C.T. Jewell Company, Inc.
Buck’s Inc. of Collinsville
LIST OF SCHEDULES AND EXHIBITS
Schedules
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Schedule I
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Company Real Property
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Schedule II
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Credit Support Arrangements
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Schedule III
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Excluded Assets
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Schedule IV
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Disclosure Schedules
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Schedule V
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Indebtedness
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Exhibits
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Exhibit A
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Working Capital Methodology and Example
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Exhibit B
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Closing Consents
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Exhibit C
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Territory
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EQUITY PURCHASE AGREEMENT
THIS EQUITY PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of November 8, 2020 by and among (a) Buck’s, Inc., a Nebraska corporation (“Buck’s”),
Chicago SPE (N), Inc., a Delaware corporation (“Chicago SPE”), Buchanan Energy (N), LLC, a Delaware limited liability company (“Buchanan North”), Buchanan Energy (S), LLC, a Delaware limited liability company (“Buchanan South”),
Buck’s Inc. of Collinsville, a Nebraska corporation (“Collinsville”), C.T. Jewell Company, Inc., a Nebraska corporation (“C.T. Jewell”), and Buck’s Intermediate Holdings, LLC, a Nebraska limited liability company (“Buck’s
Intermediate”) (each of the foregoing entities is a “Company”, and all of the foregoing companies collectively are the “Companies”); (b) Buck’s Holdco, Inc., a Nebraska corporation (the “Seller”); (c) Steven Buchanan
(“Buchanan”) and the other shareholders and members (as applicable) of Seller as may subsequently join herein as the result of a Restructuring (with Buchanan, each a “Seller’s Shareholder” and collectively the “Seller’s
Shareholders”); and (d) Casey’s General Stores, Inc., an Iowa corporation (the “Purchaser”). The Companies, the Seller, the Seller’s Shareholders and the Purchaser are referred to collectively herein as the “Parties” and
individually as a “Party.”
WHEREAS, the Seller will, as of the Closing Date, own all the issued and outstanding limited liability company membership interests of Buck’s Intermediate (the “Seller
Equity”);
WHEREAS, Buck’s Intermediate will, as of the Closing Date, own, directly or indirectly, all the issued and outstanding limited liability company membership interests of the
other Companies, after any such entities currently corporations have been converted into limited liability companies; and
WHEREAS, the Purchaser desires to purchase from the Seller, and the Seller desires to sell to the Purchaser, one hundred percent (100%) of the Seller Equity (together with
the transactions contemplated hereby, the “Transaction”).
NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1.1
Definitions. As used in this Agreement, the following terms have the meanings set forth below.
“ACA” has the meaning set forth in Section 3.16(i).
“Accounting Arbitrator” has the meaning set forth in Section 2.4(c)(ii).
“Acquisition Proposal” has the meaning set forth in Section 6.6(a).
“Action” has the meaning set forth in Section 10.14.
“Actual Closing Date Working Capital” means the aggregate Working Capital of the Companies as of 12:01 A.M., central standard time, on the Closing Date, or the
nearest system closing date cut-off from the prior day, as applicable, as set forth on the Actual Closing Date Balance Sheet.
“Affiliate(s)” means, with respect to a specified Person, any Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the
Person specified. For purposes of this definition, “control” (including “controlling”, “controlled by” and “under common control with”) means the possession,
direct or indirect, or the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Affiliated Group” means an affiliated group as defined in Section 1504 of the Code (or any analogous combined, consolidated or unitary group defined under state,
local or foreign income Tax law) of which the Companies are or have been a stockholder.
“Agreement” has the meaning set forth in the preamble.
“Ancillary Document” means, with respect to a Person, any document executed and delivered by such Person in connection with the execution and delivery of this
Agreement or at the Closing and that is specifically listed in Section 2.3.
“Antitrust Laws” means the HSR Act, the Sherman Act, as amended, the Clayton Act, as amended, the Federal Trade Commission Act, as amended, and any other United
States federal or state or foreign statutes, rules, regulations, orders, decrees, administrative or judicial doctrines or other Laws that are designated to prohibit, restrict or regulate actions having the purpose or effect of monopolization or
restraint of trade.
“Basket” has the meaning set forth in Section 9.1(a)(iii)(A).
“Buc-ee’s Litigation” means that litigation and those proceedings, together with related agreements, described in the Amended and Restated Co-Existence and
Settlement Agreement between Buck's and Buc-ee's, Ltd. dated September 10, 2018.
“Buchanan” has the meaning set forth in the preamble.
“Buchanan North” has the meaning set forth in the preamble.
“Buchanan South” has the meaning set forth in the preamble.
“Buck’s” has the meaning set forth in the preamble.
“Buck’s Intermediate” has the meaning set forth in the preamble.
“Business” means the business of owning, leasing and/or operating motor fuel stations, car washes, and/or convenience stores and selling motor fuel to motor fuel
stations and commercial accounts.
“Business Day” means any day other than a Saturday, a Sunday or a legal holiday on which banks in Omaha, Nebraska are authorized or required to be closed.
“Business Facility” includes any property (whether real or personal) that the Companies currently lease, operate or own or manage in any manner or which the
Companies, or any of their organizational predecessors formerly leased, operated, owned or managed in any manner and as related to such former property for which any of the Companies reasonably could incur Liability.
“Cap” has the meaning set forth in Section 9.1(a)(iii)(A).
“Captive Escrow Amount” has the meaning set forth in Section 2.5(b).
“Captive Promissory Note” has the meaning set forth in Section 2.5(b).
“Cash” means cash and cash equivalents plus (a) deposits in transit to the extent there has been a reduction of receivables on account thereof, (b) cash reserves on
deposit with the captive insurance company of the Companies, (c) deposits and/or escrows held by or for the benefit of third parties, less (d) outstanding checks to the extent there has been a reduction of accounts payable on account thereof.
“Cash” includes cash that is restricted by Indebtedness. “Cash” excludes, however, Petty Cash.
“Chicago SPE” has the meaning set forth in the preamble.
“Claim Notice” has the meaning set forth in Section 9.1(c)(i).
“Closing” has the meaning set forth in Section 2.3(a).
“Closing Date” has the meaning set forth in Section 2.3(a).
“Closing Date Cash” has the meaning set forth in Section 2.4(b).
“Closing Date Remaining Indebtedness” has the meaning set forth in Section 2.4(b).
“Closing Purchase Price” has the meaning set forth in Section 2.4(a)(i).
“Closing Structure” has the meaning set forth on Schedule 6.12 of the Disclosure Schedules.
“COBRA” has the meaning set forth in Section 3.16(e).
“Code” means the Internal Revenue Code of 1986, as amended.
“Collinsville” has the meaning set forth in the preamble.
“Commonly Controlled Entity” has the meaning set forth in Section 3.16(a).
“Company” or “Companies” has the meaning set forth in the preamble, and shall include any post-Closing successor thereto.
“Company Leases” has the meaning set forth in Section 3.7(a).
“Company Parties” has the meaning set forth in Section 10.14.
“Company Real Property” means the Owned Real Property and the Leased Real Property.
“Common Share Interest” has the meaning set forth in Section 6.13.
“Compliance Filings” has the meaning set forth in Section 6.2
“Competitive Business” has the meaning set forth in Section 9.8(b)(i).
“Confidential Information” means any non-public information concerning the business and the affairs of Purchaser, the Companies, Seller’s Shareholders or the Seller,
as applicable.
“Confidentiality Agreements” means the Confidentiality Agreement by and between the Companies and Purchaser dated September 30, 2019, and the Clean Team
Confidentiality Agreement by and between the Companies and Purchaser dated April 8, 2020.
“Contamination” means the presence, whether known or unknown, at, on, under, or originating or migrating from or to any Company Real Property or Business Facility of
any chemical, compound, material, substance or other matter that: (a) is a flammable, corrosive, explosive, hazardous, toxic or regulated material, substance or waste, or other injurious or potentially injurious material, whether injurious or
potentially injurious by itself or in combination with other materials, including, but not limited to asbestos, hydrocarbons, petroleum, petroleum additive or petroleum products, natural gas or gas compounds, volatile or semi-volatile organic
or chemical compounds, including methyl tertiary butyl ether, polychlorinated biphenyl, herbicides, insecticides, or fungicides, or metals; or (b) is controlled, designated in, regulated or governed by any Environmental Law. “Contamination”
also shall include any previously unknown Contamination, and any increase in existing Contamination or previously unknown Contamination.
“Contract” means any written or oral legally binding contract, agreement, instrument, commitment or undertaking of any nature (including, without limitation, leases,
mortgages, notes, guarantees, sublicenses, subcontracts, letters of intent and purchase orders), exclusive of applications, permits and licenses.
“Credit Support Arrangement” has the meaning set forth in Section 6.8.
“C.T. Jewell” has the meaning set forth in the preamble.
“Data Protection Commitments” means all relevant representations, statements, obligations and commitments that each of the Companies has made or entered into with
respect to the privacy, security, confidentiality or processing of Personal Data, including, without limitation, (i) all policies, notices, statements or similar disclosures published or otherwise publicly made available by each of the
Companies; (ii) all policies, procedures or standards of each of the Companies; and (iii) all material contractual agreements to which each of the Companies is a party, provided however that each of the Companies is not responsible for the
privacy or data security practices of its counterparties or customers.
“Data Protection Laws” means applicable laws and regulations relating to the privacy, security, or confidentiality of Personal Data.
“Data Protection Requirements” has the meaning set forth in Section 3.10(h).
“Disclosure Schedules” has the meaning set forth in Article 3.
“Dispute Notice” has the meaning set forth in Section 2.4(c)(ii).
“DOJ” has the meaning set forth in Section 6.5(c).
“Employee Pension Plans” has the meaning set forth in Section 3.16(a).
“Employee Plan” and “Employee Plans” have the meaning set forth in Section 3.16(a).
“Employee Welfare Plans” has the meaning set forth in Section 3.16(a).
“Engineering and Institutional Controls” means those restrictions and requirements imposed by the Companies, any prior owners of any Company Real Property, Business
Facility, or any Governmental Authority with respect to activities on and/or the use of any Company Real Property or Business Facility, including, without limitation, easements, paving caps, engineered barriers, groundwater restrictions,
environmental land use controls, restrictive covenants, well drilling prohibitions, zoning restrictions, special building permit requirements, deed notices, and registration of sites containing Contamination.
“Environmental Laws” means any and all treaties, statutes, laws, rules, regulations, ordinances, Orders, consent agreements, orders on consent, or guidance documents
now or hereafter in effect of any applicable Governmental Authority or any associated judicial or administrative decision that relate in any manner to health, the environment, pollution, the emission, discharge, release, treatment, storage,
disposal, management, or response to Hazardous Materials, a community’s right to know, or worker protection.
“Environmental Liabilities” means any Liability, Loss or Remediation resulting from or arising in connection with any environmental related matter or condition of
any nature affecting or involving the Companies, the Business, the Company Real Property, the Business Facilities, any Contracts or the assets of the Companies, including any Liability, Loss or Remediation resulting from or arising in
connection with any actual, potential or threatened violation of any applicable Environmental Law and/or Environmental License relating to the Companies, the Business, the Company Real Property, the Business Facilities, any Contracts and/or the
assets of the Companies.
“Environmental License” means all permits, licenses, certificates, registrations, identification numbers, applications, consents, approvals, variances, notices of
intent, exemptions and other forms of authorization necessary for the ownership, use and/or operations of the Companies, the Business, or any Business Facility to comply with Environmental Laws.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Escrow Agent” means UMB National Association.
“Estimated Closing Date Remaining Indebtedness” has the meaning set forth in Section 2.4(a).
“Estimated Closing Date Statement” has the meaning set forth in Section 2.4(a).
“Estimated Closing Date Working Capital” has the meaning set forth in Section 2.4(a).
“Excluded Assets” has the meaning set forth in Section 6.3.
“Expiration Date” means 5:00 P.M., central standard time, on the date which is ninety (90) days following the date hereof; provided, however, that if the applicable
waiting period under the HSR Act has not terminated or expired prior to such date or if the DOJ, FTC, or other Governmental Authority has made a request for additional information or documentary material relevant to this transaction after the
initial filing, the Expiration Date shall be automatically extended until 5:00 P.M., central standard time, on the date which is fifteen (15) days following the date of such termination or expiration but, in no event, shall the Expiration Date
be extended to a date more than two hundred seventy (270) days after the date hereof without the mutual agreement of the Parties.
“Extended Survival Date” means the date that is the fifth (5th) anniversary
following the Closing Date.
