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UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, DC
20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): August
10, 2023
EzFill Holdings,
Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
001-40809 |
|
83-4260623 |
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
67 NW 183rd
St, Miami, FL 33169
(Address of Principal Executive Offices)
305-791-1169
(Registrant’s Telephone Number, Including Area
Code)
(Former Name or Former Address, if Changed Since Last
Report)
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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|
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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☐ |
Pre-commencement communications pursuant to Rule 13e-4© under the Exchange Act (17 CFR 240.13©(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Common Stock, $0.0001 |
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EZFL |
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NASDAQ Capital Market |
Indicate by check mark whether the registrant is an
emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark
if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive Agreement.
On August 10, 2023, EzFill Holdings,
Inc. (the “Company”), the members (the “Members”) of Next
Charging LLC (“Next Charging”) and Michael Farkas, an individual, as the representative of the members, entered into
an Exchange Agreement (the “Exchange Agreement”), pursuant to which the Company agreed to acquire from the Members
100% of the membership interests of Next Charging (the “Membership Interests”) in exchange for the issuance (the
“Share Exchange”) by the Company to the Members of shares of common stock, par value $0.0001 per share, of the
Company (the “Common Stock”). Upon consummation of the transactions contemplated
by the Exchange Agreement (the “Closing” and, the date of the Closing, the “Closing Date”), Next
Charging will become a wholly-owned subsidiary of the Company.
Next Charging is a renewable
energy company formed by Michael D. Farkas. Next Charging has plans to develop and deploy wireless electric vehicle charging technology
coupled with battery storage and solar energy solutions.
Upon Closing, the board of directors
of the Company will appoint Michael Farkas as Chief Executive Officer, Director and Executive Chairman of the Company. Mr. Farkas is the
managing member and CEO of Next Charging. Mr. Farkas is also the beneficial owner of approximately 24% of the Company’s issued and
outstanding common stock.
The Closing is subject to customary
closing conditions, including (i) that the Company take the actions necessary to amend its certificate of incorporation to increase the
number of authorized shares of Common Stock from 50,000,000 shares of Common Stock to 500,000,000 shares of Common Stock, (ii) the receipt
of the requisite stockholder approval, (iii) the receipt of the requisite third-party consents and (iv) compliance with the rules and
regulations of The Nasdaq Stock Market.
At the Closing, all of the Membership
Interests will be exchanged for 100,000,000 shares of Common Stock (“Exchange Shares”), which shall be apportioned
between the Members pro rata. 16,000,000 Exchange Shares will vest on the Closing Date, and the remaining 84,000,000 Exchange Shares (the
“Restricted Shares”) will be subject to vesting or forfeiture. The Restricted Shares will vest, if at all, according
to the following schedule:
|
(1) |
20,000,000 Restricted Shares will vest upon the Company completing the acquisition of the acquisition target as set forth in the Exchange Agreement’s disclosure schedules; |
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(2) |
20,000,000 of the Restricted Shares will vest upon the Company completing the acquisition of the second acquisition target as set forth in the Exchange Agreement’s disclosure schedules; |
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(3) |
For every $20,000,000 of proceeds received by the Company following the Closing from (i) any issuance of its equity securities or debt securities; or through the receipt of grants, rebates or subsidies received from utilities, government agencies, quasi government agencies, or granting/rebate authorities, calculated collectively, an additional 10,000,000 Restricted Shares shall vest. |
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(4) |
An additional 10,000,000 Restricted Shares will vest for each of the first three traditional gas station and rest-stop/service station or other income-producing property that will offer fuel and electric vehicle charging centers, in each case which (i) has reasonable space available to develop and deploy the systems proposed to be developed and deployed by the Company at such location and (ii) serve the purpose of generating revenue from fuel, electric vehicle charging and solar and battery storage systems (the “Fueling Stations”) purchased by the Company following the Closing as a direct result of the occurrence of the Exchange Agreement and the transactions therein; |
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(5) |
An additional 5,000,000 Restricted Shares will vest upon each subsequent Fueling Station purchased by the Company following the closing as a direct result of the occurrence of the Exchange Agreement and the transactions therein, beyond the three Fueling Stations; |
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(6) |
5,000,000 Restricted Shares will vest for each solar, wireless electric vehicle charging, and/or battery storage, system, being systems in which energy is stored in order to reduce load and capacities on the electrical grid, deployed as a standalone system and not as a fuel station (which shall mean that the system is deployed and operational as a standalone system and not as a fuel station) by the Company following the Closing; |
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(7) |
10,000,000 Restricted Shares will vest upon the deployment by the Company of the first beta of dynamic wireless EV charging following the Closing; and |
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(8) |
10,000,000 Restricted Shares will vest upon the sale by the Company to a residential customer of the first wireless EV charging station that is developed based on intellectual property owned by the Company at such time, with such sale following the Closing. |
None of the representations, warranties
or covenants of the parties to the Exchange Agreement will survive the Closing.
The information set forth above
is qualified in its entirety by reference to the Exchange Agreement, which is incorporated herein by reference and attached hereto as
Exhibit 10.1.
Item 3.02 Unregistered Sales of Equity Securities.
To
the extent required by this Item 3.02, the information contained in Item 1.01 is incorporated herein by reference.
The securities issuances in accordance
with the Exchange Agreement will be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”),
pursuant to Section 4(a)(2) of the Securities Act. Next Charging represented to the Company that it is an “accredited investor”
as defined in Rule 501 under the Securities Act and that the shares received in relation to the Stock Exchange are being acquired for
investment purposes and not with a view to, or for sale in connection with, any distribution thereof. Appropriate legends will be affixed
to the shares and any securities issued.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant to the requirements of
the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
Date: August 16, 2023
EZFILL HOLDINGS, INC. |
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/s/ Yehuda Levy |
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Yehuda Levy |
|
Interim Chief Executive Officer |
|
Exhibit
10.1
Exchange
Agreement
by
and among
EZFill
Holdings, Inc.,
all
of the Members of Next Charging LLC
and
Michael
Farkas as the Members’ Representative
TABLE
OF CONTENTS
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PAGE |
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Article
I. Definitions and Interpretations |
1 |
|
Section
1.01 Definitions. |
1 |
|
Section
1.02 Interpretive Provisions. |
7 |
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|
|
Article
II. The Transactions |
7 |
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Section
2.01 Amendment of Certificate. |
7 |
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Section
2.02 The Exchange. |
7 |
|
Section
2.03 Closing |
8 |
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Section
2.04 Member Deliverables at the Closing. |
8 |
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Section
2.05 Company Deliverables at the Closing. |
8 |
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Section
2.06 Additional Agreements and Actions at and Following the Closing. |
8 |
|
Section
2.07 Vesting and Forfeiture of Exchange Shares. |
9 |
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Section
2.08 Additional Documents. |
12 |
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Section
2.09 Tax Consequences. |
12 |
|
|
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Article
III. Representations and Warranties Relating to
Next Charging |
12 |
|
Section
3.01 Existence and Power. |
12 |
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Section
3.02 Capitalization. |
12 |
|
Section
3.03 Compliance with Laws. |
13 |
|
Section
3.04 Actions; Orders; Permits. |
13 |
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Section
3.05 Litigation. |
13 |
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Section
3.06 Transactions with Affiliates. |
14 |
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Section
3.07 Investment Company Act. |
14 |
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Section
3.08 Projections. |
14 |
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Section
3.09 Independent Investigation. |
14 |
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Section
3.10 No Brokers. |
14 |
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Article
IV. Representations and Warranties of Each Member
|
15 |
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Section
4.01 Existence and Power. |
15 |
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Section
4.02 Due Authorization. |
15 |
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Section
4.03 Valid Obligation |
15 |
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Section
4.04 No Conflict With Other Instruments |
15 |
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Section
4.05 Non-Contravention. |
15 |
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Section
4.06 Capitalization; Title to Membership Interests. |
16 |
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Section
4.07 Investment Representations |
16 |
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Section
4.08 Independent Investigation. |
18 |
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Section
4.09 No Brokers. |
18 |
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Article
V. Representations and Warranties of the Company
|
18 |
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Section
5.01 Corporate Existence and Power |
18 |
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Section
5.02 Due Authorization. |
19 |
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Section
5.03 Valid Obligation |
19 |
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Section
5.04 Governmental Approvals. |
19 |
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Section
5.05 Non-Contravention. |
19 |
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Section
5.06 Capitalization. |
20 |
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Section
5.07 Exchange Shares. |
20 |
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Section
5.08 SEC Filings and Company Financials. |
21 |
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Section
5.09 Compliance with Laws. |
22 |
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Section
5.10 Actions; Orders; Permits. |
22 |
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Section
5.11 Litigation. |
22 |
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Section
5.12 Transactions with Affiliates. |
22 |
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Section
5.13 Investment Company Act. |
22 |
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Section
5.14 Independent Investigation. |
23 |
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Section
5.15 No Brokers. |
23 |
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Article
VI. Additional Agreements and Covenants |
23 |
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Section
6.01 Delivery of Books and Records |
23 |
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Section
6.02 Third Party Consents and Certificates. |
23 |
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Section
6.03 Notices of Certain Events. |
23 |
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Section
6.04 Stockholder Approval. |
24 |
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Section
6.05 Members’ Representative. |
24 |
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Article
VII. Conditions to the Closing |
25 |
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Section
7.01 Conditions to the Obligations of all of the Parties. |
25 |
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Section
7.02 Conditions to the Obligations of the Company. |
26 |
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Section
7.03 Condition to the Obligations of the Member |
26 |
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Article
VIII. Termination; Survival |
27 |
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Section
8.01 Termination |
27 |
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Section
8.02 Specific Enforcement. |
28 |
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Section
8.03 Survival After Termination. |
28 |
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Section
8.04 Survival Following Closing. |
28 |
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Article
IX. Miscellaneous |
28 |
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Section
9.01 Notices |
28 |
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Section
9.02 Governing Law; Jurisdiction. |
29 |
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Section
9.03 Waiver of Jury Trial. |
30 |
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Section
9.04 Mediation. |
31 |
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Section
9.05 Limitation on Damages. |
31 |
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Section
9.06 Attorneys’ Fees |
31 |
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Section
9.07 Confidentiality |
31 |
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Section
9.08 Third Party Beneficiaries |
32 |
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Section
9.09 Expenses |
32 |
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Section
9.10 Entire Agreement |
32 |
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Section
9.11 Amendment; Waiver |
32 |
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Section
9.12 No Presumption Against Drafter. |
32 |
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Section
9.13 Headings. |
32 |
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Section
9.14 No Assignment or Delegation. |
33 |
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Section
9.15 Commercially Reasonable Efforts |
33 |
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Section
9.16 Further Assurances. |
33 |
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Section
9.17 Specific Performance. |
33 |
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Section
9.18 Counterparts |
33 |
Exhibit
A |
Assignment
of Membership Interests |
Exhibit
B |
Form
of Lock-Up Agreement |
Exchange
Agreement
Dated
as of August 10, 2023
This
Exchange Agreement (this “Agreement”) is entered into as of the date first set forth above (the “Effective Date”)
by and between (i) EZFill Holdings, Inc., a Delaware corporation (the “Company”); (ii) all of the members of Next Charging
LLC, a Florida limited liability company (“Next Charging”) as set forth on the signature pages hereof (the “Members”);
and (iii) Michael Farkas as the representative of the Members (the “Members’ Representative”). Each of the Company,
the Members and the Members’ Representative may be referred to herein collectively as the “Parties” and separately
as a “Party”.
