Page | ||
ARTICLE 1 CERTAIN DEFINITIONS | 1 | |
Section 1.1 | Certain Definitions | 1 |
ARTICLE 2 CLOSING; PURCHASE AND SALE | 14 | |
Section 2.1 | Closing of the Transaction | 14 |
Section 2.2 | Purchase and Sale of the Company Shares | 14 |
Section 2.3 | Purchase Price | 14 |
Section 2.4 | Payment of Seller Expenses | 20 |
Section 2.5 | Deferred Payment | 19 |
Section 2.6 | Withholding | 20 |
ARTICLE 3 REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY | 20 | |
Section 3.1 | Organization and Qualification | 20 |
Section 3.2 | Capitalization | 20 |
Section 3.3 | Authority | 21 |
Section 3.4 | Financial Statements; Undisclosed Liabilities | 21 |
Section 3.5 | Consents and Approvals; No Violations | 22 |
Section 3.6 | Material Contracts | 23 |
Section 3.7 | Absence of Changes | 25 |
Section 3.8 | Litigation | 27 |
Section 3.9 | Compliance with Applicable Law; Permits | 27 |
Section 3.10 | Employee Plans | 27 |
Section 3.11 | Environmental Matters | 29 |
Section 3.12 | Intellectual Property, Information Technology and Data Privacy | 29 |
Section 3.13 | Labor Matters | 31 |
Section 3.14 | Insurance | 31 |
Section 3.15 | Tax Matters | 31 |
Section 3.16 | Brokers | 33 |
Section 3.17 | Real and Personal Property | 33 |
Section 3.18 | Transactions with Affiliates | 34 |
Section 3.19 | Anti-Corruption Laws | 34 |
Section 3.20 | Sanctions | 34 |
Section 3.21 | Customers and Suppliers | 34 |
Section 3.22 | Assets and Properties | 34 |
Section 3.23 | EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES | 35 |
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE SELLERS | 35 | |
Section 4.1 | Organization | 35 |
Section 4.2 | Authority | 36 |
Section 4.3 | Consents and Approvals; No Violations | 36 |
Section 4.4 | Title to Company Shares; Ownership of Sellers | 36 |
Section 4.5 | Litigation | 37 |
Section 4.6 | Brokers | 37 |
Section 4.7 | EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES | 37 |
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER | 37 | |
Section 5.1 | Organization | 37 |
Section 5.2 | Authority | 37 |
Section 5.3 | Consents and Approvals; No Violations | 38 |
Section 5.4 | Purchaser Shares | 38 |
Section 5.5 | Brokers | 38 |
Section 5.6 | Financing | 39 |
Section 5.7 | Solvency | 39 |
Section 5.8 | Acquisition For Investment | 39 |
Section 5.9 | Acknowledgment and Representations by Purchaser | 39 |
Section 5.10 | EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES | 40 |
ARTICLE 6 COVENANTS | 40 | |
Section 6.1 | Conduct of Business of the Company | 40 |
Section 6.2 | Access to Information | 42 |
Section 6.3 | Efforts to Consummate | 43 |
Section 6.4 | Exclusive Dealing | 44 |
Section 6.5 | Contact with Customers, Suppliers and Other Business Relations | 45 |
Section 6.6 | Indemnification; Directors’ and Officers’ Insurance | 45 |
Section 6.7 | Documents and Information | 46 |
Section 6.8 | Employee Benefits Matters | 46 |
Section 6.9 | No Public Disclosure | 47 |
Section 6.10 | Tax Matters | 48 |
Section 6.11 | [Intentionally Omitted] | 51 |
Section 6.12 | Consents | 51 |
Section 6.13 | Termination of Agreements | 51 |
Section 6.14 | Resignations | 52 |
Section 6.15 | Further Assurances | 52 |
Section 6.16 | Non-Solicitation | 52 |
Section 6.17 | Special Dividend | 52 |
Section 6.18 | Purchaser Financing | 52 |
Section 6.19 | Second Amended and Restated Right of First Refusal and Co-Sale Agreement | 52 |
ARTICLE 7 CONDITIONS TO CLOSING | 52 | |
Section 7.1 | Conditions to the Obligations of the Parties | 52 |
