ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this "Agreement") is entered into as of May 20, 2016 (the "Effective  Date"), by and among NEW AGE BEVERAGES, L.L.C., a Colorado limited liability company ("NAB"), NEW AGE PROPERTIES, LLC, a Colorado limited liability company ("NAP"), ASPEN PURE, LLC, a Colorado limited liability company ("Pure"), and XING BEVERAGE, LLC, a Colorado limited liability company ("Xing" and together with NAP, Pure and NAB, the "Sellers"), and Bucha, Inc., a Washington corporation ("Buyer" and together with "Sellers" the "Parties" and each a "Party").

 

 WHEREAS, Sellers wish to sell to Buyer and Buyer wishes to purchase from Sellers, certain assets of Sellers, used in connection with Sellers' business on the terms and conditions contained herein.

NOW, THEREFORE, in consideration of the covenants, premises, representations and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

SECTION 1.1  Sale and Purchase of Purchased Assets.

(a)            Purchased Assets.  Subject to the terms and conditions of this Agreement, at the Closing, Sellers shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase, free and clear of all Encumbrances, all right, title and interest in and to all of Sellers' Assets existing as of the Closing Date other than the Excluded Assets (collectively, the "Purchased Assets").  Without limiting the generality of the foregoing, the Purchased Assets shall include all of the following Assets of Sellers existing on the Closing Date:

 

 

SECTION 1.4  Excluded Liabilities.  Notwithstanding any provision of the Sale Documents to the contrary, the Buyer will not accept, acquire, assume or become liable to pay, perform or discharge, and the Assumed Liabilities will not include, the following liabilities (the "Excluded Liabilities"):

SECTION 2.2   Restriction on Restricted Shares.  The sale of the Restricted Shares shall be subject to the requirements of Rule 144 promulgated by the Securities and Exchange Commission.  In addition, beginning six months after the Closing, and on the last day of each calendar quarter thereafter, each holder of Restricted Shares may sell up to but not more than fifteen percent (15%) on a cumulative basis of the number of Restricted Shares that the holder initially received as a result of this transaction.  All restrictions on the sale of the Restricted Shares shall terminate 18 months after the Closing.

SECTION 2.3   Audit; Disclosure of Acquisition.

(a)            Following the Effective Date, the Sellers shall provide Buyer with the necessary information to complete an audit of Sellers' financial statements and business and shall cooperate with respect to the same.  On or prior to four business days following the Effective Days (the "Audit Determination Date"), the Buyer shall notify the Seller if it does not believe that it will be able to complete an audit of Sellers' financial statements and business on or prior to the Closing.  To the extent Seller does not believe that it can complete any such audit on or prior to the Closing, the Buyer may terminate this Agreement in accordance with Article VIII hereof.   Sellers shall assist Buyer with any requests necessary to file complete an audit and file any related 8-K.

(b)            Upon completion of the transaction contemplated by this Agreement, Buyer shall file all necessary forms with all federal and state regulatory agencies to properly disclose the transaction, which shall include a Form 8-K, which shall include a Form 8-K and an audit of Sellers's financial statements.  Sellers shall be provided with a copy of such Form 8-K on or prior to the Closing and shall consent to the filing thereof within one (1) business day of receipt thereof (such consent not to be unreasonably withheld or delayed).

SECTION 2.4   Calculation of the Estimated Purchase Price.

(a)            Preparation of Estimated Balance Sheet.  On or prior to the date which is five (5) Business Days prior to the Closing Date, the Seller shall prepare and deliver to the Buyer a balance sheet (as so prepared, the "Estimated Balance Sheet") which sets forth the Sellers' reasonable and good faith estimate of the financial position of the Sellers as of the opening of business on the Closing Date and a detailed calculation of such estimate, with reasonable supporting detail as to such calculation, of the Working Capital as of the opening of business on the Closing Date (the "Estimated Working Capital").  The Estimated Balance Sheet shall be prepared in good faith applied in a manner consistent with the preparation of the Balance Sheet and shall include the same line items as the Balance Sheet. The Sellers shall incorporate reasonable comments of the Buyer with respect to such Estimated Balance Sheet and/or Estimated Working Capital, in each case to the extent such comments are provided to the Sellers no later than at least three (3) Business Days prior to the Closing Date.  In the event that the Estimated Balance Sheet and/or Estimated Working Capital are revised to reflect the Buyer's comments pursuant to this Section 2.4(a), the Sellers shall deliver to the Buyer no later than two (2) Business Days prior to the Closing Date the revised Estimated Balance Sheet and/or revised Estimated Working Capital, as applicable.  In the event that the Estimated Balance Sheet and/or Estimated Working Capital, as applicable, are not revised to reflect the Buyer's comments pursuant to this Section 2.4(a), the Estimated Balance Sheet and Estimated Working initially provided by the Sellers shall control.

(b)            Calculation of Estimated Purchase Price.  Simultaneously with the delivery of the Estimated Balance Sheet to the Buyer, the Sellers shall prepare and deliver to the Buyer a statement setting forth the calculation of the Estimated Purchase Price using the Estimated  Working Capital shown on the Estimated Balance Sheet (the "Initial Payment Amount  Statement").  In the event that the Estimated Balance Sheet and/or Estimated Working Capital are revised to reflect the Buyer's comments as set forth in Section 2.4(a), the Sellers shall prepare and deliver a revised Initial Payment Amount Statement based on the revised Estimated Working Capital and/or revised Estimated Balance Sheet at the same time the revised Estimated Balance Sheet and/or Estimated Working Capital are delivered to the Buyer.

 

SECTION 2.5  Post-Closing Adjustment to Purchase Price.