WHEREAS,
the Members are all of the members of Next Charging, and at the Closing (as defined below), the Company agrees to acquire from the Members
100% of the membership interests of Next Charging (the “Membership Interests”) in exchange for the issuance by the Company
to the Members of shares of common stock, par value $0.0001 per share (the “Common Stock”);
WHEREAS,
Next Charging will become a wholly owned subsidiary of the Company; and
WHEREAS,
for Federal income tax purposes, it is intended that the Exchange (as defined below) qualify as a reorganization under the provisions
of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”);
NOW
THEREFORE, on the stated premises and for and in consideration of the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the Parties to be derived herefrom, and intending to be legally bound hereby, it is hereby agreed as follows:
Article
I. Definitions and Interpretations
Section
1.01 Definitions. The following terms, as used herein, have the following meanings
| (a) | “Accredited
Investor” has the meaning set forth in Section 4.07(b). |
| (b) | “Action”
means any legal action, suit, claim, investigation, hearing or proceeding, including any
audit, claim or assessment for Taxes or otherwise. |
| (c) | “Affiliate”
means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled
by, or under common Control with such Person. |
| (d) | “Agreement”
has the meaning set forth in the introductory paragraph hereto. |
| (e) | “Assignment
of Membership Interests” has the meaning set forth in Section 2.04(a). |
| (f) | “Business
Day” means any day that is not a Saturday, Sunday or other day on which banking institutions
in Delaware are authorized or required by law or executive order to close. |
| (g) | “Capitalization
Table” has the meaning set forth in Section 3.02(b). |
| (h) | “Certificate
Amendment” has the meaning set forth in Section 2.01. |
| (i) | “Closing
Date” has the meaning set forth in Section 2.03. |
| (j) | “Closing”
has the meaning set forth in Section 2.03. |
| (k) | “Code”
has the meaning set forth in the recitals hereto. |
| (l) | “Common
Stock” has the meaning set forth in the recitals hereto. |
| (m) | “Company
Board” means the Board of Directors of the Company. |
| (n) | “Company
Disclosure Schedules” has the meaning set forth in the introductory paragraph to Article
V. |
| (o) | “Company
Financials” has the meaning set forth in Section 5.08(b). |
| (p) | “Company
Organizational Documents” has the meaning set forth in Section 5.01. |
| (q) | “Company”
has the meaning set forth in the introductory paragraph hereto. |
| (r) | “Consent”
means any consent, approval, waiver, authorization or Permit of, or notice to or declaration
or filing with any Governmental Authority or any other Person. |
| (s) | “Contracts”
means all contracts, agreements, binding arrangements, bonds, notes, indentures, mortgages,
debt instruments, purchase order, licenses, franchises, leases and other instruments or obligations
of any kind, written or oral (including any amendments and other modifications thereto). |
| (t) | “Control”
of a Person means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the ownership
of voting securities, by contract, or otherwise, with “Controlled”, “Controlling”
and “under common Control with” have correlative meanings; and provided that,
without limiting the foregoing a Person (the “Controlled Person”) shall be deemed
Controlled by (a) any other Person (the “10% Owner”) (i) owning beneficially,
as meant in Rule 13d-3 under the Exchange Act, securities entitling such Person to cast 10%
or more of the votes for election of directors or equivalent governing authority of the Controlled
Person or (ii) entitled to be allocated or receive 10% or more of the profits, losses, or
distributions of the Controlled Person; (b) an officer, director, general partner, partner
(other than a limited partner), manager, or member (other than a member having no management
authority that is not a 10% Owner ) of the Controlled Person; or (c) a spouse, parent, lineal
descendant, sibling, aunt, uncle, niece, nephew, mother-in-law, father-in-law, sister-in-law,
or brother-in-law of an Affiliate of the Controlled Person or a trust for the benefit of
an Affiliate of the Controlled Person or of which an Affiliate of the Controlled Person is
a trustee. |
| (u) | “Derivatives”
means any options, warrants, convertible securities or other rights, agreements, arrangements
or commitments of any character relating to the Equity Securities of a Person or obligating
such Person to issue or sell any of its Equity Securities, including, without limitation
any simple agreements for future equity or any similar agreements or instruments. |
| (v) | “DGCL”
means the Delaware General Corporation Law. |
| (w) | “Effective
Date” has the meaning set forth in the introductory paragraph hereto. |
| (a) | “Enforceability
Exceptions” means (a) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar Laws of general application affecting enforcement
of creditors’ rights generally and (b) general principles of equity. |
| (x) | “Equity
Security” means, in respect of any Person, (a) any capital stock or similar security,
(b) any security convertible into or exchangeable for any security described in clause (a),
(c) any option, warrant, or other right to purchase or otherwise acquire any security described
in clauses (a), (b), or (c), and, (d) any “equity security” within the meaning
of the Exchange Act. |
| (y) | “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder. |
| (z) | “Exchange
Shares” has the meaning set forth in Section 2.02(b). |
| (aa) | “Exchange”
has the meaning set forth in Section 2.02(d). |
| (bb) | “First
Target” has the meaning set forth in Section 2.07(d)(i). |
| (cc) | “Florida
Act” means the Florida Revised Limited Liability Company Act. |
| (dd) | “Fueling
Station” has the meaning set forth in Section 2.07(d)(iv). |
| (ee) | “GAAP”
means generally accepted accounting principles as in effect in the United States of America. |
| (b) | “Governmental
Authority” means any federal, state, local or foreign government or political subdivision
thereof, or any agency or instrumentality of such government or political subdivision, or
any self-regulated organization or other non-governmental regulatory authority or quasi-governmental
authority (to the extent that the rules, regulations or orders of such organization or authority
have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction. |
| (ff) | “Indebtedness”
of any Person means, without duplication, (a) all indebtedness of such Person for borrowed
money (including the outstanding principal and accrued but unpaid interest), (b) all obligations
for the deferred purchase price of property or services (other than trade payables incurred
in the ordinary course of business), (c) any other indebtedness of such Person that is evidenced
by a note, bond, debenture, credit agreement or similar instrument, (d) all obligations of
such Person under leases that should be classified as capital leases in accordance with GAAP,
(e) all obligations of such Person for the reimbursement of any obligor on any line or letter
of credit, banker’s acceptance, guarantee or similar credit transaction, in each case,
that has been drawn or claimed against, (f) all obligations of such Person in respect of
acceptances issued or created, (g) interest rate and currency swaps, caps, collars and similar
agreements or hedging devices under which payments are obligated to be made by such Person,
whether periodically or upon the happening of a contingency, (h) all obligations secured
by a Lien on any property of such Person, (i) any premiums, prepayment fees or other penalties,
fees, costs or expenses associated with payment of any Indebtedness of such Person and (j)
all obligation described in clauses (a) through (i) above of any other Person which is directly
or indirectly guaranteed by such Person or which such Person has agreed (contingently or
otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured
a creditor against loss. |
| (gg) | “Knowledge
of the Company” means the actual knowledge of the officers of the Company, after and
assuming reasonable inquiry. |
| (hh) | “Knowledge
of the Members’ Representative” means the actual knowledge of the Members’
Representative, after and assuming reasonable inquiry. |
| (c) | “Law”
means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common
law, judgment, decree, other requirement or rule of law of any Governmental Authority. |
| (d) | “Liabilities”
means any and all liabilities, Indebtedness, Actions or obligations of any nature (whether
absolute, accrued, contingent or otherwise, whether known or unknown, whether direct or indirect,
whether matured or unmatured, whether due or to become due and whether or not required to
be recorded or reflected on a balance sheet under GAAP or other applicable accounting standards),
including Tax liabilities due or to become due. |
| (ii) | “Lien”
means any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset, and any conditional sale or voting agreement or proxy, including any
agreement to give any of the foregoing. |
| (jj) | “Lock-Up
Agreement” has the meaning set forth in Section 2.06(b). |
| (kk) | “Material
Adverse Effect”, with respect to any Person, means any event, occurrence, fact, condition
or change that is, or could reasonably be expected to become, individually or in the aggregate,
materially adverse to (a) the business, results of operations, condition (financial or otherwise)
or assets of such Person, or (b) the ability of such Person to consummate the Transactions
on a timely basis; provided, however, that “Material Adverse Effect” shall not
include any event, occurrence, fact, condition, or change, directly or indirectly, arising
out of or attributable to: (i) any changes, conditions or effects in the United States economies
or securities or financial markets in general; (ii) changes, conditions or effects that generally
affect the industries in which such Person operates; (iii) any change, effect or circumstance
resulting from an action required or permitted by this Agreement; or (iv) conditions caused
by acts of terrorism or war (whether or not declared); provided further, however, that any
event, occurrence, fact, condition, or change referred to in clauses (i), (ii) or (iv) immediately
above shall be taken into account in determining whether a Material Adverse Effect on a subject
Person has occurred to the extent that such event, occurrence, fact, condition, or change
has a disproportionate effect on such Person compared to other participants in the industries
in which such Person conducts its business. |
| (ll) | “Mediator”
has the meaning set forth in Section 9.04(a). |
| (mm) | “Member
Disclosure Schedules” has the meaning set forth in the introductory paragraph to Article
III. |
| (nn) | “Members’
Representative” has the meaning set forth in the introductory paragraph hereto. |
| (oo) | “Members”
has the meaning set forth in the introductory paragraph hereto. |
| (pp) | “Membership
Interests” has the meaning set forth in the recitals. |
| (qq) | “Nasdaq”
means the Nasdaq Capital Market. |
| (rr) | “Next
Charging Organizational Documents has the meaning set forth in Section 3.02(a). |
| (ss) | “Next
Charging” has the meaning set forth in the introductory paragraph hereto. |
| (tt) | “Order”
means any decree, order, judgment, writ, award, injunction, rule, injunction, stay, decree,
judgment or restraining order or consent of or by an Governmental Authority. |
| (uu) | “Party”
and “Parties” have the meanings set forth in the introductory paragraph hereto. |
| (vv) | “Period
of Restriction” has the meaning set forth in Section 2.07(b). |
| (ww) | “Permits”
means all federal, state, local or foreign or other third-party permits, grants, easements,
consents, approvals, authorizations, exemptions, licenses, franchises, concessions, ratifications,
permissions, clearances, confirmations, endorsements, waivers, certifications, designations,
ratings, registrations, qualifications or orders of any Governmental Authority or any other
Person. |
| (xx) | “Permitted
Liens” means (a) Liens for Taxes or assessments and similar governmental charges or
levies, which either are (i) not delinquent or (ii) being contested in good faith and by
appropriate proceedings, and adequate reserves have been established with respect thereto,
(b) other Liens imposed by operation of Law arising in the ordinary course of business for
amounts which are not due and payable and as would not in the aggregate materially adversely
affect the value of, or materially adversely interfere with the use of, the property subject
thereto, (c) Liens incurred or deposits made in the ordinary course of business in connection
with social security, (d) Liens on goods in transit incurred pursuant to documentary letters
of credit, in each case arising in the ordinary course of business, or (v) Liens arising
under this Agreement or any Transaction Document. |
| (yy) | “Person”
means an individual, corporation, partnership (including a general partnership, limited partnership
or limited liability partnership), limited liability company, association, trust or other
entity or organization, including a government, domestic or foreign, or political subdivision
thereof, or an agency or instrumentality thereof. |
| (zz) | “Preferred
Stock” has the meaning set forth in Section 5.06(a). |
| (aaa) | “Public
Certifications” has the meaning set forth in Section 5.08(a). |
| (bbb) | “Representative”
means, with respect to any Person, any and all directors, officers, employees, consultants,
financial advisors, counsel, accountants and other agents of such Person. |
| (ccc) | “Required
Stockholder Approval” has the meaning set forth in Section 6.04(b). |
| (ddd) | “Restricted
Shares” has the meaning set forth in Section 2.02(c). |
| (eee) | “Rule
144” has the meaning set forth in Section 4.07(f). |
| (fff) | “SEC
Reports” has the meaning set forth in Section 5.08(a). |
| (ggg) | “SEC”
means the U.S. Securities and Exchange Commission. |
| (hhh) | “Second
Target” has the meaning set forth in Section 2.07(d)(ii). |
| (iii) | “Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder. |
| (jjj) | “Selected
Courts” has the meaning set forth in Section 9.02(b). |
| (kkk) | “Stockholder
Approval Matters” has the meaning set forth in Section 6.04(a). |
| (lll) | “Tax
Return” means any return, declaration, report, claim for refund, information return
or other documents (including any related or supporting schedules, statements or information)
filed or required to be filed in connection with the determination, assessment or collection
of any Taxes or the administration of any Laws or administrative requirements relating to
any Taxes. |
| (mmm) | “Tax(es)”
means any federal, state, local or foreign tax, charge, fee, levy, custom, duty, deficiency,
or other assessment of any kind or nature imposed by any Taxing Authority (including any
income (net or gross), gross receipts, profits, windfall profit, sales, use, goods and services,
ad valorem, franchise, license, withholding, employment, social security, workers compensation,
unemployment compensation, employment, payroll, transfer, excise, import, real property,
personal property, intangible property, occupancy, recording, minimum, alternative minimum,
environmental or estimated tax), including any Liability therefor as a transferee (including
under Section 6901 of the Code or similar provision of applicable Law) or successor, as a
result of Treasury Regulation Section 1.1502-6 or similar provision of applicable Law or
as a result of any Tax sharing, indemnification or similar agreement, together with any interest,
penalty, additions to tax or additional amount imposed with respect thereto. |
| (nnn) | “Taxing
Authority” means the Internal Revenue Service and any other Governmental Authority
responsible for the collection, assessment or imposition of any Tax or the administration
of any Law relating to any Tax. |
| (ooo) | “Termination
Date” means December 30, 2023. |
| (ppp) | “Transaction
Documents” means this Agreement, the Assignment of Membership Interests, the Lock-Up
Agreements and any other certificate, agreement or document entered into or delivered in
connection with the transactions as contemplated herein or therein. |
| (qqq) | “Transactions”
means the transactions contemplated by the Transaction Documents. |
| (rrr) | “Vested
Shares” has the meaning set forth in Section 2.02(c). |
Section
1.02 Interpretive Provisions. Unless the express context otherwise requires (i) the words “hereof,”
“herein,” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not to any particular provision of this Agreement; (ii) terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa; (iii) the terms “Dollars” and “$” mean United
States Dollars; (iv) references herein to a specific Section, Subsection, Recital or Exhibit shall refer, respectively, to Sections,
Subsections, Recitals or Exhibits of this Agreement; (v) wherever the word “include,” “includes,” or
“including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;
(vi) references herein to any gender shall include each other gender; (vii) references herein to any Person shall include such
Person’s heirs, executors, personal Representatives, administrators, successors and assigns; provided, however, that nothing
contained herein is intended to authorize any assignment or transfer not otherwise permitted by this Agreement; (viii) references
herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity; (ix) references herein to
any contract or agreement (including this Agreement) mean such contract or agreement as amended, supplemented or modified from time
to time in accordance with the terms thereof; (x) with respect to the determination of any period of time, the word
“from” means “from and including” and the words “to” and “until” each means
“to but excluding”; (xi) references herein to any Law or any license mean such Law or license as amended, modified,
codified, reenacted, supplemented or superseded in whole or in part, and in effect from time to time; and (xii) references herein to
any Law shall be deemed also to refer to all rules and regulations promulgated thereunder.
