UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 14, 2021
Basanite, Inc.
(Exact name of registrant as specified in its charter)
Nevada |
000-53574 |
20-4959207 |
(State or other jurisdiction
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(Commission File Number) |
(I.R.S Employer
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2041 NW 15thAvenue, Pompano Beach, Florida 33069
(Address of principal executive offices) (Zip Code)
954-532-4653
(Registrants telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12(b))
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act: None
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01
Entry into a Material Definitive Agreement.
On April 14, 2021 (the Effective Date), Basanite, Inc., a Nevada corporation (the Company), entered into Settlement and Release Agreement with RAW, LLC (RAW), Donald R. Smith, YellowTurtle Design LLC (YellowTurtle) and Elina B. Jenkins among others (the Settlement Agreement).
The Settlement Agreement provides for, among other things, the following: (i) a dismissal of the legal action as to the above-referenced parties and their owners, agents, affiliated companies, successors and assigns, having Case Number 18-020596 (21) in the Seventeenth Judicial Circuit Court in and for Broward County, Florida (the Litigation) upon the Companys timely purchase of the shares as set forth in the next paragraph below and (ii) mutual general releases for the above-referenced parties relating to the Litigation upon the Companys timely purchase of the shares as set forth in the next paragraph below.
Simultaneously with the execution of the Settlement Agreement settling the Litigation in full and release of all claims among the parties, the Company entered into Stock Purchase Agreements (the Purchase Agreements) with both Raw and YellowTurtle to repurchase the 10,000,000 shares of the Companys common stock held by Raw for $1,212,121 and the 6,500,000 shares of the Companys common stock held by YellowTurtle for $787,879, or an aggregate purchase price of $2,000,000 (the Purchase Price). If the Purchase Price is not paid on or before May 17, 2021, time being of the essence, the Purchase Agreements and Settlement Agreement between the parties hereto shall become null and void, while RAW and YellowTurtle shall retain all of their above-referenced shares of common stock in the Company.
The foregoing description of the Settlement Agreement and Purchase Agreements do not purport to be complete and are qualified in their entirety by reference to the Settlement Agreement and Purchase Agreements, which are filed as Exhibits 10.1, 10.2 and 10.3, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 2.03
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information disclosed in Item 1.01 of this Current Report on Form 8-K is incorporated by reference in this Item 2.03.
Item 9.01.
Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: April 19, 2021
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BASANITE, INC. |
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By: |
/s/ Simon R. Kay |
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Simon R. Kay |
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Acting Interim President and Chief Executive Officer |
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EXHIBIT 10.1
SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT ("Settlement Agreement") is made and entered this 14th day of April, 2021, by and among Donald Smith (Smith), Elina Jenkins (Jenkins), Raw Energy Materials, Corp. (Raw), Raw, LLC, Raw Materials Corp., Global Energy Sciences, LLC (Global) and YellowTurtle Design LLC (Yellow) (together, these above referenced parties are referred to, jointly and severally, as Seller), and Basanite, Inc., and/or its assigns, Rockstar Acquisitions, LLC (Rockstar); Paymeon, Inc. (Paymeon); Basalt America, LLC (Basalt); Basanite, Inc. (Basanite, Inc.), and Basanite Industries, LLC (together, these above referenced parties are referred to as Buyer or Basanite) (together, the Seller and Buyer are referred to as the Parties). This Agreement is intended by the Parties to be binding upon their companies, their affiliated companies, as well as those individuals and entities (including successors and assigns) referenced in Paragraphs 7 and 8 below.
WHEREAS, disputes between the Seller, Buyer and other parties are pending in that certain legal action having Case Number 18-020596 (21) in the Seventeenth Judicial Circuit Court in and for Broward County, Florida (Litigation); and
WHEREAS, upon performance of this Settlement Agreement and Stock Purchase Agreement executed contemporaneously herewith, the Parties desire to settle all claims by and among them to avoid further cost, uncertainty and delays in the Litigation.
NOW WHEREFORE, for and in consideration of the sum of $10.00 and other good and valuable consideration the parties hereto hereby agree as follows:
1.
The above recitals are true and correct and constitute a material part of this Agreement.
2.
No Further Products or Services. The Parties are under no obligation to provide any further products or services to each other by virtue of having entered into this Settlement Agreement, except as otherwise expressly provided in the Stock Purchase Agreement and Escrow Agreement executed contemporaneously herewith.. Specifically, and without limitation, the terms of the Professional Consulting Agreement dated January 15, 2017 between Rockstar and Yellow as well as the terms of the Professional Consulting Agreement dated January 15, 2017 between Rockstar and Raw, LLC; the Licensing Agreement, all amendments thereto and the Letter Agreement (as referenced in the complaint on file in the Litigation), are all hereby terminated with no obligations existing, pending or due any parties thereunder.
3.