(a)            Preparation of Closing Balance Sheet.  As promptly as practicable, but in any event within forty-five (45) calendar days following the Closing Date, the Buyer will deliver to the Sellers a balance sheet (the "Closing Balance Sheet") setting forth the financial position of the Sellers as of the opening of business on the Closing Date and a detailed calculation, with reasonable supporting detail as to such calculation, of the Working Capital as of the opening of business on the Closing Date.  Subject to Section 2.5(c), the Closing Balance Sheet and the calculation of Working Capital delivered by the Buyer to the Sellers will be deemed to be and will be final, binding and conclusive on the parties hereto. The Closing Balance Sheet shall be prepared in good faith in a manner consistent with the preparation of the Estimated Balance Sheet and shall include the same line items as the Estimated Balance Sheet.

(b)            Calculation of Stock Purchase Price.  Simultaneously with the delivery of the Closing Balance Sheet to the Sellers, the Buyer's chief financial officer shall prepare and deliver to the Sellers a written statement (the "Stock Purchase Price Statement") setting forth the calculation of the Estimated Stock Purchase Price using the Working Capital shown on the Closing Balance Sheet (such amount, the "Final Stock Purchase Price").  Subject to Section 2.6(e), any increase or decrease in the Estimated Stock Purchase Price shall be borne pro rata by the Executives and the Carney Parties in the following ratio 5.95:1 (the "Pro Rata Percentage").

(c)            Right to Review and Dispute.

(i)            During the 30 calendar day period following the Sellers' receipt of the Closing Balance Sheet and the Stock Purchase Price Statement, the Sellers will be permitted to review the working papers of the Buyer and the Buyer's Accountants relating to the preparation of the Closing Balance Sheet and the Stock Purchase Price Statement and the calculation of Working Capital and the Stock Purchase Price shown on the Stock Purchase Price Statement.

(ii)            The Sellers may dispute the preparation of the Closing Balance Sheet, the Stock Purchase Price Statement and/or the determination of Working Capital and the Stock Purchase Price set forth thereon; provided, however, that the Sellers must notify the Buyer in writing of each disputed item, specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, within 30 calendar days of the Buyer's delivery of the Closing Balance Sheet and the Stock Purchase Price Statement to the Sellers.  In the event written notice of such a dispute is received by the Buyer in a timely manner, such a dispute will be resolved in accordance with the provisions of Section 2.6(iii) below.

(iii)            The Closing Balance Sheet, the Stock Purchase Price Statement and the calculation of Working Capital and the Stock Purchase Price will be deemed final for the purposes of Section 2.5 and 2.6 upon the earliest to occur of (A) the failure of the Sellers to notify the Buyer of a dispute in accordance with this Agreement within 30 calendar days of the Buyer's delivery of the Closing Balance Sheet and the Stock Purchase Price Statement to the Sellers, (B) the resolution of all disputes in writing by the Sellers and the Buyer, (C) the resolution of all disputes pursuant to Section 2.6(d) by the Buyer's accountants and the Sellers' accountants, and (D) the resolution of all disputes pursuant to Section 2.6(d) by an independent accounting firm mutually acceptable to both parties (the "Independent Accounting Firm").  The Closing Balance Sheet and the Working Capital, as deemed final pursuant to this Section 2.6(c)(iii), are referred to herein as the "Final Closing Balance Sheet" and the "Final Working Capital", respectively.

 

 

(d)            Resolution of Disputes Under Section 2.6.

(i)            In the event that written notice of a dispute is received by the Buyer under Section 2.6(c) in a timely manner, the Buyer and the Sellers shall attempt in good faith to resolve their dispute for a period of 15 calendar days.  In the event that the Buyer and the Sellers are unable to resolve such dispute within such period, the Buyer's accountants and the Sellers' accountants will attempt to reconcile their differences, and any resolution by them as to any disputed amounts will be final, binding and conclusive on the parties hereto.  If the Buyer's accountants and the Sellers' accountants are unable to reach a resolution with such effect within 30 calendar days after receipt of such written notice of dispute under Section 2.6(c), the Buyer's accountants and the Sellers' accountants will submit the items (together with their respective positions thereon and the reasons therefor) remaining in dispute for resolution to the Independent Accounting Firm.  The Independent Accounting Firm will be instructed to determine the appropriate amount of each disputed item in accordance with GAAP applied on a consistent basis and render a report to the Buyer and the Sellers within 20 calendar days after such submission; provided, however, that in no case may such determination of any such disputed item be outside range established by the respective positions of the Buyer's accountants and the Sellers' accountants.  The report of the Independent Accounting Firm as to the disputed items will be conclusive as to each disputed item and will be final and binding on the parties hereto.  The fees and expenses of the Independent Accounting Firm will be split equally between the Sellers and the Buyer.

(ii)            The procedures for resolution of disputes concerning the Closing Balance Sheet and the Purchase Price set forth in this Section 2.6(d) are intended to be final and exclusive of any other contest or appeal in relation thereto, so that when the Closing Balance Sheet and the Stock Purchase Price Statement are deemed final hereunder, neither party will be entitled to subject the Closing Balance Sheet or the Stock Purchase Price Statement or, such agreement or the report, to any court or tribunal.

(e)            Adjustment of Purchase Price and Payment of Adjustment Amount.

 

(i)            In the event that the Final Stock Purchase Price set forth in the Stock Purchase Price Statement (as finally determined in accordance with Section 2.6) is at least $25,000 less than the Estimated Purchase Price set forth on the Initial Payment Amount Statement, Buyer shall cancel an amount of Stock issued to the Executives and Carney Parties based on the Pro Rata Percentage equal to the shortfall to the Buyer.

(ii)            In the event that the Stock Purchase Price set forth in the Stock Purchase Price Statement (as finally determined in accordance with Section 2.6) is $25,000 or more greater than the Estimated Purchase Price set forth on the Initial Payment Amount Statement, Buyer shall issue to the Executives and Carney Parties based on the Pro Rata Percentage an amount in Stock equal to the excess, within five Business Days of the Purchase Price being deemed final hereunder in accordance with this Section 2.6.