Article
II. The Transactions
Section
2.01 Amendment of Certificate. Prior to the Closing, and as a condition precedent thereto, the Company shall undertake such
actions as required to amend the Certificate of Incorporation of the Company to increase the number of authorized shares of Common
Stock from 50,000,000 shares of Common Stock to 500,000,000 shares of Common Stock (the “Certificate
Amendment”).
Section
2.02 The Exchange.
| (a) | On
the terms and subject to the conditions set forth in this Agreement, at the Closing, the
Members shall sell, assign, transfer and deliver to the Company, free and clear of all Liens,
pledges, encumbrances, charges, restrictions or known claims of any kind, nature, or description,
all of the Membership Interests. |
| (b) | All
of the Membership Interests shall be exchanged, collectively, for 100,000,000 shares of Common
Stock (“Exchange Shares”), which shall be apportioned between the Members pro
rata based on the respective proportion of the Membership Interests as owed by each Member
as set forth on the Capitalization Table (as defined below). The Exchange Shares shall be
issued in book entry form and shall not be certificated. |
| (c) | 16,000,000
of the Exchange Shares (the “Vested Shares”) shall be fully earned and vested
as of the Closing Date, and the remaining 84,000,000 Exchange Shares (the “Restricted
Shares”) shall be subject to vesting or forfeiture as set forth in Section 2.07. |
| (d) | The
exchange as set forth in this Section 2.02, subject to the other terms and conditions herein,
is referred to collectively herein as the “Exchange”. |
| (e) | At
the Closing (as defined below) the Members shall, on transfer of their respective Membership
Interests to the Company, be recorded in the stock ledger of the Company as the owners of
the applicable portions of the Exchange Shares. |
Section
2.03 Closing. The closing of the Transactions (the “Closing”) shall occur on second Business Day following the
satisfaction or waiver (by the Party for whose benefit the conditions to exist) of the conditions to closing set forth in Section
7.01, Section 7.02 and Section 7.03, or at such other date, time or place as the Company and the Members’ Representative may
agree (the date and time at which the Closing is actually held being the “Closing Date”), via the exchange of electronic
documents and other items as required herein.
Section
2.04 Member Deliverables at the Closing. At the Closing, the Members’ Representative on behalf of the Members shall
deliver to the Company the following:
| (a) | An
Assignment of Membership Interests in the form as attached hereto as Exhibit A (the “Assignment
of Membership Interests”), duly completed and executed by each Member. |
| (b) | A
certificate of the Members’ Representative, dated as of the Closing Date, and: |
| (i) | certifying
that the conditions set forth in Section 7.02(a), Section 7.02(b) and Section 7.02(d) have
been satisfied and that the statements therein are true and correct; and |
| (ii) | attaching
a certificate of status issued by the Florida Secretary of State for Next Charging, dated
as of a date within 5 days of the Closing Date. |
Section
2.05 Company Deliverables at the Closing. At the Closing, the Company shall:
| (a) | Record
the Members in the books and records of the Company as the owners of the applicable portions
of the Exchange Shares; |
| (b) | Deliver
to the Members’ Representative on behalf of the Members a certificate of an executive
Officer of the Company, dated as of the Closing Date; and: |
| (i) | certifying
that the conditions set forth in Section 7.03(a), Section 7.03(b) and Section 7.03(c) have
been satisfied and that the statements therein are true and correct; and |
| (ii) | attaching
a certificate of status issued by the Delaware Secretary of State for the Company, dated
as of a date within 5 days of the Closing Date. |
Section
2.06 Additional Agreements and Actions at and Following the Closing.
| (a) | At
the Closing, the Company Board shall name Michael Farkas as Chief Executive Officer and as
a Director and as the Executive Chairman of the Company. |
| (b) | At
the Closing, the Company shall enter into a lock-up agreement, in the form as attached hereto
as Exhibit B (each, a “Lock-Up Agreement”), with (i) each Director of the Company;
(ii) each officer of the Company; and (iii) each Member, which Lock-Up Agreements shall provide
that the Equity Securities of the Company held by such counterparties to the Lock-Up Agreements
are restricted from transfer for a period of 12 months following the Closing, and in each
case subject to the terms and conditions of the Lock-Up Agreements. |
Section
2.07 Vesting and Forfeiture of Exchange Shares.
| (a) | The
Restricted Shares shall be subject to vesting or forfeiture as set forth in this Section
2.07. |
| (b) | For
purposes herein, “Period of Restriction” shall mean the period commencing on
the Closing Date and expiring on the third annual anniversary of the Closing Date. During
the Period of Restriction, the Restricted Shares may not be sold, transferred, pledged, assigned,
or otherwise alienated or hypothecated, and the Company as escrow agent will hold the Restricted
Shares, until the restrictions thereon have lapsed and such Restricted Shares have vested,
as set forth herein. During the Period of Restriction, Members holding Restricted Shares
granted hereunder may exercise full voting rights with respect to those Shares, and will
be entitled to receive all dividends and other distributions paid with respect to the Common
Stock. If any such dividends or distributions are paid in shares of Common Stock, such shares
of Common Stock will be subject to the same restrictions on transferability as the Restricted
Shares with respect to which they were paid. At the time that such the restrictions thereon
have lapsed and such Restricted Shares have vested, as set forth herein, the Restricted Shares
shall constitute fully earned and vested shares of Common Stock, and the Member holding such
shares shall have all the rights of a stockholder with respect thereto. |
| (c) | Any
vesting or forfeiture of the Restricted Shares shall be allocated pro rata between the Members
in the same proportion as the Members received the Vested Stock at the Closing. |
| (d) | The
Restricted Shares shall vest, if at all, as follows: |
| (i) | Upon
the Company completing the acquisition of the acquisition target as set forth in Section
2.07(d)(i) of the Company Disclosure Schedules (the “First Target”) 20,000,000
of the Restricted Shares shall vest. In the event that the Members’ Representative
determines that the First Target as previously identified between the Members’ Representative
and the Company is not capable of being acquired, then the Members’ Representative
and the Company shall negotiate in good faith to determine a replacement “First Target”. |
| (ii) | Upon
the Company completing the acquisition of the second acquisition target as set forth in Section
2.07(d)(ii) of the Company Disclosure Schedules (the “Second Target”), 20,000,000
of the Restricted Shares shall vest. In the event that the Members’ Representative
determines that the Second Target as previously identified between the Members’ Representative
and the Company is not capable of being acquired, then the Members’ Representative
and the Company shall negotiate in good faith to determine a replacement “Second Target”. |
| (iii) | For
every $20,000,000 of proceeds received by the Company following the Closing Date from (i)
any issuance of its Equity Securities or debt securities; or through the receipt of grants,
rebates or subsidies received from utilities, government agencies, quasi government agencies,
or granting/rebate authorities, calculated collectively, an additional 10,000,000 Restricted
Shares shall vest. By way of example and not limitation, in the event that the Company receives
proceeds of $20,000,000 from the sale of Common Stock, 10,000,000 Restricted Shares shall
vest, and if thereafter the Company receives additional proceeds of $20,000,000 from the
sale of Common Stock, an additional 10,000,000 Restricted Shares shall vest. For purposes
of this Section 2.07(d)(iii), the following provisions shall apply: |
| (A) | Grants
and rebates shall be deemed received once funds are paid out by the granting or paying authority
and received by the Company, regardless of any additional conditions placed on such grants
or rebates. Any rebates shall be limited to the rebates received by the Company to assist
in the cost of deployment of the Company’s systems. |
| (B) | Subsidies
shall be deemed received once the Company receives such subsidies, if in the form of payment,
via payment from the paying authority, or when the Company receives the benefit thereof,
if in the form of a discount or similar event, regardless of any additional conditions placed
on such subsidies. |
| (iv) | For
each of the first three Fueling Stations (as defined below) purchased by the Company following
the Closing as a direct result of the occurrence of the Transactions, an additional 10,000,000
Restricted Shares shall vest. By way of example and not limitation, upon the acquisition
of the first Fueling Station purchased by the Company following the Closing as a direct result
of the occurrence of the Transactions, 10,000,000 Restricted Shares shall vest; upon the
acquisition of the second Fueling Station purchased by the Company following the Closing
as a direct result of the occurrence of the Transactions, an additional 10,000,000 Restricted
Shares shall vest; and upon the acquisition of the third Fueling Station purchased by the
Company following the Closing as a direct result of the occurrence of the Transactions, an
additional 10,000,000 Restricted Shares shall vest. For purposes herein, “Fueling Station”
means a traditional gas station and rest-stop/service station or other income-producing property
that will offer fuel and electric vehicle charging centers, in each case which (i) has reasonable
space available to develop and deploy the systems proposed to be developed and deployed by
the Company at such location and (ii) serve the purpose of generating revenue from fuel,
electric vehicle charging and solar and battery storage systems. |
| (v) | For
each subsequent Fueling Station purchased by the Company following the Closing as a direct
result of the occurrence of the Transactions, beyond the three Fueling Stations as set forth
in Section 2.07(d)(iv), an additional 5,000,000 Restricted Shares shall vest. By way of example
and not limitation, upon the acquisition of the first Fueling Station purchased by the Company
following the Closing as a direct result of the occurrence of the Transactions, beyond the
three Fueling Stations as set forth in Section 2.07(d)(iv), 5,000,000 Restricted Shares shall
vest. |
| (vi) | For
each solar, wireless electric vehicle charging, and/or battery storage, system, being systems
in which energy is stored in order to reduce load and capacities on the electrical grid,
deployed as a standalone system and not as a fuel station (which shall mean that the system
is deployed and operational as a standalone system and not as a fuel station) by the Company
following the Closing, 5,000,000 Restricted Shares shall vest. By way of example and not
limitation, upon the deployment of the first solar, wireless electric vehicle charging, and/or
battery storage system by the Company following the Closing, 5,000,000 Restricted Shares
shall vest; and upon the deployment of a subsequent solar, wireless electric vehicle charging,
and/or battery storage system by the Company following the Closing an additional 5,000,000
Restricted Shares shall vest. For purposes herein, a “solar system” means a 500kw
to 5MW system in which the Company produces solar energy and transmits it to the electrical
grid, or to a third party which purchase the energy, which third party may be the customer
for the solar energy in the event that such energy powered the Company’s charging stations. |
| (vii) | Upon
the deployment by the Company of the first beta of dynamic wireless EV charging following
the Closing, 10,000,000 Restricted Shares shall vest. For purposes of this Section 2.07(d)(vii),
the deployment of the beta will be defined as an installation with the ability to test in
a real world application (such as installing it in an HOA/small segment of road/university
campus/rest stop area, or similar). |
| (viii) | Upon
the sale by the Company to a residential customer of the first wireless EV charging station
that is developed based on intellectual property owned by the Company at such time, with
such sale following the Closing, 10,000,000 Restricted Shares shall vest. |
| (e) | The
determination of whether any of the conditions to the vesting of the Restricted Shares as
set forth in Section 2.07(d) have been satisfied, and therefore whether any or all of the
Restricted Shares are to vest, shall be made jointly by the Members’ Representative
and the Board of Directors of the Company. In the event that the Members’ Representative
and the Board of Directors of the Company are not able to agree thereon within 30 days of
the commencement of efforts to do so, either the Members’ Representative or the Company
may proceed to resolve such disagreement pursuant to the procedures as set forth in Section
9.04. |
| (f) | In
the event that any of the vesting conditions set forth in Section 2.07(d) occur, but as a
result thereof the total of (i) the Restricted Shares which have previously become vested
and (ii) the Restricted Shares which are to become vested at such time, would exceed 84,000,000,
then only such number of Restricted Shares which may vest and result in a total of 84,000,000
Restricted Shares being vested shall so vest, and thereafter no additional vesting shall
occur pursuant to the provisions of Section 2.07(d). |
| (g) | In
the event that any of the initial 84,000,000 Restricted Shares have not vested pursuant to
the provisions herein as of the end of the Period of Restriction, such unvested Restricted
Shares will be forfeited and will revert to the Company and will be returned to the status
of authorized and unissued shares of Common Stock. |
Section
2.08 Additional Documents. At and following the Closing, the Parties shall execute, acknowledge, and deliver (or shall ensure
to be executed, acknowledged, and delivered), any and all certificates, opinions, financial statements, schedules, agreements,
resolutions, rulings or other instruments required by this Agreement to be so delivered at or prior to or following the Closing,
together with such other items as may be reasonably requested by the Parties and their respective legal counsel in order to
effectuate or evidence the Transactions.