Settlement Exchanges. In addition to the other terms set forth herein, and subject to the expressed terms of the Stock Purchase Agreement, the Parties hereby resolve all disputed issues among them, including those alleged within the Litigation, subject to the Seller selling and the Buyer buying the Shares of stock as those terms are more specifically defined in the Stock Purchase Agreements (and separate Escrow Agreement) to be signed contemporaneously with this Settlement Agreement. The terms of the Stock Purchase Agreement and Escrow Agreement signed contemporaneously with this Settlement
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Agreement are incorporated herein and are made a part hereof. Settlement shall also include, as a mandatory condition precedent, Buyers agreement to relinquish any right, title or interest in 10% of the stock of Raw Materials Corp. (RMC), which stock in RMC shall promptly be transferred back to Don Smith in the event Buyer timely complies with the terms of the Stock Purchase Agreement.
4.
Dismissal. Within ten (10) days from Buyers timely payment of the purchase consideration set forth in the Stock Purchase Agreement, the Parties hereto shall collaborate to file and take dismissals of the claims and counterclaims with prejudice made against or amongst each other in the Litigation.
5.
No admission of liability. By entering into this Agreement, neither party admits any liability with respect to the alleged disputes involved in the Litigation; in fact, the Parties specifically deny any liability of whatever nature arising out of the Litigation.
6.
Public Announcement. The Buyer may make public announcements as reasonably deemed appropriate and/or required by securities law. It is anticipated that the announcements will be substantially similar to the one attached hereto.
7.
Non-Disparagement. Neither party shall, at any time, whether during or following the signing of the Settlement Agreement, make any disparaging statement concerning the other party, its affiliates, members, managers, shareholders, management, employees, Board of Directors, management decisions, operating policies, Board decisions or actions of either party, whether or not libelous or defamatory, absent court order.
7.
Release by the Seller. In consideration of the covenants and conditions herein set forth and other good and valuable consideration, including timely compliance by Buyer of its payment obligations under the Stock Purchase Agreement, and full and final relinquishment of any possession, ownership right, title, or interest in in any and all stock in RMC, and in full settlement of any and all claims or demands of every kind and nature the Seller ever had, have or may have against Buyer, for any and all claims, demands, agreements, contracts, covenants, actions, suits, causes of action, obligations, controversies, debts, stock, costs, expenses, accounts, damages, judgments, losses and liabilities of whatever known or unknown, whether or not concealed or hidden, which the Seller had, may have had, now or can, shall or may have including, but not limited to, those relating to the issues raised in the Litigation, for and on behalf of themselves and their present and former affiliates and subsidiary corporations and divisions, if any, and their respective attorneys, directors, stockholders, members, officers, employees and agents and their respective heirs, executors, administrators, predecessors, guarantors, successors and assigns, effective on the day of execution of this Agreement, do hereby fully and forever remise, release and discharge Buyer and their present and former affiliated and subsidiary corporations and divisions, and their respective attorneys, directors, owners, managers, stockholders, officers, employees and agents, and their respective heirs, executors, administrators, predecessors, successors and assigns, except as to the terms of this Settlement Agreement, the Stock Purchase Agreement and Escrow Agreement, which three documents are expected to be executed contemporaneously, as well as all other documents or terms ancillary thereto (Settlement Documents). Notwithstanding the foregoing, the terms of
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this Release shall be null and void in the event the purchase of Sellers shares from Buyer is not consummated pursuant to the expressed terms of the Stock Purchase Agreement.
8.
Release by Buyer. In consideration of the covenants and conditions herein set forth and other good and valuable consideration, including timely compliance by Seller of its payment obligations under the Stock Purchase Agreement, in settlement of any and all claims or demands of every kind and nature the Buyer ever had, have or may have against Seller, for any and all claims, demands, agreements, contracts, covenants, actions, suits, causes of action, obligations, controversies, debts, stock, costs, expenses, accounts, damages, judgments, losses and liabilities of whatever known or unknown, whether or not concealed or hidden, which the Buyer had, may have had, now or can, shall or may have including, but not limited to, those relating to the issues raised in the Litigation, for and on behalf of themselves and their present and former affiliates and subsidiary corporations and divisions, if any, and their respective attorneys, directors, stockholders, members, officers, employees and agents and their respective heirs, executors, administrators, predecessors, guarantors, successors and assigns, effective on the day of execution of this Agreement, do hereby fully and forever remise, release and discharge Seller and their present and former affiliated and subsidiary corporations and divisions, their owners, managers, attorneys, directors, stock- holders, officers, employees and agents, and their respective heirs, executors, administrators, predecessors, successors and assigns, except as to the terms of the Settlement Documents. Notwithstanding the foregoing, the terms of this Release shall be null and void in the event the purchase of Sellers shares from Buyer is not consummated pursuant to the expressed terms of the Stock Purchase Agreement.
9.