 

 

SECTION 3.1   Closing.  The closing of the transactions (the "Closing") will take place at the offices of Haynes and Boone LLP, 1801 Broadway, Denver, CO 80202 at 12:00 p.m. (Mountain time) on the Target Date, or at such other location or time as the Parties may agree in writing (or remotely via the exchange of executed documents and deliverables); provided, however, that if any of the conditions to Closing contained in Sections 7.4 and 7.5  (except for conditions which can only be satisfied at Closing and subject to the satisfaction of such conditions at Closing) are not satisfied or effectively waived as of the Target Date or such other agreed-upon date, the Closing shall take place on the first Business Day after the date on which all of the conditions to Closing contained in Sections 7.4 and 7.5 (except for conditions which can only be satisfied at Closing and subject to the satisfaction of such conditions at Closing) are satisfied or effectively waived (the date of the Closing being hereinafter referred to as the "Closing Date").

 

SECTION 3.2      Closing Deliveries.

SECTION 4.2                                Conflicts; Consents.

(a)            The execution and delivery by Sellers of this Agreement does not, and the consummation of the transactions associated with this Agreement will not, violate any provision of the Organizational Documents of Sellers; result in the creation of any Lien upon the provision of any of Sellers' services or the Purchased Assets, conflict with or result in a breach of, require a consent, create an event of default (or event that, with the giving of notice or lapse of time or both, would constitute an event of default) under, or give any person or entity the right to terminate, accelerate or modify any obligation or benefit under, any contract, lease, permit or order to which Sellers are a party or by which Sellers or the Purchased Assets are bound or affected.

(b)            The execution and delivery by Sellers of this Agreement does not, and the consummation of the transactions associated with this Agreement will not, result in a violation of, or require the Consent, other action by, or registration, declaration or filing with or notice to, any Governmental Authority under any law or order applicable to Sellers, the provision of any of Sellers's services or the Purchased Assets. There is no pending or, to Sellers's knowledge, threatened proceeding against Sellers before any court or Governmental Authority, to restrain or prevent the consummation of the transactions or that might affect the right of Buyer to own and control the Purchased Assets or to use those assets as it sees fit.

SECTION 4.3 Organization and Authority.

(a)            Each of the Sellers is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Colorado.  None of the Sellers have any Subsidiaries.  Sellers have all requisite power and authority to own or lease and operate its properties and assets and to carry on the provision of its services. True and correct copies of Sellers's constitutive documents, including any amendments thereto.

SECTION 4.4 Properties and Assets of Sellers.

(a)            No liens.  Sellers own or otherwise have the right to use all of their personal property, tangible and intangible, now owned or used by Sellers to provide their services.  Upon consummation of the transactions, Buyer will acquire good and marketable title to the Purchased Assets (other than the Real Estate), free and clear of all liens (other than those associated with the Assumed Liabilities).  The Purchased Assets constitute all of the assets, properties and rights used or held for use by Sellers for the provision of their services as conducted as of the Effective Date.  Notwithstandign anything herein to the contrary, Buyer shall acquire the Real Estate subject to any and all Liabilities, liens and Encumbrances shown on the Title Commitment (collectively, the "Real Property Liens").

(b)            Intellectual Property.  Sellers have the right to use all of its legal and trade names without payment to any person.  Sellers owns or possesses adequate licenses or other rights to use all Intellectual Property included in the Purchased Assets.  No affiliate of Sellers owns or uses any Intellectual Property of Sellers.

SECTION 4.10 Absence of Certain Changes or Events.  Sellers have conducted its business only in the ordinary course of business and there has not been any material loss, damage or destruction to, or any material interruption in the use of any of the Purchased Assets.

SECTION 4.13 Employee Benefits Plans; ERISA.  Neither Sellers nor any ERISA Affiliate maintains or contributes to, or has any obligation to contribute to, or has any Liability with respect to, any Employee Plan. Sellers do not have any Liability with respect to any Person under Title IV of ERISA.  Neither Sellers nor any ERISA Affiliate maintains, contributes to, or has any Liability for any Employee Plan or any medical, health, life or other welfare benefits for present or future terminated employees or retirees for which Buyer could be held liable.

SECTION 4.15 Insurance.  Sellers have paid or caused to be paid all of the premiums of all insurance policies (including policies providing property, casualty, liability, errors and omissions and worker's compensation coverage and bond and surety arrangements) to which Sellers are a party, a named insured or otherwise the beneficiary of coverage insurance policy, and has at all times operated the Business in a manner so as to conform to the applicable provisions of such insurance policy.  Sellers hasve never made any claim under any insurance policy.

SECTION 4.16 Employees.  Sellers are and have been in compliance with all Legal Requirements related to employment and employment practices, terms and conditions of employment and wages and hours, fair employment, safety, worker compensation, unemployment and social security and with all Contracts relating to the employment of the employees of Sellers.  Each of the employees of Sellers is properly classified with respect to employment status for all purposes including, without limitation, employment, labor and Tax purposes.  No current or former independent contractor of Sellers could be deemed to be a misclassified employee.

 

SECTION 4.17 Brokers' Fees.  Other than General Capital Partners, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders' fee or other commission or payment in connection with the transactions contemplated by this Agreement based on arrangements made by Sellers or any of its Affiliates.

SECTION 4.18 Solvency.  Sellers are not now insolvent and will not be rendered insolvent by any of the transactions contemplated hereby. As used in this section, "insolvent" means that the sum of the Liabilities of Sellers exceeds the present fair saleable value of Sellers' assets. Immediately after giving effect to the consummation of the transactions contemplated hereby: (a) Sellers will be able to pay each of its Liabilities as they become due in the usual course of its business; (b) Sellers will not have unreasonably small capital with which to conduct its present or proposed business; and (c) Sellers will have assets (calculated at fair market value) that exceed its Liabilities. The cash available to Sellers, after taking into account all anticipated uses of cash, will be sufficient to satisfy all of its Liabilities in accordance with their terms.  The value of the Shares is reasonably equivalent to the value of such portion of the Purchased Assets.