Section
2.09 Tax Consequences. For U.S. federal Tax purposes, the Exchange is intended to qualify as a
“reorganization” within the meaning of Section 351 and Section 368(a) of the Code and the Treasury Regulations
promulgated thereunder. The Parties adopt this Agreement as a “plan of reorganization” within the meaning of Treasury
Regulations Sections 1.368-2(g) and 1.368-3(a).
Article
III. Representations and Warranties Relating to
Next Charging
As
an inducement to, and to obtain the reliance of the Company, the Members’ Representative represents and warrants to the Company,
except as set forth in the Disclosure Schedules delivered by the Members’ Representative to the Company on the Effective Date (the
“Member Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement
to which they refer, as of the Effective Date and as of the Closing Date, except as otherwise specifically set forth below as to representations
and warranties which speak solely with respect to a particular date, as follows:
Section
3.01 Existence and Power. Next Charging is a limited liability company, duly organized, validly existing, and in good
standing under the Laws of the state of Delaware and is duly authorized under all applicable Laws, regulations, ordinances, and
orders of public authorities to carry on its business in all material respects as it is now being conducted.
Section
3.02 Capitalization.
| (a) | The
Membership Interests constitute 100% of the equity interests of Next Charging. None of the
Membership Interests is subject to pre-emptive or similar rights pursuant to any organizational
document of Next Charging, including the Articles of Organization and any operating agreement
of Next Charging (the “Next Charging Organizational Documents”). Except for the
Next Charging Organizational Documents, there are no voting agreements, rights of first refusal,
drag-along, tag-along, rights of participation or other similar rights with respect to the
Membership Interests to which all of the Members and Next Charging are a party. |
| (b) | The
Membership Interests are held by the Members in the proportions as set forth in Section 3.02(b)
of the Member Disclosure Schedules (the “Capitalization Table”). |
| (c) | All
of the Membership Interests are duly authorized, validly issued, fully paid and non-assessable
and are not subject to or issued in violation of any purchase option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of the Florida
Act or the Next Charging Organizational Documents. None of the outstanding Membership Interests
have been issued in violation of any applicable securities Laws |
| (d) | There
are no (i) outstanding options, warrants, puts, calls, convertible securities, preemptive
or similar rights, (ii) bonds, debentures, notes or other Indebtedness having general voting
rights or that are convertible or exchangeable into securities having such rights or (iii)
subscriptions or other rights, agreements, arrangements, Contracts or commitments of any
character (other than this Agreement and the Transaction Documents), (A) relating to the
issued or unissued Equity Securities of Next Charging or (B) obligating Next Charging to
issue, transfer, deliver or sell or cause to be issued, transferred, delivered, sold or repurchased
any options or shares or securities convertible into or exchangeable for such Equity Securities,
or (C) obligating Next Charging to grant, extend or enter into any such option, warrant,
call, subscription or other right, agreement, arrangement or commitment for such Equity Securities.
Other than as expressly set forth in this Agreement, there are no outstanding obligations
of Next Charging to repurchase, redeem or otherwise acquire any Equity Securities of Next
Charging or to provide funds to make any investment (in the form of a loan, capital contribution
or otherwise) in any Person. |
| (e) | All
Indebtedness of Next Charging as of the Effective Date is disclosed in Section 3.02(e) of
the Member Disclosure Schedules. No Indebtedness of Next Charging contains any restriction
upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness
by Next Charging or (iii) the ability of Next Charging to grant any Lien on its properties
or assets. |
Section
3.03 Compliance with Laws. Next Charging is, and has since its formation been, in compliance with all Laws applicable to it
and the conduct of its business except for such noncompliance which would not reasonably be expected to have a Material Adverse
Effect on Next Charging, and Next Charging has not received written notice alleging any violation of applicable Law in any material
respect by Next Charging. Next Charging is not under investigation with respect to any violation or alleged violation of, any law,
or judgment, order or decree entered by any court, arbitrator or Governmental Authority, domestic or foreign, and Next Charging has
not previously received any subpoenas from any Governmental Authority.
Section
3.04 Actions; Orders; Permits. There is no pending or, to the Knowledge of the Members’ Representative, threatened,
material Action to which Next Charging is subject which would reasonably be expected to have a Material Adverse Effect on Next
Charging. There is no material Action that Next Charging has pending against any other Person. Next Charging is not subject to any
material Orders of any Governmental Authority, nor are any such Orders pending. Next Charging holds all material Permits necessary
to lawfully conduct its business as presently conducted, and to own, lease and operate its assets and properties, all of which are
in full force and effect, except where the failure to hold such Consent or for such Consent to be in full force and effect would not
reasonably be expected to have a Material Adverse Effect on Next Charging.
Section
3.05 Litigation. There is no (a) Action of any nature currently pending or, to the Knowledge of the Members’
Representative, threatened, and no such Action has been brought since its incorporation; or (b) Order now pending or outstanding or
that was rendered by a Governmental Authority since its organization, in either case of (a) or (b) by or against Next Charging, its
current or former managers, officers or equity holders (provided, that any litigation involving the directors, officers or equity
holders of Next Charging must be related to Next Charging’s business, equity securities or assets), its business, equity
securities or assets. Since its organization, none of the current or former officers, senior management or managers of Next Charging
have been charged with, indicted for, arrested for, or convicted of any felony or any crime involving fraud.
Section
3.06 Transactions with Affiliates. Section 3.06 of the Member Disclosure Schedules sets forth a true, correct and complete
list of the Contracts and arrangements that are in existence as of the Effective Date under which there are any existing or future
Liabilities or obligations between Next Charging and any (a) present or former manager, officer or employee or Affiliate of Next
Charging, or any immediate family member of any of the foregoing, or (b) record or beneficial owner of more than five percent (5%)
of Next Charging’s outstanding membership interests as of the Effective Date.
Section
3.07 Investment Company Act. Next Charging is not an “investment company” or a Person directly or indirectly
“controlled” by or acting on behalf of an “investment company,” or required to register as an
“investment company,” in each case within the meaning of the Investment Company Act of 1940, as amended.
Section
3.08 Projections. The Members’ Representative represents and warrants that the projections and valuations of Next
Charging as provided to the Company have been prepared in good faith, but neither none of the Members’ Representative, any
Member nor Next Charging has any means of assuring that the results, valuation or other matters as set forth therein will ultimately
be achieved or obtained, and makes no representations or warranties with respect thereto.
Section
3.09 Independent Investigation. The Members’ Representative has conducted its own independent investigation, review and
analysis of the business, results of operations, prospects, condition (financial or otherwise) or assets of the Company and
acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other
documents and data of the Company for such purpose. The Members’ Representative acknowledges and agrees that: (a) in making
its decision to enter into this Agreement and to consummate the transactions contemplated hereby, it has relied solely upon its own
investigation and the express representations and warranties of the Company set forth in this Agreement and in any certificate
delivered to the Members’ Representative pursuant hereto; and (b) none of the Company nor its respective Representatives have
made any representation or warranty as to the Company, or this Agreement, except as expressly set forth in this Agreement or in any
certificate delivered to the Members’ Representative or the Members pursuant hereto.
Section
3.10 No Brokers. The Members’ Representative has not retained any broker or finder in connection with any of the
Transactions, and the Members’ Representative has not incurred or agreed to pay, or taken any other action that would entitle
any Person to receive, any brokerage fee, finder’s fee or other similar fee or commission with respect to any of the
Transactions.
Article
IV. Representations and Warranties of Each
Member
As
an inducement to, and to obtain the reliance of the Company, each Member, severally and not jointly and severally, represents and warrant
to the Company, as of the Effective Date and as of the Closing Date, except as otherwise specifically set forth below as to representations
and warranties which speak solely with respect to a particular date as follows with respect to such Member, the Exchange Shares to be
received by such Member and the Membership Interests held by such Member, as follows:
Section
4.01 Existence and Power. Such Member is a natural person or is an entity duly organized, validly existing, and in good
standing under the Laws of the state of its organization and is duly authorized under all applicable Laws, regulations, ordinances,
and orders of public authorities to carry on its business in all material respects as it is now being conducted.
Section
4.02 Due Authorization. Such Member has taken all actions required by Law, its organizational documents (if applicable) or
otherwise to authorize the execution, delivery and performance of this Agreement and to consummate the Transactions.
Section
4.03 Valid Obligation. This Agreement and all Transaction Documents executed by such Member in connection herewith constitute
the valid and binding obligations of such Member, enforceable in accordance with its or their terms, except as may be limited by the
Enforceability Exceptions.
Section
4.04 No Conflict With Other Instruments. The execution of this Agreement by such Member and the consummation of the
Transactions by such Member will not result in the breach of any term or provision of, constitute a default under, or terminate,
accelerate or modify the terms of, any indenture, mortgage, deed of trust, or other material agreement or instrument to which such
Member is a party or to which any of such Member’s assets, properties or operations are subject.
