ITEM 1.01. Entry into a Material Definitive Agreement.
On
Each of the Sellers and Owners, jointly and severally, and Buyer, have made customary representations and warranties for a transaction of this nature, which shall survive for 12 months after the Closing, except for certain representations relating to organization, ownership, authorization, enforceability, no violation of laws and material contracts, title to assets, taxes, intellectual property and brokers and other advisors (the "Fundamental Representations"), which survive until the later of six years or 60 days after the expiration of the relevant statute of limitations. The Company has purchased a buyer-side representations and warranties insurance policy (the "R&W Insurance Policy"). The R&W Insurance Policy will be issued as of the Closing, and will be the Buyer Parties' primary recourse with respect to breaches of the Sellers' or Owners' representations and warranties other than the Fundamental Representations. Sellers' or Owners' liability for breaches of Fundamental Representations, other than for a claim of fraud, is subject to a cap equal to the Purchase Price. The R&W Insurance Policy is subject to a cap and certain customary terms, exclusions and deductibles, which may limit Buyer Parties' ability to make recoveries thereunder.
For five years following the Closing, the Sellers, Owners and Processors have each agreed to customary non-solicitation and non-competition provisions. The non-competition provisions of the Agreement prohibit the Sellers, Owners and Processors from engaging, directly or indirectly, in any business that is the same as or substantially similar to or is or would be competitive with the primary business of Dippin' Dots. The Sellers, Owners and Processors are permitted to engage in cryogenic business for specified categories of cryogenic products produced by Processors that are generally very distinct from the main Dippin' Dots business.
Each party's obligation to consummate the Transaction is subject to certain conditions, including the expiration of the 30 day Hart-Scott-Rodino waiting period, the accuracy of the other party's representations and warranties and the performance, in all material respects, by the other party of its obligations under the Agreement.
The Agreement contains certain customary termination rights of Buyer and Seller
Representative including, among others, a mutual termination right if the
Transaction is not consummated by
The foregoing description of the Agreement does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Agreement, attached hereto as Exhibit 2.1, which is incorporated herein by reference. The Company also issued a press release regarding the Transaction which is attached to this Form 8-K as Exhibit 99.1.
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In addition to the Agreement and in furtherance of the Transaction, the parties have also agreed to enter into a License Agreement, a Transition Services Agreement, and an Intellectual Property Assignment Agreement, which are Exhibit C, Exhibit D, and Exhibit E, to the Agreement, respectively, and each to be entered into and effective as of the Closing.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On
In connection with the appointment of Messrs. Fachner and Jackson, the Board increased its size from five to seven members.
The Board has determined that
There are no other arrangements or understandings between
The Company also issued a press release announcing the appointment of Messrs. Fachner and Jackson which is attached to this Form 8-K as Exhibit 99.2.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS. (d) Exhibits Exhibit Description of Document Number 2.1 Securities Purchase Agreement, by and among the Company, DD AcquisitionHolding, LLC , Dippin' DotsHolding, L.L.C. , FischerIndustries, L.L.C. , StephenScott Fischer Revocable Trust , Stephen Scott Fischer Exempt Trust,Mark A. Fischer 1994 Trust,Susan L. Fischer 1994 Trust, Christy Fischer SpeakesExempt Trust ,Mark A. Fischer , as the Seller Representative, and Cryogenics Processors, LLC 99.1 Press Release datedMay 19, 2022 . 99.2 Press Release datedMay 20, 2022 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
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