SECTION 4.19 Intellectual Property.

SECTION 5.2      Conflicts; Consents.

(a)            The execution and delivery by Buyer of this Agreement does not, and the consummation of the transactions associated with this Agreement will not, violate any provision of the Organizational Documents of Buyer; conflict with or result in a breach of, require a consent, create an event of default (or event that, with the giving of notice or lapse of time or both, would constitute an event of default) under, or give any person or entity the right to terminate, accelerate or modify any obligation or benefit under, any contract, lease, permit or order to which Buyer is a party or by which Buyer are bound or affected.

(b)            The execution and delivery by Buyer of this Agreement does not, and the consummation of the transactions associated with this Agreement will not, result in a violation of, or require the Consent, other action by, or registration, declaration or filing with or notice to, any Governmental Authority under any law or order applicable to Buyer.  There is no pending or, to Buyer's knowledge, threatened proceeding against Buyer before any Governmental Authority, to restrain or prevent the consummation of the transactions.

SECTION 5.3   Organization and Authority.

SECTION 6.2    Cooperation.

(a)            Subsequent Actions.  If, at any time after the Closing, either Party considers or is advised that any bill of sale, assignment, assurance or any other action or thing is necessary or desirable to vest, perfect or confirm of record or otherwise in the right, title or interest in, to or under any of the Purchased Assets, then the Parties, and their officers and directors, shall execute and deliver all other bills of sale, assignments and assurances and to take and do, all other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such Purchased Assets or related rights, properties or assets or otherwise to carry out this Agreement and consummate the transactions.  Included in this Section 6.2(a) shall be the filing of all state, federal and other regulatory documents necessary for the acquisition.

(b)            Access to Books and Records.  Subject to any limitations that are required to preserve any applicable attorney-client privilege, from the execution of the Term Sheet between the Parties through the Closing Date, each party has furnished or caused to be furnished to the other party, its counsel and accountants, upon reasonable request during normal business hours, the information and assistance relating to such party or its business (including, the cooperation of officers and employees and reasonable access to books, records and other data and the right to make copies and extracts therefrom) as is reasonably necessary to:  (i) facilitate the preparation for or the prosecution, defense or disposition of any proceeding (other than one by or on behalf of one party to this Agreement against another party); (ii) prepare and file any other documents required by Governmental Authority, and (iii) perform all necessary due diligence in order to satisfy each party relating to the terms of this Agreement and the covenants set forth herein.

SECTION 6.6 Withholding Taxes.  Notwithstanding any other provision in this Agreement, Buyer shall have the right to deduct and withhold Taxes from any payment to be made under any Transaction Document if such withholding is required by any Legal Requirement and to collect all necessary Tax forms from Sellers.  To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been delivered and paid to Sellers.

 

SECTION 6.7  Confidential Information.  After the Closing Date, none of Sellers or any of their respective Affiliates shall at any time use for the benefit of itself or any other Person or disclose to any Person any confidential or proprietary information, knowledge or data relating to Buyer, Sellers, the Business, the Purchased Assets or the transactions contemplated by this Agreement or the Transaction Documents including, without limitation, information relating to financial dealings, transactions, trade secrets, intangibles, customer and client lists (including name, address and telephone numbers), pricing lists, processes, plans and proposals, the manner of operation, business methods, active leads and/or prospects, documentation, files, manuals, procedures, notes, rolodexes, address books, lists, telephone logs, forms, reference materials, computer files, programs and databases, contracts, process information, workflow information, reports, and other materials and documents, however maintained, whether or not marked or otherwise identified as confidential or secret; provided, however, that (i) the information must be disclosed in connection with any Assumed Liability or Excluded Liability, (ii) by law, including the preparation of any Tax return or Tax filing.  (ii) the information becomes publicly available by reason other than disclosure by the party subject to the c

 

SECTION 6.10 Release by Carney Parties.  Effective as of the Closing, the Carney Parties and their Affiliates, on behalf of themselves and on behalf of its respective equity holders, members, managers, managing members, officers, employees, successors, predecessors and assigns (as applicable) (each, a "Releasor") hereby releases and forever discharges Buyer and its parents, subsidiaries, Affiliates (that currently exist or may exist in the future), successors, assigns and predecessors and its present and former owners, stockholders (other than the Executives), unitholders, directors, officers, employees, agents, attorneys, representatives, successors, beneficiaries and heirs (individually, a "Releasee" and collectively, "Releasees") from any and all claims, demands, proceedings, causes of action, orders, losses and liabilities relating solely to the Carney Loans whatsoever and all consequences thereof (collectively, "Released Claims"), whether known or unknown, suspected or unsuspected, both at law and in equity, which Sellers or any Releasor now has, has ever had or may hereafter have against any Releasee arising prior to the Closing or on account of or arising out of any matter, cause or event occurring prior to the Closing.  The Carney Parties, on behalf of themselves and each other Releasor, agrees that this Section 6.10 shall act as a release of all Released Claims, whether such Released Claims are currently known or unknown, foreseen or unforeseen, contingent or absolute, asserted or unasserted, and the Sellers, on behalf of himself and each other Releasor, intentionally and specifically waives any statute or rule which may prohibit the release of future rights or a release with respect to unknown claims.  The Releasees are intended third-party beneficiaries of this Section 6.10, and this Section 6.10 may be enforced by each of them in accordance with the terms hereof in respect of the rights granted to such Releasees hereunder.  If any provision of this Section 6.10 is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Section 6.10 will remain in full force and effect.  Any provision of this Section 6.10 held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.  Releasor irrevocably covenants that it will not, directly or indirectly, sue, commence any Proceeding against, or make any demand upon any Releasee in respect of any of the matters released and discharged pursuant to this Section 6.10. Releasor hereby warrants and represents that, in providing the release contemplated in this Section 6.10, Releasor does so with full knowledge of any and all rights that Releasor may have with respect to the matters set forth in this Section 6.10 and the Released Claims released hereby, that Releasor has received had the opportunity to seek, and has been advised to seek, independent legal advice with respect to the matters set forth herein and the Released Claims released hereby and with respect to the rights and asserted rights arising out of such matters, and that Releasor is providing such release of Releasor's own free will.  Notwithstanding any contrary provision in this Section 6.10, nothing contained herein will operate to release any claims (x) of Sellers arising under this Agreement or with respect to the Shares issued hereunder or (y) of any Releasor against the Sellers.

