to address two huge problems which currently plague the medical industry – needle sticks and hazardous waste
disposal. The U. S. Centers for Disease Control and Prevention estimates that more than a half-million accidental sticks occur
annually, with many of those injuries going unreported. In addition to potential threats to medical professionals, sharps often
end up in recycling centers where workers who come into contact with the used needles can be hurt, or worse, contract life-threatening
disease.”
“Legislators
have passed laws to make it illegal to throw needles and sharps into the trash, but they didn’t mandate a system to safely
dispose of them. Because needles are considered hazardous medical waste, used needles must be placed in puncture-proof containers
and taken to special drop-off sites. Many times, patients have to travel a long-distance to safely dispose the needles but some
of these patients are elderly or too ill to travel these long distances. Although, they can pay to participate in a disposal program
through the mail, wherein used needles are shipped in safe containers to disposal sites, these programs can be expensive.”
“Because of the
growing problem of needle sticks and hazardous waste disposal that continues to plague the medical industry, I created the Disintegrator.
Using proprietary technology that creates an electric arc, the unit safely converts a used needle into a safe, powder residue in
a matter of a few seconds. The powder residue is then no longer considered a hazardous material and can be safely disposed with
the normal household waste.”
# # #
This release may contain forward-looking
statements. Forward-looking statements are all statements other than statements of historical fact. Statements contained in this
release that are not historical facts may be deemed to be forward-looking statements. The words “anticipate,” “may,”
“can,” “plans,” “believes,” “estimates,” “expects,” “projects,”
“targets,” “intends,” “likely,” “will,” “should,” “to be,”
“potential” and any similar expressions are intended to identify those assertions as forward-looking statements.
Investors are cautioned that forward-looking
statements are inherently uncertain. Actual performance and results may differ materially from that projected or suggested herein
due to certain risks and uncertainties. In evaluating forward-looking statements, you should consider the various factors which
may cause actual results to differ materially from any forward-looking statements including those listed in the “Risk Factors”
section of our latest 10-K report. Further, the Company may make changes to its business plans that could or will affect its results.
Investors are cautioned that the Company will undertake no obligation to update any forward-looking statements.