Section
4.05 Non-Contravention. The execution and delivery by such Member of this Agreement and each Transaction Document to which it
is a party, the consummation by such Member of the transactions contemplated hereby and thereby, and compliance by such Member with
any of the provisions hereof and thereof, will not (a) conflict with or violate any provision of the organizational documents of the
Company, (b) conflict with or violate any Law, Order or Consent applicable to such Member, or any of its properties or assets, or
(c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time
or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification
of, (iv) accelerate the performance required by such Member under, (v) result in a right of termination or acceleration under, (vi)
give rise to any obligation to make payments or provide compensation under, (vii) result in the creation of any Lien upon any of the
properties or assets of such Member under, (viii) give rise to any obligation to obtain any third party Consent or provide any
notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback,
penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit,
obligation or other term under, any of the terms, conditions or provisions of, any Contract which is material to the operations of
such Member, except for any deviations from any of the foregoing clauses (a), (b) or (c) that would not reasonably be expected to
have a Material Adverse Effect on such Member.
Section
4.06 Capitalization; Title to Membership Interests.
| (a) | Such
Members is, as of the Effective Date, and on the Closing Date will be, the record and beneficial
owner and holder of the Membership Interests to be delivered by such Member, free and clear
of all Liens. None of the Membership Interests held by such Member is subject to pre-emptive
or similar rights pursuant to any requirement of Law or any contract with such Member, and
no Person has any pre-emptive rights or similar rights to purchase or receive any Membership
Interests or other interests in Next Charging from such Member. |
| (b) | The
Membership Interests held by such Member are duly authorized, validly issued, fully paid
and non-assessable and are not subject to or issued in violation of any purchase option,
right of first refusal, preemptive right, subscription right or any similar right under any
provision of the Florida Act, the Next Charging Organizational Documents or any Contract
to which such Member or Next Charging is a party. |
Section
4.07 Investment Representations.
| (a) | Investment
Purpose. Such Member understands and agrees that the consummation of the Transactions
including the delivery of the Exchange Shares to such Member in exchange for the Membership
Interests held by such Member as contemplated hereby, constitutes the offer and sale of securities
under the Securities Act and applicable state statutes and that the Exchange Shares are being
acquired by such Member for such Member’s own account and not with a present view towards
the public sale or distribution thereof, except pursuant to sales registered or exempted
from registration under the Securities Act. |
| (b) | Investor
Status. Such Member is an “accredited investor” as that term is defined in
Rule 501(a) of Regulation D (and “Accredited Investor”). |
| (c) | Reliance
on Exemptions. Such Member understands that the Exchange Shares are being offered and
sold to such Member in reliance upon specific exemptions from the registration requirements
of United States federal and state securities Laws and that the Company is relying upon the
truth and accuracy of, and such Member’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of such Member set forth herein in order to
determine the availability of such exemptions and the eligibility of such Member to acquire
the Exchange Shares. |
| (d) | Information.
Such Member has been furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale of the Exchange Shares
which have been requested by such Member. Such Member has been afforded the opportunity to
ask questions of the Company. Such Member has such knowledge and experience in financial
and business matters that such Member is capable of evaluating the merits and risks of the
prospective investment and the receipt of the Exchange Shares. Such Member understands that
such Member’s investment in the Exchange Shares involves a significant degree of risk.
Such Member is not aware of any facts that may constitute a breach of any of the Company’s
representations and warranties made herein. |
| (e) | Governmental
Review. Such Member understands that no United States federal or state agency or any
other government or governmental agency has passed upon or made any recommendation or endorsement
of the Exchange Shares. |
| (f) | Transfer
or Resale. Such Member understands that (i) the sale or re-sale of the Exchange Shares
have not been and is not being registered under the Securities Act or any applicable state
securities Laws, and the Exchange Shares may not be transferred unless (a) the Exchange Shares
are sold pursuant to an effective registration statement under the Securities Act, (b) such
Member shall have delivered to the Company, at the cost of such Member, an opinion of counsel
that shall be in form, substance and scope customary for opinions of counsel in comparable
transactions to the effect that the Exchange Shares to be sold or transferred may be sold
or transferred pursuant to an exemption from such registration, which opinion shall be accepted
by the Company, (c) the Exchange Shares are sold or transferred to an “affiliate”
(as defined in Rule 144 promulgated under the Securities Act (or a successor rule) (“Rule
144”)) of such Member who agree to sell or otherwise transfer the Exchange Shares only
in accordance with this Section 4.07(f) and who is an Accredited Investor, (d) the Exchange
Shares are sold pursuant to Rule 144, or (e) the Exchange Shares are sold pursuant to Regulation
S under the Securities Act (or a successor rule) (“Regulation S”), and such Member
shall have delivered to the Company, at the cost of such Member, an opinion of counsel that
shall be in form, substance and scope customary for opinions of counsel in corporate transactions,
which opinion shall be accepted by the Company; (ii) any sale of such Exchange Shares made
in reliance on Rule 144 may be made only in accordance with the terms of said Rule and further,
if said Rule is not applicable, any re-sale of such Exchange Shares under circumstances in
which the seller (or the person through whom the sale is made) may be deemed to be an underwriter
(as that term is defined in the Securities Act) may require compliance with some other exemption
under the Securities Act or the rules and regulations of the SEC thereunder; and (iii) neither
the Company nor any other person is under any obligation to register such Exchange Shares
under the Securities Act or any state securities Laws or to comply with the terms and conditions
of any exemption thereunder (in each case). Notwithstanding the foregoing or anything else
contained herein to the contrary, the Exchange Shares may be pledged as collateral in connection
with a bona fide margin account or other lending arrangement. |
| (g) | Legends.
Such Member understands that the Exchange Shares, until such time as the Exchange Shares
have been registered under the Securities Act, or may be sold pursuant to Rule 144 or Regulation
S without any restriction as to the number of securities as of a particular date that can
then be immediately sold, the Exchange Shares may bear a standard Rule 144 legend and a stop-transfer
order may be placed against transfer of the certificates for such Exchange Shares. |
| (h) | Removal.
The legend(s) referenced in Section 4.07(g) shall be removed and the Company shall issue
a certificate without such legend to the holder of any Exchange Shares upon which it is stamped,
if, unless otherwise required by applicable state securities Laws, (a) the Exchange Shares
are registered for sale under an effective registration statement filed under the Securities
Act or otherwise may be sold pursuant to Rule 144 or Regulation S without any restriction
as to the number of securities as of a particular date that can then be immediately sold,
or (b) such holder provides the Company with an opinion of counsel, in form, substance and
scope customary for opinions of counsel in comparable transactions, to the effect that a
public sale or transfer of such Exchange Shares may be made without registration under the
Securities Act, which opinion shall be accepted by the Company so that the sale or transfer
is effected. Such Member agrees to sell all Exchange Shares, including those represented
by a certificate(s) from which the legend has been removed, in compliance with applicable
prospectus delivery requirements, if any. |
Section
4.08 Independent Investigation. Such Member has conducted its own independent investigation, review and analysis of the
business, results of operations, prospects, condition (financial or otherwise) or assets of the Company and acknowledges that it has
been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the
Company for such purpose. Such Member acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to
consummate the transactions contemplated hereby, it has relied solely upon its own investigation and the express representations and
warranties of the Company set forth in this Agreement and in any certificate delivered to such Member pursuant hereto; and (b) none
of the Company nor its respective Representatives have made any representation or warranty as to the Company, or this Agreement,
except as expressly set forth in this Agreement or in any certificate delivered to such Member pursuant hereto.
Section
4.09 No Brokers. Such Member has not retained any broker or finder in connection with any of the Transactions, and such
Member has not incurred or agreed to pay, or taken any other action that would entitle any Person to receive, any brokerage fee,
finder’s fee or other similar fee or commission with respect to any of the Transactions.
Article
V. Representations and Warranties of the
Company
As
an inducement to, and to obtain the reliance of the Members and the Members’ Representative, the Company represents and warrants
to the Members and the Members’ Representative, except as set forth in the Company Disclosure Schedules delivered by the Company
to the Members’ Representative on the Effective Date (the “Company Disclosure Schedules”), the Section numbers of which
are numbered to correspond to the Section numbers of this Agreement to which they refer, as of the Effective Date and as of the Closing
Date, except as otherwise specifically set forth below as to representations and warranties which speak solely with respect to a particular
date, as follows:
Section
5.01 Corporate Existence and Power. The Company is a corporation duly organized, validly existing, and in good standing under
the Laws of the State of Delaware and has the corporate power and is duly authorized under all applicable Laws, regulations, ordinances,
and orders of public authorities to carry on its business in all material respects as it is now being conducted. The SEC Reports contain
copies of the certificate of incorporation and bylaws of the Company as in effect on the Effective Date (the “Company Organizational
Documents”). The execution and delivery of this Agreement does not, and the consummation of the Transactions will not, violate
any provision of the Company Organizational Documents. Other than as set forth herein as to the conditions to the Closing, the Company
has taken all action required by Law, the Company Organizational Documents, or otherwise to authorize the execution and delivery of this
Agreement, and the Company has full power, authority, and legal right and has taken all action required by Law, the Company Organizational
Documents or otherwise to consummate the Transactions.
Section
5.02 Due Authorization. The execution, delivery and, subject to the completion of the Certificate Amendment, the performance,
of this Agreement does not, and the consummation of the Transactions will not, violate any provision of the Company Organizational
Documents. Other than the Required Stockholder Approval, the Company has taken all actions required by Law, the Company
Organizational Documents or otherwise to authorize the execution, delivery and performance of this Agreement and to consummate the
Transactions. The Company Board has authorized the execution and delivery of this Agreement by the Company and has approved this
Agreement and the Transactions and has not withdrawn such approval.
Section
5.03 Valid Obligation. This Agreement and all agreements and other documents executed by the Company in connection herewith constitute
the valid and binding obligations of the Company, enforceable in accordance with its or their terms, except as may be limited the Enforceability
Exceptions.
Section
5.04 Governmental Approvals. Except as otherwise described in Section 5.04 of the Company Disclosure Schedules, no Consent of
or from any Governmental Authority, on the part of the Company is required to be obtained or made in connection with the execution,
delivery or performance by the Company of this Agreement and each Transaction Document to which it is a party or the consummation by
the Company of the transactions contemplated hereby and thereby, other than (a) such filings as contemplated by this Agreement, (b)
any filings required with Nasdaq or the SEC with respect to the transactions contemplated by this Agreement, (c) applicable
requirements, if any, of the Securities Act, the Exchange Act, and/ or any state “blue sky” securities Laws, and the
rules and regulations thereunder, and (d) where the failure to obtain or make such Consents or to make such filings or
notifications, would not reasonably be expected to have a Material Adverse Effect on the Company.
Section
5.05 Non-Contravention. Except as otherwise described in Section 5.05 of the Company Disclosure Schedules, the execution and
delivery by the Company of this Agreement and each Transaction Document to which it is a party, the consummation by the Company of
the transactions contemplated hereby and thereby, and compliance by the Company with any of the provisions hereof and thereof, will
not (a) conflict with or violate any provision of the Company Organizational Documents, (b) subject to obtaining the Consents from
Governmental Authorities referred to in Section 5.04, and the waiting periods referred to therein having expired, and any condition
precedent to such Consent or waiver having been satisfied, conflict with or violate any Law, Order or Consent applicable to the
Company, or any of their properties or assets, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default
(or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination,
withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by the Company under, (v) result
in a right of termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under,
(vii) result in the creation of any Lien upon any of the properties or assets of the Company under, (viii) give rise to any
obligation to obtain any third party Consent or provide any notice to any Person or (ix) give any Person the right to declare a
default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or
performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or
provisions of, any Contract which is material to the operations of the Company, except for any deviations from any of the foregoing
clauses (a), (b) or (c) that would not reasonably be expected to have a Material Adverse Effect on the Company.