Section 7.2 | Other Conditions to the Obligations of Purchaser | 53 |
Section 7.3 | Other Conditions to the Obligations of the Company and the Sellers | 54 |
Section 7.4 | Frustration of Closing Conditions | 55 |
ARTICLE 8 TERMINATION | 55 | |
Section 8.1 | Termination | 55 |
Section 8.2 | Notice of Termination | 56 |
Section 8.3 | Effect of Termination | 56 |
ARTICLE 9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION | 57 | |
Section 9.1 | Survival of Representations, Warranties and Covenants | 57 |
Section 9.2 | General Indemnification | 57 |
Section 9.3 | Third-Party Claims | 58 |
Section 9.4 | Limitations on Indemnification Obligations | 59 |
Section 9.5 | Exclusive Remedy | 61 |
Section 9.6 | Manner of Payment | 62 |
ARTICLE 10 MISCELLANEOUS | 63 | |
Section 10.1 | Entire Agreement; Assignment | 63 |
Section 10.2 | Notices | 63 |
Section 10.3 | Governing Law | 64 |
Section 10.4 | Fees and Expenses | 64 |
Section 10.5 | Construction; Interpretation | 65 |
Section 10.6 | Exhibits and Schedules | 66 |
Section 10.7 | Time of the Essence; Computation of Time | 66 |
Section 10.8 | Parties in Interest | 66 |
Section 10.9 | Severability | 66 |
Section 10.10 | Amendment | 66 |
Section 10.11 | Waiver | 67 |
Section 10.12 | Counterparts; Electronic Signatures | 67 |
Section 10.13 | Knowledge of the Company | 67 |
Section 10.14 | Waiver of Jury Trial | 67 |
Section 10.15 | Jurisdiction and Venue | 68 |
Section 10.16 | Remedies | 68 |
Section 10.17 | Waivers | 68 |
Section 10.18 | Limitation on Damages | 69 |
Section 10.19 | Non-Recourse | 69 |
Section 10.20 | Release | 69 |
ARTICLE 11 REPRESENTATIVE OF THE SELLERS | 70 | |
Section 11.1 | Authorization of Sellers’ Representative | 70 |
SCHEDULES | ||
Schedule A | - | Sellers’ Pro Rata Percentages |
EXHIBITS | ||
Exhibit A | - | Example Statement of Net Working Capital |
Exhibit B | - | Example Purchase Price Calculation |
Exhibit C | - | Purchaser Subordinated Convertible Notes Term Sheet |
Exhibit D | - | Form of Company Officer’s Certificate |
Exhibit E | - | Form of Purchaser Officer’s Certificate |
WHEREAS, the Parties entered into that certain Stock Purchase Agreement dated as of October 15, 2019, as amended pursuant to Amendment No. 1 to Stock Purchase Agreement dated as of November 22, 2019 (the “Prior Agreement”);
WHEREAS, Purchaser has requested to make certain changes to the terms governing the Transactions (as defined herein), and the Sellers have agreed to such changes; and
WHEREAS, the Parties desire to amend and restate the Prior Agreement to reflect such changes and are entering into this Agreement in furtherance thereof.
COMPANY | ||
HALO, PURELY FOR PETS, INC. | ||
By: | ||
Name: | ||
Title: |
PURCHASER: | ||
BETTER CHOICE COMPANY INC. | ||
By: | ||
Name: | ||
Title: |
SELLERS: | ||
THRIVING PAWS, LLC | ||
By: | ||
Name: | ||
Title: |
HH-HALO LP | ||
By: | HH-Halo GP LP, its general partner | |
By: HH-Halo GP LLC, its general partner |
By: | ||
Name: | ||
Title: |
SELLERS’ REPRESENTATIVE: | ||
HH-HALO LP | ||
By: | HH-Halo GP LP, its general partner | |
By: HH-Halo GP LLC, its general partner |
By: | ||
Name: | ||
Title: |
SCHEDULES | ||
Schedule A | - | Sellers’ Pro Rata Percentages |
EXHIBITS | ||
Exhibit A | - | Example Statement of Net Working Capital |
Exhibit B | - | Example Purchase Price Calculation |
Exhibit C | - | Purchaser Subordinated Convertible Notes Term Sheet |
Exhibit D | - | Form of Company Officer’s Certificate |
Exhibit E | - | Form of Purchaser Officer’s Certificate |