Asset Purchase Agreement between General Cannabis Corp, NBC Holdings LLC and Richard Cardinal dated July 16, 2021
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the “Agreement”) is entered into as of July 16, 2021 (“Effective Date”), by and among General Cannabis Corp., a Colorado Corporation (“Seller”), or its assigns, and NBC Holdings LLC, together with Richard Cardinal, an individual (collectively together with their respective subsidiaries, affiliates and assigns, “Buyer” or “Buyers”). Seller and Buyer are sometimes referred to individually as a “Party” and collectively as the “Parties.”
A.Seller owns and operates the “Next Big Crop” as a business unit of Seller in the business of cannabis management and consulting services (collectively the “Business”);
B.Buyer desires to purchase certain assets from Seller, and Seller desires to sell certain assets to Buyer.
NOW THEREFORE, the Parties agree as follows:
DEFINITIONS AND CONSTRUCTION
1.1Definitions. Capitalized terms have the meanings set forth below unless defined elsewhere in this Agreement.
“Affiliate” means any Person that directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the Person specified.
“Assets” means the assets set forth on Exhibit A annexed hereto.
“CannaCulture Contracts” means that certain (i) Business Consulting Agreement dated July 14, 2020 and (ii) Operator Agreement, as amended, dated January 25, 2021, each such agreement by and between Seller and CannaCulture, LLC, an Oklahoma limited liability company (“CannaCulture”).
“Charter Documents” means with respect to any Person, the articles or certificate of incorporation, formation or organization and by-laws, the limited partnership agreement, the partnership agreement or the limited liability company agreement, or such other organizational documents of the Person, including those that are required to be registered or kept in the place of incorporation, organization or formation of the Person and which establish the legal personality of the Person.
“Claim” means any demand, claim, action, investigation, or Proceeding.
“Closing” and “Closing Date” shall have the meanings respectively as set forth in Section 2.3 hereof.
“Contract” means any legally binding written contract, lease, license, evidence of indebtedness, mortgage, indenture, purchase order, binding bid, letter of credit, security agreement or other written and legally binding arrangement.
“Governmental Approval” means the approval by the State of Oklahoma and/or any counties or municipalities therein, or any other Governmental Authority, as may be necessary to consummate the transactions contemplated by this Agreement.
“Governmental Authority” means any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of the United States or any state, county, city or other political subdivision or similar governing entity.
“Knowledge” when used in a particular statement of fact in this Agreement, means the actual knowledge (as opposed to any constructive or imputed knowledge) of a Party or its owners, without inquiry.
“Laws” means all laws, statutes, rules, regulations, ordinances, and other pronouncements having the effect of law of a Governmental Authority, except for any United States federal law, rule or regulation related to marijuana which this Agreement may violate.
“Lien” means any mortgage, pledge, assessment, security interest, lien, or other similar encumbrance.
“Loss” means any and all losses, judgments, liabilities, amounts paid in settlement, damages, fines, penalties, deficiencies, losses, and expenses (including interest, court costs, reasonable fees of attorneys, accountants and other experts or other reasonable expenses of litigation or other Proceedings or of any Claim, default or assessment), but only to the extent the losses (a) are not reasonably expected to be covered by a payment from some third party or by insurance or otherwise recoverable from third parties, and (b) are net of any associated benefits arising in connection with the loss.
“Person” means any natural person, corporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union, association, or Governmental Authority.
“Proceeding” means any complaint, lawsuit, action, suit, Claim (including claim of a violation of Law), or other proceeding at law or in equity or order or ruling, in each case by or before any Governmental Authority or arbitral tribunal.
“Profits” means all revenue minus cost of goods sold and general operating expenses.
1.2Rules of Construction.
(a)All article, section, subsection, schedules and exhibit references used in this Agreement are to articles, sections, subsections, schedules and exhibits to this Agreement unless otherwise specified. The exhibits and schedules attached to this Agreement constitute a part of this Agreement and are incorporated herein for all purposes.
(b)If a term is defined as one part of speech (such as a noun), it has a corresponding meaning when used as another part of speech (such as a verb). Unless the context of this Agreement clearly requires otherwise, words importing the masculine gender include the feminine and neutral genders and vice versa. Words in the plural form include the singular form, and words in the singular form include the plural form. The words “includes” or “including” means “including without limitation,” the words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not any particular section or article in which the words appear and any reference to a Law includes any rules and regulations promulgated thereunder. Currency amounts referenced herein are in U.S. dollars.