Section
5.06 Capitalization.
| (a) | The
Company is authorized to issue 50,000,000 shares of Common Stock, and 5,000,000 shares of
preferred stock, par value $0.0001 per share (the “Preferred Stock”). No shares
of Preferred Stock have been designated as any class or series of preferred stock, and no
shares of Preferred Stock are issued and outstanding. There are 3,600,577 shares of Common
Stock issued and outstanding. All outstanding shares of the Common Stock are duly authorized,
validly issued, fully paid and non-assessable and are not subject to or issued in violation
of any purchase option, right of first refusal, preemptive right, subscription right or any
similar right under any provision of the DGCL, the Company Organizational Documents or any
Contract to which the Company is a party. None of the outstanding Common Stock, and any other
Derivatives or Equity Securities of the Company have been issued in violation of any applicable
securities Laws |
| (b) | Except
as set forth in Section 5.06(b) of the Company Disclosure Schedules there are no (i) outstanding
options, warrants, puts, calls, convertible securities, preemptive or similar rights, (ii)
bonds, debentures, notes or other Indebtedness having general voting rights or that are convertible
or exchangeable into securities having such rights or (iii) subscriptions or other rights,
agreements, arrangements, Contracts or commitments of any character (other than this Agreement
and the Transaction Documents), (A) relating to the issued or unissued shares of the Company
or (B) obligating the Company to issue, transfer, deliver or sell or cause to be issued,
transferred, delivered, sold or repurchased any options or shares or securities convertible
into or exchangeable for such shares, or (C) obligating the Company to grant, extend or enter
into any such option, warrant, call, subscription or other right, agreement, arrangement
or commitment for such capital shares. Other than as expressly set forth in this Agreement,
there are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire
any shares of the Company or to provide funds to make any investment (in the form of a loan,
capital contribution or otherwise) in any Person. Except as set forth in Section 5.06(b)
of the Company Disclosure Schedules, there are no stockholders agreements, voting trusts
or other agreements or understandings to which Company is a party with respect to the voting
of any shares of the Company. |
| (c) | All
Indebtedness of the Company as of the Effective Date is disclosed in Section 5.06(c) of the
Company Disclosure Schedules. No Indebtedness of the Company contains any restriction upon
(i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness by Company
or (iii) the ability of the Company to grant any Lien on its properties or assets. |
Section
5.07 Exchange Shares. The Exchange Shares to be issued and delivered to the Members in accordance with this Agreement shall
be, upon issuance and delivery of such Exchange Shares, be fully paid and non-assessable, free and clear of all Liens, other than
restrictions arising from applicable securities Laws, any applicable Lock-Up Agreement and any Liens incurred by the Members, and
the issuance and sale of such Exchange Shares pursuant hereto will not be subject to or give rise to any preemptive rights or rights
of first refusal.
Section
5.08 SEC Filings and Company Financials.
| (a) | The
Company has filed all forms, reports, schedules, statements, registration statements, prospectuses
and other documents required to be filed or furnished by the Company with the SEC under the
Securities Act and/or the Exchange Act, together with any amendments, restatements or supplements
thereto, and will file all such forms, reports, schedules, statements and other documents
required to be filed subsequent to the Effective Date. Except to the extent available on
the SEC’s web site through EDGAR, the Company has delivered to the Members’ Representative
copies in the form filed with the SEC of all of the following: (i) the Company’s annual
reports on Form 10-K for each fiscal year of the Company beginning with the first year the
Company was required to file such a form, (ii) the Company’s quarterly reports on Form
10-Q for each fiscal quarter that the Company filed such reports to disclose its quarterly
financial results in each of the fiscal years of the Company referred to in clause (i) above,
(iii) all other forms, reports, registration statements, prospectuses and other documents
(other than preliminary materials) filed by the Company with the SEC since the beginning
of the first fiscal year referred to in clause (i) above (the forms, reports, registration
statements, prospectuses and other documents referred to in clauses (i), (ii) and (iii) above,
whether or not available through EDGAR, are, collectively, the “SEC Reports”)
and (iv) all certifications and statements required by (A) Rules 13a-14 or 15d-14 under the
Exchange Act, and (B) 18 U.S.C. §1350 (Section 906 of SOX) with respect to any report
referred to in clause (i) above (collectively, the “Public Certifications”).
The SEC Reports (x) were prepared in all material respects in accordance with the requirements
of the Securities Act and the Exchange Act, as the case may be, and the rules and regulations
thereunder and (y) did not, as of their respective effective dates (in the case of SEC Reports
that are registration statements filed pursuant to the requirements of the Securities Act)
and at the time they were filed with the SEC (in the case of all other SEC Reports) contain
any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. To the Knowledge of the Company, as of the Effective
Date, there are no outstanding or unresolved comments in comment letters received from the
SEC with respect to any SEC Reports, and none of the SEC Reports filed on or prior to the
Effective Date is subject to ongoing SEC review or investigation as of the Effective Date.
The Public Certifications are each true as of their respective dates of filing. As used in
this Section 5.08, the term “file” shall be broadly construed to include any
manner permitted by SEC rules and regulations in which a document or information is furnished,
supplied or otherwise made available to the SEC. As of the Effective Date, (A) the Common
Stock is listed on Nasdaq, (B) the Company has not received any written deficiency notice
from Nasdaq relating to the continued listing requirements of the Common Stock, (C) there
are no Actions pending or, to the Knowledge of the Company, threatened against the Company
by the Financial Industry Regulatory Authority with respect to any intention by such entity
to suspend, prohibit or terminate the quoting of such Common Stock on Nasdaq and (D) the
Company is in compliance with all of the applicable corporate governance rules of Nasdaq. |
| (b) | The
financial statements and notes of the Company contained or incorporated by reference in the
SEC Reports (the “Company Financials”), fairly present in all material respects
the financial position and the results of operations, changes in stockholders’ equity,
and cash flows of the Company at the respective dates of and for the periods referred to
in such financial statements, all in accordance with (i) GAAP methodologies applied on a
consistent basis throughout the periods involved and (ii) Regulation S-X or Regulation S-K,
as applicable (except as may be indicated in the notes thereto and for the omission of notes
and audit adjustments in the case of unaudited quarterly financial statements to the extent
permitted by Regulation S-X or Regulation S-K, as applicable). |
| (c) | Except
as and to the extent reflected or reserved against in the Company Financials, the Company
has not incurred any Liabilities or obligations of the type required to be reflected on a
balance sheet in accordance with GAAP that are not adequately reflected or reserved on or
provided for in the Company Financials, other than Liabilities of the type required to be
reflected on a balance sheet in accordance with GAAP that have been incurred since the Company’s
formation in the ordinary course of business. All debts and Liabilities, fixed or contingent,
which should be included under U.S. GAAP on a balance sheet are included in all material
respects in the Company Financials as of the date of such Company Financial. |
Section
5.09 Compliance with Laws. The Company is, and has since its formation been, in compliance with all Laws applicable to it and
the conduct of its business except for such noncompliance which would not reasonably be expected to have a Material Adverse Effect
on the Company, and the Company has not received written notice alleging any violation of applicable Law in any material respect by
the Company. The Company is not under investigation with respect to any violation or alleged violation of, any law, or judgment,
order or decree entered by any court, arbitrator or Governmental Authority, domestic or foreign, and the Company has not previously
received any subpoenas from any Governmental Authority.
Section
5.10 Actions; Orders; Permits. There is no pending or, to the Knowledge of the Company, threatened, material Action to which
the Company is subject which would reasonably be expected to have a Material Adverse Effect on the Company. There is no material
Action that the Company has pending against any other Person. The Company is not subject to any material Orders of any Governmental
Authority, nor are any such Orders pending. The Company holds all material Permits necessary to lawfully conduct its business as
presently conducted, and to own, lease and operate its assets and properties, all of which are in full force and effect, except
where the failure to hold such Consent or for such Consent to be in full force and effect would not reasonably be expected to have a
Material Adverse Effect on the Company.
Section
5.11 Litigation. There is no (a) Action of any nature currently pending or, to the Knowledge of the Company, threatened, and
no such Action has been brought since its incorporation; or (b) Order now pending or outstanding or that was rendered by a
Governmental Authority since its incorporation, in either case of (a) or (b) by or against the Company, its current or former
directors, officers or equity holders (provided, that any litigation involving the directors, officers or equity holders of the
Company must be related to the Company’s business, equity securities or assets), its business, equity securities or assets.
Since its incorporation, none of the current or former officers, senior management or directors of the Company have been charged
with, indicted for, arrested for, or convicted of any felony or any crime involving fraud.
Section
5.12 Transactions with Affiliates. Section 5.12 of the Company Disclosure Schedules sets forth a true, correct and complete
list of the Contracts and arrangements that are in existence as of the Effective Date under which there are any existing or future
Liabilities or obligations between the Company and any (a) present or former director, officer or employee or Affiliate of the
Company, or any immediate family member of any of the foregoing, or (b) record or beneficial owner of more than five percent (5%) of
the Company’s outstanding capital stock as of the Effective Date.
Section
5.13 Investment Company Act. The Company is not an “investment company” or a Person directly or indirectly
“controlled” by or acting on behalf of an “investment company,” or required to register as an
“investment company,” in each case within the meaning of the Investment Company Act of 1940, as amended.
Section
5.14 Independent Investigation. The Company has conducted its own independent investigation, review and analysis of the
business, results of operations, prospects, condition (financial or otherwise) or assets of Next Charging and acknowledges that it
has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of
Next Charging for such purpose. The Company acknowledges and agrees that: (a) in making its decision to enter into this Agreement
and to consummate the transactions contemplated hereby, it has relied solely upon its own investigation and the express
representations and warranties of the Members and the Members’ Representative set forth in this Agreement and in any
certificate delivered to Company pursuant hereto; and (b) none of the Members, the Members’ Representative nor their
respective Representatives have made any representation or warranty as to Next Charging, or this Agreement, except as expressly set
forth in this Agreement or in any certificate delivered to Company pursuant hereto.
Section
5.15 No Brokers. The Company has not retained any broker or finder in connection with any of the Transactions, and the
Company has not incurred or agreed to pay, or taken any other action that would entitle any Person to receive, any brokerage fee,
finder’s fee or other similar fee or commission with respect to any of the Transactions.
Article
VI. Additional Agreements and Covenants
Section
6.01 Delivery of Books and Records. At the Closing, the Members’ Representative shall deliver to the Company the
originals of the minute books, books of account, contracts, records, and all other books or documents of Next Charging now in the
possession of the Members’ Representative or its Representatives.
Section
6.02 Third Party Consents and Certificates. The Parties agree to cooperate with each other in order to obtain any required
third party consents to this Agreement and the Transactions.
Section
6.03 Notices of Certain Events. In addition to any other notice required to be given by the terms of this Agreement, each of
the Parties shall promptly notify the other Parties of:
| (a) | any
notice or other communication from any Person alleging that the consent of such Person is
or may be required in connection with any of the Transactions; |
| (b) | any
notice or other communication from any governmental or regulatory agency or authority in
connection with the Transactions; and |
| (c) | any
actions, suits, claims, investigations or proceedings commenced or, to its knowledge threatened
against, relating to or involving or otherwise affecting such Party that, if pending on the
Effective Date, would have been required to have been disclosed pursuant hereto or that relates
to the consummation of the Transactions. |
Section
6.04 Stockholder Approval.
| (a) | As
promptly as practicable after the date hereof, the Company shall undertake such actions to
obtain the approval of the stockholders of the Company for (i) the adoption and approval
of this Agreement and the Transactions, including the issuance of the Exchange Shares and
the shares of Common Stock which may be issued upon the Closing, in accordance with the Company
Organizational Documents, the Securities Act, the DGCL and the rules and regulations of the
SEC and Nasdaq, (ii) the adoption and approval of the amendment to the Certificate of Incorporation
of the Company as required to effect the Certificate Amendment, and (iii) such other matters
as the Company and Members’ Representative shall hereafter mutually determine to be
necessary or appropriate in order to effect the Transactions (the approvals described in
foregoing clauses (i) through (ii), collectively, the “Stockholder Approval Matters”). |
| (b) | The
Parties acknowledge and agree that the Company shall use its commercially reasonable efforts
to obtain the approval of the Stockholder Approval Matters by the stockholders of the Company
(the “Required Stockholder Approval”) via a written consent in lieu of a meeting
of the stockholders of the Company. In the event that the Required Stockholder Approval is
so obtained via a written consent, the Company shall file a Schedule 14C with the SEC and
thereafter take such additional actions to cause the written consent to be effective and
operative. |
| (c) | In
the event that the Required Stockholder Approval has not been received via a written consent
of the stockholders of the Company by August 31, 2023, then the Company shall thereafter
as promptly as practicable call a special meeting of the stockholders of the Company for
the purpose of obtaining the Required Stockholder Approval, and shall thereafter file with
the SEC such filings as required to call such special meeting and to solicit proxies from
Company stockholders for the approval of the Stockholder Approval Matters and shall thereafter
take such actions as reasonably required to hold and conclude such special meeting and to
obtain the Required Stockholder Approval thereat. The Company and the Members’ Representative
shall reasonably cooperate with respect to any such filings with the SEC, and the Members’
Representative and its counsel shall be provided with a reasonable opportunity to review
and comment thereon, and Company shall consider any such comments timely made in good faith.