“Final Closing Date Cash” has the meaning set forth in Section 2.4(c)(i), Section 2.4(c)(ii) or Section 2.4(c)(iii), as applicable.
“Final Closing Date Remaining Indebtedness” has the meaning set forth in Section 2.4(c)(i), Section 2.4(c)(ii) or Section 2.4(c)(iii), as
applicable.
“Final Purchase Price” has the meaning set forth in Section 2.4(d)(ii).
“Final Working Capital” has the meaning set forth in Section 2.4(c)(i), Section 2.4(c)(ii), or Section 2.4(c)(iii), as applicable.
“Financial Reports” means (a) Company audited reports for (i) fiscal years ending May, 2019 and May, 2020 for Buck’s, and (ii) calendar years ending December, 2018 and December,
2019, for Buchanan North and Buchanan South, (b) unaudited financial information for the fourteen (14) month period ending July 31, 2020 for Buck’s, and a seven (7) month period ending July 31, 2020 for Buchanan North and Buchanan South, and
(c) unaudited financial information for fiscal years ending 2018 and 2019 for C.T. Jewell.
“Financing” means any financing or refinancing transactions undertaken by Purchaser or its Subsidiaries in connection with the Transactions.
“Financing Parties” has the meaning set forth in Section 10.14.
“Financing Sources” means all agents, arrangers, lenders, underwriters and other counterparties with respect to any actual or potential Financing, their Affiliates
and each such Person’s respective representatives.
“FTC” has the meaning set forth in Section 6.5(c).
“Fuel Supply Contract” has the meaning set forth in Section 6.9.
“Fuel Supply and Captive Escrow Agreement” has the meaning set forth in Section 2.3(b)(vi).
“Fuel Supply Escrow Amount” has the meaning set forth in Section 2.5(b).
“Fuel Supply Escrow Promissory Note” has the meaning set forth in Section 2.5(b).
“Fundamental Representation” means any representation or warranty of the Companies and Buchanan set forth in Section 3.1 (Organization and Power), Section
3.2 (Authorization), Section 3.3 (Capitalization), Section 3.4 (No Violations), or Section 3.19 (Brokerage), or of the Seller and the Seller’s Shareholders set forth in Section 4.1 (Organization and Power);
Section 4.2 (Authorization of Transactions), Section 4.3 (No Violations), Section 4.4 (Litigation), Section 4.5 (Brokerage), or Section 4.6 (Ownership), or of the Purchaser set forth in Section 5.1
(Organization and Power), Section 5.2 (Authorization), Section 5.3 (No Violation) or Section 5.6 (Brokerage).
“GAAP” means generally accepted accounting principles in the United States, as modified to state land and buildings at their last appraised value, if any, on the
Companies’ balance sheets.
“General Survival Date” means the date that is fifteen (15) months following the Closing Date.
“Governmental Authority” or “Governmental Authorities” means any nation or government, any state or political subdivision thereof and any agency or entity
exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, government.
“Governmental Licenses” means all permits, licenses, franchises, Orders, registrations, certificates, variances, approvals and other authorizations obtained from any
Governmental Authority, excluding, however Environmental Licenses.
“Hazardous Materials” means: (a) those substances included within the statutory and/or regulatory definitions or listings of “hazardous substance,” “medical waste,”
“special waste,” “solid waste,” “hazardous waste,” “extremely hazardous substance,” “regulated substance,” “hazardous materials,” “toxic substances,” “pollutant” or “contaminant” under any applicable Environmental Law; (b) any material, waste
or substance which is or contains: (i) petroleum, oil or a fraction thereof, (ii) explosives, or (iii) radioactive materials (including naturally occurring radioactive materials); and (c) such other substances, materials, or wastes that are
classified or regulated under any applicable Environmental Law.
“HIPAA” has the meaning set forth in Section 3.16(k).
“HIPAA Regulations” has the meaning set forth in Section 3.16(k).
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“Indebtedness” means, with respect to any Person at any date, without duplication (a) all obligations of such Person for borrowed money (excluding any inter-company
obligations for borrowed money, any trade payables, accounts payable and any other current Liabilities reflected in the calculation of Working Capital); (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar
instruments (including, without limitation, any seller notes, deferred purchase price obligations or earn-out obligations issued or entered into in connection with any acquisition undertaken by such Person); (c) all obligations in respect of
letters of credit, solely to the extent drawn prior to Closing, and bankers’ acceptances issued for the account of such Person; (d) any accrued interest, prepayment premiums or penalties related to any of the foregoing (excluding any amounts
included in the calculation of Working Capital); (e) any capitalized lease obligation and, to the extent not a capitalized lease, any lease obligation for trucks, trailers and tankers used in the Business; (f) any deferred revenue; (g) any
customer deposits; and (h) any gift card Liabilities.
“Indemnity Escrow Agreement” has the meaning set forth in Section 2.3(b)(vii).
“Indemnity Escrow Amount” has the meaning set forth in Section 2.5(c).
“Indemnity Escrow Promissory Note” has the meaning set forth in Section 2.5(c).
“Knowledge” or “Known” means the actual knowledge and appreciation of Buchanan and Nichole Mallett.
“Leased Real Property” means any property of the Companies under any lease, sublease, license, concession and other agreement, pursuant to which the Companies hold a
leasehold or sub-leasehold estate in, or are granted the right to use or occupy, any land, buildings, improvements, fixtures or other interest in real property which is used in the operation of the Business.
“Legal Requirement” means any applicable provision of any law, statute, ordinance, decree, requirement, Order, treaty, proclamation, convention, rule or regulation
(or interpretation by a Governmental Authority of any of the foregoing) of, and the terms of any Governmental License issued by, any Governmental Authority.
“Liability” or “Liabilities” means any debt, obligation, duty or liability of any nature (including any unknown, undisclosed, unfixed, unliquidated,
unsecured, unmatured, unaccrued, unasserted, contingent, conditional, inchoate, implied, vicarious, joint, several or secondary liability), regardless of whether such debt, obligation, duty or liability would be required to be disclosed on a
balance sheet prepared in accordance with GAAP.
“Liens” means any mortgage, deed of trust, pledge, security interest, conditional sale or other title retention agreement, encumbrance, lien, easement, option,
charge, or other restriction of any kind.
“Loss” or “Losses” have the meaning set forth in Section 9.1(a)(i).
“Material Adverse Effect” means any event, circumstance, change, occurrence or effect (individually an “Event” and collectively “Events”) that,
individually or in the aggregate with all other Events, has had or would reasonably be expected to have a material and adverse effect upon the business, financial condition or operating results of the Companies taken as a whole; provided, however, that none of the following shall be deemed to constitute, and none of the following shall be taken into account in determining whether there has been, a Material Adverse Effect: any
adverse Event arising from or relating to (a) any change in any Legal Requirement; (b) any change in interest rates or general economic conditions (including changes in the price of gas, oil or other natural resources); (c) any change that is
generally applicable to the industries in which the Companies operate; (d) the entry into this Agreement or the announcement or consummation of the transactions contemplated by this Agreement and the Ancillary Documents; (e) any action taken by
Purchaser or any of its Affiliates; (f) any omission to act or action taken at the direction of, or with the consent of, Purchaser; (g) any national or international political event or occurrence, including acts of war or terrorism or any
natural disaster, whether or not occurring or commenced before or after the date of this Agreement; (h) any actions required in order to obtain any waiver or consent from any Person, other than with respect to the waivers and consents listed on
Exhibit B attached hereto, or Governmental Authority in connection with the transactions contemplated by this Agreement and the other agreements referenced herein; (i) any failure by the Companies to meet any projections, forecasts or
estimates of revenue or earnings (it being understood that this clause (i) shall not prevent a determination that any Event underlying such failure to meet projections, forecasts or estimates has resulted in a Material Adverse Effect (to the
extent the effect(s) of such Event is not otherwise excluded from this definition of Material Adverse Effect)); (j) changes in financial, banking or securities markets (including but not limited to changes in foreign currency exchange rates)
and any disruption thereof and decline in the price of any security or any market index; (k) changes in accounting standards, requirements or principles (including GAAP); (l) any action by any Governmental Authority, national or regional
emergency, epidemic, pandemic, disease outbreak, or public-health emergency (including, without limitation, quarantine, stay-at-home or shelter-in-place orders, and the impact of COVID-19, regardless of the quantitative or qualitative level of
financial or operational impact from COVID-19), or any other events beyond the control of Companies, whether similar or dissimilar to those set forth herein; or (m) any matter set forth in the Disclosure Schedules (provided that any material
change in facts concerning a matter set forth in the Disclosure Schedules and new matter occurring after the date of this Agreement may be considered in determining whether there has been a Material Adverse Effect).
“Material Contract” has the meaning set forth in Section 3.9(a).
“Multiemployer Plan” has the meaning set forth in Section 3.16(a).
“Order” means any order, judgment, injunction, edict, decree, ruling, pronouncement, determination, decision, opinion, sentence, subpoena, writ or award issued,
made, entered or rendered by any court, administrative agency or other Governmental Authority or by any arbitrator.
“Organizational Documents” means (a) articles or certificate of incorporation and bylaws of a corporation; (b) the limited partnership agreement and a certificate of
limited partnership of a limited partnership; (c) any charter or similar document adopted or filed in connection with the creation, formation, or organization of any Person; and (d) any amendment to any of the foregoing.
“Other Plans” has the meaning set forth in Section 3.16(a).
“Owned Real Property” has the meaning set forth in Section 3.7(b).
“Party” or “Parties” has the meaning set forth in the preamble.
“Permitted Liens” means (a) mechanics’, materialmens’, carriers’, workmens’, repairmens’, contractors’, warehousemens’ and similar Liens arising or incurred in the
ordinary course of business consistent with past practices for amounts that are not delinquent or that are being contested in good faith, (b) easements, rights of way, rights of entry, restrictions and other similar charges and encumbrances of
record, (c) Liens for real estate Taxes or Taxes not yet due and payable or, if due and payable, that are being contested in good faith by appropriate proceedings, (d) Liens that will be satisfied and released of record on or prior to the
Closing Date, (e) all Engineering and Institutional Controls, (f) zoning or other governmentally established Lien (including but not limited to statutory liens of landlords), (g) pledge or deposit to secure any obligation under any workers or
unemployment compensation law or to secure any other public or statutory obligation, (h) railroad trackage agreement, utility, slope or drainage easement, right-of-way easement or lease regarding any sign, (i) such state of facts of which an
accurate survey or inspection of the property would reveal, (j) reciprocal easement agreement or other customary encumbrance on title to real property that was not granted by the Companies to secure Indebtedness of the Companies (other than
those Liens with respect to which the Indebtedness secured thereby will be satisfied at or prior to Closing), or (k) Tenant Leases.
“
Person” mean
s any natural person, corporation, company, limited liability company, trust, joint venture, association, partnership,
Governmental Authority or other entity.
“Personal Data” means (a) any information, in any form, that, alone or in combination with other information, describes, relates to, identifies, is reasonably
capable of being associated or could reasonably be linked, directly or indirectly, with an individual person or household; or (b) information that otherwise is defined as “personal data”, “personal information” or “personally identifiable
information” under applicable Data Protection Laws or relevant Data Protection Commitments.
“Petty Cash” means cash of the Companies located at and used in the operation of any Company Real Property in the ordinary course, all of which is to remain at the
Company Real Property at Closing and be included in the calculation of Working Capital.
“Pre-Closing Date Tax Period” means any Tax period (or a portion thereof) ending on or before the Closing Date.
“Proceeding” has the meaning set forth in Section 9.1(c)(i).
“Proprietary Rights” means the following properties, including properties under statutory law or common law: (a) all trademarks, services marks, trade names, trade
dress, brand names, slogans, logos, corporate names, domain names, social media accounts, registrations and applications for registrations for the foregoing with all goodwill associated therewith, together with all translations, adaptations,
derivations, and combinations, applications, registrations, extensions, and renewals, foreign and domestic, relating thereto, together with the goodwill connected therewith and any right to recover for past infringement thereof and other past
injury thereto; (b) inventions existing at the time of transfer of assets (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures,
together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations relating thereto; (c) copyrightable works, all copyrights, and all applications, registrations, and renewals relating thereto; (d)
trade secrets (including ideas, research and development, know-how, formulas, compositions, manufacturing, packaging and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists,
pricing and cost information, and business and marketing plans and proposals); (e) computer software and firmware (including all data and related documentation); (f) mask works and all applications, registrations, and renewals relating thereto;
(g) all other proprietary rights, (h) copies and tangible embodiments of the foregoing (in whatever form or medium); and (i) registrations and applications for any of the foregoing. Proprietary Rights do not include Publicly Available Software
or generally commercially available “off the shelf” or “shrink‑wrapped” Software that is loaded or running on any of the computers of the Companies.