(c)Whenever this Agreement refers to a number of days, the number refers to calendar days unless Business Days are specified. Whenever any action must be taken hereunder on or by a day that is not a Business Day, then the action may be validly taken on or by the next day that is a Business Day.
(d)Each Party and its respective attorneys have been given an equal opportunity to negotiate the terms and conditions of this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting Party or any similar rule operating against the drafter of an agreement will not be applicable to the construction or interpretation of this Agreement.
PURCHASE OF BUSINESS, PAYMENT, AND CLOSING
2.1Purchase of Assets. At the Closing, Seller shall sell to Buyer and Buyer shall purchase from Seller the Assets.
|(i)||Delivering the sum of $75,000 to Seller upon the Effective Date by wire transfer of immediately available funds to an account specified by Seller;|
|(ii)||Delivering to Seller an additional sum of $75,000 no later than the one-year anniversary of the Closing by wire transfer of immediately available funds to an account specified by Seller; interest to accrue at seven (7) % per annum in the event of a failure to make such payment on a timely basis; and|
|(iii)||Delivering an amount equal to ten percent (10%) of all Profits arising out of, or derived from, any and all business projects or prospects of Buyer and/or its Affiliates in Michigan, Mississippi and Massachusetts for a period of twelve months from the Closing (“Buyer Prospects”). Profits will be calculated and paid on a calendar quarterly basis using the cash method of accounting. Payment is due by the close of business of the last day of the month following close of the last day of the calendar quarter. Should the last day of the month fall on a weekend or holiday, payment shall be due by close of business on the following non-holiday weekday.|
2.3Closing. The closing for the purchase and sale of the Assets (the “Closing”) will be held on the date hereof or as soon thereafter as reasonably practicable (the “Closing Date”). The Closing will be at a time and place agreed to by the Parties, unless the Parties agree that the Closing need not occur at a specific location.
2.4Documents Deliverable at Closing. At the Closing, Seller shall provide to Buyer the Bill of Sale for the Assets in the form attached hereto.
BUYER’S REPRESENTATIONS AND WARRANTIES
Buyer states that the following are true as of the date of this Agreement:
3.1Organization. Buyer is a corporation duly formed, validly existing and in good standing under the Laws of the State of Colorado and has all requisite corporate power and authority to conduct its business as it is now being conducted.
3.2Authority. Buyer has all requisite power and authority to execute and deliver this Agreement and the other instruments to be delivered by Buyer at the Closing, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of this Agreement and the other instruments to be delivered by Buyer at the Closing, and the performance by Buyer of its obligations hereunder and thereunder, have been duly and validly authorized by necessary action.
3.3No Conflicts; Consents and Approvals. The execution and delivery by Buyer of this Agreement do not, and the performance by Buyer of its obligations hereunder and the consummation of the transactions contemplated hereby do not violate or result in a breach of its Charter Documents;
3.4Broker. Buyer does not have any liability or obligation to pay fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Buyer or any of its Affiliates could become liable or obligated.
3.5Proceedings. Except as disclosed herein, there is no Proceeding pending, or to Buyer’s Knowledge threatened, against Buyer (i) before or by any Governmental Authority, which seeks a writ, judgment, order or decree restraining, enjoining, or otherwise prohibiting or making illegal any of the transactions contemplated by this Agreement; or (ii) brought by or in respect of any third party.
SELLER’S REPRESENTATIONS AND WARRANTIES
Seller states that the following is true as of the date of this Agreement:
4.1Organization. Seller is a corporation duly formed, validly existing and in good standing under the Laws of the State of Colorado and has all requisite corporate power and authority to conduct its business as it is now being conducted.
4.2Authority. Seller has all requisite power and authority to execute and deliver this Agreement and the other instruments to be delivered by Seller at the Closing, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Seller of this Agreement and the other instruments to be delivered by Seller at the Closing, and the performance by Seller of its obligations hereunder and thereunder, have been duly and validly authorized by necessary action.
4.3No Conflicts; Consents and Approvals. The execution and delivery by Seller of this Agreement do not, and the performance by Seller of its obligations hereunder and the consummation of the transactions contemplated hereby do not violate or result in a breach of its Charter Documents;
4.4Broker. Seller does not have any liability or obligation to pay fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Seller or any of its Affiliates could become liable or obligated.
4.5Proceedings. Except as disclosed herein, there is no Proceeding pending, or to Seller’s Knowledge threatened, against Seller (i) before or by any Governmental Authority, which seeks a writ, judgment, order or decree restraining, enjoining, or otherwise prohibiting or making illegal any of the transactions contemplated by this Agreement; or (ii) brought by or in respect of any third party.