The Company shall take any and all reasonable and necessary actions required to satisfy the
requirements of the Securities Act, the Exchange Act and other applicable Laws in connection
with such filings and the special meeting of the Company’s stockholders and in obtaining
the Required Stockholder Approval. |
Section
6.05 Members’ Representative.
| (a) | Each
Member constitutes and appoints the Members’ Representative as its Representative and
its true and lawful attorney in fact, with full power and authority in its name and on its
behalf: |
| (i) | to
act on such Members’ behalf in the absolute discretion of Members’ Representative
with respect to all matters relating to this Agreement, including execution and delivery
of any amendment, supplement, or modification of this Agreement or any Transaction Document
and any waiver of any claim or right arising out of this Agreement or the provision of any
consent or agreement hereunder; and |
| (ii) | in
general, to do all things and to perform all acts, including executing and delivering all
agreements, certificates, receipts, instructions, and other instruments contemplated by or
deemed advisable to effectuate the provisions of this Section 6.05. |
| (b) | This
appointment and grant of power and authority is coupled with an interest and is in consideration
of the mutual covenants made in this Agreement and is irrevocable and will not be terminated
by any act of any Member or by operation of law, whether by the death or incapacity of any
Member or by the occurrence of any other event. Each Member hereby consents to the taking
of any and all actions and the making of any decisions required or permitted to be taken
or made by Members’ Representative pursuant to this Section 6.05. Each Member agrees
that Members’ Representative shall have no obligation or liability to any Person for
any action taken or omitted by Members’ Representative in good faith, even if taken
or omitted negligently, and each Member shall indemnify and hold harmless Members’
Representative from, and shall pay to Members’ Representative the amount of, or reimburse
Members’ Representative for, any Loss that Members’ Representative may suffer,
sustain, or become subject to as a result of any claim made or threatened against Members’
Representative in his capacity as such. |
| (c) | The
Company shall be entitled to rely upon any document or other paper delivered by Members’
Representative as being authorized by Members, and the Company shall not be liable to any
Member for any action taken or omitted to be taken by the Company based on such reliance. |
Article
VII. Conditions to the Closing
Section
7.01 Conditions to the Obligations of all of the Parties. The obligations of all of the Parties to consummate the Closing are
subject to the satisfaction, or waiver by the Company, on behalf of the Company, or by the Members’ Representative on behalf
of the Members’ Representative and the Members, at or before the Closing Date of all the following conditions:
| (a) | No
Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law
(whether temporary, preliminary or permanent) or Order that is then in effect and which has
the effect of making the transactions or agreements contemplated by this Agreement illegal
or which otherwise prevents or prohibits consummation of the transactions contemplated by
this Agreement and no Governmental Authority shall have imposed any terms or conditions on
the Transactions which would reasonably be expected to materially impact the operations of
the Company or Next Charging following the Closing. |
| (b) | There
shall not be any Action brought by a third-party non-Affiliate to enjoin or otherwise restrict
the consummation of the Closing. |
| (c) | The
Parties shall have received all necessary approvals from all required Governmental Authorities
to consummate the Transactions. |
| (d) | The
Company Board shall have approved this Agreement and the Transactions and shall not have
withdrawn such approval. |
| (e) | The
Required Stockholder Approval shall have been obtained and shall have become effective under
applicable Law. |
| (f) | The
Certificate Amendment shall have been completed and the Company shall have provided reasonable
evidence thereof to the Members’ Representative. |
| (g) | The
Company shall have completed and filed a listing of additional securities with Nasdaq and
the waiting period thereunder shall have expired, and the Company shall have completed such
additional requirements of Nasdaq such that the Transactions may be consummated in compliance
with the rules and regulations of Nasdaq. |
Section
7.02 Conditions to the Obligations of the Company. The obligations of the Company to consummate the Closing are subject to
the satisfaction (or waiver by the Company in its sole discretion), at or before the Closing Date, of the following
conditions:
| (a) | The
representations and warranties made by the Members’ Representative and the Members
in this Agreement shall have been true and correct when made and shall be true and correct
in all material respects (other than representations and warranties which are qualified as
to materiality and the representations and warranties in Section 3.01, Section 3.02, Section
4.01, Section 4.02 and Section 4.06, which shall each be true and correct in all respects)
at the Closing Date with the same force and effect as if such representations and warranties
were made at and as of the Closing Date, except for changes therein permitted by this Agreement; |
| (b) | The
Members and the Members’ Representative shall have performed or complied with all covenants
and conditions required by this Agreement to be performed or complied with by the Members
and the Members’ Representative prior to or at the Closing; |
| (c) | The
Members’ Representative shall have provided to the Company audited financial statements
for Next Charging and related auditor reports thereon from a Public Company Accounting Oversight
Board-registered auditor, which consents to the inclusion of its statements in SEC public
filings, for each of the two most recently ended fiscal years and any other period audited
or unaudited but reviewed financials are required to be included in the SEC Reports following
the Closing pursuant to applicable Law, and unaudited statements for any other required interim
periods; and |
| (d) | There
shall have occurred no Material Adverse Effect with respect to Next Charging. |
Section
7.03 Condition to the Obligations of the Members. The obligations of the Members and the Members’ Representative to consummate
the Closing are subject to the satisfaction (or waiver by the Members’ Representative in its sole discretion), at or before the
Closing Date, of the following conditions:
| (a) | The
representations and warranties made by the Company in this Agreement shall have been true
and correct when made and shall be true and correct in all material respects (other than
representations and warranties which are qualified as to materiality, and other than the
representations and warranties as set forth in Section 5.01, Section 5.02 and Section 5.07,
which shall each be true and correct in all respects) at the Closing Date with the same force
and effect as if such representations and warranties were made at and as of the Closing Date,
except for changes therein permitted by this Agreement; |
| (b) | The
Company shall have performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by the Company prior to or at the Closing; and |
| (c) | There
shall have occurred no Material Adverse Effect with respect to the Company. |
Article
VIII. Termination; Survival
Section
8.01 Termination. This Agreement may be terminated on or prior to the Closing Date:
| (a) | By
the mutual written consent of the Company and the Members’ Representative; |
| (b) | By
the Company (i) if the conditions to the Closing as set forth in Section 7.01 and Section
7.02 have not been satisfied or waived by the Company, which waiver the Company may give
or withhold in its sole discretion, by the Termination Date, provided, however, that the
Company may not terminate this Agreement pursuant to this clause (i) of this Section 8.01(b)
if the reason for the failure of any such condition to occur was the breach of the terms
of this Agreement by the Company; or (ii) if there has been a material violation, breach
or inaccuracy of any representation, warranty, covenant or agreement of the Members or the
Members’ Representative contained in this Agreement, which violation, breach or inaccuracy
would cause any of the conditions set forth in Section 7.02 not to be satisfied, and such
violation, breach or inaccuracy has not been waived by the Company or cured by the Members
or the Members’ Representative, as applicable, within five (5) Business Days after
receipt by the Members’ Representative of written notice thereof from the Company or
is not reasonably capable of being cured prior to the Termination Date; |
| (c) | By
the Members’ Representative (i) if the conditions to Closing as set forth in Section
7.01 and Section 7.03 have not been satisfied or waived by the Members’ Representative,
which waiver the Members’ Representative may give or withhold in its sole discretion,
by the Termination Date, provided, however, that the Members’ Representative may not
terminate this Agreement pursuant to this clause (i) of this Section 8.01(c) if the reason
for the failure of any such condition to occur was the breach of the terms of this Agreement
by the Members’ Representative or any Member; or (ii) if there has been a material
violation, breach or inaccuracy of any representation, warranty, covenant or agreement of
the Company contained in this Agreement, which violation, breach or inaccuracy would cause
any of the conditions set forth in Section 7.03 not to be satisfied, and such violation,
breach or inaccuracy has not been waived by the Members’ Representative or cured by
the Company, applicable, within five (5) Business Days after receipt by the Company of written
notice thereof from the Members’ Representative or is not reasonably capable of being
cured prior to the Termination Date; or |
| (d) | By
Company or the Members’ Representative, if a court of competent jurisdiction or other
Governmental Authority shall have issued an order or taken any other action permanently restraining,
enjoining or otherwise prohibiting the Transactions and such order or action shall have become
final and nonappealable. |
Section
8.02 Specific Enforcement. Notwithstanding the foregoing, the Parties acknowledge and agree that (i) if the Company has a
right to terminate this Agreement pursuant to the provisions of clause (ii) of Section 8.01(b), the Company may elect not to
terminate this Agreement and may instead seek to specifically enforce this Agreement pursuant to the provisions of Section 9.17,
provided that all conditions to Closing have been satisfied in the event that such specific performance is seeking to cause the
Closing to occur, waiver of any condition to close not being sufficient to implicate the right of specific performance as set forth
herein; and (ii) if the Members’ Representative has a right to terminate this Agreement pursuant to the provisions of clause
(ii) of Section 8.01(c), the Members’ Representative may elect not to terminate this Agreement and may instead seek to
specifically enforce this Agreement pursuant to the provisions of Section 9.17, provided that all conditions to Closing have been
satisfied in the event that such specific performance is seeking to cause the Closing to occur, waiver of any condition to close not
being sufficient to implicate the right of specific performance as set forth herein.
Section
8.03 Survival After Termination. If this Agreement is terminated by in accordance with Section 8.01, this Agreement shall
become void and of no further force and effect with no liability to any Person on the part of any Party hereto (or any officer,
agent, employee, direct or indirect holder of any equity interest or securities, or Affiliates of any Party); provided, however,
that this Section 8.03 and Article IX shall survive the termination of this Agreement and nothing herein shall relieve any Party
from any liability for fraud or any willful and material breach of the provisions of this Agreement prior to the termination of this
Agreement.
Section
8.04 Survival Following Closing. In the event that the Closing occurs, the representations and warranties of the Parties
contained in this Agreement or in any certificate or instrument delivered by or on behalf of the either of the Parties pursuant to
this Agreement shall not survive the Closing, and from and after the Closing, the Parties and their respective Representatives shall
not have any further obligations, nor shall any claim be asserted or action be brought against either Party or their respective
Representatives with respect thereto. The covenants and agreements made by the Parties in this Agreement or in any certificate or
instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such covenants or agreements,
shall not survive the Closing, except for those covenants and agreements contained herein and therein that by their terms apply or
are to be performed in whole or in part after the Closing (which such covenants shall survive the Closing and continue until fully
performed in accordance with their terms).
Article
IX. Miscellaneous
Section
9.01 Notices.
| (a) | Any
notice or other communications required or permitted hereunder shall be in writing and shall
be sufficiently given if personally delivered to it or sent by email, overnight courier or
registered mail or certified mail, postage prepaid, addressed as follows: |
If
to the Members’ Representative, to:
Michael
D. Farkas
407
Lincoln Road, Suite 701
Miami
Beach, FL 33139
Email:
MDF@FarkasGroup.com
With
a copy, which shall not constitute notice, to:
Anthony
L.G., PLLC
Attn:
Laura Anthony
625
N. Flagler Drive, Suite 600
West
Palm Beach, FL 33401
Email:
lanthony@anthonypllc.com
If
to any Member(s), to the Members’ Representative for further distribution to the applicable Member(s).