 

SECTION 6.11 Efforts to Close.

(a)            Upon the terms and subject to the conditions and other agreements set forth in this Agreement, Sellers and Buyer shall (a) refrain from taking any actions that could reasonably be expected to impair, delay or impede the Closing, and (b) without limiting any other provision of this Agreement, use commercially reasonable efforts to cause all the conditions to the obligations of the other party to consummate the transactions contemplated by this Agreement to be met as soon as reasonably practicable.

(b)            Buyer shall use its reasonable best efforts to (x) enter into the Committment Letter and (y) arrange and obtain the Financing on the terms and conditions described in the Commitment Letter, including maintaining in effect the Commitment Letter and using its reasonable best efforts to (i) satisfy on a timely basis all conditions and covenants in the Commitment Letter, (ii) promptly negotiate definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Letter or on other terms in the aggregate not materially less favorable to Buyer (unless otherwise agreed by Seller in its sole discretion), and (iii) consummate the Financing at or prior to Closing.  Buyer shall not amend, alter or waive, or agree to amend, alter or waive, the Commitment Letters in any way that (x) materially and adversely affects the amount, availability, conditionality or enforceability of the Financing or Buyer's ability to consummate the transactions contemplated hereby, or (y) could reasonably be expected to delay, hinder or prevent the Closing or make the Closing or funding of the Financing less likely to occur.

(c)            Sellers hereby covenant and agree that they will not enter into any public offering, merger, combination, divestiture, financing, joint venture, sale and/or acquisition agreement in whatever form, except for agreements in the ordinary course of business (including, without limitation, joint venture, sale license or distribution agreements) or enter into any other transaction that would preclude the consummation of the transactions contemplated by this Agreement.

(a)            For so long as Sellers hold any Shares and for a period of one (1) year afterward (the "Restricted Period"), Sellers shall not, and Sellers shall not permit any of its Affiliates to, directly or indirectly, anywhere in the United States (including its possessions and territories), on its own behalf, or as a consultant, stockholder, partner, member, manager, agent, independent contractor, associate, co-owner with anyone else or otherwise, (i) engage in the Business or (ii) organize, own, manage, operate, join, control, finance or participate in, or assist any other Person to participate in, the organization, ownership, management, operation, control or financing of, any business, enterprise or other entity engaged in any part of the Business or that otherwise competes with the Business.

(b)            During the Restricted Period, Sellers shall not, and Sellers shall not permit any of its Affiliates to, directly or indirectly, on its own behalf, or as a consultant, stockholder, partner, member, manager, agent, independent contractor, associate, co-owner with anyone else or otherwise (i) solicit, attempt to obtain, accept, service or transact business of any nature from, with or on behalf of any (A) customer, client or active lead or prospect (or any Affiliate of any of the foregoing Persons) that has been transferred to Buyer under this Agreement or (B) any Person engaged in the Business anywhere in the United States (including its possessions and territories) other than Buyer and its Affiliates; (ii) aid or assist anyone in diverting, soliciting, attempting to obtain, planning to solicit, transacting, servicing or accepting business of any nature from or on behalf of (A) any customer, client or active lead or prospect (or any Affiliate of any of the foregoing Persons) that has been transferred to Buyer under this Agreement or (B) any Person engaged in the Business anywhere in the United States (including its possessions and territories) other than Buyer and its Affiliates; or (iii) in any way interfere with, disrupt or attempt to disrupt any then existing relationship between Buyer or any of its Affiliates and any of their respective customers, clients or other such Persons (including those that have been transferred to Buyer under this Agreement).

(c)            During the Restricted Period, Sellers shall not, and Sellers shall not permit any of its Affiliates to, directly or indirectly, on its own behalf, or as a consultant, stockholder, partner, member, manager, agent, independent contractor, associate, co-owner with anyone else or otherwise (i) hire or employ any employee of Buyer or its Affiliates or engage any such employee as a consultant or contractor or otherwise permit any such employee to otherwise perform or provide any work, services, assistance or aid, directly or indirectly, for or on behalf of Sellers or any of its Affiliates; (ii) solicit, induce or attempt to induce any such employee to leave the employment of Buyer or its Affiliates; or (iii) in any way interfere with, disrupt or attempt to disrupt any then existing relationship between Buyer or its Affiliates and any such employee.

(d)            Notwithstanding any contrary provision in this Section 6.11, nothing herein shall (x) prohibit Sellers from being a passive owner of not more than ten percent (10%) of the outstanding stock of any class of a corporation which is publicly traded, so long as Sellers have no active participation in the business of such corporation or (y) apply to the Carney Parties with respect to and following the exercise of any remedies under the Note.

(e)            Sellers agree that the restrictive covenants set forth in this Section 6.11 are reasonable with respect to their duration, geographic area and scope and acknowledges that Buyer would not be willing to consummate the transactions contemplated by this Agreement without Sellers agreeing to the restrictive covenants set forth herein.  If, at any time, the provisions of this Section 6.11 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to duration, geographic area or scope, this Section 6.11 shall be considered divisible and shall be deemed amended to only such duration, geographic area or scope as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction.

SECTION 6.13 Title Commitment.