“Publicly Available Software” means any Software that may require as a condition of use, modification or distribution that such Software (a) be disclosed or
distributed in source code form or (b) be licensed for the purpose of making derivative works.
“Purchase Money Note” means the promissory note of the Purchaser in favor of Seller (or its designee) for the balance of the Purchase Price as described in Section
2.2(a), which shall be paid in full by wire transfer of immediately available funds to the Seller two (2) Business Days after Closing at which point the Purchase Money Note shall be returned to the Purchaser and cancelled.
“Purchase Price” has the meaning set forth in Section 2.2(a).
“Purchaser” has the meaning set forth in the preamble.
“Purchaser Indemnitees” has the meaning set forth in Section 9.1(a)(i).
“Remaining Indebtedness” means, with respect to the Companies at any date, without duplication, in each case as determined in accordance with GAAP: (a) any deferred
revenue, (b) any customer deposits, and (c) any gift card Liabilities.
“Remediation” means (a) any investigation of known or suspected environmental conditions, (b) any action necessary to comply with and ensure compliance with
requirements of Environmental Laws, and (c) the taking of all reasonably necessary precautions to protect against and/or respond to, remove or remediate or monitor or otherwise address or respond to the release or threatened release of
Hazardous Materials at, on, in, about, under, within or near the air, soil, surface water, groundwater or soil vapor.
“Remediation Activity” means any investigation (including, without limitation, any site investigation), study, assessment, testing, monitoring, containment, removal,
disposal, closure, corrective action, remediation (whether active or passive), natural attenuation, bioremediation, response, treatment, cleanup or abatement work, operations and maintenance, Engineering and Institutional Controls, whether
on-site or off-site, of Contamination to industrial/commercial standards, as required by Environmental Laws or relevant Contracts.
“Restructuring” has the meaning set forth in Section 6.12.
“Schedules” means Schedules I through Schedule V hereto.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Seller” has the meaning set forth in the preamble.
“Seller Equity” has the meaning set forth in the recitals.
“Seller Indemnitees” has the meaning set forth in Section 9.1(b)(i).
“Seller’s Shareholder” or “Seller’s Shareholders” has the meaning set forth in the preamble.
“Software” means any computer program, operating system, applications system, firmware or software code of any nature, whether operational, under development or
inactive, including all object code, source code, data files, rules, definitions or methodology derived from the foregoing and any derivations, updates, enhancements and customization of any of the foregoing, processes, know-how, operating
procedures, methods and all other Proprietary Rights embodied with the foregoing, technical manuals, user manuals and other documentation thereof, whether in machine-readable form, programming language or any other language or symbols and
whether stored, encoded, recorded or written on disk, tape, film, memory device, paper or other media of any nature.
“Solvent” means, with respect to any Person, that, as of the applicable date of determination, (a) the fair saleable value of the assets of such Person, as of such
date, exceeds the sum of (1) all obligations of such Person (including contingent and other liabilities), as of such date, plus (2) the amount that will be required to pay the probable obligations of
such Person on its existing debts (including contingent and other liabilities) as such debts become absolute and matured, (b) such Person will not have, as of such date, an unreasonably small amount of capital for the operation of the
businesses in which it is engaged or proposed to be engaged following such date, (c) such Person is able to pay its debts as they become due, and (d) such Person has not incurred, and does not intend to incur, or believe that it will incur,
obligations beyond its ability to pay as such obligations mature.
“Straddle Period” has the meaning set forth in Section 9.9(b).
“Subsidiary” or “Subsidiaries” means, when used with reference to an entity, any other entity of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other persons performing similar functions, or a majority of the outstanding voting securities of which, are owned directly or indirectly by such entity.
“Target Working Capital” means Four Million Dollars ($4,000,000).
“Tax” means any foreign, federal, state or local income, gross receipts, franchise, Texas margin, estimated, alternative minimum, add on minimum, sales, use,
transfer, real property gains, registration, value added, excise, natural resources, severance, stamp, occupation, premium, windfall profit, environmental, real property, personal property, capital stock, social security, unemployment,
disability, payroll, license, employee or other withholding tax, escheat requirement, or other tax of any kind whatsoever, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing.
“Tax Return” means any return, declaration, report, claim for refund, information return or other document (including any related or supporting schedule, statement
or information) filed or required to be filed with any Governmental Authority in connection with the determination, assessment or collection of any Tax of any party or the administration of any laws, regulations or administrative requirements
relating to any Tax.
“Tax Survival Date” means the date that is thirty (30) days after all applicable statutes of limitations, including waivers and extensions, have expired with respect
to the Tax Warranty.
“Tax Warranty” means any representation or warranty of the Companies and Buchanan set forth in Section 3.18 (Tax Matters), as well as any indemnification
pursuant to Section 9.9, exclusive of real estate taxes.
“Tenant Leases” means leases of real or personal property by any of the Companies to any third parties.
“Territory” has the meaning set forth in Section 9.8(b).
“Transaction” has the meaning set forth in the recitals.
“Updated Schedules” has the meaning set forth in Section 6.4(b).
“Warehouse Lease” means that certain lease by and between Buchanan and the Purchaser, to be negotiated in good faith by Buchanan and the Purchaser prior to Closing,
governing the Purchaser’s use of warehouse property located at 4945 and 4955 South 72nd Street, Omaha, Nebraska, and pursuant to which Buchanan will lease the
property to one or more of the Companies for one year for $1.
“Working Capital” means, as of any given date, an amount (which may be positive or negative) equal to the total consolidated, combined current assets of the
Companies as of such date minus the total consolidated, combined current liabilities of the Companies as of such date, in each case determined in accordance with GAAP; provided, however, that (A) current assets shall not include Cash other than Petty Cash, and (B) current liabilities shall not include Indebtedness. Working Capital shall be calculated as set forth on Exhibit A attached
hereto, including the illustrative example set forth therein.
PURCHASE AND SALE OF SELLER EQUITY
2.1 Purchase and Sale of Seller Equity.
Upon the terms and subject to the conditions set forth in this Agreement, and on the basis of the representations, warranties, covenants and agreements contained herein, at the Closing the Seller shall sell to the Purchaser, and the Purchaser
shall purchase from the Seller, the Seller Equity, free and clear of all Liens.
(a) Purchase Price. The purchase price for the Seller Equity shall be Five Hundred Eighty Million and No/100 Dollars ($580,000,000.00) (the “Purchase
Price”); provided that the payment of the Purchase Price at the Closing shall be adjusted in accordance with Section 2.4(a)(i); and provided, further, that the portion of the Purchase Price that would
otherwise be payable at Closing to Seller shall be paid to Seller (or its designee) pursuant to the terms of the Purchase Money Note; and provided, further, that the Purchase Price shall be further adjusted after the Closing in
accordance with Sections 2.4 and 9.1(f) below.
(b) Delivery. At or prior to the Closing, Purchaser shall deliver:
(i) to the Escrow Agent, on behalf of the Seller, the Fuel Supply Escrow Promissory Note as defined and payable in accordance with Section 2.5(b)
below;
(ii) to the Escrow Agent, on behalf of the Seller, the Indemnity Escrow Promissory Note as defined and payable in accordance with Section 2.5(c)
below;
(iii) to the Escrow Agent on behalf of the Seller, the Captive Promissory Note, as defined and payable in accordance with Section 2.5(b) below;
and
(iv) to Seller (or its designee) the Purchase Money Note for the balance of the Purchase Price.
(c)
Indebtedness.
Schedule V attached hereto sets forth a list of Indebtedness of the Companies, other than Remaining Indebtedness, as of the date
of this Agreement. It is contemplated by the Parties that, at or prior to the Closing, all Indebtedness, other than the Remaining Indebtedness, of the Companies as of the Closing Date will be or have been fully repaid
.
The Remaining Indebtedness, if any, shall result in a reduction of the Purchase Price in accordance with
Section 2.4 below.
2.3 Closing Transactions.
(a) The Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of McGrath North
Mullin & Kratz, PC LLO, 1601 Dodge Street, Suite 3700, Omaha, Nebraska 68102 (or remotely via the exchange of documents and signatures by facsimile or electronic transmission), as promptly as practicable (but in any event within three (3)
Business Days) following the date on which the last of the conditions set forth in Article 7 are fulfilled or waived (other than conditions that are to be satisfied by actions taken at Closing), or at such other time or place as the
Purchaser, the Companies and the Seller shall agree in writing, but no later than the Expiration Date. The date upon which the Closing occurs is herein called the “Closing Date.”
(b) The Companies’ and the Seller’s Closing Deliveries. Subject to the terms and conditions set forth in this Agreement, at or prior to the Closing, the
Companies and the Seller, as applicable, shall deliver to the Purchaser:
(i) assignments of membership interests, dated as of the Closing Date, representing the Seller Equity that constitutes membership interests
or units in a limited liability company, all in form and substance reasonably acceptable to the Purchaser and Seller and duly executed by Seller;
(ii) A certificate of each Company, dated as of the Closing Date, certifying as to (A) the completeness and correctness of attached copies of
such Company’s Organizational Documents (including amendments thereto), (B) resolutions of the shareholders/members and board of directors/managers, as applicable, of each Company approving the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby, and (C) the incumbency and signatures of the officers or managers, as applicable, of each Company executing this Agreement and any other certificate or document delivered
in connection herewith, in form and substance reasonably acceptable to Purchaser and Seller and duly executed by the secretary or manager, as applicable, of such Company;
(iii) Certificates of existence and good standing of each Company from the jurisdiction of its incorporation, dated within five (5) Business
Days prior to the Closing Date, certified by the appropriate authorities of the Governmental Authorities issuing such certificates;
(iv) Written resignations of Buchanan, Nichole Mallett and each manager and/or director, as applicable, of the Companies, dated as of the
Closing Date, each in form and substance reasonably acceptable to the Purchaser and Seller and duly executed by Buchanan, Nichole Mallett and each such manager and/or director;
(v) Signatures of Buchanan as reasonably appropriate to such consents, approvals, releases from and filings with Governmental Authorities or
with those third parties described on Exhibit B, provided, that such consents, approvals, releases and filings:
(A) Pertain only to transition or ordinary course of business operational matters;
(B) Do not pertain or relate to the matters addressed in Section 6.5;
(C) Do not impose or result in any cost, expense or other financial obligation on the part of Seller, Buchanan or the other Seller’s
Shareholders;
(D) Will not result in any increase in current liabilities of the Companies as included in Working Capital, Estimated Closing Date Working
Capital, Actual Closing Date Working Capital and Final Working Capital;
(E) Are factually accurate and are in compliance with applicable laws.
(vi) An escrow agreement, dated as of the Closing Date, by and among Purchaser, Buchanan and the Escrow Agent, in mutually agreeable form (the
“Fuel Supply and Captive Escrow Agreement”), which agreement shall (A) relate to the delivery, maintenance and release of both the Fuel Supply Escrow Amount and the Captive Escrow Amount, if any, and (B) be duly executed by Buchanan;
(vii) An escrow agreement, dated as of the Closing Date, by and among Purchaser, Buchanan and the Escrow Agent, in mutually agreeable form (the
“Indemnity Escrow Agreement”), which agreement shall (A) relate to the delivery, maintenance and release of the Indemnity Escrow Amount, and (B) be duly executed by Buchanan;
(viii) A certificate, dated as of the Closing Date, of the Companies and the Sellers, certifying that each condition specified in Sections
7.1(a) through (c), Section 7.1(f) and Section 7.1(i) has been satisfied, in form and substance reasonably acceptable to Purchaser and Seller, and duly executed by an officer or manager of each Company and Seller;
(ix) Evidence of the terminations described in Sections 6.7 and 9.9(e);
(x) Both a non-foreign affidavit, dated as of the Closing Date, from Seller, sworn under penalties of perjury and in form and substance (A)
required under the Treasury Regulations issued pursuant to Code Section 1445 and (B) reasonably acceptable to Purchaser, stating that Seller is not a “foreign person” as defined in Code Section 1445, duly executed by Seller, and a fully
completed and signed Form W-9 from the Seller;
(xi) The Warehouse Lease, dated as of the Closing Date and duly executed by Buchanan;
(xii) Such other separate instruments reasonably required by Purchaser in connection with the consummation of the transactions contemplated by
this Agreement; and
(xiii) Copies of all consents, approvals, releases, or waivers described on Exhibit B attached hereto except to the extent waived by
Purchaser (which waiver shall be deemed to have been given by the fact of Purchaser proceeding to Closing without having obtained any of the same).