If
to the Company, to:
EZFill
Holdings, Inc.
Attn:
Yehuda Levy
2999
NE 191st Street
Aventura,
Florida 33180
Email:
yehuda@ezfl.com
With
a copy, which shall not constitute notice, to:
Sichenzia
Ross Ference LLP
Attn:
David B. Manno
1185
Avenue of the Americas, 31st Floor
New
York, NY 10036
Email:
DManno@SRF.LAW
| (b) | Any
Party may change its address for notices hereunder upon notice to each other Party in the
manner for giving notices hereunder. |
| (c) | Any
notice hereunder shall be deemed to have been given (i) upon receipt, if personally delivered,
(ii) on the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if transmitted
by email with return receipt requested and received and (iv) three (3) days after mailing,
if sent by registered or certified mail. |
Section
9.02 Governing Law; Jurisdiction.
| (a) | This
Agreement, and any and all claims, proceedings or causes of action relating to this Agreement
or arising from this Agreement or the transactions contemplated herein, including, without
limitation, tort claims, statutory claims and contract claims, shall be interpreted, construed,
governed and enforced under and solely in accordance with the substantive and procedural
Laws of the State of Delaware, in each case as in effect from time to time and as the same
may be amended from time to time, and as applied to agreements performed wholly within the
State of Delaware. |
| (b) | Subject
to the provisions of Section 9.04, each of the Parties irrevocably consents and agrees that
any legal or equitable action or proceedings arising under or in connection with this Agreement
shall be brought exclusively in the state or federal courts of the United States with jurisdiction
in Miami-Dade County, Florida (the “Selected Courts”). By execution and delivery
of this Agreement, each Party hereby (a) submits to the exclusive jurisdiction of any Selected
Court for the purpose of any Action arising out of or relating to this Agreement brought
by any Party hereto and (b) irrevocably waives, and agrees not to assert by way of motion,
defense or otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the Selected Courts, that its property is exempt or immune from attachment
or execution, that the Action is brought in an inconvenient forum, that the venue of the
Action is improper, or that this Agreement or the transactions contemplated hereby may not
be enforced in or by any Selected Court. Each Party agrees that a final judgment in any Action
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by Law. Each Party irrevocably consents to the service of the
summons and complaint and any other process in any other Action relating to the transactions
contemplated by this Agreement, on behalf of itself, or its property, by personal delivery
of copies of such process to such Party at the applicable address set forth in Section 9.01,
provided that nothing in this Section 9.02(b) shall affect the right of any Party to serve
legal process in any other manner permitted by Law. |
Section
9.03 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREIN (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS Section 9.03.Each of the Parties acknowledge that each has been represented in connection with the signing of this waiver by
independent legal counsel selected by the respective Party and that such Party has discussed the legal consequences and import of
this waiver with legal counsel. Each of the Parties further acknowledge that each has read and understands the meaning of this
waiver and grants this waiver knowingly, voluntarily, without duress and only after consideration of the consequences of this waiver
with legal counsel.
Section
9.04 Mediation.
| (a) | The
Parties shall promptly submit any dispute, claim, or controversy arising out of or relating
to this Agreement (including with respect to the meaning, effect, validity, termination,
interpretation, performance, or enforcement of this Agreement) or any alleged breach thereof
(including any action in tort, contract, equity, or otherwise), to mediation before one mediator
who is generally experienced in industries in which the Company and Next Charging operate,
to be selected by the Company and the Members’ Representative (the “Mediator”).
If the Company and the Members’ Representative cannot agree upon the Mediator within
ten (10) Business Days of the commencement of the efforts to so agree on an Mediator, each
of the Company and the Members’ Representative shall select one person as a mediator
and the two mediators so selected shall select the sole Mediator who shall hear and resolve
the dispute. |
| (b) | The
Parties will endeavor to resolve the applicable dispute with the assistance of the Mediator
for a period of thirty (30) days following the selection of the Mediator, and in the event
that they are unable to do so, each Party shall be free to pursue other rights and remedies
as may be available to them hereunder and under applicable Law. |
| (c) | In
any mediation hereunder, this Agreement and any agreement contemplated hereby shall be governed
by the laws of the State of Delaware applicable to a contract negotiated, signed, and wholly
to be performed in the State of Delaware, which laws the Mediator shall apply. The mediation
shall be held in Miami-Beach, Florida, Florida. |
| (d) | In
any mediation hereunder, the Members’ Representative shall have the right to act for,
and bind, any of the Members, pursuant to the provisions of Section 6.05. |
Section
9.05 Limitation on Damages. In no event will any Party be liable to any other Party
under or in connection with this Agreement or in connection with the Transactions for special, general, indirect or consequential
damages, including damages for lost profits or lost opportunity, even if the Party sought to be held liable has been advised of the
possibility of such damage.
Section
9.06 Attorneys’ Fees. In the event that any Party institutes any action or suit to enforce this Agreement or to secure
relief from any default hereunder or breach hereof, the prevailing Party shall be reimbursed by the losing Party for all costs,
including reasonable attorneys’ fees, incurred in connection therewith and in enforcing or collecting any judgment rendered
therein.
Section
9.07 Confidentiality. Each Party agrees that, unless and until the Transactions have been consummated, it and its
Representatives will hold in strict confidence all data and information obtained with respect to another Party or any subsidiary
thereof from any Representative, officer, director or employee, or from any books or records or from personal inspection, of such
other Party, and shall not use such data or information or disclose the same to others, except (i) to the extent such data or
information is published, is a matter of public knowledge, or is required by Law or any regulation of any Governmental Authority to
be published; or (ii) to the extent that such data or information must be used or disclosed in order to consummate the Transactions.
In the event of the termination of this Agreement, each Party shall return to the applicable other Party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests, work papers, abstracts or other materials relating
thereto, and each Party will continue to comply with the confidentiality provisions set forth herein.
Section
9.08 Third Party Beneficiaries. This contract is strictly between the Parties, and except as specifically provided herein, no
other Person and no director, officer, shareholder, employee, agent, independent contractor or any other Person shall be deemed to
be a third-party beneficiary of this Agreement.
Section
9.09 Expenses. Subject to Section 9.04 and Section 9.06 and other than as specifically set forth herein, whether or not the
Exchange is consummated, each of the Parties will bear their own respective expenses, including legal, accounting and professional
fees, incurred in connection with the Exchange or any of the other Transactions.
Section
9.10 Entire Agreement. This Agreement, the other Transaction Documents and the other agreements and documents references
herein represent the entire agreement between the Parties relating to the subject matter thereof and supersede all prior agreements,
understandings and negotiations, written or oral, with respect to such subject matter.
Section
9.11 Amendment; Waiver; Remedies.
| (a) | This
Agreement may be amended, modified, superseded, terminated or cancelled, and any of the terms,
covenants, representations, warranties or conditions hereof may be waived, only by a written
instrument executed by the Company and the Members’ Representative. |
| (b) | Every
right and remedy provided herein shall be cumulative with every other right and remedy, whether
conferred herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any Party of the performance of any obligation by the other shall be construed
as a waiver of the same or any other default then, theretofore, or thereafter occurring or
existing. |
| (c) | Neither
any failure or delay in exercising any right or remedy hereunder or in requiring satisfaction
of any condition herein nor any course of dealing shall constitute a waiver of or prevent
any Party from enforcing any right or remedy or from requiring satisfaction of any condition.
No notice to or demand on a Party waives or otherwise affects any obligation of that Party
or impairs any right of the Party giving such notice or making such demand, including any
right to take any action without notice or demand not otherwise required by this Agreement.
No exercise of any right or remedy with respect to a breach of this Agreement shall preclude
exercise of any other right or remedy, as appropriate to make the aggrieved Party whole with
respect to such breach, or subsequent exercise of any right or remedy with respect to any
other breach. |
Section
9.12 No Presumption Against Drafter. This Agreement creates no fiduciary or other special relationship between the Parties,
and no such relationship otherwise exists. No presumption in favor of or against any Party in the construction or interpretation of
this Agreement or any provision hereof shall be made based upon which Person might have drafted this Agreement or such
provision.
Section
9.13 Headings. The headings contained in this Agreement are intended solely for convenience and shall not affect the rights
of the Parties.
Section
9.14 No Assignment or Delegation. This Agreement shall be binding upon and shall inure to the benefit of the Parties and
their respective successors and permitted assigns. No Party shall have any power or any right to assign or transfer, in whole or in
part, this Agreement, or any of its rights or any of its obligations hereunder, including, without limitation, any right to pursue
any claim for damages pursuant to this Agreement or the transactions contemplated herein, or to pursue any claim for any breach or
default of this Agreement, or any right arising from the purported assignor’s due performance of its obligations hereunder,
without the prior written consent of the other Party and any such purported assignment in contravention of the provisions herein
shall be null and void and of no force or effect.
Section
9.15 Commercially Reasonable Efforts. Subject to the terms and conditions herein provided, each Party shall use their
respective commercially reasonable efforts to perform or fulfill all conditions and obligations to be performed or fulfilled by it
under this Agreement so that the Transactions shall be consummated as soon as practicable, and to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws and regulations to
consummate and make effective this Agreement and the Transactions.
Section
9.16 Further Assurances. From and after the Effective Date, each Party shall execute and deliver such documents and take such
action, as may reasonably be considered within the scope of such Party’s obligations hereunder, necessary to effectuate the
Transactions.
Section
9.17 Specific Performance. The Parties agree that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed by them in accordance with the terms hereof or were otherwise breached and that each Party hereto
shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of the
provisions hereof and to enforce specifically the terms and provisions hereof, without the proof of actual damages, in addition to
any other remedy to which they are entitled at law or in equity. Each Party agrees to waive any requirement for the security or
posting of any bond in connection with any such equitable remedy, and agrees that it will not oppose the granting of an injunction,
specific performance or other equitable relief on the basis that (a) the other Party has an adequate remedy at law, or (b) an award
of specific performance is not an appropriate remedy for any reason at law or equity.
Section
9.18 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all
of which taken together shall be but a single instrument. Counterparts may be delivered via facsimile, electronic mail (including
pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission
method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all
purposes.
[Signatures
Appear on Following Pages]
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
|
Members’
Representative |
|
|
|
|
By: |
|
|
Name: |
Michael
Farkas |
|
Title: |
Manager
|
|
|
|
|
EZFill
Holdings, Inc. |
|
|
|
|
By: |
|
|
Name: |
Yehuda
Levy |
|
Title: |
Interim
Chief Executive Officer |
[Members’
Signatures appear on following pages]
|
Member
name: Inductive Holdings, LLC |
|
|
|
|
By: |
|
|
Name: |
Michael
Farkas |
|
Title: |
Manager |
|
|
|
|
Member
name: Michael Farkas |
|
|
|
|
By: |
|
|
Name: |
Michael
Farkas |
[Members’
Signature Page to Exchange Agreement]
Exhibit
A
Assignment
of Membership Interests
(Attached)
Exhibit
B
Form
of Lock-Up Agreement
(Attached)
v3.23.2
Cover
|
Aug. 10, 2023 |
Cover [Abstract] |
|
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Aug. 10, 2023
|
Entity File Number |
001-40809
|
Entity Registrant Name |
EzFill Holdings,
Inc.
|
Entity Central Index Key |
0001817004
|
Entity Tax Identification Number |
83-4260623
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
67 NW
|
Entity Address, Address Line Two |
183rd
St
|
Entity Address, City or Town |
Miami
|
Entity Address, State or Province |
FL
|
Entity Address, Postal Zip Code |
33169
|
City Area Code |
305
|
Local Phone Number |
791-1169
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Title of 12(b) Security |
Common Stock, $0.0001
|
Trading Symbol |
EZFL
|
Security Exchange Name |
NASDAQ
|
Entity Emerging Growth Company |
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