SECTION 7.2          Indemnification.

(a) Sellers shall indemnify, defend and hold harmless Buyer and its Affiliates (collectively, the "Buyer Indemnified Parties") from and against, and will pay to Buyer Indemnified Parties the amount of, any and all claims, demands, Proceedings, losses, damages, Liabilities, obligations, settlement payments, costs and expenses of every kind whatsoever (including, without limitation, costs of investigating, preparing or defending any such claim or Proceeding and reasonable legal fees and  disbursements), whether or not involving a third party claim expressly excluding, in all cases, all consequential damages (collectively, "Losses") directly or indirectly incurred or suffered by any of Buyer Indemnified Parties arising out of or relating to (i) any inaccuracy in, or breach of, any representation or warranty of Sellers set forth in this Agreement or in any other Transaction Document or in any certificate or document delivered in connection therewith, (ii) any breach of any covenant or agreement of Sellers set forth in this Agreement or any other Transaction Document or (iii) any Excluded Liability.

 

 

(b)                Buyer shall indemnify, defend and hold harmless Sellers and each of its respective Affiliates and their respective members (collectively, "Sellers Indemnified Parties") from and against, and will pay to Sellers Indemnified Parties the amount of, any and all Losses directly or indirectly incurred or suffered by any of Sellers Indemnified Parties arising out of or relating to (i) any inaccuracy in, or breach of, any representation or warranty of Buyer set forth in this Agreement or in any other Transaction Document or in any certificate or document delivered in connection therewith, (ii) any breach of any covenant or agreement of Buyer set forth in this Agreement or any other Transaction Document or (iii) any Assumed Liability.

(c)        Notwithstanding anything to the contrary contained in this Agreement:  (I) no Indemnifying Party shall be liable for any claim for indemnification pursuant to Section 7.2(a) or 7.2(b) unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Sellers, pursuant to Section 7.2 (a), or the Buyer, pursuant to Section 7.2(b), equals or exceeds $220,000, whereupon the Indemnified Party shall be entitled to indemnification for the amount of such Losses in excess of such amount; (II) in the absence of fraud on the part of the Indemnifying Party, the maximum aggregate amount of indemnifiable Losses which may be recovered from an Indemnifying Party set forth in Section 7.2(a) or (b), as the case may be, shall be an amount equal to $1,175,000 (the "Cap"); provided, that (x) any losses arising from the fraud of any part shall not exceed the amount of the Purchase Price and (y) nothing in this Section (c) shall serve to limit Sellers' responsibility with respect to any Excluded Liability and Buyer's responsibility with repsect to any Assumed Liability.

 

SECTION 7.4   Conditions Precedent to the Obligations of Buyer.

The obligations of Buyer on the Closing Date as provided herein shall be subject to the satisfaction, on or prior to the Closing Date, of the following conditions precedent, unless waived in writing by Buyer:

(a)   Required Deliverables.  Buyer shall have received all such items as required by Section 3.2(a).

(b)    Representations and Warranties.  The representations and warranties by Sellers in this Agreement shall be true and accurate in all material respects on and as of the Closing Date with the same force and effect as though such representations and warranties had been made at and as of the Closing Date (unless such represenations and warranties are limited to such other date in which case such representation and warranty shall be limited to such date), except to the extent that any changes therein are specifically contemplated by this Agreement.

 

(c)    Performance. Sellers shall have performed and complied in all material respects with all agreements to be performed or complied with by either of them pursuant to this Agreement and the other transaction Documents at or prior to the Closing.

SECTION 7.5 Conditions Precedent to the Obligations of Sellers.

The obligations of Sellers on the Closing Date as provided herein shall be subject to the satisfaction, on or prior to the Closing Date, of the following conditions precedent, unless waived in writing by Sellers:

 

 

SECTION 8.1                REMEDIES.

(a)     REMEDIES FOR BUYER'S BREACH.  IN THE EVENT OF A TERMINATION BY SELLERS OF THIS AGREEMENT IN ACCORDANCE WITH SECTION 8.2 HEREOF, BUYER AND SELLERS AGREE THAT IT WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGE TO SELLERS.  BUYER AND SELLER THEREFORE AGREE THAT, IF BUYER FAILS TO COMPLETE THE TRANSACTIONS CONTEMPLATED HEREBY BY REASON OF BUYER'S BREACH OR DEFAULT, THEN BUYER SHALL PAY TO SELLERS PROMPTLY UPON TERMINATION A SUM OF $200,000, WHICH SHALL BE PAYABLE EITHER IN CASH OR WITH SHARES OF BUYER'S COMMON STOCK AT BUYER'S SOLE DISCRETION, WITH THE SHARES TO BE ISSUED AT A PRICE PER SHARE BASED ON THE VWAP OF BUYER'S COMMON STOCK FOR THE THIRTY DAYS PRIOR TO SUCH PAYMENT,  AND THAT SUCH AMOUNT IS A REASONABLE ESTIMATE OF SELLERS' DAMAGES AND THAT SELLERS SHALL BE ENTITLED TO SAID SUM AS LIQUIDATED DAMAGES, WHICH, EXCEPT FOR THE "SURVIVING RIGHTS" (AS HEREINAFTER DEFINED) SHALL BE SELLERS' SOLE AND EXCLUSIVE REMEDY, EITHER AT LAW OR IN EQUITY, AND THEREAFTER, SELLER SHALL HAVE NO FURTHER RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT EXCEPT FOR THOSE THAT ARE EXPRESSLY PROVIDED IN THIS AGREEMENT TO SURVIVE THE TERMINATION HEREOF AND THE SURVIVING RIGHTS.  SELLERS AND BUYER ACKNOWLEDGE AND AGREE THAT SELLERS' SOLE AND EXCLUSIVE REMEDY IN CONNECTION WITH A BUYER DEFAULT HEREUNDER SHALL BE PURSUANT TO THIS SECTION 8.1(a).