Cooperation and Further Documents and Instruments. The Parties agree to cooperate with each other in good faith to effectuate the terms and conditions of this Settlement Agreement, including doing or causing their agents and attorneys to do whatever is reasonably necessary to effectuate the signing, delivery, execution, and filing of any documents to conclude the litigation and to perform the terms of the Settlement Documents. The Seller shall provide to Buyer such other and further documents and instruments as reasonably requested in connection with executing, delivering and performing the Settlement Documents, including, but not limited to, conveyance of title to the subject Shares, discharge and release of interests in the Shares, and documents affirming that the officer executing this Settlement Agreement has authority from the board of directors or other governing or managing authority of the party for which such officer signs to enter into this Settlement Agreement and that the party has the authority to perform its obligations hereunder.
10.
Fees and Costs. Each party shall bear its own attorney's fees and costs incurred to date in or relating to the Litigation. In the event there is litigation relating to the Settlement Documents, the prevailing party in any such action shall be entitled to an award of its reasonable costs and attorneys fees incurred therein, including appeals.
11.
Governing Law. The provisions of this Settlement Agreement and all rights and obligations hereunder shall be governed by and construed in accordance with the laws of the State of Florida without regard to the conflicts of laws provisions thereof.
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12.
Entire Agreement. The Settlement Documents embody the entire agreement of the parties respecting the subject matter hereof. Any and all understandings, agreements, and contracts by and among the Parties from the beginning of time to the date hereof are cancelled and terminated, and the parties are forever free from any obligations arising therefrom save only as expressly reserved and set forth within the Settlement Documents. There are no promises, terms, conditions or obligations relating to the subject matter hereof other than those contained within the Settlement Documents which supersede all previous communications, representations or agreements, verbal or written, by and between the parties. For the avoidance of doubt, the parties expressly agree that upon the execution and delivery of this Settlement Agreement (and the Settlement Documents) the terms and conditions hereof shall control the duties and obligations of the parties with respect to the subject matter hereof and all other duties and obligations of the parties with respect to the subject matter hereof, unless expressly herein provided to survive, have terminated and discharged in their entirety in accordance with the mutual releases hereinabove set forth.
13.
Waiver of Jury Trial. THE PARTIES HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS AGREEMENT, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SETTLEMENT AGREEMENT OR ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH OR RELATED HERETO, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS SETTLEMENT AGREEMENT.
14.
Time is of the Essence. Time shall be of the essence for all events contemplated hereunder.
15.
Counterparts. This Settlement Agreement may be fully executed in separate counterparts by the Parties hereto, all such counterparts together constituting but one and the same instrument. Such counterparts may be exchanged via facsimile or e-mail transmission provided that immediately following such transmission, if so requested, each party shall forward an executed, original counterpart to each other party by a major US overnight courier via counsel.
(Signature page follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Settlement Agreement to be executed by their duly authorized representatives and individually on the day and year first above written.
RAW ENERGY MATERIALS CORP.
By: /s/ Donald R. Smith
Name: Donald R. Smith Title: President
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RAW MATERIALS CORP.
By: /s/ Donald R. Smith
Name: Donald R. Smith Title: President |
GLOBAL ENERGY SCIENCES, LLC
By: /s/ Donald R. Smith
Name: Donald R. Smith
Title: Manager |
RAW, LLC
By: Donald R. Smith
Name: Donald R. Smith
Title: Manager
YELLOWTURTLE DESIGN, LLC
By: /s/ Elina B. Jenkins
Name: Elina B. Jenkins
Title: Manager
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DONALD SMITH
By: /s/ Donald R. Smith
Donald Smith, individually |
ELINA JENKINS
By: /s/ Elina B. Jenkins
Elina Jenkins, individually
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BASANITE, INC.
By: /s/ Simon R. Kay
Name: Simon R. Kay
Title: Manager |
ROCKSTAR ACQUISITIONS, LLC
By: /s/ Simon R. Kay
Name: Simon R. Kay
Title: Manager |
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PAYMEON, INC.
By: /s/ Simon R. Kay
Name: Simon R. Kay
Title: Manager
BASANITE INDUSTRIES, LLC
By: /s/ Simon R. Kay
Name: Simon R. Kay
Title: Manager |
BASALT AMERICA, LLC
By: /s/ Simon R. Kay
Name: Simon R. Kay
Title: Manager |
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EXHIBIT 10.2
STOCK PURCHASE AGREEMENT
THIS AGREEMENT (this Agreement) is made and entered into this 14th day of April, 2021 (the Effective Date), by and between RAW LLC, a Florida limited liability company (Seller), and Basanite, Inc., a Nevada corporation, and/or its assigns (Buyer or Basanite) (together, the Parties). For the purposes of this Agreement, Seller shall include Donald R. Smith, an individual residing in the State of Florida who is the principal and sole member of Seller. This Agreement is intended by the Parties to be binding upon their companies and their affiliated companies.