5.1Mutual Cooperation. The Parties shall mutually cooperate to provide reasonable access to books and record of the Business and to carry out the purposes and intent of this Agreement.
5.5Further Assurances; Audit Rights. Subject to the terms and conditions of this Agreement, at any time or from time to time after the Closing, at a Party’s request and without further consideration, the other Party shall execute and deliver to the requesting Party such other instruments of sale, transfer, conveyance, assignment and confirmation, provide such materials and information and take such other actions as the Party may reasonably request in order to consummate the transactions contemplated by this Agreement.
Furthermore, Seller shall have the right during normal business hours, upon reasonable notice (at least fourteen (14) days), to access all books and records and related business and financial information of Buyer and any entities relating to any Buyer Prospects, for the purpose of reviewing, verifying and/or auditing the same in respect of the obligation of Buyer to pay Profit to Seller pursuant to Section 2.2(b)(iii) hereof. Seller and their agents and/or assigns with respect to this §5.5 consent to maintaining complete confidentiality with respect to all business and financial information of Buyer. Seller and their agents and assigns shall not use any of the Buyer’s business and financial information for its or its affiliates competitive advantage.
engage in, invest in, or otherwise participate in, directly or indirectly, any Competing Business unless agreed to in writing by the Parties; or
employ, retain, engage or solicit the employment or engagement of services of any employee of Seller, the Business or any of Seller’s Affiliates on a full- or part-time basis.
Notwithstanding the foregoing, upon the first anniversary of the Closing Date, Buyer and its Affiliates shall be permitted to engage in Cultivation Activities with respect to a Competing Business, it being expressly understood and agreed to by Buyer that the full Restricted Period shall continue to apply to any Dispensary Activities.
5.4Return of 75 Farm Materials. Buyer covenants to return to Seller all materials in its possession relating to SevenFive Farm, including without limitation, marketing, financial, operational, capital expenditure, and other confidential information of SevenFive Farm.
BUYER’S CONDITIONS TO CLOSING
The obligation of Buyer to consummate the Closing is subject to the fulfillment of each of the following conditions (except to the extent waived in writing by Buyer in its sole discretion):
6.1Statements of Fact. (a) Seller’s Representations and Warranties will be true and correct in all material respects on and as of the Closing as though made on and as of the Closing.
6.2Performance. Seller has performed and complied in all material respects with the agreements, covenants, and obligations required by this Agreement to be performed or complied with by Seller at or before the Closing.
6.3Seller’s Deliverables. Seller has delivered to Buyer at the Closing the Bill of Sale.
6.4Orders and Laws. There is no Law or order (except for any such order issued in connection with a Proceeding instituted by Buyer or its Affiliates) restraining, enjoining or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement or the operation of the Business.
6.5Consents, Assignments and Approvals. The CannaCulture Contracts shall have been assigned to Buyer or otherwise terminated. All trademarks that are part of the Assets shall have been transferred to Buyer. All required Governmental Approvals, if any, shall have been granted.
SELLER’S CONDITIONS TO CLOSING
The obligation of Seller to consummate the Closing is subject to the fulfillment of each of the following conditions (except to the extent waived in writing by Seller in its sole discretion):
7.1Statements of Fact. (a) Buyer’s Representations and Warranties will be true and correct in all material respects on and as of the Closing as though made on and as of the Closing.
7.2Performance. Buyer will have performed and complied in all material respects with the agreements, covenants and obligations required by this Agreement to be so performed or complied with by Buyer at or before the Closing.
7.3Buyer’s Deliverables. Buyer will have delivered to Seller the portion of the Purchase Price due at the time of Closing pursuant to §2.2.
7.4Orders and Laws. There is no Law or order (except for any such order issued in connection with a Proceeding instituted by Seller or its Affiliates) restraining, enjoining or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement.
7.5Consents, Assignments and Approvals. The CannaCulture Contracts shall have been assigned to Buyer or otherwise terminated. All required Governmental Approvals, if any, shall have been granted.
7.6Resignations. Richard Cardinal, and such other employees of the Company as shall be specified by the Company in its discretion, shall have resigned from their employment with the Company, and Richard Cardinal shall have executed and delivered to the Company a written separation agreement in form and substance as determined by the Company.
7.7CannaCulture Receivables. All amounts owed to the Company from CannaCulture, whether pursuant to the CannaCulture Contracts or otherwise, shall have been paid to the Company without set-off or reduction.