 

(b)     REMEDIES FOR SELLERS' BREACH.  IN THE EVENT THE SALE IS NOT CONSUMMATED BECAUSE OF DEFAULT UNDER OR BREACH OF THIS AGREEMENT ON THE PART OF SELLERS, THEN, BUYER SHALL HAVE THE OPTION, AS ITS SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY, TO EITHER (I) TERMINATE THIS AGREEMENT PURSUANT TO SECTION 8.2 BELOW BY DELIVERY OF WRITTEN NOTICE OF TERMINATION TO SELLER, WHEREUPON BUYER AND SELLERS SHALL EACH BE RELEASED FROM ALL LIABILITY HEREUNDER (EXCEPT FOR THOSE PROVISIONS WHICH RECITE THAT THEY SURVIVE TERMINATION); OR (II) PURSUE AGAINST SELLERS AN ACTION TO COMPEL SELLERS' SPECIFIC PERFORMANCE OF THIS AGREEMENT, PROVIDED THAT BUYER COMMENCES SUCH ACTION WITHIN SIXTY (30) DAYS OF THE TARGET DATE.  THE FOREGOING OPTIONS ARE MUTUALLY EXCLUSIVE AND ARE THE EXCLUSIVE RIGHTS AND REMEDIES AVAILABLE TO BUYER AT LAW OR IN EQUITY IN THE EVENT THE SALE OF THE CONVEYED INTEREST IS NOT CONSUMMATED BECAUSE OF SELLERS DEFAULT UNDER OR BREACH OF THIS AGREEMENT.  BUYER HEREBY WAIVES ANY AND ALL RIGHTS IT MAY NOW OR HEREAFTER HAVE TO PURSUE ANY OTHER REMEDY OR RECOVER ANY OTHER DAMAGES ON ACCOUNT OF ANY SUCH BREACH OR DEFAULT BY SELLERS, INCLUDING, WITHOUT LIMITATION, LOSS OF BARGAIN, SPECIAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES.

 

 

SECTION 8.2           Method of Termination.

SECTION 8.3    Effect of Termination.  To the extent this Agreement is terminated by Buyer in accordance with Section 8.2(b) hereof, this Agreement shall terminate, except for the Surviving Obligations.  To the extent this Agreement is terminated by Sellers in accordance with Section 8.2(a) hereof, this Agreement shall terminate, except for the Surviving Obligations.  To the extent this Agreement is terminated in accordance with Section 8.2(c) hereof, this Agreement shall terminate, except for the Surviving Obligations.  Nothing in this Section 8.3 shall modify Section 8.1 hereof.

 

 

Each party will keep confidential all information and documents obtained from any of the other parties pursuant this agreement (except for any information disclosed to the public pursuant to a press release authorized by the Parties or for information required to be provided in a filing with the Securities and Exchange Commission; and in the event the Closing does not occur or this agreement is terminated for any reason, will promptly return such documents and all copies of such documents and all notes and other evidence thereof, including material stored on a computer, and will not use such information for its own advantage, except to the extent that (i) the information must be disclosed by law, (ii) the information becomes publicly available by reason other than disclosure by the party subject to the confidentiality obligation, (iii) the information is independently developed without use of or reference to the other party's confidential information, (iv) the information is obtained from another source not obligated to keep such information confidential, or (v) the information is already publicly known or known to the receiving party when disclosed as demonstrated by written documentation in the possession of such party at such time.

BUYER HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ARTICLE 4 OF THIS AGREEMENT, THE SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER RELATING TO THE INTERESTS.  WITHOUT IN ANY WAY LIMITING THE FOREGOING, SELLER

HEREBY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AS TO ANY PORTION OF THE ASSETS.  BUYER FURTHER ACKNOWLEDGES THAT BUYER HAS CONDUCTED AN INDEPENDENT INSPECTION AND INVESTIGATION OF THE INTERESTS.  ACCORDINGLY, BUYER WILL ACCEPT THE INTERESTS AT THE CLOSING "AS IS," "WHERE IS," AND "WITH ALL FAULTS."  BUYER FURTHER AGREES THAT THE REPRESENTATIONS OR WARRANTIES SET FORTH HEREIN ARE FURTHER SUBJECT TO ARTICLE VII HEREOF.

 

SECTION 11.1 Expenses.  Each party shall pay its own expenses in connection with the negotiation, preparation and performance of this Agreement and the consummation of the transactions, including all fees and expenses of investment bankers, financial advisors, legal counsel, and independent accountants.

Torrance, CA 90503 Facsimile: (303) 382-6210 E-mail:

SECTION 11.3 Press Releases and Public Announcements.  Sellers shall not issue or otherwise disseminate any press release or other public notice related to this Agreement or any of the transactions contemplated hereby without the prior written consent of Buyer.

SECTION 11.4 Governing law; Arbitration.  This Agreement will be governed by and any dispute arising out of or relating to this Agreement will be resolved in accordance with the laws of the State of Colorado, without giving effect to conflict of laws principles.  Any dispute arising out of, in connection with, or relating to this Agreement or the Transaction Documents, including but not limited to, any claim or controversy regarding the existence, validity, construction, interpretation, breach, termination or enforceability thereof, shall be determined by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures ("Rules"), modified as follows: (i) the place of arbitration shall be Denver, CO; and (ii) the arbitration proceeding shall be conducted before a panel of three neutral arbitrators, one to be appointed by each party, and a third to be selected by the two arbitrators appointed by the parties and who shall serve as chairperson.  If a party fails to nominate an arbitrator as provided herein, then JAMS shall appoint the arbitrator in accordance with the Rules.  In the event that the two party-selected arbitrators should fail to agree upon the chairperson within a period of fourteen (14) days of the appointment of the last party-selected arbitrator, then, upon application of either party, the chairperson shall be named by JAMS in accordance with the Rules.  The award of the arbitrators shall be final and binding on the parties, and judgment upon the award rendered by the arbitrators may be entered and enforced by any competent court.  Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).  The parties shall maintain the confidential nature of the arbitration proceeding (including the hearing, all submissions, and any award) except as may be necessary in connection with a judicial application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

 

SECTION 11.6 Entire Agreement.  This Agreement, including the Exhibits, any written amendments to the foregoing, constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede any previous agreements and understandings between the Parties with respect to such matters including the Parties' term sheet.  In the event of any conflict between the provisions of this Agreement, on the one hand, and the provisions of some other agreement, if any (including the schedules and exhibits thereto), on the other hand, the provisions of this Agreement will control.