(xiv) If obtained, evidence of the transfer to Seller or Buchanan of the entire Common Share Interest (as defined in Section 6.13).
(c) Purchaser’s Deliveries. Subject to the conditions set forth in this Agreement, at or prior to the Closing, Purchaser shall deliver to the Seller and
the Companies, as appropriate:
(i) The Purchase Money Note;
(ii) Evidence of delivery to the Escrow Agent of the Fuel Supply Escrow Promissory Note (as defined below);
(iii) Evidence of delivery to the Escrow Agent of the Indemnity Escrow Promissory Note (as defined below);
(iv) Evidence of delivery to the Escrow Agent of the Captive Escrow Promissory Note;
(v) A certificate, dated as of the Closing Date, certifying as to (A) resolutions of the board of directors of the Purchaser approving the
execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and (B) the incumbency and signatures of the officer(s) of the Purchaser executing this Agreement and any other certificate or
document delivered in connection herewith, duly executed by the secretary of the Purchaser;
(vi) The Fuel Supply and Captive Escrow Agreement, duly executed by the Purchaser;
(vii) The Indemnity Escrow Agreement, duly executed by the Purchaser;
(viii) Copies of all consents, approvals, releases from and filings with Governmental Authorities required in order to effect the transactions
contemplated by this Agreement, except to the extent waived by Purchaser (which waiver shall be deemed to have been given by the fact of Purchaser proceeding to Closing without having obtained any of the same);
(ix) A certificate, dated as of the Closing Date, of the Purchaser certifying that each condition specified in Section 7.2(a) through
(c) and (e) has been satisfied, duly executed by an officer or manager of the Purchaser;
(x) The Warehouse Lease, dated as of the Closing Date and duly executed by the Purchaser;
(xi) A certificate of insurance in connection with the Warehouse Lease reasonably acceptable to Seller; and
(xii) Such other separate instruments reasonably required by the Seller in connection with the consummation of the transactions contemplated
hereby.
2.4
Working Capital, Cash and Remaining Indebtedness Adjustment.
(a) Closing Adjustment.
(i) At the Closing, the Purchase Price shall be adjusted by (A) either (1) an increase by the amount, if any, by which the Estimated Closing
Date Working Capital (as determined in accordance with Section 2.4(a)(ii)) is greater than the Target Working Capital, or (2) a decrease by the amount, if any, by which the Estimated Closing Date Working Capital is less than the Target
Working Capital, and (B) a decrease by the amount, if any, of the Estimated Closing Date Remaining Indebtedness. The net amount after giving effect to the adjustments shall be the “Closing Purchase Price.”
(ii) No later than three (3) Business Days prior to the Closing Date, the Seller shall prepare and deliver to the Purchaser a statement
setting forth its good faith estimate of Closing Date Working Capital (the “Estimated Closing Date Working Capital”) and Closing Date Remaining Indebtedness (the “Estimated Closing Date Remaining Indebtedness”), which statement
shall contain a calculation of Estimated Closing Date Working Capital and Estimated Closing Date Remaining Indebtedness (the “Estimated Closing Date Statement”) and a certificate of the Companies that the Estimated Closing Date Statement
was prepared in accordance with this Agreement.
(b) Determination of Post-Closing Date Adjustment. No later than seventy-five (75) days following the Closing Date, the Purchaser shall prepare and deliver
to Buchanan Purchaser’s written calculations of (i) the Actual Closing Date Working Capital, (ii) Cash of the Companies as of the Closing Date (“Closing Date Cash”), and (iii) Remaining Indebtedness of the Companies as of the Closing
Date (“Closing Date Remaining Indebtedness”), and a certificate of the Chief Financial Officer of the Purchaser that the calculation of the Actual Closing Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness
was prepared in accordance with this Agreement.
(c) Disputed Final Adjustment.
(i) No later than forty-five (45) days following delivery of the Purchaser’s written calculation of the Actual Closing Date Working Capital,
Closing Date Cash and Closing Date Remaining Indebtedness, Buchanan shall notify the Purchaser in writing whether he accepts or disputes the accuracy of the calculation of Actual Closing Date Working Capital, Closing
Date Cash and Closing Date Remaining Indebtedness. If Buchanan accepts the calculation of Actual Closing Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness determined pursuant to
Section 2.4(b), or if
Buchanan fails within such forty-five (45) day period to notify the Purchaser of any dispute with respect thereto, then the calculation of Actual Closing Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness determined
pursuant to
Section 2.4(b) shall be the “
Final Working Capital”, the calculation of Closing Date Cash determined pursuant to
Section 2.4(b) shall be the “
Final Closing Date Cash”, and the calculation of Closing
Date Remaining Indebtedness determined pursuant to
Section 2.4(b) shall be the “
Final Closing Date Remaining Indebtedness”, which, in each case, shall be deemed final and conclusive and binding upon all Parties in all respects.
(ii) If Buchanan disputes the accuracy of the calculation of Actual Closing Date Working Capital, Closing Date Cash or Closing Date Remaining
Indebtedness, Buchanan shall provide written notice to the Purchaser no later than forty-five (45) days following the delivery by the Purchaser to Buchanan of the calculation of Actual Closing Date Working Capital, Closing Date Cash and Closing
Date Remaining Indebtedness (the “Dispute Notice”), setting forth in reasonable detail those items that Buchanan disputes, the amounts of any adjustments that are necessary in Buchanan’s judgment for the computations of the Actual
Closing Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness to conform to the requirements of this Agreement, and the basis for Buchanan’s suggested adjustments. During the thirty (30) day period following delivery
of a Dispute Notice, the Purchaser and Buchanan shall meet and negotiate in good faith with a view to resolving their disagreements over the disputed items. Until the final determination of Final Working Capital, Closing Date Cash and Closing
Date Remaining Indebtedness, Buchanan and its respective agents shall be provided with such access to the financial books and records of the Companies as they may reasonably request to enable them to review Purchaser’s calculations of the
Actual Closing Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness, and to review and address any issues related to the matters described in any Dispute Notice. If the Parties resolve their differences over the
disputed items in accordance with the foregoing procedure, “Final Working Capital”, “Final Closing Date Cash” and “Final Closing Date Remaining Indebtedness” shall be the amounts agreed upon by them. If the Parties fail to
resolve their differences over the disputed items within such thirty (30) day period, then the Purchaser and/or Buchanan shall request that a mutually agreeable independent accounting firm (the “Accounting Arbitrator”) (who shall be
deemed to have been engaged jointly by Buchanan and the Purchaser) make a binding determination as to the disputed items in accordance with this Agreement.
(iii) The Accounting Arbitrator will, under the terms of its engagement, have a reasonable time not to exceed ninety (90) days unless the
Parties agree in writing to extend the same, from the date of referral within which to render its written decision with respect to the disputed items (and only with respect to any unresolved disputed items set forth in the Dispute Notice) and
the final calculation of Actual Closing Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness based solely on the resolution of such disputed items. The Purchaser and Buchanan shall submit their respective final
information and testimony when requested by the Accounting Arbitrator who shall render its decision expeditiously. The Accounting Arbitrator shall review such submissions and base its determination solely on such submissions. In resolving any
disputed item, the Accounting Arbitrator may not assign a value to any item greater than the greatest value for such item claimed by either Party or less than the least value for such item claimed by either Party. The decision of the
Accounting Arbitrator shall be deemed final and binding upon the Parties and enforceable by any court of competent jurisdiction and the Accounting Arbitrator’s final calculation of (i) Actual Closing Date Working Capital shall be deemed the “Final
Working Capital.”, (ii) Closing Date Cash shall be deemed the “Final Closing Date Cash”, and (iii) Closing Date Remaining Indebtedness shall be deeded the “Final Closing Date Remaining Indebtedness”. The fees and expenses of
the Accounting Arbitrator shall be paid by the Purchaser, on the one hand, and Buchanan, on the other, proportionate to the determination of the Accounting Arbitrator on the disputed items.
(d) Payment Following Calculation of Final Working Capital, Closing Date Cash and Final Closing Date Remaining Indebtedness.
(i) Following the determination of the Final Working Capital, Final Closing Date Cash and Final Closing Date Remaining Indebtedness, the
Purchase Price shall be recalculated and adjusted as follows:
(A) If the Final Working Capital is less than the Estimated Closing Date Working Capital, then the Purchase Price will be reduced by the
amount of such deficiency, and Buchanan shall deliver to the Purchaser cash in the amount of such deficiency. If the Final Working Capital is greater than the Estimated Closing Date Working Capital, then the Purchase Price will be increased by
the amount of such excess, and the Purchaser shall deliver to Buchanan cash in the amount of such excess.
(B) If Final Closing Date Cash is greater than $0.00, then the Purchase Price will be increased by the amount of such excess, and the
Purchaser shall deliver to Buchanan cash in the amount of such excess.
(C) If Final Closing Date Remaining Indebtedness is less than the Estimated Closing Date Remaining Indebtedness, then the Purchase Price
will be increased by the amount of such deficiency, and the Purchaser shall deliver to Buchanan cash in the amount of such deficiency. If Final Closing Date Remaining Indebtedness is greater than the Estimated Closing Date Remaining
Indebtedness, then the Purchase Price will be reduced by the amount of such excess, and Buchanan shall deliver to the Purchaser cash in the amount of such excess.
(ii) The Purchase Price, as adjusted pursuant to this Section 2.4, shall be referred to herein as the “Final Purchase Price”.
All payments pursuant to this Section 2.4(d) shall be made by wire transfer in immediately available United States funds, and shall be made within three (3) Business Days following: (A) the forty-five (45)-day period following the
Purchaser’s delivery of the calculation of the Actual Closing Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness pursuant to Section 2.4(b) if Buchanan does not timely dispute such amounts pursuant to Section
2.4(c)(i); (B) the date of Buchanan’s and the Purchaser’s mutual determination of Final Working Capital, Final Closing Date Cash and Final Closing Date Remaining Indebtedness in the event Buchanan timely disputes any amounts pursuant to Section
2.4(c)(ii) and Buchanan’s and the Purchaser’s differences are resolved without the engagement of an Accounting Arbitrator pursuant to Section 2.4(c)(ii); or (C) the date of the Accounting Arbitrator’s determination of Final
Working Capital, Final Closing Date Cash and Final Closing Date Remaining Indebtedness pursuant to Section 2.4(c)(iii) in the event Buchanan timely disputes any amounts pursuant to Section 2.4(c)(ii) and Buchanan and the
Purchaser are unable to resolve their differences pursuant to Section 2.4(c)(ii).
(iii) The Parties hereby acknowledge and agree that any amounts payable pursuant to this Section 2.4 shall be deemed an adjustment to
the Purchase Price.
(e)
Accounting Procedures. The determination of Estimated Closing Date Working Capital, the Actual Closing Date Working
Capital, and Final Working Capital shall be calculated consistent with the methodology and illustrative example provided in
Exhibit A attached hereto.
2.5 Escrow Accounts and Letter of Credit.
(a) Prior to the Closing, the Purchaser and Buchanan shall mutually agree on the terms of the Fuel Supply and Captive Escrow Agreement and the Indemnity Escrow
Agreement, the latter of which shall include terms to implement Sections 2.5(f)-(j). The Purchaser shall pay all of the Escrow Agent’s fees and Purchaser shall bear no expenses relating to any letter of credit referenced below.