BACKGROUND
WHEREAS, Seller is the owner of 10,000,000 shares of common stock (the Shares) of Basanite; and
WHEREAS, Buyer desires to purchase all of Sellers rights, title and interest in and to the Shares for the purchase price set forth below;
WHERES, simultaneously with the execution of this Agreement, the Parties and YellowTurtle Design LLC among others shall enter into a Settlement and Release Agreement of an even date herewith regarding various litigation matters pending between the Parties and others (the Settlement Agreement);
WHEREAS, simultaneously with the execution of this Agreement, Basanite shall enter into a form of Stock Purchase Agreement of an even date herewith substantially similar to this Agreement with YellowTurtle Design LLC for the purchase of 6,500,000 shares of common stock of Basanite for the purchase price set forth therein (the YellowTurtle Agreement).
AGREEMENT
NOW, THEREFORE, in consideration of the premises, representations, warranties, covenants, agreements and promises herein contained, the Parties agree as follows:
SECTION 1. PURCHASE AND SALE
1.1
Recitals. The recitals set forth above are hereby incorporated herein by reference and made part of this Agreement.
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1.2
Purchase and Closing. Subject to the terms and conditions of this Agreement, at the Closing (as defined below), the Seller shall sell, assign, transfer and deliver to Buyer, and Buyer shall purchase, accept, assume and receive all rights, title and interest in and to the Shares.
1.3
Purchase Price. In consideration of the sale and transfer of Sellers interest in the Shares to Buyer, and in reliance upon the representations and warranties made herein by Seller, Buyer will, in full payment therefor, pay to Seller the purchase price of One Million Two Hundred Twelve Thousand One Hundred Twenty-One Dollars ($1,212,121) (the Purchase Price) at the Closing by wire transfer or immediately available funds pursuant to the written instructions provided by Seller. The Shares shall remain in Sellers name until the entire Purchase Price and all interest thereon is indefeasibly paid in full, as more particularly provided in that certain Escrow Agreement of even date herewith between Seller, Buyer, and Quick Law Group P.C., as escrow agent (the Escrow Agent) in the form annexed in Exhibit A (the Escrow Agreement).
SECTION 2. CLOSING
2.1
Closing. As an expressed condition precedent to the transfer of stock contemplated and memorialized herein, Closing shall occur no later than May 17, 2021, time being of the essence. If the Buyer is not able to pay the full Purchase Price the Escrow Agent shall immediately return the Shares to the Seller pursuant to the terms of the Escrow Agreement.
2.2
Additional Documents and Further Assurances. Prior to Closing, at either partys reasonable request, and without further consideration, Seller and Buyer will execute and deliver such other instruments of sale and take such action as the other may reasonably deem necessary or desirable in order to more effectively memorialize and consummate the Settlement Agreement and the Sellers transfer to Buyer or its assigns of the Shares hereunder, and to confirm Buyers or Buyers assigns interest in the Shares and Buyers payment of same, and to assist Buyer or its assigns in exercising all rights with respect thereto, including the delivery of executed, notarized stock powers and original stock certificates to the Escrow Agent by Thursday April 15 at 5 p.m. EDT and held pursuant to the terms of the Escrow Agreement. Notwithstanding such executed
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and notarized stock powers and stock certificates provided to Escrow Agent, Escrow Agents shall not utilize same to transfer any and all Shares out of the names of the Seller/holders thereof, nor shall it in any way preclude Escrow Agent from promptly returning such Shares to counsel for Buyer, Michael J. Sacks, Esq. in the event the Stock Purchase transaction contemplated hereunder is not consummated. In the event, however, that the Stock Purchase transaction is consummated, Escrow Agent shall not be required to obtain the consents of Seller with respect to the transfer of the Shares to Buyer. Escrow Agent shall collaborate in good faith with counsel for Seller, Michael J. Sacks, Esq., to effectuate the documentation reasonable and necessary to assist Seller with respect to the reasonable requirements of the transfer agent.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to the Buyer as of the Closing, as follows:
3.1
Authority. Other than any actions or omissions by Buyer which Seller is unaware, Seller has all requisite power and authority, without the consent of any other person, to execute and deliver this Agreement and the documents to be delivered at the Closing and to carry out the transactions contemplated hereby and thereby.
3.2
Validity. This Agreement has been duly executed and delivered and constitutes the lawful, valid and binding obligation of Seller, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other laws affecting the enforcement of creditors rights generally, or by general equitable principles. To the best of Sellers knowledge, information and belief, no approval, authorization, registration, consent, order or other action of or filing with any person, including any court, administrative agency or other government authority, is required for the execution and delivery by Seller of this Agreement or the performance by Seller of its obligations hereunder.