SECTION 11.7 Assignments, Successors and No Third-Party Rights.  Sellers shall not assign any of its rights or obligations under this Agreement without the prior written consent of Buyer.  After the Closing, Buyer may assign any of its rights, but not its obligations, under this Agreement without the consent of Sellers to an Affiliate of Buyer.  Subject to the preceding two sentences, this Agreement will apply to, be binding in all respects upon and inure to the benefit of the successors and permitted assigns of the parties.  Except as expressly set forth in this Agreement (including, without limitation Article V), no Person other than the parties hereto has any legal or equitable right, remedy or claim under or with respect to this Agreement or any provision of this Agreement.

SECTION 11.8 Amendments; Waivers.  This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument signed by each of the parties hereto or, in the case of a waiver, by the party waiving compliance. No waiver by any party of any default, misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

 

SECTION 11.9 Counterparts.  This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original and all of which together will be deemed to be one and the same instrument, and will become effective when one or more counterparts have been signed by each of the parties.  Delivery of an executed counterpart of a signature page of this Agreement by .pdf attachment to a transmission by electronic mail or by facsimile transmission shall each be effective as delivery of a manually executed original counterpart hereof.

SECTION 11.10 Severability.  In the event any provision, or portion thereof, of this Agreement is held by a court of competent jurisdiction to be unenforceable in any jurisdiction, then such portion or provision will be deemed to be severable as to such jurisdiction (but, to the extent permitted by law, not elsewhere) and will not affect the remainder of this Agreement, which will continue in full force and effect.  If any provision of this Agreement is held to be so broad as to be unenforceable, such provision will be interpreted to be only as broad as is necessary for it to be enforceable.

"Business" means any services associated with employment, recruitment or payroll services, content or technology.

"Business Day" means any day which is not a Saturday, Sunday or a day on which banks in California are authorized by applicable Legal Requirements or executive orders to be closed.

"Carney Loan" means any loan made by any Carney Party or their Affiliates to the Sellers.

"Closing Date" means the date of this Agreement.

"Code" means the Internal Revenue Code of 1986, as amended from time to time.

"Consent" means any approval, consent, ratification, waiver, or other authorization of, notice to or registration, qualification, designation, declaration or filing with, any Person including, without limitation, any customer or Governmental Authority.

"Contract" means any agreement, contract, option, license, instrument, obligation, commitment, arrangement, promise or undertaking, in each such case, whether written or oral and whether express or implied.

"Control" (including the terms "Controlled by" and "under common Control with") means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of stock, as trustee or executor, by Contract or otherwise.

"Current Assets" of a Person at any date means all assets of the Person that would properly be classified in accordance with GAAP as current assets as of that date, after deducting adequate reserves in each case a reserve is proper, determined as of such date; provided, that if such Person is the Sellers, Current Assets shall only include current assets that are Purchased Assets. "Current Liabilities" of a Person at any date means all liabilities of the Person that would properly be classified in accordance with GAAP as current liabilities (which for the avoidance of doubt shall not include amounts attributable to the Carney Loan); provided, that if such Person is the Sellers, Current Liabilities shall only include current liabilities that are Assumed Liabilities .

"Disclosure Schedule" means the schedules attached to this Agreement and entitled Disclosure Schedule.

"Employee Plan" means any "employee pension benefit plan" (as defined in Section 3(2) of ERISA), any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA), and any other plan, program, policy, practice, Contract or other arrangement providing for compensation, severance, termination pay, deferred compensation, performance awards, stock or stock-related awards, fringe benefits or other employee benefits or remuneration of any kind, whether written, unwritten or otherwise, funded or unfunded, that is or has been maintained, contributed to, or required to be contributed to, by Sellers for the benefit of any employee or with respect to which Sellers has or may have any Liability.

"Encumbrance" means any security interest, pledge, lien, mortgage, charge, encumbrance, claim, condition, easement, covenant, warrant, equitable interest, option, purchase right, community property interest, right of first refusal, or other right of third parties or other restriction of any kind including, without limitation, any restriction on the exercise of any attribute of ownership (including any restriction on the use, voting, transfer or receipt of income related to any Asset).

 

"Environmental Law" means any applicable Legal Requirement, Order or Contract with any Governmental Authority: (a) relating to pollution (or the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal or remediation of any Hazardous Materials. The term "Environmental Law" includes, without limitation, the following (including their implementing regulations and any state analogs): the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C. §§ 7401 et seq.; and the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651 et seq.

 

"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.

 

"ERISA Affiliate" means any entity that would be deemed a "single employer" with Sellers under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.

 

"Estimated Stock Purchase Price" means an amount equal to (a) $6,950,000 minus (or plus if the result in clause (b) is negative) (b) the difference between (i) Required Working Capital and (ii) Estimated Working Capital.

"Executives" means collectively, Scott Lebon, Tom Lebon and Chuck Ence. "Governmental Authority" means any federal, state, local, municipal, foreign or other governmental or quasi-governmental authority including, without limitation, any administrative, executive, judicial, legislative, regulatory or taxing authority of any nature of any jurisdiction (including, without limitation, any governmental agency, branch, department, official or entity and any court or other tribunal).

            

 

 

            

 

 

None.

 

 

None.