(b) At the Closing, the Purchaser shall deliver to the Escrow Agent (i) a promissory note (the "Fuel Supply Escrow Promissory Note") in the amount of Fourteen
Million Five Hundred Thousand Dollars ($14,500,000) (the “Fuel Supply Escrow Amount”) made payable to Seller and to be held by the Escrow Agent, and (ii) if the Seller has not provided the Closing deliverable described in Section
2.3(b)(xiv), a promissory note (the "Captive Promissory Note") in the amount of Five Million Dollars ($5,000,000) (the “Captive Escrow Amount”) made payable to Seller and to be held by the Escrow Agent. The Fuel Supply
Escrow Amount shall be used to secure the obligations of the Seller pursuant to Section 6.9. The Fuel Supply Escrow Promissory Note and the Captive Promissory Note shall be held and released by the Escrow Agent pursuant to both Section
2.5(e) below and the Fuel Supply and Captive Escrow Agreement. The Fuel Supply Amount, or the remaining balance thereof, shall be released to the Seller the last day of the twelfth month after the Closing Date unless there are unresolved
claims outstanding at such time, in which event the amount in dispute shall remain in place until all such claims are resolved; provided, however, that during such twelve (12) month period, and promptly following the respective dates that
Seller’s obligations under Section 6.9 with respect to each respective Fuel Supply Contract have been finally determined, Purchaser and Seller shall direct the Escrow Agent to release to Seller the amount equal to (i) the respective
portion of the Fuel Supply Amount attributed to such Fuel Supply Contract, less (ii) the portion, if any, of the Fuel Supply Amount paid pursuant to Section 6.9 with respect to such Fuel Supply Contract. The Captive Escrow Amount shall be
released to Seller at such time as evidence is provided to the Escrow Agent that the Common Share Interest has been transferred to Buchanan,
(c) At the Closing, the Purchaser shall deliver to the Escrow Agent a promissory note (the “Indemnity Escrow Promissory Note”) in the amount of Forty
Million Dollars ($40,000,000.00) (the “Indemnity Escrow Amount”) made payable to Seller and to be held by the Escrow Agent. The Indemnity Escrow Amount shall be used to secure the obligations of the Seller pursuant to Section 9.1
and Section 9.9. The Indemnity Escrow Promissory Note shall be held and released by the Escrow Agent pursuant to both Section 2.5(e) below and the Indemnity Escrow Agreement. Unless released pursuant to Section 2.5(f),
the Indemnity Escrow Amount, or the remaining balance thereof, shall be released to the Seller the last day of the fifteenth month after the Closing Date, unless there are unresolved claims outstanding at such time, in which event the amount in
dispute shall remain in place until all such claims made prior to such date are resolved.
(d) All escrow accounts established with the Escrow Agent shall be interest bearing and the interest earned shall be remitted to the Party receiving the related
cash held in escrow upon closing of such account.
(e) The Fuel Supply Escrow Promissory Note, the Captive Promissory Note, and the Indemnity Escrow Promissory Note shall be paid in full by wire transfer of
immediately available funds to the Escrow Agent two (2) Business Days after Closing at which point each of the Fuel Supply Escrow Promissory Note, the Captive Promissory Note, and the Indemnity Escrow Promissory Note shall be returned to the
Purchaser and cancelled.
(f) The Indemnity Escrow Amount shall be released to the Seller immediately upon delivery to the Escrow Agent of joint written notice from Purchaser and Seller,
which shall not be unreasonably delayed, conditioned or withheld, that Seller has delivered to Purchaser a final and enforceable qualifying letter of credit in the Indemnity Escrow Amount. A qualifying letter of credit shall be substantially
in the form of the draft provided to Purchaser and shall:
(i) name Purchaser as beneficiary and be payable to Purchaser upon delivery of written notice to the issuer of the letter of credit with
evidence of delivery to Seller or Steve Buchanan, noting the amount to be drawn under the letter of credit, accompanied by the original letter of credit and amendment(s) approved by Purchaser, if any, and Purchaser's written statement on
Purchaser's letterhead, executed by an authorized signatory, stating any of the following:
“(A) Beneficiary has abided by the procedures prescribed in the Equity Purchase Agreement (the “Equity Purchase Agreement”) by and among
Casey’s General Stores, Inc., Buck’s Inc., Chicago SPE (N), Inc., C.T. Jewell Company, Inc., Buck’s Inc. of Collinsville, Buchanan Energy (N), LLC, Buchanan Energy (S), LLC, Buck’s Intermediate Holdings, LLC, Steven Buchanan, Buck’s Holdings,
Inc. and other shareholders and members party to the Equity Purchase Agreement that allow Beneficiary to make such claim and withdraw the requested funds under this letter of credit and that:
(I) a copy of a final, non-appealable order of a court of competent jurisdiction or a final non-appealable arbitration decision (each a “Final
Order”) is attached; or
(II) this claim has been determined by mutual agreement of Applicant and Beneficiary but that Applicant has failed to make payment of such
claim within three (3) days after the amount of such claim was finally determined; or.
(B) Beneficiary is in receipt of Bank of America, N.A.'s Notice of Non-Extension Under Letter of Credit No. _______, the
Seller's/Applicant's obligation under the Equity Purchase Agreement remains.”
(ii) provide for an expiration fifteen (15) months after the Closing Date, with provisions for automatic renewal (subject to issuer’s right
to non-renewal) for one year periods after the initial or any extended expiration date, and
(iii) require issuer to provide at least 120 days’ notice to Purchaser of any expiration or non-renewal and allow Purchaser to draw the full
amount available under the letter of credit if notice is given by the issuer that such letter of credit will not be renewed after the initial or any extended expiration date. Seller and Buchanan acknowledge and agree that Purchaser shall be
entitled to draw the full amount of the letter of credit upon its receipt of such notice, provided such amount is deposited to escrow as described in (g) below.
(g) If the Purchaser draws under the letter of credit upon notice of non-renewal by the issuer, the amount of such draw shall be deposited to an escrow account
previously established with the Escrow Agent under the Indemnity Escrow Agreement, and such amount shall thereafter be held and released by the Escrow Agent pursuant to the terms of such escrow agreement.
(h) If there are no claims made under the letter of credit prior to the last day of the fifteenth month after the Closing Date, Purchaser shall cooperate with
Seller to cause cancellation of the letter of credit. If there are unresolved claims under the letter of credit at the end of the fifteen (15) month period that have claim value, determined in good faith, of less than the amount then available
under such letter of credit, Purchaser shall cooperate with Seller to obtain an amended or replacement letter of credit in reduced face amount sufficient to satisfy such claim, including any related fees or expenses.
(i) The aggregate amount of draws under the letter of credit shall not exceed the Indemnity Escrow Amount.
(j) To the extent the Indemnity Escrow Amount is held by the Escrow Agent, Purchaser shall cooperate with Seller and the Escrow Agent in good faith to allow Seller
to direct the investment of the Indemnity Escrow Amount in equity securities or such other investments as Seller shall reasonably determine.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANIES
Except as set forth on the disclosure schedules attached hereto as Schedule IV (as subsequently updated and completed, the “Disclosure Schedules”), the
Companies and Buchanan, jointly and severally, represent and warrant to the Purchaser effective as of the date hereof (unless another effective date is specified in this Article 3) and, if the Closing occurs, as of the Closing Date as
if made at and as of such date, as follows:
3.1 Organization and Power. Each of the Companies is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Except as set forth on Schedule 3.1 of the Disclosure Schedules, each of the Companies is qualified to do business as a foreign
entity and is in good standing in each jurisdiction in which each such Company does business, as listed on Schedule 3.1 of the Disclosure Schedules, which jurisdictions constitute all of the jurisdictions in which the ownership or
proper conduct of the Business requires any Company to be so qualified. Each of the Companies has all requisite power and authority to carry on the Business as now conducted. As of the date hereof and as of the Closing Date, each of the
Companies has or will have, respectively, all requisite power and authority to execute and deliver this Agreement and the other agreements contemplated hereby and to perform its obligations hereunder and thereunder. True, accurate and
complete copies of the Companies’ Organizational Documents, including all amendments thereto, have heretofore been delivered to Purchaser.
3.2
Authorization. As of the date hereof and as of the Closing Date, the execution, delivery and
performance by the Companies of this Agreement, the other agreements contemplated hereby and each of the transactions contemplated hereby or thereby have been duly and validly authorized by the Companies, and no other act or proceeding on the
part of the Companies, or their officers, directors, managers, shareholders or members, is necessary to authorize the execution, delivery or performance by the Companies of this Agreement or any other agreement contemplated hereby or the
consummation of any of the transactions contemplated hereby or thereby. As of the date hereof and as of the Closing Date, this Agreement has been duly executed and delivered by the Companies, and this Agreement constitutes, and the other
agreements contemplated hereby upon execution and delivery by the Companies will each constitute, a valid and binding obligation of the Companies, enforceable against the Companies in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, or other similar laws affecting the enforcement of creditor’s rights generally and except that the availability of equitable remedies, including specific performance, may be subject to the discretion of the
court before which any proceeding may be brought.
(a) Schedule 3.3(a) of the Disclosure Schedules accurately sets forth the authorized and outstanding equity of the Companies and the name and number of
shares of capital stock or membership interests, as applicable, held by each stockholder or member, as applicable, thereof. All of the issued and outstanding shares of capital stock and membership interests, as applicable, of the Companies
have been duly authorized, are validly issued, fully paid, nonassessable and free of preemptive rights, and are owned of record by the stockholders and members, as applicable, of the Companies, as the case may be, as set forth on Schedule
3.3(a) of the Disclosure Schedules, free and clear of any Lien other than Permitted Liens. Except for this Agreement and as may be set forth on Schedule 3.3(a) of the Disclosure Schedules, there are no outstanding or authorized
(i) options, warrants, rights, contracts, pledges, calls, puts, rights to subscribe, conversion rights or other agreements or commitments to which the Companies are a party or which is binding upon the Companies providing for the issuance,
disposition or acquisition of any of the Company’s respective equity or any rights or interests exercisable therefor or (ii) obligations of the Companies to repurchase, redeem or otherwise acquire any securities referred to in clause (i)
above. There are no outstanding or authorized equity appreciation, phantom stock or similar rights with respect to the Companies and the same will be true after the Restructuring. There are no voting trusts, proxies or other agreements or
understandings to which the Companies are a party or are bound with respect to the voting of any capital stock on membership interests of the Companies.
(b) Except as set forth on Schedule 3.3(b) of the Disclosure Schedules, the Companies do not have any Subsidiaries, nor do the Companies hold any equity
interest in or control (directly or indirectly, through the ownership of securities, by contract, by proxy, alone or in combination with others, or otherwise) any corporation, limited liability company, partnership, business organization or
other Person.
(a) As of the date hereof and as of the Closing Date, except as set forth on Schedule 3.4 of the Disclosure Schedules, the execution, delivery and
performance by the Companies of this Agreement and the other agreements contemplated hereby and the consummation of each of the transactions contemplated hereby or thereby (including the Restructuring) will not: (i) violate, conflict with,
result in any breach of, constitute a default under (or an event which, with notice or lapse of time or both, would constitute a default), their respective Organizational Documents; (ii) violate, conflict with, result in a breach of, result in
the termination or acceleration of, create in any party the right to accelerate, terminate, modify or cancel, grant any purchase right, or require any notice or consent under any Material Contract to which the Companies are a party or by which
they are bound or to which any of their respective assets are bound; (iii) result in the creation or imposition of any Lien (other than Permitted Liens) upon any assets or any of the equity of the Companies; (iv) except for any applicable
filings required under the HSR Act and related actions set forth in Section 6.5, and except as described on Exhibit B, require any authorization, consent, approval, exemption or other action by or notice to any court, other
Governmental Authority or other Person under the provisions of any law, statute, rule, regulation, Order or any Material Contract to which the Companies are subject, or by which the Companies are bound or to which the Companies or any of their
respective assets are bound (other than the impact the closing of this transaction may have on Governmental Licenses), or (v) except as described on Exhibit B, violate or result in a breach of any provision of, or constitute a default
(or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, or result in the
creation of any Lien (other than Permitted Lien) upon any of the properties or assets of the Companies under any of the terms, conditions or provisions of any statute, law, ordinance, rule, regulation, Order, permit or license of any court or
Governmental Authority applicable to the Companies, or any of their respective properties or assets (other than the impact the closing of this transaction may have on Governmental Licenses).
(b) Except as set forth on Schedule 3.4 of the Disclosure Schedules and except for any applicable filings required under the HSR Act and related actions
set forth in Section 6.5 by the Seller, the Seller’s Shareholders, the Companies and the Purchaser, no consents, waivers, licenses, notices, approvals or authorizations of, or registrations, declarations or filings with, any
Governmental Authority are required to be obtained or made by the Companies in connection with the execution, delivery, performance, validity and enforceability of this Agreement or any other transactions contemplated hereby to which the
Companies are or will be a party or the consummation by the Companies of the transactions contemplated hereby (other than the impact the closing of this transaction may have on Governmental Licenses).
3.5
Financial Reports. The Financial Reports have been prepared in accordance with GAAP and fairly
present in all material respects the designated information of the Companies for the period covered thereby.
