MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding (“MOU”), dated October xxxxx, 2021, is by and between Blackie Capital Inc., a Houston, Texas Corporation (“BCI”) and Pohaku Classic LLC, a Texas Limited Liability Company (“PCL”). (BCI and PCL may individually referred to hereinafter as “Party” collectively referred to hereinafter as the “Parties”). This MOU sets forth the general terms and conditions for an Asset Purchase, to which the BCI and the PCL have jointly agreed.
- PCL is the owner of the Pohaku Classic LLC a vehicle manufacturer Assets (the “Assets”) described very specifically in Schedule “A” attached hereto.
- B. PCL desires to sell the Assets, and BCI desires to purchase all of the Assets from or controlled by PCL and acquire full rights to market and sell such Assets and conduct business activities with the Assets. This sale includes brand such as trademarks, website, entities, etc.
This MOU contemplates the proposed transaction (the “Transaction”) between the Parties that provides for BCI to acquire all of the Assets controlled or yet to be controlled by PCL. The general understating of the terms and conditions of the Transaction are set forth herein.
The following shall constitute an expression of the mutual intent of the Parties hereto and is contingent upon the successful negotiation, execution, and delivery of definitive agreements between PCL and BCI setting forth in detail the terms and conditions of the proposed transactions and agreements (the “Definitive Agreements”).
1.1 Transaction. BCI desires to acquire 100% of the Assets that will be owned by PCL and desires to sell those Assets to the Company. The Parties contemplate that the principal terms and conditions of the Transaction shall be as follows:
- Cash: Within 5 business days of signing this Agreement, BCI and PCL will enter into a Definitive Binding Agreement and upon executing such agreement, PCL will receive xxxxxxxxxxxxxxxxxxxxxx dollars ($xxxxxxxxxxx,000) USD as a refundable cash deposit towards the purchase of Assets.
- Issuance of Shares in Company. Within 5 business days of the signing the Definitive Binding Agreement PCL will be issued xxxxxxxxxxxxxxxx (xxxx,000) newly issued shares of common stock in the Company.
1.2 Conditions to Consummation of the Transaction. The obligations of BCI, with respect to the Transaction, shall be subject to the satisfaction of the conditions customary to transactions of this type, including without limitation: (a) confirmation that the representations and warranties of PCL are true and accurate in all respects affecting the transaction; and, (b) satisfactory completion of due diligence by BCI.
1.3 Access to Relevant Documents and Properties. PCL shall give BCI and its representatives full access to any personnel and all properties, documents, books, records and operations relating to the Assets within a reasonable amount of time from the date of any such request, but in each such case within ten (10) business days from the date of request. All such requests for access under this Section shall be delivered via email to an authorized agent or via facsimile to PCL.
2.1 Transaction. The undersigned agree to the terms of the Transaction as set forth above and each agree to cooperate in the negotiation, preparation of such Definitive Agreements, and other necessary documentation contemplated by the Transaction and agree to execute any and all documents consistent with the above terms to facilitate the consummation of such Transaction on or before October xxxx, 2021.
- Costs and Expenses
All costs and expenses incurred by BCI or PCL in connection with the continued negotiation of the Transaction shall be borne by the incurring Party.
- Exclusive Negotiating Rights
In order to induce BCI to commit the resources, forego other potential opportunities, and incur the legal, accounting and incidental expenses necessary properly to evaluate the transaction, described above, and to negotiate the terms of, and consummate, the Transaction contemplated hereby, PCL agrees that up to October xxx, 2021, PCL, or its affiliates and their respective officers, directors, employees and agents shall not initiate, solicit, encourage, directly or indirectly, or accept any offer or proposal, regarding the possible acquisition by any person other than BCI, including, without limitation, by way of a purchase of shares, purchase of assets or merger, of all or any substantial part of its equity securities or assets, and shall not (other than in the ordinary course of business as heretofore conducted) provide any confidential information regarding PCL Assets or business to any person other than BCI and its duly appointed representatives.
Termination of negotiations by BCI prior to the execution and delivery of the Definitive Agreements shall be without liability and no Party hereto shall be entitled to any form of relief whatsoever, including without limitation, injunctive relief or damages. Termination by PCL can only be made if BCI fails to perform under this MOU and after a ten (10) day notice period has not been remedied.
- Governing Law
This MOU shall be governed by and construed in accordance with the laws of Texas applicable to agreements made and to be performed entirely within such State and without regard to its choice of law principles.