3.3
Shares. Seller is the sole owner (beneficial and of record) of the Shares, and at the Closing will have good, marketable and indefeasible title thereto and the absolute right to sell, assign, transfer and deliver the same, free and clear of all claims, security interests, liens, pledges, charges, escrows, options, proxies, rights of first refusal, preemptive rights, mortgages,
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hypothecations, prior assignments, title retention agreements, voting agreements, transfer restriction agreements, indentures, security agreements or any other limitation, encumbrance or restriction of any kind. Further, Seller represents that the Shares constitute all of the shares of Basanite owned by Seller, or any entity owned or controlled by Seller, that (except for the Shares) Seller, and all entities owned or controlled by Seller, have no other direct or indirect ownership of or any other economic interest relating to any shares of stock of Basanite and that the Seller has not sold, pledged, assigned, encumbered or transferred any of the said Shares to any third party, and Seller and all entities owned or controlled by Seller, have no other interests in Basanite.
3.4
Accuracy of Representations. To the best of Sellers knowledge, information and belief, all representations and warranties of Seller contained herein and any documents provided in connection with the Closing or documents delivered at the time of the execution and delivery hereof shall be true and correct when made at, and as of, the delivery hereof shall be true and correct when made and at, as of the, Closing date. Seller shall give Buyer prompt written notice of any material change in any of the information contained in the representations and warranties made herein which occur prior to the Closing.
3.5
Sophisticated Investor. Seller acknowledges that Seller is a sophisticated investor engaged in the business of assessing and assuming investment risks with respect to securities, including securities such as the Shares, and further acknowledges that Buyer is entering into this Agreement with Seller in reliance on this acknowledgment and with Sellers understanding, acknowledgment and agreement that Buyer may be privy to material non-public information regarding Basanite (collectively, the Non-Public Information), which Non-Public Information may be material to a reasonable investor, such as Seller, when making investment disposition decisions, including the decision to enter into this Agreement, and Sellers decision to enter into the Purchase Agreement is being made with full recognition and acknowledgment that Buyer may be privy to the Non-Public Information and that such Non-Public Information may impact the trading price of Buyers common stock, irrespective of whether such Non-Public Information
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has been provided to Seller. Seller hereby waives any claim, or potential claim, Seller has or may have against Buyer relating to Buyers possession of Non-Public Information and is expressly bound by the terms of this Agreement, including the Purchase Price.
3.6
No Future Participation. Subsequent to Effective Date but subject to the Closing occurring, provided the Purchase Price is indefeasibly paid in full and the Shares are released from escrow pursuant to the terms of the Escrow Agreement (i) Seller acknowledges that Seller will have no future participation in any gains, losses, profits or distributions with respect to the Shares and (ii) should the Shares increase in value by any means, Seller acknowledges that Seller is voluntarily forfeiting any opportunity to share in any resulting increase in value from the Shares.
3.7
Accuracy of Representations. All representations and warranties of Seller contained herein and any documents provided in connection with the Closing or documents delivered at the time of the execution and delivery hereof shall be true and correct when made at, and as of, the delivery hereof shall be true and correct when made and at, as of the, Closing date.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as of the date hereof and as of the Closing, as follows:
4.1
Authority. Buyer has all requisite power and authority, without the consent of any other person, to execute and deliver this Agreement and the documents to be delivered at the Closing, and to carry out the transactions contemplated hereby and thereby.
4.2
Validity. This Agreement has been duly executed and delivered and constitutes the lawful, valid and legally binding obligation of Buyer, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other laws affect the enforcement of creditors rights generally, or by general equitable principles. No approval, authorization, registration, consent, order or other action of or filing with any person, including any court, administrative agency or other government authority, is required for the execution and deliver by Buyer of this Agreement or the performance by the Buyer of its obligations hereunder.
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4.3
Accuracy of Representations. All representations and warranties of Buyer contained herein and any documents provided in connection with the Closing or documents delivered at the time of the execution and delivery hereof shall be true and correct when made at, and as of, the delivery hereof shall be true and correct when made and at, as of the, Closing date.
SECTION 5. GENERAL PROVISIONS
5.1
Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given when transmitted by email to the following, provided such email notice is confirmed by overnight delivery to the physical addresses on file with the Parties. Any party can change its address for email or overnight delivery by notice given in accordance with the provisions hereof.
To Buyer:
sk@basaniteindustries.com
rzaden@sszrlaw.com
jquick@quicklawgroup.com
To Seller:
don@rawenergytec.com
msacks@bellsouth.net
5.2
Expenses. Each Party to this Agreement shall pay its own costs and expenses in connection with the transactions contemplated hereby.
5.3
Counterparts. This Agreement may be executed simultaneously in two or more counterparts each of which shall be deemed an original, but all of which together constitute one and the same instrument. This Agreement may be executed electronically and original signatures may be delivered by facsimile, PDF/email or electronic delivery and all such signatures shall be given the same effect as an original signature.
5.4
Assignability. Buyer may freely assign any of its rights and/or obligations under this Agreement, in whole or in part, to any other party without the consent of Seller (written or otherwise) but shall be required to provide Seller notice of such assignment. Seller may not assign Sellers right and/or obligations under this Agreement in whole or in part without
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Companys prior written consent. No assignment will relieve either Party of the performance of any obligation that such Party may have under this Agreement.
5.5
Entire Transaction. This Agreement, along with the Settlement Agreement, YellowTurtle Agreement and Escrow Agreement, contains the entire understanding among the Parties with respect to the actions contemplated hereby and supersedes all other agreements, understandings and undertakings among the Parties on the subject matter hereof. It may not be amended except pursuant to a written document executed by the parties.
5.6
Waiver. No waiver of any breach or default hereunder shall be valid unless in writing and signed by the party giving such waiver. No delay or omission to exercise any right or remedy against any party hereto shall be construed to be a waiver thereof.
5.7
Fees Upon Litigation. To the extent there is litigation involving the terms of this Agreement, the prevailing Party(ies) shall be entitled to recover from the non-prevailing Party(ies) any and all of its reasonable attorney fees and costs incurred in addressing the dispute, including without limitation activity pre-litigation and all aspects of litigation, whether pretrial, trial, appellate and post judgment.
5.8
Governing Law. The provisions of this Agreement and all rights and obligations hereunder shall be governed by and construed in accordance with the laws of the State of Florida without regard to the conflicts of laws provisions thereof. The parties hereby remit to the jurisdiction of the state and/or federal courts of the State of Florida, County of Broward, for any disputes arising hereunder.
5.9
Review/Representation by Counsel. The Parties each acknowledge that they are represented by counsel and that they have read and fully understand the terms of this Agreement. The Parties are satisfied with the terms of this Agreement and have signed this document of their own free will.
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IN WITNESS WHEREOF, each of the Parties hereto has executed or caused this Agreement to be executed all as of the date first written above.
BUYER: |
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SELLER: |
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BASANITE, INC. |
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By: |
/s/ Simon R. Kay |
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By: |
/s/ Donald R. Smith |
Name: |
Simon R. Kay |
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Donald R. Smith |
Title: |
Acting Interim President and CEO |
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SELLER: |
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RAW LLC |
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By: |
/s/ Donald R. Smith |
Name: |
Donald R. Smith |
Title: |
Manager |
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EXHIBIT 10.3
STOCK PURCHASE AGREEMENT
THIS AGREEMENT (this Agreement) is made and entered into this 14th day of April, 2021 (the Effective Date), by and between YellowTurtle Design LLC, a Florida limited liability company (Seller), and Basanite, Inc., a Nevada corporation, and/or its assigns (Buyer or Basanite) (together, the Parties). For the purposes of this Agreement, Seller shall include Elina B. Jenkins, an individual residing in the State of Florida who is the principal and sole member of Seller. This Agreement is intended by the Parties to be binding upon their companies and their affiliated companies.
BACKGROUND
WHEREAS, Seller is the owner of 6,500,000 shares of common stock (the Shares) of Basanite; and
WHEREAS, Buyer desires to purchase all of Sellers rights, title and interest in and to the Shares for the purchase price set forth below;
WHERES, simultaneously with the execution of this Agreement, the Parties and RAW LLC among others shall enter into a Settlement and Release Agreement of an even date herewith regarding various litigation matters pending between the Parties and others (the Settlement Agreement);
WHEREAS, simultaneously with the execution of this Agreement, Basanite shall enter into a form of Stock Purchase Agreement of an even date herewith substantially similar to this Agreement with RAW LLC for the purchase of 10,000,000 shares of common stock of Basanite for the purchase price set forth therein (the RAW Agreement).
AGREEMENT
NOW, THEREFORE, in consideration of the premises, representations, warranties, covenants, agreements and promises herein contained, the Parties agree as follows:
SECTION 1. PURCHASE AND SALE
1.1
Recitals. The recitals set forth above are hereby incorporated herein by reference and made part of this Agreement.
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1.2
Purchase and Closing. Subject to the terms and conditions of this Agreement, at the Closing (as defined below), the Seller shall sell, assign, transfer and deliver to Buyer, and Buyer shall purchase, accept, assume and receive all rights, title and interest in and to the Shares.
1.3
Purchase Price. In consideration of the sale and transfer of Sellers interest in the Shares to Buyer, and in reliance upon the representations and warranties made herein by Seller, Buyer will, in full payment therefor, pay to Seller the purchase price of Seven Hundred Eighty-Seven Thousand Eight Hundred Seventy-Nine Dollars ($787,879) (the Purchase Price) at the Closing by wire transfer or immediately available funds pursuant to the written instructions provided by Seller. The Shares shall remain in Sellers name until the entire Purchase Price and all interest thereon is indefeasibly paid in full, as more particularly provided in that certain Escrow Agreement of even date herewith between Seller, Buyer, and Quick Law Group P.C., as escrow agent (the Escrow Agent) in the form annexed in Exhibit A (the Escrow Agreement).
SECTION 2. CLOSING
2.1
Closing. As an expressed condition precedent to the transfer of stock contemplated and memorialized herein, Closing shall occur no later than May 17, 2021, time being of the essence. If the Buyer is not able to pay the full Purchase Price the Escrow Agent shall immediately return the Shares to the Seller pursuant to the terms of the Escrow Agreement.
2.2
Additional Documents and Further Assurances. Prior to Closing, at either partys reasonable request, and without further consideration, Seller and Buyer will execute and deliver such other instruments of sale and take such action as the other may reasonably deem necessary or desirable in order to more effectively memorialize and consummate the Settlement Agreement and the Sellers transfer to Buyer or its assigns of the Shares hereunder, and to confirm Buyers or Buyers assigns interest in the Shares and Buyers payment of same, and to assist Buyer or its assigns in exercising all rights with respect thereto, including the delivery of executed, notarized stock powers and original stock certificates to the Escrow Agent by Thursday April 15 at 5 p.m. EDT and held pursuant to the terms of the Escrow Agreement. Notwithstanding such executed and notarized stock powers and stock certificates provided to Escrow Agent, Escrow Agents shall not
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utilize same to transfer any and all Shares out of the names of the Seller/holders thereof, nor shall it in any way preclude Escrow Agent from promptly returning such Shares to counsel for Buyer, Michael J. Sacks, Esq. in the event the Stock Purchase transaction contemplated hereunder is not consummated. In the event, however, that the Stock Purchase transaction is consummated, Escrow Agent shall not be required to obtain the consents of Seller with respect to the transfer of the Shares to Buyer. Escrow Agent shall collaborate in good faith with counsel for Seller, Michael J. Sacks, Esq., to effectuate the documentation reasonable and necessary to assist Seller with respect to the reasonable requirements of the transfer agent.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to the Buyer as of the Closing, as follows:
3.1
Authority. Other than any actions or omissions by Buyer which Seller is unaware, Seller has all requisite power and authority, without the consent of any other person, to execute and deliver this Agreement and the documents to be delivered at the Closing and to carry out the transactions contemplated hereby and thereby.
3.2
Validity. This Agreement has been duly executed and delivered and constitutes the lawful, valid and binding obligation of Seller, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other laws affecting the enforcement of creditors rights generally, or by general equitable principles. To the best of Sellers knowledge, information and belief, no approval, authorization, registration, consent, order or other action of or filing with any person, including any court, administrative agency or other government authority, is required for the execution and delivery by Seller of this Agreement or the performance by Seller of its obligations hereunder.
3.3
Shares. Seller is the sole owner (beneficial and of record) of the Shares, and at the Closing will have good, marketable and indefeasible title thereto and the absolute right to sell, assign, transfer and deliver the same, free and clear of all claims, security interests, liens, pledges, charges, escrows, options, proxies, rights of first refusal, preemptive rights, mortgages, hypothecations, prior assignments, title retention agreements, voting agreements, transfer
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restriction agreements, indentures, security agreements or any other limitation, encumbrance or restriction of any kind. Further, Seller represents that the Shares constitute all of the shares of Basanite owned by Seller, or any entity owned or controlled by Seller, that (except for the Shares) Seller, and all entities owned or controlled by Seller, have no other direct or indirect ownership of or any other economic interest relating to any shares of stock of Basanite and that the Seller has not sold, pledged, assigned, encumbered or transferred any of the said Shares to any third party, and Seller and all entities owned or controlled by Seller, have no other interests in Basanite.
3.4
Accuracy of Representations. To the best of Sellers knowledge, information and belief, all representations and warranties of Seller contained herein and any documents provided in connection with the Closing or documents delivered at the time of the execution and delivery hereof shall be true and correct when made at, and as of, the delivery hereof shall be true and correct when made and at, as of the, Closing date. Seller shall give Buyer prompt written notice of any material change in any of the information contained in the representations and warranties made herein which occur prior to the Closing.
3.5
Sophisticated Investor. Seller acknowledges that Seller is a sophisticated investor engaged in the business of assessing and assuming investment risks with respect to securities, including securities such as the Shares, and further acknowledges that Buyer is entering into this Agreement with Seller in reliance on this acknowledgment and with Sellers understanding, acknowledgment and agreement that Buyer may be privy to material non-public information regarding Basanite (collectively, the Non-Public Information), which Non-Public Information may be material to a reasonable investor, such as Seller, when making investment disposition decisions, including the decision to enter into this Agreement, and Sellers decision to enter into the Purchase Agreement is being made with full recognition and acknowledgment that Buyer may be privy to the Non-Public Information and that such Non-Public Information may impact the trading price of Buyers common stock, irrespective of whether such Non-Public Information has been provided to Seller. Seller hereby waives any claim, or potential claim, Seller has or may have
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against Buyer relating to Buyers possession of Non-Public Information and is expressly bound by the terms of this Agreement, including the Purchase Price.
3.6
No Future Participation. Subsequent to Effective Date but subject to the Closing occurring, provided the Purchase Price is indefeasibly paid in full and the Shares are released from escrow pursuant to the terms of the Escrow Agreement (i) Seller acknowledges that Seller will have no future participation in any gains, losses, profits or distributions with respect to the Shares and (ii) should the Shares increase in value by any means, Seller acknowledges that Seller is voluntarily forfeiting any opportunity to share in any resulting increase in value from the Shares.
3.7
Accuracy of Representations. All representations and warranties of Seller contained herein and any documents provided in connection with the Closing or documents delivered at the time of the execution and delivery hereof shall be true and correct when made at, and as of, the delivery hereof shall be true and correct when made and at, as of the, Closing date.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as of the date hereof and as of the Closing, as follows:
4.1
Authority. Buyer has all requisite power and authority, without the consent of any other person, to execute and deliver this Agreement and the documents to be delivered at the Closing, and to carry out the transactions contemplated hereby and thereby.
4.2
Validity. This Agreement has been duly executed and delivered and constitutes the lawful, valid and legally binding obligation of Buyer, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other laws affect the enforcement of creditors rights generally, or by general equitable principles. No approval, authorization, registration, consent, order or other action of or filing with any person, including any court, administrative agency or other government authority, is required for the execution and deliver by Buyer of this Agreement or the performance by the Buyer of its obligations hereunder.
4.3
Accuracy of Representations. All representations and warranties of Buyer contained herein and any documents provided in connection with the Closing or documents
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delivered at the time of the execution and delivery hereof shall be true and correct when made at, and as of, the delivery hereof shall be true and correct when made and at, as of the, Closing date.
SECTION 5. GENERAL PROVISIONS
5.1
Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given when transmitted by email to the following, provided such email notice is confirmed by overnight delivery to the physical addresses on file with the Parties. Any party can change its address for email or overnight delivery by notice given in accordance with the provisions hereof.
To Buyer:
sk@basaniteindustries.com
rzaden@sszrlaw.com
jquick@quicklawgroup.com
To Seller:
elinajenkins@gmail.com
msacks@bellsouth.net
5.2
Expenses. Each Party to this Agreement shall pay its own costs and expenses in connection with the transactions contemplated hereby.
5.3
Counterparts. This Agreement may be executed simultaneously in two or more counterparts each of which shall be deemed an original, but all of which together constitute one and the same instrument. This Agreement may be executed electronically and original signatures may be delivered by facsimile, PDF/email or electronic delivery and all such signatures shall be given the same effect as an original signature.
5.4
Assignability. Buyer may freely assign any of its rights and/or obligations under this Agreement, in whole or in part, to any other party without the consent of Seller (written or otherwise) but shall be required to provide Seller notice of such assignment. Seller may not assign Sellers right and/or obligations under this Agreement in whole or in part without Companys prior written consent. No assignment will relieve either Party of the performance of any obligation that such Party may have under this Agreement.
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5.5
Entire Transaction. This Agreement, along with the Settlement Agreement, RAW Agreement and Escrow Agreement, contains the entire understanding among the Parties with respect to the actions contemplated hereby and supersedes all other agreements, understandings and undertakings among the Parties on the subject matter hereof. It may not be amended except pursuant to a written document executed by the parties.
5.6
Waiver. No waiver of any breach or default hereunder shall be valid unless in writing and signed by the party giving such waiver. No delay or omission to exercise any right or remedy against any party hereto shall be construed to be a waiver thereof.
5.7
Fees Upon Litigation. To the extent there is litigation involving the terms of this Agreement, the prevailing Party(ies) shall be entitled to recover from the non-prevailing Party(ies) any and all of its reasonable attorney fees and costs incurred in addressing the dispute, including without limitation activity pre-litigation and all aspects of litigation, whether pretrial, trial, appellate and post judgment.
5.8
Governing Law. The provisions of this Agreement and all rights and obligations hereunder shall be governed by and construed in accordance with the laws of the State of Florida without regard to the conflicts of laws provisions thereof. The parties hereby remit to the jurisdiction of the state and/or federal courts of the State of Florida, County of Broward, for any disputes arising hereunder.
5.9
Review/Representation by Counsel. The Parties each acknowledge that they are represented by counsel and that they have read and fully understand the terms of this Agreement. The Parties are satisfied with the terms of this Agreement and have signed this document of their own free will.
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IN WITNESS WHEREOF, each of the Parties hereto has executed or caused this Agreement to be executed all as of the date first written above.
BUYER: |
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SELLER: |
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BASANITE, INC. |
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By: |
/s/ Simon R. Kay |
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By: |
/s/ Elina B. Jenkins |
Name: |
Simon R. Kay |
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Elina B. Jenkins |
Title: |
Acting Interim President and CEO |
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SELLER: |
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YELLOWTURTLE DESIGN LLC |
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By: |
/s/ Elina B. Jenkins |
Name: |
Elina B. Jenkins |
Title: |
Manager |
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