3.6
Absence of Certain Developments. Except as set forth on
Schedule 3.6 of the Disclosure
Schedules or as otherwise explicitly required by this Agreement, and other than any distributions or dividend of Excluded Assets or Cash, for the period beginning December 31, 2019 through the date hereof, each of the Companies has conducted
its business in all material respects only in the ordinary course of business, and there has not been, with respect to the Companies, any:
(a) material change in the businesses, operations, properties or condition, financial or otherwise, of the Companies that has had or would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect on the Companies;
(b) amendment of Organizational Documents of the Companies;
(c) split, combination or reclassification of any shares of the Companies’ capital stock;
(d) issuance, sale or other disposition of any of the Companies’ capital stock, or grant of any options, warrants or other rights to purchase or obtain (including
upon conversion, exchange or exercise) any of the Companies’ capital stock;
(e) declaration or payment of any dividends or distributions on or in respect of any of the Companies’ capital stock or redemption, purchase or acquisition of the
Companies’ capital stock;
(f) material change in the Companies’ accounting principles;
(g) material change in the Companies’ cash management practices and its policies, practices and procedures with respect to collection of accounts receivable,
establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer
deposits;
(h) entry into any Contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any Indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary
course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any of the assets listed on Schedule 3.8 of the Disclosure Schedules or cancellation of any
material Indebtedness owed to a Company;
(k) material damage, destruction or loss (whether or not covered by insurance) to the Companies’ property;
(l) any capital investment in, or any loan to, any other Person;
(m) acceleration, termination, material modification to or cancellation of any material Contract to which any Company is a party or by which it is bound;
(n) imposition of any Liens (other than Permitted Liens, Liens to secure Indebtedness that Seller shall cause to be removed at or in advance of Closing, or Liens on
Company Real Property otherwise shown on the title reports or commitments and unrelated to any Indebtedness) upon any of the Companies’ properties, capital stock or assets, tangible or intangible;
(o) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any material employee below the position of officer except to
fill a vacancy in the ordinary course of business;
(p) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders or current or former directors, officers and
employees other than as repaid prior to Closing;
(q) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(r) adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal
or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(s) purchase, lease or other acquisition of the right to own, use or lease any property or assets other than in the ordinary course, except for purchases of
inventory or supplies in the ordinary course of business consistent with past practice;
(t) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any
Person or any division thereof;
(u) action by the Companies to make, change or rescind any material Tax election or amend any Tax Return that would have the effect of increasing the Companies’
Tax liability;
(v) (i) material change in the benefits provided or compensation payable or to be provided or to become payable to any of its shareholders, members, directors,
managers, officers or employees (other than increases in the ordinary course of business), (ii) granting of any severance or termination pay to, or entered into or materially amend any employment, severance or other agreement or arrangement
with, shareholders, members, directors, managers, officers, employees, agents, independent contractors or any of their representative affiliates, other than in the ordinary course of business, or (iii) establishment, adoption, or entering into
or materially amending any material employee benefit plan.
3.7
Company Real Property; Tenant Leases.
(a) Leased Real Property. Schedule I, Subpart B, sets forth the street address of each Leased Real Property facility of the Companies. True,
correct and complete copies of each such lease, license or other agreement creating rights of the Companies in the Leased Real Property and all amendments and extensions thereto (collectively, the “Company Leases”) have been made
available to the Purchaser. With respect to each of the Company Leases, (i) such Company Lease is legal, valid, binding and enforceable against the Companies, as applicable, except as enforceability may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditor’s rights generally and except that the availability of equitable remedies, including specific performance, may be subject to the discretion of the court before which any proceeding may be
brought, and is in full force and effect and has not been materially modified (except to the extent disclosed in the lease documents made available to Purchaser); (ii) except for a possible consent of the other party to a Company Lease pursuant
to the terms of such Company Lease, the transactions contemplated hereby do not require the consent of any other party and will not result in a breach of or constitute a default under such Company Lease, and (iii) none of the Companies, nor to
the Knowledge of the Seller, any other party to such Company Lease, is in material breach or default under any such Company Lease which is not being addressed in the ordinary course of business. Except as being addressed in the ordinary course
of business, there are no renegotiations of, or attempts to renegotiate, or outstanding rights to currently renegotiate, any material amounts paid or payable to or by the Companies, as applicable, under current Company Leases with any Person
having the contractual or statutory right to demand or require such renegotiation, and no such Person has made written demand for such renegotiation.
(b) Owned Real Property. Schedule I, Subpart A, contains the street address of all real property owned by the Company, in whole or in part (the “Owned
Real Property”), and includes the name of the record title holder thereof.
(c) Company Real Property. With respect to each facility and parcel of real property comprising the Company Real Property:
(i) Except as set forth on Schedule I, there are no pending or, to the Knowledge of the Seller, threatened condemnation or eminent
domain proceedings, lawsuits or administrative actions relating to the Company Real Property or other matters affecting materially and adversely the current use, occupancy or value thereof;
(ii) Except as set forth on Schedule I, there are no parties, other than the Companies or tenants under Tenant Leases, with material
rights with respect to possession of the Company Real Property.
(d)
Real Property Used in the Business. The Company Real Property identified on
Schedule I comprises all of the real property used in the operation
of the Business.
(e) Tenant Leases. Schedule I, Subpart C, lists each Tenant Lease. True, correct and complete copies of each Tenant Lease have been made available
to the Purchaser. Except as will be addressed in the ordinary course of business, (i) the transactions contemplated hereby do not require the consent of any third party to such Tenant Lease and will not result in a breach of or constitute a
default under such Tenant Lease, and (ii) none of the Companies, nor to the Knowledge of the Seller any other party to such Tenant Lease, is in material breach or default under any such Tenant Lease.
(f) Indebtedness. The Owned Real Property and the Company Real Property shall be delivered to the Purchaser on the Closing Date free and clear of
all Indebtedness, other than the Remaining Indebtedness.
3.8
Assets. Except as to Company Real Property (as to which Companies, Seller, Buchanan and the
other Seller’s Shareholders make no representation or warranty as to title or interest and as to which Purchaser relies solely on such title reports or commitments as it deems appropriate), the assets that are located at the Company Real
Property and necessary to the operation of the Business are either: (i) owned by a Company and are subject only to any Permitted Liens, or (ii) held by a Company pursuant to a valid leasehold interest, subject to Permitted Liens. Except for
the Excluded Assets, such assets are adequate and sufficient in all material respects for the continuing conduct of the businesses of the Companies as currently conducted. Such assets shall be delivered to the Purchaser on the Closing Date
free and clear of all Indebtedness, other than the Remaining Indebtedness.
3.9
Material Contracts and Commitments.
(a) Schedule 3.9(a) of the Disclosure Schedules lists all of the following Contracts to which any Company is a party and which are currently in effect (the
“Material Contracts”):
(i) Any Contract between the Companies and any retail sellers of motor fuel, other than Tenant Leases (Tenant Leases otherwise scheduled on
Schedule I);
(ii) Any Contract that by its terms grants any right of first refusal or option to purchase or otherwise acquire any interest in any of the
properties or assets owned by the Companies;
(iii) Any Contract between the Companies and any major oil company;
(iv) Any Contract involving aggregate consideration in excess of $300,000, which in each case, cannot be cancelled by the Companies without
penalty or without more than three hundred sixty-five (365) days’ notice;
(v) Any Contract that provides for any hedging or swap arrangement;
(vi) Any Contract providing for the sale of more than $500,000 of Company assets, other than in the ordinary course of business;
(vii) Any Contract providing for the acquisition of any operating business or the capital stock of any other Person, in each case involving
payments in excess of $90,000;
(viii) Any employment agreement and Contracts with independent contractors or consultants (except as described in Section 4.4) and which
are not cancellable without penalty or without more than ninety (90) days’ notice;
(ix) Any collective bargaining Contract or Contract with any labor organization, union or association;
(x) Except for Contracts with lenders/lessees to be paid at or before Closing, ground leases and Contracts otherwise in the ordinary course
of business, any Contract providing for the indemnification by the Companies of any Person or the assumption by the Companies of any Tax or environmental Liability of any Person;
(xi) Any sales or purchase contract with any Governmental Authority;
(xii) Any Contract providing for the establishment or operation of any material partnership or joint venture; or
(xiii) Any Contract containing covenants of the Companies that prohibit the Companies from competing in any line of business or geographic area
that would be reasonably expected to have a Material Adverse Effect.
(b) Except as disclosed on Schedule 3.9(b) of the Disclosure Schedules: (i) to Seller’s Knowledge, no Contract set forth on Schedule 3.9(a) of the
Disclosure Schedules has been breached in any material respect or canceled by the other party thereto which has not been duly cured or reinstated; (ii) none of the Companies are in breach of or default under, or has provided or received any
notice of any intention to terminate under such Contract; and (iii) no event has occurred which with the passage of time or the giving of notice or both would result in a breach or default by any Company under any such Contract or grant to any
third party any right to accelerate or terminate or result in a loss of any material rights under any such Contract. Except as disclosed on Schedule 3.9(b) of the Disclosure Schedules, each Contract listed on Schedule 3.9(a) of
the Disclosure Schedules is valid, binding and enforceable against the Company that is a party thereto, as the case may be, and is in full force and effect, except as enforceability may be limited by bankruptcy, insolvency, or other similar
laws affecting the enforcement of creditor’s rights generally and except that the availability of equitable remedies, including specific performance, may be subject to the discretion of the court before which any proceeding may be brought.
Complete and correct copies of each Contract included on Schedule 3.9(a) have been made available to Purchaser.
(c) Buck’s has not licensed the use of the trade name “Bucky’s” to any third party.
(a) Each of the Companies owns all right, title and interest in and to, or has the right to use pursuant to
a valid and enforceable contract (including all rights and licenses to use images and stock photography) in the items listed on
Schedule 3.10(a) of the Disclosure Schedules for the operation of the Business; provided, however, that
branding/marketing under contracts with any major oil company is not required to be listed on
Schedule 3.10(a) of the Disclosure Schedules and are excluded to the extent any such contract does not exist or survive Closing. The
Proprietary Rights set forth on
Schedule 3.10(a) of the Disclosure Schedules constitute all material Proprietary Rights currently used in the operation of the Business (the “
Business Proprietary Rights”).
(b)
Each of the Companies
follows reasonable commercial
practices to protect its proprietary and confidential information
.
(c) The conduct of the Business does not and, as of the Closing Date, will not infringe upon or misappropriate in any material respect any
Proprietary Rights of any third parties, and none of the Companies have received in the past twelve (12) months any charge, complaint, claim, demand, or notice alleging any such infringement or misappropriation (including any claim or written
notice that any Company must license or refrain from using any Proprietary Rights of any Person). To Seller’s Knowledge, other than the Buc-ee's Litigation, no third party has infringed upon or misappropriated in any material respect any
Business Proprietary Rights, and no licensee or sublicensee of any of the Companies has provided any Company with any information of any of the foregoing by such licensee or sublicensee in connection with such licensee’s or sublicensee’s
practice of any Proprietary Rights licensed or sublicensed to it by any of the Companies.
(d) Schedule 3.10(d) of the Disclosure Schedules identifies (A) each patent or registration which has been issued to each of the Companies with respect to
any of the Business Proprietary Rights and each pending patent application or application for registration which each of the Companies has made with respect to any of the Business Proprietary Rights (collectively, the “Registered Business
Proprietary Rights”), and (B) each license, sublicense, agreement, or other permission which any Company has granted to any third party with respect to any of the Registered Business Proprietary Rights (together with any exceptions).
Each of the Companies has made available to Purchaser correct and complete copies of all such Registered Business Proprietary Rights (as amended to date) and has made available to Purchaser correct and complete copies of all other written
documentation evidencing ownership and prosecution (if applicable) of each such item. Schedule 3.10(d) of the Disclosure Schedules attached hereto also identifies each material unregistered trademark, material unregistered service
mark, trade name, corporate name or Internet domain name, computer software item (other than commercially available off-the-shelf software) and each material unregistered copyright used by each of the Companies in connection with the Business.
Except as otherwise set forth on Schedule 3.10(d) of the Disclosure Schedules, with respect to each item of the
Registered Business Proprietary Rights:
(i) each of the Companies owns and possesses all right, title, and interest in and to the item, free and clear of any Lien, license, or
other restriction or limitation regarding use or disclosure except as related to the Buc-ee's Litigation;
(ii) the item is not subject to any outstanding injunction, judgment, order, decree, ruling, or charge;
(iii) each such item is valid and enforceable and no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand is
pending or to Seller’s Knowledge is threatened which challenges the legality, validity, enforceability, use, or ownership of the item;
(iv) none of the Companies have ever agreed to indemnify any Person for or against any interference, infringement, misappropriation, or other
conflict with respect to the item; and
(v) no loss or expiration of the item is pending or to Seller’s Knowledge threatened, except for patents expiring at the end of their
statutory terms (and not as a result of any act or omission by any of the Companies, including without limitation, a failure by any Company to pay any required maintenance fees).
(e)
Schedule 3.10(e) of the Disclosure Schedules identifies each item of material Proprietary Rights that any third party owns and
that any of the Companies uses or holds for use in the Business as currently conducted pursuant to license, sublicense, agreement, or permission, other than branding/marketing under any contract with a major oil company and are excluded to the
extent any such contract does not exist at or survive Closing.