8.1Termination. This Agreement may be terminated in one or more of the following ways:
8.2Effect of Valid Termination. If this Agreement is validly terminated pursuant to Section 8.1, there will be no liability or obligation hereunder on the part of either Party or any of their respective Affiliates, except as provided herein, provided, however, that Article I, Sections 5.3, 8.2, Article IX, and Article X will survive any such termination.
LIMITATIONS ON LIABILITY, THIRD-PARTY CLAIMS, AND ARBITRATION
9.1Indemnity. From and after the Closing, each of Buyer and Seller shall indemnify, defend, and hold harmless the other Party from and against all Losses incurred or suffered by such Party resulting from:
|i.||any breach of a Party’s representations and warranties; or|
|ii.||any breach of any covenant or agreement of a Party contained in this Agreement.|
9.2Limitations of Liability. Notwithstanding anything in this Agreement to the contrary:
9.3Procedure with Respect to Third-Party Claims.
10.1No Third-Party Beneficiaries. The terms and provisions of this Agreement are intended solely for the benefit of the Parties and their respective successors or permitted assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other Person.
10.2Entire Agreement. This Agreement supersedes all prior discussions and agreements between the Parties and/or their Affiliates with respect to the subject matter hereof and contains the sole and entire agreement between the Parties and their Affiliates with respect to the subject matter hereof.
10.3Waiver. Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof, but no such waiver will be effective unless set forth in a written instrument duly executed by or on behalf
of the Party waiving the term or condition. No waiver by a Party of any term or condition of this Agreement, in any one or more instances, will be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by Law, are cumulative and not alternative.
10.4Succession and Assignment. This Agreement is binding upon and will inure to the benefit of the Parties and their successors and assigns. Buyer may assign its rights, interests and obligations hereunder. Seller may not assign this Agreement or any of its rights, interests, or obligations hereunder.
10.5Counterparts; Electronic or Fax Signatures. This Agreement may be executed in counterparts, each of which will be an original and all of which, when taken together, will constitute one instrument notwithstanding that all parties have not executed the same counterpart. Signatures that are transmitted electronically or by fax will be effective as originals.
10.6Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not modify, define, or limit any of its terms or provisions.
10.7Notices. Any notice, request, demand, Claim, or other communication hereunder will be in writing and will be deemed delivered: (a) three Business Days after it is sent by U.S. mail, certified mail, return receipt requested, postage prepaid; or (b) one Business Day after it is sent via a reputable nationwide overnight courier or sent via email, in each of the foregoing cases to the intended recipient as set forth below:
If to Seller:
General Cannabis Corp.
6565 E. Evans Avenue
Denver, CO 80224
Attn: David R. Fishkin
If to Buyer:
NBC Holdings LLC
636 Divide View Drive
Golden, CO 80403
Attn: Mr. Richard Cardinal
With a copy to:
Any Party may give any notice, request, demand, Claim, or other communication hereunder by personal delivery, electronically, or fax, but no such notice, request, demand, Claim, or other communication will be deemed to have been duly given unless and until it is actually received by the Party for whom it is intended. A Party may change the address to which notices, requests, demands, Claims, and other communications hereunder are to be delivered by giving notice to the other Party in the manner herein set forth.
10.8Governing Law. This Agreement is governed by and construed and enforced in accordance with the Laws of the State of Colorado, without giving effect to any conflict or choice of law provision that would result in imposition of another state’s Law. Any Claim or Proceeding shall be heard in a court of competent jurisdiction in the federal or state courts located in Denver, Colorado. THE PARTIES ACKNOWLEDGE THAT (A) COLORADO HAS PASSED AMENDMENTS TO THE COLORADO CONSTITUTION AND ENACTED CERTAIN LEGISLATION TO GOVERN THE MARIJUANA INDUSTRY AND (B) THE POSSESSION, SALE, MANUFACTURE, AND CULTIVATION OF
MARIJUANA IS ILLEGAL UNDER FEDERAL LAW. THE PARTIES WAIVE ANY DEFENSES BASED UPON INVALIDITY OF CONTRACTS FOR PUBLIC POLICY REASONS AND/OR THE SUBSTANCE OF THE CONTRACT VIOLATING FEDERAL LAW.
10.9Waiver of Right to Trial by Jury. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BYLAW TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND WITH RESPECT TO ANY COUNTERCLAIM THEREIN.
10.10Attorneys’ Fees. If either Party brings a Proceeding to enforce the provisions of this Agreement, the substantially prevailing Party will be entitled to recover its reasonable attorneys’ fees and expenses incurred in such action from the non-prevailing Party as determined by the arbitrator or a court of law.