Except as provided herein, the existence and the terms of this MOU shall be maintained in confidence by the Parties hereto and their respective officers, directors and employees. Except as compelled to be disclosed by judicial or administrative process or by other requirements of law, legal process, rule or regulation (including to the extent required in connection with any filings made by the Parties or their controlling affiliates with the Securities and Exchange Commission) all public announcements, notices or other communications regarding such matters to third parties, including without limitation any disclosure regarding the transactions contemplated hereby, shall require the prior approval of all Parties hereto.
Any amendment(s) to this MOU shall be in writing and signed by all Parties hereto.
The execution, delivery and performance by PCL of this MOU
(a) has been duly authorized by all requisite corporate and, if required, stockholder action
on the part of PCL
(b) and this MOU will not (i) violate
(A) any provision of law, statute, rule or regulation, or of the certificate or articles of incorporation or other constitutive documents or by-laws of PCL,
(B) any order of any Governmental Authority or
(C) any provision of any indenture, agreement or other instrument to which PCL is a party or by which it or any of the Assets is or may be bound, (ii) result in the creation or imposition of any Lien upon or with respect to the Assets or assets acquired by PCL.
- PCL and BCI shall each indemnify each other, and the other Party’s directors, officers, partners, employees and agents (each such Person being called an “Indemnity”) against, and to hold each Indemnity harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, charges and disbursements, incurred by or asserted against any Indemnities arising out of in any way connected with, or as a result of (i) the execution or delivery of this MOU or any agreement or instrument contemplated hereby, the performance by the Parties thereto of their respective obligations hereunder or the consummation of the Definitive Agreements and the other transactions contemplated thereby, and (ii) any claim, litigation investigation or proceeding relating to any of the foregoing, whether or not any Indemnity is a party thereto.
- The provisions of this Section 9.2 shall remain operative and in full force and effect regardless of the expiration of the term of this MOU the consummation of the transactions contemplated hereby, the invalidity or unenforceability of any term or provision of this MOU, or any investigation made by or on behalf of BCI.
9.3 Agreement to Perform Necessary Acts. BCI and the PCL agree to perform any further acts and execute and deliver any documents that may be reasonably necessary to carry out the provisions and intent of this MOU.
10. Counterparts and/or Facsimile Signature.
This MOU may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract and shall become effective. Delivery of an executed signature page to this Agreement by facsimile transmission or email correspondence shall be as effective as delivery of a manually signed counterpart of this Agreement.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules (the “ICDR Rules”). The seat of the arbitration will be Houston, Texas. The language of the arbitration will be English. The arbitration will be decided by a sole arbitrator who will be appointed in accordance with the ICDR Rule.
The following documents are an integral part of the MOU:
- How to act list
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his/her hand and seal the day indicated.
Blackie Capital, Inc.
Pohaku Classic LLC
PCL & INTANGIBLE ASSETS
HOW TO ACT LIST
- Seize all new employment (Stop hiring new employees)
- No staff pay increases
- All marketing campaigns and advertisement have to be signed and approved by Jason Engel (This includes all new model vehicles not yet fabricated ‘COBRA’)
- Freeze all travel, meals & entertainment expenditures on CR’s behalf (no additional expenses shall additives to the company)
- All billing of receivables is to be approved by Jason Engel (in order for current jobs to be not collected on for operational cost)
- All payables have to be approved by Jason Engel
- Any and all parts to be purchased should be for vehicles actively being built in assembly line at both locations
- All part purchases over $500 must have written approval by Jason Engel
- Freeze any selling, moving and manipulation of assets
- Cease using CR (& all affiliated Companies) funding for the construction in Flower Mound (Flower Mound is the land not included)
- Seize new notes payable, long term liabilities or any increases on existing payables – (Stop making note payables to themselves)
- Full inventory and assets to be counted at both locations to be performed – Asset list.
- Seize all ‘NEW’ merchandise orders or replenishments – All brands inclusive
- Acquiring all financial accesses to all entities under PCL
- All questions pertaining to the Acquisition of PCL shall be directed to email@example.com.
- No movement of listed hard assets prior to concluding acquisition
- Any and all damages to current tooling, machines, equipment, and or assets will be charged at closing if continued.
- All changes to current website and or design changes need Jason Engel approval.
EARNEST PAYMENT (DOWN PAYMENT)
FORMAL LOI (WITH ALLOWANCE FOR 1-2 WEEKS OF FINAL DRAFTING)
WAY OF THE ROAD
MARKETING & SALES
Illustrations to attach:
- Acquisition Flow Chart
- Timeline Progress
- All valuations and documents
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