Each of the Companies has made available to Purchaser correct and complete copies of all such licenses, sublicenses, agreements
(including any hosting and cloud computing agreements), and permissions (as amended to date). With respect to each item of Proprietary Rights required to be identified on
Schedule 3.10(e) of the Disclosure Schedules attached hereto,
except as set forth on
Schedule 3.10(e) of the Disclosure Schedules, none of the Companies have granted any sublicense or similar right with respect to the license, sublicense, agreement, or permission. With respect to each item of
Proprietary Rights required to be identified
Schedule 3.10(e) of the Disclosure Schedules attached hereto, to Sellers’ Knowledge and except as disclosed in
Schedule 3.10(e) of the Disclosure Schedules:
(i) the license, sublicense, agreement, or permission covering the item is legal,
valid, binding, enforceable, and in full force and effect;
(ii) the license, sublicense, agreement, or permission will continue to be legal, valid, binding, enforceable, and in
full force and effect on identical terms following consummation of the transactions contemplated hereby;
(iii) no party to the license, sublicense, agreement, or permission is in breach or default, and no event has occurred
which with notice or lapse of time would constitute a breach or default or permit termination, modification, or acceleration thereunder;
(iv) no party to the license, sublicense, agreement, or permission has repudiated any provision thereof; and
(v) with respect to each sublicense, the representations and warranties set forth in subsections (i) through (iv)
above are true and correct with respect to the underlying license.
(f)
Each of the Companies has complied in all material respects with and is presently in
compliance in all material respects with all foreign, federal, state, local, governmental, administrative or regulatory laws, regulations, guidelines and rules applicable to it in regard to any Business Proprietary Rights.
(g) The computer systems, including the software, firmware,
hardware, networks, interfaces, platforms and related systems currently used in the conduct of the Business (collectively, “
Systems”) are sufficient for the immediate needs of the Business.
Each of
the Companies has taken commercially reasonable steps to provide for the back-up and recovery of data and information critical to the conduct of the Business (including such data and information that is stored on magnetic or optical
media in the ordinary course) without material disruption to, or material interruption in, the conduct of such business.
Each of the Companies has in place commercially reasonable disaster recovery
and business continuity plans, procedures and facilities, acts in compliance therewith and has taken commercially reasonable steps to test such plans and procedures on a periodic basis, and such plans and procedures have been proven effective
upon such testing in all material respects.
Each of the Companies is not individually or collectively a party to any agreement (including any open source software agreement)
or arrangement, or otherwise subject to any duty, which (in either case) (i) restricts any of the Companies’ free use or disclosure of any source code relating to any of the Business Proprietary Rights, or (ii) requires any of the Companies to
(x) include any source code relating to any Business Proprietary Rights with any distribution or delivery (whether physical or on a hosted basis) of such software and/or (y) permit any licensee of the Business Proprietary Rights to modify any
source code relating to any of the Business Proprietary Rights
. None of the Companies have agreed to indemnify any third party from and against the use of any Systems.
(h) Except as set forth on Schedule
3.10(h) of the Disclosure Schedules, as of the date of this Agreement, each of the Companies: (i) has
complied in all material respects with applicable Data Protection Laws and relevant Data Protection Commitments (collectively, “Data Protection Requirements”), and is not aware of any violation or breach of any Data Protection
Requirements in any material respect; (ii) has not been made aware of any material loss, theft, unauthorized access to, or unauthorized acquisition, use, modification, disclosure or destruction of any Personal Data (a “Security Incident”);
and (iii) has not been made aware of any valid legal claim, investigation, or other enforcement action by any Person with respect to any Security Incident or alleged material violation of a Data Protection Requirement.
(i) Each of the Companies maintains commercially reasonable safeguards as a private company for privacy and
cyber-security.
(j) Each of the Companies maintains commercially reasonable controls as a private company to ensure that each of the
Companies is in compliance in all material respects with applicable Data Protection Laws.
3.11
Governmental Licenses. Except as disclosed on
Schedule 3.11
of the Disclosure Schedules, the Companies hold all of the material Governmental Licenses necessary for the ownership, use and/or operation of the Companies, the Business, or any Business Facility as currently conducted to comply in all
material respects with all Legal Requirements, other than ministerial Governmental Licenses that are non-discretionary in nature. Each such Governmental License is in full force and effect, and the Companies are in compliance in all material
respects with the terms and conditions of such Governmental Licenses. Sellers and Companies have not received any written notices that any of the Companies are in violation of any of the terms or conditions of any such Governmental Licenses.
To Seller’s Knowledge, and except as set forth on
Schedule 3.12 of the Disclosure Schedules, there are no outstanding violations, notices of non-compliance or Orders adversely affecting any of the Governmental Licenses and no condition
(other than the impact the closing of this transaction may have on Governmental Licenses) exists and no event has occurred which (whether with or without notice, lapse of time or the occurrence of any other event) would reasonably be expected
to result in the suspension or revocation or adverse modification of any of the Governmental Licenses (other than by expiration of the term set forth therein).
3.12
Litigation; Proceedings.
Except as set forth on
Schedule 3.12 of the Disclosure
Schedules, there are no actions, suits, proceedings, hearings, Orders, charges, complaints or claims of a material nature pending or, to Seller’s Knowledge, threatened against the Companies, any of their respective assets or the Business; and
none of the Companies are subject to any judgment, Order or decree of any court or Governmental Authority (other than such items of general applicability). No Company is subject to any Order by which the Companies or any of their respective
assets or properties is bound, other than Orders of general applicability. There is no litigation pending or, to Seller’s Knowledge threatened against or involving (a) the Companies which questions the validity of this Agreement or seeks to
prohibit, enjoin or otherwise challenge the transactions contemplated hereby or (b) any officer or employee of the Companies in connection with such Person’s relationship with, or actions taken by such Person on behalf of, the Companies.
3.13 Compliance with Laws. Except as set forth on Schedule 3.13
of the Disclosure Schedules, each of the Companies is in compliance in all material respects with all applicable Orders, statutes, laws, ordinances, codes, rules, regulations or requirements of any Governmental Authority. Except for matters
set forth on Schedule 3.13 of the Disclosure Schedules, no notice has been received by the Companies alleging a violation of or Liability or potential responsibility under any such law, rule or regulation which is pending or remains
unresolved, non-compliance with which could have a Material Adverse Effect. Except as set forth on Schedule 3.13 of the Disclosure Schedules, to Seller’s Knowledge, no investigation or review by any Governmental Authority is pending
or threatened, nor has any Governmental Authority indicated an intention to conduct the same with reference to such non-compliance.
3.14
Environmental Matters. Except as set
forth on
Schedule 3.14 of the Disclosure Schedules:
(a)
Schedule 3.14 of the Disclosure Schedules sets forth all sites owned or operated by any of the Companies and at which the
Companies are performing or have been requested to perform Remediation Activities, or are paying Losses with respect to the same, and the current status with respect to such Remediation Activities.
(b) The Seller has made available to Purchaser true and complete copies of the most recent Phase I environmental reports in the
possession of Sellers or the Companies relating to any real property owned or operated by any of the Companies.
(c) As to each site at which any Company operates the Business, such Company either: (i) has at all times had in place, and continues to have in place,
commercially reasonable levels of insurance covering potential Environmental Liabilities at such sites, or (ii) has such site enrolled in a state program providing remediation protection for the consequences of any fuel tank leak. Each site at
which any Company owns or operates a fuel storage tank is registered with the state in which such tank is located.
(d) Except as expressly stated in this Section 3.14 and the related indemnification in Article 9 with respect to any breach or violation of this Section
3.14, the Companies and Seller, Buchanan and the other Seller’s Shareholders make no representations or warranties, covenants or indemnities to Purchaser or the Purchaser Indemnities concerning or relating to any environmental matters.
(a) Except as set forth on Schedule 3.15 of the Disclosure Schedules, each of the Companies has complied in all material respects with all applicable laws
in the United States relating to the employment of labor, including, but not limited to, provisions thereof related to wages, hours, equal opportunity, collective bargaining, layoffs, immigration compliance and the collection and payment of
social security and other withholding taxes.
(b) Except as set forth on Schedule 3.15 of the Disclosure Schedules, there are no administrative charges or court complaints pending or, to Seller’s
Knowledge, threatened against the Companies before the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor or any Governmental Authority concerning alleged employment discrimination, wage and hour violations or any other
matters relating to the employment of, or compensation to, labor. There are no unfair labor practices charges or complaints pending or, to Seller’s Knowledge, threatened against the Companies before the National Labor Relations Board.
(c) (i) There is no labor strike, dispute, work stoppage or slowdown pending or, to Seller’s Knowledge, threatened, (ii) there are no collective bargaining
agreements or other labor union agreements to which the Companies are a party or by which any of them is bound, nor is any Company the subject of any legal proceeding asserting that any Company has committed an unfair labor practice or seeking
to compel it to bargain with any labor organization as to wages or conditions, (iii) no Company has experienced any union organizing activities which are underway or, to Seller’s Knowledge, threatened, (iv) there is no request for
representation pending and no question concerning representation has been raised, and (v) there is no union related grievance or arbitration pending involving the Companies.
(d) Except for a Section 401(k) plan, there are no agreements or arrangements for the payment of any pensions, allowances, lump sums or other like benefits on
retirement or on death or termination or during periods of disability for the benefit of any employee or former employee or consultant of the Companies or for the benefit of the dependents of any such person in operation.
(e) No Company is delinquent in any payment for any wages, salaries, commissions, bonuses, fees or other compensation due with respect to any services performed on
behalf of the Companies.
(f) Each Company is and has been in compliance in all material respects with the requirements of the Immigration Reform Control Act of 1986.
3.16
Employee Benefit Plans.
(a) Except for a Section 401(k) plan and as disclosed on
Schedule 3.16, neither the Companies nor any Commonly Controlled
Entity, maintains, contributes to or has any obligation to contribute to, or has any Liability with respect to, nor have they ever maintained, contributed to, had any obligation to contribute to, or had any Liability with respect to, any (i)
defined contribution or defined benefit plans or arrangements (whether or not terminated) which are employee pension benefit plans (as defined in Section 3(2) of ERISA) (the “
Employee Pension Plans”); (ii) any ongoing or terminated
funded or unfunded employee welfare benefit plans (as defined in Section 3(1) of ERISA) (“
Employee Welfare Plans”); or (iii) any plan, policy, program or arrangement which provides nonqualified deferred compensation benefits, bonus or
compensation benefits, severance benefits, incentive or compensation benefits, “change of control” benefits, or any other program, plan, policy or arrangement, whether written or unwritten, which provides any retirement health, life,
disability, accident, vacation, tuition reimbursement or other material fringe benefits (“
Other Plans”). Neither the Companies nor any Commonly Controlled Entity participates in or contributes to, or has ever participated in or
contributed to, (i) any “single-employer plan” as defined in Section 4001(a)(15) of ERISA, (ii) any “multiemployer plan” (as defined in Section 3(37) of ERISA) (“
Multiemployer Plan”), (iii) any “multiple employer plan” as defined in
Section 413(c) of the Code, (iv) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (v) an “employee stock ownership plan” as defined in Section 4975(e)(7) of the Code. None of the Companies nor any Commonly
Controlled Entity has incurred any current or potential withdrawal Liability with respect to any Multiemployer Plans. Neither the Companies nor any Commonly Controlled Entity, maintains or has any obligation to contribute to (or any other
Liability with respect to) any funded or unfunded Employee Welfare Plan, Multiemployer Plan or Other Plan which provides post-termination or retiree health, accident or life insurance benefits to current or former employees, current or former
independent contractors, current or future retirees, their spouses, dependents or beneficiaries, other than health benefits required to be provided to former employees, their spouses and other dependents under Code Section 4980B. Any Employee
Pension Plan, any Employee Welfare Plan, any Other Plan and any Multiemployer Plan, each an “
Employee Plan”, shall be referred to herein collectively as the “
Employee Plans”. For purposes of this
Section 3.16, a “
Commonly
Controlled Entity” means any entity (whether or not incorporated) which, together with a Company, is treated as a single employer pursuant to Sections 414(b), (c), (m) or (o) of the Code.
(b) The Companies have made available to Purchaser (i) true and complete current copies of each Employee Plan and amendments thereto (or, if not written, a written
summary of its terms), (ii) any related and current trust agreement or other funding agreement, including, but not limited to, insurance contracts, (iii) the most recent IRS determination letter, if any, or, for a plan maintained pursuant to a
pre-approved document, opinion letter, if applicable, (iv) any current summary plan description and associated summaries of material modification provided by the Companies to employees concerning the benefits provided under the Employee Plans,
and (v) the most recent financial statements and last three (3) Form 5500 annual reports (including attached schedules).