10.11Invalid Provisions. If a dispute between the Parties arises out of this Agreement or the subject matter of this Agreement, the Parties would want a court or arbitrator to interpret this Agreement as follows:
Upon the determination that any term or other provision of this Agreement is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to affect 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 extent possible.
10.12Expenses. Except as otherwise provided in this Agreement, whether or not the transactions contemplated hereby are consummated, each Party shall pay its own costs and expenses incurred in anticipation of, relating to and in connection with the negotiation and execution of this Agreement and the transactions contemplated hereby.
10.13Amendments. The Parties may amend any provision of this Agreement only by a written instrument signed by the Parties.
10.14Confidentiality and Publicity. Except as provided below, this Agreement is confidential and will not be disclosed to any third party (other than the Parties’ Affiliates, attorneys, accountants, auditors, or other advisors, or Governmental Authorities) except as required by Law. A Party receiving a request for this Agreement shall promptly notify the other Party to afford it the opportunity to object or seek a protective order regarding this Agreement or information contained herein. Notwithstanding the foregoing, Seller may issue a press release or public announcement, or disclose the existence and terms of this Agreement to third parties in its discretion, and make any required public filings, concerning any of the transactions contemplated by this Agreement.
10.15Advice of Counsel. Each Party has had the opportunity to seek the advice of independent legal counsel and has read and understood each of the terms and provisions of this Agreement.
[Signature page follows immediately]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the Parties as of the date first above written.
GENERAL CANNABIS CORP.
By: /s/ Adam Hershey____________________________
Name: Adam Hershey
Title: Interim Chief Executive Officer
NBC Holdings LLC
By: /s/ Richard Cardinal___________________________
Name: Richard Cardinal
___/s/ Richard Cardinal____________________________
|●||CannaCulture Operator Agreements|
|●||Next Big Crop (NBC) Website|
|●||NBC Wholesale accounts|
|●||NBC social media account(s)|
|●||NBC SharePoint Files|
|●||NBC Intellectual Property|
|o||On Point Brand Assets, including trademark|
|o||Ford pickup truck|
|●||Seven (7) computers used by NBC employees|
|●||NBC telephone number|
BILL OF SALE
THIS BILL OF SALE (this "Bill of Sale") is entered into on into on ________, 2021, by and among General Cannabis Corp., a Colorado Corporation (“Seller”), or its assigns, and NBC Holdings LLC, together with Richard Cardinal, an individual (collectively together with their respective subsidiaries, affiliates and assigns, “Buyer” or “Buyers”). Seller and Buyer are sometimes referred to individually as a “Party” and collectively as the “Parties.”
|A.||Seller and Buyer entered into that certain Asset Purchase Agreement dated July 16, 2021 (the "APA"), whereby Buyer agreed to purchase the Assets from Seller; and|
|B.||Capitalized terms not defined herein have the respective meanings ascribed to them in the APA.|
NOW THEREFORE, Seller certifies as follows:
|1.||Sale of Assets. In accordance with the terms and conditions of the APA, Seller hereby sells, transfers, conveys, assigns and delivers unto Buyer all of the Assets subject to the APA, free and clear of all Liens.|
|2.||Title. Seller has good and marketable title to the Assets, free and clear of all Liens, and Buyer hereby receives such good and marketable title thereto.|
|3.||Warranty. Seller shall warrant and defend the sale, transfer, conveyance, assignment and conveyance of the Assets hereunder against each and every person or persons claiming against any or all of the same.|
|4.||Further Assurances. Seller shall take all steps reasonably necessary to put Buyer in actual possession and operating control of the Assets, to carry out the intent of the APA and this Bill of Sale, and to more effectively sell, transfer, convey, assign and reduce to possession and record to title any of the Assets, including by executing and delivering, or causing to be executed and delivered, such further instruments or documents of transfer, assignment and conveyance, or by taking such other actions as may be requested by Buyer.|
|5.||Independent Covenants. This Bill of Sale is subject in all respects to the terms and conditions of the APA. Nothing contained in this Bill of Sale will be deemed to diminish any of the obligations, agreements, covenants, or statements of fact of Seller set forth in the APA.|
|6.||Dispute Resolution. If a dispute arises under this Bill of Sale, such dispute will be settled by in accordance with the provisions set forth in the APA.|
|7.||Electronic Signatures. This Bill of Sale may be executed electronically which will each be effective as original signature.|
IN WITNESS WHEREOF, this Bill of Sale has been duly executed and delivered by the duly authorized representative of Seller as of the date first above written.
GENERAL CANNABIS CORP.
Name: Adam Hershey
Title: Interim Chief Executive Officer
Name: Richard Cardinal