MEMBERSHIP INTEREST PURCHASE AGREEMENT
OF
AMERICAN LUXURY LIMOUSINE, LLC
BY AND BETWEEN
MARK E. CHRISTIANSEN, SELLER
AND
NICOLAI EDGAR ANDERSEN, BUYER
DATED AS OF
MEMBERSHIP INTEREST PURCHASE AGREEMENT
This Membership Interest Purchase Agreement (this “Agreement”) dated as of Insert Date (the “Effective Date”), is entered into between Mark E. Christiansen (the “Seller”) and Nicolai Edgar Andersen (the “Buyer”).
WHEREAS, Seller owns _____% of the issued and outstanding membership interests (the “Membership Interests”) in AMERICAN LUXURY LIMOUSINE, a California Limited Liability Company;
WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, the Membership Interests, subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
Subject to the terms and conditions set forth herein, at the Closing, Seller shall sell to Buyer, and Buyer shall purchase from Seller, 50% of his equity. Seller’s right, title and interest in and to the Membership Interests, free and clear of all Encumbrances, for the consideration specified in Article II.
Upon execution of this Agreement, the provisions of the letter agreement dated Insert Date as it relates to the purchase and sale of the Membership Interests shall be deemed to be merged into this Agreement and if there are any differences in the letter agreement and this Agreement, the provisions of this Agreement shall control.
ARTICLE II
CONSIDERATION
ARTICLE III
TRANSACTIONS AT EXECUTION
At the execution of this Agreement, Buyer shall deliver to Seller the Transaction Documents and all other agreements, documents, instruments, or certificates required to be delivered by Buyer at or prior to the execution of this Agreement.
At the Closing, Seller shall deliver to Buyer an assignment of the Membership Interests to Buyer duly executed by Seller and the other Transaction Documents and all other agreements, documents, instruments or certificates required to be delivered by Seller at or prior to the execution of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller has full limited liability company power and authority to enter into this Agreement and the Assignment and the other Transaction Documents to which Seller is a party, to carry out its obligations under this Agreement and the Assignment and other Transaction Documents to which Seller is a party, and to consummate the contemplated transactions of Seller. The execution and delivery by Seller of this Agreement and the Assignment/any other Transaction Document to which Seller is a party, the performance by Seller of its obligations and the consummation by Seller of the contemplated transactions have been duly authorized by all requisite limited liability company action on the part of Seller. This Agreement has been duly executed and delivered by Seller, and (assuming due authorization, execution and delivery by Buyer) this Agreement constitutes a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms. When the Assignment/each other Transaction Document to which Seller is or will be a party has been duly executed and delivered by Seller, assuming due authorization, execution and delivery by each other party to these documents, the Assignment and Transaction Documents will constitute a legal and binding obligation of Seller enforceable against it in accordance with its terms.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
The execution and delivery by Buyer of this Agreement and any other Transaction Document to which Buyer is a party, the performance by Buyer of its obligations and the consummation by Buyer of the contemplated transactions have been duly authorized by all requisite partnership action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer, and (assuming due authorization, execution and delivery by Seller) this Agreement constitutes a legal, valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms. When each other Transaction Document to which Buyer is or will be a party has been duly executed and delivered by Buyer (assuming due authorization, execution and delivery by each other party to the Transaction Documents), the Transaction Document will constitute a legal and binding obligation of Buyer enforceable against it in accordance with its terms. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Buyer. Buyer has had the opportunity and has reviewed all due diligence information of AMERICAN LUXURY LIMOUSINE, LLC and Seller in the data room and otherwise disclosed to Buyer. Buyer is relying on Buyer’s due diligence to purchase the Membership Interests and acknowledges Seller’s disclaimer of warranties. Buyer is not aware that any of the representations and warranties or certificates of Sellers and AMERICAN LUXURY LIMOUSINE, LLC and Disclosure Schedule (including updated schedules to the extent delivered) are untrue or incorrect, individually or in the aggregate, in any respect, and do, individually or in the aggregate, contain any material errors in, or material omissions from, the Disclosure Schedule to this Agreement which would result in a material misrepresentation to Buyer; provided, however, that Buyer shall have no responsibility for the accuracy of such due diligence information, representations or warranties.
ARTICLE VI
CAPITALIZATION
Seller is the record owner of and has good and valid title to the Membership Interests, free and clear of all Encumbrances. The Membership Interests constitute _____% of the total issued and outstanding membership interests in AMERICAN LUXURY LIMOUSINE, LLC. The Membership Interests have been duly authorized and are validly issued, fully-paid and non-assessable. Upon consummation of the transactions contemplated by this Agreement, Buyer shall own all of the Membership Interests, free and clear of all Encumbrances. The Membership Interests were issued in compliance with applicable Laws. The Membership Interests were not issued in violation of the Organizational Documents of AMERICAN LUXURY LIMOUSINE, LLC or any other agreement, arrangement or commitment to which Seller or AMERICAN LUXURY LIMOUSINE, LLC is a party and are not subject to or in violation of any preemptive or similar rights of any Person. There are no outstanding or authorized options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any character relating to any membership interests in AMERICAN LUXURY LIMOUSINE, LLC or obligating Seller or AMERICAN LUXURY LIMOUSINE, LLC to issue or sell any membership interests (including the Membership Interests), or any other interest, in AMERICAN LUXURY LIMOUSINE, LLC. Other than the Organizational Documents, there are no voting trusts, proxies or other agreements or understandings in effect with respect to the voting or transfer of any of the Membership Interests.
ARTICLE VII
MATERIAL CONTRACTS
Each Material Contract is valid and binding on AMERICAN LUXURY LIMOUSINE, LLC in accordance with its terms and is in full force and effect. None of AMERICAN LUXURY LIMOUSINE, LLC or, to Seller’s Knowledge, any other party to the Material Contract is in breach of or default under (or is alleged to be in breach of or default under) in any material respect, or has provided or received any notice of any intention to terminate, any Material Contract and no event or circumstance has occurred or, to Seller’s Knowledge, will occur (including the execution of this Agreement and the consummation of the transactions contemplated herein) that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof.
Seller retains the right to make decisions regarding the company without consulting Buyer. Buyer agrees that he shall have no form of control in the company or be involved in decision-making.
ARTICLE VIII
TITLE TO ASSETS AND REAL PROPERTY
AMERICAN LUXURY LIMOUSINE, LLC has good and valid (and, in the case of owned Real Property, good and marketable fee simple) title to, or a valid leasehold interest in, all Real Property and personal property and other assets of AMERICAN LUXURY LIMOUSINE, LLC, other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practice since the Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances. With respect to leased Real Property, Seller has delivered or made available to Buyer true, complete and correct copies of any leases affecting the Real Property. AMERICAN LUXURY LIMOUSINE, LLC is not a sublessor or grantor under any sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any leased Real Property. The use and operation of the Real Property in the conduct of AMERICAN LUXURY LIMOUSINE, LLC’s business do not violate in any material respect any Law, covenant, condition, restriction, easement, license, permit or agreement. There are no Actions pending nor, to the Seller’s Knowledge, threatened against or affecting the Real Property or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent domain proceedings.
ARTICLE IX
INVESTIGATION AND AGREEMENT BY BUYER
Buyer acknowledges and agrees that he has made (or will make) its own inquiry and investigation into, and, based on its inquiry and investigation and the representations and warranties in this Agreement and the Transaction Documents, has formed an independent judgment concerning AMERICAN LUXURY LIMOUSINE, LLC and its operations and Buyer has been furnished with or given access to the information about AMERICAN LUXURY LIMOUSINE, LLC and its businesses and operations as it requested in determining whether to enter into this Agreement. Buyer acknowledges and agrees that it has had an opportunity to ask all questions of and received answers from Seller and AMERICAN LUXURY LIMOUSINE, LLC in determining whether to enter into this Agreement. In connection with Buyer’s investigation of AMERICAN LUXURY LIMOUSINE, LLC and its businesses and operations, Buyer and its respective representatives have received from AMERICAN LUXURY LIMOUSINE, LLC or its representatives certain projections and other forecasts for AMERICAN LUXURY LIMOUSINE, LLC, and certain estimates, plans and budget information. Buyer acknowledges that: (1) there are uncertainties inherent in attempting to make such projections, forecasts, estimates, plans and budgets; and (2) Buyer has not been authorized by AMERICAN LUXURY LIMOUSINE, LLC or Seller to rely upon the estimates, projections, forecasts, plans and budgets as to future results so furnished to it or its representatives.
ARTICLE X
INDEMNIFICATION
Subject to the terms and conditions of this Agreement, Seller shall indemnify and defend each of Buyer and its Affiliates (including AMERICAN LUXURY LIMOUSINE, LLC) and their respective Representatives (collectively, the “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement or in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Execution Date; or (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement.
Subject to the other terms and conditions of this Article X, Buyer shall indemnify and defend each of Seller and its Affiliates and their respective Representatives (collectively, the “Seller Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Seller Indemnitees based upon, arising out of, with respect to or by reason of: (a) any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement or in any certificate or instrument delivered by or on behalf of Buyer pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Execution Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); or (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement.
ARTICLE XI
TERMINATION
This Agreement may be terminated at any time prior to the Closing: (a) by the mutual written consent of Seller and Buyer; (b) by Buyer by written notice to Seller if Buyer is not then in material breach of any provision of this Agreement and there has been a material breach, or inaccuracy in a representation or warranty by Seller or a material failure to perform any covenant made by Seller pursuant to this Agreement.
ARTICLE XII
MISCELLANEOUS
The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
Any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party.
It is agreed that there is no representation, warranty, collateral agreement, or condition affecting this Agreement except as expressly provided in this Agreement.
Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.
The Parties have duly affixed their signatures under hand and seal on this _____ Day of ____________________, 2021.
Mark E. Christiansen, Seller
Signature: ________________________________________
Date:
Nicolai Edgar Andersen, Buyer
Signature: ________________________________________
Date:
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