(c) There are no pending or, to Seller’s Knowledge, threatened claims (other than routine claims for benefits) by or on behalf of any Employee Plan or any trusts
which are associated with such Employee Plans and none of the Employee Plans are under audit or, to Seller’s Knowledge, investigation by the Internal Revenue Service, the Department of Labor, the Pension Benefit Guaranty Corporation or any
other agency.
(d) To Seller’s Knowledge, the Employee Plans have been maintained, funded and administered in accordance with their terms and comply in form and in application in
all respects with the applicable requirements of applicable laws, including, but not limited to, ERISA and the Code. To Seller’s Knowledge, no fiduciary has any liability for breach of fiduciary duty or any other failure to act or comply in
connection with the administration or investment of the assets of any Employee Plan. No Employee Plan is the survivor of a merger or transfer of assets from another plan.
(e) For each Employee Plan which is a “group health plan” within the meaning of Section 5000(b)(1) of the Code, the Companies have complied in all material
respects with the notice and continuation coverage requirements of Section 4980B of the Code, the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and Part 6 of Subtitle B of Title I of ERISA and the
regulations thereunder.
(f) There are no claims pending or, to Seller’s Knowledge, threatened with respect to any of the Employee Plans by any employee or beneficiary covered under any
such Employee Plan, or otherwise involving any such Employee Plan (other than routine claims for benefits).
(g) Neither the Companies, nor any Commonly Controlled Entity has any formal plan or commitment, whether legally binding or not, to create any additional Employee
Plans or modify or change any existing Employee Plans (except as required by law) that would affect any employee or terminated employee, manager or director of the Companies or any Commonly Controlled Entity.
(h) Except as set forth on Schedule 3.16 of the Disclosure Schedule, neither the execution and delivery of this Agreement by the Companies nor the
performance by the Companies of this Agreement nor the consummation of the transactions contemplated hereby will (i) other than as referred to in Section 4.5, accelerate the time of payment or vesting, or increase the amount of
compensation due any such director, manager, officer, employee, independent contractor, or consultant to any severance pay, increase in severance pay, or other payment; (ii) accelerate the time of payment, funding, or vesting, or increase the
amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to amend or terminate any Employee Plan; (iv) result in any “excess parachute payment” as defined in
Section 280G of the Code; (v) require a gross-up or other payment to any “disqualified individual” as defined in Section 280G of the Code; or within the meaning of under any of the Employee Plans or (vi) result in any prohibited transaction
described in Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available.
(i) The Companies are in compliance, in all material respects, with the requirements of the Affordable Care Act (“
ACA”), including, without limitation, the
timely and accurate filing of all required forms necessitated by the ACA.
Nothing has occurred that has subjected or could reasonably be expected to subject the Company or any Commonly Controlled Entity to an
assessable payment under Section 4980H of the Code. The Companies have received no notice (other than notices for calendar years prior to 2018 with respect to which the Companies have paid any and all amounts owed by the Companies) that an
employee has received a premium tax credit to help pay for health coverage through a Health Insurance Marketplace, and none of the Companies have been assessed, or received any communication from the Internal Revenue Service proposing to
assess, any assessable payment under Section 4980H of the Code (other than notices for calendar years prior to 2018 with respect to which the Companies have paid any and all amounts owed by the Companies).
(j) No failure to meet any of the requirements of Section 409A(a) of the Code has occurred, and nothing has occurred that has subjected or could reasonably be
expected to subject an employee or other service provider to the Company or any Commonly Controlled Entity to inclusion of income pursuant to Section 409A(b) of the Code.
(k) All “health plans” and “group health plans” (as those terms are defined by the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191
(“HIPAA”)) that the Companies or any of their Commonly Controlled Entities sponsors are in compliance in all material respects with all applicable requirements under HIPAA. Specifically, but without limitation, all such health plans
timely adopted the legally necessary policies and procedures, business associate agreements, and other required documentation to comply in all material respects with privacy component of HIPAA and the regulations issued thereunder including but
not limited to 45 CFR 160 and CFR Part 164 (“HIPAA Regulations”) as amended from time to time. To Seller’s Knowledge, neither the Companies, any of their Commonly Controlled Entities, nor any of their respective health plans or group
health plans, have violated any applicable requirements of HIPAA or the HIPAA Regulations.
3.17
Insurance.
Schedule 3.17 of the Disclosure Schedules sets forth a complete list of each material insurance policy
issued to the Companies. All such insurance policies are legal, valid, binding and enforceable and in full force and effect and none of the Companies is in breach or default with respect to its obligations under such insurance policies
(including with respect to payment of premiums). To Seller’s Knowledge, all policies to which the Companies are a party (a) taken together, provide adequate insurance coverage for the assets and the operations of the Companies for all risks
normally insured against by a Person carrying on the same business or businesses as the Companies, (b) are sufficient for compliance with all Legal Requirements and Contracts to which the Companies are a party, and (c) will, to the extent it is
a component of the captive insurance program in which the Companies participate, continue in full force and effect for a period of four (4) years following Closing with respect to those claims noted on
Schedule 3.12(b) and for each
additional covered claim that may be made for events which pre-date Closing and all premiums payable for such four year period have been paid in full.
(a) Each of the Companies has filed all Tax Returns required by the appropriate Governmental Authority to be filed by it, and all such Tax Returns are true,
complete and accurate in all material respects. Excluding real estate taxes, (i) all Taxes due and owing by the Companies (whether or not shown on any Tax Returns) have been paid and (ii) any unpaid Taxes due and owing as of the Closing Date
will be paid by Seller. No written claim has ever been made by an authority in a jurisdiction where the Companies do not file Tax Returns that any Company is or may be subject to taxation by that jurisdiction.
(b) Except as set forth on Schedule 3.18(b) of the Disclosure Schedules:
(i) None of the Companies (or any of their members or managers on behalf of the Companies) has consented to extend the time or waived the
statute of limitations in relation to any Tax that may be assessed or collected by any Governmental Authority that will extend beyond the Closing Date;
(ii) None of the Companies (or any of their members or managers on behalf of the Companies) has requested or been granted an extension of the
time for filing any Tax Return which is due prior to the Closing Date to a date later than the Closing Date;
(iii) There is no action, suit, taxing authority proceeding or audit now in progress or pending against or with respect to the Companies (or
their members relating to the Companies) with respect to any Tax;
(iv) No written claim has been made by any Governmental Authority in a jurisdiction where a Company does not file Tax Returns that such
Company is or may be subject to Tax by that jurisdiction;
(v) Each of Buck’s, Chicago SPE and Collinsville is and will be an S corporation for federal income tax purposes up
to and including the date that their stock is contributed to Seller. After such contribution and prior to their conversions to limited liability companies, each of Buck’s, Chicago SPE and Collinsville will be a “qualified subchapter S
subsidiary” of Buck’s Holdco (as that term is defined in Section 1361(b)(3)(B) of the Code) for federal income tax purposes. From the time of their conversions to limited liability companies and up to and including the Closing Date, each of
Buck’s, Chicago SPE and Collinsville will be a disregarded entity for federal income tax purposes. Each of Buchanan North and Buchanan South is and will be a disregarded entity for federal income tax purposes and each will be a disregarded
entity for federal income tax purposes up to and including the Closing Date. C.T. Jewell is and will be a qualified subchapter S subsidiary of Buck’s for federal income tax purposes up to and including the date that Buck’s stock is contributed
to Seller. After such contribution and prior to its conversion to a limited liability company, C.T. Jewell is and will be a qualified subchapter S subsidiary of Seller for federal income tax purposes. From the time of its conversion to a
limited liability company and up to and including the Closing Date, C.T. Jewell will be a disregarded entity for federal income tax purposes. From the date of its formation and up to and including the Closing Date, Buck’s Intermediate will be a
disregarded entity for federal income tax purposes;
(vi) None of the assets of any Company constitutes tax-exempt bond financing property within the meaning of Section 168 of the Code, and none
of such assets is subject to a lease, safe harbor lease or other contract as a result of with such Company is not treated as the owner for U.S. federal income Tax purposes;
(vii) None of the Companies has been a member of an Affiliated Group (other than a group of which either of the Companies is or was the parent
or has any Liability for Taxes of any Person (other than the Companies) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise);
(viii) None of the Companies is a party to or bound by any Tax allocation or Tax sharing agreement;
(ix) There are no Liens (other than Permitted Liens) for Taxes (other than Taxes not yet due and payable) upon any of the assets of the
Companies;
(x) Each of the Companies has withheld and paid (or will pay when due) all Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor, creditor, stockholder, member, partner or other third party;
(xi) None of the Seller or any of the Companies is a “foreign person” within the meaning of Section 1445 of the Code;
(xii) No Company (or member thereof by virtue of its ownership in such Company) will be required to include any item of income in, or exclude
any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) use of
an improper method of accounting for a taxable period ending on or prior to the Closing Date; (C) “closing agreement” as described in Code Section 7121 (or any corresponding, or similar provision of state, local or foreign Tax law) executed on
or prior to the Closing Date; (D) intercompany transactions or any excess loss account described in Treasury Regulations under Code Section 1502 (or any corresponding or similar provision of state, local or foreign tax laws); (E) installment
sale or open transaction disposition made on or prior to the Closing Date; (F) prepaid amount received on or prior to the Closing Date; or (G) any election under Section 108(i) of the Code or comparable provisions of state, local or foreign Tax
laws;
(xiii) No Company has entered into any “reportable transactions” as defined in the Treasury Regulations;
(xiv) No Company has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was
purported or intended to be governed in whole or in part by Code Sections 355 or 361; and
(xv) No Company has a permanent establishment (within the meaning of any applicable Tax treaty) or otherwise has an office or fixed place of
business in any country other than the United States.
3.19
Brokerage. There are no claims for brokerage commissions, finders’ fees or similar compensation
in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by the Companies.
3.20 Relationships with Related Parties.
(a) Except as set forth on Schedule 3.20(a) of the Disclosure Schedules, (i) no Company is indebted, directly or indirectly, to any officer, shareholder,
member, manager or employee of the Companies, other than to officers, shareholders, members, managers and employees for salaries for services rendered and reimbursable business expenses and for benefits under the Employee Plans disclosed on Schedule
3.16(a) of the Disclosure Schedules, and (ii) no officer, shareholder, member, manager or employee of the Companies is indebted to the Companies, except for advances made to officers, shareholders, members, managers and employees of the
Companies in the ordinary course of business to meet reimbursable business expenses anticipated to be incurred by such obligor.
(b) Except as set forth on Schedule 3.20(b) of the Disclosure Schedules, to Seller’s Knowledge, no officer, shareholder, member, manager or employee of the
Companies (i) has any interest in any property (real, personal, or mixed and whether tangible or intangible), used in or pertaining to the business of the Companies as currently conducted or (ii) owns of record or as a beneficial owner, any
interest or any other financial or a profit interest in a Person that has ongoing material business dealings or a material financial interest in any transaction with the Companies. No officer, shareholder, member, manager or employee of the
Companies is a party to any Contract with the Companies (except for employment Contracts and Employee Plans set forth on Schedule 3.16(a) of the Disclosure Schedules).
3.21
Accounts Receivable. All accounts receivable generated by the Companies as reflected on the
books and records of the Companies resulted from valid bona-fide transactions in the ordinary course of business.
3.22 Financial Books and Records. The financial books and records of
the Companies have been maintained in all material respects in accordance with sound business practices and GAAP and fairly and accurately reflect, in all material
respects, on a basis consistent with past periods and throughout the periods involved, (a) the financial position of the Companies and (b) all material transactions of the Companies required or appropriate (as a matter of good
business practice) to be reflected therein.
3.23
EMV Card Reader. All hardware necessary for EMV card readers has been, or will be, installed
inside all of the Companies’ stores and at each of the Companies’ gasoline or fuel pumps prior to Closing.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
AND THE SELLER’S SHAREHOLDERS
Except as set forth on the Disclosure Schedules, each of the Seller and the Seller’s Shareholders represents and warrants to the Purchaser, as to himself, herself or
itself, effective as of the date hereof (unless another effective date is specified in this Article 4) and, if the Closing occurs, as of the Closing Date as if made at and as of such date, as follows; provided, however, none of the same
shall apply to any environmental matters; and provided further, however, that to the extent a Seller’s Shareholder joins in this Agreement subsequent to the date hereof, such representations and warranties shall be deemed given by such party on
the date of joinder rather than on the date hereof: