Buda Juice, Inc S-1/A, filed Dec 12, 2025
Buda Juice, Inc. (BUDA)
As filed with the Securities and Exchange Commission on December 12, 2025.
Registration No. 333-289874
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BUDA JUICE, LLC
to be converted as described herein to a corporation named
BUDA JUICE, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 2080 | 46-4069365 | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
4030 Black Gold Drive,
Dallas, Texas 75247
(214) 308 5003
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Horatio Lonsdale-Hands
Chief Executive Officer
Buda Juice, LLC
4030 Black Gold Drive
Dallas, Texas 75247
(214) 308 5003
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Joseph M. Lucosky, Esq. Soyoung Lee, Esq. Lucosky Brookman LLP 101 Wood Avenue South, 5th Floor Woodbridge, NJ 08830 Telephone: (732) 395-4402 |
Andrew D. Hudders, Esq. Daniel Cohen, Esq. Golenbock Eiseman Assor Bell & Peskoe, LLP 711 Third Avenue — 17th Floor New York, New York 10017 (212) 907-7300 |
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement is declared effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ |
| Non-accelerated filer | ☒ | Smaller reporting company | ☒ |
| 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 7(a)(2)(B) of the Securities Act. ☒
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 12, 2025
PRELIMINARY PROSPECTUS
2,666,667 Shares of Common Stock
BUDA JUICE, INC.
This is our initial public offering (“IPO”). We are registering on the registration statement of which this prospectus forms a part, 2,666,667 shares of common stock, par value $0.001 (“Common Stock”), to be offered by the Company.
The sale of the shares of Common Stock for the Company is referred to herein as the “Offering”. We currently estimate that the offering price of the Common Stock sold in the Offering will be between $7.50 and $9.00 per share. For the purposes of certain financial data in this prospectus, we have assumed that the initial public offering price is $7.50.
Prior to the Offering, there has been no public market for our Common Stock. We have applied to list our Common Stock on the New York Stock Exchange (“NYSE”) under the symbol “BUDA”. The closing of this Offering is contingent upon the successful listing of our Common Stock on NYSE. No assurance can be given that our application will be approved.
We are an “emerging growth company” under the federal securities laws and, as such, we have elected to comply with certain reduced public company reporting requirements for this prospectus and future filings. See “Prospectus Summary - Implications of Being an Emerging Growth Company and a Smaller Reporting Company.”
Investing in our Common Stock involves a high degree of risk. Before buying any Common Stock, you should carefully read the discussion of the material risks of investing in our Common Stock under the heading “Risk Factors” beginning on page 10 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed on the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
| Per Share | Total
Without Over-Allotment Option | Total With Full Exercise of Over-Allotment Option | ||||||||||
| Initial public offering price of the Common Stock | $ | $ | $ | |||||||||
| Underwriting discounts and commissions (1) | $ | $ | $ | |||||||||
| Proceeds, before expenses, to us | $ | $ | $ | |||||||||
| (1) | The registration statement, of which this prospectus is a part, registers for sale to the underwriter warrants to purchase up to 266,667 shares of Common Stock (up to 306,667 shares of Common Stock if the over-allotment is exercised in full) (10% of the shares sold by the Company) to be issued to the underwriter, at an exercise price of $9.375 (125% of the public offering price). The registration statement of which this prospectus forms a part also registers the issuance of the Common Stock issuable upon exercise of the underwriter warrant (although the underwriter has agreed not to sell the warrants or any of the shares issuable upon exercise of the warrants until six months after the effective date of the registration statement). See “Underwriting” beginning on page 74 of this prospectus for more information about these arrangements. |
The Company has granted a 45-day option to the underwriter to purchase up to an additional 400,000 shares of Common Stock sold by the Company in the Offering solely to cover over-allotments, if any.
Delivery of the Common Stock is expected to be made on or about _______________, 2025.
The date of this prospectus is _______________, 2025
LETTER FROM HORATIO LONSDALE-HANDS, CO-FOUNDER, CHIEF EXECUTIVE OFFICER
At Buda Juice, we started small—one RAW.ORGANIC.REAL. sip at a time. As life became busier, convenience often meant sacrificing health. Recognizing this challenge, we set out to offer delicious, genuinely fresh juices, making it effortless for people to incorporate more fruits and vegetables into their daily lives. Our journey began with informal taste tests among family and friends in a co-founder’s kitchen, eventually leading to our first kiosk inside a coffee shop in Plano, Texas, in 2014. From that moment, authenticity, exceptional flavor, and a commitment to fresh has guided every step we take.
Initially, we expanded through our own retail stores, building a loyal and passionate customer base who loved both the taste and health benefits of our juices. However, we quickly realized that to achieve broader impact, selling to established retailers was key. This strategic pivot allowed us to fully concentrate on perfecting our juices and the rigorous processes that ensure their freshness.
While “fresh” is trending, many retailers often fall short on this promise. Our food system has become so processed that “fresh” frequently is not fresh at all. Consider the common “fresh-squeezed” orange juice—it is typically pasteurized, derived from concentrate, and/or even artificially flavored after heat treatments strip away its natural essence. The result barely resembles the original, delicious nectar. HPP, UV, and traditional pasteurization techniques dominate grocery shelves, prolonging shelf life but sacrificing essential nutrients and genuine taste.
Buda Juice is pioneering a new category in beverages, UltraFreshTM juice, offering cold-crafted citrus-based drinks that are never heat-treated, never HPP-processed and always cold. We combine clean label simplicity and high-tech automation to enable production processes that deliver a consistently safe fresh product at scale.
Our journey to innovation began by listening carefully. We spoke extensively with grocery buyers, food safety experts, and most importantly, consumers. Their message was clear: while the idea of fresh juice was appealing, they were frustrated by inconsistent quality, unclear labeling, and unreliable claims. Simply put, the juice category was broken. So, we built something better—the UltraFreshTM Juice Category.
Leveraging long-term relationships with local farmers, we source only the highest-quality produce year-round. Our SQF-certified, high-tech production plant adheres strictly to FDA safety protocols, while maintaining a cold-chain from orchard to retail shelf. Every process step preserves the integrity, freshness, and nutritional vitality of our juices.
While our journey began with cold-crafted vegetables, we soon discovered the broader appeal of citrus juices across diverse generations and cultures. Orange juice and lemonade are household staples, evoking joyful memories—like the aroma of fresh-squeezed orange juice synonymous with hearty breakfasts or a sip of crisp lemonade that takes us back to carefree childhood summers. Fresh lime juice, too, adds a delightful twist to countless dishes and beverages, from margaritas to guacamole. Inspired by these timeless favorites, we created the Buda Fresh line, offering versatile, refreshing juices perfect from breakfast through happy hour.
Looking ahead, we believe our opportunity is brilliant. We are not simply capturing market share—we believe we are expanding the refrigerated juice category itself by helping retailers evolve to the next generation of freshness. Fresh products drive grocery store traffic, aligning seamlessly with consumer preferences. We have demonstrated our ability to deliver high product velocity without sacrificing margins, positioning us strongly for scalable growth through our Buda Fresh and private-brand offerings across multiple channels, geographies, and formats.
Buda exists to redefine what fresh juice means. Our vision is to make UltraFreshTM juice the new standard, providing clean beverages in every grocery store across the U.S., without compromise on safety, taste or nutrients. We are deeply proud of our journey so far and incredibly excited for the future. Thank you for joining us in pioneering a fresher and cleaner tomorrow, one bottle at a time.
|
HORATIO LONSDALE-HANDS |
| Co-Founder and Chief Executive Officer | |
| Buda Juice, Inc. |
Explanatory Note
Buda Juice, LLC, the registrant whose name appears on the cover of this registration statement, is a Texas limited liability company. Before the effectiveness of this registration statement, Buda Juice, LLC plans to undertake a statutory conversion to convert into a Delaware corporation and change its name to Buda Juice, Inc. in connection with this Offering (the “Conversion”). The Conversion will be effected in accordance with the Texas Business Organizations Code and the Delaware General Corporation Law. As part of this process, Buda Juice, LLC will adopt a plan of conversion pursuant to Section 10.101 of the Texas Business Organizations Code, which must then be approved in accordance with the Buda Juice, LLC’s governing documents and Texas law. Following approval, Buda Juice, LLC will file a certificate of conversion with the Texas Secretary of State and obtain a certificate of account status from the Texas Comptroller of Public Accounts confirming that it is in good standing for the purposes of conversion. In Delaware, Buda Juice, LLC will file a certificate of conversion and a certificate of incorporation with the Delaware Secretary of State and comply with all applicable Delaware legal requirements, including appointing a registered agent, maintaining a registered office in Delaware, and paying applicable fees and taxes. Upon the Conversion becoming effective pursuant to applicable legal requirements of the States of Texas and Delaware, Buda Juice, Inc. will thereafter exist as a Delaware corporation, continuing as the same entity for all legal purposes, with all of the rights, privileges, and obligations of the Buda Juice, LLC preserved without the need to wind up its affairs. We plan to consummate the Conversion immediately before the closing of this offering. Except as disclosed in the prospectus, the financial statements and selected historical financial data and other financial information included in this registration statement are those of Buda Juice, LLC and do not give effect to the Conversion. Shares of Common Stock of Buda Juice, Inc. are being offered by the accompanying prospectus.
TABLE OF CONTENTS
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Neither we nor the underwriter have authorized anyone to provide any information or to make any representations other than those contained in this prospectus or in any free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for and can provide no assurance as to the reliability of any other information that others may give you. This prospectus is an offer to sell only the shares of Common Stock offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. The information contained in this prospectus or in any applicable free writing prospectus is current only as of its date, regardless of its time of delivery or any sale of our Common Stock. Our business, financial condition, results of operations and prospects may have changed since that date.
For investors outside the United States: Neither we nor the underwriter have done anything that would permit this Offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the Offering of the shares of Common Stock and the distribution of this prospectus outside the United States.
This prospectus contains forward-looking statements that are subject to a number of risks and uncertainties, many of which are beyond our control. See “Risk Factors” and “Special Note Regarding Forward-Looking Statements.”
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ABOUT THIS PROSPECTUS
Except where the context otherwise requires or where otherwise indicated throughout this registration statement, the terms “Buda Juice, LLC,” “Buda Juice, Inc.,” “Buda Juice,”, “Buda Fresh,” “we,” “us,” our,” “our company,” “Company” and “our business” refer to Buda Juice, LLC before the Conversion, and Buda Juice, Inc. after the Conversion. Please see “Corporate Structure and Information” in the “Prospectus Summary” and “Business” sections relating to our reorganization in connection with our initial public offering.
MARKET AND INDUSTRY DATA
This prospectus contains estimates, projections and other information concerning our industry and our business, including data regarding the estimated size of the market, projected growth rates and perceptions and preferences of customers that we have prepared based on industry publications, reports and other independent sources, each of which is either publicly available without charge or available on a subscription fee basis. None of such information was prepared specifically for us in connection with this Offering. Some data also is based on our good faith estimates, which are derived from our management’s knowledge of the industry and from independent sources. These third party publications and surveys generally state that the information included therein has been obtained from sources believed by our management to be reliable, but that the publications and surveys can give no assurance as to the accuracy or completeness of such information. Market and industry data is subject to variations and cannot be verified due to limits on the availability and reliability of data inputs, the voluntary nature of the data gathering process and other limitations and uncertainties inherent in any statistical survey. Although we are responsible for all of the disclosures contained in this prospectus, and we believe the industry and market data included in this prospectus is reliable, we have neither independently verified any of the data from third party sources nor have we ascertained the underlying economic assumptions on which such data is based. Similarly, we believe our internal research is reliable, even though such research has not been verified by any independent sources. The industry and market data included in this prospectus involve a number of assumptions and limitations which we believe to be reasonable, and you are cautioned not to give undue weight to such information.
Unless otherwise expressly stated, we obtained industry, business, market and other data from the reports, publications and other materials and sources listed below. In some cases, we do not expressly refer to the sources from which this data is derived. In that regard, when we refer to one or more sources of this type of data in any paragraph, you should assume that other data of this type appearing in the same paragraph is derived from the same sources, unless otherwise expressly stated or the context otherwise requires.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that can involve substantial risks and uncertainties. All statements other than statements of historical facts contained in this prospectus, including statements regarding our future results of operations and financial position, business strategy, prospective products, product approvals, research and development costs, future revenue, timing and likelihood of success, plans and objectives of management for future operations, future results of anticipated products and prospects, are forward-looking statements. These statements involve known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements.
In some cases, you can identify forward-looking statements by terms such as “anticipate,” “believe,” “contemplate,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “will,” or “would” or the negative of these terms or other similar expressions, although not all forward-looking statements contain these words. Forward-looking statements contained in this prospectus include, but are not limited to, statements about:
| ● | the expected growth of our business and our operations, and the capital resources needed to add new facilities and generally progress our business plan; | |
| ● | projected and targeted capital expenditures and other costs, commitments and revenue; | |
| ● | the ability to obtain financing and the terms under which such financing may be available; | |
| ● | our ability to retain key personnel, including the continued development of a sales and marketing infrastructure; | |
| ● | other competitive pressures; | |
| ● | cost of compliance with laws and regulations; and | |
| ● | other risk factors discussed in the “Risk Factors” section of this prospectus. |
We have based these forward-looking statements on our current expectations and projections about our business, the industry in which we operate, and financial trends that we believe may affect our business, financial condition, results of operations, and prospects. These forward-looking statements are not guarantees of future performance or development. These forward-looking statements speak only as of the date of this prospectus and are subject to a number of risks, uncertainties, and assumptions described in the section titled “Risk Factors” and elsewhere in this prospectus. Because forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified, you should not rely on these forward-looking statements as predictions of future events. The events and circumstances reflected in our forward-looking statements may not be achieved or occur, and actual results could differ materially from those projected in the forward-looking statements. Except as required by applicable law, we do not plan to publicly update or revise any forward-looking statements contained herein, whether as a result of any new information, future events, or otherwise.
In addition, statements like “we believe,” and similar statements reflect our beliefs and opinions on the relevant subject at the time the statement was made. These statements are based upon information available to us as of the date of this prospectus, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain, and you are cautioned not to unduly rely upon them.
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This summary highlights, and is qualified in its entirety by, the more detailed information and financial statements included elsewhere in this prospectus. This summary does not contain all of the information that may be important to you in making your investment decision. You should read this entire prospectus carefully, especially the “Risk Factors,” “Special Note Regarding Forward-Looking Statements,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our financial statements and the related notes included elsewhere in this prospectus, before making an investment decision.
If our listing application is not approved by the New York Stock Exchange (“NYSE”), we will not be able to consummate the Offering.
Overview
Buda Juice is pioneering the UltraFreshTM juice category through our end-to-end cold chain platform that delivers always cold, freshly crafted juice, lemonades and wellness shots to grocery retailers in Texas. We bridge the gap between shelf-stable products and operationally challenging in-store juicing, enabling any retailer to offer truly fresh and safe juice without infrastructure investment or operational complexity.
Our breakthrough lies in solving the industry’s fundamental challenge: delivering UltraFreshTM quality on a retail scale. We maintain continuous 35°F temperature control from fruit to shelf, delivering products with 8-12 day shelf life - long enough for retail distribution yet fresh enough to preserve authentic taste. This eliminates the traditional tradeoffs between shelf life, flavor, and nutrient quality in the industry.
We have validated our model through strong financial performance, growing revenue from $5.6 million in 2022 to $11.2 million in 2024, representing a 41.8% CAGR. Currently operating from our Dallas plant, we are executing a disciplined geographic expansion strategy with planned facilities in South Carolina (2026) and Arizona/Nevada (2027), enabling us to serve a large percentage of the U.S. population.
Our Products
Our product portfolio consists of fresh citrus juice, fresh citrus-based line of lemonades and wellness shot offerings across multiple brand lines and retail customers, all produced using our cold chain process:
Products
| (1) | Buda Juice (Organic) |
| ● | Wellness shots in 2 oz format | |
| ● | Available in 2-pack and 6-pack glass bottle configurations |
| (2) | Buda Fresh – Value-Forward Offering (Non-Organic) |
| ● | 12 oz Lime Juice, 16 oz and 128 oz Lemon Juice | |
| ● | Fresh Orange and Grapefruit juice (16 oz and 52 oz) | |
| ● | Fresh citrus-based Lemonades and Limeades (16 oz and 52 oz) |
| (3) | Private Label Products (Non-organic and Organic) |
| ● | Fresh Citrus Line of products (52 oz) | |
| ● | Fresh citrus-based Lemonades and Limeades (52 oz) |
Our product portfolio demonstrates both brand diversification and private label manufacturing capabilities, allowing us to serve multiple market segments while leveraging our core cold chain production platform. The organic wellness shots represent our premium positioning, and our conventional fresh citrus juices, fresh citrus-based line of lemonades and private label offerings provide broader market access and volume scale in the UltraFreshTM category.
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The strategic focus on citrus as our foundational ingredient provides exceptional product development flexibility and speed-to-market advantages. Since citrus serves as the natural base for our entire portfolio---from fresh orange juice to tasty lemonades---we can rapidly innovate by pairing this stable, high-quality foundation with seasonal fruits, and fun creative ingredients.
Our Competitive Advantages
Our business model creates significant competitive advantages through five key barriers:
End-to-End Cold Chain Infrastructure: Our continuous 35°F cold chain system requires substantial capital investment and specialized expertise.
Asset-Light Model: We have strategically integrated critical production processes while maintaining capital efficiency and outsourcing logistics, providing high quality control and operational flexibility.
Established Grower Relationships: Long-term relationships with citrus growers ensure consistent premium fruit supply at competitive prices, requiring years for competitors to replicate.
Retail Network: Our executive team brings decades of experience and established relationships with major U.S. grocery retailers.
Strategic Retail Model: We serve as a comprehensive solution that eliminates retailers’ need for dedicated clean spaces, specialized equipment, expensive trained labor, and food safety management. This turnkey approach creates significant value, making us a category resource rather than simply a vendor.
Our Market Opportunity
The U.S. fruit juice market represents a substantial opportunity, valued at $55.5 billion in 2024 and projected to reach $77.5 billion by 20331, growing at 3.8% CAGR. Supermarkets and hypermarkets account for 60-70% of total juice sales, aligning directly with our retail-focused model.
Most grocery retailers do not offer freshly squeezed juice due to operational complexities, representing substantial opportunity for our centralized UltraFreshTM model. Nearly two-thirds of Americans consume juice weekly, with Generation Z and Millennials representing the largest consumer segments prioritizing health, fresh, convenience, and flavor variety.
Within our addressable market, the global lemonade segment shows significant momentum with $9.7 billion valuation in 2024, projected to reach $16.7 billion by 2034 (6.3% CAGR). The U.S. represents approximately 27% of this market. With one in three consumers believing natural ingredients make beverages healthier, the freshly squeezed juice category remains underpenetrated with no competitors with significant scale.2
Our Business Strategy
Geographic Expansion: We are executing a disciplined, infrastructure-led expansion strategy through a three-facility hub model designed to serve a large percentage of the U.S. population. Our Dallas facility plant serves 45 million consumers across Texas and surrounding states. Phase Two establishes a Southeast hub in South Carolina (projected to be completed in 2026) potentially serving 75 million consumers, followed by Phase Three’s Western hub in Arizona/Nevada (projected to be completed in 2027) potentially serving 60 million consumers.
Sales and Distribution: We have achieved current growth through a capital-efficient model leveraging strategic relationships and our UltraFreshTM differentiation. As we expand, we are implementing a multi-channel approach including regional and national broker networks while leveraging our leadership team’s extensive industry relationships for direct retail access.
1 Source: IMARC Group, “United States Fruit Juice Market: Industry Trends, Share, Size, Growth, Opportunity and Forecast 2024-2032,” https://www.imarcgroup.com/united-states-fruit-juice-market-statistics
2 Source: Innova Market Insights, “Juice Market Trends in the US,” published ~1.2 years ago, https://www.innovamarketinsights.com/trends/juice-market-trends-in-the-us/
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Customer Concentration and Diversification Progress
A single customer accounted for approximately 97% of our net sales for the six months ended June 30, 2025, compared to 95% and 90% for the years ended December 31, 2024, and 2023, respectively. Although we have initiated diversification efforts and recently began sales with a national retailer, revenues from new customers are not yet material, and we expect customer concentration to remain high in the immediate term. Any reduction, delay, or loss of purchases from this customer would materially and adversely affect our business, financial condition, and results of operations.
Corporate Restructuring and Information
We filed a certificate of formation as a limited liability company in the state of Texas on October 23, 2013.
We plan to undertake a statutory conversion from Buda Juice, LLC a Texas limited liability company to Buda Juice, Inc. a Delaware corporation in connection with this Offering (the “Conversion”). The Conversion will be effected in accordance with the Texas Business Organizations Code and the Delaware General Corporation Law. As part of this process, Buda Juice, LLC will adopt a plan of conversion pursuant to Section 10.101 of the Texas Business Organizations Code, which must then be approved in accordance with the Buda Juice, LLC’s governing documents and Texas law. Following approval, Buda Juice, LLC will file a certificate of conversion with the Texas Secretary of State and obtain a certificate of account status from the Texas Comptroller of Public Accounts confirming that it is in good standing for the purposes of conversion. In Delaware, Buda Juice, LLC will file a certificate of conversion and a certificate of incorporation with the Delaware Secretary of State and comply with all applicable Delaware legal requirements, including appointing a registered agent, maintaining a registered office in Delaware, and paying applicable fees and taxes. Upon the Conversion becoming effective pursuant to applicable legal requirements of the States of Texas and Delaware, Buda Juice, Inc. will thereafter exist as a Delaware corporation, continuing as the same entity for all legal purposes, with all of the rights, privileges, and obligations of the Buda Juice, LLC preserved without the need to wind up its affairs. We plan to consummate the Conversion immediately before the closing of this offering.
Our principal executive offices are located at 4030 Black Gold Drive, Dallas, Texas 75247, and our telephone number is (214) 308 5003. Our website address is www.budajuice.com. Information contained on, or that can be accessed through, our website does not constitute part of this prospectus, and the inclusion of our website address in this prospectus is an inactive textual reference only. Investors should not rely on any such information in deciding whether to purchase our Common Stock.
Implications of Being an Emerging Growth Company
We are an “emerging growth company” as defined in Section 2(a) of the Securities Act of 1933, as amended (the “Securities Act”)in the federal securities laws and we will continue to qualify as an “emerging growth company” until the earliest to occur of: (a) the last day of the fiscal year during which we have total annual gross revenues of $1.235 billion (as such amount is indexed for inflation every five years by the SEC) or more; (b) the last day of our fiscal year following the fifth anniversary of the date of the first sale of our common equity securities pursuant to an effective registration statement under the Securities Act; (c) the date on which we have, during the previous three-year period, issued more than $1.0 billion in non-convertible debt; or (d) the date on which we are deemed to be a “large accelerated filer”, as defined in Exchange Act Rule 12b-2. Therefore, we expect to continue to be an emerging growth company for the foreseeable future.
An emerging growth company may take advantage of specified reduced reporting and other burdens that are otherwise applicable generally to public companies. These provisions include:
● the ability to include only two years of audited financial statements and only two years of related management’s discussion and analysis of financial condition and results of operations disclosure in this prospectus;
● an exemption from the auditor attestation requirement in the assessment of our internal control over financial reporting pursuant to the Sarbanes-Oxley Act of 2002; and
● exemption from mandatory audit firm rotation or a supplement to the auditor’s report in which the auditor would be required to provide additional information about the audit and the financial statements of the Registrant (auditor discussion and analysis).
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Implications of Being a Smaller Reporting Company
We also qualify as a “smaller reporting company,” as such term is defined in Rule 12b-2 under the Exchange Act, and to the extent we continue to qualify as a “smaller reporting company,” after we cease to qualify as an “emerging growth company,” certain of the exemptions available to us as an “emerging growth company” may continue to be available to us as a smaller reporting company, including: (1) not being required to comply with the auditor attestation requirements of Section 404(b) of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”); (2) scaled executive compensation disclosures; and (3) the ability to provide only two years of audited financial statements, instead of three years.
Summary of Risk Factors
Investing in our shares involves significant risks. You should carefully consider all of the information in this prospectus before making an investment in our shares. Below please find a summary of the principal risks we face, organized under relevant headings. These risks are discussed more fully in the section titled “Risk Factors.”
Risks Relating to Our Business and Industry
| ● | We have a limited operating history in new and evolving markets, which may make it difficult to evaluate our current business and future prospects and increase the risk of your investment. | |
| ● | Our historical financial and operating results may not be indicative of future performance, and we may not be able to achieve and sustain the historical level of our profitability. | |
| ● | We operate in a highly competitive beverage industry and may not be able to maintain or grow our market share against larger and better-capitalized competitors. | |
| ● | Our success depends on the continued strength of our brand and consumer perception of the quality, safety, freshness, and healthfulness of our products. | |
| ● | Our future growth depends on the successful development and acceptance of new product and product innovation. | |
| ● | We rely on a limited number of cold chain-dependent production and distribution facilities, and any disruption—due to mechanical failure, labor shortages, natural disasters, or other causes—could materially affect our operations. | |
| ● | Our business model depends on maintaining strict cold chain logistics from sourcing through delivery, which adds operational complexity, cost, and vulnerability to temperature excursions or logistical delays. | |
| ● | We depend on the availability, cost, and quality of fresh citrus and other raw ingredients, and agricultural or climate-related disruptions could adversely affect our supply and margins. | |
| ● | Our production facilities must maintain compliance with rigorous food safety, Juice HACCP, SQF, USDA Organic Certification, Kosher Certification and regulatory standards including the U.S. Food and Drug Administration (FDA) and the Texas Department of State Health Services (DSHS); any lapse or contamination event could result in product recalls, liability, regulatory enforcement, or reputational harm. |
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| ● | We face risks associated with managing short shelf-life products, which increases our exposure to inventory spoilage, write-downs, and stockouts. | |
| ● | Changes in consumer preferences—particularly away from fresh juice, citrus beverages, or premium-priced fresh products—could adversely affect demand for our offerings. | |
| ● | Our growth strategy depends on geographic expansion, which requires securing and equipping new facilities and may be costly and complex. | |
| ● | One customer accounts for 97% of our net sales for the six months ended June 30, 2025. Therefore, we are highly reliant on a single customer for our sales, and the loss of this customer would have a material adverse impact on our financial condition. | |
| ● | We depend on a limited number of suppliers for our products, and the loss of one or more of these suppliers could disrupt our operations, increase our costs, or otherwise adversely affect our business. | |
| ● | Our growth depends on expanding distribution through new retail relationships and deeper penetration with existing accounts; failure to secure or maintain those relationships on favorable terms may limit our revenue potential. | |
| ● | We depend heavily on third-party retailers and in some cases brokers, to market and sell our products; their shelf prioritization, execution, or financial health may directly impact our performance. | |
| ● | Our high-tech driven, centralized production systems are core to our efficiency and quality standards; technical failures or cybersecurity incidents could disrupt operations or result in data loss. | |
| ● | We rely on third-party logistics providers for delivery of our products to our product outlets; any breakdown or delay could damage product integrity and customer trust. | |
| ● | We may face difficulties in forecasting demand accurately, which could lead to excess inventory, underproduction, missed revenue opportunities, or higher working capital needs. | |
| ● | If we fail to effectively manage our growth, including geographic expansion and increased retail distribution, our operations and customer experience could suffer. | |
| ● | We may be subject to legal challenges related to the accuracy of our health and wellness claims. | |
| ● | Our future success depends on our ability to attract, retain, and develop key employees and senior leadership. | |
| ● | We may require additional capital to support our growth strategy or operations, and such financing may not be available on acceptable terms or at all, which could limit our ability to scale. | |
| ● | Disruptions in the worldwide economy may adversely affect our business, financial condition, results of operations and cash flows | |
| ● | Climate change, or legal or market measures to address climate change, may negatively affect our business and operations. | |
| ● | Fluctuations in business conditions may unexpectedly impact our reported results of operations and financial condition. | |
| ● | We will incur increased costs as a result of operating as a public company, and our management will be required to devote substantial time to new compliance initiatives and corporate governance practices. |
Risks Relating to Legal and Regulatory Requirements
| ● | Food safety and food-borne illness incidents or other safety concerns may materially adversely affect our business. | |
| ● | Failure to comply with federal, and state laws and regulations relating to data privacy, data protection, advertising and consumer protection, or the expansion of current or the enactment of new laws or regulations relating to data privacy, data protection, advertising and consumer protection, could adversely affect our business, financial condition, results of operations and cash flows. | |
| ● | Litigation or legal proceedings could expose us to significant liabilities and have a negative impact on our reputation or business. | |
| ● | Legislative or regulatory changes that affect our products, including new taxes, could reduce demand for products or increase our costs. | |
| ● | Failure to comply with requirements to design, implement and maintain effective internal controls could have a material adverse effect on our business and stock price. |
| 5 |
Risks Relating to Our Information Technology and Intellectual Property
| ● | We rely heavily on our information technology systems, as well as those of our third-party vendors and businesses, for our business to effectively operate and to safeguard confidential information; any significant failure, inadequacy, interruption or data security incident could adversely affect our business, financial condition, results of operations and cash flows. | |
| ● | We may be unable to adequately protect our intellectual property or may face claims that we infringe the intellectual property of others. |
Risks Relating to This Offering
| ● | There has been no prior public market for our Common Stock. An active market may not develop or be sustainable, and you may not be able to resell your shares at or above the initial public offering price. | |
| ● | The price of our Common Stock may be volatile, and purchasers of our Common Stock could incur substantial losses. | |
| ● | A portion of the proceeds from the shares offered in this offering will be used to redeem shares of common stock held by Horatio Lonsdae-Hands, one of our co-founders and the Chief Executive Officer of the Company. | |
| ● | A substantial portion of our total issued and outstanding shares may be sold into the market at any time. This could cause the market price of our Common Stock to drop significantly, even if our business is doing well. | |
| ● | If our listing application for our Common Stock is not approved by the New York Stock Exchange, we will not be able to consummate the Offering and will terminate the Offering. | |
| ● | We are authorized to issue “blank check” preferred stock without stockholder approval, which could adversely impact the rights of holders of our Common Stock. | |
| ● | For as long as we are an emerging growth company, we will not be required to comply with certain reporting requirements, including those relating to accounting standards and disclosure about our executive compensation, that apply to other public companies. | |
| ● | We have broad discretion in the use of our net proceeds from the Common Stock sold in the offering and may not use them effectively. | |
| ● | We do not intend to pay dividends on our Common Stock and consequently, your only opportunity to achieve a return on your investment is if the price of our Common Stock appreciates. | |
| ● | There has been no independent valuation of our stock, which means that our Common Stock may be worth less than the offering price in the offering. | |
| ● | If securities industry analysts do not publish research reports on us, or publish unfavorable reports on us, then the market price and market trading volume of our Common Stock could be negatively affected. | |
| ● | Delaware law and provisions in our certificate of incorporation and bylaws could make a merger, tender offer or proxy contest more difficult, limit attempts by our stockholders to replace or remove our current management and depress the market price of our Common Stock. |
| 6 |
| Common Stock offered by us | 2,666,667 shares of Common Stock. | |
| Initial public offering price | It is currently estimated that the initial public offering price will be between $7.50 and $9.00 per share with a $7.50 assumed initial public offering price. | |
| Common Stock outstanding immediately before the Offering | 10,000,000 shares. | |
| Over-Allotment option | We have granted the underwriter an option for a period of 45 days from the date of this prospectus to purchase an additional 400,000 shares of Common Stock (15% of the shares sold in the IPO) from the Company at the initial public offering price (less underwriting discounts and commissions) to cover over-allotments, if any. | |
| Common Stock to be outstanding after this Offering (1) | 12,666,667 shares (or 13,066,667 shares if the underwriter exercises the option to purchase additional shares from us in full). | |
| Use of Proceeds | We estimate that the net proceeds to the Company from the sale of our offered shares will be approximately $18,083,179 or $20,873,179, if the underwriter exercises its over-allotment option to purchase from the Company additional shares in full, after deducting estimated underwriting discounts and commissions and the estimated offering expenses payable by us, assuming an initial public offering price of $7.50 per share. See “Use of Proceeds” on page 32.
We intend to use the proceeds from this Offering to develop and furnish two new plants in South Carolina and Arizona/Nevada, expand our Texas plant, redeem 500,000 shares of Common Stock of our Chief Executive Officer (the “Stock Redemption”) at $7.50 per share, and for general corporate purposes, including working capital. See “Use of Proceeds” | |
| Lock-up agreements | We have agreed with the underwriter not to offer for sale, issue, sell, contract to sell, pledge, or otherwise dispose of any of our Common Stock or securities convertible into or exercisable or exchangeable for Common Stock, or to file or cause to be filed any registration statement with the Commission relating to any such securities, for a period of 12 months after the date of this prospectus, without the prior written consent of the underwriter. See “Underwriting” section on page 74.
In addition, our officers, directors and all our current stockholders have agreed to enter into customary “lock-up” agreements with the underwriter, pursuant to which they have agreed not to offer (subject to exceptions), sell, contract to sell, pledge, or otherwise dispose of any securities of the Company for a period of 12 months following the closing date of this Offering, without the prior written consent of the underwriter. |
| 7 |
Underwriter’s Warrants
|
We have agreed to issue MDB Capital the underwriter’s warrants (the “Underwriter’s Warrants”) to purchase a number of shares of Common Stock equal in the aggregate to ten percent (10%) of the total number of shares of Common Stock sold by the Company in this Offering. The Underwriter’s Warrants will be exercisable at a per share exercise price equal to 125% of the public offering price per share sold in this Offering. The registration statement also registers the shares of Common Stock issuable upon exercise of the Underwriter’s Warrants. The Underwriter’s Warrants have been deemed compensation by the Financial Industry Regulatory Authority (“FINRA”) and are therefore also subject to a 180-day lock-up. Except as permitted by Rule 5110, the Underwriter (or permitted assignees under the rule) will not sell, transfer, assign, pledge, or hypothecate the Underwriter’s Warrants or the securities underlying the Underwriter’s Warrants, and will not engage in any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the option or the underlying securities for a period of 180 days from the commencement of sales under this prospectus. See “Underwriting” for more information.
| |
| Risk factors | See “Risk Factors” on page 10 for a discussion of certain factors to consider carefully before deciding to purchase any shares of our Common Stock. | |
| Proposed NYSE Symbol | We have applied to have our Common Stock listed on NYSE under the symbol “BUDA”. No assurance can be given that our application will be approved. |
| (1) | The number of shares of our Common Stock to be outstanding upon completion of this Offering is based on 10,000,000 shares of our Common Stock outstanding as of the date of this prospectus, and excludes: |
| ● | 266,667 (306,667 shares of common stock if the full amount of the overallotment option is exercised) shares of Common Stock issuable upon the exercise of the Underwriter’s Warrants; and | |
| ● | 1,800,000 shares of Common Stock issuable upon exercise or conversion of outstanding convertible securities, options and reserved for issuance under the equity incentive plan to be adopted by the Company. |
Unless otherwise indicated, this prospectus reflects and assumes (i) no exercise by the underwriter of its over-allotment option, and (ii) no issuance or exercise of the warrants or stock options described above.
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The following tables set forth our summary financial data for the periods indicated. We have derived the following summary of our statements of operations data for the years ended December 31, 2024 and 2023 and the balance sheet data as of December 31, 2024 and 2023 from our audited financial statements included elsewhere in this prospectus. We have derived the following summary of our statements of operations data for the nine months ended September 30, 2025 and 2024 and balance sheet data as of September 30, 2025, from our unaudited financial statements included elsewhere in this prospectus. We have prepared the financial statements on the same basis as the audited financial statements and have included all adjustments, consisting only of normal recurring adjustments that, in our opinion, are necessary to state fairly the financial information set forth in those statements. Our historical results are not necessarily indicative of the results that should be expected for any future period. You should read the following summary financial data in conjunction with the other financial information contained in this prospectus, including under “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” as well as our financial statements and the related notes included elsewhere in this prospectus.
Statements of Operations
Year Ended December 31, | Nine Months Ended September 30, | |||||||||||||||
| 2024 | 2023 | 2025 | 2024 | |||||||||||||
| (in thousands, except per share data) | ||||||||||||||||
| Net sales | $ | 11,274 | $ | 9,380 | $ | 9,714 | $ | 8,502 | ||||||||
| Cost of goods sold | 6,065 | 5,289 | 5,301 | 4,546 | ||||||||||||
| Gross profit | 5,209 | 4,091 | 4,413 | 3,956 | ||||||||||||
| Operating expenses: | ||||||||||||||||
| Delivery and handling expense | 501 | 475 | 413 | 414 | ||||||||||||
| Selling, general and administrative expense | 1,296 | 1,202 | 1,211 | 983 | ||||||||||||
| Total operating expenses | 1,798 | 1,677 | 1,624 | 1,397 | ||||||||||||
| Income from operations | 3,411 | 2,414 | 2,789 | 2,559 | ||||||||||||
| Other income (expense): | ||||||||||||||||
| Other income | 252 | 26 | 34 | 106 | ||||||||||||
| Interest income / (expense), net | (89 | ) | (178 | ) | 35 | (55 | ) | |||||||||
| Total other income (expense) | 163 | (152 | ) | 69 | 51 | |||||||||||
| Net income | $ | 3,574 | $ | 2,262 | $ | 2,858 | $ | 2,610 | ||||||||
| Unaudited proforma earnings per common share [1] | ||||||||||||||||
| Basic | $ | 0.28 | $ | 0.18 | $ | 0.23 | $ | 0.21 | ||||||||
| Diluted | $ | 0.20 | $ | 0.13 | $ | 0.16 | $ | 0.15 | ||||||||
| Unaudited proforma weighted average shares outstanding | ||||||||||||||||
| Basic | 10,000 | 10,000 | 10,000 | 10,000 | ||||||||||||
| Diluted | 14,000 | 14,000 | 14,000 | 14,000 | ||||||||||||
[1] Adjusted for federal corporate tax rate of twenty-one percent to reflect conversion from LLC to Inc.
Balance Sheet Data
(in thousands)
Year Ended December 31, | Nine Months Ended September 30, | |||||||||||
| 2024 | 2023 | 2025 | ||||||||||
| (in thousands, except per share data) | ||||||||||||
| Cash and cash equivalents | $ | 1,887 | $ | 1,426 | $ | 2,062 | ||||||
| Total assets | 3,731 | 2,965 | 5,129 | |||||||||
| Total liabilities | 575 | 2,564 | 1,297 | |||||||||
| Member’s equity | 5,505 | 6,324 | 3,323 | |||||||||
| Accumulated equity(deficit) | (2,349 | ) | (5,923 | ) | 509 | |||||||
| Total equity | 3,156 | 401 | 3,832 | |||||||||
| Total liabilities and member’s equity | $ | 3,731 | $ | 2,965 | $ | 5,129 | ||||||
| 9 |
You should carefully consider the risks and uncertainties described below and the other information in this prospectus, including our financial statements and related notes appearing elsewhere in this prospectus and in the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” before deciding whether to invest in our Common Stock. Our business, financial condition, results of operations or prospects could be materially and adversely affected if any of these risks occurs, and as a result, the market price of our Common Stock could decline and you could lose all or part of your investment. This prospectus also contains forward-looking statements that involve risks and uncertainties. See “Special Note Regarding Forward-Looking Statements.” Our actual results could differ materially and adversely from those anticipated in these forward-looking statements as a result of certain factors, including those set forth below.
Risks Relating to Our Business and Industry
We have a limited operating history in new and evolving markets, which may make it difficult to evaluate our current business and future prospects and increase the risk of your investment.
We were organized in October 2013 starting with our own retail fronts in July 2014. In 2020, we shifted our business model to distribution through large retailers directly, and since then we have operated under our current business model and offering our current product portfolio. Our operating history is limited to Texas and surrounding states making it difficult to evaluate our future prospects and plan for growth outside our current region of distribution. Accordingly, our business and future prospects may be difficult to evaluate, the extent to which demand for our products will increase, if at all, could be impacted by our ability to do the following:
| ● | attract new customers to our products; | |
| ● | acquire and maintain market share; | |
| ● | attract, integrate, train and retain leadership and other highly qualified personnel; | |
| ● | achieve or manage growth in our operations particularly around the logistics of cold chain distribution and distance from production facilities; | |
| ● | successfully develop and commercially market new products; | |
| ● | timely address the increasingly ‘fresh’ market needs of our customers; | |
| ● | secure sufficient quantities or cost-effective production of our products due to supply chain challenges; | |
| ● | generate sufficient revenue to achieve or maintain profitability; and | |
| ● | access initial and additional capital when required and on reasonable terms. |
If we fail to address these and other challenges, risks and uncertainties successfully, our business, results of operations, prospects and financial condition would be materially harmed.
Our historical financial and operating results may not be indicative of future performance, and we may not be able to achieve and sustain the historical level of our profitability.
For the nine months ended September 30, 2025 and 2024 and the years ended December 31, 2024 and 2023, we recorded net profit of $2.9 million, $2.6 million, $3.5 million and $2.2 million, respectively. However, our historical financial and operating results may not be indicative of our future performance. Our future profitability will depend on a variety of factors, including the performances of our products, competitive landscape, prices of supplies, customer preferences and macroeconomic and regulatory environment. You should not rely on our historical results to predict the future performance of our ordinary shares.
| 10 |
We operate in a highly competitive beverage industry and may not be able to maintain or grow our market share against larger and better-capitalized competitors.
The beverage industry is highly competitive and includes numerous national, regional, and local companies, many of which have significantly greater resources, more established brand recognition, and more sophisticated distribution capabilities than we do. Our competitors include both large multinational beverage manufacturers as well as emerging companies focused on health-conscious or functional beverages, including cold-crafted juices, smoothies, kombuchas, flavored waters, and plant-based drinks. These companies often have well-established relationships with distributors and retailers, as well as larger marketing budgets that enable them to promote their products more aggressively and secure more prominent shelf space in high-traffic retail locations.
In addition, some of our competitors own or operate their own production and logistics infrastructure, which may reduce their cost to serve relative to our model. Others may be vertically integrated or have exclusive arrangements with growers, co-packers, or cold chain distributors, allowing them to respond more quickly or flexibly to market conditions.
Many traditional juice brands are also expanding into premium or “better-for-you” categories, including fresh or cold-pressed product lines, leveraging their scale and retail presence to rapidly introduce alternatives to Buda Juice. If these competitors are successful in mimicking the freshness, taste, or branding of our products—or if they invest heavily in marketing to shift consumer perception—we may face declining shelf space, reduced sales velocity, and difficulty retaining or expanding our retail footprint.
If we are unable to compete effectively on the basis of product quality, innovation, pricing, distribution, consumer awareness, or customer support, we may lose market share, experience slower growth, or fail to achieve or maintain profitability. Competitive pressures may also result in price reductions, increased promotional spending, and higher customer acquisition costs, which could adversely affect our margins and overall financial performance.
Our success depends on the continued strength of our brand and consumer perception of the quality, safety, freshness, and healthfulness of our products.
Our brand is integral to our business strategy and is critical to maintaining and expanding our customer base, attracting new retail customers, and distinguishing ourselves in a crowded beverage marketplace. We believe that our future growth depends in part on our ability to continue building a trusted and recognizable brand associated with freshness, clean-label ingredients, and better for you conscious consumer values. Damage to our brand or reputation, whether real or perceived, could materially harm our business.
Consumer perception of our brand is shaped by a number of factors, including the taste and freshness of our products, the transparency and simplicity of our ingredient lists, and our ability to maintain product quality throughout our cold chain. Any actual or perceived failure in these areas—such as a lapse in food safety, inconsistency in quality, —could lead to a loss of consumer confidence, negative publicity, and harm to our brand equity.
In addition, the rise of social media and third-party review platforms increases the risk that negative experiences with our products or customer service can be rapidly amplified, regardless of merit. Public perception may also be influenced by campaigns from interest groups, changing societal views, or evolving health trends that question the benefits of fruit-based beverages or challenge the sugar content in natural juices.
Maintaining and enhancing the strength of our brand will require continued investment in marketing, innovation, supply chain integrity, and customer experience. If we fail to continue building brand equity or if consumer perceptions change in a way that diminishes our positioning, our sales could decline, our growth prospects could be impaired, and our business and financial condition could be materially adversely affected.
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Our future growth depends on the successful development and acceptance of new product and product innovation.
To remain competitive in the dynamic beverage industry, we must continually develop and introduce new products and potentially expand into adjacent product categories. Consumer preferences evolve rapidly, and the failure to anticipate or respond to these trends could adversely affect our ability to attract and retain customers.
Developing new products involves substantial time and investment, including market research, formulation, and marketing campaigns. There is no assurance that any new flavor or products or product variation will achieve market acceptance or generate revenue at anticipated levels. For example, a product that tests well in pilot markets may not scale successfully across broader geographies or retail channels.
Additionally, any strategic shift may require us to modify our production capabilities, supply chain logistics, and branding, all of which involve execution risk. If we fail to execute innovation initiatives effectively or align them with consumer demand, our growth prospects could be limited and our brand diluted.
We rely on a limited number of cold chain-dependent production and distribution facilities, and any disruption—due to mechanical failure, labor shortages, natural disasters, or other causes—could materially affect our operations.
Our ability to produce and deliver UltraFreshTM, cold-crafted juice products depends heavily on the uninterrupted operation of a limited number of production plants that are specifically designed to support our strict cold chain requirements. Currently, our manufacturing footprint includes our primary facility in Texas, with additional planned facilities in South Carolina (East Coast) and Arizona/Nevada (West Coast) in early planning stages of development. Because our product integrity, shelf life, and brand promise are highly dependent on maintaining low temperatures throughout the production and distribution process, any disruption at one or more of these plants could significantly impair our ability to meet customer demand.
Disruptions to our plants or distribution channels may occur for a variety of reasons, including equipment or refrigeration failure, utility outages, cybersecurity breaches, supply shortages, labor disputes, staffing challenges, pandemics or health emergencies, transportation delays, or natural disasters such as floods, hurricanes, or extreme temperatures. Any such disruption could cause product spoilage, delays in order fulfillment, reduced product availability, and lost revenue. Given our short shelf-life and just-in-time inventory model, we may have limited ability to shift production or reroute distribution without impacting our ability to supply product, guarantee freshness and meet customer satisfaction.
Moreover, our ability to scale relies on the successful commissioning and ramp-up of additional cold-crafting hubs. Delays in the development or regulatory approval of future plants, or failures to operate those plants at expected efficiency levels, could constrain our capacity and slow geographic expansion.
We currently have one manufacturing and cold chain distribution plant, located in Texas. We do not maintain redundant manufacturing or cold chain distribution infrastructure. Insurance coverage may not fully compensate us for losses associated with operational interruptions. As a result, any significant disruption at our production and logistics plant could materially and adversely affect our business, financial condition, and operating results.
Our business model depends on maintaining strict cold chain logistics from sourcing through delivery, which adds operational complexity, cost, and vulnerability to temperature excursions or logistical delays.
A defining feature of our business and brand promise is the continuous cold chain we maintain from the sourcing of raw ingredients through production, storage, transportation, and final retail delivery. This cold chain infrastructure is essential to preserving the safety, freshness, nutritional value, and shelf life of our products without the use of pasteurization, preservatives, or heat treatment. However, operating within such a temperature-controlled environment chain adds significant logistical complexity, introduces higher operating costs, and increases our exposure to risk at every step in the supply chain.
Unlike shelf-stable or ambient beverage brands, we must ensure that our products remain at or below specified temperature thresholds throughout the entire sourcing, production and distribution lifecycle. Any failure in refrigeration—whether during transit, in the production facility, within a third-party warehouse, or on retail shelves—can compromise product safety and quality, resulting in spoilage, product loss, and reputational damage. Because our products have a relatively short shelf life and limited temperature tolerance, even brief temperature excursions or small delays in shipment can materially impact sell-through and customer satisfaction.
| 12 |
Furthermore, our reliance on third-party refrigerated carriers means that we are dependent on the performance, capacity, and pricing of these providers, all of which are outside our direct control. Increases in cold freight costs, labor shortages among drivers, supply chain disruptions, or infrastructure failures (e.g., power outages, natural disasters) may increase our operational expenses or limit our ability to service new or existing geographies.
As we expand into new markets, maintaining this high-integrity cold chain across broader distances and volumes may increase the risk of errors or delays. If we are unable to consistently execute our cold chain requirements, the value proposition of our brand could be compromised, resulting in adverse effects on our reputation, customer relationships, and financial performance.
We have depended on a single customer for a substantial portion of our net sales, and the loss of this customer or a reduction in their purchases would materially and adversely affect our business, results of operations, and financial condition.
We have relied on one customer, which represented approximately 97% of our net sales for the nine months ended September 30, 2025. This one customer represented 95% and 90% of net sales for the fiscal years ended December 31, 2024 and 2023, respectively. Although we have recently begun to diversify our customer base to include certain national grocery chains and anticipate increasing sales to these and other customers over the next year, our current business and results of operations remain highly dependent on a limited number of customers.
The loss of this significant customer, a reduction in their purchases of our products, or an adverse change in the terms of our commercial relationship could materially reduce our revenue and cash flow. In addition, because our sales to this customer have represented a substantial majority of our revenue, even temporary disruptions or delays in orders and payment could have a material adverse effect on our operating results. Our efforts to diversify our customer base may not succeed as quickly or as fully as we expect, and there is no assurance that new customers will purchase products in volumes sufficient to offset any decline in sales to our historical customer. If we are unable to establish relationships with additional customers, or maintain favorable relationships with existing customers, our business, financial condition, and results of operations could be materially and adversely affected.
We depend on a limited number of suppliers for our products, and the loss of one or more of these suppliers could disrupt our operations, increase our costs, or otherwise adversely affect our business.
Our suppliers are located in California, Arizona, and Mexico. Some of these suppliers have represented more than 10% of our product purchases in a given year. As a result, our business depends in part on a limited number of suppliers, and our operations could be disrupted if we were to lose a key supplier, experience delays or shortages in supply, or face price increases from such suppliers. Any disruption in supply could negatively impact our ability to meet customer demand and may result in a loss of revenue and customer relationships.
Although we rely on a limited number of suppliers, we believe that our supplier base for our raw materials is flexible. For example, in 2024 Full Harvest Technologies, Inc., and C.K.S. Packaging, Inc., accounted for more than 10% of our purchases, while in 2023, neither accounted for more than 10%. This shift demonstrates that we are able to source based on product quality and have the ability to substitute suppliers if necessary. However, there is no guarantee that alternative suppliers would be able to meet our needs in a timely manner, on favorable terms, or at comparable quality standards. If we are unable to obtain products from our existing suppliers or identify suitable substitutes on acceptable terms, our business, financial condition, and results of operations could be materially and adversely affected.
We depend on the availability, cost, and quality of fresh citrus and other raw ingredients, and agricultural or climate-related disruptions could adversely affect our supply and margins.
Our products rely heavily on high-quality, fresh citrus which are agricultural commodities subject to seasonal variability, environmental conditions, possible tariffs, and supply chain constraints. The availability, quality, and cost of these ingredients are critical to our ability to produce juices that meet our freshness, taste, and nutritional standards. Disruptions in the supply of citrus—particularly oranges, grapefruit, lemons, and limes— could significantly impact our production volumes, pricing, and gross margins.
Citrus crops are especially vulnerable to a variety of natural and external forces, including drought, excessive rainfall, hurricanes, wildfires, frost, pests, and diseases such as citrus greening (Huanglongbing). Changes in climate patterns or increased frequency of extreme weather events can reduce yields, delay harvests, or impact the flavor and quality of fruit available for processing. Additionally, geopolitical events, changes in trade policy, labor shortages in farming regions, and transportation bottlenecks may further constrain supply or increase costs.
We rely on third-party growers and suppliers to meet our volume and quality requirements, and we do not typically enter into long-term contracts for agricultural inputs. As a result, we are subject to spot market fluctuations and may face price volatility, especially during periods of constrained supply. If we are unable to secure sufficient high-quality fruit at acceptable prices, we may be forced to reformulate products, absorb higher input costs, limit production, or raise prices—any of which could negatively affect our brand, customer relationships, and financial performance.
Additionally, sourcing pressure could limit our ability to support innovation, new product launches, or expansion into new geographies if we are unable to scale raw ingredient supply in alignment with our growth. Any material disruption in the availability or cost of citrus or other key raw materials could adversely impact our results of operations, cash flows, and long-term strategic objectives.
| 13 |
Our production facilities must maintain compliance with rigorous food safety, Juice HACCP, SQF, USDA Organic Certification, Kosher Certification and regulatory standards including the U.S. Food and Drug Administration (FDA) and the Texas Department of State Health Services (DSHS); any lapse or contamination event could result in product recalls, liability, regulatory enforcement, or reputational harm.
The production, handling, and distribution of food and beverage products are subject to extensive regulation by the U.S. Food and Drug Administration (FDA), and various state authorities. In addition, our operations must comply with globally recognized food safety standards such as Juice Hazard Analysis and Critical Control Points (Juice HACCP) and Safe Quality Food (SQF) certification. Our ability to maintain these certifications and comply with evolving food safety regulations is essential to our continued operation and brand credibility.
We are subject to the risk of contamination, spoilage, adulteration, mislabeling, or other food safety incidents that could result from raw ingredient issues, equipment failure, human error, or breakdowns in cold chain integrity. Because our products are perishable and minimally processed, with no added preservatives or pasteurization, they are particularly sensitive to contamination risk. Even with rigorous quality control systems in place, we cannot guarantee that all products will meet applicable standards at all times.
A violation of applicable food safety laws or a failure to maintain required certifications could lead to product recalls, temporary facility closures, civil fines, or other enforcement actions. In the event of an actual or alleged contamination incident, we could face consumer lawsuits, class action claims, regulatory scrutiny, or negative publicity that could damage our brand and customer trust. Product recalls—whether voluntary or mandatory—can be costly, disruptive, and damaging to customer relationships and long-term brand equity.
Furthermore, heightened public concern around food safety, supply chain transparency, or ingredient sourcing could increase regulatory requirements or consumer expectations over time. If we fail to maintain compliance or experience a significant food safety incident, our business, financial condition, and reputation could be materially and adversely affected.
We face risks associated with managing short shelf-life products, which increases our exposure to inventory spoilage, write-downs, and stockouts.
Our products are cold-extracted and made, perishable beverages with a relatively short shelf life, often measured in days or weeks rather than months. Unlike most shelf-stable or pasteurized beverages, our products must be stored and transported under continuous refrigeration and sold within a narrow time window to ensure safety, quality, and consumer satisfaction. This inherently increases our exposure to inventory management challenges, including spoilage, obsolescence, and the risk of stockouts at the retail level.
Short shelf-life products require tight coordination between production planning, inventory levels, and demand forecasting. Any misalignment between supply and demand—whether due to inaccurate forecasts, changes in consumer purchasing behavior, delays in distribution, or disruptions in retail execution—can result in either excess inventory that must be discounted or discarded, or insufficient inventory that limits sales and damages customer satisfaction.
In addition, the just-in-time nature of our production model limits our ability to build buffer inventory to accommodate demand spikes, seasonal promotions, or expansion into new geographies. If we overproduce relative to sell-through, we may be forced to recognize inventory write-downs or incur additional waste and disposal costs. If we underproduce, we risk out-of-stock situations that can erode consumer trust, reduce retailer confidence, and result in lost sales opportunities.
As we scale and introduce new products or enter new distribution channels, the complexity of managing a high-velocity, short shelf-life inventory will increase. If we are unable to accurately forecast demand, maintain optimal inventory turnover, or execute logistics and replenishment consistently, our operating results and brand reputation could be materially and adversely affected.
Changes in consumer preferences—particularly away from fresh juice, citrus beverages, or premium-priced fresh products—could adversely affect demand for our offerings.
Our success depends on the continued consumer interest in fresh, cold-crafted, clean-label juice products, particularly those made from citrus fruits. The beverage industry is subject to rapid and unpredictable shifts in consumer trends, including evolving perceptions of health and wellness, ingredient preferences, price sensitivity, and sustainability concerns. If consumer demand for fresh juice products declines, or if preferences shift toward alternative beverages—such as sparkling waters, functional drinks, plant-based milks, or ready-to-drink coffees—our sales and growth prospects could be adversely affected. While many consumers value the clean label and quality benefits of fresh products, others may perceive premium-priced fresh products as discretionary, particularly in times of economic uncertainty or inflationary pressure.
Additionally, trends are often cyclical and influenced by social media, influencer marketing, and shifting scientific research. A change in public perception—whether driven by emerging nutritional data, changing dietary guidelines, or consumer advocacy—could reduce demand for juice generally, or citrus-based beverages specifically.
If we fail to anticipate or respond effectively to changes in consumer preferences, or if our brand does not resonate with evolving fresh, or value-driven trends, our products may lose relevance in the marketplace. As a result, our growth could slow, our competitive positioning could erode, and our business, financial condition, and results of operations could be materially harmed.
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Our growth strategy depends on geographic expansion, which requires securing and equipping new facilities and may be costly and complex
A key component of our growth strategy is expanding our geographic footprint to reach new retail relationships and consumers in additional markets. Expansion will require us to identify, lease the space, and build out new production plants in strategic locations, currently projected to be in South Carolina and Arizona/Nevada. However, suitable real estate—particularly cold chain–capable infrastructure—may be difficult to secure at reasonable rates, especially in competitive industrial markets.
Leasing and developing new plants involves significant upfront investment, including build-out costs, refrigeration systems, production equipment, regulatory compliance, and workforce training. We may also face delays due to zoning, permitting, or construction bottlenecks, which could postpone our entry into new markets or strain existing operations.
Furthermore, as we grow into new regions, we may face logistical challenges, fragmented supply chains, and inconsistent customer preferences, which could limit our ability to replicate success at scale. If we are unable to secure and equip facilities in a timely and cost-effective manner, or if new locations fail to operate efficiently or meet demand, our expansion plans and overall business performance could be adversely affected.
Our growth depends on expanding distribution through new retail relationships and deeper penetration with existing accounts; failure to secure or maintain these relationships on favorable terms may limit our revenue potential.
Our ability to grow revenue, expand geographically, and build brand equity depends in large part on our success in securing new retail distribution and increasing the number of stores, SKUs, and shelf placements with existing retail outlets. We currently rely on a concentrated group of national and regional grocery chains to carry our products, and as we expand into new markets, our growth will require the onboarding of additional large-format retailers, club stores, value grocers, and specialty channels.
Retailers have significant discretion in determining which products to stock, the amount of shelf space allocated, and the timing and terms of any listings. In addition, our products may be tested in limited regions or stores before receiving broader distribution, which can lengthen the sales cycle or limit scalability.
Retailers also periodically reset planograms or adjust category strategies, which may result in discontinuation of underperforming SKUs, reallocation of shelf space to competitors, or a shift in focus away from cold-crafted juice entirely. If our products do not meet velocity expectations, or if we fail to deliver consistent fill rates or quality, retailers may reduce our footprint or terminate distribution.
Moreover, consolidation in the retail sector may increase the bargaining power of large chains and further intensify competition for shelf space. If we are unable to enter into new retail relationships or grow existing accounts on commercially favorable terms, or if any of our major retail customers reduce or discontinue their purchases, our ability to scale could be constrained. This could materially and adversely affect our business, financial condition, and future growth prospects.
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We depend heavily on third-party retailers and in some cases brokers, to market and sell our products; their shelf prioritization, execution, or financial health may directly impact our performance.
Our ability to generate revenue and grow market share depends significantly on the performance of third-party retailers who control the placement, merchandising, promotion, and replenishment of our products. We do not own or operate our own retail stores. As we expand our distribution, we will rely on grocery chains, club stores, specialty grocers, and foodservice outlets to offer our products to consumers. Likewise, we will depend on regional and national transportation providers to fulfill orders and deliver our products from our cold-storage plant to retail locations while maintaining temperature integrity.
These third parties operate independently and may make decisions based on their own internal priorities, financial performance, or competitive dynamics, rather than our interests. We have limited control over how our products are stocked or presented in stores, whether they are promoted effectively, or how quickly inventory is replenished. Poor in-store execution—such as inconsistent stocking, limited product visibility, or inadequate cold storage space—can negatively impact sales velocity and consumer perception.
If retailers choose to reduce shelf space allocated to our UltraFreshTM products or reallocate space to competing products, our visibility and sales may decline. Similarly, if our transportation providers fail to deliver product in a timely and temperature-compliant manner, or if they experience financial instability, labor disruptions, or operational failures, it could result in product spoilage, missed shipments, or damaged customer relationships.
In addition, many of our retail customers sell competing products, and they may prioritize their own private-label offerings or those of larger, more established brands. We must continuously demonstrate value and performance to maintain shelf presence and retailer commitment.
Any significant disruption in the performance or relationships with these third-parties—whether due to execution failures, strategic realignment, or financial distress—could materially and adversely affect our sales, brand reputation, and financial results.
Our high-tech driven, centralized production systems are core to our efficiency and quality standards; technical failures or cybersecurity incidents could disrupt operations or result in data loss.
We rely on advanced, high-tech powered technologies across our centralized production system to drive operational efficiency, standardize quality, manage inventory, and ensure traceability throughout our cold chain. These systems are integral to optimizing yields, reducing human error, monitoring critical control points in food safety, and maintaining consistency across our product lines. Although we believe we have workarounds in place, any failure or compromise of these systems—whether due to software malfunction, equipment failure, integration issues, or external cyber threats—could significantly disrupt our business.
We are also subject to cybersecurity threats, including unauthorized access, phishing attacks, ransomware, data breaches, and insider threats. A successful cyberattack could compromise sensitive operational data, disrupt our production or logistics, and require significant remediation costs. Additionally, we store confidential business and supply chain information in digital systems; any unauthorized disclosure or data loss could damage our competitive position and stakeholder relationships.
Although we maintain security protocols, backup systems, and third-party audits, no system is immune to failure or attack. If our systems were to be compromised or disrupted for any significant period of time, our ability to produce, deliver, and sell our products could be materially and adversely affected, with lasting impacts on our brand reputation and financial performance.
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We rely on third-party logistics providers for delivery of our products to our product outlets; any breakdown or delay could damage product integrity and customer trust.
Our ability to deliver fresh, cold-crafted juice products to retailers and customers in a timely manner while maintaining strict temperature controls is highly dependent on a network of third-party logistics providers. These third parties are responsible for the refrigerated transportation and delivery of our perishable goods—functions that are essential to upholding our freshness promise and product safety.
Because we do not own or directly control these logistics operations, we are subject to risks related to their reliability, capacity, and performance. Any breakdowns in this extended cold chain—including equipment failures, power outages, labor shortages, delivery delays, or mismanagement—could result in temperature excursions, spoilage, or product degradation. Even brief lapses in refrigeration can render our products unsellable and lead to increased waste, customer complaints, and damage to our brand reputation.
Additionally, high transportation costs, limited availability of refrigerated freight, or disruptions caused by extreme weather, geopolitical events, pandemics, or regulatory changes may constrain our ability to move inventory efficiently and profitably. If our logistics providers experience financial distress or operational setbacks, or if we are unable to secure adequate cold chain capacity to support our expansion, our ability to fulfill customer orders and scale geographically could be significantly hindered.
We may also face increased exposure as we enter new regions and establish additional distribution nodes. If we are unable to maintain strong relationships and enforce performance standards with our logistics and cold storage providers, we risk compromising product integrity and losing customer trust—both of which could materially and adversely affect our business, operating results, and brand equity.
Inflationary pressures, rising freight or packaging costs, tariffs, and supply chain disruptions could materially affect our cost structure and financial condition.
We are subject to a variety of macroeconomic and supply chain factors that can increase our operating costs and impact our profitability, including inflation, rising input costs, labor shortages, international trade dynamics, and transportation constraints. In recent years, the food and beverage industry has experienced widespread inflationary pressures across packaging materials, fuel, labor, and freight—all of which are relevant to our cost structure.
Our products rely on specialized inputs such as fresh citrus, recyclable PET and glass bottles, refrigerated freight, and energy-intensive cold storage infrastructure. Cost increases in any of these areas—whether due to raw material shortages, supplier pricing actions, tariffs, or global commodity volatility—can materially impact our gross margins. In particular, refrigerated logistics tend to be more sensitive to diesel fuel prices, driver availability, and seasonal demand spikes, which can further amplify volatility.
Additionally, our business could be adversely affected by international trade developments, including changes in tariff policy, import/export restrictions, or customs delays. Approximately half of our citrus is sourced domestically, while the remainder is imported from Mexico, creating direct exposure to tariff-induced cost increases on our primary raw material. Beyond citrus we may rely on imported packaging materials, machinery, or seasonal specialty produce, further amplifying our vulnerability to trade disruptions.
Tariffs on Mexican citrus imports would directly increase our raw material costs and impact gross margin across our product portfolio. Similarly, tariffs on packaging materials or food processing equipment could materially affect both our ongoing operational costs and capital expenditure requirements for facility expansion. Disruptions in global trade routes or custom delays could also interrupt our supply chain, potentially affecting production schedules and increasing inventory carrying costs to maintain buffer stock. These trade related cost increases may be difficult to immediately pass through to retail customers, potentially compressing margins until pricing adjustments can be negotiated and implemented.
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We may face difficulties in forecasting demand accurately, which could lead to excess inventory, underproduction, missed revenue opportunities, or higher working capital needs.
Accurately forecasting consumer demand is essential to managing our production schedules, inventory levels, procurement of raw materials, and supply chain logistics—especially given the short shelf life and temperature sensitivity of our products. However, forecasting demand for fresh, cold-crafted juice across multiple SKUs, regions, and retail customers is inherently challenging, particularly as we expand into new markets and launch new products.
Our forecasts are based on historical sales data, retailer feedback, promotional calendars, and internal assumptions about market growth, consumer preferences, and shelf performance. These inputs can be affected by unpredictable factors such as changes in consumer behavior, competitive activity, seasonality, macroeconomic conditions, weather, and promotional effectiveness. These can negatively affect our gross margins and increase waste.
Conversely, if we underestimate demand, we may experience out-of-stocks, lost sales, and missed revenue opportunities—particularly during peak seasons or promotional periods. Shorting orders can also erode retailer confidence, damage our brand reputation, and cause consumers to switch to competing products.
Additionally, inaccuracies in forecasting can lead to suboptimal purchasing decisions and inefficient utilization of raw materials, packaging, and production resources. This can tie up working capital and strain our ability to respond flexibly to market shifts.
As our distribution footprint broadens and the complexity of our operations increases, the risks associated with demand forecasting may be amplified. If we fail to implement and maintain effective demand planning systems and processes, our operational efficiency, customer satisfaction, and financial performance could be materially and adversely affected.
If we fail to effectively manage our growth, including geographic expansion and increased retail distribution, our operations and customer experience could suffer.
We have experienced, and expect to continue to experience, rapid growth in our business, including expansion into new geographic markets, scaling of production capacity, and increased retail distribution. Effectively managing this growth will require significant investments in operational infrastructure, personnel, systems, logistics, and quality control. If we are unable to scale our operations in a disciplined and maintainable manner, we may encounter challenges that negatively impact product quality, fulfillment reliability, customer experience, and overall efficiency.
Geographic expansion introduces operational complexity. Each new territory may involve distinct consumer preferences, and supply chain constraints, which could slow our rollout or require more resources than anticipated. Delays or underperformance in the commissioning of our planned facilities for example, could limit our ability to serve key regions and meet retailer expectations.
Increased retail distribution also demands higher standards for consistency, service levels, and speed of execution. Failure to fulfill retailer orders on time, maintain planogram compliance, or deliver a consistently fresh product could result in the loss of shelf space, strained customer relationships, and reputational harm. Moreover, if our internal systems and processes—such as demand planning, quality control, or customer service—fail to keep pace with our growth, it could lead to operational breakdowns and diminished consumer trust.
Hiring and retaining qualified personnel to support this growth, particularly in operations, supply chain, and sales, may also present challenges in a competitive labor environment. In addition, expanding our product lines or entering new channels (e.g., foodservice, e-commerce) may require capabilities we have not yet fully developed.
If we are unsuccessful in managing the operational, financial, and organizational demands of growth, our ability to scale profitably and deliver a consistent, high-quality customer experience may be compromised, which could materially and adversely affect our business, results of operations, and brand reputation.
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We may be subject to legal challenges related to the accuracy of our health and wellness claims.
The food and beverage industry is frequently targeted by consumer litigation and regulatory scrutiny related to the accuracy and interpretation of health and wellness claims. The fresh juice and wellness beverage sector has been particularly subject to such challenges in recent years. We market our products using descriptors such as “cold-crafted,” “never heated,” and “no HPP,” among others. Our “UltraFreshTM” and “fresh” claims are central to our value proposition and competitive differentiation, making any successful challenge to this terminology potentially more damaging to our business model. While we make every effort to ensure that our marketing is accurate and complies with applicable laws, certain terms may be subject to varying interpretations or challenged as misleading or inadequately substantiated.
Additionally, although some of our products do not contain added sugar, others do, and consumers or regulators may question how these products are labeled and/or marketed. As regulatory standards and consumer expectations around product claims continue to evolve, we may face increased scrutiny of our marketing practices even for previously accepted industry terminology.
Agencies such as the FDA, FTC, and various state attorneys general have increased enforcement actions in recent years, and private class action lawsuits over product labeling and advertising have become common in the industry.
If we are required to defend against legal claims related to our product descriptions or advertising, we could incur substantial legal costs, be required to change our labeling or marketing materials, modify our manufacturing processes or documentation requirements, or pay fines or settlements. Even unfounded allegations can harm our brand reputation and divert management attention from core business operations.
Our future success depends on our ability to attract, retain, and develop key employees and senior leadership.
Our future growth and operational success depend heavily on the continued contributions of our senior leadership team and key personnel across operations, supply chain, product innovation, sales, and marketing. In particular, the vision and leadership of our Chief Executive Officer, Horatio Lonsdale-Hands, and the experience he has with growing a successful fresh juice business and our Executive Chairman, Bryan Herr, with his experience with also growing a successful fresh business that led to having long term industry relationships, including with fruit growers in both Mexico and the US, are critical to executing our strategic plan, maintaining strong retail and supplier relationships, and guiding the expansion of our brand and platform.
As a company operating in a competitive and rapidly evolving industry, we must attract and retain employees with specialized expertise in cold chain logistics, high-tech powered production, perishable inventory management, and food and beverage marketing. The labor market for such talent is highly competitive, especially in growth regions like Texas, South Carolina, and Arizona/Nevada, where we are expanding our footprint. We may face challenges in filling key roles or retaining top performers due to market demand, compensation expectations, limited local talent pools, or cultural fit.
Additionally, as we scale, our need for experienced leaders capable of managing larger teams, navigating complex regulatory environments, and sustaining our culture of innovation will increase. The loss of one or more members of our leadership team or other essential employees—whether due to voluntary departure, retirement, illness, or other reasons—could result in loss of institutional knowledge, disruption of our operations, and delays in executing key initiatives.
We may also be limited in our ability to offer equity-based or other long-term incentive compensation to attract top-tier candidates, particularly during or after the IPO. If we are unable to recruit, develop, and retain a highly skilled and motivated workforce aligned with our mission and growth strategy, our ability to scale effectively, innovate, and achieve our business objectives could be materially and adversely affected.
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We may require additional capital to support our growth strategy or operations, and such financing may not be available on acceptable terms or at all, which could limit our ability to scale.
To execute our growth strategy—including expanding production capacity, scaling our cold chain logistics infrastructure, entering new geographic markets, launching new products, and supporting working capital needs—we may need to raise additional capital in the future. Our ability to secure financing will depend on a number of factors, including market conditions, interest rates, investor sentiment toward our industry, and our operating performance and financial condition at the time of the financing.
We may seek additional funds through public or private equity offerings, debt financings, asset-backed lending, or strategic partnerships. However, such financing may not be available to us on commercially reasonable terms, or at all. If we raise funds through the issuance of equity or convertible securities, our existing stockholders could experience dilution, and any new securities may have rights, preferences, or privileges senior to those of our Common Stock. If we raise funds through debt financing, we may incur significant interest obligations and be subject to restrictive covenants that could limit our operational flexibility.
Moreover, reliance on outside capital increases our exposure to macroeconomic volatility, including tightening credit conditions, higher interest rates, or disruptions in financial markets. If we are unable to obtain adequate financing when needed, or if we are forced to do so under unfavorable terms, we may be unable to invest in critical initiatives, respond to competitive pressures, or scale our operations in line with demand.
Any failure to secure sufficient capital to support our growth could delay or prevent the execution of our strategic objectives and materially and adversely affect our business, financial condition, and prospects.
Disruptions in the worldwide economy may adversely affect our business, financial condition, results of operations and cash flows
Adverse and uncertain economic conditions may affect distributor, retailer, foodservice and consumer demand for our products or impact our costs due to changes in the foreign exchange rate and tariffs as we source approximately half of our citrus from Mexico. In addition, our ability to manage normal commercial relationships with our suppliers and third party logistics providers and creditors may suffer. Consumers may shift purchases to lower-priced or other perceived value offerings during economic downturns. In addition, consumers may choose to purchase private label products rather than branded products because they are generally less expensive. Retailers may become more conservative in response to these conditions and seek to reduce their inventories or limit the range of our products that they offer. Our results of operations depend upon, among other things, our ability to maintain and increase sales volume with our existing retailers, our ability to attract new customers and consumers, the financial condition of our customers and consumers and our ability to provide products that appeal to consumers at the right price. Cost pressures or inflation could challenge our ability to do so. Prolonged unfavorable economic conditions may have an adverse effect on our business, financial condition, results of operations and cash flows.
Climate change, or legal or market measures to address climate change, may negatively affect our business and operations.
There is growing concern that carbon dioxide and other greenhouse gases in the atmosphere may have an adverse impact on global temperatures, weather patterns and the frequency and severity of extreme weather and natural disasters. If climate change has a negative effect on the agricultural productivity of the crops we rely on, we may be subject to decreased availability or less favorable pricing for the citrus and other raw materials that are necessary for our current or any future products. Climate changes may also require us to find fruit suppliers in new geographic areas if the location for best production of citrus changes, which will require changes to our supply network and investing time and resources with new sources, thereby potentially increasing our costs of production. In addition, there is no guarantee that we will be able to maintain the quality and taste of our products as we transition to sourcing citrus in new geographic areas.
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Fluctuations in business conditions may unexpectedly impact our reported results of operations and financial condition.
We experience fluctuations in our financial performance, as a result of a variety of factors, including the timing of our or our competitors’ promotional activities, the timing of product introductions and merchandise mix, as well as seasonal fluctuations in demand for beverage products that typically result in higher revenues for such products during summer months. Our net sales and profitability are impacted by the timing and size of such sales and promotion incentives. New product introductions and shelf resets at our customers may also cause our results of operations to fluctuate. Due to these fluctuations, historical period-to-period comparisons of our results of operations are not necessarily indicative of future period-to-period results, impacting comparability of our quarterly results year-over-year.
Our insurance may not provide adequate levels of coverage against claims or otherwise protect us from all risks to which we are exposed, or we may be unable to find insurance with sufficient coverage at a reasonable cost.
We believe that we maintain insurance customary for businesses of our size and type. However, there are types of losses we may incur that cannot be insured against or that we believe are not economically reasonable to insure, or that we may not have identified as risks. Moreover, if we do not make policy payments on a timely basis, we could lose our insurance coverage, or if a loss is incurred that exceeds policy limits, our insurance provider could refuse to cover our claims, which could result in increased costs. If we are unable to make successful claims on our insurance for any potential losses, then we may be liable for any resulting costs, which could cause us to incur significant liabilities. Although we believe that we have adequate coverage, if we lose our insurance coverage and are unable to find similar coverage elsewhere or if rates continue to increase, or if claims are made that are not covered by insurance or exceed coverage levels, it may have an adverse impact on our business, financial condition, results of operations and cash flows.
Members of our management team have limited experience in operating a public company, and regulatory compliance may divert their attention from the day-to-day management of our business.
Our management team has very limited experience managing a publicly-traded company, and limited experience complying with the increasingly complex laws and regulations pertaining to public companies. Our management team may not successfully or efficiently manage our transition to being a public company that will be subject to significant regulatory oversight and reporting obligations under the federal securities laws. In particular, these new obligations will require substantial attention from our senior management and could divert their attention away from the day-to-day management of our business, which would adversely impact our business operations. We may not have adequate personnel with the appropriate level of knowledge, experience, and training in the accounting policies, practices or internal controls over financial reporting required of public companies in the United States. The development and implementation of the standards and controls necessary for us to achieve the level of accounting standards required of a public company in the United States and to meet the other regulatory compliance needs of a public company may require costs greater than expected. It is possible that we will be required to expand our employee base and hire additional employees to support our operations as a public company, which will increase our operating costs in future periods.
We will incur increased costs as a result of operating as a public company, and our management will be required to devote substantial time to new compliance initiatives and corporate governance practices.
As a public company, and particularly once we are no longer an emerging growth company, we will incur significant legal, regulatory, insurance, finance, accounting, investor relations, and other expenses that we have not incurred as a private company, including costs associated with public company reporting requirements and costs of recruiting and retaining non-executive directors. We also have incurred and will incur costs associated with the Sarbanes-Oxley Act, and the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Dodd-Frank Act, and related rules implemented by the SEC, and the applicable stock exchange. The expenses incurred by public companies generally for reporting and corporate governance purposes have been increasing. We expect these rules and regulations to increase our legal and financial compliance costs and to make some activities more time-consuming and costly, although we are currently unable to estimate these costs with any degree of certainty. Our management will need to devote a substantial amount of time to ensure that we comply with all of these requirements, diverting the attention of management away from revenue-producing activities and the smooth running of the business. These laws and regulations also could make it more difficult or costly for us to obtain certain types of insurance, including director and officer liability insurance, and we may be forced to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. These laws and regulations could also make it more difficult for us to attract and retain qualified persons to serve on our board of directors, our board committees or as our executive officers. Furthermore, if we are unable to satisfy our obligations as a public company, we could be subject to delisting of our Common Stock, fines, sanctions and other regulatory action, and potentially civil litigation.
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Risks Relating to Legal and Regulatory Requirements
Food safety and food-borne illness incidents or other safety concerns may materially adversely affect our business by exposing us to lawsuits, product recalls or regulatory enforcement actions, increasing our operating costs and reducing demand for our product offerings.
Selling food and beverages for human consumption involves inherent legal and other risks, and there is increasing governmental scrutiny of and public awareness regarding food safety. Unexpected side effects, illness, injury or death related to allergens, food-borne illnesses or other food safety incidents caused by products we sell or involving our suppliers, could result in the discontinuance of sales of these products or cessation of our relationships with such suppliers, or otherwise result in increased operating costs, lost sales, regulatory enforcement actions or harm to our reputation. Shipment of adulterated or misbranded products, even if inadvertent, can result in criminal or civil liability. Such incidents could also expose us to product liability, negligence or other lawsuits, including consumer class action lawsuits. Any claims brought against us may exceed or be outside the scope of our existing or future insurance policy coverage or limits. Any judgment against us that is more than our policy limits or not covered by our policies would have to be paid from our cash reserves, which would reduce our capital resources.
The occurrence of food-borne illnesses or other food safety incidents could also adversely affect the price and availability of affected ingredients and raw materials, resulting in higher costs, disruptions in supply and a reduction in our sales. Furthermore, any instances of food contamination, regulatory noncompliance, and/or retail customer noncompliance whether or not caused by our actions, could compel us or our retail customers, depending on the circumstances, to conduct a recall in accordance with United States Food and Drug Administration, or the FDA, regulations and comparable foreign laws and regulations, as well as other regulations and laws in the other jurisdictions in which we operate. Product recalls could result in significant losses due to their associated costs, the destruction of product inventory, lost sales due to the unavailability of the product for a period of time and potential loss of existing retail customers and shelf space or e-commerce prominence, and a potential negative impact on our ability to attract new customers and consumers, and maintain our current customer and consumer base due to negative consumer experiences or because of an adverse impact on our brands and reputation. The costs of a recall could exceed or be outside the scope of our existing or future insurance policy coverage or limits. While we maintain batch and lot tracking capability to identify potential causes for any discovered problems, there is no guarantee that in the case of a potential recall, we will effectively be able to isolate all product that might be associated with any alleged problem, or that we will be able to quickly and conclusively determine the root cause or narrow the scope of the recall. Our potential inability to affect a recall quickly and effectively, or manage the consumer and retailer communication in a way that mitigates concerns, might create adverse effects on our business and reputation, including large recall and disposal costs and significant loss of revenue.
In addition, food and beverage companies have been subject to targeted, large-scale tampering as well as to opportunistic, individual product tampering, and we, like any food company, could be a target for product tampering. Forms of tampering could include the introduction of foreign material, chemical contaminants and pathological organisms into consumer products as well as product substitution. The FDA enforces laws and regulations, such as the Food Safety Modernization Act, that require companies like us to analyze, prepare and implement mitigation strategies specifically to address tampering designed to inflict widespread public health harm. If we do not adequately address the possibility, or any actual instance, of product tampering, we could face possible seizure or recall of our products and the imposition of civil or criminal sanctions, which could materially adversely affect our business, financial condition, results of operations and cash flows. Most countries in which we operate have comparable regulations that we endeavor to comply with, but any failure to meet regulators or customers’ expectations could impact our business in these markets and have a material adverse effect on our reputation as well as our business, financial condition, results of operations and cash flows.
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Failure to comply with federal, and state laws and regulations relating to data privacy, data protection, advertising and consumer protection, or the expansion of current or the enactment of new laws or regulations relating to data privacy, data protection, advertising and consumer protection, could adversely affect our business, financial condition, results of operations and cash flows.
We collect, maintain, and otherwise process significant amounts of personally identifiable information and other data relating to our customers and employees. Additionally, we rely on a variety of marketing techniques, including email and social media marketing, and we are subject to various laws and regulations that govern such marketing and advertising practices. We are subject to numerous state, and federal laws, rules and regulations govern the collection, use and protection of personally identifiable information.
In the United States, federal and state laws impose limits on, or requirements regarding the collection, distribution, use, security and storage of personally identifiable information of individuals and there has also been increased regulation of data privacy and security particularly at the state level. For example, in 2018, California enacted the California Consumer Privacy Act, or the CCPA, which came into effect in January 2020, and gives California residents expanded rights to their personal information, provides for civil penalties for violations and provides a private right of action for data breaches that is expected to increase data breach litigation, and in November 2020, California voters passed the California Privacy Rights Act which takes effect in 2023 and significantly expands the CCPA. We expect that there will continue to be new proposed laws, regulations, and industry standards concerning data privacy, data protection, and information security in the United States and other jurisdictions at all levels of legislature, governance, and applicability. We cannot yet fully determine the impact that these or future laws, rules, and regulations may have on our business or operations.
Further, we rely on a variety of marketing techniques and practices to sell our products and to attract new customers and consumers, and we are subject to various current and future data protection laws and obligations that govern marketing and advertising practices. For example, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or the CAN-SPAM Act, establishes specific requirements for commercial email messages in the United States. Governmental authorities continue to evaluate the privacy implications inherent in the use of third-party “cookies” and other methods of online tracking for behavioral advertising and other purposes, such as by regulating the level of consumer notice and consent required before a company can employ cookies or other electronic tracking tools or the use of data gathered with such tools. Laws and regulations regarding the use of these cookies and other current online tracking and advertising practices could increase our costs of operations and limit our ability to acquire new consumers on cost-effective terms, which, in turn, could have an adverse effect on our business, financial condition, results of operations and cash flows.
Consumer resistance to the collection and sharing of the data used to deliver targeted advertising, increased visibility of consent or “do not track” mechanisms as a result of industry regulatory or legal developments, the adoption by consumers of browser settings or “ad-blocking” software, and the development and deployment of new technologies could materially impact our ability or our media buyers’ ability to collect data or to efficiently and effectively deliver relevant promotions or media, which could materially impair the results of our operations.
Additionally, some providers of consumer devices, web browsers and application stores have implemented, or announced plans to implement, means to make it easier for Internet users to prevent the placement of cookies or to block other tracking technologies, require additional consents, or limit the ability to track user activity, which could if widely adopted result in the use of third-party cookies and other methods of online tracking becoming significantly less effective. Loss in our ability to make effective use of services that employ such technologies could increase our costs of operations and limit our ability to acquire new consumers on cost-effective terms, which, in turn, could have an adverse effect on our business, financial condition, results of operations and cash flows.
We may also be bound by contractual requirements applicable to our collection, use, processing, and disclosure of various types of data, including personally identifiable information, and may be bound by self-regulatory or other industry standards relating to these matters. Our collection and use of consumer data is also subject to our privacy policies, including online privacy policies. The proliferation of data privacy laws in variation creates increased risk of non-compliance and increased costs of maintaining compliance. Additionally, while we strive to comply with our posted policies and all applicable laws, regulations, other legal obligations and certain industry standards, laws, rules, and regulations concerning data privacy, data protection, and data security evolve frequently and may be inconsistent from one jurisdiction to another or may be interpreted to conflict with our practices or in a manner that is inconsistent from one jurisdiction to another.
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The adoption of further data privacy and security laws may increase the cost and complexity of implementing any new offerings in other jurisdictions. Any failure, or perceived failure, by us to comply with our posted privacy policies or with any international, federal or state data privacy or consumer protection-related laws, regulations, industry self-regulatory principles, industry standards or codes of conduct, regulatory guidance, orders to which we may be subject or other legal or contractual obligations relating to data privacy or consumer protection could adversely affect our reputation, brands and business, and may result in regulatory investigations, claims, proceedings or actions against us by governmental entities, customers, suppliers or others, class actions, or other liabilities or may require us to change our operations and/or cease using certain data sets. Any such claims, proceedings or actions could hurt our reputation, brands and business, force us to incur significant expenses in defense of such proceedings or actions, distract our management, increase our costs of doing business, result in a loss of customers and third-party providers and result in the imposition of significant damages liabilities or monetary penalties.
Litigation or legal proceedings could expose us to significant liabilities and have a negative impact on our reputation or business.
From time to time, we may be party to various claims and litigation proceedings. We evaluate these claims and litigation proceedings to assess the likelihood of unfavorable outcomes and to estimate, if possible, the amount of potential losses. Based on these assessments and estimates, we may establish reserves, as appropriate. These assessments and estimates are based on the information available to management at the time and involve a significant amount of management judgment. Actual outcomes or losses may differ materially from our assessments and estimates.
For example, approximately six years ago, we encountered a third-party opposition from a kombucha company using the name “Buddha” during our trademark application process in Canada. After evaluating the costs and benefits of pursuing the opposition, we determined that Canadian trademark registration was not necessary for our U.S. market development strategy and abandoned the application. While this decision did not impact our U.S. operations or brand protection, it illustrates the potential complexities and costs associated with international trademark conflicts, particularly where similar or phonetically similar brand names may create confusion in foreign markets.
Even when not merited, the defense of these claims or lawsuits may divert our management’s attention, and we may incur significant expenses in defending these lawsuits. The results of litigation and other legal proceedings are inherently uncertain, and adverse judgments or settlements in some of these legal disputes may result in adverse monetary damages, penalties or injunctive relief against us, which could have a material adverse effect on our financial position, cash flows or results of operations. Any claims or litigation, even if fully indemnified or insured, could damage our reputation and potentially prevent us from selling or manufacturing our products, which would make it more difficult to compete effectively or to obtain adequate insurance in the future.
Furthermore, while we maintain insurance for certain potential liabilities, such insurance does not cover all types and amounts of potential liabilities and is subject to various exclusions as well as caps on amounts recoverable. Even if we believe a claim is covered by insurance, insurers may dispute our entitlement to recovery for a variety of potential reasons, which may affect the timing and, if the insurers prevail, the amount of our recovery.
Legislative or regulatory changes that affect our products, including new taxes, could reduce demand for products or increase our costs.
Taxes imposed on the sale of certain of our products by federal, state and local governments in the United States could cause consumers to shift away from purchasing our beverages. Several municipalities in the United States have implemented or are considering implementing taxes on the sale of certain “sugared” beverages, including non-diet soft drinks, fruit drinks, teas and flavored waters to help fund various initiatives. There has also been a trend among some public health advocates to recommend additional governmental regulations concerning the marketing and labeling/packaging of the beverage industry. Additional or revised regulatory requirements, whether labeling, packaging, tax or otherwise, could have a material adverse effect on our financial condition, consumer demand and results of operations.
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Failure to comply with requirements to design, implement and maintain effective internal controls could have a material adverse effect on our business and stock price.
As a privately-held company, we were not required to evaluate our internal control over financial reporting in a manner that meets the standards of publicly traded companies required by Section 404(a) of the Sarbanes-Oxley Act, or Section 404. As a public company, we will be subject to significant requirements for enhanced financial reporting and internal controls. The process of designing and implementing effective internal controls is a continuous effort that requires us to anticipate and react to changes in our business and the economic and regulatory environments and to expend significant resources to maintain a system of internal controls that is adequate to satisfy our reporting obligations as a public company. In addition, we will be required, pursuant to Section 404, to furnish a report by management on, among other things, the effectiveness of our internal control over financial reporting in the second annual report following the completion of this Offering. This assessment will need to include disclosure of any material weaknesses identified by our management in our internal control over financial reporting. The rules governing the standards that must be met for our management to assess our internal control over financial reporting are complex and require significant documentation, testing and possible remediation. Testing and maintaining internal controls may divert our management’s attention from other matters that are important to our business. Once we are no longer an “emerging growth company,” our auditors will be required to issue an attestation report on the effectiveness of our internal controls on an annual basis.
In connection with the implementation of the necessary procedures and practices related to internal control over financial reporting, we may identify deficiencies that we may not be able to remediate in time to meet the deadline imposed by the Sarbanes-Oxley Act for compliance with the requirements of Section 404. In addition, we may encounter problems or delays in completing the remediation of any deficiencies identified by our independent registered public accounting firm in connection with the issuance of their attestation report. Our testing, or the subsequent testing (if required) by our independent registered public accounting firm, may reveal deficiencies in our internal controls over financial reporting that are deemed to be material weaknesses. Any material weaknesses could result in a material misstatement of our annual or quarterly financial statements or disclosures that may not be prevented or detected.
We may not be able to conclude on an ongoing basis that we have effective internal control over financial reporting in accordance with Section 404 or our independent registered public accounting firm may not issue an unqualified opinion. If either we are unable to conclude that we have effective internal control over financial reporting or our independent registered public accounting firm is unable to provide us with an unqualified report (to the extent it is required to issue a report), investors could lose confidence in our reported financial information, which could have a material adverse effect on the trading price of our Common Stock.
Risks Relating to Our Information Technology and Intellectual Property
We rely heavily on our information technology systems, as well as those of our third-party vendors and businesses, for our business to effectively operate and to safeguard confidential information; any significant failure, inadequacy, interruption or data security incident could adversely affect our business, financial condition, results of operations and cash flows.
We use information technology systems, infrastructure and data in substantially all aspects of our business operations. Our ability to effectively manage our business and coordinate the manufacturing, sourcing, distribution and sale of our products depends significantly on the reliability and capacity of these systems. We are critically dependent on the integrity, security and consistent operations of these systems. We also collect, process and store numerous classes of sensitive, personally identifiable and/or confidential information and intellectual property, including customers’ and suppliers’ information, private information about employees and financial and strategic information about us and the businesses with which we do business. The secure processing, maintenance and transmission of this information is critical to our operations.
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Our systems and those of our third party vendors and businesses may be subject to damage or interruption from power outages or damages, telecommunications problems, data corruption, software errors, network failures, acts of war or terrorist attacks, fire, flood, global pandemics and natural disasters; our existing safety systems, data backup, access protection, user management and information technology emergency planning may not be sufficient to prevent data loss or long-term network outages. In addition, we and our third party vendors and businesses may have to upgrade our existing information technology systems or choose to incorporate new technology systems from time to time in order for such systems to support the increasing needs of our expanding business. Costs and potential problems and interruptions associated with the implementation of new or upgraded systems and technology or with maintenance or adequate support of existing systems could disrupt our business and result in transaction errors, processing inefficiencies and loss of production or sales, causing our business and reputation to suffer.
Further, our systems and those of our third-party vendors and businesses may be vulnerable to, and have experienced attempted, security incidents, attacks by hackers (including ransomware attacks, phishing attacks and other third-party intrusions), acts of vandalism, computer viruses, misplaced or lost data, human errors or other similar events. If unauthorized parties gain access to our networks or databases, or those of our third-party vendors or businesses, they may be able to steal, publish, delete, use inappropriately or modify our private and sensitive third-party information, including credit card information and other personally identifiable information. In addition, employees may intentionally or inadvertently cause data or security incidents that result in unauthorized release of personally identifiable or confidential information. Because the techniques used to circumvent security systems can be highly sophisticated, change frequently, are often not recognized until launched against a target (and even, in many cases, until after having been successfully launched for some time) and may originate from less regulated and remote areas around the world, we may be unable to proactively address all possible techniques or implement adequate preventive measures for all situations.
Security incidents compromising the confidentiality, integrity, and availability of our sensitive information and our systems and those of our third party vendors and businesses could result from cyber-attacks, computer malware, viruses, social engineering (including spear phishing and ransomware attacks), supply chain attacks, efforts by individuals or groups of hackers and sophisticated organizations, including state-sponsored organizations, errors or malfeasance of our personnel, and security vulnerabilities in the software or systems on which we, or our third party vendors or businesses, rely. Cybercrime and hacking techniques are constantly evolving. We and/or our third-party vendors and/or businesses may be unable to anticipate attempted security breaches, react in a timely manner, or implement adequate preventative measures, particularly given the increasing use of hacking techniques designed to circumvent controls, avoid detection, and remove or obfuscate forensic artifacts. We anticipate that these threats will continue to grow in scope and complexity over time and such incidents may occur in the future, and could result in unauthorized, unlawful, or inappropriate access to, inability to access, disclosure of, or loss of the sensitive, proprietary and confidential information (including personally identifiable information) that we handle. As we rely on a number of our third party vendors and businesses, we are exposed to security risks outside of our direct control, and our ability to monitor these third-party vendors’ and business partners’ data security is limited. While we employ a number of security measures designed to prevent, detect, and mitigate potential for harm to our users and our systems from the theft of or misuse of user credentials on our network, these measures may not be effective in every instance. Moreover, we or our third-party vendors or businesses may be more vulnerable to such attacks in remote work environments, which have increased in response to the COVID-19 pandemic. Additionally, while we maintain cyber insurance that may help provide coverage for these types of incidents, we cannot assure you that our insurance will be adequate to cover costs and liabilities related to these incidents.
Any such breach, attack, virus or other event could result in additional costly investigations and litigation exceeding applicable insurance coverage or contractual rights available to us, civil or criminal penalties, operational changes or other response measures, loss of consumer confidence in our security measures, and negative publicity that could adversely affect our business, reputation, financial condition, results of operations and cash flows.
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In addition, if any such event resulted in access, disclosure or other loss or unauthorized use of information or data, such as customers’ and suppliers’ information, private information about employees and financial and strategic information about us and our businesses, whether actual or perceived, could result in legal claims or proceedings, regulatory investigations or actions, and other types of liability under laws that protect the privacy and security of personally identifiable information, including federal, state and foreign data protection and privacy regulations, violations of which could result in significant penalties and fines. The cost of investigating, mitigating and responding to potential security breaches and complying with applicable breach notification obligations to individuals, regulators and others can be significant and the risk of legal claims in the event of a security breach is increasing. For example, the CCPA creates a private right of action for certain data breaches. Further, defending a suit, regardless of its merit, could be costly, divert management attention and harm our reputation. The successful assertion of one or more large claims against us that exceed available insurance coverage, or the occurrence of changes in our insurance policies, including premium increases or the imposition of large deductibles or co-insurance requirements, could adversely affect our reputation, business, financial condition, results of operations and cash flows. Any material disruption or slowdown of our systems or those of our third-party vendors or businesses, could have a material adverse effect on our business, financial condition, results of operations and cash flows. Our risks are likely to increase as we continue to expand, grow our customer base, and process, store, and transmit increasing amounts of proprietary and sensitive data. In addition, although we seek to detect and investigate all data security incidents, security breaches and other incidents of unauthorized access to our information technology systems, and data can be difficult to detect. Any delay in identifying such breaches or incidents may lead to increased harm and legal exposure of the type described above.
We may be unable to adequately protect our intellectual property or may face claims that we infringe the intellectual property of others.
Our success depends in part on our ability to protect proprietary processes, trade secrets, know-how, product formulations, brand trademarks, and other confidential information that differentiate our business and brand. We rely on a combination of trademark laws, trade secret protection, non-disclosure agreements, and other contractual arrangements to safeguard these assets. However, these protections may not be sufficient to prevent unauthorized use, reverse engineering, or disclosure by employees, contractors or competitors.
We have not sought patent protection for certain operational processes, including proprietary techniques and AI-driven systems. Instead, we depend on trade secret protection and confidentiality. However, trade secrets are inherently difficult to protect, and we cannot ensure that our agreements will prevent unauthorized disclosure or use. In some cases, others may independently develop similar formulations or technologies, which would limit our ability to assert trade secret rights.
Our trademarks, including those related to our brand and product names, are valuable assets that support our market identity and consumer recognition. However, we may not be able to register or enforce trademarks in all jurisdictions, and the scope of our trademark rights may be challenged or narrowed. Third parties may also adopt similar marks, particularly in regions where our trademarks are not yet registered, leading to consumer confusion and dilution of brand value. In some instances, we have entered into coexistence or settlement agreements that limit our ability to use or enforce certain marks in specific markets or categories.
In addition to challenges in protecting our own intellectual property, we may face claims that our products, packaging, marketing, or business practices infringe on the intellectual property rights of others. Even if meritless, these claims can be expensive, time-consuming, and disruptive to our operations. If we are found to infringe, we may need to obtain licenses (which may not be available on favorable terms), rebrand, or redesign products or packaging. We could also be subject to damages, settlements, or inventory write-offs.
Any failure to adequately protect our intellectual property, or defend against infringement claims, could materially and adversely affect our brand equity, competitive position, and financial condition.
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Risks Relating to This Offering
There has been no prior public market for our Common Stock. An active market may not develop or be sustainable, and you may not be able to resell your shares at or above the initial public offering price.
There has been no public market for our Common Stock prior to this Offering. The initial public offering price for our Common Stock was determined through negotiations between us and the underwriter and may vary from the market price of our Common Stock following the completion of this Offering. An active or liquid market in our Common Stock may not develop upon completion of this Offering or, if it does develop, it may not be sustainable. In the absence of an active trading market for our Common Stock, you may not be able to resell any shares you hold at or above the initial public offering price or at all. We cannot predict the prices at which our Common Stock will trade.
The price of our Common Stock may be volatile, and purchasers of our Common Stock could incur substantial losses.
Our share price may be volatile. The stock market in general has experienced extreme volatility that has often been unrelated to the operating performance of particular companies. As a result of this volatility, investors may not be able to sell their Common Stock at or above the IPO price. The market price for our Common Stock will be influenced by many factors, including, but not limited to:
| ● | the success of our staffing arrangements and the marketing of our services; | |
| ● | the recruitment or departure of key personnel; | |
| ● | quarterly or annual variations in our financial results or those of companies that are perceived to be similar to us; | |
| ● | market conditions in the industries in which we compete and issuance of new or changed securities; | |
| ● | analysts’ reports or recommendations; | |
| ● | the failure of securities analysts to cover our Common Stock after this Offering or changes in financial estimates by analysts; | |
| ● | the inability to meet the financial estimates of analysts who follow our Common Stock; | |
| ● | the issuance of any additional securities of ours; | |
| ● | investor perception of our company and of the industry in which we compete; and | |
| ● | general economic, political, and market conditions. |
A portion of the proceeds from the shares offered in this offering will be used to redeem 500,000 shares of common stock held by Horatio Lonsdae-Hands, one of our co-founders and the Chief Executive Officer of the Company.
We will redeem 500,000 shares of Common Stock for $3,750,000 from our co-founder and Chief Executive Officer, Horatio Lonsdale-Hands, payable upon the closing of this Offering. Therefore, we will use a significant portion of the gross proceeds from this Offering to pay for the Stock Redemption, which will reduce the amount of funds from the Offering we have for expansion of the Company operations and working capital. Notwithstanding the Stock Redemption, the continuing equity position of the our co-founder and Chief Executive Officer, Horatio Lonsdale-Hands may still be in an amount to be able to influence the direction of the Company and our ability to raise capital in the future.
Our directors and executive officers will continue to have significant influence over matters submitted to shareholders, which may limit your ability to influence the outcome of shareholder votes and could create conflicts of interest.
Following this offering, Horatio Lonsdale-Hands, Bryan Herr, and Bernard Lucien Nussbaumer, who serve as members of our board of directors and as members of senior management, will beneficially own approximately 60.77% of the outstanding common stock. As a result, they will be able to exert substantial influence over matters subject to shareholder approval, including the election and removal of directors, amendments to our organizational documents, and approval of mergers, acquisitions, or other significant corporate transactions. This concentration of ownership could delay or prevent a change in control, discourage a potential acquirer from making a takeover proposal, or otherwise adversely affect the market price of our common stock.
In addition, because Mr. Lonsdale-Hands and Mr. Herr hold both management positions and significant shareholdings, their interests may not always align with those of our other shareholders. As a result, they may make decisions that could conflict with or differ from the interests of other shareholders generally.
A substantial portion of our total issued and outstanding shares may be sold into the market at any time. This could cause the market price of our Common Stock to drop significantly, even if our business is doing well.
All of the Common Stock being sold in this offering will be freely tradable without restrictions or further registration under the federal securities laws unless purchased by our “affiliates,” as that term is defined in Rule 144 under the Securities Act. Of the remaining shares of Common Stock issued and outstanding upon the closing of this offering, approximately 78.95% are restricted securities as defined in Rule 144 under the Securities Act. Restricted securities may be sold in the United States public market only if registered or if they qualify for an exemption from registration, including by reason of Rules 144 or 701 under the Securities Act. All of our restricted Common Stock will be eligible for sale in the public market 360 days following the effective date of the registration for this Offering, subject in certain circumstances to the volume, manner of sale and other limitations under Rule 144, and also the lock-up agreements described under “Underwriting” in this prospectus. Additionally, we intend to register all our Common Stock that we may issue under our employee benefit plans. Once we register these shares of Common Stock, they can be freely sold in the public market upon issuance, unless pursuant to their terms these share awards have transfer restrictions attached to them. Sales of a substantial number of shares of our Common Stock, or the perception in the market that the holders of a large number of shares intend to sell their Common Stock, could reduce the market price of our Common Stock.
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If our listing application for our Common Stock is not approved by the NYSE, we will not be able to consummate the Offering and will terminate the Offering.
If our listing application is not approved by the NYSE, we will not be able to consummate the Offering and will terminate the offering. Once listed, if we fail to continue to have our Common Stock listed on the NYSE our stockholders will find it more difficult to dispose of our Common Stock and more difficult to obtain accurate price quotations on our Common Stock. Our ability to issue additional securities for financing or other purposes, or otherwise to arrange for any financing we may need in the future, may also be materially and adversely affected if our Common Stock is not traded on a national securities exchange.
We are authorized to issue “blank check” preferred stock without stockholder approval, which could adversely impact the rights of holders of our Common Stock.
Our articles of incorporation authorize us to issue up to 10,000,000 shares of “blank check” preferred stock, meaning our board of directors can designate the rights and preferences of classes or series of such preferred stock without stockholder approval. Any preferred stock we issue in the future may rank ahead of our Common Stock in terms of dividend priority or liquidation premiums and may have greater voting rights than our Common Stock. In addition, such preferred stock may contain provisions allowing those shares to be converted into shares of Common Stock, which could dilute the value of Common Stock to current stockholders and could adversely affect the market price, if any, of our Common Stock. In addition, the preferred stock could be utilized, under certain circumstances, as a method of discouraging, delaying, or preventing a change in control of our company. Although we have no present intention to issue any shares of authorized preferred stock, there can be no assurance that we will not do so in the future.
If our shares of Common Stock become subject to the penny stock rules, it would become more difficult to trade our shares.
The Securities and Exchange Commission, or the SEC, has adopted rules that regulate broker-dealer practices in connection with transactions in penny stocks. Penny stocks are generally equity securities with a price of less than $5.00, other than securities registered on certain national securities exchanges or authorized for quotation on certain automated quotation systems, provided that current price and volume information with respect to transactions in such securities is provided by the exchange or system. If we do not retain a listing on the NYSE or another national securities exchange and if the price of our Common Stock is less than $5.00, our Common Stock could be deemed a penny stock. The penny stock rules require a broker-dealer, before a transaction in a penny stock not otherwise exempt from those rules, to deliver a standardized risk disclosure document containing specified information. In addition, the penny stock rules require that before effecting any transaction in a penny stock not otherwise exempt from those rules, a broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive (i) the purchaser’s written acknowledgment of the receipt of a risk disclosure statement; (ii) a written agreement to transactions involving penny stocks; and (iii) a signed and dated copy of a written suitability statement. These disclosure requirements may reduce the trading activity in the secondary market for our Common Stock, and therefore, stockholders may have difficulty selling their shares.
For as long as we are an emerging growth company, we will not be required to comply with certain reporting requirements, including those relating to accounting standards and disclosure about our executive compensation, that apply to other public companies.
We are classified as an “emerging growth company” under the JOBS Act. For as long as we are an emerging growth company, which may be up to five full fiscal years, unlike other public companies, we will not be required to, among other things: (i) provide an auditor’s attestation report on management’s assessment of the effectiveness of our system of internal control over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act; (ii) comply with any new requirements adopted by the PCAOB requiring mandatory audit firm rotation or a supplement to the auditor’s report in which the auditor would be required to provide additional information about the audit and the financial statements of the issuer; (iii) provide certain disclosures regarding executive compensation required of larger public companies; or (iv) hold nonbinding advisory votes on executive compensation. We will remain an emerging growth company for up to five years, although we will lose that status sooner if we have more than $1.235 billion of revenue in a fiscal year, have more than $700 million in market value of our Common Stock held by non-affiliates, or issue more than $1.0 billion of non-convertible debt over a three-year period.
To the extent that we rely on any exemptions available to emerging growth companies, you will receive less information about our executive compensation and internal control over financial reporting than issuers that are not emerging growth companies. If some investors find our Common Stock to be less attractive as a result, there may be a less active trading market for our Common Stock, and their trading prices may be more volatile.
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If you purchase our Common Stock in the offering, you will suffer immediate and substantial dilution of your investment.
The IPO price of the Common Stock is substantially higher than the net tangible book value per share. Therefore, if you purchase Common Stock in the offering, your interest will be diluted immediately to the extent of the difference between the IPO price and the net tangible book value per share after this offering. See “Dilution.”
We have broad discretion in the use of our net proceeds from the Common Stock sold in the offering and may not use them effectively.
Our management will have broad discretion in the application of the portion of the net proceeds it receives from this offering and could spend the proceeds in ways that do not improve our operating results or enhance the value of our Common Stock. Our stockholders may not agree with the manner in which our management chooses to allocate and spend the net proceeds received by the Company. The failure of our management to apply these funds effectively could result in financial losses that could have a material adverse effect on our business and cause the price of our Common Stock to decline. Pending their use, we may invest our net proceeds from this Offering in a manner that does not produce income, or that loses value. See “Use of Proceeds” in this prospectus.
We do not intend to pay dividends on our Common Stock and consequently, your only opportunity to achieve a return on your investment is if the price of our Common Stock appreciates.
We do not plan to declare dividends on shares of our Common Stock in the foreseeable future. Consequently, your only opportunity to achieve a return on your investment in us will be if the market price of our Common Stock appreciates, which may not occur, and you sell your Common Stock at a profit. There is no guarantee that the price of our Common Stock that will prevail in the market after this Offering will ever exceed the price that you pay for the Common Stock.
There has been no independent valuation of our stock, which means that our Common Stock may be worth less than the offering price in the offering.
The per share purchase price in the offering has been determined by us without independent valuation of our shares of Common Stock. We established the offering price based on management’s estimate of the valuation of the Company’s shares of Common Stock and discussions with the underwriter of the Offering. This valuation is highly speculative and arbitrary. There is no relation to the market value, book value, or any other established criteria. We did not obtain an independent appraisal opinion on the valuation of our shares. Our shares of Common Stock may have a value significantly less than the offering price, and the shares may never obtain a value equal to or greater than the offering price.
If securities industry analysts do not publish research reports on us, or publish unfavorable reports on us, then the market price and market trading volume of our Common Stock could be negatively affected.
Any trading market for our Common Stock may be influenced in part by any research reports that securities industry analysts publish about us. We do not currently have and may never obtain research coverage by securities industry analysts. If no securities industry analysts commence coverage of us, the market price and market trading volume of our Common Stock could be negatively affected. In the event we are covered by analysts, and one or more of such analysts downgrade our securities, or otherwise reports on us unfavorably, or discontinues coverage of us, the market price and market trading volume of our Common Stock could be negatively affected.
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Future issuances of debt or equity securities, which rank senior to our Common Stock upon any bankruptcy or liquidation or other basis, may adversely affect the level of return you may be able to achieve from an investment in our Common Stock.
In the future, we may attempt to increase our capital resources by offering debt securities. Upon bankruptcy or liquidation, holders of our debt securities, and lenders with respect to other borrowings we may make, would receive distributions of our available assets prior to any distributions being made to holders of our Common Stock. Moreover, if we issue preferred stock, the holders of such preferred stock could be entitled to preferences over holders of Common Stock in respect of the payment of dividends and the payment of liquidating distributions. Because our decision to issue debt or preferred stock in any future offering, or borrow money from lenders, will depend in part on market conditions and other factors beyond our control, we cannot predict or estimate the amount, timing or nature of any such future offerings or borrowings. Holders of our Common Stock must bear the risk that any future offerings we conduct or borrowings we make may adversely affect the level of return, if any, they may be able to achieve from an investment in our Common Stock.
Delaware law and provisions in our certificate of incorporation and bylaws could make a merger, tender offer or proxy contest more difficult, limit attempts by our stockholders to replace or remove our current management and depress the market price of our Common Stock.
Provisions in our certificate of incorporation and our bylaws that will become effective upon the closing of this offering may discourage, delay or prevent a merger, acquisition or other change in control of us or tender offer that stockholders may consider favorable, including transactions in which stockholders might otherwise receive a premium for their shares. These provisions could also limit the price that investors might be willing to pay in the future for shares of our Common Stock, thereby depressing the market price of our Common Stock. In addition, these provisions may frustrate or prevent any attempts by our stockholders to replace or remove our current management by making it more difficult for stockholders to replace members of our board of directors. Because our board of directors is responsible for appointing the members of our management team, these provisions could in turn affect any attempt by our stockholders to replace current members of our management team. Among others, these provisions include that:
● restrict the forum for certain litigation against us to Delaware or the federal courts, as applicable;
● our board of directors has the exclusive right to expand the size of our board of directors and to elect directors to fill a vacancy created by the expansion of the board of directors or the resignation, death or removal of a director, which prevents stockholders from being able to fill vacancies on our board of directors;
● our stockholders may not act by written consent, which forces stockholder action to be taken at an annual or special meeting of our stockholders;
● a special meeting of stockholders may be called only by the chair of the board of directors, the chief executive officer, or the board of directors, which may delay the ability of our stockholders to force consideration of a proposal or to take action, including the removal of directors;
● our certificate of incorporation prohibits cumulative voting in the election of directors, which limits the ability of minority stockholders to elect director candidates;
● our board of directors may alter our bylaws without obtaining stockholder approval;
● the required approval of the holders of at least two-thirds of the shares entitled to vote at an election of directors to adopt, amend or repeal our bylaws or repeal the provisions of our certificate of incorporation regarding the election and removal of directors;
● stockholders must provide advance notice and additional disclosures in order to nominate individuals for election to the board of directors or to propose matters that can be acted upon at a stockholders’ meeting, which may discourage or deter a potential acquiror from conducting a solicitation of proxies to elect the acquiror’s own slate of directors or otherwise attempting to obtain control of our company; and
● our board of directors is authorized to issue shares of preferred stock and to determine the terms of those shares, including preferences and voting rights, without stockholder approval, which could be used to significantly dilute the ownership of a hostile acquirer.
Our Certificate of Incorporation contains an exclusive forum provision for certain claims, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers or employees.
Our Certificate of Incorporation provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Company, (b) any action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee, or agent of the Company to the Company or the Company’s shareholders, (c) any action asserting a claim against the Company or any current or former director or officer or other employee of the Company, (d) any action asserting a claim governed by the internal affairs doctrine, or (e) any action asserting an “internal corporate claim” as defined in Section 115 of the General Corporation Law of the State of Delaware (the “DGCL”), in each case subject to said court having personal jurisdiction over the indispensable parties named as defendants therein. This provision may limit a shareholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with the company and its directors, officers, or other employees and may discourage lawsuits with respect to such claims. This provision does not apply to actions arising under the Exchange Act or Securities Act.
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We estimate that the net proceeds to us from our issuance and sale of shares of Common Stock in this Offering will be approximately $18,083,179, assuming an IPO price of $7.50 per share, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us. If the underwriter’s over-allotment option is exercised in full, we estimate that our net proceeds will be approximately $20,873,179. Each $1.00 increase (decrease) in the assumed IPO price of $7.50 per share would increase (decrease) the net proceeds to us from this Offering by approximately $2,480,000, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting underwriting discounts and commissions and estimated offering expenses payable by us. Each increase (decrease) of 100,000 in the number of Common Stock we are offering would increase (decrease) the net proceeds to us from this Offering, after deducting underwriting discounts and commissions and estimated offering expenses payable by us, by approximately $697,500, assuming the assumed IPO price stays the same.
The principal purposes of this Offering are to increase our capitalization and financial flexibility. As of the date of this prospectus, we cannot specify with certainty all of the particular uses for the net proceeds we receive from this Offering. However, we currently intend to use the net proceeds we receive from this Offering as follows:
| ● | Approximately $5 million to lease, develop and furnish a new production plant in South Carolina to service the East Coast; | |
| ● | Approximately $5 million to lease, develop and furnish a new production facility in Arizona/Nevada to service the West Coast; | |
| ● | $3,750,000 million will be used to pay for the redemption of 500,000 shares of Common Stock held by Mr. Horatio Lonsdale-Hand, one of our co-founders and the Chief Executive Officer of the Company; | |
| ● | The remainder is expected to be used for working capital, and other general corporate purposes, including the continuing capex initiatives in the Dallas plant and additional costs associated with being a public company. |
This expected use of the net proceeds that the Company will receive from this Offering represents our intentions based on our current plans and business conditions, which could change as our plans and business conditions evolve. The amounts and timing of our actual expenditures may vary significantly depending on numerous factors, including the progress of our development, our revenue, marketing, and manufacturing efforts, any collaborations that we may enter into with third parties for our products and any unforeseen cash needs. As a result, our management will retain broad discretion over allocating the net proceeds from this offering.
Pending our use of our net proceeds from this Offering, we intend to invest the net proceeds in a variety of capital preservation investments, including short-term, investment-grade, interest-bearing instruments and US government securities.
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Prior to this Offering, the Company was constituted as a limited liability company. Because a limited liability company is a pass through for tax purposes, and the limited liability company members were taxed on any profit of the Company in the respective tax year, the Company made distributions of the profit. In connection with this Offering, we have converted our business enterprise to a taxable “C” corporation, which is not a pass through tax entity.
Going forward, as a taxable corporation, we intend to retain future earnings, if any, to finance the operation and expansion of our business and do not anticipate paying any cash dividends in the foreseeable future. Any future determination related to our dividend policy will be made at the discretion of our board of directors after considering our financial condition, results of operations, capital requirements, business prospects, and other factors the board of directors deems relevant and subject to the restrictions contained in any future financing instruments.
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The following table sets forth our cash and cash equivalents and capitalization as of September 30, 2025, as follows:
● on an actual basis before the completion of the Conversion;
● on a pro forma to give effect to (i) our issuance and sale of shares of Common Stock by the Company in this Offering at an assumed IPO price of $7.50 per share, after deducting underwriting discounts and commissions and estimated offering expenses payable by us and therefore providing net proceeds of approximately $18,083,179 (assuming no exercise by the underwriter of its option to purchase additional shares from us) and (ii) the completion of the Conversion.
The information presented below on an “as adjusted” basis is illustrative only. Our capitalization following the closing of this Offering will be adjusted based on the actual IPO price and other terms of this Offering of the Common Stock determined at pricing. You should read this information in conjunction with our financial statements and the related notes included elsewhere in this prospectus, the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section, and other financial information contained in this prospectus.
| As of | ||||||||
September 30, 2025 (Unaudited) (in thousands) | ||||||||
| Actual | Pro Forma | |||||||
| Cash | $ | 2,062 | $ | 19,925 | ||||
| Total indebtedness | 0 | 0 | ||||||
| Common stock, $0.001 par value; 90,000,000 shares authorized; 10,000,000 shares issued and outstanding; Preferred stock, $0.001 par value, 10,000,000 shares authorized and 0 share issued and outstanding | 3,832 | 20,000 | ||||||
| Additional paid in capital | 0 | 10 | ||||||
| Total capitalization | $ | 3,832 | $ | 20,010 | ||||
The number of shares of our Common Stock to be outstanding upon completion of this Offering is based on 10,000,000 shares of our Common Stock outstanding as of September 30, 2025, after giving effect to the proposed Conversion, and excludes:
| ● | 266,667 (306,667 shares of Common Stock if the full amount of the overallotment option is exercised) shares of Common Stock issuable upon the exercise of the Underwriter’s Warrants; | |
| ● | 1,800,000 shares of Common Stock issuable upon exercise or conversion of outstanding convertible securities, options and reserved for issuance under the equity incentive plan to be adopted by the Company. |
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If you invest in our Common Stock in this Offering, your ownership interest will be immediately diluted to the extent of the difference between the assumed IPO price of $7.50 per share and the pro forma net tangible book value per share immediately upon the consummation of this Offering of the Common Stock by the Company. Net tangible book value per share represents the book value of our tangible assets less the book value of our total liabilities divided by the number of shares of Common Stock then issued and outstanding.
As of September 30, 2025, our actual net tangible book value was $3,832,000 and our actual net tangible book value per share was $0.38, assuming 10 million shares outstanding.
After giving effect to the Conversion, the Stock Redemption, and our sale of shares of Common Stock in this Offering at an assumed IPO price of $7.50 per share, after deducting estimated underwriting discounts, our pro forma net tangible book value would have been approximately $20,010,000, or approximately $1.58 per share (assuming no exercise of the underwriter’s option to purchase additional shares). This amount represents an immediate and substantial dilution of $5.92 per share to new investors purchasing Common Stock in this Offering by the Company. The following table illustrates this dilution per share:
| Assumed initial public offering price per share | $ | 7.50 | ||
| Net tangible book value per share as of September 30, 2025 | $ | 0.38 | ||
| Increase in pro forma net tangible book value per share to new investors attributable to this Offering | $ | 1.20 | ||
| Pro forma net tangible book value per share after giving effect to this Offering | $ | 1.58 | ||
| Dilution per share to new investors participating in this Offering | $ | 5.92 |
A $1.00 increase (decrease) in the assumed IPO price of $7.50 per share would increase (decrease) the pro forma net tangible book value by approximately $2,656,677, or approximately $0.21 per share, and increase (decrease) the dilution per share to new investors by approximately $0.015 per share, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting estimated underwriting discounts and commissions and estimated offering expenses (assuming no exercise of the over-allotment option to purchase additional share, and assuming no exercise of the Underwriter’s Warrants), in each case payable by us. We may also increase or decrease the number of shares we are offering. An increase (decrease) of 100,000 shares offered by us would increase (decrease) our pro forma net tangible book value by approximately $750,000, or $0.05 per share and increase (decrease) the dilution per share to new investors by approximately $0.003 per share, assuming the assumed IPO price remains the same and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. The pro forma information discussed above is illustrative only and will change based on the actual IPO price and other terms of this Offering determined at pricing.
If the underwriter exercises its over-allotment option in full to purchase the additional 400,000 shares sold by the Company in the Offering, the pro forma net tangible book value per share after this Offering would be $1.70 per share, and the dilution to new investors would be $0.01 per share, in each case assuming an IPO price of $7.50 per share, and after deducting underwriting discounts and commissions and the estimated offering expenses payable by us.
The number of shares of our Common Stock to be outstanding upon completion of this offering will be 12,666,667 shares assuming no exercise of the over-allotment by the underwriter, which is based on 10,000,000 shares of our common stock outstanding as of the date of this prospectus, and excludes, as of the date of this prospectus:
| ● | 266,667 shares of Common Stock (306,667 shares of Common Stock if the over-allotment is exercised in full) issuable upon the exercise of the Underwriter’s Warrants, and | |
| ● | 1,800,000 shares of Common Stock issuable upon exercise or conversion of outstanding convertible securities, options and reserved for issuance under the equity incentive plan to be adopted by the Company. |
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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion of our financial condition and results of operations in conjunction with “Summary Financial Data” and our financial statements and related notes included elsewhere in this prospectus. This management’s discussion and analysis, and other parts of this prospectus, contain forward-looking statements based upon current beliefs, plans, and expectations that involve risks, uncertainties, and assumptions. Our actual results and the timing of selected events could differ materially from those anticipated in these forward-looking statements due to several factors, including those set forth under “Risk Factors” and elsewhere in this prospectus. You should carefully read the “Risk Factors” section of this prospectus to understand the important factors that could cause actual results to differ materially from our forward-looking statements. Please also see the “Cautionary Note Regarding Forward-Looking Statements and Industry and Market Data” section in this prospectus. Unless otherwise indicated, the historical financial information presented in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” does not give pro forma effect to the Conversion.
Overview
Buda Juice, LLC (the Company) was founded in Dallas, Texas in October 2013. We operate in a highly competitive beverage industry, focused on UltraFreshTM, juice production for business-to-business (B2B) distribution.
Buda Juice offers a growing portfolio of UltraFreshTM, cold-crafted citrus-based beverages designed to meet the evolving preferences of consumers wanting ‘fresh’ products and the operational needs of modern grocery retailers. Buda Juice offers a core branded line, a Buda Fresh® value-forward range, and select white-label/private label solutions—each built on the same cold-crafted citrus platform and produced in our centralized, Juice HACCP- and SQF-certified facility. This multi-tiered strategy allows us to serve a broad range of customers while maintaining high margins, operational leverage, and product consistency. These products are sold in the produce department refrigerated sections and, in some stores, also on the perimeter beverage set. Our product portfolio consists of:
Products
(1) Buda Juice (Organic)
| ● | Wellness shots in 2 oz format | |
| ● | Available in 2-pack and 6-pack glass bottle configurations |
(2) Buda Fresh – Value-Forward Offering (Non-Organic)
| ● | 12 oz Lime Juice, 16 oz and 128 oz Lemon Juice | |
| ● | Fresh Orange and Grapefruit juice (16 oz and 52 oz) | |
| ● | Fresh Citrus-based line of Lemonades and Limeades (16 oz and 52 oz) |
(3) Private Label Products (Non-organic and Organic)
| ● | Fresh Citrus Line (52 oz) | |
| ● | Fresh Citrus-based line of Lemonades and Limeades (16 oz and 52 oz) |
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We exercise strong financial discipline when managing our business and executing on our growth strategies, and our financial performance reflects that. While many companies at our stage and with our growth profile adopt a “growth-at-all-cost” mindset, we have always been focused on production safety first, profitable, responsible, and sustainable growth.
Our recent historical financial performance reflects the strides we have made to scale and grow our business:
| ● | For the year ended December 31, 2024, we reported net sales of $11.2 million, representing a 20.2% increase from $9.3 million for the year ended December 31, 2023. For the six months ended June 30, 2025, we reported net sales of $6.5 million, representing a 17% increase from $5.5 million for the six months ended June 30, 2024. | |
| ● | For the year ended December 31, 2024, we generated gross profit of $5.2 million, representing a margin of 46% and a 27.3% increase from $4 million for the year ended December 31, 2023. For the six months ended June 30, 2025, we generated gross profit of $3 million, representing a 10.3% increase from $2.7 for the six months ended June 30, 2024. | |
| ● | For the year ended December 31, 2024, our net income was $3.5 million, representing a margin of 32% and a 58% increase from our net income of $2.2 million and a margin of 24% for the year ended December 31, 2023. For the six months ended June 30, 2025, our net income was $1.9 million, representing a margin of 30% and a 16.1% increase from $1.7 million for the six months ended June 30, 2024. | |
| ● | We have traditionally experienced minimal capital expenditures given our asset-light model. We believe that our operating cash flow, access to credit facilities, and this Offering, will provide us with sufficient capability to support our growth plans. |
Key Factors Affecting Our Performance
We believe that the growth of our business and our future success are dependent upon many factors, the most important of which are as follows:
Trustworthiness of our Brand
We have developed a strong and trusted brand that we believe has been integral to the growth and health of our business. In addition, we are continuously developing and sharpening our communication tactics to ensure that our story and mission are understood and resonate with consumers. The success and reputation of our brand is critical to the growth of our business and our future success. We aim to grow our brand by expanding distribution and investing in marketing to attract new consumers. To grow and maintain the health of our brand we must invest in sales and marketing and execute on our sales strategy to develop and deepen consumers’ connection to our brands.
Relationship with Growers and our Asset-Light Supply Chain Model
We believe our relationships with growers and our asset-light supply chain model have been integral to our ability to scale efficiently and compete effectively in the marketplace. Our strategic approach leverages existing long-term relationships, infrastructure, and expertise across the value chain. We have developed long-term relationships with growers, which has enabled us to receive the best fruit and competitive pricing. We contract established refrigerated transportation providers who manage the movement of raw materials from our suppliers directly to our production plant, ensuring product freshness and quality while minimizing capital investment. For outbound distribution, we optimize delivery with direct delivery, through third party refrigerated transportation providers, to retailers’ centralized distribution centers that efficiently serve multiple store locations.
Freshly Squeezed Citrus In-Store is Operationally Complex
Offering freshly squeezed juice in-store presents significant operational challenges that have historically prevented most supermarket retailers from capturing this category. Traditional fresh juice operations require substantial capital investment, dedicated refrigerated storage for perishable produce, protocols to maintain optimal freshness, while implementing rigorous food safety protocols. The combination of high operational complexity, significant capital requirements, and the high cost of training and labor for specialized expertise has created sufficient barriers to leave it out of reach for most retailers.
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Continue investing and developing operational efficiencies
To attain the production levels and efficiencies that propel our company, we have consistently grown and invested in our manufacturing process by implementing technology and automation throughout various stages. This approach has enabled us to optimize safety, enhance product quality, increase production output, maximize sanitation procedures, and reduce operational costs.
Components of Our Results of Operations
Net Sales
Our company generates revenue solely from product sales, including branded and private-label fresh juice products. Sales are made to wholesale distributors and retailers. Revenue is recognized at a point in time when control of the product transfers to the customer, which typically occurs upon delivery and customer acceptance.
Cost of Goods Sold
Cost of goods sold is comprised of the costs of raw materials and packaging utilized in the manufacture of products, in-bound freight charges, as well as certain internal transfer costs.
Gross Profit and Gross Margin
Gross profit is net sales less cost of goods sold, and gross margin is gross profit as a percentage of net sales. Gross profit has been, and will continue to be, affected by various factors, including the mix of products we sell, the channel through which we sell our products, the promotional environment in the marketplace, manufacturing costs, and commodity prices. We expect that our gross margin will fluctuate from period to period depending on the interplay of these variables.
Management believes gross margin provides investors with useful information related to the profitability of our business prior to considering all of the operating costs incurred. Management uses gross profit and gross margin as key measures in making financial, operating and planning decisions and in evaluating our performance.
Operating Expenses
Delivering and Handling Expenses
Shipping and handling costs are comprised of purchasing and receiving, inspection, warehousing, transfer freight, and other costs associated with product distribution after manufacture and are included as part of operating expenses.
Selling, General and Administrative Expenses
Selling, general and administrative expenses (“SG&A”) include marketing expenses, promotional expenses, and general and administrative expenses. Marketing and promotional expenses consist primarily of costs incurred promoting and marketing our products and are primarily driven by investments to grow our business and retain customers. General and administrative expenses include payroll, employee benefits, and other headcount-related expenses associated with supply chain and operations, finance, information technology, human resources and other administrative-related personnel, as well as general overhead costs of the business, including research and development for new innovations, rent and related facilities and maintenance costs, depreciation and amortization, and legal, accounting, and professional fees. We expense all SG&A as incurred.
Other Income (Expense), Net
Other Income
Other income consists of interest income earned on our cash and cash equivalents and insurance proceeds.
Interest income / (expense)
Interest expense consists of interest payable on our credit facilities while interest income consists of interest earned on our cash balances.
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Results of Operations for the Nine Months Ended September 30, 2025, and 2024
The following table summarizes our results of operations for the nine months ended September 30, 2025 and 2024, respectively:
| Nine Months Ended September 30, | Change | |||||||||||||||
| 2025 | 2024 | Amount | Percentage | |||||||||||||
| (in thousands) | (in thousands) | |||||||||||||||
| Net sales | $ | 9,714 | $ | 8,502 | $ | 1,213 | 14.3 | % | ||||||||
| Cost of goods sold | 5,301 | 4,546 | 756 | 16.6 | % | |||||||||||
| Gross profit | $ | 4,413 | $ | 3,956 | $ | 457 | 11.6 | % | ||||||||
| Operating expenses: | ||||||||||||||||
| Delivery and handling | 413 | 414 | (1 | ) | -0.4 | % | ||||||||||
| Selling, general and administrative | 1,211 | 983 | 228 | 23.2 | % | |||||||||||
| Total operating expenses | $ | 1,624 | $ | 1,397 | $ | 227 | 16.2 | % | ||||||||
| Income from operations | $ | 2,789 | $ | 2,559 | $ | 230 | 9.0 | % | ||||||||
| Other income (expense): | ||||||||||||||||
| Other income | 34 | 106 | (72 | ) | - | |||||||||||
| Interest income / (expense) | 35 | (55 | ) | 90 | 163.2 | % | ||||||||||
| Net income | $ | 2,858 | $ | 2,610 | $ | 248 | 9.5 | % | ||||||||
Net sales increased $1,213, or 14.3%, to $9,714 for the nine months ended September 30, 2025, from $8,502 for the nine months ended September 30, 2024. The increase was mainly driven by an increase in sales by our primary customer.
Gross Profit
| Nine Months Ended September 30, | Change | |||||||||||||||
| 2025 | 2024 | Amount | Percentage | |||||||||||||
| (in thousands) | (in thousands) | |||||||||||||||
| Cost of goods sold | $ | 5,301 | $ | 4,546 | $ | 756 | 16.6 | % | ||||||||
| Gross profit | 4,413 | 3,956 | 457 | 11.6 | % | |||||||||||
| Gross margin (percentage of net sales) | 45.4 | % | 46.5 | % | ||||||||||||
Cost of goods sold increased $756, or 16.6%, to $5,301 for the nine months ended September 30, 2025, from $4,546 for the nine months ended September 30, 2024. The increase was primarily driven by an increased volume of materials required to fulfill sales of our primary customer.
Gross profit increased by $457, or 11.6%, to $4,413 for the nine months ended September 30, 2025, from $3,956 for the nine months ended September 30, 2024. This was primarily driven by an increase in sales by our primary customer.
Operating Expenses
| Nine Months Ended September 30, | Change | |||||||||||||||
| 2025 | 2024 | Amount | Percentage | |||||||||||||
| (in thousands) | (in thousands) | |||||||||||||||
| Delivery and handling expense | $ | 413 | $ | 414 | $ | (1 | ) | -0.4 | % | |||||||
| Selling, general and administrative | 1,211 | 983 | 228 | 23.2 | % | |||||||||||
| Total operating expenses | $ | 1,624 | $ | 1,397 | 227 | 16.2 | % | |||||||||
Delivery and Handling Expense
Delivery and handing expense decreased by $1, or 0.4%, to $413 for the nine months ended September 30, 2025, from $414 for the nine months ended September 30, 2024. Although in total, delivery and handling expense did not change materially, there was an increase in third-party freight costs due to the increase in delivered volume to our largest customer for the nine months ended September 30, 2025 as compared to the same period in 2024. However, those increases were equally offset with a decrease in certain retail related delivery expenses when the Company closed all remaining retail stores in 2024.
Selling, General and Administrative Expenses
Selling, general, and administrative expense increased by $228, or 23.2%, to $1,211 for the nine months ended September 30, 2025, from $983 for the nine months ended September 30, 2024. The increase in selling, general and administrative expense was primarily driven by a decrease in retail related expenses such as rent and personnel, while offset with an increase in marketing and administrative personnel expenses.
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Other Income / (Expense), Net
| Nine Months Ended September 30, | Change | |||||||||||||||
| 2025 | 2024 | Amount | Percentage | |||||||||||||
| (in thousands) | (in thousands) | |||||||||||||||
| Other income / (expense) | $ | 34 | $ | 106 | $ | (72 | ) | - | ||||||||
| Interest income / (expense) | 35 | (55 | ) | 90 | 163.2 | % | ||||||||||
| Total other income / (expense) | $ | 69 | $ | 51 | 18 | 35.1 | % | |||||||||
Other income
Other income was $34 for the nine months ended September 30, 2025, a decrease of $72 from the nine months ended September 30, 2024. The decrease in other income was mainly a result of $104 of insurance proceeds being received during the nine months ended September 30, 2024 as compared to $22 for the same period in 2025.
Interest income / (expense)
Net interest income was $35 for the nine months ended September 30, 2025, while the Company incurred $55 of interest expense for the nine months ended September 30, 2024. The change from interest expense to interest income is a result of the Company’s line of credit being paid off during 2024 and no further borrowing during the nine months ended September 30, 2025, while also earning interest on daily cash balances.
Liquidity and Capital Resources
In the past few years, we have financed our operations primarily through cash generated from our business operations and proceeds on borrowings through our credit facilities. We had $2,062 and $993 of cash and cash equivalents as of September 30, 2025, and 2024, respectively.
Considering recent market conditions and our business assumptions, we have evaluated our operating cash flows and cash requirements and believe that current cash, cash equivalents, future cash flows from operating activities and cash available under our credit facility will be sufficient to meet our anticipated cash needs, including working capital needs, capital expenditures and contractual obligations for at least 12 months from the issuance date of the financial statements included herein and the foreseeable future.
Short-Term Cash Requirements
Our short-term cash requirements primarily include working capital needs to support inventory build, payroll, marketing, and other operating expenses, as well as approximately $188 thousand of lease obligations due within the next 12 months. We expect to fund these requirements with cash on hand, cash generated from operations, and borrowings under our credit facility, if needed.
Long-Term Cash Requirements
Our long-term cash requirements include approximately $683 thousand in lease obligations due beyond 12 months, along with anticipated capital expenditures to support our planned regional production facilities. These facilities will represent material investments and are expected to be funded through a combination of operating cash flows and financing activities. We may also pursue additional equity or debt financing in order to acquire or invest in complementary business, products, and/or new IT infrastructure. In the event that we require additional financing, we may not be able to raise such financing on terms acceptable to us or at all.
Lease Commitments
As of September 30, 2025, we were party to non-cancelable operating lease agreements related to our production facility and office space. Future minimum lease payments under this agreement total approximately $981 thousand, with $188 thousand due within the next 12 months and $793 thousand due thereafter through 2030. These commitments represent a significant use of cash and we expect to fund them through a combination of existing cash balances and cash flows from operations.
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Cash Flows
The following tables summarize our sources and uses of cash (amounts in thousands):
| Nine Months Ended September 30, | Change | |||||||||||||||
| 2025 | 2024 | Amount | Percentage | |||||||||||||
| (in thousands) | (in thousands) | |||||||||||||||
| Cash flows provided by (used in) | ||||||||||||||||
| Operating activities | $ | 2,667 | $ | 2,731 | $ | (64 | ) | -2.3 | % | |||||||
| Investing activities | (310 | ) | (535 | ) | 225 | 42.0 | % | |||||||||
| Financing activities | (2,182 | ) | (2,629 | ) | 447 | 17.0 | % | |||||||||
| Net increase / (decrease) in cash and cash equivalents | $ | 175 | $ | (433 | ) | $ | 608 | 140.4 | % | |||||||
As of September 30, 2025, the Company provided approximately $2,667 of cash from operating activities compared to cash provided of $2,731 for the same period in 2024.
As of September 30, 2025, the Company had approximately $2,062 cash and cash equivalents and no debt. This compares to $993 of cash and $200 debt related to our credit facility as of September 30, 2024.
Operating Activities
Our main source of operating cash is payments received from our customers. Our primary use of cash in operating activities are for cost of goods sold, and selling, general and administrative expenses.
During the nine months ended September 30, 2025, net cash provided by operating activities decreased nominally by $64 or 2.3%, to $2,667 as compared to $2,731 the nine months ended September 30, 2024. Though the decrease in cash provided by operating activities was not materially changed period over period in total it was somewhat impacted by the approximately $224 in cash used in preparation for a potential registration filing.
Investing Activities
During the nine months ended September 30, 2025, net cash used by investing activities decreased $225, or 42.0%, to $310 as compared to $535 the nine months ended September 30, 2024. The decrease in investing activities was due to a reduction of capital spending on equipment used to produce goods to be sold.
Financing Activities
During the nine months ended September 30, 2025, net cash used in financing activities decreased $447 or 17.0%, to $2,182 as compared to $2,629 the nine months ended September 30, 2024. The decrease in financing activities was primarily driven by the cash distributions paid to members of the Company for pass-through tax purposes that included tax liabilities for 2024 as well as 2025. Cash distributions to members were $2,182 and $819 for the nine months ended September 30, 2025 and 2024, respectively. In addition, for the nine months ended September 30, 2024 there were $1,810 of debt repayments made on the line of credit while no payments were made for the nine months ended September 30, 2025, due to the Company having no balance on the line of credit during that time.
Revenue Recognition
The Company recognizes revenue in accordance with Accounting Standards Codification (“ASC”) Topic 606, Revenue from Contracts with Customers (“ASC 606”). ASC 606 defines a five-step model that requires entities exercise judgment when considering the terms of contract(s), which include (1) identifying the contract or agreement with a customer, (2) identifying the performance obligations in the contract or agreement, (3) determining the transaction price, (4) allocating the transaction price to the separate performance obligations, and (5) recognizing revenue as each performance obligation is satisfied. Revenue is recognized at a point in time when control of the product transfers to the customer, which typically occurs upon delivery and customer acceptance. Each contract includes a single performance obligation to transfer control of the product to the customer. Our revenue is recognized net of allowances for returns, discounts, credits and any taxes collected from consumers.
The Company does not have any significant contracts with customers requiring performance beyond delivery, and contracts with customers contain no incentives or discounts that would meet the criteria for a distinct good or service that could cause revenue to be allocated or adjusted over time. Shipping and handling activities are performed before the customer obtains control of the goods and therefore represent fulfillment costs, which are included in cost of goods sold, rather than revenue.
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Recently Issued Accounting Pronouncements
A description of recently issued accounting pronouncements that may potentially impact our financial position and results of operations is disclosed in Note 4 to our financial statements.
Interest Rate Risk
We are exposed to market risks in the ordinary course of our business. These risks primarily include interest rate sensitivities.
As of September 30, 2025, the outstanding amounts related to our revolving credit facility incur interest fees at variable interest rates and are affected by changes in the general level of market interest rates. However, there was no outstanding balance on the credit facility as of September 30, 2025.
Inflation Risk
Inflation generally affects us by increasing our cost of transportation, labor and manufacturing costs. In recent years, we have seen fluctuating transportation costs caused by global supply chain disruptions or geopolitical instability and general inflation effects, which may cause pressure on our costs and margins. During the nine months ended September 30, 2025, general inflationary pressures continue to increase the certain elements of our cost of goods and operating expenses. There have been continued discussions about additional tariffs and other import related fees, on goods, including those imported and while the specifics are unclear, if tariffs are implemented on goods from other countries where our company does business, they may raise our company’s cost of importation of ingredients and require our company to adjust its pricing or strategy.
Credit Risk
We are exposed to concentration of credit risk from our major customers. As of September 30, 2025, sales to one customer represented approximately 97% of our revenue. We have not experienced credit issues with this customer. Although we do not maintain provisions for potential credit losses, we evaluate the solvency of our customers on an ongoing basis to determine if allowances for doubtful accounts and customer credits need to be recorded. Significant economic disruptions or a slowdown in the economy could result in substantial additional charges.
Customer Concentration Risk
For the nine months ended September 30, 2025 and 2024, one customer represented approximately 97% of revenue. Our results remain highly dependent on this customer, and any reduction or loss of business could materially affect our revenue and profitability.
In 2025, we began actively pursuing customer diversification, initiating discussions with several large retailers. These efforts led to a new account with a national retailer with initial store rollouts underway and additional expansion expected later this year. While this represents meaningful progress, revenue from these accounts has not yet been significant, and we expect our customer concentration to remain high in the immediate term.
Results of Operations
Year Ended December 31, 2024 and 2023.
The following table summarizes our results of operations for the years ended December 31, 2024 and 2023, respectively:
Year Ended December 31, | ||||||||
| 2024 | 2023 | |||||||
(in thousands) | (in thousands) | |||||||
| Net sales | $ | 11,274 | $ | 9,380 | ||||
| Cost of goods sold | 6,065 | 5,289 | ||||||
| Gross profit | $ | 5,209 | $ | 4,091 | ||||
| Operating expenses: | ||||||||
| Delivery and handling | 501 | 475 | ||||||
| Selling, general and administrative | 1,296 | 1,202 | ||||||
| Total operating expenses | $ | 1,798 | $ | 1,677 | ||||
| Income from operations | $ | 3,411 | $ | 2,414 | ||||
| Other income (expense): | ||||||||
| Other income | 252 | 26 | ||||||
| Interest expense | (89 | ) | (178 | ) | ||||
| Total other income (expense) | $ | 163 | $ | (152 | ) | |||
| Net income | $ | 3,574 | $ | 2,262 | ||||
Net sales increased $1,894, or 20.2%, to $11,274 for the year ended December 31, 2024, from $9,380 for the year ended December 31, 2023. The increase was primarily driven by an increase in sales volume and additional products.
Gross Profit
December 31, 2024 | December 31, 2023 | |||||||
| (in thousands) | (in thousands) | |||||||
| Cost of goods sold | $ | 6,065 | $ | 5,289 | ||||
| Gross profit | $ | 5,209 | $ | 4,091 | ||||
| Gross margin (percentage of net sales) | 46 | % | 44 | % | ||||
Cost of goods sold increased $869, or 16.7%, to $6,065 for the year ended December 31, 2024, from $5,289 for the year ended December 31, 2023. The increase was primarily driven by an increased volume of materials required to fulfill sales while also being offset by a decrease in per unit manufacturing cost.
Gross profit increased by $1,118, or 27.3%, to $5,209 for the year ended December 31, 2024, from $4,091 for the year ended December 31, 2023. This was primarily driven by an increase in sales, while also lowering the per unit manufacturing cost.
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Operating Expenses
December 31, 2024 | December 31, 2023 | |||||||
(in thousands) | (in thousands) | |||||||
| Delivery and handling expense | $ | 501 | $ | 475 | ||||
| Selling, general, and administrative | 1,296 | 1,202 | ||||||
| Total operating expenses | $ | 1,798 | $ | 1,677 | ||||
Delivery and Handling Expense
Delivery and handing expense increased by $27, or 5.6%, to $501 for the year ended December 31, 2024, from $475 for the year ended December 31, 2023. The increased delivery and handling expense was primarily driven by additional freight out costs due to additional deliveries to our customers driven by the increased sales volume.
Selling, General and Administrative Expenses
Selling, general, and administrative expense increased by $94, or 7.8%, to $1,296 for the year ended December 31, 2024, from $1,202 for the year ended December 31, 2023. The increased SG&A expense was primarily driven by an increase of $45 in general facility upkeep, with the remaining consisting in other general increases in professional fees, security and other general business expenses.
Other Income (Expense), Net
December 31, 2024 | December 31, 2023 | |||||||
| (in thousands) | (in thousands) | |||||||
| Other income | $ | 252 | $ | 26 | ||||
| Interest expense | (89 | ) | (178 | ) | ||||
| Other income (expense), net | $ | 163 | $ | (152 | ) | |||
Other Income
Other income increased by $226, or 870.9%, to $252 for the year ended December 31, 2024, from $26 from December 31, 2023. The increase in other income period over period was due to insurance recovery as disclosed in Note 8 to our financial statements.
Interest Expense
Interest expense decreased by $89, or 50.0%, to $89 for the year ended December 31, 2024, from $178 from December 31, 2023. The decrease in interest expense period over period was due to the repayment of the outstanding principal balance of the credit facility.
Liquidity and Capital Resources
In the past few years, the Company has financed our operations primarily through cash generated from our business operations and proceeds on borrowings through our credit facilities. We had $1,887 and $1,426 of cash and cash equivalents as of December 31, 2024 and 2023, respectively.
Considering recent market conditions and our business assumptions, we have reevaluated our operating cash flows and cash requirements and believe that current cash, cash equivalents, future cash flows from operating activities and cash available under our credit facility will be sufficient to meet our anticipated cash needs, including working capital needs, capital expenditures and contractual obligations for at least 12 months from the issuance date of the financial statements included herein and the foreseeable future.
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Our future capital requirements will depend on many factors, including our revenue growth rate, our working capital needs primarily for inventory build, our national footprint, the expansion of our marketing activities, the timing and extent of spending to support product development efforts, the introduction of new and enhanced products and the continued market consumption of our products. Our asset-light operating model has provided us with a low-cost nimble, and scalable supply chain, which allows us to adapt to changes in the market or consumer preferences while also efficiently introducing new products across our platform. We may seek additional equity or debt financing in the future in order to acquire or invest in complementary businesses, products and/or new IT infrastructures. In the event that we require additional financing, we may not be able to raise such financing on terms acceptable to us or at all. If we are unable to raise additional capital or generate cash flows necessary to expand our operations and invest in continued product innovation, we may not be able to compete successfully, which would harm our business, operations and financial condition.
We have an existing plant in Dallas, Texas. We are currently in the early stages of looking for a second regional cold-craft plant in South Carolina, which will serve as the cornerstone of our Southeast U.S. and East Coast expansion. Our third planned facility, currently contemplated is to be located in either Arizona or Nevada, and will serve as our West Coast production hub. Together, these three regional hubs—Texas (South Central), Florida/South Carolina (Southeast/East), and Arizona or Nevada (West)—will enable us to reach a majority of the U.S. population with refrigerated delivery under cold-chain-compliant conditions. By reducing average transit times and distances, we will be able to:
| ● | Preserve shelf life and nutrient density |
| ● | Lower logistics and freight costs |
| ● | Reduce spoilage and shrink for retail customers |
| ● | Improve gross margins through localized production |
Cash Flows
The following tables summarize our sources and uses of cash:
December 31, 2024 | December 31, 2023 | |||||||
| (in thousands) | (in thousands) | |||||||
| Cash flows provided by (used in): | ||||||||
| Operating activities | $ | 3,974 | $ | 2,228 | ||||
| Investing activities | (684 | ) | (249 | ) | ||||
| Financing activities | (2,829 | ) | (1,393 | ) | ||||
| Net increase in cash and cash equivalents | $ | 461 | $ | 586 | ||||
As of December 31, 2024, the Company used approximately $3,974 of cash from operating activities compared to cash used of $2,228 for the same period in 2023.
As of December 31, 2024, the Company had approximately $1,887 cash and cash equivalents and no debt. This compares to $1,426 of cash and $2,010 of total debt related to our credit facility for the same period in 2023.
Operating Activities
Our main source of operating cash is payments received from our customers. Our primary use of cash in operating activities are for cost of goods sold, and selling, general and administrative expenses.
During the year ended December 31, 2024, net cash provided by operating activities increased $1,746, or 78.4%, to $3,974 as compared to $2,228 the year ended December 31, 2023. The increase in cash provided by operating activities was substantially driven by growth in sales.
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Investing
Activities
During the year ended December 31, 2024, net cash used by investing activities increased $435, or 174.9%, to $684 as compared to $249 the year ended December 31, 2023. The increase in investing activities was due to purchases of equipment used to produce goods to be sold.
Financing Activities
During the year ended December 31, 2024, net cash used in financing activities increased $1,436, or 103.1%, to $2,829 as compared to $1,393 the year ended December 31, 2023. The increase in financing activities was primarily driven by the repayment of the credit facility.
Revenue Recognition
The Company recognizes revenue in accordance with Accounting Standards Codification (“ASC”) Topic 606, Revenue from Contracts with Customers (“ASC 606”). ASC 606 defines a five-step model that requires entities exercise judgment when considering the terms of contract(s), which include (1) identifying the contract or agreement with a customer, (2) identifying the performance obligations in the contract or agreement, (3) determining the transaction price, (4) allocating the transaction price to the separate performance obligations, and (5) recognizing revenue as each performance obligation is satisfied. Revenue is recognized at a point in time when control of the product transfers to the customer, which typically occurs upon delivery and customer acceptance. Each contract includes a single performance obligation to transfer control of the product to the customer. Our revenue is recognized net of allowances for returns, discounts, credits and any taxes collected from consumers.
The Company does not have any significant contracts with customers requiring performance beyond delivery, and contracts with customers contain no incentives or discounts that would meet the criteria for a distinct good or service that could cause revenue to be allocated or adjusted over time.
Interest Rate Risk
We are exposed to market risks in the ordinary course of our business. These risks primarily include interest rate sensitivities.
As of December 31, 2024, the outstanding amounts related to our revolving credit facility incur interest fees at variable interest rates and are affected by changes in the general level of market interest rates. However, there was no outstanding balance on the credit facility as of December 31, 2024.
Inflation Risk
Inflation generally affects us by increasing our cost of transportation, labor and manufacturing costs. In recent years, we have seen fluctuating transportation costs caused by global supply chain disruptions or geopolitical instability and general inflation effects, which may cause pressure on our costs and margins. During the year ended December 31, 2024 and 2023, general inflationary pressures continue to increase the other elements of our cost of goods and operating expenses. Recently, there have been discussions about potential tariffs and other import related fees, on goods, including those imported and while the specifics are unclear, if tariffs are implemented on goods from other countries where our company does business, they may raise our company’s cost of importation of ingredients and require our company to adjust its pricing or strategy.
Credit Risk
We are exposed to concentration of credit risk from our major customers. As of December 31, 2024 and 2023, sales to one customer represented approximately 95% of our net sales. We have not experienced credit issues with this customer. We have not experienced any losses in such accounts and believes it is not exposed to significant risk. Significant economic disruptions or a slowdown in the economy could result in substantial additional charges.
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Overview
Buda Juice is pioneering a new category in beverages-UltraFreshTM juice-offering cold-crafted citrus-based drinks that are never pasteurized, never HPP- processed, never UV- treated and always cold. We combine clean label simplicity, high-tech enhanced cold chain logistics and vertically integrated production to deliver a consistently safe fresh product at scale. Our vision is to make UltraFreshTM juice the new standard, providing clean-living beverages in every grocery store across the U.S., without compromise on safety, taste or nutrients. Our end-to-end cold chain platform delivers always cold, freshly crafted juice, lemonades and wellness shots to grocery retailers in Texas. We have positioned ourselves to take over an underserved market segment that bridges the gap between shelf-stable products and operationally prohibitive in-store juicing, enabling any retailer to offer truly fresh juice without infrastructure investment or operational complexity.
Our breakthrough lies in solving the industry’s fundamental challenge: delivering fresh-crafted quality on a retail scale. While traditional juice companies rely on heat pasteurization, UV treatment or high-pressure processing that degrades flavor and nutrients, and in-store juicing remains limited to less than 5% of grocery stores due to operational barriers, we maintain 35°F temperature control from fruit to shelf. This cold chain process, combined with our centralized production model and food safety protocols, delivers products with 8-12 day shelf life - long enough for retail distribution yet fresh enough to preserve the authentic taste consumers demand.
Buda Juice has created a new category within the juice industry: UltraFreshTM juice: a solution that captures the purity, vibrancy, and nutrition of freshly cold crafted juice, made possible through our cold-chain infrastructure and centralized production model. Unlike traditional juice products that rely on heat pasteurization, UV or high-pressure processing (HPP), or the operational complexity of in-store squeezing.
This UltraFreshTM process eliminates the traditional industry tradeoffs. The juice industry has historically operated under significant compromises: achieving shelf life through pasteurization, UV or HPP at the cost of flavor and nutrient degradation.
Our platform addresses this market gap by enabling grocery chains to offer always cold, freshly cold-crafted juice without the operational burden that traditional in-store preparation requires. In-store juice preparation requires dedicated, certified clean spaces with specialized equipment, processes, and labor, investments that most retailers have not accounted for and are unwilling to make. Our centralized production model directly addresses these operational challenges while delivering fresh delicious and safe products
We have validated our model through strong financial performance, growing revenue from $5.6 million in 2022 to $11.2 million in 2024, representing a 41.8% CAGR. Currently operating from our Dallas plant, we are executing a disciplined geographic expansion strategy with planned facilities in South Carolina (2026) and Arizona or Nevada (2027), which will enable us to serve a large percentage of the U.S. population.
Our market opportunity extends far beyond where we are today. Within the $55.5 billion U.S. juice market1, we are uniquely positioned to capture share across multiple segments: the $8.7 billion refrigerated juice category2, the growing wellness shot market, and the expanding private label segment. As we transition from regional proof-of-concept to national platform, we project revenue to expand significantly as we complete our three-hub infrastructure and diversify across retail, food service, and direct-to-consumer channels
1 Source: IMARC Group, “United States Fruit Juice Market: Industry Trends, Share, Size, Growth, Opportunity and Forecast 2024-2032,” https://www.imarcgroup.com/united-states-fruit-juice-market-statistics
2 Source: Chloe Alverson, “2025 State of the Beverage Industry: Innovation breathes new life into juice market,” Beverage Industry, July 17, 2025, https://www.bevindustry.com/articles/97650-2025-state-of-the-beverage-industry-innovation-breathes-new-life-into-juice-market
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Product Portfolio
Our product portfolio consists of fresh citrus juice, fresh citrus-based line of lemonades and wellness shot offerings across multiple brand lines and retail customers, all produced using our cold chain process:
Products
Buda Juice (Organic)
| ● | Wellness shots in 2 oz format | |
| ● | Available in 2-pack and 6-pack glass bottle configurations |
Buda Fresh – Value-Forward Offering (Non-Organic)
| ● | Fresh 12 oz Lime Juice, 16 oz and 128 oz Lemon Juice | |
| ● | Fresh Orange and Grapefruit Juice (16 oz, 32 oz and 52 oz) | |
| ● | Fresh Citrus-based Lemonades and Limeades (16 oz and 52 oz) |
Private Label Products (Non-organic and Organic)
| ● | Fresh Citrus Line (52 oz) | |
| ● | Fresh Citrus-based Lemonades and Limeades (52 oz) |
Our product portfolio demonstrates both brand diversification and private label manufacturing capabilities, allowing us to serve multiple market segments while leveraging our core cold chain production platform. The organic wellness shots represent our premium positioning and our fresh citrus juices, fresh citrus-based lemonades and private label offerings provide broader market access and volume scale in the UltraFreshTM category.
The strategic focus on citrus as our foundational ingredient provides exceptional product development flexibility and speed-to-market advantages. Since citrus serves as the natural base for our entire portfolio, from fresh orange juice to tasty lemonades, we can rapidly innovate by pairing this stable, high-quality foundation with seasonality, trends, and functional ingredients.
Market Opportunity
The United States fruit juice market represents a substantial opportunity, valued at $55.5 billion in 2024 and projected to reach $77.5 billion by 2033, growing at a compound annual growth rate of 3.8%, according to IMARC Group. Within this market, supermarkets and hypermarkets account for 60% to 70% of total juice sales, aligning directly with our retail-focused business model. 3
Most grocery retailers don’t offer freshly squeezed juice due to operational complexities. This underserved market represents substantial opportunity for our centralized UltraFreshTM model, enabling retailers to offer premium products without operational burden across refrigerated fresh citrus juice, citrus-based line of lemonades and wellness shots.
3 Source: DataHorizzon Research, “Juice Market Size, Trends, Growth & Analysis Report – 2033,” DataHorizzon Research, https://datahorizzonresearch.com/juice-market-54509
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Nearly two-thirds of Americans consume juice at least once per week, with Generation Z and Millennials representing the largest and fastest-growing consumer segments. These demographics prioritize health, convenience, and flavor variety in their beverage choices. Primary purchase drivers across all consumer segments include products featuring real or natural ingredients, no artificial flavors or colors, vitamin or mineral fortification, and low or reduced sugar content. Consumers demonstrate strong preference for fresh, intensely flavored products that deliver health benefits, creating favorable conditions for premium fresh juice offerings4.
Within the juice market and more specifically the lemonade segment, there is significant growth momentum with a global market valuation of $9.7 billion in 2024, with industry forecasts projecting market expansion to $16.7 billion by 2034, reflecting a compound annual growth rate of 6.3%. The U.S. represents about 27% of the global lemonade market. Consumers are becoming health-conscious, driving demand for beverages that offer natural ingredients and essential nutrients. Lemonade, rich in vitamin C has gained significant traction among individuals looking for hydration with added wellness benefits.5
With one in three consumers believing that natural ingredients are the best way to make beverages healthier, we believe the freshly-squeezed juice category remains underpenetrated relative to traditional juice products and we believe that there is no one that has achieved scale in this segment.
Competition and Competitive Positioning
We operate in the large and fragmented U.S. juice market, where we are driving the UltraFreshTM category: always cold-crafted fresh citrus delivered through centralized production. Our competitive landscape consists of multiple segments, each with distinct processing methods, shelf life characteristics, and value propositions.
Competitive Landscape by Processing Method
The juice market is segmented based on production methodology, each segment representing different trade-offs between shelf life, nutritional integrity, and taste.
Heat-Processed Juice: Traditional pasteurization including ‘light’ or ‘Gourmet’ pasteurization remain the dominant processing method in the juice industry, extending shelf life between 60 days to 12 months but significantly degrading flavor compounds and heat-sensitive nutrients. Major players include Tropicana (PepsiCo), and Minute Maid, Simply Orange (Coca-Cola). These products achieve broad distribution through extensive networks and marketing scale, but we believe cannot match the flavor profile of fresh juice.
High-Pressure Processing (HPP): HPP technology extends shelf life to 30-90 days while maintaining better nutritional content than heat processing. Key competitors utilizing this method include Suja Juice, Naked, Evolution Fresh, and Bolthouse Farms. While positioned as premium, HPP still alters molecular structure, and we believe cannot achieve true fresh taste.
Cold-Pressed: Boutique juice bars offer 3-5 day shelf life products, but we believe face challenges with inconsistent quality, high production costs, and limited distribution capability. Most operate through direct-to-consumer or limited specialty retail channels.
In-Store Fresh-Squeezed: Select premium retailers and certain regional chains offer in-store juicing. However, this model faces significant operational constraints including labor intensity, food safety complexity, equipment maintenance, inconsistent quality, and limited SKU variety. We believe less than 5% of U.S. grocery stores have in-store juicing capabilities.
4 Source: Innova Market Insights, “Juice Market Trends in the US,” published ~1.2 years ago, https://www.innovamarketinsights.com/trends/juice-market-trends-in-the-us/
5 Source: Research and Markets via GlobeNewswire, “Lemonade Industry to Reach $16.7 Billion by 2034 as Demand for Healthy, Natural Beverages Rises,” published April 9, 2025, available at https://www.globenewswire.com/news-release/2025/04/09/3058290/0/en/Lemonade-Industry-to-Reach-16-7-Billion-by-2034-as-Demand-for-Healthy-Natural-Beverages-Rises.html
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Key Elements of Our UltraFreshTM Process
Buda Juice’s core innovation, and primary competitive advantage, is our continuous cold chain process that maintains products at 35°F throughout the entire supply chain. This system enables us to deliver UltraFreshTM, always fresh cold-crafted juice to retailers and consumers with uncompromised flavor, nutritional integrity, and food safety.
Orchard Selection and Cold Storage: We source tree picked citrus fruits, including Valencias, lemons, limes, and grapefruits. Immediately after harvest, fruits are transferred into refrigerated environments to prevent degradation and preserve essential vitamins and antioxidants.
Centralized Production Facility: Our state-of-the-art, centralized juicing plant operates at a consistent 35°F and is certified under both Juice HACCP (Hazard Analysis and Critical Control Points) and SQF (Safe Quality Food) standards. The facility is optimized for microbial safety, juice clarity, and flavor preservation while reducing contamination risks associated with decentralized operations.
High-tech Powered Automation: We incorporate automation and high-tech innovation across our production line to optimize consistency, improve yield, and reduce labor costs. Our systems monitor juice flow, temperature stability, washing processes, sanitation cycles, and bottling precision, enabling us to maintain exceptionally high quality and safety standards at scale.
Cold Chain Distribution: From our facility to retail shelves, every bottle maintains refrigerated conditions without interruption. We work with cold chain logistics providers to ensure our UltraFreshTM products arrive at retailers with safety as first priority and their nutrient profile, taste, and shelf life fully intact.
The 35°F temperature control is vital for food safety and quality, as it slows bacterial growth and prevents the proliferation of spoilage organisms and pathogens on produce surfaces. The controlled cold chain preserves nutrients and flavor by slowing enzymatic reactions and oxidation that can degrade vitamins, extends shelf life by reducing water loss and preventing premature spoilage, and prevents browning by inhibiting enzymes like polyphenol oxidase.
Our quality assurance process begins with comprehensive inspection of each fruit delivery, evaluating multiple markers including ripeness, contamination, mold presence, pH levels, Brix levels, and visual quality indicators. We have developed a proprietary wash system receiving validation from a leading university research institution. Our manufacturing facilities maintain high cleaning and sanitizing standards, with standardized processes designed to promote safety, cleanliness, and control humidity levels to prevent mold and bacterial growth.
Customer Concentration and Diversification Progress
We have had significant retail customer concentration. A single customer represented approximately 97% of our net sales for the six months ended June 30, 2025, compared to 95% and 90% for the years ended December 31, 2024 and 2023, respectively. This increasing concentration highlights our dependence on this customer.
In 2025, we launched diversification initiatives and successfully onboarded a new national retailer, with initial store rollouts currently underway. While this represents an important step in broadening our customer base, revenues from new customers remain immaterial, and we expect customer concentration to continue in the immediate term. We remain focused on expanding into additional regional and national retailers to mitigate this risk over time.
Our Business Strategy
Geographic Expansion Strategy
We are executing a disciplined, infrastructure-led expansion strategy to establish national distribution capabilities for our UltraFreshTM cold-crafted citrus-based juice platform. Our three-facility hub model is designed to serve a large percentage of the U.S. population while maintaining product integrity through minimized transportation distances and optimized delivery timelines. We will be building the production infrastructure at these locations and lease the space.
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Current Operations: Texas Hub
Our Dallas, Texas, production plant serves as our primary manufacturing and distribution center, validating our operational model and cold chain capabilities. This 38,000-square-foot plant maintains both HACCP and SQF certifications and currently services the South Central United States. The coverage area of this facility is Texas, Oklahoma, Louisiana, and Arkansas, Mississippi, and New Mexico.
Phase Two: Southeast Hub - South Carolina ( projected to be 2026)
We intend to establish our second production facility in South Carolina, with operations expected to commence in the second half of 2026. This facility will serve the Southeast and Mid-Atlantic regions. We believe it will require approximately $5 million for leasehold improvements, equipment, and operational setup.
Phase Three: Western Hub – Arizona/Nevada (projected to be 2027)
Our third facility, planned for Arizona or Nevada with targeted operations beginning in the second half of 2027, will enable us to serve Western U.S. markets. This facility will serve the West and Northwest regions, including California, Arizona, Nevada, Utah, Colorado, Oregon and Washington State. We believe it will require approximately $5 million for leasehold improvements, equipment, and operational setup.
Sales and Distribution Strategy
We have achieved our current growth through a capital-efficient sales model that leverages strategic relationships and the inherent product differentiation of our UltraFreshTM platform. To date, our sales and development efforts have been led by our Chief Executive Officer and our Executive Chairman, with support from one dedicated marketing professional. This lean structure has proven effective in establishing our initial market presence and validating our business model.
As we expand our geographic footprint and retail customers, we are in discussions with several regional and national retailers. Our leadership team’s extensive industry relationships provide direct access to senior decision-makers at major retail chains.
Marketing and Brand Building
We are committed to expanding brand awareness through targeted education strategies that emphasize the distinctive taste, quality, and integrity of our cold-chain-dependent juice. Sampling plays a role in converting trial into loyalty, as consumers consistently appreciate the superior taste and sensory profile of our products. To accelerate adoption and awareness, we plan to expand in-store demonstration programs and allocate marketing resources to key markets.
Online grocery remains one of the fastest-growing segments in the industry, and we plan to develop and support marketing programs to capture growth in this dynamic channel.
As we continue with our successful private label offering, we will also plan to directly increase our branded product distribution, and we anticipate measured increases in marketing investment to build brand awareness and drive consumer purchasing. Our marketing strategy will focus on in-store activation through sampling programs, targeted digital campaigns focusing on UltraFreshTM positioning to consumers, and strategic promotional programs aligned with retailer objectives.
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Channel Expansion
Beyond our core grocery retail focus, we have identified significant untapped opportunities in complementary channels including restaurants, bars, hotels, and institutional food service. These channels value our combination of premium quality, food safety certification, and operational simplicity. We plan to develop dedicated sales resources to pursue these opportunities as we establish production capacity in new regions.
Our differentiated product positioning provides advantages in the sales process. Our UltraFreshTM platform offers this segment a unique value proposition that delivers fresh and ‘ready to serve’ products at approximately the cost of raw produce they are currently buying but without labor or capital costs.
Competitive Advantages and Barriers to Entry
We believe our business model creates significant competitive advantages that are difficult for both emerging and legacy beverage companies to replicate. These advantages stem from five key operational and strategic barriers:
End-to-End Cold Chain Infrastructure: Our continuous 35°F cold chain system requires substantial investment, specialized operational expertise, and complex logistics coordination. This infrastructure is difficult to replicate and enables us to maintain consistent product quality and integrity throughout the supply chain.
Asset-Light Model: We have strategically integrated critical production processes while maintaining capital efficiency through selective outsourcing. This structure provides quality control at essential points in our supply chain while preserving operational flexibility and margin optimization.
Established Grower Relationships: We maintain long-term relationships with citrus growers that ensure a consistent supply of premium fruit at competitive prices. These relationships, developed over multiple growing seasons, provide supply chain stability that would require years for competitors to replicate.
Retail Network: Our executive team, led by our Executive Chairman, brings decades of experience and established relationships with major U.S. grocery retailers. Our Executive Chairman has previously founded, scaled, and successfully exited companies in the “fresh” category with distribution in leading national chains. These existing relationships significantly reduce the time and cost typically required to secure retail authorization and shelf placement. Our demonstrated ability to drive category growth while simplifying operations for retail customers has created strong retailer loyalty that reinforces our competitive position.
Strategic Retail Relationship Model: We serve as a comprehensive solution provider that addresses the operational challenges of offering fresh-squeezed juice for large grocery retailers. Our model eliminates the need for retailers to invest in dedicated clean spaces, specialized equipment, trained labor, and food safety management that in-store juicing requires. Traditional in-store squeezing presents numerous challenges including labor-intensive preparation, costly equipment maintenance, food safety complexity, inconsistent output, inefficient use of valuable store space and the cost of increasing labor. Our centralized, Juice HACCP production facility ensures consistent quality and shelf-life while eliminating these operational complexities and associated liabilities. This turnkey solution creates significant value for the retail customer, making us an indispensable category provider rather than simply a vendor.
These combined advantages create substantial barriers to entry, and we believe they will drive us to market leadership as we scale up our operations.
Supplier Orders
Our relationships with retail and distribution partners are generally based on standard purchase order arrangements rather than long-term written contracts. Customer orders are transmitted electronically through an industry-standard electronic data interchange (“EDI”) platform, which provides a secure and efficient means of placing, processing, and tracking orders. Once received, orders are automatically integrated into our internal systems, enabling timely confirmation, fulfillment, and coordination with our cold-chain logistics to ensure product quality is maintained through delivery.
Distribution Methods
We distribute our products to retailers primarily through third-party cold-chain logistics providers and regional/national distributors that transport finished goods from our production facility to retailer distribution centers and stores. These relationships are non-exclusive and are entered into under customary commercial terms.
Our distributors and logistics vendors are required to maintain continuous refrigerated handling at a specified temperature of 35°F, which is verified prior to loading, and trailers must be at the required temperature before product is loaded for transport. Vendors are obligated to carry insurance sufficient to cover product loss due to mishandling or temperature non-conformance, and our agreements contain standard provisions regarding insurance, indemnification, compliance with food-safety regulations, audit/inspection rights, and limitations of liability.
We retain the right to discontinue a vendor’s services at any time, without penalty, for any reason and without prior notice. We believe qualified cold-chain providers are numerous and competitively priced, and if a provider relationship is discontinued, we expect we could transition lanes to alternate providers without significant disruption.
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Intellectual Property
Trademark Portfolio
We have developed a comprehensive trademark portfolio in the United States to protect our brand identity and product innovations. As of December 31, 2024, we own thirteen registered trademarks and have two pending applications, providing protection for our core brands and proprietary processes.
Registered Trademarks
Our registered trademark portfolio in the United States include:
| ● | BUDA JUICE® - Our flagship brand registered in the United States (2015) |
| ● | FRESH35® - Registered in the United States (2024), protecting our fresh juice positioning, 35 as a nod to the temperature of our facility. |
| ● | COLDPRESSED 35°® - Registered in the United States (2018), emphasizing our unique temperature-controlled process. |
| ● | ZEN® product line - Including ZEN BLUE ALGAE (2024, U.S.), ZEN GRAPEFRUIT (2020, U.S.), and ZEN ORANGE (2020, US), protecting our wellness shot varieties . |
| ● | RAW ORGANIC REAL® - Registered in the United States (2015) for our organic positioning. |
| ● | C-PAK® - Registered in the United States (2019) for our packaging. |
These registrations are generally renewable for successive ten-year periods, subject to our continued use of the marks, timely payment of renewal fees and compliance with applicable trademark laws and procedures in each jurisdiction.
Pending Applications
We have two strategic trademark applications pending in the US:
| ● | BUDA FRESH™ - Filed March 2024, covering our fresh juice line. |
| ● | ULTRA FRESH™ - Filed December 2024, protecting our pioneering juice category positioning. |
Trade Secrets and Proprietary Processes
Beyond our registered trademarks, we maintain valuable trade secrets and proprietary processes that provide competitive advantages:
| ● | Proprietary Wash System - Validated by a leading university research institution, our washing process maximizes pathogen removal while preserving fruit integrity. |
| ● | Cold Chain Protocols - Detailed operational procedures for maintaining 35°F temperature control throughout our supply chain. |
| ● | Production Formulations - Proprietary recipes for our fresh cold-crafted citrus-based line of Lemonades and Limeades. |
Our intellectual property strategy focuses on protecting both our consumer-facing brands and our operational innovations. We work with a leading law firm to maintain and expand our trademark portfolio as we enter new markets and launch new products. As we scale nationally, we will continue to invest in protecting our brand identity and proprietary processes that differentiate us in the marketplace.
We do not currently maintain a patent portfolio, having determined that our competitive advantages are most effectively protected through trade secrets, proprietary operational processes, regulatory certifications, and specialized infrastructure investments. Our core differentiators include proprietary production methodologies, food safety protocols, and continuous cold chain systems that we believe derive greater strategic value when maintained as confidential trade secrets rather than disclosed through patent filings.
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Regulatory Compliance
Federal and State Regulatory Framework
As a producer of fresh juice products, our manufacturing operations are subject to FDA oversight under 21 CFR Part 120 (Juice HACCP regulation), which requires validated 5-log pathogen reduction protocols. In Texas, we fall under the Texas Department of State Health Services (DSHS) regulations, which set the standards for safety in the state. As we expand to other states, we will continue to operate under FDA and Juice HACCP requirements while also complying with each state’s specific health department requirements.
We maintain NSF certification, SQF Food Safety Code certification (GFSI-recognized, annually recertified), and USDA organic certification for our organic product lines and all products are Kosher Certified. Our Juice HACCP-certified personnel and third-party testing through Food Safety Net Services ensure ongoing compliance.
Suppliers
We source our raw materials from a limited number of suppliers located in California, Arizona, and Mexico. Our supplier relationships are based primarily on the quality of the products they provide. Some suppliers have represented more than 10% of our total product purchases in a given year. For example, in 2024 Full Harvest Technologies, Inc., and C.K.S. Packaging, Inc., accounted for more than 10% of our purchases, while in 2023, neither accounted for more than 10%. This shift reflects our ability to select suppliers based on product quality and availability rather than dependence on any single supplier.
Although we have the ability to substitute among suppliers, there can be no assurance that alternative suppliers would always be able to provide products on a timely basis, at comparable prices, or at the same level of quality. As our business grows, we intend to continue to expand and diversify our supplier base to reduce concentration risk and ensure continuity of supply.
Seasonality in Demand and Suppliers
Our business experiences moderate seasonality, with higher consumption during the summer months when hot weather drives increased demand for refreshing beverages. During peak summer periods, we typically see a 20-30% increase in sales volume as consumers seek out cold, healthy refreshment options. Our citrus juice products, particularly lighter citrus and tropical blends, resonate strongly during these warmer months when hydration and refreshment become top priorities for consumers.
Our supply chain also faces seasonality challenges, particularly with citrus fruits that have distinct growing seasons. To ensure year-round availability of fresh, high-quality citrus, we’ve strategically diversified our sourcing across multiple growing regions. We work with growers in California, Arizona, and Texas, timing our procurement to align with each region’s optimal harvest periods. When domestic citrus is out of season or to supplement supply during peak demand, we also source from growers in Mexico, taking advantage of their complementary growing seasons. This geographic diversification ensures consistent access to fresh citrus while maintaining our quality standards and certification requirements.
While this seasonality creates some fluctuation in both revenue and sourcing throughout the year, our diverse product portfolio helps mitigate extreme swings.
Employees
As of March 31, 2025, we had approximately 40 full-time employees.
Properties and Facilities
We entered into a Commercial Lease Agreement with Lewis Warehouse Management Group LLC for 21,476 square feet for our corporate office, commencing on April 1, 2020, and continuing through July 31, 2025. The base rental schedule is as follows:
| - | April 1, 2020 – July 31, 2020 $0.00 | |
| - | August 1, 2020 – July 21, 2021 $8,900.00 | |
| - | August 1, 2021 – July 31, 2022 $9,216.00 | |
| - | August 1, 2022 – July 31, 2023 $9,306.00 | |
| - | August 1, 2023 – July 31, 2024 $9,398.00 | |
| - | August 1, 2024 – July 31, 2025 $9,843.00 |
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We amended the original Commercial Lease Agreement which extended the lease expiration to July 31, 2030.
Under the amended lease, the new base rental includes increasing the space from 22,000 square feet to 38,000 square feet. The fee schedule shall be as follows:
| - | August 1, 2025 – July 31, 2026 $15,552.00 | |
| - | August 1, 2026 – July 31, 2027 $16,151.00 | |
| - | August 1, 2027 – July 31, 2028 $16,814.00 | |
| - | August 1, 2028 – July 31, 2029 $17,476.00 | |
| - | August 1, 2029 – July 31, 2030 $18,234.00 |
Legal Proceedings
Occasionally, we may be involved in various disputes and litigation matters that arise in the ordinary course of business.
Corporate Information
We filed a certificate of formation as a limited liability company in the state of Texas on October 23, 2013.
We plan to undertake a statutory conversion from Buda Juice, LLC a Texas limited liability company to Buda Juice, Inc. a Delaware corporation in connection with this Offering (the “Conversion”). The Conversion will be effected in accordance with the Texas Business Organizations Code and the Delaware General Corporation Law. As part of this process, Buda Juice, LLC will adopt a plan of conversion pursuant to Section 10.101 of the Texas Business Organizations Code, which must then be approved in accordance with the Buda Juice, LLC’s governing documents and Texas law. Following approval, Buda Juice, LLC will file a certificate of conversion with the Texas Secretary of State and obtain a certificate of account status from the Texas Comptroller of Public Accounts confirming that it is in good standing for the purposes of conversion. In Delaware, Buda Juice, LLC will file a certificate of conversion and a certificate of incorporation with the Delaware Secretary of State and comply with all applicable Delaware legal requirements, including appointing a registered agent, maintaining a registered office in Delaware, and paying applicable fees and taxes. Upon the Conversion becoming effective pursuant to applicable legal requirements of the States of Texas and Delaware, Buda Juice, Inc. will thereafter exist as a Delaware corporation, continuing as the same entity for all legal purposes, with all of the rights, privileges, and obligations of the Buda Juice, LLC preserved without the need to wind up its affairs. We plan to consummate the Conversion immediately before the closing of this offering.
Our principal executive offices are located at 4030 Black Gold Drive, Dallas, Texas 75247, and our telephone number is (214) 308 5003. Our website address is www.budajuice.com. Information contained on, or that can be accessed through, our website does not constitute part of this prospectus, and the inclusion of our website address in this prospectus is an inactive textual reference only. Investors should not rely on any such information in deciding whether to purchase our Common Stock.
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Executive Officers and Directors
The following table sets forth the name, age as of the date of this prospectus, and position of the individuals who serve as directors and executive officers of the Company. The following also includes certain information regarding the individual experience, qualifications, attributes and skills of our directors and executive officers as well as brief statements of those aspects of our directors’ backgrounds that led us to conclude that they are qualified to serve as directors.
| Name | Age | Position | ||
| Executive Officers | ||||
| Horatio Lonsdale-Hands | 69 | Co-Founder, and Chief Executive Officer | ||
| Clint Bowers* | 48 | Chief Financial Officer Nominee | ||
| Karina Farquharson | 47 | Vice President, Marketing & Data Analytics | ||
Directors |
||||
| Bryan Herr | 65 | Director, Executive Chaiman | ||
| Bernard Lucien Nussbaumer (co-founder) | 73 | Director | ||
| Don Short | 73 | Director Nominee | ||
| Horatio Lonsdale-Hands | 69 | Director | ||
| Doug Burris | 53 | Director Nominee | ||
| Marie Quintana | 69 | Director Nominee | ||
| Mo Hayat | 50 | Director Nominee |
* Clint Bowers has been appointed to serve as the Chief Financial Officer of the Company effective upon the pricing of this offering.
Executive Officers
Horatio Lonsdale-Hands, Co-Founder, and Chief Executive Officer
Horatio Lonsdale-Hands combines over 40 years of experience in the food and beverage, telecommunications, and hospitality industries in senior management. Previously, he had been involved in multiple companies in the food and hospitality industries, holding positions including Chairman and Chief Executive Officer, President and board member.
From 2000 to 2013, he was Co-Founder and President of Advance Global Communications, Inc., (AGC) a company involved in international telecommunications and an early adopter of voice over IP (VoIP) technology from 1989 through 1998, Lonsdale-Hands was Co-Founder, Chairman and Chief Executive Officer of ZuZu, Inc., a fast-casual restaurant chain and is credited with coining the term “Fast Casual. From 1982 to 1988, he was Co-Founder and President of Nipper’s Champagne Clubs, a hospitality company that focused on upscale entertainment venues with locations in Montecito and Beverly Hills, California.
Chairman and Chief Executive Officer Lonsdale-Hands has served on the Boards or Executive Committee of Arby’s Inc., Advance Global Communication, ZuZu, Inc., and the Rodeo Drive Committee.
He was educated at Harrow School in the UK. He is certified in HACCP and food safety.
Bryan Herr, Executive Chairman
Bryan Herr combines over 40 years of experience in the food and beverage industry in senior management. Previously, he is a pioneer in the value-added produce and fresh food sectors, holding positions including Co-Founder and Chief Executive Officer of Country Fresh, investor, advisor, and board member.
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From 1988 through 2017, Herr was the Co-Founder and Chief Executive Officer of Country Fresh, Inc., a leading producer and distributor of freshly cut fruits and vegetables. Under his leadership, the company expanded to 9 processing plants nationwide and supplied major retailers such as Walmart, Kroger, and Publix. In 2017, Bryan Herr sold Country Fresh and then bought the company back in 2021.
Byan Herr is also currently a director of Buda Juice. He is also actively involved as an investor and advisor to Buda Juice, in addition to being an advisor, investor and board member across multiple businesses and engaged in a range of philanthropic endeavors.
Clint Bowers, Chief Financial Officer Nominee
Clint Bowers combines over 20 years of experience in corporate finance, accounting, and strategic advisory in senior management. Previously, he had been involved in multiple companies in the finance and beverage industries, holding positions including Vice President, Corporate Controller, Director of Finance, Director of Treasury, and Founder.
From 2013 through 2014, Chief Financial Officer, Clint Bowers was the Vice President and Corporate Controller for Borden Dairy Company, a $2 billion beverage company. From 2009 to 2012, he was Assistant Corporate Controller, Director of Finance and Director of Treasury for Borden Dairy Company, where he held various key financial leadership roles. In 2015, he founded and is CEO of Smart Business Concepts, a Dallas-based accounting and advisory firm that focused on providing outsourced CFO, controller, and accounting services to growth-stage businesses nationwide.
Clint Bowers has also previously been a Board Member and President of a local non-profit private school in Dallas, Texas. He holds a bachelor’s degree in accounting and finance from Texas A&M University’s Mays Business School and is a Certified Public Accountant (CPA).
Karina Farquharson, Vice President, Marketing & Data Analytics
Karina Farquharson combines over 20 years of experience in marketing, data analytics, and strategic planning in senior management. She has been involved in multiple companies in the retail and financial services industries, holding positions including Senior Merchandise Planner, Marketing Analyst and Business Analyst.
From 2005 to 2013, Farquharson held several analyst positions including Senior Merchandise Planner and Online Merchandise Planner for Neiman Marcus, a luxury retail company, where she led strategic planning and performance analysis for key product categories. From 2002 to 2004, she was a Marketing and Business Analyst for Capital One, a financial services company focused on customer insights and campaign optimization.
She holds a master’s degree in Integrated Marketing Communications (IMC) from the Medill School at Northwestern University and a Graduate Certificate in Marketing from the Cox School of Business at Southern Methodist University. She earned her Bachelor of Arts degree in Economics and the Honors Program in Mathematical Methods in the Social Sciences at Northwestern University, graduating magna cum laude with departmental honors.
Directors
Bernard Lucien Nussbaumer
Bernard Lucien Nussbaumer is a Co-Founder of Buda Juice and combines over 30 years of experience in media and business ventures in senior management, following a career as an entrepreneur and producer. Previously, he had been involved in multiple companies in the media, production, and environmental sectors, holding positions including Co-Founder, Producer, and board member.
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He is Co-Founder of Plan T, a non-profit environmental organization focused on sustainability and reforestation initiatives.
Doug Burris
Doug Burris combines over 37 years of experience in the food and grocery retail industry in senior management. Previously, he had been involved in multiple companies in the fresh food and retail sectors, holding positions including Chief Executive Officer, Senior Executive, and board member.
From 2021 through current, Burris is the Chief Executive Officer of Country Fresh, Inc., one of the largest producers and distributors of freshly cut fruits and vegetables in the United States, operating 9 processing plants nationwide and serving major national retailers including Walmart, Kroger, and Publix. From 1988 to 2001, he held senior management positions at H-E-B, a leading grocery retailer, where he gained extensive experience in retail operations and supply chain management.
Doug Burris is also currently CEO and Board director of CMM, J.Skinner Baking & Country Fresh.
He has an undergraduate degree from Texas A&M and holds any MBA from Texas A&M.
Donald Short
Donald Short combines over 30 years of experience in the global beverage industry in senior management. Previously, he had been involved in multiple divisions of The Coca-Cola Company, holding positions including Worldwide Chief Executive Officer and President.
From 2002 through 2006, Short was the Worldwide Chief Executive Officer and President of Minute Maid, an $8 billion division of The Coca-Cola Company. From 1997 to 2000, he was CEO and President of The Coca-Cola Company India, overseeing strategic and operational initiatives in one of the company’s fastest-growing markets. From 2000 to 2002, he was CEO and President of The Coca-Cola Company Middle East and Africa, a division focused on international expansion and market development across emerging economies.
Donald Short is also currently a director of Boomerang Pies, Theater Aspen, Nasher Sculpture Center and Founder and CEO of The New Artisan Distillery.
He has an undergraduate degree from University of North Carolina at Pembroke.
Marie Quintana
Marie Quintana combines over 30 years of experience in corporate leadership across healthcare, consumer goods, technology, and retail industries. Previously, she had been involved in multiple Fortune 500 companies, holding positions including Senior Executive, Board Member, and Strategic Advisor.
From 2018 through 2022, Director Quintana was Chief Marketing Officer and Executive Vice President of Communications at Tenet Healthcare and co-chaired the Environmental, Social, and Governance Board Committee. From 2005-2012 at PepsiCo was Senior Vice President of Multicultural Sales and Marketing, from 2003-2005, she was Vice President of Global IT Strategy and from 1998 to 2003 was Vice President of Technology. From 1996 to 1998 was an executive at Perot Systems doing special projects for Ross Perot, Sr.
Marie Quintana currently serves or has served on the board of The Governing Board of Directors of the Detroit Medical Center, Board Director of Fetch Rewards, Board Director of Network for Executive Women, Board Director of Catholic Charities of Dallas and President of The Tenet Healthcare Foundation.
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She has been nationally recognized among the Top 50 Hispanic Women in Business by Hispanic Business Magazine, one of the Top 50 Women in Grocery by Progressive Grocer, and a Top 5 Latina Executive by Latina Style Magazine. In 2022, she received the Latino Leaders Maestro Award for Professional Achievement.
She has an undergraduate degree from Louisiana State University and a has a master’s from Tulane University.
Mohammad “Mo” Hayat
Mo Hayat has served as the Head of Corporate Development and Chief Legal Officer of MDB Capital Holdings, LLC since May 2024, Chief of Entrepreneurship & Operations of MDB Capital Holdings, LLC since its inception on August 10, 2021 to May 2024, and as a director of MDB Capital Holdings, LLC since January 14, 2022. Mr. Hayat has also served as director of Paulex Bio, Inc. since May 2025. Mr. Hayat served as the Chairman and Chief Executive Officer of eXoZymes, Inc. (formerly known as Invizyne Technologies Inc.) since its inception in April 2019, and, effective as of August 2022, transitioned to the role of Executive Chairman, Interim Chief Executive Officer, and President, and then in February 2024, transitioned to the role of Executive Chairman, and President of eXoZymes, Inc until February 2025. Mr. Hayat founded and has operated Mora Partners Inc., a consulting and investment firm since September 2006. Notable prior experiences for Mr. Hayat include serving as an Associate at Latham and Watkins from 2001 to 2006, as Partner at Raines Law Group from 2006 to 2009, as EVP of Business Development at Fulham Company Ltd from 2009 to 2015, and as Associate General Counsel Corporate, M&A, and Venture Capital at Hewlett Packard Enterprise from 2015 to 2017. Mr. Hayat also served on the board of directors of Fulham Company Ltd. from January 2019 to August 2022.
Mr. Hayat received his Juris Doctorate in 2001 from UC Berkeley School of Law and a Bachelor of Science in Biological Chemistry in 1997 from Pepperdine University.
Family Relationships
Karina Farquharson, Vice President of Marketing, is wife of the CEO, Horatio Lonsdale-Hands.
Board Composition and Election of Directors
Our board of directors will consist of seven members upon consummation of the Conversion.
Director Independence
Under Rule 303A of the NYSE American Rules, a director will only qualify as an “independent director” if, our board of directors affirmatively determines that the person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In order to be considered independent for purposes of NYSE, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the board of directors, or any other board committee, accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries or otherwise be an affiliated person of the listed company or any of its subsidiaries.
Our board of directors has reviewed the composition of our board of directors and its committees and the independence of each director. Based upon information requested from and provided by each director concerning his background, employment and affiliations, including family relationships, our board of directors has determined that each Don Short, Doug Burris, Marie Quintana, and Mo Hayat, is an “independent director” as defined under Rule 303A of the NYSE American Rules. Our board of directors also determined that Mo Hayat, Don Short, Doug Burris and Marie Quintana will comprise our audit committee following this offering, Mo Hayat, Don Short, Doug Burris and Marie Quintana will comprise our compensation committee following this offering, and Doug Burris and Mo Hayat will comprise our nominating and corporate governance committee following this offering, satisfy the independence standards for such committees established by the SEC and the NYSE rules, as applicable. In making such determinations, our board of directors considered the relationships that each such non-employee director has with our company and all other facts and circumstances our board of directors deemed relevant in determining independence, including the beneficial ownership of our capital stock by each non-employee director.
Board Leadership Structure
Our board of directors has not adopted a formal policy regarding the separation of the offices of Chief Executive Officer and Chairman of the board of directors. Rather, the board of directors believes that different leadership structures may be appropriate for the Company at different times and under different circumstances, and it prefers flexibility in making this decision based on its evaluation of the relevant facts at any given time.
Under our current Board leadership structure, the Chief Executive Officer is responsible for the day-to-day leadership and performance of the Company.
Role of the Board in Risk Oversight
We face a number of risks, including those described under the caption “Risk Factors” contained elsewhere in this prospectus. Our board of directors believes that risk management is an important part of establishing, updating and executing on our business strategy. Our board of directors has oversight responsibility relating to risks that could affect the corporate strategy, business objectives, compliance, operations, and the financial condition and performance of our company. Our board of directors focuses its oversight on the most significant risks facing us and, on our processes, to identify, prioritize, assess, manage and mitigate those risks. Our board of directors receives regular reports from members of our senior management on areas of material risk to us, including strategic, operational, financial, legal and regulatory risks. While our board of directors has an oversight role, management is principally tasked with direct responsibility for management and assessment of risks and the implementation of processes and controls to mitigate their effects on us.
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Board Committees
Following this Offering, we will have the following board of directors’ committees: an audit committee, a compensation committee, and a nominating and corporate governance committee. The anticipated composition and responsibilities of each committee are described below. Members will serve on these committees until their resignation or until otherwise determined by our board of directors. Upon our listing on the NYSE, each committee’s charter will be available under the Corporate Governance section of our website at https://budajuice.com/ The reference to our website address does not constitute incorporation by reference of the information contained at or available through our website, and you should not consider it to be a part of this prospectus.
Audit Committee. The audit committee’s responsibilities include:
| ● | appointing, approving the compensation of, and assessing the independence of our registered public accounting firm; |
| ● | overseeing the work of our registered public accounting firm, including through the receipt and consideration of reports from such firm; |
| ● | reviewing and discussing with management and the registered public accounting firm our annual and quarterly financial statements and related disclosures; |
| ● | coordinating our board of directors’ oversight of our internal control over financial reporting, disclosure controls and procedures and code of business conduct and ethics; |
| ● | discussing our risk management policies; |
| ● | meeting independently with our internal auditing staff, if any, registered public accounting firm and management; |
| ● | reviewing and discussing with management our compliance with the FCPA; |
| ● | reviewing and approving or ratifying any related person transactions; and |
| ● | preparing the audit committee report required by the United States Securities and Exchange Commission (“SEC”) rules. |
After this offering, we expect that the initial members of our audit committee will be Mo Hayat, Don Short, Doug Burris and Marie Quintana. All members of our audit committee meet the requirements for financial literacy under the applicable rules and regulations of the SEC and NYSE. Our board has determined that Mo Hayat is an audit committee financial expert as defined under the applicable rules of the SEC and has the requisite financial sophistication as defined under the applicable rules and regulations of the NYSE. Under the SEC rules, members of the audit committee must also meet heightened independence standards. However, a minority of the members of the audit committee may be exempt from the heightened audit committee independence standards for one year from the date of effectiveness of the registration statement of which this prospectus forms a part. Our board of directors has determined that Mo Hayat is independent under the heightened audit committee independence standards of the SEC and the NYSE.
As allowed under the applicable rules and regulations of the SEC and the NYSE, we intend to phase in compliance with the audit committee composition requirements prior to the end of the one-year transition period. The audit committee operates under a written charter that satisfies the applicable standards of the SEC and the NYSE.
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Compensation Committee. The compensation committee’s responsibilities include:
| ● | reviewing and approving, or recommending for approval by the board of directors, the compensation of our Chief Executive Officer and our other executive officers; |
| ● | overseeing and administering our cash and equity incentive plans; |
| ● | reviewing and making recommendations to our board of directors with respect to director compensation; |
| ● | reviewing and discussing annually with management our “Compensation Discussion and Analysis,” to the extent required; and |
| ● | preparing the annual compensation committee report required by SEC rules, to the extent required. |
After this offering, we expect the members of our compensation committee will be Mo Hayat, Don Short, Doug Burris and Marie Quintana. Each of the members of our compensation committee is independent under the applicable rules and regulations of NYSE and is a “non-employee director” as defined in Rule 16b-3 promulgated under the Exchange Act. The compensation committee operates under a written charter that satisfies the applicable standards of the SEC and the NYSE.
Nominating and Corporate Governance Committee. The nominating and corporate governance committee’s responsibilities include:
| ● | identifying individuals qualified to become board members; |
| ● | recommending to our board of directors the persons to be nominated for election as directors and to each board committee; |
| ● | developing and recommending to our board of directors’ corporate governance guidelines, and reviewing and recommending to our board of directors proposed changes to our corporate governance guidelines from time to time; and |
| ● | overseeing a periodic evaluation of our board of directors. |
After this offering, we expect that the members of our nominating and corporate governance committee will be Doug Burris and Mo Hayat. Each of the members of our nominating and corporate governance committee is an independent director under the applicable rules and regulations of NYSE relating to nominating and corporate governance committee independence. The nominating and corporate governance committee operates under a written charter that satisfies the applicable standards of the SEC and the NYSE.
Compensation Committee Interlocks and Insider Participation
No member of our compensation committee will have been a current or former officer or employee. None of our executive officers served as a director or a member of a compensation committee (or other committee serving an equivalent function) of any other entity, one of whose executive officers served as a director or member of our compensation committee during the last completed fiscal year.
Code of Ethics and Code of Conduct
We will adopt a written code of business conduct and ethics that applies to our directors, officers and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions prior to the consummation of the offering. Upon our listing on the NYSE, our code of business conduct and ethics will be available under the Corporate Governance section of our website at https://budajuice.com/. In addition, we intend to post on our website all disclosures that are required by law or the NYSE rules concerning any amendments to, or waivers from, any provision of the code. The reference to our website address does not constitute incorporation by reference of the information contained at or available through our website, and you should not consider it to be a part of this prospectus.
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Clawback Policy
We will adopt a clawback policy that complies with the requirements of Rule 10D-1 under the Exchange Act and the applicable listing standards of the NYSE prior to the consummation of the offering. Under this policy, in the event we are required to prepare an accounting restatement due to material noncompliance with any financial reporting requirement under the securities laws, we will recover reasonably promptly from our current and former executive officers the amount of erroneously awarded incentive-based compensation received during the three completed fiscal years preceding the date we are required to prepare the restatement.
The policy applies to incentive-based compensation that is received on or after the effective date of the applicable listing standards. We will recover erroneously awarded compensation except to the extent that our board of directors, or a committee thereof, determines that recovery would be impracticable due to certain limited exceptions permitted by Rule 10D-1 and the listing standards.
We will not indemnify any current or former executive officer against the loss of erroneously awarded compensation under the policy.
Cybersecurity
We have implemented and maintain various information security measures designed to protect against unauthorized access to or from our information systems, including physical, electronic, and procedural safeguards. These measures include firewalls, intrusion detection and prevention systems, regular security assessments, employee training, and incident response procedures. We also maintain cyber insurance coverage, though this coverage may not be adequate to cover all potential losses.
Despite our security measures, our information technology and infrastructure may be vulnerable to cyberattacks or breaches due to employee error, malfeasance, or other disruptions. We have experienced, and expect to continue to experience, cybersecurity threats and incidents, although to date none have had a material impact on our business or operations. As we grow and process increasing amounts of consumer data through our e-commerce platform and retail customers’ systems, we may become a more attractive target for cyberattacks.
We are subject to various laws and regulations relating to privacy and data security, including with respect to the collection, storage, use, transmission, and protection of personal information and other consumer data. Our failure to comply with applicable laws and regulations, or to protect such data, could result in enforcement actions against us, including fines, imprisonment of company officials, and public censure, claims for damages by consumers and other affected individuals, damage to our reputation, and loss of goodwill, any of which could have a material adverse effect on our business, financial condition, and results of operations.
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EXECUTIVE AND DIRECTOR COMPENSATION
Summary Compensation
The following sets forth the compensation paid by us to our named executive officers during the fiscal years ended 2024 and 2023.
| Stock | Option | All Other | ||||||||||||||||||||||||||
| Salary | Bonus | Awards | Awards | Compensation | Total | |||||||||||||||||||||||
| Name and Principal Position | Year | ($) | ($) | ($) | ($) | ($) | ($) | |||||||||||||||||||||
| Horatio Lonsdale-Hands | 2024 | 144,000 | 0 | 0 | 0 | 0 | 144,000 | |||||||||||||||||||||
| Chief Executive Officer | 2023 | 144,000 | 0 | 0 | 0 | 0 | 144,000 | |||||||||||||||||||||
| Karina Farquharson | 2024 | 60,000 | 0 | 0 | 0 | 0 | 60,000 | |||||||||||||||||||||
| Vice President, Marketing | 2023 | 60,000 | 0 | 0 | 0 | 0 | 60,000 | |||||||||||||||||||||
Buda Juice, Inc. 2025 Equity Incentive Plan
The Company has maintained an incentive award arrangement designed to recognize the contributions of employees and certain service providers. This plan included provisions that would have provided participants with an opportunity to receive a payout in the event of a qualifying change of control. As no such change of control has occurred, and in light of the Company’s current corporate structure and proposed public offering, these prior awards will expire at the time of our conversion from LLC to Inc. without value and will not be redeemable.
In acknowledgment of the critical role that our employees have played in the Company’s development to date, and to align their interests with the Company’s long-term growth and success, we have undertaken a valuation analysis using the Black-Scholes option pricing model. This model was used to reasonably estimate the economic value associated with the prior awards, which has informed the structure and scope of new grants under our forthcoming equity incentive program.
In connection with this offering, we intend to adopt the Buda Juice, Inc. 2025 Equity Incentive Plan (the “2025 Plan”) upon listing on the NYSE, subject to stockholder approval. The 2025 plan will permit the grant of a variety of equity-based and cash-based awards to eligible employees, directors, and consultants, with the goal of attracting, motivating, and retaining individuals who will contribute to our long-term success as a public company.
Purpose of the 2025 Plan: The purposes of the 2025 Plan is to attract and retain personnel for positions with the Company and its parent or subsidiary, if any, to provide additional incentive to employees, directors, and consultants, and to promote the success of the Company’s business.
Administration of the 2025 Plan: The 2025 Plan shall be administered by the board of directors or the committee designated by the board of directors. Among other things, the administrator has the authority to select persons who will receive awards, determine the time or times when an award shall be made, what type of award shall be granted, the date or dates on which an award vests (including acceleration of vesting), the form of any payment to be made pursuant to an award, the terms and conditions of an award (including the forfeiture of the award (and/or any financial gain) if the holder of the award violates any applicable restrictive covenant thereof), the restrictions under a restricted stock award and the number of common stock which may be issued under an award, all as applicable. In addition, subject to the express provisions of the 2025 Plan, the administrator is authorized to construe the 2025 Plan and the respective award agreements executed thereunder, to prescribe such rules and regulations relating to the 2025 Plan as it may deem advisable to carry out the intent of the 2025 Plan, to determine the terms, restrictions and provisions of each award, and to make all other determinations necessary or advisable for administering the 2025 Plan.
Eligible Recipients: Persons eligible to receive awards under the 2025 Plan will be those officers, employees, directors, and consultants of the Company or an affiliated entity who are selected by the administrator.
Shares Available under the Plan: The maximum number of shares of our common stock that may be delivered to participants under the 2025 Plan is the least of (i) [ ] shares, (ii) 5% of all outstanding common stock as of the last day of the previous fiscal year, or (iii) a lesser number of shares determined by the administrator, subject to adjustment for certain corporate changes affecting the shares, such as stock splits. The number of shares available under the 2025 Plan will increase on the first day of each fiscal year starting in 2026 by the smallest of (i) [ ] shares, (ii) 5% of all outstanding common stock as of the last day of the preceding fiscal year, or (iii) a lesser number of shares determined by the administrator. Shares subject to an award under the 2025 Plan for which the award lapses, expires, is canceled, terminated, unexercised or ceases to be exercisable again become available for grants under the 2025 Plan.
Stock Options
General. Subject to the provisions of the 2025 Plan, the administrator has the authority to determine all grants of stock options.
Option Price. The exercise price for stock options is determined at the time of grant. The exercise price may not be less than the fair market value on the date of grant. Additionally, incentive stock option grants to any person owning more than 10% of our voting stock must have an exercise price of not less than 110% of the fair market value on the grant date.
Exercise of Options. An option may be exercised only in accordance with the terms and conditions for the option agreement as established by the administrator at the time of the grant. The option must be exercised by notice to us, accompanied by payment of the exercise price. Payments may be made in cash or, at the option of the administrator, by actual or constructive delivery of shares of common stock to the holder of the option based upon the fair market value of the shares on the date of exercise.
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Expiration or Termination. Options, if not previously exercised, will expire on the expiration date established by the administrator at the time of grant. In the case of incentive stock options, such term cannot exceed ten years provided that in the case of holders of more than 10% of our voting stock, such term cannot exceed five years. Options will terminate before their expiration date if the holder’s service with our Company or a subsidiary terminates before the expiration date. The option may remain exercisable for specified periods after certain terminations of employment, including terminations as a result of death, disability or retirement, with the precise period during which the option may be exercised to be established by the administrator and reflected in the grant evidencing the award.
Incentive and Non-Qualified Options. As described elsewhere in this summary, an incentive stock option is an option that is intended to qualify under certain provisions of the Code, for more favorable tax treatment than applies to non-qualified stock options. Any option that does not qualify as an incentive stock option will be a non-qualified stock option. Under the Code, certain restrictions apply to incentive stock options. For example, generally, the exercise price for incentive stock options may not be less than the fair market value of the shares on the grant date and the term of the option may not exceed ten years. In addition, an incentive stock option may not be transferred, other than by will or the laws of descent and distribution, and is exercisable during the holder’s lifetime only by the holder. In addition, to the extent that the aggregate fair market value of common stock with respect to which incentive stock options are exercisable for the first time by an individual during any calendar year under all plans of the Company and any parent corporation or subsidiary corporation thereof which provide for the grant of incentive stock options exceeds $100,000, the portion of such incentive stock options that exceeds such threshold shall be treated as non-qualified stock options. Incentive stock options shall be granted to employees only.
Stock Appreciation Rights: Stock appreciation rights can also be granted under the 2025 Plan, which is a right, granted alone or in connection with a related Option, to receive a payment on the date of exercise. The base value of the stock appreciation right shall be set forth by the administrator and shall not be less than the fair market value of the common stock at the date of grant for the stock appreciation right which is not a tandem stock appreciation right. Upon the exercise of some or all of the portion of a stock appreciation right, the holder shall receive a payment from the Company, in cash or in the form of common stock having an equivalent fair market value or in a combination of both. If the administrator grants a stock appreciation right which is intended to be a tandem stock appreciation right, the tandem stock appreciation right shall be granted at the same time as the related option.
Restricted Stock Awards: Restricted stock awards can be granted under the 2025 Plan. A restricted stock award is a grant of shares of common stock or of a right to receive shares in the future. These awards will be subject to such conditions, restrictions and contingencies as the administrator shall determine at the date of grant. Those may include requirements for continuous service and/or the achievement of specified performance goals.
Restricted Stock Unit Awards: Restricted stock unit awards =can be granted under the 2025 Plan upon the satisfaction of predetermined individual service related vesting requirements. The holder of a restricted stock unit shall be entitled to receive a cash payment equal to the fair market value of shares of common stock, for each unit awarded to the holder.
Performance Awards: Performance awards can be granted under the 2025 Plan. A holder of performance stock units shall be entitled to receive a cash payment equal to the dollar value or number of shares of common stock assigned to such units if the holder and/or the Company satisfy the predetermined performance goals and objectives.
Other Material Provisions: Awards are evidenced by a written agreement, in such form as may be approved by the administrator. In the event of various changes to the capitalization of our Company, such as stock splits, stock dividends and similar re-capitalizations, an appropriate adjustment will be made by the administrator to the number of shares covered by outstanding awards or to the exercise price of such awards. The administrator is also permitted to include in the written agreement provisions that provide for certain changes in the award in the event of a change of control of our Company, including acceleration of vesting. Except as otherwise determined by the administrator at the date of grant, awards will not be transferable, other than by will or the laws of descent and distribution. Prior to any award distribution, we are permitted to deduct or withhold amounts sufficient to satisfy any employee withholding tax requirements. Our board of directors also has the authority, at any time, to discontinue the granting of awards. The 2025 Plan may be amended by the board of directors and such amendment shall become effective upon adoption by the board of directors; provided, however, that any amendment shall be subject to the approval of the stockholders of the Company at or before the next annual meeting of the stockholders of the Company if such stockholder approval is required by applicable laws. No amendment that would adversely affect any outstanding award made under the 2025 Plan can be made without the consent of the holder of such award. The 2025 Plan shall continue in effect, unless sooner terminated, until the tenth (10th) anniversary of the date on which it is adopted by the board of directors.
Director Compensation
The Company has not paid any compensation to our directors for the fiscal year ended 2024.
The Company will be compensating its non-employee directors with equity awards upon completion of the Company’s listing on NYSE, subject to stockholder approval of the 2025 Plan. Each independent director will be granted equity awards under the 2025 plan equal to 0.5% of the Company’s total issued and outstanding equity. In addition, directors who serve as a committee chair will receive an additional 0.1% of the Company’s total issued and outstanding equity for each committee chaired, and the lead independent director will receive 0.1% of the Company’s total outstanding equity. The Company plans to implement the equity compensation plan for the non-employee members of the board of directors upon listing on NYSE.
Indemnification Agreements
Prior to the consummation of this offering, we intend to enter into separate indemnification agreements with each of our directors and executive officers. We also will purchase directors’ and officers’ liability insurance in the amount of $5,000,000.
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Currently, we do not have any related party transactions required to be disclosed other than the credit facility which is supported by personal guarantees from Horatio Lonsdale-Hands, Bryan Herr, and Bernard Nussbaumer, as described below:
On July 8, 2016, the Company entered into a financing agreement with Zions Bancorporation, N.A., doing business as Amegy Bank (“Amegy”), for a revolving line of credit. The original facility provided up to $2,010,000 in borrowings and had an 8-year term, maturing on July 8, 2024.
On July 20, 2024, the agreement was amended to increase the borrowing capacity from $2,000,000 to $3,000,000 and to extend the availability to July 8, 2025. On July 9, 2025, availability was extended to July 8, 2026. Interest on borrowings is variable, based on the Prime Rate as published in The Wall Street Journal, and was 8.5% per annum as of the amendment date.
The Company repaid the full outstanding balance of the facility on October 4, 2024. As of December 31, 2024, there were no outstanding borrowings, and the full $3,000,000 remained available under the line of credit.
The facility is supported by personal guarantees from the three members of the Company’s Board of Directors, Bryan Herr, Bernard Lucien Nussbaumer, and Horatio Lonsdale-Hands. These guarantees were reaffirmed as part of the July 9, 2025 amendment.
Policies and Procedures for Related Person Transactions
Our board will adopt a written related person transaction policy to be effective immediately prior to the effectiveness of the registration statement of which this prospectus forms a part, setting forth the policies and procedures for the review and approval or ratification of related person transactions. This policy will cover, with certain exceptions set forth in Item 404 of Regulation S-K under the Securities Act, any transaction, arrangement, or relationship, or any series of similar transactions, arrangements or relationships, in which we were or are to be a participant, where the amount involved will be the lesser of $120,000 or 1% of the average of our year-end total assets for the last two completed fiscal years, in any fiscal year and a related person had, has or will have a direct or indirect material interest, including without limitation, purchases of goods or services by or from the related person or entities in which the related person has a material interest, indebtedness, guarantees of indebtedness and employment by us of a related person. In reviewing and approving any such transactions, our audit committee is tasked to consider all relevant facts and circumstances, including, but not limited to, whether the transaction is on terms comparable to those that could be obtained in an arm’s length transaction and the extent of the related person’s interest in the transaction. All of the transactions described in this section occurred prior to the adoption of this policy.
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The following table sets forth information with respect to the beneficial ownership of our Common Stock as of the date of this prospectus by:
| ● | each person, or group of affiliated persons, known by us to beneficially own more than 5% of our outstanding shares of Common Stock (other than named executive officers and directors); |
| ● | each of our named executive officers; |
| ● | each of our directors; and |
| ● | all of our executive officers and directors as a group. |
The number of shares of Common Stock beneficially owned by each stockholder is determined in accordance with the rules issued by the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under these rules, beneficial ownership includes any shares as to which the individual or entity has sole or shared voting power or investment power, which includes the power to dispose of or to direct the disposition of such security. Except as indicated in the footnotes below, we believe, based on the information furnished to us, that the individuals and entities named in the table below have sole voting and investment power with respect to all shares of Common Stock beneficially owned by them, subject to any community property laws.
Percentage ownership of our Common Stock before this Offering is based on 10,000,000 shares of Common Stock outstanding as of the date of this prospectus after giving effect to the Conversion. Percentage ownership of our Common Stock after the Offering is based on 12,166,667 shares of Common Stock outstanding after the offering and giving effect to the Stock Redemption. In computing the number of shares beneficially owned by an individual or entity and the percentage ownership of that person, shares of Common Stock subject to options, restricted units, warrants, or other rights held by such person that are currently exercisable or will become exercisable within 60 days of [ ], 2025 are considered outstanding, although these shares are not considered outstanding for purposes of computing the percentage ownership of any other person.
To calculate a stockholder’s percentage of beneficial ownership of Common Stock, we must include in the numerator and denominator those shares of Common Stock, as well as those shares of Common Stock underlying options, warrants and convertible securities, that such stockholder is considered to beneficially own. Shares of Common Stock, and Common Stock underlying options, warrants and convertible securities, held by other stockholders, however, are disregarded in this calculation. Therefore, the denominator used in calculating the beneficial ownership of each of the stockholders may be different.
To our knowledge, there is no arrangement, including any pledge by any person of securities of the Company, the operation of which may at a subsequent date result in a change in control of the Company.
| Beneficial Ownership Before the Offering Common Stock | Beneficial Ownership After the Offering Common Stock (4) | |||||||||||||||
| Name of Beneficial Owner(1) | Shares | %(2) | Shares | % | ||||||||||||
| 5% Stockholders: | ||||||||||||||||
| 2469447 Ontario Ltd. (3) | 769,418 | 7.69 | % | 769,418 | 6.41 | % | ||||||||||
| Executive Officers and Directors: | ||||||||||||||||
| Horatio Lonsdale-Hands (5) | 2,337,051 | 23.37 | % | 1,670,384 | 13.92 | % | ||||||||||
| Clint Bowers | 0 | 0.00 | % | 0 | 0 | % | ||||||||||
| Karina Farquharson | 0 | 0.00 | % | 0 | 0 | % | ||||||||||
| Bryan Herr | 2,455,966 | 24.56 | % | 2,455,966 | 20.47 | % | ||||||||||
| Bernard Lucien Nussbaumer | 2,904,860 | 29.05 | % | 2,904,860 | 24.21 | % | ||||||||||
| Don Short | 0 | 0.00 | % | 0 | 0 | % | ||||||||||
| Doug Burris | 100,158 | 1.00 | % | 100,158 | 0.83 | % | ||||||||||
| Marie Quintana | 0 | 0 | % | 33,333 | 0.28 | % | ||||||||||
| Mo Hayat | 0 | 0 | % | 0 | 0 | % | ||||||||||
| All directors and executive officers as a group (9) | 7,798,035 | 77.98 | % | 7,164,700 | 60 | % | ||||||||||
| (1) | Except as otherwise indicated, the address for the executive officers and directors is 4030 Black Gold Drive, Dallas, Texas, 75247. |
| (2) | Based on 10,000,000 shares of Common Stock outstanding as of the date of the prospectus after giving effect to the proposed Conversion. |
| (3) | Travis Bell may be deemed to exercise voting and investment control over the common stock held by 2469447 Ontario Ltd. The business address for Travis Bell is 861 Sunningdale Bend, Mississauga, Ontario L5J1G1, Canada. |
| (4) | The percentage in “Beneficial Ownership After the Offering Common Stock” reflects the reduced percentage due to the sale of shares of Common Stock by the Company and the Stock Redemption. |
| (5) | The percentage in “Beneficial Ownership After the Offering Common Stock” reflects the reduced percentage due to the Stock Redemption. |
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The following description summarizes important terms of our capital stock and certain provisions of our articles of incorporation and bylaws. Copies of these documents will be filed with the SEC as exhibits to our registration statement, of which this prospectus forms a part.
General
The Company is authorized to issue an aggregate of 100,000,000 shares. The authorized capital stock is divided into 90,000,000 shares of Common Stock, par value $0.001 per share, and 10,000,000 shares of Preferred Stock, par value $0.001 per share. As of the date of this prospectus, there were 10,000,000 shares of our Common Stock outstanding, held by 10 stockholders of record and 0 shares of our preferred stock outstanding.
Common Stock
All shares of Common Stock of the Company are one and the same class, identical in all respects and have equal rights, powers and privileges.
Voting. The holders of outstanding shares of Common Stock have the exclusive right to vote on all matters requiring stockholder action. On each matter on which holders of Common Stock are entitled to vote, each outstanding share of such Common Stock is entitled to one vote.
Dividends. Subject to the rights of holders of any series of outstanding preferred stock, holders of shares of Common Stock have equal rights of participation in the dividends and other distributions in cash, stock or property of the Company when, as and if declared thereon by the board of directors from time to time out of assets or funds of the Company legally available therefor.
Liquidation. Subject to the rights of holders of any series of outstanding preferred stock, holders of shares of Common Stock have equal rights to receive the assets and funds of the Company available for distribution to stockholders in the event of any liquidation, dissolution or winding up of the affairs of the Company, whether voluntary or involuntary.
Rights and Preferences. Holders of our Common Stock will have no preemptive, conversion or subscription rights, and there will be no redemption or sinking funds provisions applicable to our Common Stock. The rights, preferences and privileges of the holders of our Common Stock will be subject to, and may be adversely affected by, the rights of the holders of share of any series of our preferred stock that we may designate and issue in the future.
Preferred Stock
Our Certificate of Incorporation authorize our board of directors to issue up to 10,000,000 shares of preferred stock in one or more series, to determine the designations and the powers, preferences and rights and the qualifications, limitations and restrictions thereof, including the dividend rights, conversion or exchange rights, voting rights (including the number of votes per share), redemption rights and terms, liquidation preferences, sinking fund provisions and the number of shares constituting the series.
Our board of directors could, without stockholder approval, issue preferred stock with voting and other rights that could adversely affect the voting power and other rights of the holders of Common Stock and which could have the effect of making it more difficult for a third party to acquire, or of discouraging a third party from attempting to acquire, a majority of our outstanding voting stock.
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Underwriter’s Warrants
Upon the closing of this Offering, there will be up to 266,667 (306,667 shares of Common Stock if the full amount of the overallotment option is exercised) shares of Common Stock issuable upon exercise of the Underwriter’s Warrants. See “Underwriting - Underwriter’s Warrants” below for a description of the Underwriter’s Warrants.
Anti-Takeover Provisions
Our certificate of incorporation and bylaws will contain provisions that may delay, defer or discourage another party from acquiring control of us. We expect that these provisions, which are summarized below, will discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board, which we believe may result in an improvement of the terms of any such acquisition in favor of our stockholders. However, they also give our board the power to discourage acquisitions that some stockholders may favor.
Specifically, among other things, our certificate of incorporation and our bylaws will provide:
● do not provide for cumulative voting in the election of directors;
● provide for the exclusive right of the board to elect a director to fill a vacancy created by the expansion of the board or the resignation, death, or removal of a director by stockholders;
● requires that a special meeting of stockholders may be called only by the board, or by a committee of the board that has been designated by the board;
● limits the liability of, and provides indemnification to, our directors and officers;
● controls the procedures for the conduct and scheduling of stockholder meetings;
● specifies advance notice procedures that stockholders must comply with in order to nominate candidates to the board or to propose matters to be acted upon at a stockholders’ meeting
Limitations on Liability and Indemnification of Officers and Directors
The DGCL authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breaches of directors’ fiduciary duties, subject to certain exceptions. Our certificate of incorporation will include a provision that eliminates the personal liability of directors for monetary damages for any breach of fiduciary duty as a director or officer, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL. The effect of these provisions will be to eliminate the rights of us and our stockholders, through stockholders’ derivative suits on our behalf, to recover monetary damages from a director or officer for breach of fiduciary duty as a director or officer, respectively, including breaches resulting from grossly negligent behavior. However, exculpation will not apply to any director if the director has acted in bad faith, knowingly or intentionally violated the law, authorized illegal dividends or redemptions, or derived an improper benefit from his or her actions as a director.
Our bylaws will provide that we must indemnify and advance expenses to our directors and officers to the fullest extent authorized by the DGCL. We also will be expressly authorized to carry directors’ and officers’ liability insurance providing indemnification for our directors, officers, and certain employees for some liabilities. We believe that these indemnification and advancement provisions and insurance will be useful to attract and retain qualified directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
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The limitation of liability, indemnification, and advancement provisions that will be included in our certificate of incorporation and bylaws may discourage stockholders from bringing a lawsuit against directors for breaches of their fiduciary duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders. In addition, your investment may be adversely affected to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
There is currently no pending material litigation or proceeding involving any of our directors, officers, or employees for which indemnification is sought.
Dissenters’ Rights of Appraisal and Payment
Under the DGCL, with certain exceptions, our stockholders will have appraisal rights in connection with a merger or consolidation of us. Pursuant to the DGCL, stockholders who properly request and perfect appraisal rights in connection with such merger or consolidation will have the right to receive payment of the fair value of their shares as determined by the Delaware Court of Chancery.
Stockholders’ Derivative Actions
Under the DGCL, any of our stockholders may bring an action in our name to procure a judgment in our favor, also known as a derivative action, provided that the stockholder bringing the action is a holder of our shares at the time of the transaction to which the action relates or such stockholder’s stock thereafter devolved by operation of law.
Choice of Forum
Our Certificate of Incorporation provides that unless we consent in writing to an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for any state law claim for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of fiduciary duty owed by any of our directors, officers, and employees to the Company or our stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, our Certificate of Incorporation or Bylaws, or (iv) any action asserting a claim that is governed by the internal affairs doctrine, in each case subject to the Court of Chancery of the State of Delaware having personal jurisdiction over the indispensable parties named as defendants therein. This choice of forum provision does not preclude or contract the scope of exclusive federal jurisdiction for any actions brought under the Exchange Act. Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. As a result, the exclusive forum provision will not apply to suits brought to enforce any duty or liability created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction, and we do not intend for the exclusive forum provision to apply to Exchange Act claims. Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder. Accordingly, there is uncertainty as to whether a court would enforce such a forum selection provision as written in connection with claims arising under the Securities Act. Additionally, this choice of forum provision will not apply to claims as to which the Court of Chancery of the State of Delaware does not have subject matter jurisdiction.
Our Certificate of Incorporation further provides that unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act.
In addition, our Certificate of Incorporation provides that any person or entity purchasing or otherwise acquiring any interest in shares of our Common Stock is deemed to have notice of and consented to the foregoing provisions; provided, however, that stockholders cannot and will not be deemed to have waived our compliance with the federal securities laws and the rules and regulations thereunder. The enforceability of similar choice of forum provisions in other companies’ certificates of incorporation and bylaws has been challenged in legal proceedings, and it is possible that a court could find these types of provisions to be inapplicable or unenforceable.
Listing
We have applied to have our Common Stock listed on NYSE under the symbol “BUDA”.
Transfer Agent and Registrar
The transfer agent and registrar for our Common Stock will be VStock Transfer, LLC. The transfer agent and registrar’s address is 18 Lafayette Place, Woodmere, New York 11598.
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SHARES ELIGIBLE FOR FUTURE SALE
Immediately prior to this Offering, there was no public market for our Common Stock, and no predictions can be made about the effect, if any, that market sales of our Common Stock or the availability of such shares for sale will have on the market price prevailing from time to time. Nevertheless, future sales of our Common Stock in the public market, or the perception that such sales may occur, could adversely affect the market price of our Common Stock and could impair our ability to raise capital through future sales of our securities. See “Risk Factors - Risks Relating to this offering - A substantial portion of our total issued and outstanding shares may be sold into the market at any time. This could cause the market price of our Common Stock to drop significantly, even if our business is doing well.” Furthermore, although we have applied to have our Common Stock listed on the NYSE, we cannot assure you that there will be an active public trading market for our Common Stock.
Upon the closing of this offering, based on the number of shares of our Common Stock outstanding as of the date of this prospectus, we will have an aggregate of 12,666,667 shares of our Common Stock outstanding. Of these shares of our Common Stock, all of the 2,666,667 shares sold in this Offering (or 3,066,667 shares if the underwriter exercises in full its option to purchase additional shares) will be freely tradable without restriction or further registration under the Securities Act, except for any shares purchased by our “affiliates,” as that term is defined in Rule144 under the Securities Act, whose sales would be subject to the Rule144 resale restrictions described below, other than the holding period requirement.
Of the remaining shares of our Common Stock, approximately 10,000,000 will be “restricted securities,” as that term is defined in Rule 144 under the Securities Act. These restricted securities are eligible for public sale only if they are registered under the Securities Act or if they qualify for an exemption from registration under Rules 144 or 701 under the Securities Act, which are summarized below. We expect that substantially all of these shares will be subject to the 12-month lock-up period under the lock-up agreements described below. Upon expiration of the lock-up period, we estimate that approximately 10,000,000 shares of our Common Stock will be available for sale in the public market, subject in some cases to applicable volume limitations under Rule 144.
Lock-Up and Market Standoff Agreements
All of our directors, executive officers and stockholders are subject to lock-up agreements or market standoff provisions that, subject to certain exceptions, prohibit them from directly or indirectly offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to purchase, granting any option, right or warrant to purchase or otherwise transferring or disposing of any shares of our Common Stock, options to acquire shares of our Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired, or entering into any swap or any other agreement or any transaction that transfer, in whole or in part, directly or indirectly, the economic consequence of ownership, for a period of 12 months following the date of this prospectus, without the prior written consent of the underwriter. However, our co-founder and CEO, Horatio Lonsdale-Hands will be able to sell up to $1,250,000 worth of Common Stock after 90 days from the closing of this Offering and the Company will be able to register those shares under a registration statement. See the section entitled “Underwriting.”
Rule 144
Affiliate Resales of Restricted Securities. In general, beginning 90 days after the effective date of the registration statement of which this prospectus is a part, a person who is an affiliate of ours, or who was an affiliate at any time during the 90 days before a sale, who has beneficially owned shares of our Common Stock for at least six months would be entitled to sell in “brokers transactions” or certain “riskless principal transactions” or to market makers, a number of shares within any three month-period that does not exceed the greater of:
| ● | 1% of the number of our Common Stock then outstanding, which will equal approximately 93,150 shares of our Common Stock immediately after this Offering; or |
| ● | the average weekly reported trading volume in shares of our Common Stock on the NYSE during the four calendar weeks preceding the date on which a notice of the sale on Form 144 is filed with the SEC with respect to such sale. |
Affiliates resales under Rule 144 are also subject to the availability of current public information about us. In addition, if the number of shares being sold under Rule 144 by an affiliate during any three-month period exceeds 5,000 shares or has an aggregate sale price in excess of $50,000, the seller must file a notice on Form 144 with the SEC and the NYSE concurrently with either the placing of a sale order with the broker or the execution directly with a market maker.
Non-Affiliate Resales of Restricted Securities. In general, beginning 90 days after the effective date of the registration statement of which this prospectus is a part, a person who is not an affiliate of ours at the time of sale, and has not been an affiliate at any time during the three months preceding a sale, and who has beneficially owned shares of our Common Stock for at least six months but less than a year, is entitled to sell such shares subject only to the availability of current public information about us. If such person has held our shares for at least one year, such person can resell under Rule 144(b)(1) without regard to any Rule 144 restrictions, including the 90-day public company requirement and the current public information requirement.
Non-affiliate resales are not subject to manner of sale, volume limitation or notice filing provisions of Rule 144.
Rule 701
In general, under Rule 701 of the Securities Act, each of our employees, officers, directors, consultants or advisors who purchases shares of our Common Stock from us in connection with a compensatory stock or option plan or other written agreement executed before the effective date of the registration statement under the Securities Act is entitled to resell such shares 90 days after such effective date in reliance on Rule 144. An affiliate of ours can resell shares in reliance on Rule 144 without having to comply with the holding period requirement, and non-affiliates of ours can resell shares in reliance on Rule 144 without having to comply with the current public information and holding period requirements.
The SEC has indicated that Rule 701 will apply to typical options granted by an issuer before it becomes subject to the reporting requirements of the Exchange Act, along with the shares acquired upon exercise of such options, including exercises after an issuer becomes subject to the reporting requirements of the Exchange Act.
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MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES TO
NON-U.S. HOLDERS OF OUR COMMON STOCK
The following discussion is a summary of the material U.S. federal income tax consequences to non-U.S. holders (as defined below) of the purchase, ownership and disposition of our Common Stock issued pursuant to this Offering, but does not purport to be a complete and comprehensive analysis of all potential tax consequences. The effects of other U.S. federal tax laws, such as estate and gift tax laws, and any applicable state, local or foreign tax laws are not addressed herein. This discussion is based on the Code, Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the U.S. Internal Revenue Service (the “IRS”), in each case in effect as of the date hereof. These authorities may change or be subject to differing interpretations. Any such change or differing interpretation may be applied retroactively in a manner that could adversely affect a non-U.S. holder of our Common Stock. We have not sought and will not seek any rulings from the IRS regarding the matters discussed below. There can be no assurance the IRS or a court will not take a contrary position to that discussed below regarding the tax consequences of the purchase, ownership and disposition of our Common Stock.
This discussion is limited to non-U.S. holders that hold our Common Stock as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences relevant to a non-U.S. holder’s particular circumstances, including the impact of the alternative minimum tax or the impact of the Medicare contribution tax on net investment income. In addition, it does not address consequences relevant to non-U.S. holders subject to special rules, including, without limitation:
● U.S. expatriates and certain former citizens or long-term residents of the United States;
● persons holding our Common Stock as part of a hedge, straddle or other risk reduction strategy or as part of a conversion transaction or other integrated investment;
● banks, insurance companies, and other financial institutions;
● brokers, dealers or traders in securities or currencies;
● persons that hold more than 5% of our Common Stock, directly or indirectly;
● “controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to avoid U.S. federal income tax;
● corporations organized outside of the United States, any state thereof or the District of Columbia that are nonetheless treated as U.S. taxpayers for U.S. federal income tax purposes;
● partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein);
● tax-exempt organizations or governmental organizations;
● persons deemed to sell our Common Stock under the constructive sale provisions of the Code;
● persons for whom our Common Stock constitutes “qualified small business stock” within the meaning of Section 1202 of the Code;
● persons who hold or receive our Common Stock pursuant to the exercise of any employee stock option or otherwise as compensation;
● qualified foreign pension funds as defined in Section 897(l)(2) of the Code and entities all of the interests of which are held by qualified foreign pension funds;
● persons subject to special tax accounting rules as a result of any item of gross income with respect to our Common Stock being taken into account in an applicable financial statement; and
● tax-qualified retirement plans.
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If a partnership (or other entity treated as a partnership for U.S. federal income tax purposes) holds our Common Stock, the tax treatment of a partner (or person or entity treated as a partner) will generally depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships holding our Common Stock and the partners in such partnerships should consult their tax advisors regarding the United States federal income tax consequences to them.
THIS DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED AS LEGAL OR TAX ADVICE AND DOES NOT SERVE AS A SUBSTITUTE FOR CAREFUL TAX PLANNING. INVESTORS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF OUR COMMON STOCK ARISING UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR UNDER THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR UNDER ANY APPLICABLE INCOME TAX TREATY.
Definition of a Non-U.S. Holder
For purposes of this discussion, a “non-U.S. holder” is any beneficial owner of our Common Stock that is neither a “U.S. person,” nor an entity treated as a partnership for U.S. federal income tax purposes regardless of its place of organization or formation. A U.S. person is any person that, for U.S. federal income tax purposes, is or is treated as any of the following:
| ● | an individual who is a citizen or resident of the United States; |
| ● | a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized under the laws of the United States, any state thereof, or the District of Columbia; |
| ● | an estate, the income of which is subject to U.S. federal income tax regardless of its source; or |
| ● | a trust that (1) is subject to the primary supervision of a U.S. court and which has one or more U.S. persons (within the meaning of Section 7701(a)(30) of the Code) who have the authority to control all substantial decisions of the trust, or has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person. |
Distributions
As described in the section titled “Dividend Policy,” we do not anticipate declaring or paying dividends to holders of our Common Stock in the foreseeable future. However, if we do make distributions on our Common Stock, such distributions of cash or property on our Common Stock will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Amounts not treated as dividends for U.S. federal income tax purposes will constitute a return of capital and first be applied against and reduce a non-U.S. holder’s adjusted tax basis in its Common Stock, but not below zero. Any excess will be treated as capital gain and will be treated as described below under “- Sale or Other Disposition of Common Stock.”
Subject to the discussion below on effectively connected income, backup withholding and foreign accounts, dividends paid to a non-U.S. holder of our Common Stock that are not effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States will be subject to U.S. federal withholding tax at a rate of 30% of the gross amount of the dividends (or such lower rate specified by an applicable income tax treaty, provided the non-U.S. holder furnishes a valid IRS Form W-8BEN or W-8BEN-E (or other applicable documentation) certifying qualification for the lower treaty rate). Non-U.S. holders should consult their tax advisors regarding their entitlement to benefits under any applicable income tax treaty.
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Non-U.S. holders may be entitled to a reduction in or an exemption from withholding on dividends as a result of either (a) an applicable income tax treaty or (b) the non-U.S. holder holding our Common Stock in connection with the conduct of a trade or business within the United States and dividends being effectively connected with that trade or business. To claim such a reduction in or exemption from withholding, the non-U.S. holder must provide the applicable withholding agent with a properly completed and executed (a) IRS Form W-8BEN or W-8BEN-E (or other applicable documentation) claiming an exemption from or reduction of the withholding tax under the benefit of an income tax treaty between the United States and the country in which the non-U.S. holder resides or is established, or (b) IRS Form W-8ECI stating that the dividends are not subject to withholding tax because they are effectively connected with the conduct by the non-U.S. holder of a trade or business within the United States, as may be applicable. These certifications must be provided to the applicable withholding agent prior to the payment of dividends and must be updated periodically. If a non-U.S. holder holds stock through a financial institution or other agent acting on the non-U.S. holder’s behalf, the non-U.S. holder will be required to provide appropriate documentation to such agent. The non-U.S. holder’s agent will then be required to provide certification to us or our paying agent, either directly or through other intermediaries. Non-U.S. holders that do not timely provide the applicable withholding agent with the required certification, but that qualify for a reduced rate under an applicable income tax treaty, may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS. Special certification and other requirements apply to certain non-U.S. holders that are pass-through entities (e.g., partnerships) rather than corporations or individuals.
If dividends paid to a non-U.S. holder are effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the non-U.S. holder maintains a permanent establishment in the United States to which such dividends are attributable), then, although exempt from U.S. federal withholding tax (provided the non-U.S. holder provides appropriate certification, as described above), the non-U.S. holder will be subject to U.S. federal income tax on such dividends on a net income basis at the regular U.S. federal income tax rates. In addition, a non-U.S. holder that is a corporation may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty, provided the non-U.S. holder furnishes a valid IRS Form W-8BEN or W-8BEN-E (or other applicable documentation) certifying qualification for the lower treaty rate) on its effectively connected earnings and profits for the taxable year that are attributable to such dividends, as adjusted for certain items. Non-U.S. holders should consult their tax advisors regarding their entitlement to benefits under any applicable income tax treaty.
Sale or Other Disposition of Common Stock
Subject to the discussions below on backup withholding and FATCA, a non-U.S. holder generally will not be subject to U.S. federal income tax on any gain realized upon the sale or other disposition of our Common Stock unless:
| ● | the gain is effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the non-U.S. holder maintains a permanent establishment in the United States to which such gain is attributable); |
| ● | the non-U.S. holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year of the disposition and certain other requirements are met; or |
| ● | our Common Stock constitute U.S. real property interests, or USRPIs, by reason of our status as a U.S. real property holding corporation, or USRPHC, for U.S. federal income tax purposes at any time within the shorter of the five-year period preceding such disposition or such non-U.S. holder’s holding period. |
Gain described in the first bullet point above will generally be subject to U.S. federal income tax on a net income basis at the regular U.S. federal income tax rates. A non-U.S. holder that is a foreign corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items.
A non-U.S. holder described in the second bullet point above will be subject to U.S. federal income tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on gain realized upon the sale or other taxable disposition of our Common Stock, which may be offset by certain U.S. source capital losses of the non-U.S. holder (even though the individual is not considered a resident of the United States) provided the non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses.
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With respect to the third bullet point above, we would be a USRPHC if our USRPIs comprise (by fair market value) at least 50% of our business assets. We believe we currently are not, and do not anticipate becoming, a USRPHC. Because the determination of whether we are a USRPHC depends, however, on the fair market value of our USRPIs relative to the fair market value of our other business assets and our non-U.S. real property interests, there can be no assurance we currently are not a USRPHC or will not become one in the future. Even if we are or were to become a USRPHC, gain arising from the sale or other taxable disposition of our Common Stock by a non-U.S. holder will not be subject to U.S. federal income tax if our Common Stock is “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market, and such non-U.S. holder owned, actually and constructively, 5% or less of our Common Stock throughout the shorter of the five-year period ending on the date of the sale or other taxable disposition or the non-U.S. holder’s holding period. There can be no assurance that our Common Stock will continue to qualify as regularly traded on an established securities market. If any gain on your disposition is taxable because we are a USRPHC and your ownership of our Common Stock exceeds 5%, you will be taxed on such disposition generally in the manner as gain that is effectively connected with the conduct of a U.S. trade or business (subject to the provisions under an applicable income tax treaty), except that the branch profits tax generally will not apply.
Non-U.S. holders should consult their tax advisors regarding potentially applicable income tax treaties that may provide for different rules.
Information Reporting and Backup Withholding
Subject to the discussion below on FATCA, payments of dividends on our Common Stock will not be subject to backup withholding, provided the applicable withholding agent does not have actual knowledge or reason to know such holder is a U.S. person and the holder either certifies under penalties of perjury its non-U.S. status, such as by furnishing a valid IRS Form W-8BEN, W-8BEN-E or W-8ECI, or otherwise establishes an exemption. However, information returns are required to be filed with the IRS in connection with any distributions (including deemed distributions) on our Common Stock paid to the non-U.S. holder, regardless of whether such distributions constitute dividends or whether any tax was actually withheld. Such information returns generally include the amount of any such dividends, the name and address of the recipient, and the amount, if any, of tax withheld. A similar report is sent to the holder to whom any such dividends are paid. In addition, proceeds of the sale or other taxable disposition of our Common Stock within the United States or conducted through certain U.S.-related brokers generally will not be subject to backup withholding or information reporting if the applicable withholding agent receives the certification described above and does not have actual knowledge or reason to know that such holder is a U.S. person or the holder otherwise establishes an exemption. Proceeds of a disposition of our Common Stock conducted through a non-U.S. office of a non-U.S. broker that does not have certain enumerated relationships with the United States generally will not be subject to backup withholding or information reporting.
Copies of information returns that are filed with the IRAS may also be made available under the provisions of an applicable treaty or agreement to the tax authorities of the country in which the non-U.S. holder resides or is established.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a non-U.S. holder’s U.S. federal income tax liability, provided the required information is timely furnished to the IRS.
Additional Withholding Tax on Payments Made to Foreign Accounts
Withholding taxes may be imposed under Sections 1471 to 1474 of the Code and applicable Treasury Regulations (such Sections commonly referred to as the Foreign Account Tax Compliance Act, or FATCA), on certain types of payments made to non-U.S. financial institutions and certain other non-U.S. entities. Specifically, a 30% withholding tax may be imposed on dividends on, or (subject to the proposed Treasury Regulations discussed below) gross proceeds from the sale or other disposition of our Common Stock paid to a “foreign financial institution” or a “non-financial foreign entity” (each as defined in the Code) (including, in some cases, when such foreign financial institution or non-financial foreign entity is acting as an intermediary), unless (1) the foreign financial institution undertakes certain diligence and reporting obligations, (2) the non-financial foreign entity either certifies it does not have any “substantial United States owners” (as defined in the Code) or furnishes identifying information regarding each substantial United States owner, or (3) the foreign financial institution or non-financial foreign entity otherwise qualifies for an exemption from these rules. If the payee is a foreign financial institution and is subject to the diligence and reporting requirements in (1) above, it must enter into an agreement with the U.S. Department of the Treasury requiring, among other things, that it undertake to identify accounts held by certain “specified United States persons” or “United States-owned foreign entities” (each as defined in the Code), annually report certain information about such accounts, and withhold 30% on certain payments to non-compliant foreign financial institutions and certain other account holders. Foreign financial institutions located in jurisdictions that have an intergovernmental agreement with the United States governing FATCA may be subject to different rules.
Under the applicable Treasury Regulations and administrative guidance, withholding under FATCA generally applies to payments of dividends on our Common Stock. While withholding under FATCA would have applied also to payments of gross proceeds from the sale or other disposition of stock on or after January 1, 2019, proposed Treasury Regulations eliminate FATCA withholding on payments of gross proceeds entirely. Taxpayers generally may rely on these proposed Treasury Regulations until final Treasury Regulations are issued.
We will not pay additional amounts or “gross up” payments to holders as a result of any withholding or deduction for taxes imposed under FATCA. Under certain circumstances, a non-U.S. holder might be eligible for refunds or credits of such taxes. Prospective investors should consult their tax advisors regarding the potential application of FATCA to their investment in our Common Stock.
EACH PROSPECTIVE INVESTOR SHOULD CONSULT ITS OWN TAX ADVISOR REGARDING THE TAX CONSEQUENCES OF PURCHASING, HOLDING AND DISPOSING OF OUR COMMON STOCK, INCLUDING THE CONSEQUENCES OF ANY RECENT OR PROPOSED CHANGE IN APPLICABLE LAW.
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We have entered into an underwriting agreement, dated [●], 2025, with MDB Capital, the operating name for Public Ventures, LLC, acting as the sole book-running manager. Subject to the terms and conditions of the underwriting agreement, MDB Capital as the underwriter will purchase from the Company, and the Company has agreed to sell to it, an aggregate of 2,666,667 shares of Common Stock.
The underwriting agreement between the Company and MDB Capital provides that the obligations of the underwriter to pay for and accept delivery of the shares of Common Stock offered by this prospectus are subject to various conditions and representations and warranties, including the approval of certain legal matters by its counsel and other conditions specified in the underwriting agreement. The shares of Common Stock are offered by the underwriter, subject to prior sale, when, as and if issued to and accepted by the underwriter. The underwriter reserves the right to withdraw, cancel or modify the offer to the public and to reject orders in whole or in part. The underwriter is obligated to take and pay for all of the shares of Common Stock offered by this prospectus if any such shares are taken.
We have agreed to indemnify the underwriter and certain of its affiliates and controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), among others, against specified liabilities, including liabilities under the Securities Act, and to contribute to payments the underwriter may be required to make in respect thereof.
We have granted a 45-day option to the underwriter to purchase from the Company up to 400,000 additional shares of Common Stock solely to cover over-allotments, if any. If the underwriter exercises the option in full, the total maximum underwriting discounts and commissions payable will be $1,610,000, and the total proceeds net of full amount of the potential discounts and commissions, to us, before expenses, will be approximately $21,390,002.
Discounts and Commissions
The underwriter proposes to offer the shares of Common Stock offered hereby directly to the public at the public offering price set forth on the cover page of this prospectus. After the offering to the public, the offering price and other selling terms may be changed by the underwriter without changing the proceeds we will receive from the underwriter. Any shares sold by the underwriter to securities dealers will be sold at the public offering price less a selling concession not in excess of $0.315 per share.
The following table summarizes the public offering price, underwriting commissions and proceeds before expenses to us. The underwriting commission is 7% of the public offering price and assumes the underwriting commission is applied to all the shares of Common Stock to be sold in the offering.
| Per Share | Total Without Over-Allotment Option | Total With Full Over-Allotment Option | ||||||||||
| Public offering price | $ | 7.50 | $ | 20,000,000 | $ | 23,000,000 | ||||||
| Underwriting discount payable by Company (7%) | $ | .2625 | $ | 1,400,000 | $ | 1,610,000 | ||||||
| Proceeds to Company, before expenses, to us | $ | 6.9750 | $ | 18,600,000 | $ | 21,390,000 | ||||||
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The registration statement, of which this prospectus is a part, registers for sale warrants, to be issued by the Company, to purchase up to 266,667 shares of Common Stock (or up to 306,667 shares of Common Stock if the underwriter’s over-allotment option is exercised in full) to be issued to the underwriter, which will have an exercise price of $9.375 (125% of the public offering price). The warrants will represent 10% of the shares of Common Stock being sold by the Company in this Offering.
Our total estimated expenses of the Offering, including registration, filing and listing fees, printing fees and legal and accounting expenses, but excluding underwriting discounts and commissions, are approximately $516,823.
Over-Allotment Option
We have granted a 45-day option to the underwriter to purchase up to 400,000 additional shares of Common Stock, equal to 15% of the shares of Common Stock sold in the IPO by the Company, solely to cover over-allotments, if any, at the public offering price, less underwriting discounts and commissions.
Underwriter’s Warrant
Upon closing of this Offering, we have agreed to sell to the underwriter or its designees as part of the underwriter compensation, warrants to purchase up to 266,667 shares of Common Stock (or up to 306,667 shares of Common Stock if the underwriter’s over-allotment option is exercised in full), which is equal to 10% of the aggregate number of shares of Common Stock sold by the Company in this Offering (the “Underwriter’s Warrants”). The Underwriter’s Warrants will be exercisable at a per share exercise price equal to $9.375 (125% of the public offering price per share in this Offering). The Underwriter’s Warrants are exercisable at any time and from time to time, in whole or in part, during the period commencing 180 days after the effective date of the registration statement of which this prospectus is a part until the five year anniversary of the effective date of the registration statement.
The Underwriter’s Warrants have been deemed compensation by FINRA and are therefore subject to a 180 day lock-up. The underwriter (or permitted assignees under Rule 5110(e)(2)) will not sell, transfer, assign, pledge, or hypothecate these warrants or the securities underlying the warrants, nor will they engage in any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the warrants or the underlying securities for a period of 180 days from the effective date of the registration statement. In addition, the warrants provide for registration rights upon request, in certain cases. The one-time demand registration right provided will not be greater than five years from the effective date of the registration statement in compliance with FINRA Rule 5110(g)(8)(C). The unlimited piggyback registration right provided will not be greater than seven years from the effective date of the registration statement in compliance with FINRA Rule 5110(g)(8)(D). We will bear all fees and expenses attendant to registering the securities issuable on exercise of the warrants other than underwriting commissions incurred and payable by the holders. The exercise price and number of shares issuable upon exercise of the warrants will be adjusted in certain circumstances including in the event of a stock dividend or our recapitalization, reorganization, merger or consolidation. However, the warrant exercise price or underlying shares will not be adjusted for issuances of shares of Common Stock at a price below the warrant exercise price.
Discretionary Accounts
The underwriter does not intend to confirm sales of the securities offered hereby to any accounts over which they have discretionary authority.
Lock-Up Agreements
We and our executive officers, directors, director nominees, and employees have agreed pursuant to “lock-up” agreements not to, or are subject to other restrictions so that they may not, without the prior written consent of the underwriter, directly or indirectly, offer to sell, sell, pledge or otherwise transfer or dispose of any of shares of (or enter into any transaction or device that is designed to, or could be expected to, result in the transfer or disposition by any person at any time in the future of) our Common Stock, enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of our Common Stock, make any demand for or exercise any right or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock or securities convertible into or exercisable or exchangeable for shares of Common Stock or any other of our securities or publicly disclose the intention to do any of the foregoing, subject to customary exceptions, for 365 days from the date of this prospectus. However, our co-founder and CEO, Horatio Lonsdale-Hands will be able to sell up to $1,250,000 worth of Common Stock after 90 days from the closing of this Offering, and the Company will be able to register those shares under a registration statement.
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Market
We have applied to list our shares of Common Stock on the NYSE under the symbol “BUDA.” Prior to this Offering, there has been no established trading market for the shares of Common Stock.
Price Stabilization, Short Positions and Penalty Bids
In order to facilitate the offering of our securities, the underwriter may engage in transactions that stabilize, maintain or otherwise affect the price of our securities. In connection with the Offering, the underwriter may purchase and sell our securities in the open market. These transactions may include short sales, purchases on the open market to cover positions created by short sales and stabilizing transactions. Short sales involve the sale by the underwriter of a greater number of shares of securities than they are required to purchase in the Offering. “Covered” short sales are sales made in an amount not greater than the underwriter’s option to purchase additional shares of securities in the Offering. The underwriter may close out any covered short position by either exercising the over-allotment option to purchase shares or purchasing shares in the open market. In determining the source of shares of securities to close out the covered short position, the underwriter will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option to purchase shares. “Naked” short sales are sales in excess of the over-allotment option to purchase shares. The underwriter must close out any naked short position by purchasing securities in the open market. A naked short position is more likely to be created if the underwriter is concerned that there may be downward pressure on the price of our securities in the open market after pricing that could adversely affect investors who purchase in the Offering. Stabilizing transactions consist of various bids for or purchases of shares of securities made by the underwriter in the open market before the completion of the Offering.
Similar to other purchase transactions, the underwriter’s purchases to cover the syndicate short sales may have the effect of raising or maintaining the market price of our securities or preventing or retarding a decline in the market price of our securities. As result, the price of our securities may be higher than the price that might otherwise exist in an open market.
The underwriter makes no representation or prediction as to the direction or magnitude of any effect that the transactions described above may have on the price of our securities. In addition, neither we nor the underwriter make any representation that the underwriter will engage in these transactions or that these transactions, once commenced, will not be discontinued without notice.
Electronic Offer, Sale and Distribution of Securities
A prospectus in electronic format may be made available on the websites maintained by the underwriter or selling group members, if any, participating in the Offering. The underwriter may agree to allocate a number of shares of securities to the underwriter and selling group members for sale to their online brokerage account holders. Internet distributions will be allocated by the underwriter and selling group members that may make internet distributions on the same basis as other allocations. Other than the prospectus in electronic format, the information on the underwriter’s website and any information contained in any other website maintained by an underwriter is not part of this prospectus or the registration statement of which this prospectus forms a part.
Other Relationships
From time to time, the underwriter and/or their affiliates in the future may provide to us, various advisory, investment and commercial banking and other services in the ordinary course of business, for which they will receive customary fees and commissions. However, except as disclosed in this prospectus, we have no present arrangements with the underwriter or any of their affiliates for any further services for fees and commissions.
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Pricing of the Offering
The public offering price was determined by negotiations between us and the underwriter. Among the factors considered in determining the public offering price were our future prospects and those of our industry in general, our assets, our intellectual property portfolio and certain other financial and operating information in recent periods, and the price-earnings ratios, price-sales ratios, market prices of securities, and certain financial and operating information of companies engaged in activities similar to ours. Neither we nor the underwriter can assure investors that an active trading market for the shares will develop or that, after the Offering, the shares will trade in the public market at or above the public offering price.
Offer Restrictions Outside the United States
Other than in the United States, no action has been taken by us or the underwriter that would permit a public offering of the securities offered by this prospectus in any jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised to inform themselves about and to observe any restrictions relating to the Offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.
Canada
The securities may be sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are “accredited investors”, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario). Any resale of the securities must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws. As this prospectus is not being filed and receipted by any provincial securities commission in Canada, any remedies or rights of rescission normally available under a prospectus are not available to such purchasers. Canadian accredited purchasers should consult with a legal advisor to determine what rights they may have in the event of misrepresentation in this prospectus.]
The validity of the shares of Common Stock and Underwriter’s Warrants covered by this prospectus will be passed upon for us by Lucosky Brookman LLP, Woodbridge, New Jersey. Certain legal matters relating to the Offering will be passed upon for the underwriter by Golenbock Eiseman Assor Bell & Peskoe LLP, New York, New York.
The financial statements of Buda Juice, LLC as of and for the years ended December 31, 2024 and 2023 appearing in this prospectus have been audited by RBSM LLP, an independent registered public accounting firm, as stated in their report appearing herein. Such financial statements are included in this prospectus and registration statement in reliance upon the report appearing elsewhere herein, and upon the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the shares of Common Stock offered hereby. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement or the exhibits and schedules filed therewith. For further information about us and the shares of Common Stock offered hereby, we refer you to the registration statement and the exhibits and schedules filed thereto. Statements contained in this prospectus regarding the contents of any contract or any other document that is filed as an exhibit to the registration statement are not necessarily complete, and each such statement is qualified in all respects by reference to the full text of such contract or other document filed as an exhibit to the registration statement. Upon completion of this Offering, we will be required to file periodic reports, proxy statements, and other information with the SEC pursuant to the Exchange Act. You may obtain information on the operation of the public reference rooms by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet website that contains reports, proxy statements and other information about registrants, like us, that file electronically with the SEC. The address of that site is www.sec.gov.
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| F-1 |
Buda Juice LLC
(Amounts in Thousands)
| September 30, 2025 | December 31, 2024 | |||||||
| (Unaudited) | ||||||||
| ASSETS | ||||||||
| Current assets | ||||||||
| Cash | $ | 2,062 | $ | 1,887 | ||||
| Accounts receivable | 398 | 395 | ||||||
| Inventory | 412 | 374 | ||||||
| Prepaid expenses and other current assets | 384 | 41 | ||||||
| Total current assets | 3,256 | 2,697 | ||||||
| Property and equipment, net of accumulated depreciation of $2,068 and $1,850, respectively | 1,062 | 969 | ||||||
| Operating lease right-of-use asset | 811 | 65 | ||||||
| Total assets | $ | 5,129 | $ | 3,731 | ||||
| LIABILITIES AND MEMBERS’ EQUITY | ||||||||
| Current liabilities: | ||||||||
| Accounts payable | $ | 375 | $ | 449 | ||||
| Other current liabilities | 108 | 58 | ||||||
| Operating lease liability, current portion | 131 | 68 | ||||||
| Total current liabilities | 614 | 575 | ||||||
| Long term liabilities: | ||||||||
| Operating lease liability, net of current portion | 683 | - | ||||||
| Total liabilities | 1,297 | 575 | ||||||
| Members’ equity | ||||||||
| Members’ equity | 3,323 | 5,505 | ||||||
| Accumulated equity(deficit) | 509 | (2,349 | ) | |||||
| Total equity | 3,832 | 3,156 | ||||||
| Total liabilities and members’ equity | $ | 5,129 | $ | 3,731 | ||||
See accompanying notes to the unaudited condensed financial statements
| F-2 |
Buda Juice LLC
Condensed Statements of Operations (Unaudited)
(Amounts in Thousands)
| Nine Months Ended | ||||||||
| September 30, 2025 | September 30, 2024 | |||||||
| Net sales | $ | 9,714 | $ | 8,502 | ||||
| Cost of goods sold | 5,301 | 4,546 | ||||||
| Gross profit | 4,413 | 3,956 | ||||||
| Operating expenses: | ||||||||
| Delivery and handling expense | 413 | 414 | ||||||
| Selling, general and administrative expense | 1,211 | 983 | ||||||
| Total operating expenses | 1,624 | 1,397 | ||||||
| Income from operations | 2,789 | 2,559 | ||||||
| Other income / (expense) | 34 | 106 | ||||||
| Interest income / (expense), net | 35 | (55 | ) | |||||
| Net income | $ | 2,858 | $ | 2,610 | ||||
| Unaudited proforma earnings per common share [1] | ||||||||
| Basic | $ | 0.23 | $ | 0.21 | ||||
| Diluted | $ | 0.16 | $ | 0.15 | ||||
| Unaudited proforma weighted average shares outstanding | ||||||||
| Basic | 10,000 | 10,000 | ||||||
| Diluted | 14,000 | 14,000 | ||||||
[1] Adjusted for proforma effect of federal corporate tax rate of twenty-one percent to reflect conversion from LLC to Inc.
See accompanying notes to the unaudited condensed financial statements
| F-3 |
Buda Juice LLC
Condensed Statements of Changes in Members’ Equity (Unaudited)
(Amounts in Thousands)
| Members’ Equity | Accumulated Equity (Deficit) | Total Members’ Equity | ||||||||||
| BALANCE – January 1, 2024 | $ | 6,324 | $ | (5,923 | ) | $ | 401 | |||||
| Net income | - | 2,610 | 2,610 | |||||||||
| Distributions | (819 | ) | - | (819 | ) | |||||||
| BALANCE – September 30, 2024 | 5,505 | (3,313 | ) | 2,192 | ||||||||
| BALANCE – January 1, 2025 | 5,505 | (2,349 | ) | 3,156 | ||||||||
| Net income | - | 2,858 | 2,858 | |||||||||
| Distributions | (2,182 | ) | - | (2,182 | ) | |||||||
| BALANCE – September 30, 2025 | $ | 3,323 | $ | 509 | $ | 3,832 | ||||||
See accompanying notes to the unaudited condensed financial statements
| F-4 |
Buda Juice LLC
Condensed Statements of Cash Flows (Unaudited)
(Amounts in Thousands)
| Nine Months Ended | ||||||||
| September 30, 2025 | September 30, 2024 | |||||||
| Net income | $ | 2,858 | $ | 2,610 | ||||
| Adjustments to reconcile net income to net cash provided in operating activities: | ||||||||
| Depreciation and amortization | 218 | 209 | ||||||
| Amortization of right to use asset | 93 | 76 | ||||||
| Changes in assets and liabilities: | ||||||||
| Accounts receivable | (3 | ) | (94 | ) | ||||
| Inventory | (38 | ) | (99 | ) | ||||
| Prepaid expenses and other current assets | (343 | ) | 20 | |||||
| Accounts payable and other current liabilities | (24 | ) | 90 | |||||
| Payments on operating lease obligations | (94 | ) | (81 | ) | ||||
| Net cash provided by operating activities | 2,667 | 2,731 | ||||||
| Cash flows from investing activities | ||||||||
| Capital spending of property and equipment | (310 | ) | (535 | ) | ||||
| Net cash used for investing activities | (310 | ) | (535 | ) | ||||
| Cash flows from financing activities | ||||||||
| Net payments of line of credit | - | (1,810 | ) | |||||
| Cash distributed to owners | (2,182 | ) | (819 | ) | ||||
| Net cash used for financing activities | (2,182 | ) | (2,629 | ) | ||||
| Net increase / (decrease) in cash and cash equivalents | 175 | (433 | ) | |||||
| Cash and cash equivalents at beginning of period | 1,887 | 1,426 | ||||||
| Cash and cash equivalents at end of period | $ | 2,062 | $ | 993 | ||||
| Supplemental disclosures of cash flow information: | ||||||||
| Cash paid for interest | $ | - | $ | 72 | ||||
See accompanying notes to the unaudited condensed financial statements
| F-5 |
BUDA JUICE LLC
NOTES TO THE UNAUDITED CONDENSED FINANCIAL STATEMENTS
AS OF AND FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2025 AND 2024
| 1. | BASIS OF PRESENTATION |
The accompanying unaudited condensed financial statements have been prepared in accordance with the instructions to Regulation S-X and do not include all the information and disclosures required by generally accepted accounting principles in the United States of America (“GAAP”). The Company has made estimates and judgments affecting the amounts reported in the Company’s unaudited condensed financial statements and the accompanying notes. The actual results experienced by the Company may differ materially from the Company’s estimates. The condensed financial information is unaudited but reflects all normal adjustments that are, in the opinion of management, necessary to provide a fair statement of results for the interim periods presented. These unaudited condensed financial statements should be read in conjunction with the Company’s audited financial statements, which includes additional information on our significant accounting policies outlined in Note 2 – Summary of Significant Accounting Policies, as well as the methods and assumptions used in our estimates for the years ended December 31, 2024 and 2023. The balance sheet as of December 31, 2024, was derived from the Company’s audited 2024 financial statements.
The results of operations for the nine months ended September 30, 2025, are not necessarily indicative of the results that may be expected for the full year ended December 31, 2025.
The accompanying financial statements reflect the application of certain significant accounting policies as described below and elsewhere in these notes to the financial statements.
| 2. | FAIR VALUE MEASUREMENTS |
We apply fair value accounting for all financial assets and liabilities and non-financial assets and liabilities that are recognized or disclosed at fair value in our consolidated financial statements. We categorize assets and liabilities, based on the priority of the inputs to the valuation technique, into a three-level fair value hierarchy as set forth below. The three levels of the hierarchy are defined as follows:
Level 1 – Unadjusted quoted prices in active markets for identical assets or liabilities.
Level 2 – Observable inputs other than quoted prices in active markets for identical assets or liabilities, quoted prices for identical assets or liabilities in inactive markets, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.
Level 3 – Inputs that are both unobservable and significant to the overall fair value measurements reflecting an entity’s estimates of assumptions that market participants would use in pricing the asset or liability.
Our balance sheets include cash and cash equivalents, accounts receivable, prepaid expenses and other current assets, accounts payable, accrued expenses and other current liabilities, for which the carrying amounts approximate fair value due to their short-term maturity. As of the reporting date, the Company did not have any financial instruments measured at fair value on a recurring basis or any variable-rate credit facilities.
| 3. | SEGMENT INFORMATION |
The Company operates as a single reportable segment under ASC 280, Segment Reporting. The Company’s chief operating decision maker (CODM) is the Board of Directors (BOD), which includes the chief executive officer and executive chairman of the BOD. The CODM reviews financial information on a consolidated basis for purposes of allocating resources and evaluating financial performance.
| F-6 |
Description of Products and Services
The Company derives revenues primarily from its product line of cold-crafted citrus-based beverages, which are mostly sold directly to large grocery chains via third party delivery services.
Factors Used to Identify Reportable Segments
The Company has one reportable segment, as business activities are managed on a consolidated basis. Revenues are derived exclusively in the United States, specifically in Texas.
Measurement of Segment Profit or Loss
The accounting policies applied to our segment follow those applied to the Company as a whole. The CODM assesses performance and allocates resources based on net income, which is the same as net income reported in the statements of operations. The CODM uses net income to evaluate return on assets, decide on reinvestments or dividends, monitor budget versus actual results, and benchmark against competitors. This measure also informs management compensation decisions.
The Company does not have intra-entity sales or transfers.
The following table presents information about reported segment revenue, significant segment expenses, and profit or loss for the nine months ended September 30, 2025 and 2024 (in thousands).
| Nine Months Ended | ||||||||
| September 30, 2025 | September 30, 2024 | |||||||
| (in thousands) | ||||||||
| Revenue | $ | 9,714 | $ | 8,502 | ||||
| Significant expenses: | ||||||||
| Cost of goods sold | 5,301 | 4,546 | ||||||
| Delivery and handling | 413 | 413 | ||||||
| Salaries and employee benefits | 375 | 249 | ||||||
| Depreciation expense | 218 | 209 | ||||||
| Repair and maintenance | 82 | 85 | ||||||
| Lease expense | 149 | 126 | ||||||
| Rent and utilities | 64 | 114 | ||||||
| Professional fees | 95 | 72 | ||||||
| Marketing | 77 | 35 | ||||||
| Other expenses / (income) | 82 | 42 | ||||||
| Net income (Segment Profit or Loss) | $ | 2,858 | $ | 2,610 | ||||
The segment’s net income reconciles directly to the Company’s net income, with no adjustments required. Segment assets are measured as total assets, which were $5,129 as of September 30, 2025, and $3,731 as of December 31, 2024.
Entity-Wide Disclosures
Revenues by Product or Service
Although the Company operates in one segment, revenues from external customers are disaggregated by major product lines as follows (in thousands):
| Revenue Source | September 30, 2025 | September 30, 2024 | ||||||
| (in thousands) | ||||||||
| Branded – Organic | $ | 1,007 | $ | 1,430 | ||||
| Branded – Non-Organic | 4,387 | 4,322 | ||||||
| Private Label/Other | 4,320 | 2,750 | ||||||
| Total revenue | $ | 9,714 | $ | 8,502 | ||||
Geographic Information
Revenues are attributed to geographic areas based on customer location. Long-lived assets are attributed on physical location. All revenues and assets are derived in the United States, specifically Texas, and are presented as such in the statements of operations and balance sheets.
Major Customers
Revenues from one customer represented approximately $9,417 (97% of total revenues) for the nine months ended September 30, 2025, and $8,138 (97% of revenues) for the nine months ended September 30, 2024. No other customer accounted for 10% or more of total revenues.
| F-7 |
| 4. | ACCOUNTING PRONOUNCEMENTS NOT YET ADOPTED |
In November 2024, the FASB issued guidance to improve the disclosure of expenses in commonly presented expense captions. The new guidance requires a public entity to provide tabular disclosure, on an annual and interim basis, of amounts for the following expense categories: (1) purchases of inventory, (2) employee compensation, (3) depreciation and (4) intangible asset amortization, as included in each relevant expense caption. A relevant expense caption is an expense caption presented on the face of the income statement that contains any of the expense categories noted. Additionally, on an annual and interim basis, a qualitative description is required for amounts remaining in relevant expense captions that are not separately disaggregated quantitatively. The guidance also requires certain amounts that are currently required to be disclosed to be included in the same tabular disclosure as these disaggregation requirements. Furthermore, on an annual and interim basis, a public entity is required to separately disclose selling expenses and annually, disclose a description of the selling expenses. The guidance is effective for 2027 annual reporting, and in the first quarter of 2028 for interim reporting, with early adoption permitted, to be applied on a prospective basis, with retrospective application permitted. We will adopt the guidance when it becomes effective, in our 2027 annual reporting and each quarter thereafter, on a prospective basis.
In December 2023, the FASB issued guidance to enhance transparency of income tax disclosures. On an annual basis, the new guidance requires a public entity to disclose: (1) specific categories in the rate reconciliation, (2) additional information for reconciling items that are equal to or greater than 5% of the amount computed by multiplying income (or loss) from continuing operations before income tax expense (or benefit) by the applicable statutory income tax rate, (3) income taxes paid (net of refunds received) disaggregated by federal (national), state, and foreign taxes, with foreign taxes disaggregated by individual jurisdictions in which income taxes paid is equal to or greater than 5% of total income taxes paid, (4) income (or loss) from continuing operations before income tax expense (or benefit) disaggregated between domestic and foreign, and (5) income tax expense (or benefit) from continuing operations disaggregated between federal (national), state and foreign. The guidance is effective for fiscal year 2025 annual reporting, with early adoption permitted, to be applied on a prospective basis, with retrospective application permitted. We will adopt the guidance when it becomes effective, in our 2025 annual reporting, on a prospective basis.
| 5. | ACCOUNTS RECEIVABLE AND CREDIT RISK (ASC 326) |
Accounts receivable are recorded at the invoiced amount and do not bear interest. The Company evaluates the collectability of its accounts receivable on an ongoing basis. As of September 30, 2025, management determined that all receivables were fully collectible; therefore, no allowance for doubtful accounts has been recorded.
For the nine months ended September 30, 2025 and 2024, the Company derived a significant portion of its revenue from a limited number of customers which is disclosed in Note 3 – Segment Information. The Company does not require collateral and maintains credit policies intended to reduce overall credit risk.
Allowance for Credit Losses
Customer accounts receivable are stated at the amount management expects to collect on balances. The Company accounts for credit losses in accordance with ASC Topic 326, Financial Instruments – Credit Losses (“ASC Topic 326”). ASC 326 impacts the impairment model for certain financial assets measured at amortized cost by requiring a current expected credit loss (“CECL”) methodology to estimate expected credit losses over the entire life of the financial asset, recorded at inception or purchase. The Company has the ability to determine if there are no expected credit losses in certain circumstances. We evaluate the credit worthiness of our portfolio on an individual loan basis and on a portfolio basis. The allowance is subjective as it requires material estimates, including such factors as historical trends, known and inherent risks in the loan portfolio, adverse situations that may affect borrowers’ ability to repay and current economic conditions. Other qualitative factors considered may include items such as uncertainties in forecasting and modeling techniques, changes in portfolio composition, business conditions and emerging trends. Recovery of the carrying value of loans is dependent to a great extent on conditions that may be beyond our control. Any combination of the aforementioned factors may adversely affect our loan portfolio resulting in increased delinquencies and loan losses and could require additional provisions for loan losses, which could impact future periods.
Credit Risk
Credit risk is the risk of financial loss if a customer or counterparty fails to meet its contractual obligations. The Company manages this risk by performing credit evaluations of its customers and maintaining an ongoing review of their financial condition. Based on its review, management believes that credit risk is minimal and collection of outstanding receivables is probable.
As of September 30, 2025, accounts receivable totaled, in thousands, $501.
| F-8 |
| 6. | INVENTORY |
Inventories, net consist of the following (in thousands):
| September 30, 2025 | December 31, 2024 | |||||||
| (in thousands) | ||||||||
| Raw materials and packaging | $ | 407 | $ | 369 | ||||
| Finished goods | 5 | 5 | ||||||
| Total inventory | $ | 412 | $ | 374 | ||||
| 7. | PROPERTY AND EQUIPMENT |
Property and equipment are comprised of the following (in thousands):
| September 30, 2025 | December 31, 2024 | |||||||
| (in thousands) | ||||||||
| Leasehold improvements | $ | 606 | $ | 399 | ||||
| Furniture and equipment | 2,472 | 2,368 | ||||||
| Vehicles | 52 | 52 | ||||||
| Total Cost | 3,130 | 2,819 | ||||||
| Accumulated depreciation and amortization | (2,068 | ) | (1,850 | ) | ||||
| Net book value | $ | 1,062 | $ | 969 | ||||
Depreciation expense for the nine months ended September 30, 2025, and 2024 was $218 and $209, respectively.
During the nine months ended September 30, 2025 and twelve months ended December 30, 2024, the Company did not dispose of any assets.
| 8. | LINE OF CREDIT |
On July 9, 2025 the Company renewed its line of credit with Zions Bancorporation, N.A. dba Amegy Bank (Amegy Bank) for a one-year period ending July 8, 2026.
As of September 30, 2025, there were no outstanding borrowings, and the full $3,000 remained available under the line of credit.
The facility is supported by personal guarantees from all three members of the Company’s Board of Directors. These guarantees were reaffirmed as part of the July 9, 2025 amendment. There were no capitalized transaction costs related to the amendment, as the amended facility had a remaining term of 12 months at the time of execution. Related fees were expensed as incurred.
| 9. | LEASES |
The Company determines whether a contract is, or contains, a lease at inception. Right-of-use assets represent the Company’s right to use an underlying asset during the lease term, and lease liabilities represent the Company’s obligation to make lease payments arising from the lease. Right-of-use assets and lease liabilities are recognized at lease commencement based upon the estimated present value of unpaid lease payments over the lease term. The Company leases its corporate office and warehouse facilities under a non-cancelable operating lease agreement. The lease commenced on February 7, 2020, for a facility located at Dallas, Texas, comprising approximately 21,476 square feet. Leases with an initial term of 12 months or less are not included on the balance sheets.
On February 2, 2025, the Company entered into a First Amendment to its existing lease agreement for its corporate headquarters and production plant located in Dallas, Texas. The amendment extends the lease term for an additional 60 months beginning August 1, 2025, and adds approximately 16,380 square feet of adjacent space, bringing the total leased premises to approximately 37,856 square feet. The amendment includes annual base rent increases ranging, in thousands, from $6 to $8 per month over the extended term and provides for two additional 60-month renewal options.
In accordance with ASC 842, the Company recognizes a right-of-use (ROU) asset and corresponding lease liability for its operating lease based on the present value of future lease payments over the lease term, discounted using the Company’s incremental borrowing rate. At lease commencement, the applicable discount rate was 7.60%. Lease expense is recognized on a straight-line basis over the lease term. The amended lease terminates in July 2030.
| September 30, 2025 | December 31, 2024 | |||||||
| Weighted-average remaining lease term | 58 months | 7 months | ||||||
| Weighted-average discount rate | 7.60 | % | 3.25 | % | ||||
As of September 30, 2025, and December 31, 2024 operating lease liabilities pertaining to its office and warehouse facility totaled $814 and $68, respectively.
As of September 30, 2025 and December 31, 2024, the Company recognized the following related to its operating lease:
| Description | September 30, 2025 | December 31, 2024 | ||||||
| (in thousands) | ||||||||
| Lease expense | $ | 149 | $ | 172 | ||||
| ROU asset – gross | 839 | 550 | ||||||
| Less: accumulated amortization | (28 | ) | (485 | ) | ||||
| ROU asset – net | $ | 811 | $ | 65 | ||||
| Lease liability - current | 131 | 68 | ||||||
| Lease liability – non-current | 683 | - | ||||||
| F-9 |
Amortization of right-of-use assets for the nine months ended September 30, 2025 and 2024 is $93 and $76, respectively.
Future minimum lease payments under the non-cancelable operating lease as of September 30, 2025 and December 31, 2024, are as follows, in thousands:
| Year | September 30, 2025 | December 31, 2024 | ||||||
| (in thousands) | ||||||||
| 2025 | $ | 47 | $ | 69 | ||||
| 2026 | 190 | - | ||||||
| 2027 | 197 | - | ||||||
| 2028 | 205 | - | ||||||
| 2029 | 214 | - | ||||||
| Afterwards | 128 | - | ||||||
| Total lease payments | 981 | 69 | ||||||
| Less: imputed interest | (167 | ) | (1 | ) | ||||
| Present value of lease liability | $ | 814 | $ | 68 | ||||
| 10. | INCOME TAX NOTE PASSTHROUGH |
The Company is a limited liability company (LLC) and is treated as a pass-through entity for U.S. federal and applicable state income tax purposes. Accordingly, the Company does not incur federal income taxes at the entity level. Instead, each member is individually responsible for reporting their share of the Company’s income, deductions, and credits on their personal tax returns. As such, no provision for federal income taxes has been included in the accompanying financial statements.
In certain jurisdictions, the Company may be subject to state and local income taxes, minimum fees, or gross receipts taxes. These amounts, if any, are included in general and administrative expenses on the accompanying statements of operations.
Uncertain Tax Positions
The Company evaluates its tax positions in accordance with ASC 740-10, Accounting for Uncertainty in Income Taxes. Management has concluded that there are no uncertain tax positions requiring recognition in the financial statements. The Company is subject to routine audits by taxing jurisdictions; however, there are currently no audits in progress.
11. RELATED PARTY TRANSACTIONS
The Company evaluated its transactions and relationships in accordance with ASC 850, Related Party Disclosures. For the nine months ended September 30, 2025 and September 30, 2024, there were no material related party transactions that require disclosure in the accompanying financial statements other than the credit facility which is supported by personal guarantees from all three members of the Company’s Board of Directors. (see Note 8).
| 12. | SUBSEQUENT EVENTS |
The Company evaluated subsequent events through November 21, 2025, the date the financial statements were available to be issued.
In October 2025, the Board approved the transfer of a portion of a shareholders’ interest to a new shareholder. This represented 1% of total shares and was unanimously approved by all shareholders.
Management will continue to evaluate the impact of this event on future financial reporting and disclosure obligations.
| F-10 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Members and Board of Directors of
Buda Juice LLC
Opinion on the Financial Statements
We have audited the accompanying balance sheets of Buda Juice LLC (collectively, the “Company”) as of December 31, 2024 and 2023, and the related statements of operations, changes in members’ equity and cash flows for each of the two years in the period ended December 31, 2024, and the related notes (collectively referred to as the financial statements). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2024 and 2023, and the results of its operations and its cash flows for each of the two years in the period ended December 31, 2024, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
| /s/ RBSM LLP | |
| We have served as the Company’s auditor since 2025. | |
| New York, NY | |
| August 8, 2025 |
| F-11 |
Balance Sheets
As of December 31, 2024 and December 31, 2023
(Amounts in Thousands)
As of | As
of | |||||||
| ASSETS | ||||||||
| Current assets | ||||||||
| Cash | $ | 1,887 | $ | 1,426 | ||||
| Accounts receivable | 395 | 367 | ||||||
| Inventory | 374 | 408 | ||||||
| Prepaid expenses and other current assets | 41 | 32 | ||||||
| Total current assets | 2,697 | 2,233 | ||||||
| Property and equipment, net of accumulated depreciation of $1,850 and $1,576, respectively | 969 | 559 | ||||||
| Operating lease right-of-use asset | 65 | 173 | ||||||
| Total assets | $ | 3,731 | $ | 2,965 | ||||
| LIABILITIES AND MEMBERS’ EQUITY | ||||||||
| Current liabilities: | ||||||||
| Accounts payable | $ | 449 | $ | 273 | ||||
| Other current liabilities | 58 | 100 | ||||||
| Operating lease liability, current portion | 68 | 113 | ||||||
| Line of credit payable | - | 2,010 | ||||||
| Total current liabilities | 575 | 2,496 | ||||||
| Operating lease liability, net of current portion | - | 68 | ||||||
| Total liabilities | 575 | 2,564 | ||||||
| Members’ equity | ||||||||
| Members’ equity | 5,505 | 6,324 | ||||||
| Accumulated deficit | (2,349 | ) | (5,923 | ) | ||||
| Total equity | 3,156 | 401 | ||||||
| Total liabilities and members’ equity | $ | 3,731 | $ | 2,965 | ||||
See accompanying note to the financial statements
| F-12 |
Statements of Operations
For the years Ended December 31, 2024 and 2023
(Amounts in Thousands)
| Years Ended December 31, | ||||||||
| 2024 | 2023 | |||||||
| Net sales | $ | 11,274 | $ | 9,380 | ||||
| Cost of goods sold | 6,065 | 5,289 | ||||||
| Gross profit | 5,209 | 4,091 | ||||||
| Operating expenses: | ||||||||
| Delivery and handling expense | 501 | 475 | ||||||
| Selling, general and administrative expense | 1,296 | 1,202 | ||||||
| Total operating expenses | 1,798 | 1,677 | ||||||
| Income from operations | 3,411 | 2,414 | ||||||
| Other income | 252 | 26 | ||||||
| Interest expense, net | (89 | ) | (178 | ) | ||||
| Net income | $ | 3,574 | $ | 2,262 | ||||
| Unaudited proforma earnings per common share [1] | ||||||||
| Basic | $ | 0.28 | $ | 0.18 | ||||
| Diluted | $ | 0.20 | $ | 0.13 | ||||
| Unaudited proforma weighted average shares outstanding | ||||||||
| Basic | 10,000 | 10,000 | ||||||
| Diluted | 14,000 | 14,000 | ||||||
[1] Adjusted for proforma effect of federal corporate tax rate of twenty-one percent to reflect conversion from LLC to Inc.
See accompanying note to the financial statements
| F-13 |
Statements of Changes in Members’ Equity
For the Years Ended December 31, 2024 and 2023
(Amounts in Thousands)
| Members’ Equity | Accumulated Deficit | Total Members’ Equity | ||||||||||
| BALANCE – January 1, 2023 | $ | 6,724 | $ | (8,185 | ) | $ | (1,461 | ) | ||||
| Net income | - | 2,262 | 2,262 | |||||||||
| Distributions | (400 | ) | - | (400 | ) | |||||||
| BALANCE – December 31, 2023 | 6,324 | (5,923 | ) | 401 | ||||||||
| Net income | - | 3,574 | 3,574 | |||||||||
| Distributions | (819 | ) | - | (819 | ) | |||||||
| BALANCE – December 31, 2024 | $ | 5,505 | $ | (2,349 | ) | $ | 3,156 | |||||
See accompanying note to the financial statements
| F-14 |
Statements of Cash Flows
For the Years Ended December 31, 2024 and 2023
(Amounts in Thousands)
| December 31, 2024 | December 31, 2023 | |||||||
| Cash flows from operating activities | ||||||||
| Net income | $ | 3,574 | $ | 2,262 | ||||
| Adjustments to reconcile net income to net cash provided in operating activities: | ||||||||
| Depreciation and amortization | 274 | 190 | ||||||
| Amortization of right to use asset | 108 | 105 | ||||||
| Changes in assets and liabilities: | ||||||||
| Accounts receivable | (28 | ) | (105 | ) | ||||
| Inventories | 34 | 23 | ||||||
| Prepaid expenses and other current assets | (46 | ) | 80 | |||||
| Accounts payable and other current liabilities | 171 | (220 | ) | |||||
| Payments on operating lease obligations | (113 | ) | (107 | ) | ||||
| Net cash provided by operating activities | 3,974 | 2,228 | ||||||
| Cash flows from investing activities | ||||||||
| Capital spending of property and equipment | (684 | ) | (256 | ) | ||||
| Proceeds from sale of fixed assets | - | 7 | ||||||
| Net cash used for investing activities | (684 | ) | (249 | ) | ||||
| Cash flows from financing activities | ||||||||
| Net payments of line of credit | (2,010 | ) | (983 | ) | ||||
| Net borrowings from owner | - | (10 | ) | |||||
| Cash distributed to owners | (819 | ) | (400 | ) | ||||
| Net cash used for financing activities | (2,829 | ) | (1,393 | ) | ||||
| Net increase in cash and cash equivalents | 461 | 586 | ||||||
| Cash and cash equivalents at beginning of year | 1,426 | 840 | ||||||
| Cash and cash equivalents at end of year | $ | 1,887 | $ | 1,426 | ||||
| Supplemental disclosures of cash flow information: | ||||||||
| Cash paid for interest | $ | 89 | $ | 178 | ||||
See accompanying note to the financial statements
| F-15 |
NOTES TO THE FINANCIAL STATEMENTS
AS OF AND FOR THE YEARS ENDED DECEMBER 31, 2024 AND 2023
| 1. | ORGANIZATION AND DESCRIPTION OF BUSINESS |
Buda Juice LLC (the Company) was founded in Dallas, Texas in October 2013. The Company operates in a highly competitive beverage industry, focused on fresh, cold-crafted juice production for business-to-business (B2B) distribution. The Company mostly utilizes third-party delivery systems and operates within the State of Texas serving primarily large, national chain grocery stores.
The Company is currently contemplating to convert Buda Juice LLC, a Texas limited liability company, into Buda Juice, Inc., a Delaware corporation, in connection with a potential Initial Public Offering (the “IPO”). As of the date the financial statements were available to be issued, the IPO had not yet been completed, and no offering had been filed with the U.S. Securities and Exchange Commission.
For additional information see Note 15 – Subsequent Events
| 2. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES |
Basis of Financial Statements Presentation
The accompanying financial statements have been prepared in accordance with generally accepted accounting principles in the US (GAAP).
Use of Estimates
The preparation of financial statements in accordance with GAAP requires management to make certain estimates and assumptions that may affect the reported amounts of assets, liabilities, revenues, and expenses, as well as related disclosures. However, for the periods presented, the financial statements do not include any estimates considered to be significant to the overall presentation, with exceptions including concentration of credit risk, useful life estimates for depreciation and inventory.
Cash and Cash Equivalents
Cash and cash equivalents include all short-term, highly liquid instruments with original maturities of three months or less at the time of purchase. Our cash accounts are maintained at various high-credit-quality financial institutions and may exceed federally insured limits. We have not experienced any losses in such accounts. As of December 31, 2024 and December 31, 2023, the Company did not hold any cash equivalents or investments classified as cash equivalents. Cash includes funds held in demand deposit accounts.
Concentration of Credit Risk
The Company maintains its cash balances with high-credit-quality financial institutions. As of December 31, 2024 and 2023, certain cash balances exceeded the Federal Deposit Insurance Corporation (FDIC) insured limits of $1,387 and $926, respectively. The Company has not experienced any losses in such accounts and believes it is not exposed to significant credit risk with respect to its cash balances.
Fair Value Measurements
We apply fair value accounting for all financial assets and liabilities and non-financial assets and liabilities that are recognized or disclosed at fair value in our financial statements. We categorize assets and liabilities, based on the priority of the inputs to the valuation technique, into a three-level fair value hierarchy as set forth below. The three levels of the hierarchy are defined as follows:
Level 1 – Unadjusted quoted prices in active markets for identical assets or liabilities.
Level 2 – Observable inputs other than quoted prices in active markets for identical assets or liabilities, quoted prices for identical assets or liabilities in inactive markets, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.
Level 3 – Inputs that are both unobservable and significant to the overall fair value measurements reflecting an entity’s estimates of assumptions that market participants would use in pricing the asset or liability.
Our balance sheets include cash and cash equivalents, accounts receivable, prepaid expenses and other current assets, accounts payable, accrued expenses and other current liabilities, for which the carrying amounts approximate fair value due to their short-term maturity. As of the reporting date, the Company did not have any financial instruments measured at fair value on a recurring basis or any variable-rate credit facilities.
Segment Information
The Company operates as a single reportable segment under ASC 280, Segment Reporting. The Company’s chief operating decision maker (CODM) is the Board of Directors (BOD), which includes the chief executive officer and executive chairman of the BOD. The CODM reviews financial information on a basis for purposes of allocating resources and evaluating financial performance.
| F-16 |
Description of Products and Services
The Company derives revenues primarily from its product line of cold-crafted citrus-based beverages, which are mostly sold directly to large grocery chains via third party delivery services.
Factors Used to Identify Reportable Segments
The Company has one reportable segment, as business activities are managed on a basis. Revenues are derived exclusively in the United States, specifically in Texas.
Measurement of Segment Profit or Loss
The accounting policies of the segment are consistent with those described in Note 2 (Summary of Significant Accounting Policies). The CODM assesses performance and allocates resources based on net income, which is the same as net income reported in the statements of income. The CODM uses net income to evaluate return on assets, decide on reinvestments or dividends, monitor budget versus actual results, and benchmark against competitors. This measure also informs management compensation decisions.
The Company does not have intra-entity sales or transfers.
Segment Financial Information
The following table presents information about reported segment revenue, significant segment expenses, and profit or loss for the years ended December 31, 2024 and 2023:
| December 31, 2024 | December 31, 2023 | |||||||
| (in thousands) | ||||||||
| Revenue | $ | 11,274 | $ | 9,380 | ||||
| Significant Expenses: | ||||||||
| Cost of goods sold | 6,065 | 5,289 | ||||||
| Delivery and handling | 501 | 475 | ||||||
| Salaries and employee benefits | 318 | 315 | ||||||
| Depreciation expense | 274 | 190 | ||||||
| Repair and maintenance | 106 | 61 | ||||||
| Lease expense | 172 | 173 | ||||||
| Rent and utilities | 135 | 176 | ||||||
| Professional fees | 95 | 72 | ||||||
| Marketing | 50 | 91 | ||||||
| Other expense / (income) | (16 | ) | 277 | |||||
| Net income (segment profit or loss) | $ | 3,574 | $ | 2,262 | ||||
The segment’s net income reconciles directly to the Company’s net income, with no adjustments required. Segment assets are measured as total assets, which were $3,731 as of December 31, 2024, and $2,965 as of December 31, 2023 (in thousands).
Entity-Wide Disclosures
Revenues by Product or Service
Although the Company operates in one segment, revenues from external customers are disaggregated by major product lines as follows:
| Revenue Source | December 31, 2024 | December 31, 2023 | ||||||
| (in thousands) | ||||||||
| Branded – Organic | $ | 1,854 | $ | 2,342 | ||||
| Branded – Non-Organic | 5,866 | 4,396 | ||||||
| Private Label/Other | 3,553 | 2,641 | ||||||
| Total Revenue | $ | 11,274 | $ | 9,380 | ||||
Geographic Information
Revenues are attributed to geographic areas based on customer location. Long-lived assets are attributed based on physical location. All revenues and assets as are derived in the United States, specifically Texas, and are presented as such in the statements of income and balance sheets.
| F-17 |
Major Customers
Revenues from one customer represented approximately $10,679 (95% of total revenues) in 2024 and $8,427 (90% of total revenues) in 2023 (in thousands). No other customer accounted for 10% or more of total revenues.
Accounts Receivable
Accounts receivable consists solely of outstanding balances from product sales. Management evaluates the collectability of receivables based on known collection risks and the financial condition of customers. As of December 31, 2024 and 2023, no allowance for credit losses was recorded, as all balances were considered fully collectible.
Inventory
Inventory consists of raw materials, packaging materials, and finished goods. Inventory is stated at the lower of cost or net realizable value, with cost determined using the first-in, first-out (FIFO) method. The Company does not maintain inventory allowances, as product returns are rare and immaterial. No reductions for excess or obsolete inventory were considered necessary as of December 31, 2024 and 2023.
Property and Equipment
Property and equipment, net are stated at historical cost less accumulated depreciation. Expenditures for maintenance, repairs, and routine replacements are charged to expense as incurred. Expenditures for major repairs and improvements that extend the useful lives of property and equipment are capitalized. When property or equipment is sold or otherwise disposed of, the asset and related accumulated depreciation are removed from the balance sheet and any gain or loss is included in income (loss) from operations in the accompanying statements of operations.
Depreciation is computed on a straight-line basis over the following useful lives:
| Property and Equipment Type | Years of Depreciation | |
| Furniture and equipment | 3 - 7 | |
| Leasehold improvements | 5 - 15 | |
| Vehicles | 3 - 7 |
Management assesses the carrying value of property and equipment whenever events or changes in circumstances indicate that the carrying value may not be recoverable. If there is an indication of impairment, management prepares an estimate of future cash flows expected to result from the use of the asset and its eventual disposition. If these cash flows are less than the carrying amount of the asset, an impairment loss is recognized to write down the asset to its estimated fair value. For the years ended December 31, 2024 and 2023, the Company determined there were no indicators of impairment of its property and equipment.
For the years ended December 31, 2024 and 2023, research and development costs were expensed as incurred and were immaterial to the financial statements.
| F-18 |
Accounts Payable
Accounts payable represent obligations to vendors for goods and services received prior to the end of the reporting period and are recorded at the invoiced amount. These liabilities are typically settled within the normal course of business and do not bear interest. The Company recognizes accounts payable when the related goods or services are received, regardless of whether the invoice has been received.
Line of Credit
The Company records borrowings under its line of credit as a liability when drawn upon. Interest is recognized as incurred based on the stated interest rate and terms of the agreement. Fees associated with establishing the line of credit are deferred and amortized over the term of the agreement as interest expense. Amounts available under the line of credit are based on the terms set forth in the agreement and may be subject to certain financial covenants and borrowing base limitations.
Leases
We lease our primary operations facility; includes production, distribution and administrative functions under non-cancelable lease agreements that expire on July 31, 2025. We recognize a right-of-use asset and lease liability for each lease with a contractual term of greater than 12 months at lease inception and have elected not to recognize leases with terms of 12 months or less.
On February 2, 2025, the Company entered into a First Amendment to its existing lease agreement for its corporate headquarters. As of December 31, 2024, the financial statements do not reflect the impact of this lease amendment. In accordance with ASC 842, the Company will remeasure the lease liability and right-of-use asset in the period the modification becomes effective.
We calculate right-of-use assets and lease liabilities based on the present value of the fixed minimum lease payments, including any estimated lease incentives, at lease commencement using an estimated incremental borrowing rate corresponding to the lease term and applied on a portfolio basis. We’ve elected not to separate lease and non-lease components on real estate leases.
Lease classification is determined as operating or finance at lease commencement, and expense recognition occurs over the lease term from the date we take possession of the property. For operating leases, expense is recognized on a straight-line basis. We record lease expense in our selling, general and administrative expenses. Variable lease costs are expensed as incurred and recognized in selling, general and administrative expenses.
For additional information, see Note 8 — Leases to the financial statements.
Impairment of Long-Lived Assets
Long-lived assets are reviewed for impairment at least annually or whenever events or changes in circumstances indicate that the carrying amount of an asset or asset group may not be recoverable. The assessment of recoverability of property and equipment and finite-lived intangible assets is performed at the component level, which is generally an individual shop, and requires judgment and an estimate of future undiscounted shop-generated cash flows. Estimates of fair values are based on the best information available and require the use of estimates, judgments, and projections. We test for recoverability by comparing the carrying value of the asset to the undiscounted cash flows. If the carrying value is not recoverable, we would recognize an impairment loss if the carrying value of the asset exceeds the fair value. We performed an annual assessment in the fourth quarter of 2024, which indicated no changes in circumstances or triggering events for impairment.
Revenue Recognition
The Company recognizes revenue in accordance with Accounting Standards Codification (ASC) 606, Revenue from Contracts with Customers (“ASC 606”). Revenue and costs of sales are recognized when control of the products transfers to our customer, which generally occurs upon delivery and customer acceptance. The Company’s performance obligations are satisfied at that time. The Company does not have any significant contracts with customers requiring performance beyond delivery, and contracts with customers contain no incentives or discounts that could cause revenue to be allocated or adjusted over time. Shipping and handling activities are performed before the customer obtains control of the goods and therefore represent a fulfilment activity rather than a promised service to the customer. All of the Company’s products are offered for sale as finished goods only, and there are no performance obligations required post-shipment for customers to derive the expected value from them.
| F-19 |
The Company does not allow for returns, with rare exception, and except for damaged products when the damage occurred pre-fulfilment. Damaged product returns have historically been insignificant. Because of this, the stand-alone nature of our products, and our assessment of performance obligations and transaction pricing for our sales contracts, we do not currently maintain a contract asset or liability balance for obligations. We assess our contracts and the reasonableness of our conclusions on a quarterly basis.
Because of the stand-alone nature of the Company’s products, the limited variability in consideration, and the consistent satisfaction of performance obligations at a single point in time, there are no contract asset or liability balances recorded as of December 31, 2024 or 2023. The Company evaluates its revenue recognition policies quarterly to ensure continued compliance with ASC 606.
Cost of Goods Sold
Cost of goods sold is comprised of the costs of raw materials and packaging utilized in the manufacture of products, co-packing fees, repacking fees, in-bound freight charges, as well as certain internal transfer costs. Additionally, cost of goods sold includes direct production costs in excess of charges allocated to finished goods in production. Charges for labor and overhead allocated to finished goods are determined on a market cost basis, which may be lower than the actual costs incurred. Plant costs in excess of production allocations are expensed in the period incurred rather than added to the cost of finished goods produced. Expenses not related to the production of our products are classified as operating expenses.
Delivery and Handling Expense
Shipping and handling costs are comprised of purchasing and receiving, inspection, warehousing, transfer freight, and other costs associated with product distribution after manufacture and are included as part of operating expenses.
Members’ Equity
As a limited liability company (LLC), the Company does not issue capital stock. Ownership interests are represented by membership interests as defined in the Company’s operating agreement. Profits and losses are allocated to members in accordance with the terms of the operating agreement. Distributions to members are made at the discretion of the Company and in accordance with the operating agreement.
Members’ equity is presented in the accompanying financial statements as a single equity section, and no distinction is made between capital contributions and accumulated earnings unless otherwise required by the operating agreement or applicable law.
Recent Accounting Pronouncements
In November 2023, the FASB issued ASU 2023-07, Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosure, which is intended to improve reportable segment disclosure requirements, primarily through enhanced disclosures about significant segment expense categories that are regularly provided to the chief operating decision maker and included in each reported measure of a segment’s profit or loss. The update also requires all annual disclosures about a reportable segment’s profit or loss and assets to be provided in interim periods and for entities with a single reportable segment to provide all the disclosures required by ASC 280, Segment Reporting, including the significant segment expense disclosures. This standard became effective for the Company on January 1, 2024. In accordance with the guidance, the Company has implemented disaggregated operating expense disclosures within the notes to the financial statements. The adoption of ASU 2023-07 did not have a material impact on the Company’s results of operations, financial position, or cash flows.
| F-20 |
In November 2024, FASB issued ASU 2024-03 Income Statement—Reporting Comprehensive Income—Expense Disaggregation Disclosures (Subtopic 220-40) Disaggregation of Income Statement Expenses. The guidance in ASU 2024-03 requires public business entities to disclose in the notes to the financial statements, among other things, specific information about certain costs and expenses including purchases of inventory; employee compensation; and depreciation and amortization expense for each caption on the income statement where such expenses are included. The update is effective for annual reporting periods beginning after December 15, 2026, and interim reporting periods beginning after December 15, 2027. Early adoption is permitted, and the amendments may be applied prospectively to reporting periods after the effective date or retrospectively to all periods presented in the financial statements. We are currently evaluating the provisions of this guidance and assessing the potential impact on our financial statement disclosures.
Other recent accounting pronouncements and guidance issued by the FASB, its Emerging Issues Task Force, the American Institute of Certified Public Accountants, and the Securities and Exchange Commission did not or are not believed by management to have a material impact on the Company’s present or future financial statements.
Accounting Pronouncements Not Yet Adopted
In November 2024, the FASB issued guidance to improve the disclosure of expenses in commonly presented expense captions. The new guidance requires a public entity to provide tabular disclosure, on an annual and interim basis, of amounts for the following expense categories: (1) purchases of inventory, (2) employee compensation, (3) depreciation and (4) intangible asset amortization, as included in each relevant expense caption. A relevant expense caption is an expense caption presented on the face of the income statement that contains any of the expense categories noted. Additionally, on an annual and interim basis, a qualitative description is required for amounts remaining in relevant expense captions that are not separately disaggregated quantitatively. The guidance also requires certain amounts that are currently required to be disclosed to be included in the same tabular disclosure as these disaggregation requirements. Furthermore, on an annual and interim basis, a public entity is required to separately disclose selling expenses and annually, disclose a description of the selling expenses. The guidance is effective for 2027 annual reporting, and in the first quarter of 2028 for interim reporting, with early adoption permitted, to be applied on a prospective basis, with retrospective application permitted. We will adopt the guidance when it becomes effective, in our 2027 annual reporting and each quarter thereafter, on a prospective basis.
In December 2023, the FASB issued guidance to enhance transparency of income tax disclosures. On an annual basis, the new guidance requires a public entity to disclose: (1) specific categories in the rate reconciliation, (2) additional information for reconciling items that are equal to or greater than 5% of the amount computed by multiplying income (or loss) from continuing operations before income tax expense (or benefit) by the applicable statutory income tax rate, (3) income taxes paid (net of refunds received) disaggregated by federal (national), state, and foreign taxes, with foreign taxes disaggregated by individual jurisdictions in which income taxes paid is equal to or greater than 5% of total income taxes paid, (4) income (or loss) from continuing operations before income tax expense (or benefit) disaggregated between domestic and foreign, and (5) income tax expense (or benefit) from continuing operations disaggregated between federal (national), state and foreign. The guidance is effective for fiscal year 2025 annual reporting, with early adoption permitted, to be applied on a prospective basis, with retrospective application permitted. We will adopt the guidance when it becomes effective, in our 2025 annual reporting, on a prospective basis.
| 3. | REVENUE RECOGNITION |
The Company recognizes revenue in accordance with ASC 606, Revenue from Contracts with Customers. Revenue is recognized when control of promised goods or services is transferred to customers in an amount that reflects the consideration the Company expects to be entitled to in exchange for those goods or services.
Revenue Streams: The Company generates revenue solely from product sales, including branded and private-label fresh juice products. Sales are made to wholesale distributors, retailers, and through select third-party agents.
Performance Obligations and Timing of Revenue Recognition: Revenue is recognized as follows: Revenue is recognized at a point in time when control of the product transfers to the customer, which typically occurs upon delivery and customer acceptance, in accordance with FOB Destination terms. The Company does not retain any material rights or obligations after delivery. There are no significant warranties or return provisions.
Sales transactions are generally governed by electronic purchase orders through an integrated EDI system, with performance obligations limited to product delivery. In certain customer arrangements the Company provides promotional allowances or cost-sharing for marketing activities. These are not considered separate performance obligations and are accounted for as reductions to revenue or recorded within marketing expense, as appropriate.
| F-21 |
Contract Balances: Accounts Receivable: Represents amounts billed and due from customers under customary payment terms. The Company currently offers payment terms of 10 days with a 2% early payment discount.
Deferred Revenue: The Company does not typically receive payment in advance of satisfying its performance obligations. There were no deferred revenue balances as of December 31, 2024 or December 31, 2023.
Significant Judgments: The Company’s contracts generally contain a single performance obligation, which is delivering the Company’s product to the customer. As such, no significant judgments were required in applying ASC 606 related to identifying performance obligations, determining transaction price, or allocating transaction price.
Revenue: The following table presents revenue by major source for the years ended December 31, 2024 and 2023:
| Revenue Source | December 31, 2024 | December 31, 2023 | ||||||
| (in thousands) | ||||||||
| Product sales | $ | 11,274 | $ | 9,380 | ||||
Note: Revenue is presented net of discounts.
| 4. | ACCOUNTS RECEIVABLE AND CREDIT RISK (ASC 326) |
Accounts receivables are recorded at the invoiced amount and do not bear interest. The Company evaluates the collectability of its accounts receivable on an ongoing basis. As of December 31, 2024 and 2023, management determined that all receivables were fully collectible; therefore, no allowance for doubtful accounts has been recorded.
For the years ended December 31, 2024 and 2023, the Company derived a significant portion of its revenue from a limited number of customers which is disclosed in Note 14 – Concentration of Risk. The Company does not require collateral and maintains credit policies intended to reduce overall credit risk.
Allowance for Credit Losses
Customer accounts receivable are stated at the amount management expects to collect on balances. The Company accounts for credit losses in accordance with ASC Topic 326, Financial Instruments – Credit Losses (“ASC Topic 326”). ASC 326 impacts the impairment model for certain financial assets measured at amortized cost by requiring a current expected credit loss (“CECL”) methodology to estimate expected credit losses over the entire life of the financial asset, recorded at inception or purchase. The Company has the ability to determine if there are no expected credit losses in certain circumstances. We evaluate the credit worthiness of our portfolio on an individual loan basis and on a portfolio basis. The allowance is subjective as it requires material estimates, including such factors as historical trends, known and inherent risks in the loan portfolio, adverse situations that may affect borrowers’ ability to repay and current economic conditions. Other qualitative factors considered may include items such as uncertainties in forecasting and modeling techniques, changes in portfolio composition, business conditions and emerging trends. Recovery of the carrying value of loans is dependent to a great extent on conditions that may be beyond our control. Any combination of the aforementioned factors may adversely affect our loan portfolio resulting in increased delinquencies and loan losses and could require additional provisions for loan losses, which could impact future periods.
Credit Risk
Credit risk is the risk of financial loss if a customer or counterparty fails to meet its contractual obligations. The Company manages this risk by performing credit evaluations of its customers and maintaining an ongoing review of their financial condition. Based on its review, management believes that credit risk is minimal and collection of outstanding receivables is probable.
As of December 31, 2024 and 2023, accounts receivable totaled, in thousands, $395 and $367, respectively.
| F-22 |
| 5. | INVENTORY |
Inventories, net consist of the following:
| December 31, 2024 | December 31, 2023 | |||||||
| (in thousands) | ||||||||
| Raw materials and packaging | $ | 369 | $ | 403 | ||||
| Finished goods | 5 | 5 | ||||||
| Total inventory | $ | 374 | $ | 408 | ||||
| 6. | PROPERTY AND EQUIPMENT |
Property and equipment are comprised of the following:
| December 31, 2024 | December 31, 2023 | |||||||
| (in thousands) | ||||||||
| Leasehold improvements | $ | 399 | $ | 222 | ||||
| Furniture and equipment | 2,368 | 1,861 | ||||||
| Vehicles | 52 | 52 | ||||||
| Total cost | 2,819 | 2,135 | ||||||
| Accumulated depreciation and amortization | (1,850 | ) | (1,576 | ) | ||||
| Net book value | $ | 969 | $ | 559 | ||||
Depreciation expense for the years ended December 21, 2024, and 2023 was $274 and $190, respectively.
During the year ended December 31, 2024, we did not dispose of any assets. During the year ended December 31, 2023, we disposed of fully depreciated assets of $13 and recorded a gain on sale of assets of $7.
| 7. | LINE OF CREDIT AGREEMENT |
The Company’s credit facility consisted of the following:
| December 31, 2024 | December 31, 2023 | |||||||
| (in thousands) | ||||||||
| Line of credit | $ | - | $ | 2,010 | ||||
| Less: Capitalized financing costs | - | - | ||||||
| Total | $ | - | $ | 2,010 | ||||
On July 8, 2016, the Company entered into a financing agreement with Zions Bancorporation, N.A., doing business as Amegy Bank (“Amegy”), for a revolving line of credit. The original facility provided up to $2,010 in borrowings and had an 8-year term, maturing on July 8, 2024.
On July 20, 2024, the agreement was amended to increase the borrowing capacity from $2,000 to $3,000 and extend the maturity to July 8, 2025. Interest on borrowings is variable, based on the Prime Rate as published in The Wall Street Journal, and was 8.5% per annum as of the amendment date.
The Company repaid the full outstanding balance of the facility on October 4, 2024. As of December 31, 2024, there were no outstanding borrowings, and the full $3,000,000 remains available under the line of credit.
The facility is supported by personal guarantees from Horatio Lonsdale-Hands, Bryan Herr, and Bernard Nussbaumer. These guarantees were reaffirmed as part of the July 20, 2024 amendment. There were no capitalized transaction costs related to the amendment, as the amended facility had a remaining term of 12 months at the time of execution. Related fees were expensed as incurred.
Interest expense related to amounts borrowed on the line of credit were $89 and $178 for year ended December 31, 2024 and December 31, 2023, respectively.
| F-23 |
| 8. | LEASES |
The Company determines whether a contract is, or contains, a lease at inception. Right-of-use assets represent the Company’s right to use an underlying asset during the lease term, and lease liabilities represent the Company’s obligation to make lease payments arising from the lease. Right-of-use assets and lease liabilities are recognized at lease commencement based upon the estimated present value of unpaid lease payments over the lease term. The Company leases its corporate office and warehouse facilities under a non-cancelable operating lease agreement. The lease commenced on February 7, 2020, for a facility located at Dallas, Texas, comprising approximately 21,476 square feet. Leases with an initial term of 12 months or less are not included on the balance sheets.
In accordance with ASC 842, the Company recognizes a right-of-use (ROU) asset and corresponding lease liability for its operating lease based on the present value of future lease payments over the lease term, discounted using the Company’s incremental borrowing rate. At lease commencement, the applicable discount rate was 3.25%. Lease expense is recognized on a straight-line basis over the lease term. The lease terminates in July 2025.
| December 31, 2024 | December 31, 2023 | |||||||
| Weighted-average remaining lease term | 7 months | 19 months | ||||||
| Weighted-average discount rate | 3.25 | % | 3.25 | % | ||||
As of December 31, 2024, and 2023 operating lease liabilities pertaining to its office and warehouse facility totaled $68 and $181, respectively.
As of December 31, 2024 and 2023, the Company recognized the following related to its operating lease:
| Description | December 31, 2024 | December 31, 2023 | ||||||
| (in thousands) | ||||||||
| Lease expense | $ | 172 | $ | 173 | ||||
| ROU asset – gross | 550 | 550 | ||||||
| Less: Accumulated amortization | (485 | ) | (377 | ) | ||||
| ROU asset – net | $ | 65 | $ | 173 | ||||
| Lease liability - current | 68 | 113 | ||||||
| Lease liability – non-current | - | 68 | ||||||
Amortization of right-of-use assets for the years ended December 31, 2024, and 2023 as $108 and $105, respectively.
Future minimum lease payments under the non-cancelable operating lease as of December 31, 2024 and 2023, are as follows:
| Year | December 31, 2024 | December 31, 2023 | ||||||
| (in thousands) | ||||||||
| 2025 | $ | (69 | ) | $ | (186 | ) | ||
| Total lease payments | (69 | ) | (117 | ) | ||||
| Less: imputed interest | 1 | 4 | ||||||
| Present value of lease liability | $ | (68 | ) | $ | (113 | ) | ||
On February 2, 2025, the Company entered into a First Amendment to its existing lease agreement for its corporate headquarters and production plant located in Dallas, Texas. The amendment extends the lease term for an additional 60 months beginning August 1, 2025 and adds approximately 16,380 square feet of adjacent space, bringing the total leased premises to approximately 37,856 square feet. The amendment includes annual base rent increases ranging, in thousands, from $16 to $18 per month over the extended term and provides for two additional 60-month renewal options.
As of December 31, 2024, the financial statements do not reflect the impact of this lease amendment. In accordance with ASC 842, the Company will remeasure the lease liability and right-of-use asset in the period the modification becomes effective.
| F-24 |
| 9. | LEGAL CONTINGENCIES |
The Company is not currently a party to any material legal proceedings. From time to time, the Company may be subject to various claims, lawsuits, and legal proceedings in the ordinary course of business. However, management does not believe that the outcome of any such matters, individually or in the aggregate, will have a material adverse effect on the Company’s financial condition, results of operations, or cash flows.
Employee Misappropriation and Insurance Recovery
On June 28, 2024, the Company identified a misappropriation of assets by a former employee involving unauthorized expenditures and the misuse of company funds. Upon discovery, the Company initiated an internal investigation and reported the matter to law enforcement and its insurance provider.
The total amount misappropriated was determined to be $103. The Company filed a claim under its commercial crime insurance policy, and the full amount was recovered through insurance proceeds and bank charge reversals. The recovery was received during the year ended December 31, 2024.
As of the date of these financial statements, no additional losses are expected, and the matter is considered resolved. The Company has evaluated its internal control environment and implemented enhanced procedures to mitigate future risk of similar incidents.
The insurance recovery is presented in the accompanying financial statements as other income.
| 10. | OPERATING EXPENSES |
Operating expenses include the costs incurred in the normal course of business operations, excluding cost of goods sold. These expenses primarily consist of delivery and handling and salaries and wages.
For the years ended, operating expenses were as follows:
| Operating Expenses | December 31, 2024 | December 31, 2023 | ||||||
| (in thousands) | ||||||||
| Delivery and handling | $ | 501 | $ | 475 | ||||
| Salaries and employee benefits | 318 | 315 | ||||||
| Depreciation expense | 274 | 190 | ||||||
| Repair and maintenance | 106 | 61 | ||||||
| Lease expense | 172 | 173 | ||||||
| Rent and utilities | 135 | 176 | ||||||
| Professional fees | 95 | 72 | ||||||
| Marketing | 50 | 91 | ||||||
| Other general and administrative | 146 | 124 | ||||||
| Total operating expenses | $ | 1,798 | $ | 1,677 | ||||
Operating expenses are recognized as incurred and reported within the statements of operations.
| F-25 |
| 11. | INCOME TAX NOTE PASSTHROUGH |
The Company is a limited liability company (LLC) and is treated as a pass-through entity for U.S. federal and applicable state income tax purposes. Accordingly, the Company does not incur federal income taxes at the entity level. Instead, each member is individually responsible for reporting their share of the Company’s income, deductions, and credits on their personal tax returns. As such, no provision for federal income taxes has been included in the accompanying financial statements.
In certain jurisdictions, the Company may be subject to state and local income taxes, minimum fees, or gross receipts taxes. These amounts, if any, are included in general and administrative expenses on the accompanying statements of operations.
For additional information see Note 15 – Subsequent Events
Uncertain Tax Positions
The Company evaluates its tax positions in accordance with ASC 740-10, Accounting for Uncertainty in Income Taxes. Management has concluded that there are no uncertain tax positions requiring recognition in the financial statements. The Company is subject to routine audits by taxing jurisdictions; however, there are currently no audits in progress.
| 12. | RELATED PARTY TRANSACTIONS |
The Company evaluated its transactions and relationships in accordance with ASC 850, Related Party Disclosures. For the years ended December 31, 2024 and December 31, 2023, there were no material related party transactions that require disclosure in the accompanying financial statements other than the credit facility is supported by personal guarantees from all three members of the Company’s Board of Directors which is disclosed in Note 7.
| 13. | EQUITY EQUIVALENT PARTICIPATION PLAN |
The Company has adopted an Equity Equivalent Participation Plan (the “Plan”) that provides for the grant of Equity Equivalent Units (“EEUs”) to eligible employees, managers, and consultants. EEUs represent a right to receive a cash payment in connection with a Change in Control Transaction, as defined in the Plan. The EEUs do not provide any voting rights, ownership interest, or participation in profits or losses of the Company.
Grants under the Plan are made at the sole discretion of the Managers and are subject to specific vesting conditions, typically requiring the occurrence of a Change in Control. Upon such event, the Company is obligated to pay to the Participant a Cash-Out Payment equal to the appreciation in value of the EEUs over the initial grant value, as defined in each award agreement.
As of December 31, 2024 and 2023, no EEUs were outstanding, and no compensation expense or related liability has been recognized in connection with the Plan.
| 14. | CONCENTRATION OF RISK |
The Company is subject to certain business risks and concentrations that may affect its operations and financial condition.
Customer Concentration
For the years ended December 31, 2024 and 2023, the Company derived a significant portion of its revenue from a limited number of customers. For the years ended December 31, 2024 and 2023, one customer represented 95% and 90%, respectively, of the Company’s total revenue for the periods.
For the years ended December 31, 2024 and 2023, one customer represented 83% and 94%, respectively, of the Company’s total accounts receivable.
| F-26 |
Management monitors customer creditworthiness and believes the concentration does not represent a significant credit risk due to the financial strength of these customers and their payment history.
Supplier Concentration
For the year ended December 31, 2024 and 2023, the Company had vendors that each accounted for more than 10% of total product purchases. The Company relies on these vendors for sourcing key inventory and materials.
| % of Purchases | ||||||||
| Supplier | 2024 | 2023 | ||||||
| Supplier A | 12% | 9% | ||||||
| Supplier B | 10% | 8% | ||||||
| Supplier C | 5% | 12% | ||||||
The loss of any major supplier, or a significant disruption in supply from such vendors, could have a material adverse effect on the Company’s operations and financial results. Management continually evaluates supplier relationships and is developing contingency plans to mitigate the risk of supplier disruption.
| 15. | SUBSEQUENT EVENTS |
The Company evaluated subsequent events through August 8, 2025, the date the financial statements were available to be issued.
On July 31, 2025, the Board of Directors (“the Board”) met and approved the following:
| ● | the Board has determined that it is for a proper purpose and in the best interest of the Company to file a registration statement on Form S-1 (the “Registration Statement”) with the Securities and Exchange Commission (the “SEC”) to register shares of Common Stock and to engage in an initial public offering of up to $20 million (excluding any over-allotments) in aggregate number of shares of Common Stock. This will include $15 million directly to the Company plus up to 15% for bankers’ allocation, plus $5 million to the CEO, Horatio Lonsdale-Hands. | |
| ● | Prior to the effectiveness of this Registration Statement, the Company intends to convert Buda Juice LLC, a Texas limited liability company, into Buda Juice, Inc., a Delaware corporation, in connection with this offering (the “Conversion”). Upon effectiveness of the Conversion and immediately prior to the closing of this offering, Buda Juice, LLC will become Buda Juice, Inc., a Delaware corporation, and will be taxed as a C corporation for U.S. federal income tax purposes. The effect of this change in tax status, including the recognition of deferred tax assets and liabilities under the applicable accounting standards, will be reflected in the Company’s financial statements for the period in which the Conversion becomes effective. At this time, the Company is unable to reasonably estimate the financial effect of this change in tax status. | |
| ● | the Board desires to appoint certain individuals to serve as members of the Board of Buda Juice, Inc. upon the Conversion. | |
| ● | the Board has determined it is in the best interest of the Company to adopt a new equity incentive plan (the “New Equity Incentive Plan”) that includes a 15% option pool of the Company’s fully diluted capitalization, designated specifically for employees and executives. | |
| ● | The Board has determined that it is in the best interest to list the Company’s common stock on Nasdaq or the NYSE |
In July 2025, the Company issued an additional 200,000 shares as it relates to the Equity Equivalent Participation Plan to a strategic consultant of the Company.
Management will continue to evaluate the impact of this event on future financial reporting and disclosure obligations.
On February 2, 2025, the Company entered into a First Amendment to its existing lease agreement for its corporate headquarters. As of December 31, 2024, the financial statements do not reflect the impact of this lease amendment. In accordance with ASC 842, the Company will remeasure the lease liability and right-of-use asset in the period the modification becomes effective.
For additional information, see Note 8 — Leases to the financial statements.
| F-27 |
Buda Juice, Inc.
2,666,667 Shares of Common Stock
PROSPECTUS
, 2025
No dealer, salesperson or other person is authorized to give information that is not contained in this prospectus. This prospectus is not an offer to sell nor is it seeking an offer to buy these securities in any jurisdiction where the offer or sale is not permitted. The information in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of these securities.
Through and including [*], 2025 (the 25th day after the date of this Offering), all dealers effecting transactions in these securities, whether or not participating in this Offering, may be required to deliver a prospectus. This is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table indicates the expenses to be incurred in connection with the Offering described in this registration statement, other than underwriting discounts and commissions, all of which will be paid by us. Certain amounts are not estimated including the SEC registration fee, the Financial Industry Regulatory Authority, Inc., or FINRA, filing fee and NYSE listing fee.
| Amount | ||||
| SEC registration fee | $ | 3,736.60 | ||
| FINRA filing fee | $ | 3,087.50 | ||
| NYSE Initial listing fee | $ | 5,000.00 | ||
| Accountants’ fees and expenses | 100,000.00 | |||
| Legal fees and expenses | $ | 250,000.00 | ||
| Transfer agent’s fees and expenses | 5,000.00 | |||
| Printing and Edgar expenses | 30,000.00 | |||
| Miscellaneous | 15,000.00 | |||
| Total expenses | $ | 516,823.00 |
Item 14. Indemnification of Directors and Officers.
We are currently a Texas limited liability company. Immediately before our registration statement for this offering is declared effective, we will convert into a Delaware corporation and change our name from Buda Juice, LLC to Buda Juice, Inc. Upon completion of this conversion, we will be subject to the DGCL.
Section 145 of the DGCL provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement in connection with specified actions, suits and proceedings whether civil, criminal, administrative, or investigative, other than a derivative action by or in the right of the corporation, if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification extends only to expenses, including attorneys’ fees, incurred in connection with the defense or settlement of such action and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s certificate of incorporation, bylaws, disinterested director vote, stockholder vote, and agreement or otherwise.
Our certificate of incorporation provides that our directors and officers will not be liable to the Company or its stockholders for monetary damages to the fullest extent permitted by the DGCL. Any amendment to, or repeal of, these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission or claim that occurred or arose prior to that amendment or repeal. In addition, if the DGCL is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director or officer of the Company, will be limited to the fullest extent permitted by the amended DGCL. Our Charter and Bylaws provide that the Company will indemnify, and advance expenses to, any officer or director to the fullest extent authorized by the DGCL.
We expect to obtain directors’ and officers’ insurance to cover our directors, officers and some of our employees for certain liabilities. In addition, we expect to enter into indemnification agreements with our current and future directors and officers containing provisions that are in some respects broader than the specific indemnification provisions contained in the DGCL. The indemnification agreements will require us, among other things, to their expenses incurred as a result of any proceeding against them as to which they could be indemnified.
| II-1 |
The Underwriting Agreement (Exhibit 1.1 hereto) provides for indemnification by the underwriter of the registrant and its executive officers and directors, and by the registrant of the underwriter, for certain liabilities, including liabilities arising under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 15. Recent Sales of Unregistered Securities.
None.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits.
*Filed herewith.
**Previously filed.
+ To be filed by amendment.
†Pursuant to Item 601(b)(10)(iv) of Regulation S-K promulgated by the SEC, certain portions of this exhibit have been redacted because they are both not material and is the type that the Registrant treats as private or confidential. The Registrant hereby agrees to furnish supplementally to the SEC, upon its request, an unredacted copy of this exhibit.
(b) Financial Statement Schedules. Schedules not listed above have been omitted because the information required to be set forth therein is not applicable or is shown in the financial statements or notes thereto.
| II-2 |
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”); | |
| (ii) | (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and | |
| (iii) | (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. |
| (2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
| (A) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and | |
| (B) | Each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
| (5) | That for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| II-3 |
| (I) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; | |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; | |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and | |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to any charter provision, bylaw or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
| (1) | For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. | |
| (2) | For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| II-4 |
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Dallas, State of Texas, on this 12th day of December, 2025.
| Buda Juice, LLC | ||
| By: | /s/ Horatio Lonsdale-Hands | |
| Horatio Lonsdale-Hands | ||
| Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities held on the dates indicated.
| Signature | Title | Date | ||
| /s/ Horatio Lonsdale-Hands | Chief Executive Officer and Director | December 12, 2025 | ||
| Horatio Lonsdale-Hands | (principal executive officer, principal financial and accounting officer) | |||
| /s/ Bryan Herr | Director | December 12, 2025 | ||
| Bryan Herr | ||||
| /s/ Bernard Lucien Nussbaumer | Director | December 12, 2025 | ||
| Bernard Lucien Nussbaumer |
| II-5 |
Exhibit 3.1
AMENDED AND RESTATED COMPANY AGREEMENT
OF
BUDA JUICE, LLC
A Texas Limited Liability Company
Dated as of September 18,2015
TABLE OF CONTENTS
| ARTICLE I | |||
| DEFINITIONS | 1 | ||
| 1.1 | Definitions | 1 | |
| 1.2 | Construction | 1 | |
| ARTICLE II | |||
| ORGANIZATION. | 2 | ||
| 2.1 | Formation | 2 | |
| 2.2 | Name | 2 | |
| 2.3 | Registered Office; Registered Agent; Principal Office in the United States; Other Offices | 2 | |
| 2.4 | Purposes | 2 | |
| 2.5 | Foreign Qualification | 2 | |
| 2.6 | Term | 2 | |
| 2.7 | Mergers and Exchanges | 3 | |
| 2.8 | No State-Law Partnership | 3 | |
| ARTICLE III | |||
| MEMBERSHIP; DISPOSITIONS OF INTERESTS | 3 | ||
| 3.1 | Members | 3 | |
| 3.2 | Representations and Warranties | 3 | |
| 3.3 | Admission of Additional Members; Incentive Units | 3 | |
| 3.4 | Restrictions on the Transfer of a Membership Interest | 4 | |
| 3.5 | Permitted Transfers | 4 | |
| 3.6 | Right of First Refusal | 5 | |
| 3.7 | Co-Sale Rights | 7 | |
| 3.8 | Drag-Along Rights | 7 | |
| 3.9 | Transfers Upon Death of Member | 8 | |
| 3.10 | Involuntary Transfers; Transfers Upon Divorce | 9 | |
| 3.11 | Terms of Sale | 10 | |
| 3.12 | Liability to Third Parties | 11 | |
| 3.13 | Withdrawal | 11 | |
| 3.14 | Lack of Authority | 11 | |
| 3.15 | Preemptive Rights | 11 | |
| ARTICLE IV | |||
| CAPITAL CONTRIBUTIONS | 12 | ||
| 4.1 | Initial Contributions | 12 | |
| 4.2 | Subsequent Contributions | 12 | |
| 4.3 | Return of Contributions | 12 | |
| 4.4 | Advances by Members | 12 | |
| 4.5 | Capital Accounts | 12 | |
| i |
| ARTICLE V | |||
| ALLOCATIONS AND DISTRIBUTIONS | 15 | ||
| 5.1 | Allocation of Profits and Losses | 15 | |
| 52 | Effect of Transfer of Unit | 15 | |
| 5.3 | Tax and Regulatory Allocations | 16 | |
| 5.4 | Distributions Generally | 18 | |
| 5.5 | Distributions in Kind | 18 | |
| 5.6 | Distributions; Order of Priority | 18 | |
| 5.7 | Restrictions on Distributions | 19 | |
| 5.8 | Overriding Distribution Rules | 19 | |
| 5.9 | Limitation on Allocations and Distributions to Incentive Members | 20 | |
| ARTICLE VI | |||
| MANAGERS | 20 | ||
| 6.1 | Management by Managers | 20 | |
| 6.2 | Actions by Managers; Committees; Delegation of Authority and Duties | 20 | |
| 6.3 | Number and Term of Office | 21 | |
| 6.4 | Vacancies; Removal; Resignation | 21 | |
| 6.5 | Meetings of Managers | 22 | |
| 6.6 | Approval or Ratification of Acts or Contracts by Members | 22 | |
| 6.7 | Action by Written Consent or Telephone Conference | 23 | |
| 6.8 | Officers | 23 | |
| 6.9 | Reimbursement | 23 | |
| 6.10 | Equity Equivalent Plans | 23 | |
| ARTICLE VII | |||
| MEETINGS OF MEMBERS | 24 | ||
| 7.1 | Meetings | 24 | |
| 72 | Voting List | 25 | |
| 7.3 | Proxies | 25 | |
| 7.4 | Conduct of Meetings | 25 | |
| 7.5 | Action by Written Consent or Telephone Conference | 25 | |
| ARTICLE VIII | |||
| INDEMNIFICATION | 26 | ||
| 8.1 | Right to Indemnification | 26 | |
| 8.2 | Insurance | 27 | |
| 8.3 | Savings Clause | 27 | |
| ARTICLE IX | |||
| TAXES | |||
| 9.1 | Tax Returns | 27 | |
| 9.2 | Tax Elections | 27 | |
| 9.3 | Tax Matters Partner | 28 | |
| ii |
| ARTICLE X | |||
| BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS | 28 | ||
| 10.1 | Maintenance of Books | 28 | |
| 10.2 | Reports | 28 | |
| 10.3 | Account | 28 | |
| ARTICLE XI | |||
| WINDING UP, LIQUIDATION, AND TERMINATION | 29 | ||
| 11.1 | Events Requiring Winding Up | 29 | |
| 11.2 | Winding Up and Termination | 29 | |
| 11.3 | Deficit Capital Account | 30 | |
| 11.4 | Certificate of Termination | 30 | |
| ARTICLE XII | |||
| GENERAL PROVISIONS | 30 | ||
| 12.1 | Offset | 30 | |
| 12.2 | Notices | 30 | |
| 12.3 | Entire Agreement | 31 | |
| 12.4 | Effect of Waiver or Consent | 31 | |
| 12.5 | Amendment or Modification | 31 | |
| 12.6 | Binding Effect | 31 | |
| 12.7 | Governing Law; Severability | 31 | |
| 12.8 | Further Assurances | 32 | |
| 12.9 | Waiver of Certain Rights | 32 | |
| 12.10 | Dispute Resolution | 32 | |
| 12.11 | Indemnification | 32 | |
| 12.12 | Notice to Members of Provisions of this Agreement | 32 | |
| 12.13 | Counterparts | 32 | |
| 12.14 | Creditors | 33 | |
| 12.15 | Spouses | 33 | |
| 12.16 | Representation | 33 | |
Exhibit A - Capitalization Table
Exhibit B - Consent and Certification
Schedule I - Definitions
| iii |
THE MEMBERSHIP INTERESTS REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES ACTS IN RELIANCE UPON EXEMPTIONS UNDER THOSE ACTS. THE SALE OR OTHER DISPOSITION OF THE MEMBERSHIP INTERESTS IS PROHIBITED UNLESS SUCH SALE OR DISPOSITION IS MADE IN COMPLIANCE WITH ALL SUCH APPLICABLE ACTS. ADDITIONAL RESTRICTIONS ON TRANSFER OF THE MEMBERSHIP INTERESTS ARE SET FORTH IN THIS AGREEMENT.
AMENDED AND RESTATED COMPANY AGREEMENT
OF
BUDA JUICE, LLC
A Texas Limited Liability Company
THIS AMENDED AND RESTATED COMPANY AGREEMENT OF BUDA JUICE, LLC (this “Agreement”), dated as of September 18, 2015 (the “Effective Date”), is executed and agreed to, for good and valuable consideration, by and among the Members (as hereinafter defined).
WHEREAS, the Company was formed as a limited liability company pursuant to and in accordance with the Business Code, by the filing of the Certificate with the Secretary of State of Texas;
WHEREAS, the Company adopted the Company Agreement, dated as of October 23, 2013 (the “Original Agreement”); and
WHEREAS, in order to reflect the admission of additional Members and certain other amendments and other provisions agreed to herein, the Members desire to amend and restate the Original Agreement in its entirety as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms contained herein shall have the meanings set forth in Schedule 1, which is incorporated by reference herein.
1.2 Construction. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
(a) The terms defined in Schedule 1 and elsewhere in this Agreement include the plural as well as the singular;
(b) Whenever the context requires, the gender of all words used in this Agreement includes the masculine,feminine, and neuter;
(c) The words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, or other subdivision;
(d) All accounting terms not otherwise defined in this Agreement have the meanings ascribed to them m accordance with GAAP;
| 1 |
(e) All dollar amounts are expressed in United States funds;
(f) The terms “include,” “includes,” and “including” are not limiting;
(g) The term “or” means “and/or”; and
(h) Unless the context clearly indicates otherwise, all references to an Article or a Section refer to articles and sections of this Agreement, and all references to Schedules or Exhibits are to Schedules or Exhibits attached hereto, each of which is made a part hereof for all purposes.
ARTICLE II
ORGANIZATION
2.1 Formation. The Company has been formed as a Texas limited liability company by the filing of a Certificate of Formation (as may be amended or restated from time to time, the “Certificate”) under and pursuant to the Business Code and the issuance of a certificate of filing for the Company by the Secretary of State of Texas.
2.2 Name. The name of the Company is “Buda Juice, LLC”; all Company business must be conducted in that name or such other names that comply with applicable law as the Managers may select from time to time.
2.3 Registered Office; Registered Agent; Principal Office in the United States; Other Offices. The registered office of the Company required by the Business Code to be maintained in the State of Texas shall be the office of the initial registered agent named in the Certificate or such other office as the Managers may designate from time to time in the manner provided by law. The registered agent of the Company in the State of Texas shall be the initial registered agent named in the Certificate or such other Person or Persons as the Managers may designate from time to time in the manner provided by law. The principal office of the Company in the United States shall be at such place as the Managers may designate from time to time, which need not be in the State of Texas, and the Company shall maintain records there as required by Section 101.501 of the Business Code and shall keep the street address of such principal office on file at the registered office of the Company in the State of Texas. The Company may have such other offices as the Managers may designate from time to time.
2.4 Purposes. The purpose of the Company is to transact any and all lawful business for which limited liability companies may be organized under the Business Code, and to do all things necessary or incidental thereto to the fullest extent permitted by law.
2.5 Foreign Qualification. Prior to the Company’s conducting business in any jurisdiction other than Texas, the Managers shall cause the Company to comply, to the extent procedures are available and those matters are reasonably within the control of the Managers, with all requirements necessary to qualify the Company as a foreign limited liability company in that jurisdiction. At the request of the Managers, each Member shall execute, acknowledge, swear to, and deliver all certificates and other instruments conforming with this Agreement that are necessary or appropriate to qualify, continue, and terminate the Company as a foreign limited liability company in all such jurisdictions in which the Company may conduct business.
2.6 Term. The Company shall continue in existence until after the business and affairs of the Company are wound up in accordance with the provisions of ARTICLE XI of this Agreement.
| 2 |
2.7 Mergers and Exchanges. The Company may be a party to a merger, consolidation, conversion, or other reorganization or fundamental business transaction of the types permitted by the Business Code.
2.8 No State-Law Partnership. The Members intend that the Company not be a partnership (including a limited partnership) or joint venture, and that no Member or Manager be a partner or joint venturer of any other Member or Manager, for any purposes other than federal and state tax purposes, and this Agreement may not be construed to suggest otherwise. This Section 2.8 shall not, however, prohibit the Company from becoming a partner or joint venturer of a partnership or joint venture with one or more other Persons.
ARTICLE III
MEMBERSHIP; DISPOSITIONS OF INTERESTS
3.1 Members. The Members of the Company, their number of Units owned, their respective Undistributed Capital Amounts (if any), their Capital Account Balance, and their Sharing Ratios are set forth on the Capitalization Table.
3.2 Representations and Warranties. Each Member hereby represents and warrants to the Company and each other Member that (a) if that Member is a corporation, it is duly organized, validly existing, and in good standing under the law of the state of its incorporation and is duly qualified and in good standing as a foreign corporation in the jurisdiction of its principal place of business (if not incorporated therein); (b) if that Member is a limited liability company, it is duly organized, validly existing, and (if applicable) in good standing under the law of the state of its organization and is duly qualified and (if applicable) in good standing as a foreign limited liability company in the jurisdiction of its principal place of business (if not organized therein); (c) if that Member is a partnership, trust, or other entity, it is duly formed, validly existing, and (if applicable) in good standing under the law of the state of its formation, and if required by law is duly qualified to do business and (if applicable) in good standing in the jurisdiction of its principal place of business (if not formed therein), and the representations and warranties in clause (a), (b), or (c), as applicable, are true and correct with respect to each partner (other than limited partners), trustee, or other member thereof; (d) that Member has full corporate, limited liability company, partnership, trust, or other applicable power and authority to execute and agree to this Agreement and to perform its obligations hereunder and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries, or other Persons necessary for the due authorization, execution, delivery, and performance of this Agreement by that Member have been duly taken; (e) that Member has duly executed and delivered this Agreement; and (f) that Member’s authorization, execution, delivery, and performance of this Agreement do not conflict with any other agreement or arrangement to which that Member is a party or by which it is bound.
3.3 Admission of Additional Members; Incentive Units. Subject to Section 3.3(a) and Section 3.15, additional Persons may be admitted to the Company as Members, and Units (or options or warrants exercisable for Units or other securities convertible into Units) may be issued to those Persons upon the approval of the Managers (such Units, “New Units”), on such terms and conditions as the Managers may determine at the time of admission. The terms of admission or issuance must specify the Sharing Ratio and the Capital Contribution applicable thereto. Any such admission shall be effective only after the new Member has executed and delivered to the Company a Consent and Certification. Upon admission of a new Member pursuant to this Section 3.3, the Sharing Ratio of each Member shall be adjusted in accordance with the Members’ previous Sharing Ratios, and the Company shall amend the Capitalization Table, and, if appropriate, any other provision of this Agreement, to reflect the addition of the new Member and to reflect the adjustment in the Sharing Ratios and the rights and preferences of the Members after such issuance and any other rights and preferences applicable to the New Units.
| 3 |
Notwithstanding the foregoing, the failure of the Company to amend the Capitalization Table shall not prevent the effectiveness of or otherwise affect the underlying adjustments that would be reflected in such an amendment to the Capitalization Table.
(a) Subject to the Compensatory Interest Cap, the Company is authorized to issue New Units to the Company’s officers, managers, advisors, employees, and consultants (“Incentive Units”) in such amounts and on such terms as the Managers determine to be appropriate. Any Incentive Units issued by the Company shall be (i) non-voting and shall not be considered to be outstanding for purposes of any matters with respect to which a vote of the Members is required pursuant to the Business Code or this Agreement, and (ii) subject to certain restrictions as are provided in the applicable Award Agreement. The issuance and ownership of any Incentive Units shall be governed by (i) this Agreement and (ii) any applicable Award Agreement. Except as otherwise provided in this Agreement or in any applicable Award Agreement, for purposes of this Agreement, Incentive Units shall be considered Units, and the holder of an Incentive Unit shall be considered a Member, with all rights and obligations associated therewith.
(b) To the extent any Incentive Units are issued by the Company on or after the Effective Date, it is intended that such Incentive Units constitute “profits interests” in the Company within the meaning of Rev. Proc. 93-27 and Rev. Proc. 2001-43 (or the corresponding requirements of any subsequent guidance promulgated by the IRS or other applicable law), for services rendered or to be rendered to the Company by the recipient. Accordingly, the Capital Account with respect to such Incentive Units attributed to the recipient at the time of issuance will be $0. The Company and the Members, including the holders of Incentive Units, shall file all federal income tax returns consistent with such characterization. All Members, whether parties to this Agreement as of the Effective Date or admitted after the Effective Date, consent that the Company may take all actions, including amending this Agreement, necessary or appropriate to cause the Incentive Units to be treated as profits interests for all United States federal income tax purposes, to be valued based on liquidation value or similar principles and to permit allocations of income to be made to such Members to be respected even if such interests are subject to risk of forfeiture, including any action required by the Company under Internal Revenue Service Revenue Procedure 2001-43, unless superseded.
(c) The Managers are hereby authorized to make any other adjustments to the Capital Accounts and distribution provisions of this Agreement as necessary to reflect the intent of the Members as described in this Section 3.3(a).
3.4 Restrictions on the Transfer of a Membership Interest. Except as specifically provided in this Agreement, a Transfer of Units may not be effected without the consent of the Managers. Any attempted Transfer by a Person of an interest or right, or any part thereof, in or in respect of the Company other than in accordance with this Agreement shall be, and is hereby declared, null and void ab initio; in enforcing this provision, the Company may hold and refuse to Transfer any Units in addition and without prejudice to any and all other rights or remedies which may be available to the Company.
3.5 Permitted Transfers.
(a) Subject to the provisions of Sections 35(b), (c), and (d) ,a Person to whom any Units are Transferred in accordance with this Agreement has the right to be admitted to the Company as a Member with the Sharing Ratio so Transferred to such Person, only if (i) the Transferor (or if the Transfer is on account of the liquidation, death, or disability of the Transferor, its representative) grants the transferee the right to be so admitted, and (ii) such Transfer is consented to in accordance with this Agreement. Notwithstanding the foregoing sentence, Transfers made pursuant to Sections 3.6, 3.7, 3.9, and 3.10 do not require the specific approval of the Transferor, the other Members, or the Managers.
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(b) The Company shall be entitled to not recognize any purported Transfer of Units unless and until the other applicable provisions of this Section 3.5 have been satisfied and the Managers have received, on behalf of the Company, a Consent and Certification executed by the Person to whom or which the Unit or part therof is Transferred and such Person’s spouse, if any, and a document (i) executed by both the Transferor (or if the Transfer is on account of the liquidation, death, or disability of the Transferor, its Personal Representative) and the Person to whom or which the Unit or part thereof is Transferred, (ii) including the notice address of any Person to be admitted to the Company as a Member, (iii) setting forth the Sharing Ratios after the Transfer of the Transferor and the Person to whom or which the Unit or part thereof is Transferred (which together must total the Sharing Ratio of the Transferor before such Transfer), and (iv) containing a representation and warranty that the Transfer was made in accordance with all applicable laws and regulations (including federal and state securities laws) and, if the Person to whom or which the Unit or part thereof is Transferred is to be admitted to the Company, such Person’s representation and warranty that the representations and warranties in Section 3.2 are true and correct with respect to such Person. Each Transfer and, if applicable, admission complying with the provisions of this Section 3.5(b) is effective as of the first day of the calendar month immediately succeeding the month in which the Managers receive the notification of Transfer and the other requirements of this Section 3.5 have been met.
(c) For the right of a Member to Transfer a Unit or any part thereof or of any Person to be admitted to the Company in connection therewith to exist or be exercised, (i) either (A) the Units or part thereof subject to the Transfer or admission must be registered under the Securities Act and any applicable state securities laws, or (B) the Company must receive a favorable opinion of legal counsel acceptable to the Managers to the effect that the Transfer or admission to the Company is exempt from registration under those Jaws, and (ii) the Company must receive a favorable opinion of legal counsel acceptable to the Managers to the effect that the Transfer or admission to the Company, when added to the total of all other Transfers within the preceding 12 months, would not result in the Company being considered to have terminated within the meaning of Section 708 of the Code. The Managers, however, may at their discretion waive the requirements of this Section 3.S(c).
(d) The Transferor and any Person admitted to the Company in connection with a Transfer shall pay, or reimburse the Company for, all costs incurred by the Company in connection with the Transfer or admission to the Company (including the legal fees incurred in connection with the legal opinions referred to in Section 3.5(c)) on or before the 10th day after the receipt by that Person of the Company’s invoice for the amount due. If payment is not made by the date due, the Person owing that amount shall pay interest on the unpaid amount from the date due until paid at a rate per annum equal to the Default Interest Rate.
3.6 Right of First Refusal.
(a) Option. Each time a Member proposes to make a Transfer of any of such Member’s Units pursuant to a bona fide offer from a Person other than a party to this Agreement, such Transferor shall so inform the Company by notice in writing (the “ROFR Sale Notice”) stating the number of Units that are the subject of such proposed Transfer (the “Offered Units”), the identity of the proposed transferee, and the other terms and conditions of such proposed Transfer, including any consideration proposed to be received for the Offered Units (and, if the proposed Transfer is to be wholly or partly for consideration other than money, the ROFR Sale Notice shall state the proposed price as being equal to the amount of the monetary consideration, if any, plus the fair market value of the other consideration, which valuation shall be subject to the Managers’ approval) (collectively,and on a per Unit basis, the “ROFR Purchase Price”). The Managers shall promptly deliver a copy of the ROFR Sale Notice to each Member other than the Transferor (the “Remaining Members”). By giving the ROFR Sale Notice, the Transferor shall be deemed to have granted to the Company and the Remaining Members an option to purchase the Offered Units for the price and upon the terms and conditions set forth in this Section 3.6 and Section 3.11. This Section 3.6 shall not apply to any Drag-Along Transaction as described in Section 3.8.
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(b) Election to Exercise by the Company. On or before the 30th day (the “ROFR Company Notice Deadline”) following the date the Company receives the ROFR Sale Notice, the Company shall notify all of the Remaining Members of the amount of the Offered Units that the Company elects to purchase.
(c) Election to Exercise by Members. If the Company notifies the Remaining Members that the Company will exercise the Company’s option to purchase none or less than all of the Offered Units, or if the Company fails to timely notify the Remaining Members of the Company’s exercise in accordance with Section 3.6(b), then each of the Remaining Members shall have until the 15th day following the ROFR Company Notice Deadline within which to notify the Company of such Remaining Member’s election to purchase such Remaining Member’s pro rata portion (determined by dividing (x) the Units held by such Remaining Member by (y) the total Units held by all Remaining Members), or a lesser amount, of the Offered Units that the Company does not timely elect to purchase. If any of the Remaining Members does not timely elect to purchase all of such Remaining Member’s pro rata portion of the Offered Units (all such Offered Units that the Remaining Members do not timely elect to purchase, the “Remaining Offered Units”), then the Company shall, within 20 days after the ROFR Company Notice Deadline, notify the Remaining Members of the availability of the Remaining Offered Units, and each Remaining Member that elected to purchase all of such Remaining Member’s pro rata portion of the Offered Units may elect, by notifying the Company in writing within 30 days after the ROFR Company Notice Deadline, to purchase such Remaining Member’s pro rata portion (determined by dividing (x) the Units held by such Remaining Member by (y) the total Units held by all Remaining Members electing to purchase their pro rata portions of the Remaining Offered Units) of the Remaining Offered Units.
(d) Manner of Exercise. Upon determination of the amount of the Offered Units to be purchased by the Company or the Remaining Members, the Company, on the Company’s behalf and on behalf of the Remaining Members who are purchasing the Offered Units, shall give notice of exercise to the Transferor within 40 days after the ROFR Company Notice Deadline. Subject to Section 3.11(e). the Closing of any purchases made by the Company or the Remaining Members pursuant to this Section 3.6 will take place on the later of (i) the closing date specified in the ROFR Sale Notice or (ii) 50 days after the ROFR Company Notice Deadline.
(e) Failure to Exercise. If the Company or the Remaining Members do not elect to purchase all of the Offered Units pursuant to this Section 3.6, the amount of Offered Units not purchased by the Company or the Remaining Members may be disposed of by the Transferor, subject to Section 3.7, to the prospective transferee named in the ROFR Sale Notice, for the price and on the terms and conditions set forth in the ROFR Sale Notice, at any time within 120 days after the ROFR Company Notice Deadline. provided that each transferee shall, prior to a Transfer to such transferee, agree to be bound by the terms and conditions of this Agreement by executing and delivering to the Company a Consent and Certification. Any portion of the Offered Units not so disposed of within such 120-day period shall remain subject to all of the provisions of this Agreement.
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3.7 Co-Sale Rights. If the Transferor proposes to Transfer any or all of its Units pursuant to a bona fide offer from a Person other than a party to this Agreement, and if the Company and the Remaining Members elect not to purchase or obtain all of the Offered Units pursuant to Section 3.6 (such proposed Transfer, a “Co-Sale Transaction”), the Remaining Members shall have the following rights:
(a) Each of the Remaining Members shall have the right to participate in the Co-Sale Transaction on the same terms and conditions, including price, subject to Section 3.7(e), as specified in the ROFR Sale Notice, which right shall be exercisable upon written notice (the “Co-Sale Election Notice”) to the Transferor (with a copy to the Company) within 10 days after the expiration of the 30-day period set forth in Section 3.6(c). The Co-Sale Election Notice shall indicate the maximum number of Units that such Remaining Member wishes to Transfer (up to the Maximum Co-Sale Units for such Remaining Member) and the number of Units such Remaining Member would Transfer if one or more of the other Remaining Members do not elect to participate in the Transfer on the terms and conditions stated in the ROFR Notice.
(b) To the extent that any prospective transferee refuses to purchase the Remaining Member’s Units as provided in Section 3.7(a), the Transferor shall not Transfer its Units to any such prospective transferee unless and until such transferee accepts the Transfer of the Units of the Remaining Members who deliver a Co-Sale Election Notice on the same terms and conditions as set forth in the ROFR Notice, subject to Section 3.7(e).
(c) The exercise or non-exercise of the rights of the Remaining Members pursuant to this Section 3.7 shall not adversely affect their rights to participate in subsequent Transfers by the Transferor. If none of the Remaining Members elect to participate in the Transfer of the Offered Units, the Transferor may, not later than 90 days after the expiration of the Remaining Members’ right to participate in the Transfer pursuant to this Section 3.7, effect the Transfer on terms and conditions not more favorable to the Transferor than those described in the ROFR Notice.
(d) Any proposed Transfer on terms and conditions more favorable to the Transferor than those described in the ROFR Sale Notice shall be subject to the rights of the Company and the Remaining Members and shall require compliance by the Seller with Section 3.6 and this Section 3.7.
(e) Notwithstanding the price set forth in the ROFR Notice for the Units proposed to be transferred by the Transferor, the price for each Unit proposed to be transferred by Remaining Members who exercise their rights pursuant to this Section 3.7 shall be subject to adjustment to take into account any differences between each such Remaining Members’ Undistributed Capital Amount and the Transferor’s Undistributed Capital Amount.
(f) Any Transfer by a Remaining Member of Units pursuant to this Section 3.7 shall not be subject to Section 3.6.
3.8 Drag-Along Rights.
(a) If (i) the Company or a Required Interest receive an offer to purchase all of the outstanding Units or all or substantially all of the Company’s assets (an“Acquisition Transaction”), and (ii) a Required Interest desires that such offer be accepted, then the Company shall send written notice to all of the Members not less than 20 days prior to the closing of the Acquisition Transaction.
(b) The notice delivered pursuant Section 3.8(a) shall state that a Required Interest proposes to effect the Acquisition Transaction and shall set forth the material terms and conditions of the Acquisition Transaction, including the name or names of the Persons offering to acquire all of the Units outstanding or all or substantially all of the operating assets of the Company (the “Offeror”) and the proposed purchase price or other consideration to be paid or delivered by the Offeror. Such notice shall be accompanied by copies of documents between the Company and the Offeror, or other material sufficient to establish the material terms and conditions of the Acquisition Transaction. If such notice is sent by the Company, the Members shall take all action (including voting their Units in favor of the Acquisition Transaction) requested by the Company to cause the consummation of the Acquisition Transaction, and if the Acquisition Transaction is consummated, each of the Members shall be (to the extent required by the Acquisition Transaction) obligated to transfer all of its Units, upon substantially the same terms and conditions, subject to Section 3.8(a) (including execution of documents required in connection with the Acquisition Transaction), as agreed to by the Required Interest, in accordance with the form of transaction described in the notice.
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(c) Upon any transfer of Units pursuant to this Section 3.8, the price payable to each Member in the Acquisition Transaction shall be determined by a hypothetical sale of assets of the Company followed by the liquidation and dissolution of the Company and a distribution of sale proceeds pursuant to Section ll .2(d).
3.9 Transfers Upon Death of Member.
(a) Option. With respect to Members that are natural persons, upon the death of a Member, the Member Representative for such Member shall promptly give notice of such death (the “Death Notice”) to the Company, and the Member Representative shall be deemed to have granted to the Company and the other Members (the “Surviving Members”) an option to purchase any and all of the Units owned or controlled by the Member Representative (the “Estate Units”) for the price and upon the terms and conditions set forth in Section 3.11 and this Section 3.9.
(b) Election to Exercise by the Company. On or before the 30th day (the “Death Company Notice Deadline”) following the date the Company receives the Death Notice, the Company shall notify all Surviving Members of the amount of the Estate Units that the Company elects to purchase.
(c) Election to Exercise by Members. lf the Company notifies the Surviving Members that the Company will exercise the Company’s option to purchase none or less than all of the Estate Units, or if the Company fails to timely notify the Surviving Members of the Company’s exercise in accordance with Section 3.9(b). then each Surviving Member shall have until the 15th day following the Death Company Notice Deadline to notify the Company of such Surviving Member’s election to purchase such Surviving Member’s pro rata portion (determined by dividing (x) the Units held by such Surviving Member by (y) the total Units held by all Surviving Members), or a lesser amount, of the Estate Units that the Company does not timely elect to purchase. If any Surviving Member does not timely elect to purchase all of such Member’s pro rata portion of the Estate Units (all such Estate Units that the Surviving Members do not timely elect to purchase, the “Remaining Estate Units”), then the Company shall, within 20 days after the Death Company Notice Deadline, notify the Surviving Members of the availability of the Remaining Estate Units, and each Surviving Member that elected to purchase all of such Surviving Member’s pro rata portion of the Estate Units may elect, by notifying the Company in writing within 30 days after the Death Company Notice Deadline, to purchase such Surviving Member’s pro rata portion (determined by dividing (x) the Units held by such Surviving Member by (y) the total Units held by all Surviving Members electing to purchase their pro rata portions of the Remaining Estate Units) of the Remaining Estate Units.
(d) Manner of Exercise. Upon determination of the amount of the Estate Units to be purchased by the Company or the Surviving Members, the Company, on the Company’s behalf and on behalf of the Surviving Members who are purchasing the Estate Units, shall give notice of exercise to the Seller within 40 days after the Death Company Notice Deadline.
(e) Failure to Exercise. If the Company or the Surviving Members do not elect to purchase all of the Estate Units within the period provided, then the Member Representative may Transfer (without further consent by the Managers) all remaining Estate Units to any spouse or lineal descendants of the deceased Member or to any trust for the benefit of such deceased Member’s spouse or lineal descendants.
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3.10 Involuntary Transfers; Transfers Upon Divorce.
(a) Option. If any Member (the “Bankrupt Member”) shall (i) be adjudicated as bankrupt or insolvent, (ii) file a petition in bankruptcy, reorganization, insolvency, readjustment of debt, or arrangement under any bankruptcy, insolvency, dissolution, or liquidation law, file an answer admitting the material allegations of a petition filed against him in any proceeding under such law, or take any action for the purpose of effecting any of the foregoing, (iii) become an involuntary debtor in a case under either Chapter 7 or 11 of the United States Bankruptcy Code and fails to achieve a dismissal of the case within 90 days, or, with respect to a Chapter 11 case in which an order for relief is entered prior to the expiration of 90 days, fails to achieve confirmation of a plan of reorganization within 180 days of the commencement of the involuntary case, or (iv) have issued or levied against any of such Member’s Units any writ or warrant of attachment or execution or similar process and the same shall not be released, vacated, or bonded within 60 days after issue or levy, such Bankrupt Member shall give notice of such event (the “Bankruptcy Notice”) to the Company. By the Bankrupt Member giving the Bankruptcy Notice, the Bankrupt Member shall be deemed to have granted to the Company and the other Members (the“Non-Bankrupt Members”) a right to purchase all or a portion of the Bankrupt Member’s Units (the “Bankruptcy Units”) for the price and upon the terms and conditions set forth in Section 3.11 and this Section 3.10.
(b) Exercise by Company. On or before the 30th day (the “Bankruptcy Company Notice Deadline”) following the date the Company receives the Bankruptcy Notice, the Company may exercise the right to purchase all or any portion of the Bankruptcy Units and shall notify the Members of such exercise (or refusal of the Company to exercise).
(c) Exercise by Non-Bankrupt Members. If the Company does not elect to purchase all of the Bankruptcy Units, then, within 15 days after the Bankruptcy Company Notice Deadline, each of the Non-Bankrupt Members may exercise the right to purchase all or any portion of the Bankruptcy Units not purchased by the Company and shall notify the Company of such Non-Bankrupt Member’s election to purchase such Non-Bankrupt Member’s pro rata portion (determined by dividing (x) the Units held by such Non-Bankrupt Member by (y) the total Units held by all Non-Bankrupt Members), or a lesser amount, of the Bankruptcy Units not purchased by the Company. If any of the Non-Bankrupt Members does not timely elect to purchase all of such Non-Bankrupt Member’s pro rata portion of the Bankruptcy Units (all such Bankruptcy Units that the Non-Bankrupt Members do not timely elect to purchase, the “Remaining Bankruptcy Units”), then the Company shall, within 20 days after the Bankruptcy Company Notice Deadline, notify the Non-Bankrupt Members of the availability of the Remaining Bankruptcy Units, and each Non-Bankrupt Member that elected to purchase all of such Non-Bankrupt Member’s pro rata portion of the Bankruptcy Units may elect, by notifying the Company in writing within 30 days after the Bankruptcy Company Notice Deadline, to purchase such Non-Bankrupt Member’s pro rata portion (determined by dividing (x) the Units held by such Non-Bankrupt Member by (y) the total Units held by all Non-Bankrupt Members electing to purchase their pro rata portions of the Remaining Bankruptcy Units) of the Remaining Bankruptcy Units.
(d) Manner of Exercise. Upon determination of the amount of the Bankruptcy Units to be purchased by the Company or the Non-Bankrupt Members, the Company, on the Company’s behalf and on behalf of the Non-Bankrupt Members, shall give notice of exercise to the Bankrupt Member within 40 days after the Bankruptcy Company Notice Deadline.
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(e) Involuntary Transfers Upon Divorce. If any Member or Principal shall get divorced (in either case, the“Divorced Member”), the following provisions shall apply:
(i) Whether or not the Divorced Member is required to relinquish all or any part of its Membership Interest pursuant to a decree of a court in the divorce proceedings, the Divorced Member’s spouse (the “Divorced Spouse”) shall be obligated to sell to the Divorced Member, and the Divorced Member shall have the option, but not the obligation, to purchase from the Divorced Spouse, all or any portion of the Membership Interest owned or to be owned by the Divorced Spouse (the“Divorced Spouse’s Interest”). If the Divorced Member fails to purchase all of the Divorced Spouse’s Interest within 30 days of the date the divorce decree is entered and becomes final, the Divorced Member shall deliver to the Company written notice (the “Divorce Notice”) of the entry of the divorce decree and a description of the Divorced Spouse’s Interest not purchased by the Divorced Member.
(ii) The Company shall have 60 days from the date it receives the Divorce Notice to elect by delivery of a written response to the Divorced Member and the Divorced Spouse to purchase all or any portion of the Divorced Spouse’s Interest not purchased by the Divorced Member.
3.11 Terms of Sale.
(a) Purchase Price.
(i) The purchase price for Units purchased under Section 3.6 shall be equal to the ROFR Purchase Price.
(ii) The purchase price for Units purchased under Sections 3.9 and 3.10 shall be equal to the Designated Fair Market Value of such Units.
(b) Method of Payment by the Company. If the Company purchases Units pursuant to any of Sections 3.6, 3.9, or 3.10, the Company shall have the sole discretion to pay the applicable purchase price in cash at Closing, pursuant to a promissory note, or pursuant to a combination of cash at Closing and a promissory note. If the Company elects, in its sole discretion, to issue a promissory note in connection with the purchase of Units pursuant to any of Sections 3.6, 3.9, or 3.10, then the following shall apply with respect to the payment of the purchase price for such Units (unless the Company and the selling Member, or the selling Member’s representative, otherwise agree):
(i) Any such promissory note (the “Note”) shall be an unsecured, nonnegotiable promissory note that shall provide for the payment of principal in three equal annual installments, the first of which shall be due on the first anniversary of the Closing. The Note shall bear interest, payable at the time each installment of principal is payable under the Note, at an annual rate equal to the lesser of (i) the prime rate of interest, as published in The Wall Street Journal on the date of the Closing or (ii) the maximum rate allowed by law, until all amounts under the Note have been paid. The Note shall provide full privilege of prepayment of all or any part of the principal and interest at any time without penalty or premium and shall provide for written notice and a 20-day cure period in the event of a failure to timely pay any installment.
(ii) Any such promissory note shall become immediately due and payable upon the contemporaneous sale (i.e.,a single transaction or a series of related transactions) of (A) all of the then-outstanding Units to a Person not affiliated with any of the Members or (B) all or substantially all of the Company’s then-current assets to a Person not affiliated with any of the Members.
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(c) Method of Payment by Members. Any Member purchasing any Units pursuant to any of Sections 3.6, 3.9,and 3.10 shall pay the applicable purchase price in cash at Closing.
(d) Consideration. The parties to this Agreement (i) acknowledge and agree that the purchase price payable pursuant to any of Sections 3.8, 3.9, and 3.10 is fair and reasonable (notwithstanding that the purchase price may be of nominal value) and (ii) will not challenge the enforceability or validity of such purchase price.
(e) Closing. Each Closing shall take place on (i) the day set forth elsewhere in this ARTICLE III or (ii) the 30th day following the final date on which the purchase is capable of being made or the option is capable of acceptance by any party (or if such date is not a Business Day, then the first Business Day thereafter) at 10:00 a.m., Dallas, Texas time, in the Company’s office, or at such other date and at such other time and place that may be agreed to by the parties who are purchasing and selling the Units; provided, however, that such Closing shall be (A) delayed as long as is reasonably necessary to allow for the determination of the Designated Fair Market Value of such Units and (B) delayed as long as is reasonably necessary to allow the representative, executor, or administrator of any Member whose Units are to be sold to properly qualify as such in order that such representative, executor, or administrator has all necessary authority to convey the Units. At the Closing, the parties to such transaction shall take all action necessary to convey the Units to be transferred in accordance with this Agreement, free of all liens and encumbrances.
3.12 Liability to Third Parties. No Member or Manager shall be liable for the debts, obligations, or liabilities of the Company, including under a judgment, decree,or order of a court.
3.13 Withdrawal. A Member does not have the right or power to withdraw from the Company as a Member except in connection with a Transfer of the entirety of such Member’s Membership Interest in accordance with Section 3.4.
3.14 Lack of Authority. No Member (other than a Manager or an officer acting in that capacity) has the authority or power to act for or on behalf of the Company, to do any act that would be binding on the Company, or to incur any expenditures on behalf of the Company.
3.15 Preemptive Rights.
(a) If the Company proposes to undertake an issuance or sale of New Units, it shall provide written notice (the “Preemptive Rights Notice”) to each Equity Member of such intention, describing the type of New Units, the price per New Unit and the general terms upon which the Company proposes to issue or sell the New Units. Each Equity Member shall have 15 days from the date the Preemptive Rights Notice is delivered to give the Company written notice of such Equity Member’s election to purchase all or any portion of its pro rata share (in accordance with such Member’s Sharing Ratio) of such New Units for the price and upon the general terms specified in the Preemptive Rights Notice. Such Equity Member’s notice shall state the quantity of New Units such Equity Member desires to purchase. Any Equity Member who does not provide such notice to the Company within such 15-day period shall be deemed to have waived such Equity Member’s preemptive rights with respect to such New Units, provided the Company consummates the issuance thereof within 90 days after it provides the Preemptive Rights Notice to the Equity Members at a price equal to or higher than the price specified in the Preemptive Rights Notice. Each Equity Member properly electing to purchase New Units pursuant to this Section 3.15(a) shall be entitled to purchase such Equity Member’s pro rata share (in accordance with such Member’s Sharing Ratio) of the number of New Units specified in the Preemptive Rights Notice. If any New Units remain after the application of the preceding sentence, the Company shall notify the fully electing Equity Members, and such Equity Members shall be entitled, for a period of ten days thereafter, to purchase any amount of such remaining New Units (with any over-subscription thereof decreased to be as near as possible to pro rata in accordance with their relative number of Units (excluding from the denominator any Units owned by any Equity Member other than the fully electing Equity Member)). Any New Units remaining thereafter may be issued by the Company within 90 days after it provides the Preemptive Rights Notice to the Equity Members on terms no less favorable to the Company than those contained in the Preemptive Rights Notice.
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(b) Notwithstanding Section 3.15(a). the rights of the Equity Members under this Section 3.15 shall not apply to or otherwise restrict the issuance of the following Units:
(i) Units, or any securities convertible into Units, issued as consideration to the sellers in connection with an acquisition, merger or similar transaction by the Company in a bona fide arm’s length transaction; or
(ii) Incentive Units, or any securities convertible into Incentive Units.
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.1 Initial Contributions. As of the Effective Date, the Members have made the Capital Contributions set forth on Exhibit A.
4.2 Subsequent Contributions. No Member shall at any time be required to make any further Capital Contributions in excess of its initial Capital Contribution, unless otherwise approved by a majority of the Managers and all of the Members.
4.3 Return of Contributions. A Member is not entitled to the return of any part of its Capital Contributions or to be paid interest in respect of either its Capital Account or its Capital Contributions. A Capital Contribution that has not been repaid is not a liability of the Company or of any Member. A Member is not required to contribute or to lend any cash or property to the Company to enable the Company to return any Member’s Capital Contributions.
4.4 Advances by Members. If the Company does not have sufficient cash to pay its obligations or if the Managers determine that additional capital is required, any Member(s) that agrees to do so, with the Managers’ consent, may advance all or part of the needed or desired funds to or on behalf of the Company. An advance described in this Section 4.4 shall constitute a loan from the Member to the Company, shall bear interest at the General Interest Rate from the date of the advance until the date of payment, and shall not be a Capital Contribution.
4.5 Capital Accounts.
(a) A Capital Account shall be established and maintained for each Member in accordance with the following provisions.
(i) Each Member’s Capital Account shall be increased by (A) the amount of money contributed by that Member to the Company, (B) the Gross Asset Value of property contributed by that Member to the Company (net of liabilities secured by the contributed property that the Company is considered to assume or take subject to under Section 752 of the Code), and (C) allocations to that Member of Profits (or items thereof), including income and gain exempt from tax and income and gain described in Section 1.704-1(b)(2)(iv)(g) of the Treasury Regulations, but excluding income and gain described in Section 1.704-1(b)(4)(i) of the Treasury Regulations.
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(ii) Each Member’s Capital Account shall be decreased by (A) the amount of money distributed to that Member by the Company, (B) the Gross Asset Value of property distributed to that Member by the Company (net of liabilities secured by the distributed property that the Member is considered to assume or take subject to under Section 752 of the Code), (C) allocations to that Member of expenditures of the Company described in Section 705(a)(2)(B) of the Code, and (D) allocations of Losses (or items thereof), including losses and deductions described in Section 1.704-1(b)(2)(iv)(g) of the Treasury Regulations, but excluding items described in clause (C) above and losses or deductions described in Sections l .704-1(b)(4)(i) or 1.704-1(b)(4)(iii)of the Treasury Regulations.
(iii) The Members’ Capital Accounts also shall be maintained and adjusted as permitted by the provisions of Section 1.704-1(b)(2)(iv)(f) of the Treasury Regulations and as required by the other provisions of Sections l .704-1(b)(2)(iv) and 1.704-1(b)(4) of the Treasury Regulations, including adjustments to reflect the allocations to the Members of depreciation, depletion, amortization, and gain or loss as computed for book purposes rather than the allocation of the corresponding items as computed for tax purposes, as required by Section 1.704-1(b)(2)(iv)(g) of the Treasury Regulations; provided, however, (A) immediately before the Members of Group 2 make the Capital Contribution set forth on Exhibit A, the Gross Asset Values of the Company’s assets as determined for book purposes will be adjusted to equal their respective Gross Asset Value as provided in Section 45(c)(iii). and the Capital Accounts of those Members of the Company existing immediately prior to the admission of the Group 2 Members shall be appropriately adjusted to equal the Capital Account balances set forth opposite the names of such holders on Exhibit A.
(iv) A Member that has more than one Unit shall have a single Capital Account that reflects all its Units, regardless of the class of Unit owned by that Member and regardless of the time or manner in which those Units were acquired. Upon the Transfer of all or part of a Unit, the Capital Account of the transferor Member that is attributable to the Transferred Unit or part thereof shall carry over to the transferee Member in accordance with the provisions of Section 1.704-1(b)(2)(iv)(l) of the Treasury Regulations.
(b) “Profits” and “Losses” mean, for each fiscal year or other period, an amount equal to the Company’s taxable income or loss for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Section 703(a)(l) of the Code shall be included in taxable income or loss), but with the following adjustments for such fiscal year or other period:
(i) Income of the Company that is exempt from federal income tax as described in Section 705(a)(l)(B) of the Code and not otherwise taken into account in computing Profits and Losses pursuant to this Section 4.5(b) shall be added to such taxable income or loss as if it were taxable income.
(ii) Any expenditures of the Company described in Section 705(a)(2)(8) of the Code, or treated as expenditures under Section 705(a)(2)(B) of the Code pursuant to Section 1.704-1(b)(2)(iv)(i) of the Treasury Regulations, and not otherwise taken into account in computing Profits and Losses, shall be subtracted from such taxable income or loss as if such expenditures were deductible items.
(iii) If the Gross Asset Value of any Company asset is adjusted pursuant to this Agreement, the amount of the adjustment shall be taken into account as gain or loss from the disposition of the asset for purposes of computing such taxable income or loss.
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(iv) Gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of the property differs from the Gross Asset Value of the property.
(v) In lieu of the deduction for depreciation, cost recovery, or amortization taken into account in computing such taxable income or loss, there shall be taken into account Book Depreciation for such fiscal year or other period.
(vi) Notwithstanding any other provision of this Agreement, any items that are specially allocated pursuant to Section 55 of this Agreement shall not be taken into account as taxable income or loss for purposes of computing Profits and Losses.
If the Company’s taxable income or taxable loss for the fiscal year or period, as adjusted pursuant to subparagraphs (i)-(vi) above, is a positive amount, that amount shall be the Company’s Profit for such fiscal year or other period; and if a negative amount, that amount shall be the Company’s Loss for such fiscal year or other period.
(c) “Gross Asset Value” means, for any asset, the asset’s adjusted basis for federal income tax purposes, except as set forth below:
(i) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of the asset on the date of determination, as determined by the contributing Member and the Company.
(ii) The Gross Asset Values of all assets shall be adjusted to equal their gross fair market values, as determined by the Managers, as of the following times: (A) the contribution of more than a de minimis amount of money or other property to the Company as a Capital Contribution by a new or existing Member, or the distribution by the Company to a retiring or continuing Member of more than a de minimis amount of property as consideration for an interest in the Company, if the Managers reasonably determine that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company; (B) the issuance by the Company of an interest in the Company as consideration for the provision of services to or for the benefit of the Company by an existing Member or a new Member, if the Managers reasonably determine that such adjustment is necessary or appropriate; or (C) the liquidation of the Company within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury Regulations; provided, however, (1) immediately before the admission of the Group 2 Members on the Effective Date, the Gross Asset Value of the Company’s assets will be adjusted to equal their respective aggregate Gross Asset Value of $4,969,600, plus the Company’s liabilities as of such date as determined by the Managers.
(iii) The Gross Asset Value of any Company asset distributed to any Member shall be the gross fair market value of such asset on the date of distribution.
(iv) The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustment to the adjusted basis of such assets pursuant to Section 734(b) of the Code or Section 743(b) of the Code, but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Section l.704-l(b)(2)(iv)(m) of the Treasury Regulations; provided, however, that Gross Asset Values shall not be adjusted pursuant to this Section 4.5(c)(iv) to the extent the Managers determine that an adjustment pursuant to Section 4.5(c)(ii) is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this Section 45(c)(iv).
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(v) If the Gross Asset Value of an asset has been determined or adjusted pursuant to Section 4.5(c)(i), (ii), or (iv), such Gross Asset Value shall thereafter be adjusted by the Book Depreciation taken into account with respect to such asset for purposes of computing Profits and Losses.
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.1 Allocation of Profits and Losses.
(a) For each taxable year or other applicable period, after adjusting each Member’s Capital Account for all Capital Contributions and distributions during such taxable year or other applicable period and all special allocations pursuant to Section 5.3(b) through Section 5.3(g) and Section 5.3(i) with respect to such taxable year or other applicable period, Profits, Losses and, to the extent necessary, individual items of income, gain, loss, deduction of the Company shall be allocated among the Members in a manner such that, after giving effect to the special allocations set forth in Section 5.3(b) through Section 5.3(g) and Section 5.3(i). the Capital Account of each Member, immediately after making such allocation, is, as nearly as possible, equal (proportionately) to (i) the distributions that would be made to such Member pursuant to Section 11.2(d) if the Company were dissolved, its affairs wound up and its assets sold for cash equal to their Gross Asset Value (assuming for this purpose only that the Gross Asset Value of an asset that secures a nonrecourse liability for purposes of Section 1.1001-2 of the Treasury Regulations is no less than the amount of such liability that is allocated to such asset in accordance with Section 1.704-2(d)(2) of the Treasury Regulations), all Company liabilities were satisfied (limited with respect to each nonrecourse liability to the Gross Asset Value of the assets securing such liability), and the net assets of the Company were distributed in accordance with Section 11.2(d) to the Members, minus (ii) such Member’s share of Company Minimum Gain and Member Minimum Gain, computed immediately prior to the hypothetical sale of assets.
(b) Notwithstanding anything to the contrary in Section 5.1(a), the amount of items of Company expense and loss allocated pursuant to Section 5.1(a) to any Member shall not exceed the maximum amount of such items that can be so allocated without causing such Member to have an Adjusted Capital Account Deficit at the end of any taxable year or other applicable period, unless each Member would have an Adjusted Capital Account Deficit. All such items in excess of the limitation set forth in this Section 5.1(b) shall be allocated first, to Members who would not have an Adjusted Capital Account Deficit, pro rata in proportion to their Capital Account balances, adjusted as provided in clauses (i) and (ii) of the definition of Adjusted Capital Account Deficit, until no Member would be entitled to any further allocation, and thereafter, to each Member pro rata in accordance with such Member’s Sharing Ratio.
(c) Whenever a proportionate part of the Profits and Losses is allocated to a Member, every item of income, gain, loss, deduction, or credit entering into the computation of such Profit or Loss or arising from the transactions with respect to which such Profit or Loss were realized shall be credited or charged, as the case may be, to such Member in the same proportion; provided, however, that recapture income, if any, shall be allocated to the Members in the same manner as were the corresponding depreciation deductions.
5.2 Effect of Transfer of Unit. If a Transfer occurs during any fiscal year, the amount of Profits and Losses for such fiscal year shall be allocated to the Transferor and the transferee Member in proportion to the number of days each of the Transferor and the transferee Member held such Unit (or part thereof) during such fiscal year; provided, that, at the Managers’ discretion, the Transferor and the transferee Member may elect to allocate Profits and Losses in accordance with an interim closing of the books as permitted under Section 706 of the Code if the Transferor and the transferee Member bear all costs of such allocation. As of the date of such Transfer, the transferee Member shall succeed to the Capital Account of the Transferor with respect to the transferred Unit (or part thereof).
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5.3 Tax and Regulatory Allocations.
(a) Except as otherwise provided herein or otherwise provided by law, all items of Company income, gain, deduction, and loss shall be allocated among the Members, for federal, state, and local income tax purposes, in the same proportion as they share in the Profits and Losses to which such items relate. Any credits against income tax shall be allocated in accordance with the Members’ Units.
(b) Notwithstanding any other provision of this Agreement, if during any fiscal year any Member (i) receives a distribution of any cash or property from the Company and such distributions exceed offsetting increases to such Member’s Capital Account that are reasonably expected to occur during such year, or (ii) receives any other adjustment, allocation or distribution described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5), or (6) and, as a result of such adjustment, allocation, or distribution, such Member has a Qualified Income Offset Amount, then items of income and gain (including gross income) for such fiscal year or other period (and, if necessary, any subsequent fiscal year shall (prior to any other allocation pursuant to this Section 5.3(b)) be allocated to such Member in an amount equal to his Qualified Income Offset Amount; provided, however, that any allocation of income or gain shall be required under this sentence only if and to the extent that such Member would have a Qualified Income Offset Amount after all other allocations provided for in this Agreement have been tentatively made as if this Section 5.3(b) were not contained herein. As used herein, the term “Qualified Income Offset Amount” for a Member means the excess, if any, of (x) the negative balance a Member has in its Capital Account following the adjustment, allocation, or distribution described in the preceding sentence, over (y) the maximum amount that it is obligated (or is deemed to be obligated) to restore in accordance with Treasury Regulations Sections 1.704-1(b)(2)(ii)(c), 1.704-2(g)(l), and 1.704-2(i)(5). This Section 5.3(b) is intended to satisfy the provisions of Treasury Regulations Section l .704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
(c) Not with standing any other provision of this Agreement, if there is a net decrease in Company Minimum Gain during any fiscal year, each Member shall be specially allocated items of income and gain for such fiscal year (and, if necessary, subsequent fiscal years) in an amount equal to the portion of such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Section 1.704-2(g) of the Treasury Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Section 1.704-2(f)(6) of the Treasury Regulations. This Section 5.3(c) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(f) of the Treasury Regulations and shall be interpreted consistently therewith.
(d) Not with standing any other provisions of this Agreement, if there is a net decrease in Member Minimum Gain attributable to a Member Nonrecourse Debt during any year, each Member who has a share of the Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(5) of the Treasury Regulations, shall be specially allocated items of income and gain for such fiscal year (and, if necessary, subsequent fiscal years) in an amount equal to such Member’s share of the net decrease in Member Minimum Gain, determined in accordance with Section l .704-2(i)(4) of the Treasury Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Section l .704-2(i)(4) of the Treasury Regulations. This Section 5.3(d) is intended to comply with the minimum gain chargeback requirement m Section l .704-2(i) of the Treasury Regulations and shall be interpreted consistently therewith.
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(e) Nonrecourse Deductions (within the meaning of Section 1.704-2(b)(l) of the Treasury Regulations) for any fiscal year shall be allocated to the Members in accordance with their Sharing Ratios.
(f) Any Member Nonrecourse Deductions for any fiscal year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Section 1.704-2(i)(l) of the Treasury Regulations.
(g) To the extent that any adjustment to the adjusted tax basis of any Company asset pursuant to Section 734(b) of the Code or Section 743(b) of the Code is required, pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such gain or loss shall be specially allocated to the Members in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such section of the Treasury Regulations.
(h) If Company property is reflected in the Capital Accounts of the Members at a Gross Asset Value that differs from the adjusted tax basis of such property, allocations of depreciation, amortization, income, gain, or loss with respect to such property, as computed for income tax purposes only, shall be made among the Members in a manner that takes such difference into account in accordance with Treasury Regulations Section 1.704-3 for making allocations under Section 704(c) of the Code with respect to such property. Unless the Managers determine otherwise, the Company shall elect the “traditional method” described in Treasury Regulation Section l .704-3(b) where applicable. Such allocations shall not affect the Capital Accounts of the Members.
(i) The allocations set forth in Sections 5.3(b) through 5.3(g) (the “Regulatory Allocations”) shall be taken into account in allocating items of income, gain, loss, and deduction among the Members so that, to the extent possible, the net amount of such allocations of other items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each such Member if the Regulatory Allocations had not occurred.
(j) The Company shall adjust the Capital Accounts of the Members to reflect a revaluation of Company property in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(f) at the following times: (i) immediately prior to the contribution of more than a de minimis amount of money or other property to the Company by a new or existing Member as consideration for an interest in the Company; (ii) the distribution by the Company to a Member of more than a de minimis amount of property as consideration for a Unit; (iii) the liquidation of the Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g); and (iv) immediately prior to the issuance of any Unit subsequent to the date of this Agreement in exchange for past or future services; provided, however, that adjustments pursuant to clauses (i),(ii), (iii), and (iv) above need not be made if the Managers reasonably determine that such adjustments are not necessary or appropriate to reflect the relative economic interests of the Members.
(k) The allocation method set forth in this ARTICLE V is intended to allocate Profits and Losses to the Members for federal income tax purposes in accordance with their economic interests in the Company while complying with the requirements of Section 704(b) of the Code and the Treasury Regulations promulgated thereunder. If in the opinion of the Managers, the allocations of Profits or Losses pursuant to the preceding provisions of this ARTICLE V shall not (i) satisfy the requirements of Section 704(b) of the Code or the Treasury Regulations thereunder, (ii) comply with any other provisions of the Code or Treasury Regulations, or (iii) properly take into account any expenditure made by the Company or transfer of an interest in the Company in accordance with clauses (i) and (ii), then notwithstanding anything to the contrary contained in the preceding provisions of this ARTICLE V, Profits and Losses shall be allocated in such a manner so as to reflect properly (i), (ii), or (iii) above, as the case may be.
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5.4 Distributions Generally.
(a) The Managers shall review the Company’s accounts to determine whether distributions are appropriate. To the extent sufficient cash is available (as determined by the Managers), the Managers shall cause the Company to distribute to the Members cash in the minimum amount necessary such that each such Member receives at least such Member’s Tax Amount with appropriate adjustments to take into account the alternative minimum tax. Amounts distributed to a Member pursuant to this Section 5.4(a) shall be treated as an advance distribution to such Member of distributions pursuant to Section 5.6 and shall offset future distributions that such Member would otherwise be entitled to receive.
(b) No distribution shall be made which would reduce any Member’s Capital Account balance below zero, or cause the Company to breach or otherwise violate the Company’s debt obligations. If a distribution cannot be made because it would cause a Member to have a deficit in its Capital Account, any such distribution (a “Suspended Distribution”) that would have otherwise been made shall be set aside by the Company. All or a portion of any Suspended Distribution shall be made to the Member to whom the Suspended Distribution would otherwise have been made at the earliest possible time that such distribution can be made without causing a deficit in such Member’s Capital Account and shall be treated as a distribution pursuant to Section 5.6.
5.5 Distributions in Kind. No Member shall have the right to require the Company to make a distribution in any form other than in cash.
5.6 Distributions; Order of Priority. Except as otherwise specifically provided in Sections 5.4 and 11.2(d). distributions of cash or other property shall be made to the Members in accordance with the following:
(a) Distribution of Net Cash Flow From Operations. All distributions of Net Cash Flow from Operations shall be made the Members pro rata in accordance with the Members’ respective sharing ratios.
(b) Distribution of Capital Proceeds. All distributions of Net Capital Proceeds shall be made in the following order and priority:
(i) First, to each Group 2 Member in the proportion to which its Undistributed Capital Amount, if any, bears to the Undistributed Capital Amounts, if any,of all Group 2 Members, until each Group 2 Member’s Undistributed Capital Amount has been reduced to zero;
(ii) Second, to each Group 1 Member in the proportion to which its Undistributed Capital Amount, if any, bears to the Undistributed Capital Amounts, if any, of all Group I Members, until each Group 1 Member’s Undistributed Capital Amount has been reduced to zero;
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(iii) Third, to each Group 1 Member in the proportion to which its Undistributed Level 1 Appreciation Amount, if any, bears to the Undistributed Level 1 Appreciation Amount, if any, of all Group 1 Members, until each Group 1 Member’s Undistributed Level I Appreciation Amount has been reduced to zero; and
(iv) Thereafter, to the Members pro rata in accordance with the Members’ respective Sharing Ratios.
5.7 Restrictions on Distributions. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to any Member with respect to such Member’s Units if such distribution would violate Section 101.206 of the Business Code or other applicable law.
5.8 Overriding Distribution Rules.
(a) Withheld Amounts. Each Member hereby authorizes the Managers to withhold and to pay over, or otherwise pay, to any federal, state,local, or foreign government any amounts required to be withheld pursuant to the Code or any provisions of any other federal, state, local, or foreign law as a result of the Member’s participation in the Company; if and to the extent that the Managers shall withhold any such amounts on account of a Member, such Member shall be deemed for all purposes of this Agreement to have received a payment from the Company as of the time such amount is withheld, which payment shall be deemed to be a distribution with respect to such Member to the extent that the Member (or any successor to such Member’s Units) is then entitled to receive a distribution. To the extent that the aggregate amount of such withheld amounts with respect to a Member for any period exceeds the distributions to which such Member is entitled for such period, the amount of such excess shall be considered a loan from the Company to such Member. Such loan shall bear interest (which interest shall be treated as an item of income to the Company) at the lesser of the maximum rate permitted by law or the Default Interest Rate until discharged by such Member by repayment, which may be made in the sole discretion of the Managers out of distributions to which such Member would otherwise be subsequently entitled. Any withholdings or payments authorized by Section 5.2 shall be made in an amount determined by the Managers.
(b) Distributions in Liquidation of Member’s Units. For purposes of this Agreement, a liquidation of a Member’s Units means the termination of the Member’s entire Unit other than in connection with the dissolution, winding up, and termination of the Company. Where a Member’s Units are to be liquidated by a series of distributions, the Units shall not be considered as liquidated until the final distribution has been made. A distribution in liquidation of a Member’s Units shall be made by the end of the taxable year in which such liquidation occurs, or, if later, within 90 days after the Member’s Units are liquidated.
(c) Payments Not Deemed Distributions. Any amounts paid pursuant to Section 6.9 or ARTICLE VIII shall not be deemed to be distributions for purposes of this Agreement.
(d) Treatment of Merger Consideration. In the event of a merger between the Company and any other Person, the consideration payable to the Members pursuant to such transaction (whether in the form of cash, equity securities or otherwise) shall be paid to the Members as if such consideration was distributed to the Members pursuant to Section 5.6(b).
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5.9 Limitation on Allocations and Distributions to Incentive Members. Notwithstanding anything to the contrary in this Agreement, it is the intention of the Members that distributions and allocations to Incentive Members be limited to the extent necessary so that each related Incentive Unit constitutes a profits interest for federal income tax purposes. In furtherance of the foregoing, the Managers shall, if necessary, limit distributions and allocations to each Incentive Member so that such distributions and allocations do not exceed the available profits in respect of Incentive Member’s related profits interest. In the event that an Incentive Member’s distributions and allocations are reduced pursuant to the preceding sentence, an amount equal to such excess distributions and allocations shall be treated as instead apportioned to the other Members, and the Managers shall make adjustments to future distributions and allocations to the Members as promptly as practicable so that the Members are distributed and allocated on a cumulative basis the amount of Profits to which they would have been entitled had this Section 5.9 not been in effect; provided, that any distributions and allocations pursuant to this sentence shall be further subject to the provisions of this Section 5.9.
ARTICLE VI
MANAGERS
6 .I Management by Managers.
(a) Except for situations in which the approval of the Members is required by the Certificate, this Agreement, or by nonwaivable provisions of applicable law, and subject to the provisions of Section 6.2 and Section 6.8, (i) the powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Managers; and (ii) the Managers may make all decisions and take all actions for the Company not otherwise provided for in this Agreement.
(b) Notwithstanding the provisions of Section 6.l(a). the Managers may not cause the Company to do any of the following without the consent of a Required Interest:
(i) Sell, lease, exchange, or otherwise dispose of (other than by way of a pledge, mortgage, deed of trust or trust indenture) all or substantially all the Company’s property and assets (with or without goodwill), outside the usual and regular course of the Company’s business;
(ii) Be a party to a merger or an exchange or acquisition of the type described in Chapter 10 of the Business Code;
(iii) Amend or restate the Certificate, except for the filing of Statements of Change of Registered Office/Agent with the Secretary of State of Texas; or
(iv) Increase or otherwise modify the Compensatory Interest Cap.
6.2 Actions by Managers; Committees; Delegation of Authority and Duties.
(a) In managing the business and affairs of the Company and exercising its powers, the Managers shall act (i) collectively through meetings and written consents pursuant to Sections 65 and 6.7,and (ii) through committees pursuant to Section 62(c). A Manager or a committee member may vote in person or by a proxy executed in writing by the Manager or committee member, as appropriate.
(b) All decisions of the Managers, unless specifically provided otherwise in this Agreement, shall require the approval of only a majority of the Managers; whenever this Agreement references the approval of, or an act of, “the Managers,” such act or approval shall only require a majority of the Managers.
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(c) The Managers may, from time to time, designate one or more committees, each of which shall be comprised of one or more Managers and may include non-Managers. Any such committee, to the extent provided in such resolution or in the Certificate or this Agreement, shall have and may exercise all of the authority of the Managers, subject to the limitations set forth in the Business Code and this Agreement. At every meeting of any such committee, the presence of a majority of all the members of the committee shall constitute a quorum. The affirmative vote of a majority of the members present shall be necessary for the adoption of any resolution. The Managers may dissolve any committee at any time, unless otherwise provided in the Certificate or this Agreement.
(d) Any Person dealing with the Company, other than a Member, may rely on the authority of any Manager or officer in taking any action in the name of the Company without inquiry into the provisions of this Agreement or compliance herewith, regardless of whether that action actually is taken in accordance with the provisions of this Agreement.
6.3 Number and Term of Office. The number of Managers of the Company shall be three unless changed by vote of a Required Interest; provided, however, that, notwithstanding the foregoing, at any time and from time to time, the number of Managers may, upon the approval of the then current Managers, be increased to a maximum of ten. The Managers need not be Members or residents of the State of Texas. The board of Managers shall be constituted as follows:
(a) For so long as Horatio Lonsdale-Hands owns any Units, Horatio Lonsdale-Hands shall be entitled to appoint one Manager (the “HLH Manager”). The initial HLH Manager shall be Horatio Lonsdale-Hands.
(b) For so long as AIS owns Units comprising greater than 33% of the Units held by all Members, AIS shall be entitled to appoint one Manager (the “AIS Manager”). The initial AIS Manager shall be Martyn Element.
(c) For so long as the Converted Members own any Units, the Converted Members shall be entitled to appoint one Manager (the “Converted Member Manager’). The initial Converted Member Manager shall be Bryan Herr.
6.4 Vacancies; Removal; Resignation.
(a) In the event that a vacancy is created on the board of Managers at any time due to the death, disability, retirement, resignation or removal of a Manager, then the Members that were initially entitled to designate such Manager pursuant to Section 6.3 shall have the right to designate an individual to fill such vacancy and the Company and each Member hereby agrees to take such actions as may be required to ensure the election or appointment of such designee to fill such vacancy. In the event that such designating Member shall fail to designate in writing a representative to fill the vacant Manager position, and such failure shall continue for more than 30 days after notice from the Company to the designating Member with respect to such failure, then the vacant position shall be filled by the remaining Managers; provided, however, that such individual shall be removed from such position if the designating Member so directs and simultaneously designates a new Manager in accordance with Section 6.3.
(b) A Manager may be removed or replaced at any time, with or without cause, upon, and only upon, the written request of the Member entitled to designate such Manager pursuant to Section 6.3; provided, however, that in the event that the designating Member ceases to have the right to appoint a Manager pursuant to Section 6.3, such Manager may be removed or replaced by a Required Interest. Any such removal shall be effective immediately upon Member action even if successors are not elected simultaneously.
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(c) Any Manager may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the remaining Managers. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.
6.5 Meetings of Managers.
(a) Unless otherwise agreed to by all of the Managers, the Managers shall hold at least one meeting each calendar year. Each Manager shall be entitled to all information supplied to, or otherwise obtained by, each other Manager in connection with all meetings of the Managers.
(b) Unless otherwise required by law or provided in the Certificate or this Agreement, a majority of the total number of Managers fixed by, or in the manner provided in, the Certificate or this Agreement shall constitute a quorum for the transaction of business of the Managers. A Manager who is present at a meeting of the Managers at which action on any Company matter is taken shall be presumed to have assented to the action unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the Person acting as secretary of the meeting before the adjournment thereof or shall deliver such dissent to the Company immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Manager who voted in favor of such action.
(c) Meetings of the Managers may be held at such place or places as shall be determined from time to time by resolution of the Managers. At all meetings of the Managers, business shall be transacted in such order as shall from time to time be determined by resolution of the Managers. Attendance of a Manager at a meeting shall constitute a waiver of notice of such meeting, except where a Manager attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
(d) In connection with any annual meeting of Members at which Managers were elected, the Managers may, if a quorum is present, hold their first meeting for the transaction of business immediately after and at the same place as such annual meeting of the Members. Notice of such meeting at such time and place shall not be required.
(e) Regular meetings of the Managers shall be held at such times and places as shall be designated from time to time by resolution of the Managers. Notice of such regular meetings shall not be required.
(f) Special meetings of the Managers may be called by any Manager on at least 24 hours notice to each other Manager. Such notice need not state the purpose or purposes of, nor the business to be transacted at, such meeting, except as may otherwise be required by law or provided for by the Certificate or this Agreement.
6.6 Approval or Ratification of Acts or Contracts by Members. The Managers in their discretion may submit any act or contract for approval or ratification at any annual meeting of the Members, or at any special meeting of the Members called for the purpose of considering any such act or contract, and any act or contract that shall be approved or be ratified by a Required Interest shall be as valid and as binding upon the Company and upon all the Members as if it shall have been approved or ratified by every Manager and Member of the Company, unless the unanimous consent of the Members is required for such act or consent, in which case such unanimous consent must still be obtained. Failure of the Managers for any reason (or for no reason) to submit any act or contract to the Members for approval or ratification shall not in any way act to, or be deemed to, make such act or contract void or voidable.
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6.7 Action by Written Consent or Telephone Conference. Any action permitted or required by the Business Code, the Certificate, or this Agreement to be taken at a meeting of the Managers or any committee designated by the Managers may be taken without a meeting if a consent in writing, setting forth the action to be taken, is signed by the number of Managers, or members of a committee designated by the Managers, as the case may be, having not less than the minimum number of votes required to take such action at a meeting at which all such Managers or members entitled to vote thereon were present and voted. Such consent shall have the same force and effect as a unanimous vote at a meeting and may be stated as such in any document or instrument filed with the Secretary of State of Texas, and the execution of such consent shall constitute attendance or presence in person at a meeting of the Managers or any such committee, as the case may be. Subject to the requirements of the Business Code, the Certificate, or this Agreement for notice of meetings, unless otherwise restricted by the Certificate, Managers, or members of any committee designated by the Managers, may participate in and hold a meeting of the Managers or any committee of Managers, as the case may be, by means of a conference telephone or similar communications equipment by means of which all Persons participating in the meeting can hear each other, and participation in such meeting shall constitute attendance and presence in person at such meeting, except where a Person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
6.8 Officers.
(a) Generally. The Managers may, from time to time, designate one or more Persons to be officers of the Company. No officer or agent need be a resident of the State of Texas or a Member. Any officer so designated shall have such authority and perform such duties as the Managers may, from time to time, delegate to that Person. The Managers may assign titles to particular officers of the Company. Unless the Managers decide otherwise, if the title is one commonly used for officers of a business corporation formed under the Business Code, the assignment of such title shall constitute the delegation to such officer of the authority and duties that are normally associated with that office, subject to (i) any specific delegation of authority and duties made to such officer by the Managers or (ii) any specific delegation of authority and duties made to the Managers or officers of the Company in this Agreement. Each officer of the Company shall hold office until his or her successor shall be duly designated and shall qualify, until his or her death, or until he or she shall resign or shall have been removed in the manner hereinafter provided. Any number of offices may be held by the same Person. The salaries or other compensation, if any,of the officers of the Company shall be fixed from time to time by the Managers.
(b) Resignation; Removal. Any officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Managers. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Any officer may be removed as such, either with or without cause, by the Managers whenever in their judgment the best interests of the Company will be served thereby; provided, however, that such removal shall be without prejudice to the contract rights, if any, of the Person so removed.
6.9 Reimbursement. The Managers and the officers of the Company shall be entitled to be reimbursed for reasonable out-of-pocket costs and expenses incurred in the course of their service hereunder.
6.10 Equity Equivalent Plans. The Managers are authorized to cause the Company to adopt a Phantom Equity Plan and, subject to the Compensatory Interest Cap, issue Phantom Units to the Company’s officers, managers, advisors, employees, and consultants in such amounts and on such terms and conditions as the Managers deem reasonable and in the best interests of the Company.
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ARTICLE VII
MEETINGS OF MEMBERS
7.1 Meetings.
(a) A quorum shall be present at a meeting of Members if the holders of a majority of the Sharing Rations are represented at the meeting in person or by proxy. With respect to any matter, other than a matter for which the affirmative vote of the holders of a specified portion of the Sharing Ratios of all Members entitled to vote is required by the Business Code or this Agreement, the affirmative vote of a majority of the Sharing Ratios of all Members entitled to vote at a meeting of Members at which a quorum is present shall be the act of the Members. For purposes of this Section 7.l(a) and each other provision of this ARTICLE Vil, an Incentive Member shall not be treated as a Member and, accordingly, shall not be entitled to vote on any matter.
(b) All meetings of the Members shall be held at the principal place of business of the Company or at such other place within or without the State of Texas as shall be specified or fixed in the notices or waivers of notice thereof; provided that any or all Members may participate in any such meeting by means of conference telephone or similar communications equipment, or other suitable electronic communications systems, pursuant to Section 7.5.
(c) Notwithstanding any other provisions of the Certificate or this Agreement, the chairman of the meeting or the holders of a Required Interest shall have the power to adjourn such meeting from time to time, without any notice other than announcement at the meeting of the time and place of the holding of the adjourned meeting. If such meeting is adjourned by the Members, such time and place shall be determined by a vote of the holders of a Required Interest. Upon the resumption of such adjourned meeting, any business may be transacted that might have been transacted at the meeting as originally called.
(d) An annual meeting of the Members, for the election of the Managers and for the transaction of such other business as may properly come before the meeting, shall be held at such place, within or without the State of Texas, on such date,and at such time as the Managers shall fix and set forth in the notice of the meeting, which date shall be within 13 months subsequent to the date of organization of the Company or the last annual meeting of Members, whichever most recently occurred.
(e) Special meetings of the Members for any proper purpose or purposes may be called at any time by the Managers or the holders of at least 10% of the Sharing Ratios of all Members. If not otherwise stated in or fixed in accordance with the remaining provisions hereof, the record date for determining Members entitled to call a special meeting is the date any Member first signs the notice of that meeting. Only business within the purpose or purposes described in the notice (or waiver thereof) required by this Agreement may be conducted at a special meeting of the Members.
(f) Written or printed notice stating the place, day, and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than IO nor more than 60 days before the date of the meeting, either personally or by mail, by or at the direction of the Managers or Person calling the meeting, to each Member entitled to vote at such meeting. If mailed, any such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the Member at his address provided for in Section 12.2, with postage thereon prepaid.
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(g) The date on which notice of a meeting of Members is mailed or the date on which the resolution of the Managers declaring a distribution is adopted, as the case may be, shall be the record date for the determination of the Members entitled to notice of or to vote at such meeting, including any adjournment thereof, or the Members entitled to receive such distribution.
7.2 Voting List. The Managers shall make, at least 10 days before each meeting of Members, a complete list of the Members entitled to vote at such meeting or any adjournment thereof, arranged in alphabetical order, with the address of and the Sharing Ratios held by each, which list, for a period of 10 days prior to such meeting, shall be kept on file at the registered office or principal place of business of the Company and shall be subject to inspection by any Member at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any Member during the whole time of the meeting. The original membership records shall be prima-facie evidence as to who are the Members entitled to examine such list or transfer records or to vote at any meeting of Members. Failure to comply with the requirements of this Section shall not affect the validity of any action taken at the meeting.
7.3 Proxies. A Member may vote either in person or by proxy executed in writing by the Member. A telegram, telex, cablegram, or similar transmission by the Member, or a photographic, photostatic, facsimile, or similar reproduction of a writing executed by the Member shall be treated as an execution in writing for purposes of this Section. Proxies for use at any meeting of Members or in connection with the taking of any action by written consent shall be filed with the Managers, before or at the time of the meeting or execution of the written consent, as the case may be. All proxies shall be received and taken charge of and all ballots shall be received and canvassed by the Managers, who shall decide all questions touching upon the qualification of voters, the validity of the proxies, and the acceptance or rejection of votes, unless an inspector or inspectors shall have been appointed by the chairman of the meeting, in which event such inspector or inspectors shall decide all such questions. No proxy shall be valid after l l months from the date of its execution unless otherwise provided in the proxy. A proxy shall be revocable unless the proxy form conspicuously states that the proxy is irrevocable and the proxy is coupled with an interest. Should a proxy designate two or more Persons to act as proxies, unless that instrument shall provide to the contrary, a majority of such Persons present at any meeting at which their powers thereunder are to be exercised shall have and may exercise all the powers of voting or giving consents thereby conferred, or if only one be present, then such powers may be exercised by that one; or, if an even number attend and a majority do not agree on any particular issue, the Company shall not be required to recognize such proxy with respect to such issue if such proxy does not specify how the Sharing Ratios that are the subject of such proxy are to be voted with respect to such issue.
7.4 Conduct of Meetings. All meetings of the Members shall be presided over by the chairman of the meeting, who shall be a Manager approved by a majority of the Managers. The chairman of any meeting of Members shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seem to him in order.
7.5 Action by Written Consent or Telephone Conference.
(a) Any action required or permitted to be taken at any annual or special meeting of Members may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holder or holders of not less than the minimum Sharing Ratios that would be necessary to take such action at a meeting at which the holders of all Sharing Ratios entitled to vote on the action were present and voted. No written consent shall be effective to take the action that is the subject to the consent unless, within 60 days after the date of the earliest dated consent delivered to the Company in the manner required by this Section, a consent or consents signed by the holder or holders of not less than the minimum Sharing Ratios that would be necessary to take the action that is the subject of the consent are delivered to the Company by delivery to its registered office, its principal place of business, or the Managers. Delivery shall be by hand, certified or registered mail, return receipt requested, or by any other manner that the Managers (directly or indirectly) authorize. Delivery to the Company’s principal place of business shall be addressed to the Managers. A telegram, telex, cablegram, or similar transmission by a Member, or a photographic, photostatic, facsimile, or similar reproduction of a writing signed by a Member, shall be regarded as signed by the Member for purposes of this Section. Prompt notice of the taking of any action by Members without a meeting by less than unanimous written consent shall be given to those Members who did not consent in writing to the action.
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(b) The record date for determining Members entitled to consent to action in writing without a meeting shall be the last date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Company by delivery to its registered office, its principal place of business, or the Managers.
(c) If any action by Members is taken by written consent, any articles or documents filed with the Secretary of State of Texas as a result of the taking of the action shall state, in lieu of any statement required by the Business Code concerning any vote of Members, that written consent has been given in accordance with the provisions of the Business Code and that any written notice required by the Business Code has been given.
(d) Members may participate in and hold a meeting by means of conference telephone or similar communications equipment, or another suitable electronic communications system (including video conferencing or the Internet), or any combination, by means of which all Persons participating in the meeting can hear each other, and participation in such meeting shall constitute attendance and presence in person at such meeting, except where a Person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
ARTICLE VIII
INDEMNIFICATION
8.1 Right to Indemnification. The Company shall indemnify persons who are or were a Manager or officer of the Company both in their capacities as Managers and officers of the Company and, if serving at the request of the Company as a director, manager, officer, trustee, employee, agent, or similar functionary of another foreign or domestic limited liability company, corporation, trust, partnership, joint venture, sole proprietorship, employee benefit plan, or other enterprise, in each of those capacities, against any and all liability and reasonable expense that may be incurred by them in connection with or resulting from (a) any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative (collectively, a “Proceeding”), (b) an appeal in such a Proceeding, or (c) any inquiry or investigation that could lead to such a Proceeding, all to the fullest extent permitted by Chapter 8 of the Business Code. The Company shall pay or reimburse, in advance of the final disposition of the Proceeding, to all persons who are or were a Manager or officer of the Company all reasonable expenses incurred by such person who was, is, or is threatened to be made a named defendant or respondent in a Proceeding to the fullest extent permitted by Chapter 8 of the Business Code. The Company may indemnify persons who are or were an employee or agent (other than a Manager or officer) of the Company, or persons who are not or were not employees or agents of the Company but who are or were serving at the request of the Company as a director, manager, officer, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, trust, partnership, joint venture, sole proprietorship, employee benefit plan, or other enterprise (collectively, along with the current and former Managers, officers, employees, and agents of the Company, such persons are referred to herein as “Corporate Functionaries”) against any and all liability and reasonable expense that may be incurred by them in connection with or resulting from (x) any Proceeding, (y) an appeal in such a Proceeding, or (z) any inquiry or investigation that could lead to such a Proceeding, all to the fullest extent permitted by Chapter 8 of the Business Code. The rights of indemnification provided for in this ARTICLE VIII shall be in addition to all rights to which any Corporate Functionary may be entitled under any agreement or vote of Members or as a matter of law or otherwise.
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8.2 Insurance. The Company may purchase or maintain insurance on behalf of any Corporate Functionary against any liability asserted against him and incurred by him in such a capacity or arising out of his status as a Corporate Functionary, whether or not the Company would have the power to indemnify him against the liability under the Business Code or this Agreement: provided, however, that if the insurance or other arrangement is with a person or entity that is not regularly engaged in the business of providing insurance coverage, the insurance or arrangement may provide for payment of a liability with respect to which the Company would not have the power to indemnify the person only if including coverage for the additional liability has been approved by the Managers. Without limiting the power of the Company to procure or maintain any kind of insurance or arrangement, the Company may, for the benefit of persons indemnified by the Company, (a) create a trust fund, (b) establish any form of self-insurance, (c) secure its indemnification obligation by grant of any security interest or other lien on the assets of the Company, or (d) establish a letter of credit, guaranty, or surety arrangement. Any such insurance or other arrangement may be procured, maintained, or established within the Company or its Affiliates or with any insurer or other person deemed appropriate by the Managers regardless of whether all or part of the stock or other securities thereof are owned in whole or in part by the Company. In the absence of fraud, the judgment of the Managers as to the terms and conditions of such insurance or other arrangement and the identity of the insurer or other person participating in an arrangement shall be conclusive, and the insurance or arrangement shall not be voidable and shall not subject the Managers approving the insurance or arrangement to liability, on any ground, regardless of whether Managers participating in approving such insurance or other arrangement shall be beneficiaries thereof.
8.3 Savings Clause. If this ARTICLE VIII or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Manager, officer, or any other Person indemnified pursuant to this ARTICLE VIII as to costs,charges, and expenses (including attorneys’ fees),judgments,fines, and amounts paid in settlement with respect to any action, suit, or proceeding, whether civil, criminal, administrative,or investigative, to the fullest extent permitted by any applicable portion of this ARTICLE VIII that shall not have been invalidated and to the fullest extent permitted by applicable law.
ARTICLE IX
TAXES
9.1 Tax Returns. The Managers shall cause to be prepared and filed all necessary federal and state income tax returns for the Company, including making the elections described in Section 9.2. Each Member shall furnish to the Managers all pertinent information in its possession relating to Company operations that is necessary to enable the Company’s income tax returns to be prepared and filed.
9.2 Tax Elections. The Company shall make the following elections on the appropriate tax returns:
(a) To adopt the calendar year (or such other year as may be determined by the Managers from time to time) as the Company’s fiscal year;
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(b) If a distribution of Company property as described in Section 734 of the Code occurs or if a Transfer of a Membership Interest as described in Section 743 of the Code occurs, on written request of any Member but subject to the discretion of the Managers, to elect, pursuant to Section 754 of the Code, to adjust the basis of Company properties;
(c) To elect to currently deduct or to amortize the organizational expenses of the Company and the startup expenditures of the Company ratably as permitted under Section 195 and Section 709 of the Code; and
(d) Any other election including whether the Company shall adopt a cash or accrual method of accounting as the Managers may deem appropriate and in the best interests of the Members.
Neither the Company nor any Manager or Member may make an election for the Company to be excluded from the application of the provisions of subchapter K of chapter 1 of subtitle A of the Code or any similar provisions of applicable state law, and no provision of this Agreement (including Section 2.8) shall be construed to sanction or approve such an election.
9.3 Tax Matters Partner. The Managers shall designate one Manager that is a Member to be the “tax matters partner” of the Company pursuant to Section 623l(a)(7) of the Code (the “Tax Matters Partner”). The initial Tax Matters Partner shall be Horatio Lonsdale-Hands. The Tax Matters Partner shall take such action as may be necessary to cause each other Member to become a “notice partner” within the meaning of Section 6223 of the Code. The Tax Matters Partner shall inform each Member of all significant matters that may come to its attention in its capacity as Tax Matters Partner by giving notice thereof on or before the fifth Business Day after becoming aware thereof and, within that time, shall forward to each Member copies of all significant written communications it may receive in that capacity.
ARTICLE X
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
10.1 Maintenance of Books. The Company shall keep books and records of accounts and shall keep minutes of the proceedings of its Members, its Managers, and each committee of the Managers. The books of account for the Company shall be maintained on a cash or accrual basis (as determined by the Managers) in accordance with the terms of this Agreement, except that the Capital Accounts of the Members shall be maintained in accordance with Section 4.5. All books and records of the Company shall be open to inspection by the Members during normal business hours. The calendar year shall be the accounting year of the Company or such other year as may be determined by the Managers from time to time.
10.2 Reports. Within a reasonable period after the end of each fiscal year during the term of the Company, the Managers shall cause each Member to be furnished with a balance sheet, an income statement, and a statement of changes in Members’ capital of the Company for, or as of the end of, that fiscal year.
10.3 Account. The Managers shall establish and maintain one or more separate bank and investment accounts and arrangements for Company funds in the Company name and with financial institutions and firms that the Managers determine. The Managers may not commingle the Company’s funds with the funds of any Member; however, Company funds may be invested in a manner the same as or similar to the Managers’ investment of their own funds or investments by their Affiliates.
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ARTICLE XI
WINDING UP, LIQUIDATION, AND TERMINATION
11.1 Events Requiring Winding Up.
(a) The Company shall wind up its business and affairs upon the first to occur of the following:
(i) The vote or written consent of a Required Interest; or
(ii) Entry of a decree of winding up and termination of the Company under Section 11.314 of the Business Code.
(b) The event in subsection (a)(i) of this Section 11.1 shall cease to be an event requiring winding up if that decision is revoked in accordance with Section 11.4
11.2 Winding Up and Termination. If the business and affairs of the Company are to be wound up, the Managers shall act as liquidator or may appoint one or more Members as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Business Code. The costs of liquidation shall be borne as a Company expense. Until final distribution, the liquidator shall continue to operate the Company properties with all of the power and authority of the Managers. The steps to be accomplished by the liquidator are as follows:
(a) As promptly as possible after an event requiring winding up and again after final liquidation, the liquidator shall cause a proper accounting to be made of the Company’s assets, liabilities, and operations through the last day of the calendar month in which the event requiring winding up occurs or the final liquidation is completed, as applicable;
(b) The liquidator shall cause the notice described in Section 11.052 of the Business Code to be mailed to each known creditor of and claimant against the Company in the manner described in such Section 11.052;
(c) The liquidator shall pay, satisfy, or discharge from Company funds all of the debts, liabilities, and obligations of the Company (including all expenses incurred in liquidation and any advances described in Section 4.4) or otherwise make adequate provision for payment and discharge thereof (including the establishment of a cash escrow fund for contingent liabilities in such amount and for such term as the liquidator may reasonably determine); and
(d) All remaining assets of the Company shall be distributed to the Members as follows:
(i) The liquidator may sell any or all Company property, including to Members, and any resulting Profit or Loss from each sale shall be computed and allocated to the Capital Accounts of the Members;
(ii) With respect to all Company property that has not been sold, the fair market value of that property shall be determined and the Capital Accounts of the Members shall be adjusted to reflect the manner in which the unrealized Profit, Loss, income, gain, loss, and deduction inherent in property that has not previously been reflected in the Capital Accounts would be allocated among the Members if there were a taxable disposition of that property for the fair market value of that property on the date of distribution and any other adjustments to the Capital Account of the Members shall be made for the taxable year of the Company in which such liquidation occurs such that the Capital Account of each Member prior to the distributions contemplated in Section 1 l.2(d)(iii) equals (to the extent possible) the distribution to be received by such Member pursuant to Section 1l .2(d)(iii): and
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(iii) Company property shall be distributed among the Members in accordance with Section 5.6(b).and those distributions shall be made by the end of the taxable year of the Company during which the liquidation of the Company occurs (or, if later, 90 days after the date of the liquidation).
Notwithstanding the foregoing, the liquidator may place in escrow a reserve of cash or other assets of the Company for contingent liabilities in an amount determined by the liquidator to be appropriate for such purposes. All distributions in kind to the Members shall be made subject to the liability of each distributee for costs, expenses, and liabilities theretofore incurred or for which the Company has committed prior to the date of termination and those costs, expenses, and liabilities shall be allocated to the distributee pursuant to this Section 11.2. The distribution of cash or property to a Member in accordance with the provisions of this Section 11.2 constitutes a complete distribution to the Member with respect to its Membership Interest and the Member’s interest in the Company’s property, and constitutes a compromise to which all Members have consented within the meaning of Section 101.154 of the Business Code. To the extent that a Member returns funds to the Company, it has no claim against any other Member for those funds.
11.3 Deficit Capital Account. Notwithstanding anything to the contrary in this Agreement, and notwithstanding any custom or rule of law to the contrary, if any Member has a negative balance in its Capital Account on the date of the liquidation of such Member’s “interest in the partnership” (within the meaning of Section l.704-l(b)(2)(ii)(g) of the Treasury Regulations) after taking into account allocations of Profits, Losses, and other items of income, gain, loss, deduction, or credit, and distributions of cash or property (in each case as provided in ARTICLE V), that Member shall have no obligation to restore the negative balance or to make any Capital Contribution by reason thereof, and the negative balance shall not be considered an asset or a liability of the Company or of any Member.
11.4 Certificate of Termination. On completion of the winding up and distribution of Company assets as provided herein, the Company is terminated, and the Managers (or such other Person or Persons as the Business Code may require or permit) shall file a Certificate of Termination with the Secretary of State of Texas, cancel any other filings made pursuant to Section 2.5, and take such other actions as may be necessary to terminate the Company. To the extent permitted by the Business Code, after the termination of the Company, the Person or Persons who or which were at least a Required Interest immediately before the termination may agree or consent in writing to reinstate the Company in accordance with Subchapter E of Chapter 11 of the Business Code.
ARTICLE XII
GENERAL PROVISIONS
12.1 Offset. Whenever the Company is to pay any sum to any Member, any amounts that Member owes the Company may be deducted from that sum before payment is made to that Member.
12.2 Notices. Except as expressly set forth to the contrary in this Agreement, all notices, requests, or consents provided for or permitted to be given under this Agreement must be in writing and must be given either by depositing that writing in the United States mail, addressed to the recipient, postage paid, and registered or certified with return receipt requested, or by delivering that writing to the recipient in person, by national commercial courier service, by facsimile transmission, or by electronic mail. A notice, request, or consent given under this Agreement: (a) by mail is deemed effective three Business Days after it is deposited in the United States mail in the manner specified herein; (b) by national commercial courier service will be deemed to have been given the first Business Day after it is delivered to such service; and (c) by facsimile or electronic mail will be deemed to have been given when sent. All notices, requests, and consents to be sent to a Member must be sent to or made at the addresses given for that Member on Exhibit A or such other address as that Member may specify by notice to the other Members. Unless otherwise specified in this Agreement or otherwise permitted by the Managers, any notice, request, or consent to the Company or the Managers must be given to the Managers at the principal office of the Company. Whenever any notice is required to be given by law, the Certificate, or this Agreement, a written waiver thereof, signed by the Person entitled to notice, whether before or after the time stated therein,shall be deemed equivalent to the giving of such notice.
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12.3 Entire Agreement. This Agreement constitutes the entire agreement of the Members and their Affiliates relating to the Company and supersedes all prior contracts or agreements of the Members and their Affiliates with respect to the Company, whether oral or written. However, nothing herein shall preclude some or all of the Members from entering into one or more separate agreements concerning voting, ownership, and Transfer of Membership Interests or shall preclude the Company from becoming a party to any such agreement.
12.4 Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations under this Agreement or with respect to the Company is not a consent to or waiver of any other breach or default in the performance by that Person of the same or any other obligations of that Person under this Agreement or with respect to the Company. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to this Agreement or the Company, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable statute-of-limitations period has run.
12.5 Amendment or Modification. This Agreement may be amended or modified from time to time only by a written instrument executed and agreed to by the Managers and a Required Interest, except for any provision for which the approval of a greater specified portion of the Sharing Ratios of all Members entitled to vote is expressly required by this Agreement; provided, however, that (a) an amendment or modification decreasing a Member’s Membership Interest is effective only with that Member’s consent, except in connection with the admission of additional Members pursuant to Section 3.3, and (b) an amendment or modification reducing the required Membership Interest or other measure for any consent or vote in this Agreement is effective only with the consent or vote of Members having the Membership Interest or other measure theretofore required.
12.6 Binding Effect. Subject to the restrictions on Transfer set forth in this Agreement, this Agreement is binding on and inures to the benefit of the Members and their respective heirs, legal representatives,successors, and assigns.
12.7 Governing Law; Severability. THIS AGREEMENT IS GOVERNED BY AND SHALL BE ENFORCED UNDER AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. If any action is brought to enforce or interpret this Agreement, venue for such action shall be proper in Dallas County, Texas. The parties irrevocably (a) submit to the exclusive jurisdiction of the state courts of the State of Texas over any action or proceeding arising out of a breach of this Agreement, (b) agree that all claims in respect of such action or proceeding may be heard and determined in such courts, (c) waive, to the fullest extent they may effectively do so, the defense of an inconvenient or inappropriate forum to the maintenance of such action or proceeding, and (d) waive any defense based on lack of personal jurisdiction of any such purpose. In the event of a direct conflict between the provisions of this Agreement and (x) any provision of the Certificate, or (y) any mandatory provision of the Business Code, the applicable provision of the Certificate or the Business Code shall control. If any provision of this Agreement or the application thereof to any Person or circumstance is held invalid or unenforceable to any extent, the remainder of this Agreement and the application of that provision to other Persons or circumstances is not affected thereby and that provision shall be enforced to the greatest extent permitted by law.
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12.8 Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions.
12.9 Waiver of Certain Rights. Each Member irrevocably waives any right it may have to maintain any action for winding up the Company or for any partition of the property of the Company.
12.10 Dispute Resolution. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the validity, interpretation, enforceability, or breach thereof, which is not settled by agreement between the parties thereto, shall be settled by arbitration in Dallas, Texas, in accordance with the Commercial Arbitration Rules of the American Arbitration Association or any successor organization (the “Association”). The arbitration shall be conducted by one arbitrator, who shall be selected by obtaining a list of proposed arbitrators from the Association and allowing each party to the dispute to strike from such list the names of the persons such party believes should not serve as the arbitrator. The first person whose name appears on such list and is not stricken by a party to the dispute shall serve as the arbitrator. The arbitrator thus selected shall determine the controversy in accordance with the terms of this Agreement and the laws of the State of Texas as applied to the facts found by him. The parties to such dispute shall be entitled to conduct reasonable discovery, in accordance with the Texas Rules of Civil Procedure and applicable case law, prior to the arbitration hearing. The decision of the arbitrator shall be final and binding on the parties thereto. A judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of the award and an order of enforcement, as the case may be. The expenses of such arbitration, including the fee, if any, of the arbitrator, shall be divided between the parties to the dispute on an equal basis unless otherwise specified in the arbitrator’s award. Each party to the dispute shall pay the fees and expenses of its own witnesses and counsel, unless the arbitrator shall specify otherwise in the award.
12.11 Indemnification. To the fullest extent permitted by law, each Member shall indemnify the Company, each Manager, and each other Member and hold them harmless from and against all losses, costs, liabilities, damages, and expenses (including costs of suit and attorney’s fees) they may incur on account of any breach by that Member of this Agreement.
12.12 Notice to Members of Provisions of this Agreement. By executing this Agreement, each Member acknowledges that it has actual notice of (a) all of the provisions of this Agreement, including the restrictions on the Transfer of Membership Interests set forth in ARTICLE III,and (b) all of the provisions of the Certificate. Each Member hereby agrees that this Agreement constitutes adequate notice of all such provisions, including any notice requirement under Section 3.205 of the Business Code and Chapter 8 of the Texas Uniform Commercial Code,and each Member hereby waives any requirement that any further notice thereunder be given.
12.13 Counterparts. This Agreement may be executed in any number of counterparts (including by facsimile or portable document format (PDF)), each of which shall be deemed an original and all of which together shall constitute one and the same instrument. At the request of any party, the parties will confirm facsimile or PDF counterparts by signing a duplicate original document.
12.14 Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the Company.
12.15 Spouses. By executing this Agreement, each spouse of a Member agrees to be bound in all respects by the terms of this Agreement to the same extent as a Member. Each spouse further agrees that should such spouse predecease the Member to whom such spouse is married or should such spouse become divorced from such Member, the Units which such spouse may own or in which such spouse may have an interest shall remain subject to all of the restrictions and to all of the rights of the Members contained in this Agreement.
12.16 Representation. The Company and each of the Members acknowledge and understand that Gardere Wynne Sewell LLP has represented only the Company in connection with the preparation of this Agreement, and that Gardere Wynne Sewell LLP has not represented any of the Members regarding this Agreement or any of the transactions contemplated in connection herewith. Each of the Members acknowledges and affirms that such Member has had the opportunity to and has been advised to consult with legal counsel of its choosing regarding this Agreement and the transactions contemplated in connection herewith and that it has not relied upon Gardere Wynne Sewell LLP to provide it with any legal advice, nor has Gardere Wynne Sewell LLP provided any such advice.
[Remainder of page intentionally left blank; signature pages follow]
The Members have executed this Amended and Restated Company Agreement of Buda Juice, LLC as of the Effective Date.
| MEMBERS: | ||
| /s/ Horatio Lonsdale-Hands | ||
| Horatio Lonsdale-Hands, individually | ||
| /s/ Bernard L. Nussbaumer | ||
| Bernard L. Nussbaumer, individually | ||
| /s/ Bryan Herr | ||
| Bryan Herr, individually | ||
| /s/ Michael Newman | ||
| Michael Newman, individually | ||
| A.I.S. RESOURCES LIMITED, a Bahamian corporation | ||
| By: | ||
| Martyn Element, President & Chief Executive Officer | ||
| [Additional Members by Consent and Certification] | ||
[SIGNATURE PAGE TO AMENDED AND RESTATED COMPANY AGREEMENT OF BUDA JUICE, LLC]
SCHEDULE 1
Definitions
“Acquisition Transaction” has the meaning given that term in Section 3.8(a).
“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant fiscal year or other period, after giving effect to the following adjustments: (i) any amounts that such Member is, or is deemed to be, obligated to restore pursuant to Section l.704-l(b)(2)(ii)(c) of the Treasury Regulations, the penultimate sentence of Section l.704-2(g)(l) of the Treasury Regulations, or the penultimate sentence of Section l.704-2(i)(5) of the Treasury Regulations, shall be credited to such Capital Account; and (ii) the items described in Sections l.704-l(b)(2)(ii)(d)(4), (5), and (6) of the Treasury Regulations shall be debited to such Capital Account. For these purposes, no Member who has an unconditional obligation to restore any deficit balance in his Capital Account in accordance with the requirements of Section l .704-1(b)(2)(ii)(b)(3) of the Treasury Regulations shall have an Adjusted Capital Account Deficit. The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Section l.704-l(b)(2)(ii)(d) of the Treasury Regulations and shall be interpreted consistently therewith.
“Affiliate” means any Person that directly or indirectly controls, is controlled by, or is under common control with the Person in question. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise.
“Agreement” has the meaning given that term in the preamble hereof.
“AIS” means A.I.S. Resources Limited, a Bahamian corporation.
“AIS Manager” has the meaning given that term in Section 6.3(b).
“Association” has the meaning given that term in Section 12.10.
“Award Agreement” means a written agreement between the Company and a recipient of Incentive Units documenting an award thereof and pursuant to which the recipient agrees to the terms and conditions of this Agreement and such other terms and conditions as the Managers may prescribe.
“Bankrupt Member” has the meaning given that term in Section 3.l0(a).
“Bankruptcy Company Notice Deadline” has the meaning given that term in Section 3.l0(b).
“Bankruptcy Notice” has the meaning given that term in Section 3.l0(a).
“Bankruptcy Units” has the meaning given that term in Section 3.l0(a).
“Book Depreciation” means for any asset for any fiscal year or other period an amount that bears the same ratio to the Gross Asset Value of that asset at the beginning of such fiscal year or other period as the federal income tax depreciation, amortization, or other cost recovery deduction allowable for that asset for such year or other period bears to the adjusted tax basis of that asset at the beginning of such year or other period. If the federal income tax depreciation, amortization, or other cost recovery deduction allowable for any asset for such year or other period is zero, the Book Depreciation for that asset shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Managers.
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“Business Code” means the Texas Business Organizations Code and any successor statute, as amended from time to time.
“Business Day” means any day other than a Saturday, a Sunday, or a holiday on which national banking associations in the State of Texas are closed.
“Capital Account’ means the capital account maintained for a Member pursuant to Section 45.
“Capital Contribution” means any contribution by a Member to the capital of the Company.
“Capital Event” means (i) a sale or other disposition of all or substantially all of the Company’s assets or (ii) an insurance recovery or other transaction that is considered capital in nature (under the United States generally accepted accounting principles) to which the Company is a party.
“Capitalization Table” means the capitalization table of the Company maintained in the Company’s books and records, and as such set forth in Exhibit A as of the Effective Date, and as may be amended from time to time in accordance with this Agreement.
“Certificate” has the meaning given that term in Section 2.1.
“Closing” means the closing of a Transfer of Units pursuant to ARTICLE Ill.
“Code” means the Internal Revenue Code of 1986 and any successor statute, as amended from time to time.
“Company” has the meaning given that term in the preamble of this Agreement.
“Company Minimum Gain” has the meaning set forth for partnership minimum gain in Section l .704-2(b)(2) of the Treasury Regulations.
“Company Nonrecourse Deduction” has the meaning set forth in Section 1.704-2(b)(l) of the Treasury Regulations.
“Compensatory Interest Cap” means, as of a given date of determination, a number of Incentive Units and Phantom Units (with each Phantom Unit being treated as a Unit) representing, in the aggregate, 10% of all Units then outstanding.
“Consent and Certification” means a Consent and Certification in the form required by the Company, which shall be substantially in the form of Exhibit B.
“Converted Members” means each of Michael Newman and Bryan Herr.
“Corporate Functionaries” has the meaning given that term in Section 8.1.
“Co-Sale Election Notice” has the meaning given that term in Section 3.7(a).
“Co-Sale Multipller” means, with respect to the sale of any Units, at the time of any Co-Sale Transaction, a multiplier equal to the quotient of (i) the number of Units being sold by the Seller in such Co-Sale Transaction divided by (ii) the number of Units then owned by the Seller.
“Co-Sale Transaction” has the meaning given that term in Section 3.7.
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“Death Company Notice Deadline” has the meaning given that term in Section 3.9(b).
“Death Notice” has the meaning given that term in Section 3.9(a).
“Default Interest Rate” means a rate per annum equal to the lesser of (a) the General Interest Rate, plus 2% per annum, and (b) the maximum rate permitted by applicable law.
“Designated Fair Market Value” means, with respect to any Units or any property, the fair market value as determined by one of the following methods: (i) by the agreement of the Managers or (ii) if an agreement cannot be reached by the Managers pursuant to (i) above, then by an accounting firm or financial appraisal firm chosen by the Managers. Any valuation of Units shall be made based on what an unaffiliated third party would pay for 100% of the Units, multiplied by the percentage of the Units to be Transferred, subject to applicable discounts for minority ownership or lack of marketability. Further, any valuation of Units shall be made without regard to the death or disability of any of the Managers, and any such valuation made in connection with a proposed Transfer of Units shall not take into account such Transfer or the death of a Member requiring such Transfer. If the Designated Fair Market Value is determined pursuant to method (ii) above, the fees and expenses of the firm that determines the Designated Fair Market Value shall be borne 50% by the transferor and 50% by the transferee or transferees of the Units.
“Divorce Notice” has the meaning given that term in Section 3.10(e)(i).
“Divorced Member” has the meaning given that term in Section 3.10(e).
“Divorced Spouse” has the meaning given that term in Section 3.10(e)(i).
“Divorced Spouse’s Interest” has the meaning given that term in Section 3.10(e)(i).
“Effective Date” has the meaning given that term in the preamble hereof.
“Equity Members” means Members holding Equity Units; provided, however, that with respect to a Member that holds both Equity Units and Incentive Units, any reference to Equity Member shall be deemed to refer to such Member solely with respect to such Member’s Equity Units.
“Equity Units” means Units that are not Incentive Units.
“Estate Units” has the meaning given that term in Section 3.9(a).
“GAAP” means United States generally accepted accounting principles.
“General Interest Rate” means a rate per annum equal to the lesser of (a) 8% per annum and (b) the maximum rate permitted by applicable law.
“Group I” shall mean the Members set forth on Exhibit A under the heading “Group l”.
“Group 2” shall mean the Members set forth on Exhibit A under the heading “Group 2”.
“Gross Asset Value” has the meaning given that term in Section 4.5(c).
“HLH Manager” has the meaning given that term in Section 6.3(a).
| SCHEDULE 1 - PAGE 3 |
“Incentive Members” means Members holding Incentive Units; provided, however, that with respect to a Member that holds both Equity Units and Incentive Units,any reference to Incentive Member shall be deemed to refer to such Member solely with respect to such Member’s Incentive Units.
“Incentive Units” has the meaning given that term in Section 3.3(a).
“Losses” has the meaning given that term in Section 4.5(b).
“Manager” means any Person or Persons named in Section 6.3 as an initial Manager of the Company and any Person or Persons hereafter elected as a Manager of the Company as provided in this Agreement, but does not include any Person who has ceased to be a Manager of the Company. Whenever in this Agreement a reference is made to the Managers, such reference shall include a sole Manager, who shall have all the authority of the Managers set forth herein.
“Maximum Co-Sale Units” means, with respect to any Remaining Member in connection with any Co-Sale Transaction, a number of Units equal to the product of (i) the number of Units then owned by such Remaining Member multiplied by (ii) the Co-Sale Multiplier.
“Member’’ and “Members” mean any Person executing this Agreement as of the Effective Date as a Member or hereafter admitted to the Company as a Member, but does not include any Person who has ceased to be a Member in the Company. Members are,and shall be, listed on Exhibit A.
“Member Minimum Gain” means partnership minimum gain attributable to partner nonrecourse debt as determined under the rules of Section l .704-2(i) of the Treasury Regulations.
“Member Nonrecourse Deductions” has the meaning set forth for partner nonrecourse deductions in Section l .704-2(i)(2) of the Treasury Regulations.
“Member Representative” means, with respect to a deceased Member, such deceased Member’s heirs, devisees, legatees, executors, administrators,or representatives, as applicable.
“Membership Interest” means the interest of a Member in the Company, including rights to distributions (liquidating or otherwise) and allocations and the Member’s right to vote or consent regarding that interest as provided in this Agreement.
“Net Capital Proceeds” means, with respect to a specified Capital Event, and amount equal to:
(i) the sum of (A) the aggregate proceeds from such Capital Event plus (B) all reserves that have been previously set aside from the proceeds of prior Capital Events, to the extent the Managers deem such reserves available for distribution, minus
(ii) the sum of all amounts paid from the proceeds of such Capital Event for (A) Company expenses incurred in connection with the Capital Event, including legal and accounting fees,and (B) the repayment of any Company indebtedness, including accrued but unpaid interest.
“Net Cash Flow from Operations” means, for each fiscal year of the Company (or for such other period for which Net Cash Flow from Operations is required to be determined) an amount equal to:
(i) All cash and other receipts, other than Net Capital Proceeds, arising out of the ownership, maintenance or operation of the Company’s assets during such fiscal year; minus
| SCHEDULE 1 - PAGE 4 |
(ii) The sum of (A) all Operating Expenses paid in cash during such fiscal year (other than Operating Expenses paid in cash during such fiscal year to the extent such expenses have been withdrawn from reserves established in a prior fiscal year). plus (8) the aggregate of all cash payments made during such fiscal year with respect to the repayment of principal as it becomes due on any loans secured by the Company’s assets or any other Company indebtedness incurred in connection with the Company’s assets. plus (C) the amount of the entire reserve balance during such fiscal year.
“New Units” has the meaning given that term in Section 3.3.
“Non-Bankrupt Members” has the meanings given those terms in Section 3.l0(c).
“Note” has the meaning given that term in Section 3.1l(b){i). “Offered Units” has the meaning given to that term in Section 3.6(a). “Offeror’ has the meaning given to that term in Section 3.8{b).
“Operating Expenses” means all expenses of every kind and nature incurred by the Company in connection with the business of the Company, including debt service (other than debt service repaid from Net Capital Proceeds), and audit and legal expenses.
“Original Agreement” has the meaning given to that term in the recitals hereof.
“Person” means an individual or a corporation, limited liability company, partnership, trust, estate, unincorporated organization, association, or other entity.
“Phantom Equity Plan” means a written compensation plan, pursuant to which the Company will grant to one or more of the Company’s officers, managers, advisors, employees, or consultants incentive compensation in the form of equity equivalent or so-called “phantom equity” interests in the Company, where such interests do not provide any opportunity for actual ownership of any membership interest or other equity interest in the Company.
“Phantom Units” means units of equity equivalent or so-called “phantom equity” interests in the Company issued pursuant to a Phantom Equity Plan.
“Preemptive Rights Notice” has the meaning given that term in Section 3.lS(a).
“Principal” means, with respect to a Member that is not a natural person, any natural person holding, directly or indirectly, 100% of such Members outstanding equity interests.
“Proceeding” has the meaning given that term in Section 8.l.
“Profits” has the meaning given that term in Section 45(b).
“Qualified Income Offset Amount” has the meaning given to that term in Section 5.3(b).
“Reduced Co-Sale Amount” means, with respect to the Seller or any Remaining Member that elected to Transfer Units to the prospective purchaser or transferee in a Co-Sale Transaction, a number of Units equal to the product of (i) the total number of Units that such prospective purchaser or transferee agrees to purchase multiplied by (ii) the Reduced Co-Sale Multiplier.
| SCHEDULE 1 - PAGE 5 |
EXHIBIT A
Capitalization Table*
Member Name and Address | Undistributed Capital Amount | Undistributed Level l Appreciation Amount | Capital Account Balance |
Units** | Sharing Ratio*** | |||||||||||||||
| GROUP 1 | ||||||||||||||||||||
| Horatio Lonsdale-Hands | $ | 131,904 | $ | 2,319,030 | $ | 2,450,934 | 7,777,854 | 25.93 | % | |||||||||||
| Bernard L. Nussbaumer | $ | 163,406 | $ | 2,319,030 | $ | 2,482,436 | 7,777,854 | 25.93 | % | |||||||||||
| Group 1 Subtotal | $ | 295,310 | $ | 4,638,060 | $ | 4,933,370 | 15,555,708 | 51.85 | % | |||||||||||
| GROUP 2 | ||||||||||||||||||||
| Bryan Herr | $ | 960,756 | $ | 0 | $ | 960,756 | 4,003,151 | 13.34 | % | |||||||||||
| Michael Newman | $ | 105,874 | $ | 0 | $ | 105,874 | 441,142 | 1.47 | % | |||||||||||
| Group 2 Subtotal | $ | 1,066,630 | $ | 0 | $ | 1,066,630 | 4,444,292 | 14.81 | % | |||||||||||
| GROUP 3 | ||||||||||||||||||||
| [Available Units] | $ | 1,579,959 | $ | 0 | $ | 1,579,959 | 5,266,531 | 17.56 | % | |||||||||||
| European Investment Fund | $ | 250,000 | $ | 0 | $ | 250,000 | 833,333 | 2.78 | % | |||||||||||
| Lomah, Ltd. [Canada] | $ | 770,841 | $ | 0 | $ | 770,841 | 2,569,471 | 8.56 | % | |||||||||||
| A.I.S. Resources Ltd. [Canada] | $ | 399,200 | $ | 0 | $ | 399,200 | 1,330,665 | 4.44 | % | |||||||||||
| Group 3 Subtotal | $ | 3,000,000 | $ | 0 | $ | 3,000,000 | 10,000,000 | 33.33 | % | |||||||||||
| All Members Total | $ | 4,361,940 | $ | 4,638,060 | $ | 9,000,000 | 30,000,000 | 100.00 | % | |||||||||||
*Current as of September 30, 2015 on a fully-diluted basis, assuming the issuance of all “[Available Units!” as contemplated by the Company’s current equity offering.
**The board of Buda Juice, LLC has approved an incentive plan providing for the issuance to management and employees of up to 3,000,000 equity-equivalent Units, which equity-equivalent Units shall be issued based upon a per Unit price of $0.30 and subject to a three year vesting schedule.
**All Sharing Ratio percentages are rounded to the nearest one-hundredth of one percent (0.01%).
“Reduced Co-Sale Multiplier” means, with respect to the Seller or any Remaining Member that elected to Transfer Units to the prospective purchaser or transferee in a Co-Sale Transaction, a multiplier equal to the quotient of (i) the number of Units offered for sale by the Seller or such Remaining Member, as applicable, as reflected in the ROFR Sale Notice or such Remaining Member’s Co-Sale Election
Notice, as applicable, divided by (ii) the total number of Units offered for sale by the Seller and all such Remaining Members.
“Regulatory Allocations” has the meaning given that term in Section 5.3(i).
“Remaining Bankruptcy Units” has the meaning given that term in Section 3.10(c).
“Remaining Estate Units” has the meaning given to that term in Section 3.9(c).
“Remaining Members” has the meaning given to that term in Section 3.6(a).
“Remaining Offered Units” has the meaning given to that term in Section 3.6(c).
“Required Interest”’ means one or more Members having among them more than 55% of the Sharing Ratios of all Members.
“ROFR Company Notice Deadline” has the meaning given to that term in Section 3.6(b).
“ROFR Purchase Price” has the meaning given to that term in Section 3.6(a).
“ROFR Sale Notice” has the meaning given to that term in Section 3.6(a).
“Securities Act” means the Securities Act of 1933, as amended.
“Sharing Ratio” with respect to any Member means the percentage set forth opposite each Member’s name on the Capitalization Table. Each Member’s Sharing Ratio shall be calculated by dividing such Member’s Units by the aggregate number of Units then issued and outstanding.
“Surviving Members” has the meaning given that term in Section 3.9(a).
“Suspended Distribution” has the meaning given to that term in Section 5.4(b).
“Tax Amount” means, with respect to a Member for a fiscal year, an amount equal to the lesser of (i) the product of the cumulative historic taxable income allocated to such Member pursuant to this Agreement and after taking into account any taxable loss so allocated to such Member) for all fiscal years, or portions thereof, ending on or before or which includes such current fiscal year multiplied by the Tax Rate applicable to such income, or (ii) the product of the taxable net income allocated to such Member pursuant to this Agreement for such fiscal year multiplied by the Tax Rate.
“Tax Matters Partner” has the meaning given to that term in Section 9.3.
“Tax Rate” for a taxable year means the highest marginal individual United States federal Medicare tax rates (imposed by Section 1411 of the Code on income and gain of the Company) and federal income tax rates (imposed by Section l of the Code or any successor provision applicable to income or gain of the Company) and by the equivalent provisions of state and local individual income tax law applicable to an individual resident of Texas (or such other jurisdiction selected by the Managers in their discretion for such taxable year), and giving effect to the character of the income or gain and the benefits of the deductibility of state or local income taxes, if available.
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“Transfer,” “Transferring,” or “Transferred” means a sale, assignment, transfer, exchange, gift, mortgage, encumbrance, pledge, grant of a security interest, or other disposition, whether voluntarily or involuntarily by operation of law, whether or not for consideration.
“Transferor” means a Member effecting the Transfer of a Unit or any part thereof in accordance with this Agreement.
“Treasury Regulations” means the Department of Treasury Regulations promulgated under the Code, whether proposed, temporary, or final, as amended and in effect (including corresponding provisions of succeeding regulations).
“Undistributed Capital Amount’ means, with respect to each Member as of any date, an amount equal to all Capital Contributions made by such Member to the Company and decreased by distributions to such Member pursuant to Section 5.6(b)(i), provided that for purposes of this definition (i) each Capital Contribution shall be deemed to have been made on the date such contribution is actually received and accepted by the Company and (ii) the distribution date with respect to any distribution shall be deemed to be the date on which such distribution is actually made.
“Undistributed Level I Appreciation Amount” shall mean, with respect to each Group I Member as of any date, an account maintained by the Company having an initial balance as set forth on Exhibit A under the heading “Undistributed Level 1 Appreciation Amount” for each such Member that is decreased (not below zero) by distributions to such the Member pursuant to Section S.6(b)(iii) in respect of the Member’s Undistributed Level I Appreciation Amount.
| SCHEDULE 1 - PAGE 7 |
EXHIBIT B
Consent and Certification
The undersigned, having acquired a membership interest units (the “Units”) in Buda Juice, LLC, a Texas limited liability company (the “Company”), hereby agrees to be bound by the terms and conditions of the Amended and Restated Company Agreement of the Company, as the same may be hereafter amended, restated, or otherwise modified in accordance with its terms (the “Company Agreement”), the form of which is attached hereto. In particular, but not by way of limitation, the undersigned agrees to be bound by the limitations on transfer and rights related to transfer of Units set forth in ARTICLE III of the Company Agreement
| Print Name of Member: | Horatio Lonsdale-Hands |
| Address: | 2919 Magnolia Hill Cout |
| Dallas, texas 75201 | |
| U.S.A. | |
| Number of Units Owned: | 7,777,854 |
| SIGNATURE OF MEMBER | ||
| Horatio Lonsdale-Hands | ||
| Name & Title (if applicable): | Horatio Lonsdale-Hands | |
| Date: | November 17, 2015. | |
By execution of this Consent and Certification, the spouse of the above Member consents to, and agrees to be bound by, the terms and conditions of the Company Agreement as they may affect such spouse’s interest in the Units of the Member to whom such spouse is married, or in any rights, benefits, or other attributes of such Units, as community property. Without limiting the generality of the preceding sentence, such spouse agrees to the terms of ARTICLE lll and Section 12.I5 of the Agreement.
| /s/ Horatio Lonsdale-Hands | ||
| SIGNATURE OF SPOUSE OF MEMBER | ||
| Printed Name: | Horatio Lonsdale-Hands | |
SPOUSAL CONSENT
By execution of this Agreement, the spouse of Horatio Lonsdale-Hands consents to, and agrees to be bound by, the terms and conditions of the Amended and Restated Company Agreement of Buda Juice, LLC as they may affect such spouse’s interest in the Units of the Member to whom such spouse is married, or in any rights, benefits, or other attributes of such Units, as community property. Without limiting the generality of the preceding sentence, such spouse agrees to the terms of ARTICLE Ill and Section 12.15 of the Agreement.
| /s/ Horatio Lonsdale-Hands | ||
| SIGNATURE OF SPOUSE OF MEMBER | ||
| Printed Name: | Horatio Lonsdale-Hands | |
[SPOUSAL CONSENT TO AMENDED AND RESTATED COMPANY AGREEMENT OF BUDA JUICE, LLC]
SPOUSAL CONSENT
By execution of this Agreement, the spouse of Bernard L. Nussbaumer consents to, and agrees to be bound by, the terms and conditions of the Amended and Restated Company Agreement of Buda Juice. LLC as they may affect such spouse’s interest in the Units of the Member to whom such spouse is married, or in any rights, benefits, or other attributes of such Units, as community property. Without limiting the generality of the preceding sentence, such spouse agrees to the terms of ARTICLE III and Section 12.15 of the Agreement.
| /s/ Bernard L. Nussbaumer | ||
| SIGNATURE OF SPOUSE OF MEMBER | ||
| Printed Name: | Bernard L. Nussbaumer | |
[SPOUSAL CONSENT TO AMENDED AND RESTATED COMPANY AGREEMENT OF BUDA JUICE, LLC]
Consent and Certification
The undersigned, having acquired a membership interest units (the “Units”) in Buda Juice, LLC, a Texas limited liability company (the “Company”), hereby agrees to be bound by the terms and conditions of the Amended and Restated Company Agreement of the Company, as the same may be hereafter amended, restated, or otherwise modified in accordance with its terms (the “Company Agreement”), the form of which is attached hereto. In particular, but not by way of limitation, the undersigned agrees to be bound by the limitations on transfer and rights related to transfer of Units set forth in ARTICLE Ill of the Company Agreement.
| Print Name of Member: | Bernard L. Nussbaumer |
| Address: | 5000 SENECA DR. |
| Dallas, tx 75209 | |
| U.S.A. | |
| Number of Units Owned: | 7,777,854 |
| SIGNATURE OF MEMBER | ||
| Horatio Lonsdale-Hands | ||
| Name & Title (if applicable): | B.L. Nussbaumer | |
| Date: | 11/17/25 | |
By execution of this Consent and Certification, the spouse of the above Member consents to, and agrees to be bound by, the terms and conditions of the Company Agreement as they may affect such spouse’s interest in the Units of the Member to whom such spouse is married, or in any rights, benefits, or other attributes of such Units, as community property. Without limiting the generality of the preceding sentence, such spouse agrees to the terms of ARTICLE Ill and Section 12.15 of the Agreement.
| /s/ Bernard L. Nussbaumer | ||
| SIGNATURE OF SPOUSE OF MEMBER | ||
| Printed Name: | Bernard L. Nussbaumer | |
The Members have executed this Amended and Restated Company Agreement of Buda Juice, LLC as of the Effective Date.
| MEMBERS: | ||
| /s/ Horatio Lonsdale-Hands | ||
| Horatio Lonsdale-Hands, Individually | ||
| /s/ Bernard L. Nussbaumer | ||
| Bernard L. Nussbaumer, Individually | ||
| /s/ Bryan Herr | ||
| Bryan Herr, individually | ||
| /s/ Michael Newman | ||
| Michael Newman, individually | ||
| A.I.S. RESOURCES LIMITED, a Bahamian corporation | ||
| By: | ||
| Martyn Element, President & Chief Executive Officer | ||
| [Additional Members by Consent and Certification] | ||
[SIGNATURE PAGE TO AMENDED AND RESTATED COMPANY AGREEMENT OF BUDA JUICE, LLC]
Exhibit 4.1
FORM OF STOCK CERTIFICATE
BUDA JUICE, INC.
NUMBER COMMON STOCK |
SHARES COMMON STOCK | |||
| INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE | SEE REVERSE FOR CERTAIN DEFINITIONS CUSIP 11882T 106 | |||
This certifies that is the owner of FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK PAR VALUE $0.001 EACH OF
BUDA JUICE, INC.
transferable only on the books of the Corporation by the holder hereof in person, or by duly authorized Attorney, upon the surrender of this certificate properly endorsed. This Certificate is not valid until countersigned registered by the Transfer Agent and Registrar.
WITNESS the facsimile signatures of the duly authorized officers of the Corporation.
Dated:
| CHIEF EXECUTIVE OFFICER | CHIEF FINANCIAL OFFICER | |
|
COUNTERSIGNED AND REGISTERED: | |
| VSTOCK TRANSFER, LLC | ||
| TRANSFER AGENT AND REGISTRAR | ||
| BY | ||
| Authorized Signature | ||
[Reverse Side of Stock Certificate]
The Corporation will furnish to any stockholder, upon request and without charge, a full statement of the designations, relative rights, preferences and limitations of the shares of each class and series authorized to be issued, so far as the same have been determined, and of the authority, if any, of the Board to divide the shares into classes or series and to determine and change the relative rights, preferences and limitations of any class or series. Such request may be made to the Secretary of the Corporation or to the Transfer Agent named on this certificate.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
| TEN COM | - | as tenants in common | UNIF GIFT MIN ACT - Custodian (Cust) (Minor) | |
| TEN ENT | - | as tenant by the entireties | ||
| JT TEN | - | as joint tenants with right of survivorship and not as tenants in common | under Uniform Gifts to Minors Act (State) |
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE)
| Shares of the Common Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint |
Attorney, to transfer the said stock registered on the books of the within-named Corporation with full power of substitution in the premises.
| Dated |
|
SIGNATURE(S) GUARANTEED: |
Notice: The signature(s) to this assignment must correspond with the name(s) as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatever. |
|
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. |
Exhibit 5.1
 |
 |
December 12, 2025
Buda Juice, LLC.
4030 Black Gold Drive,
Dallas, Texas 75247
| Re: | Registration Statement on Form S-1 (File No. 333-289874) |
Ladies and Gentlemen:
We have acted as counsel to you, Buda Juice, LLC (the “Company”), a Delaware corporation, in connection with the public offering contemplated by the registration statement on Form S-1 filed by the Company on August 27, 2025 (as amended, the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), for an offering of 2,666,667 shares of the Company’s common stock (the “Common Stock”), $0.001 par value per share (the “Company Shares”); (ii) up to 400,000 shares of Common Stock, purchased pursuant to over allotments, if any (the “Over Allotment Shares”); (iii) up to 266,667 warrants to purchase 266,667 shares of Common Stock that will be issued to the representatives of the underwriters (the “Representatives’ Warrants”); and (iv) and up to 266,667 shares of Common Stock underlying the Representatives’ Warrants (the “Representatives’ Warrant Shares”) that may be issued upon exercise of the Representatives’ Warrants.
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, we have examined the originals or copies certified or otherwise identified to our satisfaction of the following: (a) the certificate of incorporation of the Company, as amended to date; (b) the bylaws of the Company, as amended to date, and (c) the Registration Statement and all exhibits thereto. In addition to the foregoing, we also have relied as to matters of fact upon the representations made by the Company and its representatives and we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us certified or photostatic copies and assumed the consummation of the Conversion (as defined in the Registration Statement).
Based upon the foregoing and in reliance thereon, and subject to the qualifications, limitations, exceptions and assumptions set forth herein, we are of the opinion that:
| (i) | the Company Shares and the Over-Allotment Shares have been duly authorized by all necessary corporate action of the Company and, when issued, delivered and paid for as contemplated in the Registration Statement and in accordance with the terms of the Underwriting Agreement (as defined in the Registration Statement), the shares of Common Stock will be validly issued, fully paid and non-assessable; |
| (ii) | the Representatives’ Warrants have been duly authorized by the Company and, when executed by the Company and issued and delivered to the purchaser thereof as contemplated by the Registration Statement and in accordance with terms of the Underwriting Agreement, such Representatives’ Warrants will constitute the valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms; and |
| (iii) | the Representatives’ Warrant Shares have been duly authorized and, when issued and delivered by the Company upon exercise of the Representatives’ Warrants against payment therefor as set forth in the Registration Statement, the Underwriting Agreement and the Representatives’ Warrants, will be validly issued, fully paid and non-assessable. |
We are opining herein as to the General Corporation Law of the State of Delaware and as to the laws of the State of New York, and we express no opinion with respect to any other laws. This opinion is limited to the laws in effect as of the date the Registration Statement is declared effective by the Commission and is provided exclusively in connection with the public offering contemplated by the Registration Statement.
This opinion letter speaks only as of the date hereof and we assume no obligation to update or supplement this opinion letter if any applicable laws change after the date of this opinion letter or if we become aware after the date of this opinion letter of any facts, whether existing before or arising after the date hereof, that might change the opinions expressed above.
This opinion letter is furnished in connection with the filing of the Registration Statement and may not be relied upon for any other purpose without our prior written consent in each instance. Further, no portion of this letter may be quoted, circulated or referred to in any other document for any other purpose without our prior written consent.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and to the use of our name as it appears in the prospectus included in the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
| Very truly yours, | |
| /s/ Lucosky Brookman LLP | |
| Lucosky Brookman LLP |
Exhibit 10.3
North Texas Commercial Association of Realtors®
COMMERCIAL LEASE AGREEMENT
between
| Lewis Warehouse Management Group LLC | ||
| (LandSord) |
and
| Buda Juice | ||
| (Tenant) |
TABLE OF CONTENTS
| Article | |
| 1. | Defined Terms |
| 2. | Lease and Term |
| 3. | Rent and Security Deposit |
| 4. | Taxes |
| 5. | Insurance and Indemnity |
| 6. | Use of Premises |
| 7. | Property Condition, Maintenance Repairs and Alterations |
| 8. | Damage or Destruction |
| 9. | Condemnation |
| 10. | Assignment and Subletting |
| 11 | Default and Remedies |
| 12. | Landlord’s Contractual Lien |
| 13 | Protection of Lenders |
| 14 | Environmental Representations and Indemnity |
| 15 | Professional Service Fees |
| 16 | Miscellaneous and Additional Provisions |
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
| COMMERCIAL LEASE AGREEMENT- PRODUCED WITH WINAIR FORMS © | Page 1 |
| ©NTCAR 2014 - FORM NO. 2 (03/2014) |
[Throughout this Lease, complete all blanks anti check all boxes that apply. Blanks not completed and boxes not checked do not apply ]
For good and valuable consideration, the parties to this Commercial Lease Agreement (the “Lease”) agree as follows
ARTICLE ONE
DEFINED TERMS
As used in this Lease, the terms set forth in this Article One have the following meanings:
| 1.01 | Effective Date: The last date beneath the signatures of Landlord and Tenant on this Lease |
| 1.02 | Landlord: Lewis Warehouse Mangement Group, LLC |
c/o Robert Lyce Management Company
Address: 1851 LRJ Freeway, Och Loor, Dallas, TX 75244
Telephone: 214-256-7100 Fax: 224-256-7101
Email:
| 1.03 | Tenant: Pada Juice |
Address: 4030 Black Gold Drive, Dallas, TX 75247
Telephone: 214-742-9999 Fax:
Email:horatio@budajuice.com
| 1.04 | Premises [include Suite or Unit No., If applicable]: 1030 Black Gola Drive |
A. Building Name: N/A
B. Street address: 4030 Black Gold Drive, Dallas, TX 75247
_________________________________________________________________________________________
_______________________________in Dallas ___________________________County, Texas.
C. Legal description: The property on which the Premises are situated is described as Block A///05 Part of Tot 17 less the East 1 Foot, City of Dallas__________________________________________________________________________
__________________________________________________________________________
and may be more particularly described on the attached Exhibit “A”, Survey or Legal Description (the “Property”). The term “Property” includes the land described on Exhibit “A”. and any improvements on the land (including the Premises).
D. Floor Plan or Site Plan: Being a floor area of approximately 21,476 square feet, or a land area of approximately /square feet or approximately N/A acres, and being more particularly shown in outline form on the attached Exhibit “B”, Floor Plan or Site Plan.
E. Tenant’s Pro Rata Share: 100%
| 1.05 | Term: l’ive (5) years and three (3) months beginning on April 1 2020 (the “Commencement Date”) and ending 31 2025 (the “Expiration Date”). Unless the context requires otherwise, references in this Lease to the “Term” include any renewal or extension of this Lease. [See Addendum “A”, Renewal Options, if applicable] |
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
| COMMERCIAL LEASE AGREEMENT- PRODUCED WITH WINAIR FORMS © | Page 2 |
| ©NTCAR 2014 - FORM NO. 2 (03/2014) |
| 1.06 | Base Rent: Base Rent is due and payable in monthly instaliments during the Term of this Lease as set forth in this Section Base Rent and all other sums due or payable by Tenant to Landlord under this Lease are collectively referred to in this Lease as the “Rent.” |
Base Rent Payment Schedule
On or before the first day of each month during the Term of this Lease, Tenant shall pay monthly installments of Base Rent as follows’
| Dates | Monthly Base Rent | ||||
| From April 1, 2020 | to July 31, 2020 | $ 0.00 | ; | ||
| From August 1, 2020 | to July 31, 2021 | $ 8,900.00 | ; | ||
| From August 1, 2021 | to July 32, 2022 | $ 9,216.00 | ; | ||
| From August 1, 2022 | 10 July 3, 2023 | $ 3.306.00 | ; | ||
| From August 1, 2023 | to July 31, 202 | $ 9,290.00 | ; | ||
| From August 1, 2024 | to July 3, 2025 | $ 9,843.00 | ; |
[Rent for any Renewal Term is determined pursuant to a separate Addendum, it applicable, and should not be set forth here,}
| 1.07 | Percentage Rental Rate: N/A % [See Addendum “D”, PERCENTAGE RENTAL AND GROSS SALES REPORTS, if applicable] |
| 1.08 | Security Deposit: $12, 116. 00 (due upon execution of this Lease). [See Section 3.041 |
| 1.09 | Expense Reimbursements: |
A. Tenant shall pay Landlord as additional Rent (or pay the charges directly to the service provider, if applicable) the following expenses (or a portion of the expenses, if applicable) (each an “Expense Reimbursement” and collectively the “Expense Reimbursements”) that are incurred by or assessed against the Premises (as each of these terms is defined in this Lease) [check all boxes that apply]:
| ☑ | Real Estate Taxes; | |
| ☑ | Insurance Premiums; | |
| ☑ | Common Area Maintenance (CAM) Expenses, | |
| ☑ | Operating Expenses; | |
| ☐ | Roof and Structural Maintenance Expenses; | |
| ☐ | Electricity; | |
| ☐ | Cable; | |
| ☐ | Gas; | |
| ☐ | Internet Access; | |
| ☐ | Water: | |
| ☐ | Sewer; | |
| ☐ | Telephone; | |
| ☐ | Trash Removal; and | |
| ☐ | All other Utilities. |
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
| COMMERCIAL LEASE AGREEMENT- PRODUCED WITH WINAIR FORMS © | Page 3 |
| ©NTCAR 2014 - FORM NO. 2 (03/2014) |
| B. | Expense Definitions. |
1. Real Estate Taxes. “Real Estate Taxes” means all general real estate taxes, ad valorem taxes, general and special assessments, parking surcharges, rent taxes, and other similar governmental charges levied against or applicable to the Property for each calendar year.
2. Insurance Premiums. “Insurance Premiums” means all Landlord’s insurance premiums attributable to the Property, including but not limited to insurance for fire, casualty, general liability, property damage, medical expenses, extended coverage, and loss of rents coverage for up to 12 months’ Rent
3. Common Area Maintenance Expenses. “Common Area Maintenance Expenses” or “CAM Expenses” means ail costs of maintenance, inspection and repairs of the Common Areas of the Property. Including, but not limited to those costs for security, lighting, painting, cleaning, decorations and fixtures, Utilities, ice and snow removal, trash disposal, project signs, roof repairs, pest control, project promotional expenses, property owners’ association dues, wages and salary costs of maintenance personnel, and other expenses benefiting all the Property that may be incurred by Landlord, in its discretion, including sales taxes and a reasonable service charge for the administration thereof. The term “Common Areas” is defined as that part of the Property intended for the collective use of all tenants including, but not limited to, the parking areas, driveways, loading areas, landscaping, gutters and downspouts, plumbing, electncai systems, HVAC systems, roof, exterior walls sidewalks, malls, promenades (enclosed or otherwise), meeting rooms, doors, windows, corridors and public rest rooms. CAM Expenses do not include the cost of capital improvements, the cost of management office equipment and furnishings, depreciation on Landlord’s original investment, the cost of tenant improvements, real estate brokers’ fees, advertising of space for lease, or Interest or depreciation on capital investments.
4. Operating Expenses. “Operating Expenses” means all costs of ownership, building management, maintenance repairs and operation of the Property, including but not limited to roof and structural maintenance, Real Estate Taxes, Insurance Premiums, CAM Expenses, reasonable management fees, wages ano salary costs of building management personnel, overhead and operational costs of a management office, janitorial, Utilities, and professional services such as accounting and legal fees Operating Expenses do not include the cost of capital improvements, the cost of management office equipment and furnishings, depreciation on Làndlord’s original investment, the cost of tenant improvements, real estate brokers’ fees, advertising of space for lease, or interest or depreciation on capital investments.
5. Roof and Structural Maintenance Expenses. “Roof and Structural Maintenance Expenses” means al! costs of maintenance, repair and replacement of the roof, roof deck, flashings, skylights, foundation, floor slabs, structural components and the structural soundness of the building in general
6. Utilities. “Utilities” means charges for electricity, cable, gas. Internet access, water, sewer, telephone, trash removal, and any other services that are commonly understood to be utilities, including connection charges.
7. Other Terms. Other terms that are not expressly defined are intended to have the meanings given those terms in common usage.
| C. | Expense Reimbursement Limitations. The amount of Tenant’s Expense Reimbursement will be determined by one of the following methods as described and defined below [check only one}: |
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
| COMMERCIAL LEASE AGREEMENT- PRODUCED WITH WINAIR FORMS © | Page 4 |
| ©NTCAR 2014 - FORM NO. 2 (03/2014) |
| ☐ | Base Year Adjustment; | |
| ☐ | Expense Stop Adjustment, | |
| ☐ | Pro Rata Adjustment; | |
| ☐ | Fixed Amounts: or | |
| ☑ | Net Lease |
| D. | Expense Reimbursement Limitation Definitions. |
| 1. | Base Year Adjustment. If “Base Year Adjustment” has been checked above. Tenant shall pay to Landlord as additional Rent Tenant’s Pro Raia Share of increases in the applicable expenses (those checked in Section 1 09 A, above) for the Property for any calendar year during the Term or during any Extension of this Lease, over such amounts paid by Landlord for the Base Year_________________________________ (the “Base Year”) |
| 2. | Expense Stop Adjustment. If “Expense Stop Adjustment’1 has been checked above, Tenant shall pay to Landlord as additional Rent Tenant’s Pro Rata Share of increases in the applicable expenses (those checked in Section 1,09 A. above), for the Property for any calendar year during the Term or dunng any Extension of this Lease, over $_______________________________________ per square foot of floor area (as set forth in Section 1.04D) per year. |
| 3. | Pro Rata Adjustment. If “Pro Rata Adjustment” has been checked above, Tenant shall pay to Landlord as additional Rent Tenant’s Pro Rata Share of the total amount of the applicable expenses (those checked in Section 1.09.A. above) for every calendar year during the Term and during any extension of this Lease. |
| 4. | Fixed Amounts. If “Fixed Amounts” has been checked above, Tenant shall pay to Landlord as additional Rent the following monthly amounts (regardless of whether they have been checked in Section 1.09.A above) as Tenant’s Expense Reimbursements to Landlord for the following expenses that are incurred by or assessed against the Property: |
| Real Estate Taxes | $ ___________ per month. | |
| Insurance Premiums | $ ___________ per month. | |
| CAM Expenses | $ ___________ per month. | |
| Operating Expenses | $ ___________ per month. | |
| Roof & Structural Maintenance Expenses | $ ___________ per month. | |
| Electricity | $ ___________ per month. | |
| Cable | $ ___________ per month. | |
| Gas | $ ___________ per month. | |
| Water | $ ___________ per month. | |
| Telephone | $ ___________ per month. | |
| Trash Removal | $ ___________ per month. | |
| All Other Utilities | $ ___________ per month. |
| 5. | Net Lease. If “Net Lease” has been checked above, then notwithstanding anything contained in this Lease to the contrary in Section 6.02. Article Seven or otherwise, Tenant shali be responsible for paying Tenant’s Pro Rata Share of ali costs of compliance with laws, ownership, maintenance, repairs, replacements, operation of the Premises, and operation of the Property, including but not limited to all costs of Real Estate Taxes, Insurance Premiums, Common Area Maintenance Expenses Operating Expenses, Roof and Structural Maintenance Expenses, and all Utilities (regardless of whether they have been checked in Section 1.09.A. above). |
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
| COMMERCIAL LEASE AGREEMENT- PRODUCED WITH WINAIR FORMS © | Page 5 |
| ©NTCAR 2014 - FORM NO. 2 (03/2014) |
| E. | First Payment. The sum of the Monthly Base Rent for the first month of the Term for which Base Rent is due (which may be later than the first month of the Term, if there is a free rent period), and the initial estimated monthly Expense Reimbursement payments (before adjustments) is set forth below. Upon the execution of this Lease, in addition to the Security Deposit, Tenant shall pay the first monthly payment in the sum of the amounts set forth below. |
| Initial Monthly Base Rent | $ 8,900.00 | |
| Real Estate Taxes | $ ______________ | |
| Insurance Premiums | $ ______________ | |
| CAM Expenses | $ ______________ | |
| Operating Expenses | $ 2,272.88 | |
| Roof & Structural Maintenance Expenses | $ ______________ | |
| Electricity | $ ______________ | |
| Cable | $ ______________ | |
| Gas | $ ______________ | |
| Internet Access | $ ______________ | |
| Water | $ ______________ | |
| Sewer | $ ______________ | |
| Telephone | $ ______________ | |
| Trash Removal | $ ______________ | |
| All Other Utilities | $ ______________ | |
| Total | $ 11,172.88 |
[Complete the amount of the first Base Rent payment to be due, as well as estimated amounts of any other monthly payments that start at the beginning of the Term of this Lease. Put N/A or strike through the rest. Any estimated amounts are subject to adjustment pursuant to other provisions of this Lease. If any expense payments are riot due at the beginning of the Term, they may begin later in the Term pursuant to other provisions of this Lease.]
| F. | Expense Reimbursement Payments. Tenant agrees to pay any end-of-year lump sum Expense Reimbursement within 30 days after receiving an invoice from Landlord. Any time during the Term, Landlord may direct Tenant to pay monthly an estimated portion of the projected future Expense Reimbursement amount. Any such payment directed by Landlord will be due and payable monthly on the same day that the Base Rent is due. Landlord may, at Landlord’s option and to the extent allowed by applicable law, impose a Late Charge on any Expense Reimbursement payments that are not actually received by Landlord on or before the due date, in the amount and manner set forth in Section 3.03 of this Lease. Any Expense Reimbursements relating to partial calendar years will be prerated accordingly If Tenant’s Pro Rata Share is not expressed in Section 1.04.E of this Lease, then Tenant’s Pro Rata Share of such Expense Reimbursements will be based on the square footage of useable area contained in the Premises in proportion to the square footage of useable building area of the Property. Tenant may audit or examine those items of expense in Landlord’s records that relate to Tenant’s obligations unoer this Lease. Landlord shall promptly refund to Tenant any overpayment that is established by an audit or examination if the audit or examination reveals an error of more than 5% over the figures billed to Tenant. Landlord shall pay the reasonable cost of the audit or examination. |
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
| COMMERCIAL LEASE AGREEMENT- PRODUCED WITH WINAIR FORMS © | Page 6 |
| ©NTCAR 2014 - FORM NO. 2 (03/2014) |
| G. | ☐ Gross-Up Provisions. [Check this only if applicable.] If the Property is a multi-tenant building and is not fully occupied during the Base Year or any portion of the Term, an adjustment will be made in computing the variable costs for the Base Year and each applicable calendar year of the Term. Variable costs will include only those items of expense that vary directly proportionately to the occupancy of the Property. Variable costs that are included in the CAM Expenses, Operating Expenses and Utilities will be increased proportionately to the amounts that, in Landlord’s reasonable judgment, would have been incurred had 95% of the useable area of the Property been occupied during those years. |
| 1.10 | Permitted Use: Food and beverage production_____________________________________________________ |
___________________________________________________ [See Section 6.01]
| 1.11 | Party -to whom Tenant is to deliver payments under this Lease is the Landlord, unless one of the following boxes is checked, in which case Tenant shall deliver payments to: D Principal Broker, or ☑ Other [Set forth name and address, if other than Landlord or Principal Broker]: |
Robert lynn Management Company________________________________________________
4851 LBJ Freeway, 10th floor, Dallas, TX 75244________________________________________
| 1.12 | Principal Broker: Robert lynn company dba NAI Robert Lynn, is acting as the agent for Landlord exclusively, unless one of the following boxes is checked, in which case Principal Broker is acting as: ☐ the agent for Tenant exclusively, or ☑ an intermediary. |
Principal Broker’s Address: 4351 LBJ Freeway, 10th Floor_______________________________
Dallas, TX 75244_____________________________________________________________
Telephone: 214-256-7100______________ Fax: 214-256-7202____________________________
Email: rblankinship@robert.yan.com______________________________________________
| 1.13 | Cooperating Broker: ___________________________________,is acting as the agent for Tenant exclusively, unless one of the following boxes is checked, in which case Cooperating Broker is acting as: ☐ the agent for Landlord exclusively, or ☐ an intermediary. |
Cooperating Broker’s Address: ________________________________________________________
________________________________________________________________________________
Telephone: ________________________________Fax: ___________________________________
Email: ____________________________________________________________________________
| 1.14 | The Professional Service Fee (the “Fee”): |
| A. | The
percentages applicable in Section 15.01
and Section 15.02 to leases will be
6.75__ % of the Base Net Rent
to Principal Broker and N/A___% of
the |
| The
percentages applieal:lle in |
| 1.15 | Disclosure of Dual Capacity as Broker and Principal. [Complete if applicable] |
A. ______________________________________is a licensed Texas real estate broker and Is acting m a dual capsular as broker for Landlord and as a principal in this transaction, as he or she may be Landlord (or one of the owners of Landlord).
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
| COMMERCIAL LEASE AGREEMENT- PRODUCED WITH WINAIR FORMS © | Page 7 |
| ©NTCAR 2014 - FORM NO. 2 (03/2014) |
B. ___________________________________________is a licensed Texas real estate broker and is acting in a dual capacity as broker for Tenant and as a principal in this transaction, as he or she may be Tenant (or one of the owners of Tenant).
| 1.16 | Exhibits and Addenda. Any exhibit or addendum attached to this Lease (as indicated by the boxes checked below) Is incorporated as a part of this Lease. Any term not specifically defined in an Addendum will have the same meaning given to it in the body of this Lease. If any provisions in the body of this Lease conflict with the provisions of any Addendum, the Addendum will control. |
| ☐ | Exhibit “A” | Survey and/or Legal Description of the Property | ||
| ☐ | Exhibit “B” | Floor Plan and/or Site Plan | ||
| ☑ | Exhibit “C” | Information About Brokerage Services | ||
| ☐ | Exhibit “D” | Other ___________________________________ | ||
| ☑ | Addendum “A” | Renewal Options | ||
| ☐ | Addendum “B” | Construction of Improvements by Landlord | ||
| ☑ | Addendum “C” | Construction of Improvements by Tenant | ||
| ☐ | Addendum “D” | Percentage Rental and Gross Sales Reports | ||
| ☐ | Addendum “E” | Right of First Refusal for Additional Space | ||
| ☑ | Addendum “F” | Guaranty | ||
| ☐ | Addendum “G” | Rules and Regulation | ||
| ☐ | Addendum “H” | Rooftop Lease | ||
| ☐ | Addendum “I” | Parking | ||
| ☐ | Addendum “J” | Additional Provisions Addendum | ||
| ☑ | Addendum “K” | Other Landlord Approved Improvement List______ |
ARTICLE TWO
LEASE AND TERM
2.01 Lease of Premises for Term. Landlord leases the Premises to Tenant and Tenant leases the Premises from Landlord for the Term stated in Section 1.05. The Commencement Date is the date specified in Section 1.05. unless advanced or delayed under any provision of this Lease.
2.02 Delays in Commencement. Landlord will not be liable to Tenant if Landlord does not deliver possession of the Premises to Tenant on the Commencement Date specified in Section 1.05 above. Landlord’s non-delivery of possession of the Premises to Tenant on the Commencement Date will not affect this Lease or the obligations of Tenant under this Lease. However, the Commencement Date will be delayed until possession of the Premises Is delivered to Tenant. The Term will be extended for a period equal to the delay in delivery of possession of the Premises lo Tenant, plus the number of days necessary for the Term to expire on the last day of a month. If Landlord does not deliver possession of the Premises to Tenant within 60 days after the Commencement Date specified in Section 1.05, Tenant may cancel this Lease by giving a written notice to Landlord at any time after the 60-day period ends, but before Landlord actually delivers possession of the Premises to Tenant. If Tenant gives such notice, this Lease will be canceled effective as of the date of its execution, any prepaid amount will be reimbursed to Tenant, and no party will have any rights or obligations under this Lease. If Tenant does not give such notice within the time specified, Tenant will have no right to cancel this Lease, and the Term will commence upon the delivery of possession of the Premises to Tenant. If delivery of possession of the Premises to Tenant is delayed, Landlord and Tenant shall. upon such delivery, execute an amendment to his Lease setting forth the revised Commencement Date and Expiration Date of the Term.
2.03 Early Occupancy. If Tenant occupies the Premises before the Commencement Date, Tenant’s occupancy of the Premises will be subject to all of the provisions of this Lease, Early occupancy of the Premises will not advance the Expiration Date. Unless otherwise provided in this Lease, Tenant shall pay Base Rent and all other charges specified in this Lease for the period of occupancy.
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
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2.04 Holding Over. Tenant shalt vacate the Premises immediately upon the expiration of the Term or earlier termination of this Lease. Tenant shall reimburse Landlord for and indemnify Landlord against all damages incurred by Landlord as a result of any delay by Tenant in vacating the Premises. If Tenant does not vacate the Premises upon the expiration of the Term, or earlier termination of this Lease, Tenant’s occupancy of the Premises will be a day-to-day tenancy, subject to all of the terms of this Lease, except that the Base Rent during the holdover period will be increased to an amount that is one-and-one-half (1½) times the Base Rent in effect on the expiration or termination of this Lease; computed on a daily basis for each day of the holdover period, plus all additional sums due under this Lease. This Section will not be construed as Landlord’s consent for Tenant to hold over or to extend this Lease.
ARTICLE THREE
RENT AND SECURITY DEPOSIT
3.01 Manner of Payment. Tenant shall pay the Rent to Landlord at the address set forth in Section 1.02, unless another person is designated in Section 1.11; or to any other party or address Landlord may designate in any written notice delivered to Tenant. Landlord may designate, in a written notice delivered to Tenant, the party authorized to receive Rent and act on behalf of landlord to enforce this Lease. Any such authorization will remain in effect until it is revoked by Landlord in a subsequent written notice delivered to Tenant. Any payments made to a third party designated by Landlord will be deemed made to Landlord when received by the designated third party. All sums payable by Tenant under this Lease, whether or· not expressly denominated as Rent, will constitute rent for the purposes of Section 502(b)(6) of the Bankruptcy Code and for all other purposes.
3.02 Time of Payment. Upon execution of this Lease, Tenant sha!I pay the installment of Base Rent for the first month of the Term for which Base Rent is due (which may be later than the first month of the Term, if there Is a free rent period). On or before the first day of the next month and each month thereafter, the installment of Base Rent and other sums due under this Lease will be due and payable, in advance, without off-set, deduction or prior demand. Tenant shall cause payments to be properly mailed or otherwise delivered so as to be actually received (and not merely deposited in the mail) by Landlord (or the party identified in Section 1.11, or any other third party designated by Landlord) on or before the due date. If the Term commences or ends on a day other than the first or last day of a calendar month, the rent for any partial calendar month following the Commencement Date or preceding the end of the Term will be prorated. Tenant shall pay any such prorated portion for a partial calendar month at the beginning of the Term on the Commencement Date. Tenant shall pay any such prorated portion for a partial calendar month at the end of the Term on the first day of that calendar month.
3.03 Late Charges. Tenant’s failure to promptly pay sums due under this Lease may cause Landlord to incur unanticipated costs. The exact amount of those costs is impractical or extremely difficult to ascertain. The costs may include. but are not limited to, processing and accounting charges and late charges that may be imposed on Landlord by any ground lease or deed of trust encumbering the Premises. Payments due to Landlord under this Lease are not an extension of credit. Therefore. if any payment under this lease is not actually received on or before the due date (and not merely deposited in the mail), Landlord may, al Landlord’s option and to the extent allowed by applicable law, impose a Late Charge on any late payments in an amount equal to 10% of the amount of the past due payment (the “Late Charge”) after the payment is more iha1i five days past due. A Late Charge may be imposed only once on each past due payment. Any Late Charge will be in addition to Landlord’s other remedies for nonpayment of Rent. If any check tendered by Tenant under this Lease is dishonored for any reason, Tenant shall pay to Landlord a dishonored check fee of $30.00, plus (at Landlord’s option) a Late Charge as provided above until Good Funds (defined below) are received by Landlord The parties agree that any Late Charge and dishonored check fee represent a fair and reasonable estimate of the costs Landlord will incur by reason of the late payment or dishonored check. If there are any Late Charges, dishonored check fees, installments of Base Rent, and any other unpaid charges or reimbursements due to Landlord, then Landlord may apply any payments received from Tenant to any amounts due in any order Landlord may choose Notwithstanding the foregoing, Landlord will not impose a Late Charge as to the first late payment in any calendar year, unless Tenant fails to pay the late payment to Landlord within three business days after the delivery of a written notice from Landlord to Tenant demanding the late payment be paid. However, Landlord may impose a Late Charge without advance notice to Tenant on any subsequent late payment in the same calendar year.
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3.04 Security Deposit. Upon execution of this Lease, in addition to the installment of Base Rent due under Section 3.02, and in addition to any other amounts that are due from Tenant upon the execution of thi$ Lease, Tenant shall deliver to Landlord a Security Deposit in the amount stated in Section 1.08. Landlord may apply all or part of the Security Deposit to any unpaid Rent, and damages and charges for which Tenant is legally liable under this lease, and damages and charges that result from a breach of this Lease, including but not limited to, the cost to cure Tenant’s failure to comply with Section 7.05 and any other provision that requires Tenant to leave the Premises in a certain condition upon the expiration or termination of this Lease. If Landlord uses any part of the Security Deposit, Tenant shall restore the Security Deposit to its full amount within 10 days after Landlord’s written demand. Tenant’s failure to restore the full amount of the Security Deposit within the time specified will be a default under this Lease. No interest will be paid on the Security Deposit. Landlord will not be required to keep the Security Deposit separate from its other accounts, and no trust relationship is created with respect to the Security Deposit. After the expiration of this Lease, Landlord shall refund the unused portion of the Security Deposit, if any, to Tenant within 60 days after the date Tenant surrenders possession of the Premises and provides a written notice to Landlord of Tenant’s forwarding address for the purpose of refunding the Security Deposit The provisions of this Section will survive the expiration or termination of this Lease.
3.05 Good Funds Payments. If any two or more payments by check from Tenant to Landlord for Rent are dishonored and returned unpaid, thereafter Landlord may, at Landlord’s option, by the delivery of a written notice to Tenant. require that all future payments of Rent for the remaining Term of this Lease must be made by cash, certified check, cashier’s check, official bank check, money order, wire transfer or automatic electronic funds transfer (“Good Funds”), and that the delivery of Tenant’s personal or corporate check will no longer constitute payment of Rent under this Lease Any acceptance by Landlord of a payment for Rent by Tenant’s personal or corporate check thereafter will not be construed as a waiver of Landlord’s right to insist upon payment by Good Funds as set forth in this Section.
ARTICLE FOUR
TAXES
4.01 Payment by Landlord. Landlord shall pay the real estate taxes on the Premises during the Tern,, subject to reimbursement by Tenant pursuant to any other provision in this Lease.
4.02 Improvements by Tenant. If the real estate taxes levied against the Premises for the year in which the Term commences are increased as a result of any additions or improvements made by Tenant, or by Landlord at Tenant’s request, Tenant shall pay to Landlord upon demand the amount of the increase and continue to pay the increase during the Term. Landlord shall use reasonable efforts to obtain from the tax assessor a written statement of the amount of the increase due to such additions or improvements.
4.03 Joint Assessment. If the real estate taxes are assessed against the Premises jointly with other property that Is not part of the Premises, the real estate taxes applicable to the Premises will be equal to the amount bearing the same proportion to the aggregate assessment that the total square feet of building area in the Premises bears to the total square feet of building area included in the Joint assessment. If there are no improvements on the Property. or the other property, then land area will be used instead of building area for the calculation of the proportional assessment. If there are improvements on one of the jointly assessed properties but not on the other property, then the calculation of the proportional assessment must be done in a reasonable manner.
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4.04 Personal Property Taxes. Tenant shall pay all taxes assessed against trade fixtures, furnishings, equipment, inventory, products, or any other personal property belonging to Tenant. Tenant shall use reasonable efforts to have Tenant’s property taxed separately from the Premises. If any of Tenant’s property is taxed with the Premises, Tenant shall pay the taxes for Tenant’s property to Landlord within 15 days after Tenant receives a written statement from Landlord for the property taxes.
4.05 Waiver of Right to Protest Taxes. Unless otherwise provided in this Lease: (i) Landlord retains the right to protest the tax assessment of the Property, and Tenant waives the right to protest: and (ii) Tenant waives Landlord’s obligation to provide Tenant with a notice of the tax valuation of the Property.
ARTICLE FIVE
INSURANCE AND INDEM·NITY
5,01 Property Insurance. During the Term, Landlord shall maintain insurance policies covering damage to the Premises in an amount or percentage of replacement value as Landlord deems reasonable in relation to the age, location, type of construction and physical condition of the Premises and the availability of insurance at reasonable rates. The policies will provide protection against risks and causes of loss that Landlord reasonably deems necessary. Landlord may, at Landlord’s option, obtain insurance coverage for Tenant’s fixtures, equipment and improvements in or on the Premises. Promptly after tile receipt of a written request from Tenant, Landlord shall provide a certificate of insurance showing the insurance coverage then in effect Tenant shall, at Tenant’s expense. obtain and maintain insurance on Tenant’s fixtures,·equipment and improvements in or on the Premises as Tenant reasonably deems necessary to protect Tenant’s interest. Any property insurance carried by Landlord or Tenant will be for the sole benefit of the party carrying the insurance and under its sole control.
5.02 Increases in Premiums. Tenant shall not conduct or permit any operation or activity, or store or use any materials. in or around the Premises that would cause suspension or cancellation of any insurance policy carried by Landlord. If Tenant’s use or occupancy of the Premises causes Landlord’s insurance premiums to increase, then Tenant shall pay to Landlord. as additional Rent, the amount of the increase within 10 days after Landlord delivers written evidence of the increase to Tenant.
5.03 Liability Insurance. During the Term, Tenant shall maintain a commercial general liability insurance policy, at Tenant’s expense, insuring Tenant against liability arising out of the use or occupancy of the Premises, and naming Landlord as an additional insured The initial amounts of the insurance must be at least $1,000,000 or, if the following blank is completed $____________________________ for Each Occurrence, $2.000,000 or, if the following blank is completed $ ____________________General Aggregate per policy year, and $10,000 for Medical Expense. If Tenant’s liability insurance coverage Is less than $5,000,000, and if this box ☐ is checked, then Tenant must also maintain a commercial liability umbrella policy in amount to provide a combination of liability insurance coverage lo equal a $5.000,000 total limit. The coverage amounts will be subject to periodic increases as Landlord may reasonably determine from time to time. The amounts of the insurance will not limit Tenant’s liability or relieve Tenant of any obligation under this Lease. The policies must contain cross-liability endorsements and must insure Tenant’s performance of the indemnity provisions of Section 5.04. The policies must contain a provision that prohibits cancellation or modification of the policy except upon 30 days’ prior written notice to Landlord. Tenant shall deliver a copy of the policy or certificate of insurance to Landlord before the Commencement Date and before the expiration of the policy during the Term. If Tenant fails to maintain the policy, Landlord may elect to maintain the insurance at Tenant’s expense.
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5.04 Indemnity. Landlord will not be liable to Tenant or to Tenant’s employees, agents, invitees or visitors, or to any other person, for any injury to persons or damage to property on or about the Premises or any adjacent area owned by Landlord caused by the negligence or misconduct of Tenant, Tenant’s employees, subtenants, agents, licensees or concessionaires or any other person entering the Premises under express or implied invitation of Tenant, or arising out of the use of the Premises by Tenant and the conduct of Tenant’s business, or arising out of any breach or default by Tenant in the performance of Tenant’s obligations under this Lease Tenant hereby agrees to defend. indemnify and hold Landlord harmless from any loss, expense or claims arising out of such damage or injury. Tenant will not be liable for any injury or damage caused by the negligence or misconduct of Landlord, or Landlord’s employees or agents, and Landlord agrees to indemnify and hold Tenant harmless from any loss, expense or damage arising out of such damage or injury
5.05 Waiver of Subrogation. Each party to this Lease waives any and every claim that arises or may arise in its favor against the other party during the Term of this Lease for any and all loss of, or damage to, any of its property located within or upon, or constituting a part of, the Premises, to the extent the loss or damage is covered by and recoverable under valid and collectible insurance policies. These mutual waivers are in addition to, and not in limitation or derogation of. any other waiver or release contained in this Lease with respect to any loss of, or damage to, property of the parties. Inasmuch as these mutual waivers will preclude the assignment of any such claim by way of subrogation to an insurance company (or any other person), each party agrees to immediately give to each insurance company that has issued an insurance policy to such party written notice of the terms of such mutual waivers, and to cause the policies to be endorsed to prevent the invalidation of the insurance coverage by reason of these waivers.
ARTICLE SIX
USE OF PREMISES
6.01 Permitted Use. Tenant may use the Premises only for the Permitted Use stated in Section 1.10. Tenant acknowledges that: (i) the current use of the Premises or the improvements located on the Premises, or both, may not conform to city ordinances or restrictive covenants with respect to the permitted use, zoning, height limitations, setback requirements, minimum parking requirements, coverage ratio of improvements to land area, and other matters that may have a significant impact upon the Tenant’s intended use of the Premises; (ii) Tenant has independently investigated and verified to Tenant’s satisfaction the extent of any limitations or non-conforming uses of the Premises, and (iii) Tenant is not relying upon any representations of Landlord or the Brokers with respect to any such matters.
6.02 Compliance with Laws. Tenant shall comply with all governmental laws, ordinances and regulations applicable to the use of the Premises, and will promptly comply with all governmental orders and directives for the correction, prevention and abatement of nuisances and other activities in or upon, or connected with the Premises, all at Tenant’s sole expense, including any expense or cost resulting from the construction or installation of fixtures and improvements or other accommodations for handicapped or disabled persons required for compliance with governmental laws and regulations, including but not limited to the Texas Architectural Barriers Act (the “TABA”) and the Americans with Disabilities Act (the “ADA”). To the extent any alterations to the Premises are required by the TABA, the ADA or other applicable laws or regulations, Tenant shall bear the expense of the alterations. To the extent any alterations to areas of the Property outside the Premises are required by the TABA, the ADA or other applicable laws or regulations (for “path of travel” requirements or otherwise), Landlord shall bear the expense of the alterations.
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6.03
Certificate of Occupancy. If-required, Tenant shall apply for Certificate of Occupancy from the municipality in which
the Property is located before the Commencement Date, and obtain a Certificate of Occupancy before Tenant occupies the Premises. If
Tenant is unable to obtain a Certificate of Occupancy after making an application and diligently pursuing it. then Tenant may terminate
this Lease by delivering a written notice to Landlord unless either Landlord or Tenant is willing and able to cure the defects
that prevented the issuance of the Certificate of Occupancy. Either Landlord or Tenant may cure that are not presently existing on the
Premises, but neither of them have any obligation to do so (unless another provision of this Lease states otherwise). If Tenant delivers
a written termination notice to Landlord under This Section, and then any defects are cured and a Certificate of Occupancy is issued
within 15 days after Tenents delivered the notice, then this lease will remain in forrce. If this Lease is terminated because Landlord
and Tenant cannot get a Certificate of Occupancy, then Landlord will return to Tenant any prepaid rent and any Security Deposit, and
the parties will have no further obligations under this Lease. References in this Lease to a “Certificate of Occupancy”
mean a certificate of Occupancy sufficient to allow the Tenant to occupy the Premises for the Permitted Use.
6.04 Signs. Subject to 16.17. Without the prior written consent of Landlord, Tenant may not place any signs, ornaments or other objects on the Premises or the Property, including but not limited to the roof or exterior of the building or other improvements on the Property, or paint or otherwise decorate or deface the exterior of the building or other improvements on the Property. Any signs installed by Tenant must conform to applicable laws, deed restrictions, and other applicable requirements. Tenant must remove all signs, decorations and ornaments al the expiration or termination of this Lease, and must repair any damage and close any holes caused by installation or removal.
6.05 Utility Services. Unless otherwise provided in this Lease, Tenant shall pay the cost of all Utilities used for the Premises, and the cost of replacing light bulbs and tubes. Unless otherwise required by law, Landlord is the party entitled to designate utility and telecommunication service providers to the Property and the Premises. Landlord may, at Landlord’s option, allow Tenant to select the provider. If Tenant selects the provider, any access or alterations to the Property or the Premises necessary for the Utilities may be made only with Landlord’s prior consent. which Landlord will not unreasonably withhold or delay. If Landlord incurs any utility or connection charges that Tenant is responsible to pay and Landlord pays the charges, Tenant shall reimburse Landlord immediately upon receipt of a written notice from Landlord stating the amount of the charges.
6.06 Landlord’s Access. Landlord and Landlord’s agents will have the right to, upon reasonable advance notice, and without unreasonably interfering with Tenant’s business, enter the Premises: (a) to inspect the general condition and state of repair of the Premises, (b) to make repairs required or permitted under this Lease, (c) to show the Premises or the Property to any prospective tenant or purchaser, and (d) for any other reasonable purpose. If Tenant changes the locks on the Premises, Tenant must provide Landlord with a copy of each separate key upon Landlord’s request. During the last 150 days of the Term, Landlord and Landlord’s agents may erect signs on or about the Premises advertising the Premises for lease or for sale.
6.07 Possession. If Tenant pays the Rent, properly maintains the Premises, and complies with all other terms of this Lease, Tenant may occupy and enjoy the Premises for the full Term, subject to the provisions of this Lease.
6.08 Exemptions from Liability. Landlord will not be liable for any damage to the business (including any loss of income), goods, inventory, furnishings, fixtures, equipment, merchandise or other property of Tenant, Tenant’s· employees, invitees or customers, or for any injury to Tenant or Tenant’s employees, invitees, customers or any other person in or about the Premises, whether the damage or injury is caused by or results from: (a) fire, steam, electricity, water, gas or wind; (b) the breakage, leakage, obstruction or otter defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or any other cause; (c) conditions arising on or about the Premises or other portions of the Property, or from other sources or places; or (d) any act or omission of any other occupant of the Property. The provisions of this Section will not, however, exempt Landlord from liability for Landlord’s gross negligence or willful misconduct.
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ARTICLE SEVEN
PROPERTY CONDITION, MAINTENANCE, REPAIRS AND ALTERATIONS
7.01
Property Condition. Tenant accepts Property asets. Except as disclosed in writing by Landlord to Tenant before the execution
of this Lease, to the best of Landlord’s actual knowledge; (i) the Promises have no known latent structural or construction defects
of a material nature, and (ii) none of the improvements, to the Premises have been constructed with material -known to be a potential
health hazard to occupants of the Premise. Unless otherwise expressly set forth in this -this· Lease, Landlord represents that
on the Commencement Date (.and for a period of 30 days thereafter) (a) the fixtures and equipment serving the Premises are in good operating
condition, including the plumbing, electrical and lighting systems, any fire protection sprinkler system·, the HVAC (defined below)
systems and equipment,· the roof, skylights, doors, overhead doors, windows, dock levelers and elevators; and (b) the interior
of the Premises is in good condition Tenant will have a period of 30 days after the Commencement Date to inspect the Premises and notify
Landlord -m- -writing of any defects and maintenance, repairs or replacements required to the above named fixtures, equipment and interior
-Within a reasonable period of tirne after the time receipt of any such written notice from Tenant, Landlord shall, at Landlord’s
expense, correct the defects and perform the maintenance, repairs and replacements.
7.02 Acceptance of Premises. Tenant has inspected, or has had an opportunity to inspect, the Premises, before the execution of this Lease. Tenant has determined that the Premises may be used for the Permitted Use. Subject to the provisions in Section 7 01. and any other express obligations of Landlord in this Lease io construct any improvements, make repairs, or correct defects, Tenant agrees to accept the Premises in “AS IS” condition and with al! faults (other than latent defects). To the extent permitted by applicable law, Tenant waives any implied warranties of Landlord as to the quality or condition of the Premises or the Property, or as to the fitness or suitability of the Premises or the Property for any particular use.
7.03 Maintenance and Repairs. Landlord will not be required to perform any maintenance or repairs, or management services, in the Premises, except as otherwise provided in this Lease Tenant will be fully responsible, at Tenant’s expense, for all maintenance and repairs, and management services, other than those that are expressly set forth in this Lease as Landlord’s responsibility.
A. Landlord’s Obligations
(1) Subject to the provisions of Article Eight (Damage or Destruction) and Article Nine (Condemnation) and except for damage caused by any act or omission of Tenant, Landlord shall keep the roof, skylights, foundation, structural components and the structural portions of exterior walls of the Premises in good order, condition and repair Landlord will not be obligated to maintain or repair windows, doors, overhead doors, plate glass or the surfaces of walls In addition, Landlord will not be obligated to make any repairs under this Section until a reasonable time after receipt of written notice from Tenant of the need for repairs If any repairs are required to be made by Landlord Tenant shall, at Tenant’s sole cost and expense promptly remove Tenant’s furnishings, fixtures, inventory, equipment and other property, to the extent required to enable Landlord to make repairs Landlord’s liability under this Section will be limited to the cost of those repairs or corrections. Tenant waives the benefit of any present or future law that might give Tenant the right to repair the Premises at Landlord’s expense or to terminate this Lease because of the condition
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(2) All repairs, maintenance, management and other services to be performed by Landlord or Landlord’s agents involve the exercise of professional judgment by service providers, and Tenant expressly waives any claims against Landlord for breach of warranty arising from the performance of those services
B. Tenant’s Obligations. Subject to the provisions of Section 7.01, Section 7.03A, Article Eight (Damage or Destruction) and Article Nine (Condemnation), Tenant shall, at all times, keep all other portions of the Premises in good order, condition and repair (except for normal wear and tear), including, but not limited to, maintenance, repairs and ail necessary replacements of the windows, plate glass, doors, overhead doors, HVAC equipment, electrical and lighting systems, fire protection sprinkler system, dock levelers, elevators, interior and exterior plumbing, the interior and exterior of the Premises in general, pest control and extermination, down spouts gutters, paving, railroad siding, care of landscaping and regular mowing of grass In addition, Tenant shall at Tenant’s expense, repair any damage to any portion of the Property, including the roof, skylights, foundation, or structural components and exterior walls of the Premises, caused by Tenant’s acts or omissions. If Tenant fails to maintain and repair the Property as required by this Section. Landlord may, on 10 days’ prior written notice, enter the Premises and perform the maintenance or repair on behalf of Tenant, except that no notice is required in case of emergency, and Tenant shall reimburse Landlord immediately upon demand for all costs incurred in performing the maintenance or repair, plus a reasonable service charge.
C,HVAC Service. This Section pertains to the heating, ventilation and air-conditioning (“HVAC”) systems and equipment that service the Premises. [Check one box only.]
| ☐ | (1) Landlord is obligated to provide the HVAC services to the Premises only during the operating hours of the Property (as described below). | |
| ☐ | (2) Landlord will provide the HVAC services to the Premises during the operating hours of the Property (as described below) for no additional charge and will, at Tenant’s request, provide HVAC services to the Premises during other hours for an additional charge of $______________ per hour. Tenant will pay Landlord the charges under this paragraph promptly after receipt of Landlord’s invoice. Hourly charges are charged on a half-hour basis. Any partial hour will be rounded up to the next half hour Tenant will comply with Landlord’s procedures to make a request to provide the additional HVAC services in advance. | |
| ☑ | (3) Tenant will pay for the HVAC services under this Lease. For any HVAC system that services only the Premises. Tenant shall, at Tenant’s own cost and expense, enter into a regularly scheduled preventative maintenance and service contract for all such HVAC systems and equipment during the Term. If Tenant fails to enter into such a service contract acceptable to Landlord, Landlord may do so on Tenant’s behalf and Tenant agrees to pay Landlord the cost and expense thereof plus a reasonable service charge, periodically upon demand. |
D. Operating Hours of the Property. The operating hours of the Property are the times reasonably determined by Landlord unless they are specified here, [specify the operating hours of the Property including the days of the week, and whether Saturdays, Sundays and holidays are included]: ________________________________________________________________________________________________
E.Cleaning. Tenant must keep the Premises clean and sanitary and promptly dispose of all trash in appropriate receptacles Tenant will provide, at Tenant’s expense, janitorial services to the Premises, unless this box ☐ is checked, in which case Landlord will provide janitorial services to the Premises that are customary for the property type Tenant will maintain, at Tenant’s expense, any grease trap on the Property that Tenant uses including but not limited to periodic emptying and cleaning, as well as making any modification to the grease trap that may be necessary to comply with any applicable law
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7.04 Alterations, Additions and Improvements. Tenant may not create any openings in the roofer exterior walls without the prior written consent of Landlord. Tenant may not make any alterations, additions or improvements to the Premises (“Alterations”) without the prior written consent of Landlord. However, Tenant is not required to obtain the Landlords prior written consent for nomstructural Alterations that do not cost more than $5,000 and that do not modify or affect the roof, plumbing, HVAC systems or electrical systems. Consent for non-structural Alterations in excess of $5,000 or that modify or affect plumbing, HVAC systems or electrical systems will not be unreasonably withheld, conditioned or delayed by Landlord. Tenant may erect or install trade fixtures, shelves, bins, machinery, HVAC systems, and refrigeration equipment, provided that Tenant complies with all applicable governmental laws, ordinances, codes, and regulations At the expiration or termination of this Lease, Tenant may, subject to the restrictions of Section 7,05, remove items installed by Tenant, provided Tenant is not in default at the time of the removal and Tenant repairs, in a good and workmanlike manner, any damage caused by the installation or removal. Tenant shall pay for all costs incurred or arising out of Alterations and will not permit any mechanic’s or materialman’s lien to be filed against the Premises or the Property. Upon request by Landlord, Tenant shall deliver to Landlord proof of payment, reasonably satisfactory to Landlord, of all costs incurred in connection with any Alterations
7.05 Condition upon Termination. Upon the expiration or termination of this Lease, Tenant shall surrender the Premises to Landlord broom clean and in the same condition as received, except for normal wear and tear and any damage caused by a casualty that Tenant is not otherwise obligated to repair under any provision of this Lease. Tenant will not be obligated to repair any damage that Landlord is required to repair under Article Seven (Property Condition) or Article Eight (Damage or Destruction). In addition, Landlord may require Tenant to remove any Alterations before the expiration or termination of this Lease and to restore the Premises to their prior condition, all at Tenant’s expense. However, Tenant will not be required to remove any Alterations that were made with Landlord’s consent or tnat were otherwise permitted under the terms of this Lease. All Alterations that Tenant does not remove will become Landlord’s property upon the expiration or termination of this Lease In no event may Tenant remove any of the following items without Landlord’s prior written consent: (i) electrical wiring or power panels; (ii) lighting or lighting fixtures, (iii) wall coverings, drapes, blinds or other window coverings; (iv) carpets or other floor coverings; (v) HVAC equipment; (vi) plumbing equipment: (vii) fencing or gates, or (viii) any fixtures, equipment or other items that, if removed, would affect the operation or the appearance of the Property. However, Tenant may remove Tenant’s trade fixtures, equipment used in Tenant’s business, and personal property. The provisions of this Section will survive the expiration or termination of this Lease
ARTICLE EIGHT
DAMAGE OR DESTRUCTION
8.01 Notice. If any buildings or other improvements situated on the Property are damaged or destroyed by fire, flood windstorm, tornado or other casualty, Tenant shall immediately give written notice of the damage or destruction to Landlord.
8.02 Partial Damage. If the Premises are damaged by fire, tornado or other casualty, and rebuilding and repairs can be completed within 120 days after the date Landlord receives written notification from Tenant of the occurrence of the damage, then this Lease will not terminate, but Landlord shall proceed with reasonable diligence to rebuild and repair the Premises (other than leasehold improvements made by Tenant or any assignee, subtenant or other occupant of the Premises) to substantially the condition they were in before the damage. To the extent the Premises cannot be occupied (in whole or in -part) after the casualty, the Rent payable under this Lease during the period the Premises cannot be fully occupied will be adjusted equitably.
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If the casualty occurs during the last 18 months of the Term, Landlord will not be required to rebuild or repair the damage unless Tenant exercises Tenant’s renewal option (if any) within 15 days after the date Landlord receives written notification of the occurrence of the damage. If the casualty occurs during the last 18 months of the Term and Tenant does not so exercise Tenant’s renewal option, or if there is no renewal option in this Lease, Landlord may, at Landlord’s option, terminate this Lease by delivering a written termination notice to Tenant, in which case the Rent will be abated for the unexpired portion of the Term, effective on the date Landlord received written notification of the damage.
8.03 Substantial or Total Destruction. If the Premises are substantially or totally destroyed by fire tornado, or other casualty, or so damaged that rebuilding and repairs cannot reasonably be completed within 120 days after the date Landlord receives written notification from Tenant of the occurrence of the damage, either Landlord or Tenant may terminate this Lease by promptly delivering a written termination notice to the other party, in which event the monthly installments of Rent will be abated for the unexpired portion of the Term, effective on the date of the damage or destruction If neither party promptly terminates this Lease, Landlord shall proceed with reasonable diligence to rebuild and repair the Premises (except that Tenant shall rebuild and repair Tenant’s fixtures and improvements in the Premises). To the extent the Premises cannot be occupied (in whole or in part) after the casualty, the Rent payable under this Lease during the period the Premises cannot be fully occupied will be adjusted equitably
ARTICLE NINE
CONDEMNATION
If, during the Term, all or a substantia! part of the Premises are taken for any public or quasi-public use under any governmental law, ordinance or regulation or by right of eminent domain, or are conveyed to the condemning authority under threat of condemnation, this Lease will terminate and the monthly installments of Rent will be abated during the unexpired portion of the Term, effective on the date of the taking. If less than a substantial part of the Premises is taken for public or quasi-public use under any governmental law. ordinance or regulation, or by right of eminent domain, or is conveyed to the condemning authority under threat of condemnation. Landlord shall promptly, at Landlord’s expense, restore and reconstruct the Premises (other than leasehold improvements made by Tenant or any assignee, subtenant or other occupant of the Premises) in order to make the Premises reasonably suitable for the Permitted Use The Rent payable under this Lease during the unexpired portion of the Term will be adjusted equitably. If there is a taking of the Property that has a material, adverse effect on the operation of Tenant’s business in the Premises, then the Rent will be adjusted equitably Landlord and Tenant will each be entitled to receive and retain such separate awards and portions of lump sum awards as may be allocated to their respective interests in any condemnation proceeding The termination of this Lease will not affect the rights of the parties to those awards.
ARTICLE TEN
ASSIGNMENT AND SUBLETTING
Tenant may not assign this Lease or sublet the Premises or any portion thereof, without the prior written consent of Landlord, which consent will not be unreasonably withheld or delayed. Any assignment or subletting will be expressly subject to all terms and provisions of this Lease, including the provisions of Section 6 01 pertaining to the use of the Premises In the event of any assignment or subletting, Tenant will remain fully liable for the full performance of all of Tenant’s obligations under this Lease Tenant may not assign Tenant’s rights under this Lease or sublet the Premises without first obtaining a written agreement from the assignee or sublessee whereby the assignee or sublessee agrees to assume the obligations of Tenant under this Lease and to be bound by the terms of this Lease If a Default occurs white the Premises is assigned or sublet, Landlord may, at Landlord’s option, in addition to any other Page 17 remedies provided in this Lease or by law, collect directly from the assignee or subtenant all rents becoming due under the terms of the assignment or subletting and apply the rents against any sums due to Landlord under this Lease No direct collection by Landlord from any assignee or subtenant will release Tenant from Tenant’s obligations under this Lease
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ARTICLE ELEVEN
DEFAULT AND REMEDIES
11.01 Default. Each of the following events is a default under this Lease (a “Default”)
| A. | Failure of Tenant to pay any installment of the Rent or other sum payable to Landlord under this Lease on the date that it is due. and the continuance of that failure for a period of five days after Landlord delivers written notice of the failure to Tenant. This clause will not be construed to permit or allow a delay in paying Rent beyond the due date and will not affect Landlord’s right to impose a Late Charge as permitted in Section 3 03: | |
| B. | Failure of Tenant to comply with any term, condition or covenant of this Lease, other than this payment of Rent or other sum of money, and the continuance of that failure for a period of 30 days after Landlord delivers written notice of the failure to Tenant, | |
| C. | Failure of Tenant or any guarantor of Tenant’s obligations under this Lease to pay its debts as they become due or an admission in writing of inability to pay its debts, or the making of a general assignment for the benefit of creditors; | |
| D. | The commencement by Tenant or any guarantor of Tenant’s obligations under this Lease of any case, proceeding or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property; | |
| E. | The commencement of any case, proceeding or other action against Tenant or any guarantor of Tenants obligations under this Lease seeking to have an order for relief entered against it as debtor, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and Tenant or any guarantor: (i) fails to obtain a dismissal of such case, proceeding, or other action within 60 days of its commencement; or (ii) converts the case from one chapter of the Federal Bankruptcy Code to another chapter: or (iii) is the subject of an order of relief that is not fully stayed within seven business days after the entry thereof; and | |
| F. | Vacancy or abandonment by Tenant of any substantial portion of the Premises or cessation of the use of the Premises for the purpose leased, and the continuance of that vacancy, abandonment or cessation for a period of 30 days after Landlord delivers a written notice to Tenant. |
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11.02 Remedies. Upon the occurrence of any Default listed in Section 11.01 Landlord may pursue any one or more of the following remedies without any prior notice or demand
| A. | Landlord may terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to surrender the Premises, Landlord may, without prejudice to any other remedy that Landlord may have for possession of the Premises or Rent in arrears, enter upon and take possession of the Premises and expel Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for any claim for damages due to the termination of this Lease or termination of possession Tenant shall pay to Landlord on demand the amount of all Rent and loss and damage Landlord may suffer by reason of the termination or inability to relet the Premises up to the date of termination, in addition to any other liabilities that survive the termination of this Lease. | |
| B. | Landlord may enter upon and take possession of the Premises, without terminating this Lease and without being liable for any claim for damages due to termination of possession, and expel Tenant and any other person who may be occupying the Premises or any part thereof Landlord may relet the Premises and receive rent from the new occupant Tenant agrees to pay to Landlord monthly or on demand from time to time, any deficiency that may arise by reason of any such reletting. In determining the amount of the deficiency, professional service fees, reasonable attorneys’ fees, court costs, remodeling expenses and other costs of reletting will be subtracted from the amount of rent received from the new occupant. | |
| C. | Landlord may enter upon the Premises, without terminating this Lease and without being liable for any claim for damages due to such entry, and do whatever Tenant is obligated to do under the terms of this Lease. Tenant agrees to pay Landlord on demand for expenses that Landlord incurs in performing Tenant’s obligations under this Lease together with interest thereon at the rate of 12% per annum from the date spent until paid | |
| D. | Landlord may sue Tenant for damages for breach of this Lease after Tenant’s Default and abandonment of the Premises, or after Landlord terminates Tenant’s possession and Tenant vacates the Premises, in which case the measure of damages is the sum of (i) the unpaid Rent up to the date of the abandonment or vacancy, plus (ii) the difference between the Rent for the remainder of the Term after abandonment or vacancy, and the fair market rental value of this Lease for the remainder of the Term after abandonment or vacancy, such difference to be discounted to present value at a rate equal to the rate of interest that is allowed by law in the State of Texas when the parties to a contract have not agreed on any particular rate of interest (or, in the absence of such law, at the rate of 6% per annum) Neither the enforcement or collection by Landlord of those amounts nor the payment by Tenant of those amounts will constitute a waiver by Landlord of any breach, existing or in the future, of any of the terms or provisions of this Lease by Tenant or a waiver of any rights or remedies that the Landlord may have with respect to any breach. | |
| E. | In addition to the foregoing remedies, Landlord may change or modify the locks on the Premises if Tenant fails to pay the Rent when due. Landlord will not be obligated to provide another key to Tenant or allow Tenant to regain entry to the Premises unless and until Tenant pays Landlord all Rent that is delinquent Tenant agrees that Landlord will not be liable for any damages resulting to the Tenant from the lockout When Landlord changes or modifies the locks, Landlord or Landlord’s agent shall post a written notice in accordance with Section 93.002 of the Texas Property Code, or its successor statute. Tenant may be subject to legal liability if Tenant or Tenant’s representative tampers with any lock after the locks have been changed or modified. | |
| F. | No re-entry or taking possession of the Premises by Landlord will be construed as an election to terminate this Lease, unless a written notice of that intention is given to Tenant. Notwithstanding any re-entry, taking possession or reletting, Landlord may. at any time thereafter, elect to terminate this Lease for a previous Default. Pursuit of any of the foregoing remedies will not preclude pursuit of any other remedies provided by law, nor will pursuit of any remedy provided in this Lease constitute a forfeiture or waiver of any Rent due to Landlord under this Lease or of any damages accruing to Landlord by reason of the violation of any of the provisions in this Lease Failure of Landlord to declare any Default immediately upon its occurrence, or failure to enforce one or more of Landlord’s remedies, or forbearance by Landlord to enforce one or more of Landlord’s remedies upon a Default, will not be deemed to constitute a waiver of any of Landlord’s remedies for any Default Pursuit of any one of the remedies will not preclude pursuit by Landlord of any of the other remedies provided in this Lease. The loss or damage that L and lord may suffer by reason of a Default by Tenant under this Lease, or the deficiency from any reletting, will include the expense of taking possession and any repairs performed by Landlord after a Default by Tenant. If Landlord terminates this Lease at any time for any Default, in addition to other Landlord’s remedies, Landlord may recover from Tenant all damages Landlord may incur by reason of the Default, including the cost of recovering the Premises and the Rent then remaining unpaid. |
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| G. | Nothing in this Lease will be construed as imposing any duty upon Landlord to relet the Premises. Landlord will have no duty to mitigate Landlord’s damages except as required by applicable law. Any duty imposed by law on Landlord to mitigate damages after a Default by Tenant will be satisfied if Landlord undertakes to lease the Premises to another tenant (a “Substitute Tenant”) in accordance with the following criteria. |
(1) Landlord will have no obligation to solicit or entertain negotiations with any other prospective tenant for the Premises until Landlord obtains full possession of the Premises including, without limitation, the final and unappealable legal right to relet the Premises free of any claim of Tenant,
(2) Landlord will not be obligated to lease or show the Premises on a priority basis, or offer the Premises to a prospective tenant when other space in the Property suitable for the prospective tenant’s use is (or soon will be) available.
(3) Landlord will not be obligated to lease ihe Premises to a Substitute Tenant for an amount less than the current fair market rent then prevailing for similar uses in comparable buildings in the same market area as the Property, nor will Landlord be obligated to enter into a new lease under other terms and conditions that are unacceptable to Landlord under Landlord’s then current leasing policies for comparable space in the Property;
(4) Landlord will not be obligated to enter into a lease with a Substitute Tenant whose use would:
(i) violate any restriction, covenant, or requirement contained in the lease of another tenant of the Property;
(ii) adversely affect the reputation of the Property, or
(iii) be incompatible with other uses of the Property.
(5) Landlord will not be obligated to enter into a lease with any Substitute Tenant that does not have, in Landlord s reasonable opinion, sufficient financial resources to pay the Rent under the new lease and operate the Premises in a first class manner; and
(6) Landlord will not be required to spend any amount of money to alter, remodel or otherwise make the Premises suitable for use by a proposed Substitute Tenant unless.
(i) Tenant pays any such sum to Landlord in advance of Landlord’s execution of a tease with the Substitute Tenant (which payment will not be in lieu of any damages or other sums to which Landlord may be entitled as a result of Tenant’s Default under this Lease); or
(ii) Landlord, in Landlord’s reasonable discretion, determines that any such expenditure is financially justified in connection with entering into a lease with the Substitute Tenant.
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| H. | No right or remedy of Landlord is intended to be exclusive of any other right or remedy, and each and every right and remedy will be cumulative and in addition to any other right or remedy now or hereafter existing under this Lease, at law. in equity or by statute. Landlord will not be liable for any damages resulting to Tenant from any right or remedy exercised by Landlord, regardless of the cause, even if it is caused by the sole, joint or concurrent negligence of Landlord. |
11.03 Notice of Default. Tenant shall give written notice of any failure by Landlord to perform any of Landlord’s obligations under this Lease to Landlord and to any ground lessor, mortgagee or beneficiary under any deed of trust encumbering the Premises whose name and address have been furnished to Tenant in writing. Landlord will not be in default under this Lease unless Landlord (or the ground lessor, mortgagee or beneficiary) fails to cure the nonperformance within 30 days after receipt of Tenant’s notice. However, if the nonperformance reasonably requires more than 30 days to cure, Landlord will not be in default if the cure is commenced within the 30-day period and is thereafter diligently pursued to completion.
11.04 Limitation of Landlord’s Liability. As used in this Lease, the term “Landlord” means only the current owner or owners of the fee title to the Premises, or the leasehold estate under a ground lease of the Premises, at the time in question. Each Landlord is obligated to perform the obligations of Landlord under this Lease only during the time such Landlord owns such title or estate. Any Landlord who transfers its title, estate or other interest is relieved of all liability with respect to the obligations of Landlord under this Lease accruing on or after the date of the transfer, and Tenant agrees to recognize the transferee as Landlord under this Lease. However, each Landlord shall deliver to its transferee the Security Deposit held by Landlord, to the extent the Security Deposit has not then been applied under the terms of this Lease.
ARTICLE TWELVE
LANDLORD’S CONTRACTUAL LIEN
In addition to the statutory Landlord’s lien, Tenant hereby grants to Landlord a security interest to secure payment of all Rent and other sums of money becoming due under this Lease from Tenant, upon all inventory, goods, wares, equipment, fixtures, furniture and all other personal property of Tenant situated in or on the Premises, together with the proceeds from the sale thereof. Tenant may not remove such property without the consent of Landlord until all Rent in arrears and other sums then due to Landlord under this Lease have been paid. Upon the occurrence of a Default, Landlord may, in addition to any other remedies provided in this Lease or by law, enter upon the Premises and take possession of any and all goods, wares, equipment, fixtures, furniture and other personal property of Tenant situated in or on the Premises without liability for trespass or conversion, and sell the property at public or private sales, with or without having the property at the sale, after giving Tenant reasonable notice of the time and place of any such sale. Unless otherwise required by law, notice to Tenant of the sale will be deemed sufficient if given in the manner prescribed in this Lease at least 10 days before the time of the sale. Any public sale made under this Article will be deemed to have been conducted in a commercially reasonable manner if held on the Premises or where the property is located, after the time, place and method of sale and a general description of the types of property to be sold have been advertised in a daily newspaper published in the county where the Premises is located for five consecutive days before the date of the sale Landlord or its assigns may purchase at a public sale and. unless prohibited by law. at a private sale. The proceeds from any disposition pursuant to this Article, less any and all expenses connected with the taking of possession, holding and selling of the property (including reasonable attorneys’ fees and expenses), will be applied as a credit against the indebtedness secured by the security interest granted in this Article. Any surplus will be paid to Tenant or as otherwise required by law, and Tenant shall promptly pay any deficiencies. Landlord is authorized to file a financing statement to perfect the security interest of Landlord in the aforementioned property and proceeds thereof under the provisions of the Texas Business and Commerce Code in effect in the State of Texas. Provided Tenant is not in default under any of the terms of this Lease, upon written request by Tenant, Landlord shall deliver a written subordination of Landlord’s statutory and contractual liens to any liens and security interests securing any institutional third party financing of Tenant. Landlord shall not unreasonably withhold or delay the delivery of Landlord’s written subordination.
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ARTICLE THIRTEEN
PROTECTION OF LENDERS
13.01 Subordination and Attornment. Landlord may subordinate this Lease to any future ground Lease, deed of trust or mortgage encumbering the Premises, and advances made on the security thereof and any renewals, modifications, consolidations, replacements or extensions thereof, whenever made or recorded. Landlord’s right to subordinate is subject to Landlord providing Tenant with a written Subordination, Non-disturbance and Attornment Agreement from the ground lessor, beneficiary or mortgagee wherein Tenant’s right to peaceable possession of the Premises during the Term will not be disturbed if Tenant pays the Rent and performs all of Tenant’s obligations under this Lease and is not otherwise in default, in which case Tenant shall attorn to the transferee of or successor to Landlord’s interest in the Premises and recognize the transferee or successor as Landlord under this Lease. Tenant’s rights under this Lease are subordinate to any existing ground lease, deed of trust or mortgage encumbering the Premises. However, if any ground lessor, beneficiary or mortgagee elects to have this Lease be superior to its ground lease, deed of trust or mortgage and gives Tenant written notice thereof, then this Lease will be deemed superior to the ground lease, deed of trust or mortgage whether this Lease is dated prior or subsequent to the date of the ground lease, deed of trust or mortgage or the date of recording thereof.
13.02 Signing of Documents. Tenant shall sign and deliver any document that may be requested to evidence any attornment or subordination, or any agreement to attorn or subordinate, as long as the document is consistent with the provisions of Section 13,01. If Tenant fails to do so within 10 days after a written request. Tenant hereby irrevocably appoints Landlord as Tenant’s attorney-in-fact to execute and deliver the attornment or subordination document.
13.03 Estoppel Certificates.
| A. | Upon Landlord’s written request, Tenant shall execute and deliver to Landlord a written statement (an “Estoppel Certificate”) certifying: |
(1) whether Tenant is an assignee or subtenant,
(2) the Expiration Date of this Lease;
(3) the number of renewal options under this Lease, if any, and the total period of time covered by the renewal options;
(4) that none of the terms or provisions of this Lease have been changed since the original execution of this Lease, except as shown on any attached amendments or modifications;
(5) that no default exists under the terms of this Lease by either Landlord or Tenant;
(6) that Tenant has no claim against Landlord under this Lease and has no defense or right of offset against collection of Rent or other charges accruing under this Lease;
(7) the amount and payment date of the last payment of Rent, the period of time covered by that payment, and the amount of any rental payments made in advance:
(8) the amount of any Security Deposit and other deposits, if any; and
(9) the identity and address of any guarantor of this Lease.
Tenant shall deliver the statement to Landlord within 10 days after Landlord’s request. Landlord may forward any such statement to any prospective purchaser or lender of the Premises. The purchaser or lender may rely conclusively upon the statement as true and correct.
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| B. | If Tenant does not deliver the Estoppel Certificate to Landlord within the 10-day period. Landlord, and any prospective purchaser or lender, may conclusively presume and rely upon the following facts: (1) that the terms and provisions of this Lease have not been changed except as otherwise represented by Landlord; (2) that this Lease has not been terminated except as otherwise represented by Landlord; (3) that not more than one monthly installment of Base Rent and other charges have been paid in advance; (4) there are no claims against Landlord nor any defenses or rights of offset against collection of Rent; and (5) that Landlord is not in default under this Lease. In such event, Tenant will be estopped from denying the truth of the presumed facts. | |
| C. | Also, if Tenant does not deliver the Estoppel Certificate to Landlord within the 10-day period, Landlord may deliver a written notice to Tenant stating that Tenant must deliver an Estoppel Certificate under this Section within five days after Tenant receives the notice. If Tenant does not deliver an Estoppel Certificate to Landlord within five days after Tenant receives the notice, then Tenant’s failure to deliver an Estoppel Certificate will constitute a Default under this Lease, notwithstanding any longer period of time under Section 11.01 that Tenant would otherwise be allowed to cure a failure before the failure would become a Default. |
13.04 Tenant’s Financial Condition. Within 10 days after a written request from Landlord, but not more than two times in any calendar year. Tenant shall deliver to Landlord financial statements as are reasonably required by Landlord to verify the net worth of Tenant, or any assignee, subtenant, or guarantor of Tenant. In addition, Tenant shall deliver to any lender designated by Landlord any financial statements required by the lender to facilitate the financing or refinancing of the Premises. Tenant represents to Landlord that each financial statement is a true, complete, and accurate statement as of the date of the statement. All financial statements will be confidential and will be used only for the purposes set forth in this Lease
ARTICLE FOURTEEN
ENVIRONMENTAL REPRESENTATIONS AND INDEMNITY
14.01 Tenant’s Compliance with Environmental Laws. Tenant, at Tenant’s expense, shall comply with all laws, rules, orders, ordinances, directions regulations and requirements of Federal, State, county and municipal authorities pertaining to Tenant’s use of the Property and with the recorded covenants, conditions and restrictions, regardless of when they become effective, including, without limitation, all applicable Federal, State and local laws, regulations or ordinances pertaining to air and water quality, Hazardous Materials (as defined in Section 14.05), waste disposal, air emissions and other environmental matters, all zoning and other land use matters, and with any direction of any public officer or officers, pursuant to law, which impose any duty upon Landlord or Tenant with respect to the use or occupancy of the Property.
14.02 Tenant’s Indemnification. Tenant shall not cause or permit any Hazardous Materials to be brought upon, kept or used in or about the Property by Tenant, or Tenant’s agents, employees, contractors or invitees without the prior written consent of Landlord. If the presence of Hazardous Materials on the Property caused or permitted by Tenant results in contamination of the Property or any other property, or if contamination of the Property or any other property by Hazardous Materials otherwise occurs for which Tenant is legally liable to Landlord for damage resulting therefrom, then Tenant shall indemnify, defend and hold Landlord harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Property, damages for the loss or restriction on use of rentable or unusable space or of any amenity or appurtenance of the Property, damages arising from any adverse impact on marketing of building space or land area, sums paid in settlement of claims, reasonable attorneys’ fees, court costs consultant fees and expert fees) that arise during or after the Term as a result of the contamination. This indemnification of Landlord by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions or any clean-up, remedial work, removal or restoration work required by any Federal, State or local government agency because of Hazardous Materials present in the soil or ground water on or under the Property Without limiting the foregoing, if the presence of any Hazardous Materials on the Property (or any other property) caused or permitted by Tenant results in any contamination of the Property, Tenant shall promptly take all actions at Tenant’s sole expense as are necessary to return the Property to the condition existing prior to the introduction of any such Hazardous Materials, provided that Landlord’s approval of such actions is first obtained.
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14.03 Landlord’s Representations. Landlord represents, to the best of Landlord’s actual knowledge, that: (i) any handling, transportation, storage, treatment or usage of Hazardous Materials that has occurred on the Property to date has been in compliance with all applicable Federal, State, and local laws, regulations and ordinances; and (ii) no leak, spill, release, discharge, emission or disposal of Hazardous Materials has occurred on the Property to date and that the soil or groundwater on or under the Property is free of Hazardous Materials as of the Commencement Date, unless expressly disclosed by Landlord to Tenant in writing.
14.04 Landlord’s Indemnification. Landlord hereby indemnifies, defends and holds Tenant harmless from any claims, judgments, damages penalties, fines, costs, liabilities, (including sums paid in settlements of claims) or loss, including, without limitation, reasonable attorneys’ fees, court costs, consultant fees, and expert fees, which arise during or after the Term of this Lease from or in connection with the presence or suspected presence of Hazardous Materials in the soil or groundwater on or under the Property, unless the Hazardous Material is released by Tenant or is present as a result of the negligence or willful conduct of Tenant. Without limiting the generality of the foregoing, the indemnification provided by this Section will specifically cover costs incurred in connection with any investigation of site conditions or any clean-up, remedial work, removal or restoration work required by any Federal, State or local governmental authority.
14.05 Definition. For purposes of this Lease, the term “Hazardous Materials” means any one or more pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, solvent or oil as defined in or pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, as amended, the Clean Water Act, as amended the Water Pollution Control Act, as amended, the Solid Waste Disposal Act, as amended, or any other Federal, State or local environmental law, regulation, ordinance, or rule, whether existing as of the date of this Lease or subsequently enacted.
14.06 Survival. The representations and indemnities contained in this Article Fourteen will survive the expiration or termination of this Lease.
ARTICLE FIFTEEN
PROFESSIONAL SERVICE FEES
15.01 Amount and Manner of Payment. Professional service Fees due to the Principal Broker and Cooperating Broker (together, the “Brokers”) will be calculated and paid as follows:
| A. | Lump Sum. Unless the box for Section 15.01B is checked in Section 1.14A, then Landlord agrees to pay to each of the Brokers a lump sum professional service Fee for negotiating this Lease, plus any applicable sales taxes, equal to: (i) the percentages stated in Section 1.14A of the total Base Rent to become due to Landlord during the Term, if the blanks for percentages are completed; or (ii) the amounts per square foot in the Premises stated in Section 1.14A, if the blanks for amounts per square foot are completed. The Fees will be paid to the Brokers (i) one-half on the date of final execution of this Lease, and (ii) the balance on the Commencement Date of this Lease. | |
| B. | Monthly. If the box for this Section 15.01B is checked in Section 1 14A, then Landlord agrees to pay to each of the Brokers a monthly professional service Fee for negotiating this Lease, plus any applicable sales taxes, equal to the percentages stated in Section 1.14A of each monthly Base Rent payment at the time the payment is due. |
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15.02 Payments on Renewal, Expansion or New Lease. Subject to the termination date stated in this Section below, if Tenant or Tenant’s successors or assigns: (a) exercises any right or option to renew or extend the Term (whether contained in this Lease or in any amendment to this Lease) or enters into a new lease covering the Premises a portion of the Premises, or the Premises and additional space; or (b) enters into any new lease, expansion or other rental agreement as to any premises located on or constituting all or part of any real property owned by Landlord adjacent to the Property, then Landlord shall pay to each of the Brokers an additional Fee covering the full period of the renewal, extension, new lease, expansion or other rental agreement. The additional Fees will be due on the date of exercise of a renewal option, or the date of execution in the case of a new lease, expansion or other agreement. The additional Fees will be computed and paid under Section 15.01 A or Section 15.01B above (whichever has been made applicable under Section 1.14), as if a new lease had been made for such period of time. The Brokers’ right to receive these additional Fees will terminate on the date that is 10 years after the expiration of the Term of this Lease, as amended or extended
15.03 Payments on Sale. Subject to the termination date stated in this Section below, if Tenant or Tenant’s successors or assigns, purchases the Premises pursuant to a purchase option contained in this Lease (or in any amendment to this Lease or any other agreement) or otherwise purchases the Premises, the Property or any portion of either the Premises or the Property, then Landlord shall pay to each of the Brokers a Fee equal to the percentages stated in Section 1 14B of the purchase price, payable in Good Funds at the closing. Upon the closing of a sale to Tenant, any monthly lease Fees will terminate upon payment of the Fee on the sale. The Brokers’ right to receive the Fees set forth in this Section 15.03 will terminate on the date that is 10 years after the expiration of the Term of this Lease, as amended or extended
15.04 Other Brokers. Both Landlord and Tenant represent to the other party that they have had no dealings with any person, firm or agent in the negotiation of this Lease other than the Broker(s) named in this Lease, and no other broker, agent, person, firm or entity other than the Broker(s) is entitled to any commission or fee in connection with this Lease.
15.05 Landlord’s Liability. Landlord will be liable for payment of all Fees solely to the Brokers, and Landlord will not be obligated to pay any claims by any undisclosed broker The Principal Broker may pay a portion of the Fee to any Cooperating Broker pursuant to a separate agreement between the Brokers
15.03 Joint Liability of Tenant. If Tenant enters into any new lease, extension, renewal, expansion, or other agreement to rent, occupy, or purchase any property described in Section 15.02 or Section 15.03 within the time specified in those Sections, the negotiations must be communicated through the Principal Broker (which may be done through the Cooperating Broker), otherwise Tenant will be jointly and severally liable with Landlord for any payments due or to become due to the Principal Broker.
15.07 Assumption on Sale. In the event of a sale or other transfer of the Premises by Landlord, Landlord shall assign this Lease to the purchaser or other transferee, and obtain from the purchaser or other transferee an Assumption Agreement in recordable form whereby the purchaser or other transferee agrees to pay the Brokers all Fees payable under this Lease. Landlord shall deliver a fully executed original counterpart of the Assumption Agreement to each of the Brokers upon the closing of the sale or other transfer of the Premises. Landlord will be released from personal liability for subsequent payments of Fees payable under this Lease only upon the delivery of the Assumption Agreement to the Brokers.
15.08 Termination. Landlord and Tenant agree that the Brokers are third party beneficiaries of this Lease with respect to the Fees, and that no change may be made by Landlord or Tenant as to the time of payment, amount of payment or the conditions for payment of the Fees without the written consent of the Brokers. The termination of this Lease by the mutual agreement of Landlord and Tenant will not affect the right of the Brokers to continue to receive the Fees agreed to be paid under this Lease, just as if Tenant had continued to occupy the Premises and had paid the Rent during the entire Term. Amendment or termination of this Lease under Article Eight (Damage or Destruction) and Article Nine (Condemnation) will not amend or terminate the Brokers’ right to collect the Fees.
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
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15.09 Intermediary Relationship.
| A. | If either of the Brokers has indicated in Section 1.12 or Section 1.13 or otherwise that they are acting as an intermediary, then Landlord and Tenant consent to the intermediary relationship, authorize such Broker or Brokers to act as an intermediary between Landlord and Tenant in connection with this Lease and acknowledge that the source of any expected compensation to the Brokers will be Landlord, and the Brokers may also be paid a fee by Tenant. A broker, and any broker or salesperson appointed to communicate with and carry out instructions of one party, who acts as an intermediary is required to act fairly and impartially, and may not: |
| (1) | disclose to Tenant that Landlord will accept a rent less than the asking rent, unless otherwise instructed in a separate writing by Landlord; |
| (2) | disclose to Landlord that Tenant will pay a rent greater than the rental submitted in a written offer to Landlord, unless otherwise instructed in a separate writing by Tenant; |
| (3) | disclose any confidential information, or any information a party specifically instructs the real estate broker or salesperson in writing not to disclose, unless: |
| (a) | the broker or salesperson is otherwise instructed in a separate writing by the respective party; |
| (b) | the broker or salesperson is required to disclose the information by the Texas Real Estate License Act or a court order; or |
| (c) | the information materially relates to the condition of the property; |
| (4) | treat a party to the transaction dishonestly; or |
| (5) | violate the Texas Real Estate License Act. |
| B. | Appointments. Each Broker is authorized to appoint, by providing written notice to the parties, one or more license holders associated with the Broker to communicate with and carry out instructions of one party, and one or more other license holders associated with the Broker to communicate with and carry out instructions of the other party An appointed license holder may provide opinions and advice during negotiations to the party to whom the license holder is appointed |
ARTICLE SIXTEEN
MISCELLANEOUS AND ADDITIONAL PROVISIONS
16.01 Disclosure. Landlord and Tenant understand that a real estate broker is not an expert in matters of law tax. financing surveying, hazardous materials, engineering, construction, safety, zoning, land planning, architecture, the TABA, or the ADA. The Brokers hereby advise Tenant to seek expert assistance on such matters Brokers do not investigate a property’s compliance with building codes, governmental ordinances, statutes and laws that relate to the use or condition of a property and its construction, or that relate to its acquisition If the Brokers provide names of consultants or sources for advice or assistance, Tenant acknowledges that the Brokers do not warrant the services of the advisors or their products and cannot warrant the suitability of property to be acquired or leased Furthermore, the Brokers do not warrant that the Landlord will disclose any or all property defects, although the Brokers will disclose to Tenant any actual knowledge possessed by Brokers regarding defects of the Premises and the Property. In this regard, Tenant agrees to make all necessary and appropriate inquiries and to use diligence in investigating the Premises and the Property before signing this Lease Tenant acknowledges and agrees that neither the Principal Broker nor any Cooperating Broker has made any representation to Tenant with respect to the condition of the Premises, and that Tenant is relying exclusively upon Tenant’s own investigations and the representations of Landlord, if any, with respect to the condition of the Premises Landlord and Tenant agree to hold the Brokers harmless from any and all damages, claims, costs and expenses resulting from or related to Landlord’s furnishing to the Brokers any inaccurate information with respect to the Premises, or Landlord’s concealing any material information with respect to the Premises. Landlord and Tenant hereby agree to indemnify and defend the Brokers against any and all liabilities, claims, debts, damages, costs, or expenses, including but not limited to reasonable attorneys’ fees and court costs, related to or arising out of or in any way connected to (a) representations concerning matters properly the subject of advice by experts, or (b) any dispute directly between Landlord and Tenant regarding this Lease. In addition, to the extent permitted by applicable law, the Brokers’ liability for errors, omissions, or negligence is limited to the return of the Fee, if any, paid to the Brokers pursuant to this Lease
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
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16.02 Force Majeure. if performance by Landlord of any term, condition or covenant in this Lease is delayed or prevented by any Act of God, strike, lockout, shortage of material or labor, restriction by any governmental authority, civil riot, flood, or any other cause not within the control of Landlord, the period for performance of the term, condition or covenant will be extended for a period equal to the period Landlord is so delayed or prevented.
16.03 Interpretation. The captions of the Articles or Sections of this Lease are to assist the parties in reading this Lease and are not part of the terms or provisions of this Lease Whenever required by the context of this Lease, the singular will include the plural and the plural will include the singular, and the masculine, feminine and neuter genders will each include the other.
16.04 Waivers. Any waivers of any provisions of this Lease must be in writing and signed by the waiving party Landlord’s delay or failure to enforce any provisions of this Lease or Landlord’s acceptance of late installments of Rent will not be a waiver and will not prevent Landlord from enforcing that provision or any other provision of this Lease in the future No statement on a check from Tenant or in a letter accompanying a check will be binding on Landlord. Landlord may, with or without notice to Tenant, negotiate, cash, or endorse the check without being bound to the conditions of any such statement.
16.05 Severability. A determination by a court of competent jurisdiction that any provision of this Lease is invalid or unenforceable will not invalidate the remainder of that provision or any other provision of this Lease, which will remain in full force and effect.
16.06 Joint and Several Liability. All parties signing this Lease as Tenant will be jointly and severally liable for all obligations of Tenant. Tenant will be responsible for the conduct, acts and omissions of Tenant’s agents, employees, customers, contractors, invitees, agents, successors or others using the Premises with Tenant’s express or implied permission
16.07 Amendments or Modifications. This Lease is the only agreement between the parties pertaining to the lease of the Premises and no other agreements are effective unless made a part of this Lease All amendments to this Lease must be in writing and signed by ail parties.
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
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16.08 Notices. All notices and other communications required or permitted under this Lease must be in writing and will be deemed delivered, whether actually received or not, on the earlier of: (i) actual receipt if delivered in person or by messenger with evidence of delivery: or (ii) receipt of an electronic facsimile transmission (“Fax”) with confirmation of delivery; or (iii) upon deposit in the United States Mail as required below. Notices may be transmitted by Fax to the Fax telephone numbers specified in Article One of this Lease, if any Notices delivered by mail must be deposited in the U.S. Posts! Service, certified mail, return receipt requested postage prepaid, and properly addressed to the intended recipient as set forth in Article One. Notices sent by any other means will be deemed delivered when actually received, with proof of delivery After possession of the Premises by Tenant, Tenant’s address for notice purposes will be the address of the Premises unless Tenant notifies Landlord in writing of a different address to be used for that purpose. Any party may change its address for notice by delivering written notice of its new address to all other parties in the manner set forth above. Copies of all notices should also be delivered to the Brokers, but failure to notify the Brokers will not cause an otherwise properly delivered notice to be ineffective Also, copies of all notices must also be delivered to the following persons [if the blanks have been completed]:
Copies of notices to Landlord are to be delivered to:
| Adam Low’s | ||||
| Address: | 285 Fordora Street | |||
| Denver, CO 80220 | ||||
| Telephone. | 303-866-0532 | Fax: | ||
| Email: | m.adam.lewis@gmail.com | |||
Copies of notices to Tenant are to be delivered to:
| HORATIO LONSDALE-HANK. | ||||
| Address: | 4030 black gold drive | |||
| DALLAS, TX. 75247 | ||||
| Telephone. | 214-742 9999 | Fax: | ||
| Email: | HORATIO@BURAJUICE.COM | |||
☑ Landlord also consents to receive any notices by e-mail. [Check the box, if applicable.]
☑ Tenant also consents to receive any notices by e-mail [Check the box, if applicable]
16.09 Attorneys’ Fees. If, on account of any breach or default by any party to this Lease in its obligations to any other party to this Lease (including, but not limited to, the Brokers), it becomes necessary for a party to employ an attorney to enforce or defend any of its rights or remedies under this Lease, the non-prevailing party agrees to pay the prevailing party its reasonable attorneys* fees and court costs, if any. whether or not suit is instituted in connection with the enforcement or defense.
16.10 Venue. All obligations under this Lease, including, but not limited to, the payment of Fees to the Brokers, will be performed and payable in the county in which the Property is located. The laws of the State of Texas will govern this Lease.
16.11 Survival. All obligations of any party to this Lease that are not fulfilled at the expiration or the termination of this Lease will survive such expiration or termination as continuing obligations of the party.
16.12 Binding Effect. This Lease will mure to the benefit of, and be binding upon each of the parties to this Lease and their respective heirs, representatives, successors and assigns. However. Landlord will not have any obligation to Tenant’s successors or assigns unless the rights or interests of the successors or assigns are acquired in accordance with the terms of this Lease
16.13 Right to Claim a Lien. If a commission agreement or other agreement to pay Fees to the Brokers is not included in this Lease, then be advised that pursuant to Chapter 62 of the Texas Property Code, each Broker hereby discloses the Broker’s right to claim a lien based on a separate written commission agreement or other agreement to pay Fees to the Broker, and this disclosure is incorporated in the commission agreement or other agreement to pay Fees.
16.14 Patriot Act Representation. Landlord and Tenant each represent to the other that: (1) its property interests are not blocked by Executive Order No. 13224, 66 Fed. Reg. 49079: (2) it is not a person listed on the Specially Designated Nationals and Blocked Persons list of the Office of Foreign Assets Control of the United States Department of the Treasury: and (3) it is not acting for or on behalf of any person on that list.
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
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16.15 Counterparts. This Lease may be executed in a number of identical counterparts, and all counterparts will be construed together as one agreement.
16.16 Offer. The execution of this Lease by the first party to do so constitutes an offer to lease the Premises Unless this Lease is signed by the other party and a fully executed copy is delivered to the first party by the earlier of this date _________ , 20___ or the date that is 10 days after the date of execution by the first party, such offer to lease will be deemed automatically withdrawn. Any acceptance of an offer that has been withdrawn will only be effective if the party that withdrew the offer subsequently agrees to the acceptance either in writing or by course of conduct.
16.17 Additional Provisions. Landlord and Tenant agree to any provisions set forth on the attached Addenda (if any) and the following additional provisions (if any):
| 1. | Signage: Tandloro Lo approve Buda signago as per Buda Dragon Street . |
| 2. | Hours of Operation: Tenant may operate 24/7. |
| 3. | Base Ront and Opex are waived for the months of February, March, and April. Tenant shall pay only Opox for the months of May, Jure, and July. |
16.18 Consult an Attorney. This Lease is an enforceable, legally binding agreement Read it carefully. The Brokers involved in the negotiation of this Lease cannot give you legal advice. Landlord and Tenant acknowledge that they have been advised by the Brokers to have this Lease reviewed by competent legal counsel of their choice before signing this Lease. By executing this Lease. Landlord and Tenant each agree to the provisions contained in this Lease.
This Lease has been executed as of the Effective Date (as defined in Section 1.01).
| LANDLORD: | LANDLORD: | |||
| Lewis Warehouse Management Group LLC | ||||
| By [Signature]: | /s/ Adam Lewis | By [Signature): | ||
| Name: | Adam Lewis | Name: | ||
| Title: | Managing Member | Title: | ||
| Date of Execution: | 2/7/20 | Date of Execution: | ||
| TENANT: | TENANT: | |||
| Buda Juice | ||||
| By [Signature]: | /s/ Horatio Lonsdale Hands. | By [Signature]: | ||
| Name: | Horatio Lonsdale Hands. | Name: | ||
| Title: | CEO | Title | ||
| Date of Execution: | Job. 6. 2020 | Date of Execution: | ||
| PRINCIPAL BROKER: | COOPERATING BROKER: | |||
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
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| Robert. Lynn Company | ||
| dba NAl Robert Lynn |
| By [Signature]: | By [Signature]: | |||
| Name: | Robert B-ankinshin | Name: | ||
| Title | Executive Vice President | Title | ||
| Address: | Address: |
| 4S51 LB.J Freeway, 10th Floor | ||
| Dallas, TX 75244 | ||
| Broker’s Licence No.: | 0405391 | Broker’s Licence No.: | ||
| Tax ID No.: | Tax ID No.: | |||
PERMISSION TO USE: This form is provided for the use of members of the North Texas Commercial Association of Realtors®, Inc. (“NTCAR”), members of the North Texas Commercial Association of Real Estate Professionals, Inc. and other licensed users of an NTCAR electronic forms system. Permission is given lo make limited copies of the current version of this form for use in a particular Texas real estate transaction. Please contact the NTCAR office to confirm that you are using the current version of this form. Mass production, or reproduction for resale, is not allowed without express permission. Any changes to this form must be made in a manner that is obvious. If any words are deleted, they must be left in the form with a line drawn through them. If changes are made that are not obvious, the person who made the change could be subject to a claim of fraud or misrepresentation for passing off an altered form as if it were the genuine NlCAR form.
| LANDLORD’S INITIALS __________ TENANT’S INITIALS ___________ | |
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North Texas Commercial Association of Realtors®
EXHIBIT “C” TO LEASE
INFORMATION ABOUT BROKERAGE SERVICES
Texas
law requires all real estate licensees to give the following information about
brokerage services to prospective buyers, tenants, sellers and landlords.
TYPES OF REAL ESTATE LICENSE HOLDERS:
| ● | A BROKER is responsible for all brokerage activities, including acts performed by sales agents sponsored by line broker. | |
| ● | A SALES AGENT must be sponsored by a broker and works with clients on behalf of the broker. |
A BROKER’S MINIM IM DUTIES REQUIRED BY LAW (A client is the person or party that the broket· represents}:
| ● | Put. the interests of the client above all others, including the broker’s own interests; | |
| ● | Inform the client of any material inforrotllion about the property or transaction received by the broker: | |
| ● | Answci the client’s questions and present any offer to or counter-offer from the client; and | |
| ● | Treat at! parties to a.real estate transaction honestly Mid fairly. |
A LICENSE HOLDER CAN REPRESENT A PARTY IN A REAL ESTATE TRANSACTION:
AS AGENT FOR OWNER (SELLER/LANDLORD): The broker becomes the property owner’s agent through an agreement with the owner, usually in a written listing to sell or property management agreement. An owner’s agent must perform the broker’s minimum duties above and must inform the owner of any material information about the property or transaction known by the agent, including information disclosed to the agent or subagent by the buyer or buyer’s agent.
AS AGENT FOR BUYER/TENANT: The broker becomes the buyer/tenant’s agent by agreeing to represent the buyer, usually through a written representation agreement. A buyer’s agent must perform the broker’s minimum duties above and must inform the buyer of any material information about the property or transaction known by the agent, including information disclosed to the agent or subagent by the seller or seller’s agent.
AS AGENT FOR BOTH - INTERMEDIARY: To act as an intermediary between the parties the broker must first obtain the written agreement of each party to the transaction. The written agreement must state who will pay the broker and, in conspicuous bold or underlined print, set forth the broker’s obligations as an intermediary. A broker who acts as an intermediary:
| ● | Must treat all parties to the transaction impartially and fairly: | |
| ● | May with the parties’ written consent, appoint a different license holder associated with the broker to each party (owner and buyer) to communicate with, provide opinions and advice to, and carry out the instructions of each party to the transaction. | |
| ● | Must not, unless specifically authorized in writing to do so by the party, disclose: |
| ● | that the owner will accept a price less than the written asking price; | |
| ● | that the buyer/tenant will pay a price greater than the price submitted in a written offer; and | |
| ● | any confidential information or any other information that a party specifically instructs the broker in writing not to disclose, unless required to do so by law. |
AS SUBAGENT: A license holder acts as a subagent when aiding a buyer in a transaction without an agreement to represent the buyer. A subagent can assist the buyer but does not represent the buyer and must place the interests of the owner first.
TO AVOID DISPUTES, ALL AGREEMENTS BETWEEN YOU AND A BROKER SHOULD BE IN WRITING AND CLEARLY ESTABLISH:
| ● | The broker’s duties and responsibilities to you, and your obligations under the representation agreement. | |
| ● | Who will pay the broker for services provided to you, when payment will be made and how the payment will be calculated. |
LICENSE HOLDER CONTACT INFORMATION: This notice is being provided for information purposes. It does not create an obligation for you to use the broker’s services. Please acknowledge receipt of this notice below and retain a copy for your records
| NAI Robert Lynn | 405391 | mmiller@robert Lynn. com | 214-256-7100 | |||
| Licensed Broker/Broker Firm Name or | License No. | Phone | ||||
| Primary Assumed Business Name | ||||||
| Mark Miller, SIOR | 393339 | mmiller@robert Lynn. com | 214-256-7100 | |||
| Designated Broker of firm | License No. | Phone | ||||
| Mark Miller, 3IOB | 393339 | mmiller@robert Lynn. com | 214-256-7100 | |||
| Licensed Supervisor of Sale Agent/Associate | License No. | Phone | ||||
| Robert Blankinship | 523586 | rblankinshiprobertlynn. com | 214-256-7100 | |||
| Sales Agent/Associates’s Name | License No. | Phone |
 | Feb 6, 2020 | |
| BUYER/TENANT/SELLER/LANDLORD INITIAL | DATE | |
| REGULATION BY THE TEXAS REAL ESTATE COMMISSSION | INFORMATION AVAILABE AT WWW.TREC.TEXAS.GOV | |
| IABS 1-0 |
North Texas Commercial Association of Realtors ®
ADDENDUM “A” TO LEASE
RENEWAL OPTIONS
| Address of the Premises: | 4 030 diac.·; Gold Drive, Dallas, TX 7524 7 |
1. Option to Extend the Term. Landlord grants to Tenant two (2) option(s) (each an “Option”) to extend the Term for an additional term of sixty (60) months each (the “Extension”), on the same terms, conditions and covenants set forth in this Lease, except as provided below. Each Option may be exercised only by written notice delivered to the Landlord no earlier than three hundred sixty-five (365) days before, and no later than two hundred seventy (270) days before, the expiration of the Term or the preceding Extension of the Term, whichever is applicable If Tenant fails to deliver to Landlord a written notice of the exercise of an Option within the prescribed time period, such Option and any succeeding Options will lapse, and there will be no further right to extend the Term. Each Option may only be exercised by Tenant on the express condition that, at the time of the exercise, Tenant is not in default under any of the provisions of this Lease The Options are personal to Tenant and may not be exercised by an assignee or subtenant without Landlord’s written consent.
2. Calculation of Rent. The Base Rent during the Extension(s) will be determined by one of the following methods [check one]:
| ☐ | A. Fair Market Rental. The Base Rent during the Extension will be the Fair Market Rental determined as follows. |
| a. | The “Fair Market Rental” of the Premises means the price that a ready and willing tenant would pay as of the commencement of the Extension as monthly rent to a ready and willing landlord of Premises comparable to the Premises if the property were exposed for lease on the open market for a reasonable period of time, and taking into account the term of the Extension, the amount of improvements made by Tenant at its expense, the creditworthiness of the Tenant, and all of the purposes for which the property may be used and not just the use proposed to be made of the Premises by Tenant. Upon proper written notice by Tenant to Landlord of Tenant’s intention to elect to exercise the renewal Option, Landlord shall, within ____________ days thereafter, notify Tenant in writing of Landlord’s proposed Fair Market Rental amount, and Tenant shall thereupon notify Landlord of Tenant’s acceptance or rejection of Landlord’s proposed amount Failure of Tenant to reject Landlord’s Fair Market Rental amount within ______________days after receipt of Landlord’s notice will be deemed Tenant’s acceptance of Landlord’s proposed Fair Market Rental amount. | |
| b. | If Landlord and Tenant have not been able to agree on the Fair Market Rental amount within ______40 days following the exercise of the Option, the Fair Market Rental for the Extension will be determined by the following appraisal process. Landlord and Tenant shall endeavor in good faith to select a single Appraiser. The term “Appraiser” means a State Certified Real Estate Appraiser licensed by the State of Texas to value commercial property If Landlord and Tenant are able to agree upon and select a single Appraiser, that Appraiser will determine the Fair Market Rental for the Extension. | |
| if Landlord and Tenant are unable to agree upon a single Appraiser within __________ days after the end of the 40-day period, each will then appoint one Appraiser by written notice to the other, given within ___________days after the end of the 40-day period. Within five business days after the two Appraisers are appointed, the two Appraisers will appoint a third Appraiser If either Landlord or Tenant fails to appoint its Appraiser within the prescribed time penod, the single Appraiser appointed will determine the Fair Market Rental amount of the Premises. Each party will bear the cost of the appraiser appointed by it and the parties will share equally the cost of the third appraiser. The Fair Market Rental of the Premises will be the average of two of the three appraisals that are closest in amount, and the third appraisal will be disregarded. |
| LANDLORD’S INITIALS ________ TENANTS INITIALS ___________ | |
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| c. | In no event will the Base Rent be reduced for any Extension, regardless of the Fair Market Rental determined by any appraisal. If the Fair Market Rental is not determined before the commencement of the Extension, then Tenant shall continue to pay to Landlord the Base Rent applicable to the Premises immediately before the Extension until the Fair Market Rental amount is determined, and when it is determined, Tenant shall pay to Landlord the difference between the Base Rent actually paid by Tenant to Landlord and the new Base Rent. |
| ☐ | B. Consumer Price Index Adjustment. The monthly Base Rent during the Extension will be determined by multiplying the monthly installment of Base Rent during the last month of the Term by a fraction determined as follows: |
| a. | The numerator will be the Latest Index that means either [check one]: |
☐ (1) the Index published for the nearest calendar month preceding the first day of the Extension, or
☐ (2) the Index for the month of _________________ preceding the first day of the Extension
| b. | The denominator will be the Initial index that means either [check one]: |
☐ (1) the Index published for the nearest calendar month preceding the Commencement Date, or
☐ (2) the Index for the month of___________________________ preceding the Commencement Date
[If no blanks are filled in above, the choice (1) including the phrase “the nearest calendar month preceding” will apply. If the Index is not yet published for the nearest calendar month preceding the applicable date, then “the nearest calendar month” means the first month preceding the applicable date for which the Index is published].
c. The Index means the Consumer Price Index (CPI) for All Urban Consumers (All Items) U.S. City Average (unless this box is checked □ in which case the CPI for the Dallas/Fort Worth Consolidated Metropolitan Statistical Area will be used) published by the U. S. Department of Labor, Bureau of Labor Statistics (Base Index of 1982-84 =100). If the Index is discontinued or revised, the new index or computation that replaces the Index will be used in order to obtain substantially the same result as would have been obtained if it had not been discontinued or revised. If such computation would reduce the Rent for the particular Extension, it will be disregarded, and the Rent during the immediately preceding period will apply instead.
☐ C. Fixed Rental Adjustments. The monthly installments of Base Rent during the Extension(s) will be increased beginning on the following dates to these amounts:
| Date: | Amount: $ | ||||
| Date: | Amount: $ | ||||
| Date: | Amount: $ | ||||
| Date: | Amount: $ |
| LANDLORD’S INITIALS ________ TENANTS INITIALS ___________ | |
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North Texas Commercial Association of Realtors®
ADDENDUM “C” TO LEASE
CONSTRUCTION OF IMPROVEMENTS BY TENANT
| Address of the Premises: | 4030 Black. Gold Drive, Dallas, tx 75247 |
1.
Plans. Landlord agrees to allow Tenant to construct (or complete) certain Landlord-approved Improvements to the Premises (the “Improvements”),
ail of which are included in the Landlord Approved Improvement List attached as Addendum K (the “Improvement List”). Should
Tenant proceed with the construction or completion of any improvement included in the Improvement List, If and
to the-extent Tenant is going to construct (or complete) improvements
to the Premises, Tenant shall cause plans and specifications (the “Plans”)
to be promptly prepared and delivered to Landlord, at Tenant’s expense The Plans must include a floor plan, a ceiling plan, a plumbing
plan, an electrical plan, a fixture plan, elevations of walls, and any other drawings reasonably requested by Landlord. Ail drawings
must be done to a scale identified on the drawings. If Landlord does not respond to the request for approval of the Plans within five
days after Landlord’s receipt of the Plans, Landlord will be deemed to have approved the Plans. Upon approval by Landlord, two
or more sets of the Plans will be signed by both parties, with one signed set to be retained by each party. Changes to the Plans may
be made only by written amendments signed by both parties.
2. Contractor. Promptly after the execution of this Lease, Tenant shall deliver a notice to Landlord stating the name of the contractor Tenant intends to use to construct the Improvements improvements, along with an estimate of the cost of construction, a copy of a bid, proof of the contractor’s insurance, and any other information reasonably requested by Landlord for Landlord’s approval. If Landlord does not respond to the request for approval of the contractor and the estimate within five days after Landlord’s receipt of the name of the contractor and the estimate Landlord will be deemed to have approved the contractor and the estimate. Unless Landlord has expressly agreed in writing (in this Lease or otherwise) to pay any part of the cost of construction, ail work undertaken by or on behalf of Tenant will be at Tenant’s expense.
3.
Contractor’s Insurance. The insurance requirements under this Lease, and the indemnity requirements under this Lease, will
apply during the construction of the improvements improvements, and Tenant shall provide evidence of insurance coverage
before the beginning the construction Tenant shall provide Landlord with evidence of insurance covering Tenant and Tenant’s contractor
against damage to their personal property, as well as against third-party liability, builder’s risk, and workers’ compensation
claims arising out of the construction The contractor’s policies must insure against liability arising out of the contractor’s
work in the Premises and the Property, and must be endorsed showing Landlord as an additional named insured Unless Landlord agrees to
lower amounts, the initial amounts of the liability insurance must be at least $1,000,000 for each occurrence, $2,000,000 general aggregate
per policy year, and $10,000 for medical expense. The amounts of deductibles and other terms of the insurance are subject to Landlord’s
reasonable approval.
To be clear and in addition to any indemnity requirements under this Lease, Tenant hereby agrees to defend, indemnify and hold Landlord harmless from any loss, expense, or claim(s), third-party claim(s) or other darnage(s) caused by, arising out of, or related to any construction activities performed by Tenant or performed by any third-parties at Tenant’s direction, to the fullest extent permitted under applicable law.
4.
Construction of Improvements. Upon approval by Landlord of the Plans, the contractor, the contractor’s insurance, and any part
of the cost of construction to be paid by Landlord, Tenant shall promptly begin construction and pursue the construction to its completion
with reasonable diligence and in a good and workmanlike manner. Tenant shall obtain any building permits and other government approvals
that are required for the construction of the Improvements improvements. Landlord
may inspect the Premises at any time to monitor the construction of the Improvements improvements.
| LANDLORD’S INITIALS ________ TENANTS INITIALS ___________ | |
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5. Estimated Completion Date. It is estimated by Tenant that the .Improvements imprevements specified in the Plans will be completed by_________________(the "Estfmated Completion Date").
6. Notice of Completion. Tenant shall deliver a written notice to Landlord that the Improvements· improvements improvements have been completed in accordance with the Plans, specifying the date (the"Date of Completion") the improvements improvements were completed, within two days after the Date of Completion. Landlord may inspect the improvements improvements. If the improvements improvements have been completed in accordance with the Plans, then the Term will begin on the Date of Completion or the Commencement Date, whichever is earlier.
7.
Objections. If Landlord reasonably determines that the improvements improvements have
not been completed in accordance with the Plans. Landlord may deliver a written notice to Tenant specifying the incomplete items. If
Landlord does not. within 10 days after Landlord received Tenant's notice of completion. deliver such a written notice to Tenant, then
Landlord will be deemed to have approved the improvements improvements as constructed, and the Date of Completion stated
in Tenant's notice will be the Date of Completion. If the improvements improvements have not in fact been completed
in accordance with the Plans, and Landlord has delivered to Tenant a written notice specifying the Incomplete items, then Tenant shall
promptly proceed to finish the incomplete items.
8. Substantial Completion. Completion, as used in this Addendum, means Substantial Completion. "Substantial Completion" will be deemed to have occurred when (i) a Certificate of Occupancy is issued by the local municipal authorities that have jurisdiction over the Premises, and (ii) the construction is sufficiently complete in accordance with the Plans so that Tenant is able to occupy the Premises for the Permitted Use, except for minor "punch list" items remaining to be completed.
9.
Letter of Acceptance. Upon Substantial Completion of the improvements improvements to
the Premises. Tenant agrees to execute and deliver to Landlord. with a copy to the Principal Broker. a letter• (the "Letter
of Acceptance") addressed to Landlord and signed by Tenant (or Tenant's authorized representative) acknowledging: (i) that construction
has been completed in accordance with the Plans; (ii) acceptance of the improvements improvements (subject to
"punch list" items to be completed); (iii) the Date of Completion, and (iv) the Commencement Date of the Term.
10. Taking of Possession. The taking of possession of the Premises by Tenant will be deemed to be acknowledgment by Tenant that construction has been completed in accordance with Plans (except for any latent defects and ''punch list" items) and that the Term has begun as of the Date of Completion or the Commencement Dale. whichever· is earlier, regardless of whether a Certificate of Occupancy has been issued or Tenant has delivered a Letter of Acceptance.
11.
Failure to Complete. If the improvements improvements have
not been completed in accordance with the Plans by the Estimated Completion Date, or by such date as extended by application of Section
16.02 (Force Majeure). Landlord may give Tenant a written notice of Landlord's intention to terminate as of a certain date specified
by Landlord in the notice (the "Termination Date") if such improvements improvements have not been completed by the
Termination Date. The notice must be given to Tenant not less than 20 days before the Termination Date. If the improvements improvements
have not been completed by the Termination Date. then this Lease will terminate. with no further liability of one party to the other.
unless the Termination Date is extended by Landlord in writing. If Tenant is able to cause Substantial Completion of the improvements
improvements lo occur before the Termination Date. then this Lease will not terminate.
12
Finish-Out Allowance. Landlord shall provide Tenant with a finish-out allowance in an amount not to exceed $300,000.00
the "Allowance") to be applied toward the total cost
of construction for improvement listed on the: improvements List as agreed to by Landlord and Tenant. Landlord Will pay the Allowance
as a reimbursement for Tenant's bona fide (and verified) construction expenses for improvements improvements Included
in the improvement List,to the Premises paid to parties no .related to Tenant. Such payments will be due only upon the later of: (i)
Tenant's completion of the improvements improvements, (ii) Tenant's delivery to Landlord of a copy of the Certificate
of Occupancy for the Premises. (iii) Tenant's delivery to Landlord of proof that all bills have been paid to Tenant's contractors, subcontractors,
suppliers, and professionals, including a list of the contractors, subcontractors, suppliers, and professionals who worked on the improvements
improvements, a bills paid affidavit, signed lien waivers, and any other documentation reasonably requested by Landlord,
and (Iv) Tenant's commencement of business in the Premises. Tenant shall pay any costs of construction m excess of the Allowance.
| LANDLORD’S INITIALS ________ TENANTS INITIALS ___________ | |
| ADDENDUM “A” TO LEASE - Page2 PRODUCED WITH WINAIR FORMS © | Page 4 |
| ©NTCAR 2014 - FORM NO. 2 (3,2014) | |
North Texas Commercial Association of Realtors®
ADDENDUM “F” TO LE.ASE
GUARANTY
Address of the Premises: 4030 Black Gold Drive, Dallas,TX 75247
1. In order to induce Lewis warehouse Management Group TTC
(“Landlord”) to execute the Commercial Lease Agreement (the “Lease”) with Bada Juice
————(“Tenant”) for the Premises described above in Dallas County, State of Texas, the under·signed (the “Guarantor,” whether one or more than one) has guaranteed and by this instrument does hereby guarantee the full payment and performance of all liabilities, obligations, and duties (including but not limited to maintenance and the payment of Rent) imposed upon Tenant under the terms of the Lease, as if Guarantor had executed the Lease as Tenant.
2. Guarantor hereby waives notice of acceptance, modification. extension and default of this Guaranty and all other notices in connection with this Guaranty or in connection with the liabilities, obligations, and duties guaranteed hereby, including notices of default by Tenant under the Lease. and waives diligence, presentment, and suit on the part of Landlord in the enforcement of any liability, obligation, or duty guaranteed hereby. Guarantor waives all rights arising under Chapter 34 of the Texas Business·and Commerce Code. Guarantor waives all rights to claim any defense arising out of lack of diligence: any failure to pursue Tenant; loss or Impairment of any right of subrogation or reimbursement; release of any other guarantor or collateral; death, insolvency, or lack of corporate authority of Tenant; and waiver. release, or election, based on Landlord’s or Tenant’s rights and obligations under the Lease and the enforcement of its terms.
3. Landlord will not be first required to enforce against Tenant or any other person any liability, obligation, or duty guaranteed hereby before seeking enforcement thereof against Guarantor. This Guaranty is a primary, irrevocable, and unconditional guaranty of payment and performance and not of collection and is independent of Tenant’s obligations under the Lease. Suit may be brought and maintained against Guarantor by Landlord to enforce any liability, obligation, or duty guaranteed hereby without joinder of Tenant or any other person. The liability of Guarantor will not be affected by any indulgence, compromise, settlement, or variation of terms that may be extended to Tenant by Landlord or agreed upon by Landlord and Tenant, and will not be impaired, modified, changed, released, or limited in any manner whatsoever by any impairment, modification, change, release, or limitation of the liability of Tenant or its estate in bankruptcy, or of any remedy for the enforcement thereof, resulting from the operation of any present or future provision of the United States Bankruptcy Code, or any similar law or statute of the United States or any state thereof. Guarantor will not be released by any extensions. amendments. assignments, subleases, or other modifications of the Lease that Landlord and Tenant may enter into at any time without notice to or consent by Guarantor. Guarantor will remain fully liable for the payment and performance of all liabilities. obligations, and duties of Tenant under the Lease as so extended, amended, assigned, subleased, or otherwise modified.
4. Other agreements similar to this Guaranty may. at Landlord’s sole option and discretion, be executed by other persons with respect to the Lease. This Guaranty will be cumulative of any such agreements and the liabilities and obligations of Guarantor under this Guaranty will not be affected or diminished by reason of such other agreements. Moreover, if Landlord obtains signatures of more than one guarantor on this Guaranty, or Landlord obtains additional guaranty agreements, or both, Guarantor agrees that Landlord, in Landlord’s sole discretion, may (i) bring suit against all guarantors of the Lease, jointly and severally, or against any one or more of them, (ii) settle with any one or more of the guarantors for such consideration as Landlord may choose, and (iii) release one or more of the guarantors from liability. No such action will impair the rights of Landlord to enforce this Guaranty against any guarantor.
5. If Guarantor is a corporation, then the undersigned officer personally represents and warrants that the Board of Directors of the corporation, by unanimous consent or in a duly held meeting, has authorized the execution of this Guaranty and determined that this Guaranty may reasonably be expected to benefit the corporation.
| LANDLORD’S INITIALS___________ TENANT’S INITIALS _____________ | |
| ADDENDUM “F” TO LEASE - Page 1 PRODUCED WITH WINAIR FORMS © | Page 1 |
| ©NTCAR 2014 - FORM NO. 2 (3/2014) |
6. If Landlord employs an attorney to present, enforce, or defend any of Landlord's rights or remedies under this Guaranty, Guarantor will pay Landlord’s reasonable attorney’s fees and court costs
7. This Guaranty will be binding upon Guarantor and Guarantor's successors, heirs, executors. and administrators, and will inure to the benefit of Landlord and Landlord's successors, heirs, executors, administrators, and assigns.
EXECUTED to be effective as of Effective Date of the Lease.
GUARANTOR:
| [Signature]: | /s/ B. L. NUSSBAUMER |
| Print Name : | B. L. NUSSBAUMER |
| Home Address: | 5000 SENECA DR | |
| DALLAS, TX 75209 | ||
| SocialSecurity No.: | ###-##-#### | |
| Driver’s License No.: | 12238498 | State: | TX |
GUARANTOR:
| [Signature]: | /s/ HORATIO LONSDALE-HANDS |
| Print Name : | HORATIO LONSDALE-HANDS |
| Home Address: | 5020 Airline Rd. | |
| DALLAS, TX, 75205 | ||
| SocialSecurity No.: | ###-##-#### | |
| Driver’s License No.: | 13743994 | State: | TX |
Completion of the following acknowledgment will help authenticate the signature(s), but failure to complete the acknowledgment has no effect on the validity or enforceability of this Guaranty.]
STATE OF TEXAS
COUNTY OF ___________________________
This instrument was acknowledged before me on the ______ day of ________ ,20___, by __________________ and __________________.
| NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS | ||
| My Commission Expires: | ||
| Print or Type Name of Notary |
| LANDLORD’S INITIALS___________ TENANT’S INITIALS _____________ | |
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| ©NTCAR 2014 - FORM NO. 2 (3/2014) |
NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS®
ADDENDUM “K” TO LEASE
LANDLORD APPROVED
IMPROVEMENT LIST
Address of the Premises: 4030 Black Gold Drive, Dallas, TX 75247
| LANDLORD’S INITIALS ________ TENANTS INITIALS ___________ | |
ADDENDUM “K” TO LEASE | |
©NTCAR 2008 - Form No. 2 (9/08) | |
Exhibit 10.4
FIRST AMENDMENT TO STANDARD COMMERCIAL LEASE
THIS FIRST AMENDMENT TO STANDARD COMMERCIAL LEASE (this “Amendment”) is made and entered into effective as of February 2, 2025, by and between Lewis Warehouse Management Group, LLC. (“Landlord”), and Buda Juice, LLC. (“Tenant”).
A. Landlord and Tenant entered into that certain Standard Commercial Lease dated February 7, 2020 (the “Lease”), in connection with approximately 21,476 square feet of space located at 4030 Black Gold Drive, Dallas, Texas 75247, on the terms and conditions set forth in the Lease.
B. Landlord and Tenant each now desires to amend the Lease on the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, the receipt and adequacy of which are hereby acknowledged and confessed, Landlord and Tenant agree as follows:
1. Term. The Term of the Lease is hereby renewed and extended for one (1) additional period of sixty (60) full calendar months commencing on August 1, 2025, and expiring on July 31, 2030 (the “Extended Term”), unless the Lease, as amended hereby, is sooner terminated in accordance with the terms and conditions thereof. Except as expressly provided in Section 4. below, Tenant shall have no further right or option to renew or extend the Term of the Lease, all other rights or options to extend and renew the Term set forth in the Lease, if any, being hereby deleted in their entirety.
2. Lease Premises. Tenant hereby agrees to lease from Landlord the adjoining space, located at 4040 Black Gold Drive, Dallas, TX 75247 in addition to the space located at 4030 Black Gold Drive, Dallas, TX 75247. The combined space totaling 37,856 square feet (lease premises) shall be subject to the same terms and provisions set forth in the Lease, which is hereby incorporated by reference as if fully stated herein, uncles otherwise modified in the Amendment. The be clear Tenant and Landlord intend for all terms and provisions of the Lease to apply to both the 4030 Space and 4040 Space. In the event there is a conflict between the terms of the Amendment and the Lease, the Amendment shall govern.
3. Base Rent. Base Rent due and payable by Tenant under the Lease during the Extended Term shall be as follows:
| Extended term period | Annual Base Rent Per Square Foot of Floor Area in the Leased Premises | Monthly Installments of Base Rent | ||||||
| August 1, 2025 - July 31, 2026 | $ | 4.93 | $ | 15,552 | ||||
| August 1, 2026 – July 31, 2027 | $ | 5.12 | $ | 16,151 | ||||
| August 1, 2027 – July 31, 2028 | $ | 5.33 | $ | 16,814 | ||||
| August 1, 2028 – July 31, 2029 | $ | 5.54 | $ | 17,476 | ||||
| August 1, 2029 – July 31, 2030 | $ | 5.78 | $ | 18,234 | ||||
| Page 1 |
Except as expressly set forth in this Amendment, Tenant shall continue to pay Base Rent and Additional Rent in accordance with the Lease.
4. Renewal Option. Tenant shall have two (2) options to renew the lease. Each option shall be for a sixty (60) month period. The first option shall be at a fixed rate based on the schedule listed below. The second option shall be at fair market value. Both options may be exercised by tenant by giving written notice no later than one hundred and eighty (180) days prior to lease expiration, tenant must be in good standing with Landlord and not in default of the lease. Each option is exclusive to Tenant and may not be assigned
First Renewal Option
| Year 1: | $18,925 per month Net |
| Year 2: | $19,681 per month Net |
| Year 3: | $20,465 per month Net |
| Year 4: | $21,284 per month Net |
| Year 5: | $22,139 per month Net |
Second Renewal Option: At Fair Market Value
5. Tenant’s Pro rata share. Effective as of the commencement of the Extended Term, Section 1.04 E. Tenants pro rata share of the Lease shall be replaced with 100%
6. Tenant Improvements: Landlord agrees to allow Tenant to hire a contractor of its choosing (“Tenant’s Contractor”) to preform repair work on the interior of the 4040 Black Gold Space. Tenant must obtain Landlord’s prior approval before entering into any contract with Tenant’s Contractor and such contract shall require Tenant’s Contractor to carry sufficient insurance and indemnify Landlord against any damages caused by Tenant’s Contractor and against any liens related to the work of Tenant’s Contractor.
-Landlord shall contribute up to $240,000(landlord contribution) towards repair of the interior space of 4040 Black Gold. Landlord contribution shall be paid either directly to Tenant’s Contractor or to Tenant as a reimbursement upon submission of invoices for work performed, which invoices shall be accompanied by full and final lien releases for work performed up to the date of such invoices.
7. Landlord Improvements. Landlord at Landlord’s sole cost and expense shall complete the following work items:
-Paint the exterior façade of 4030-4040 Black Gold a single color to be mutually agreed upon by Tenant and Landlord
-Landlord to install a new camera hub and related equipment to transfer the video monitoring to Deep Sentinel.
| Page 2 |
8. Brokerage Commission. Tenant hereby represents and warrants to Landlord that it has had no dealings with any real estate brokers or agents in connection with the negotiations of this Amendment other than NAI Robert Lynn, as Intermediary broker, (collectively, the “Broker”).
9. Binding Effect. The terms, covenants, conditions, and provisions contained in this Amendment shall be binding upon and inure to the benefit of Landlord and Tenant and their respective successors and permitted assigns. Landlord and Tenant hereby ratify and confirm the terms and provisions of the Lease, as amended hereby.
10. Amendment. This Amendment may not be modified, amended, or terminated, nor any of its provisions waived, except by written agreement signed by Landlord and Tenant. Except as specifically amended hereby, the Lease shall remain in full force and effect and enforceable in accordance with its terms.
11. Construction. Each capitalized term used herein and not defined shall have the meaning ascribed to such term in the Lease. In the event of any inconsistency or conflict between this Amendment and the Lease, the terms of this Amendment shall control.
12. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Texas.
13. Counterparts. This Amendment may be executed in as many counterparts as may be convenient or required. All counterparts shall collectively constitute a single instrument. Any signature page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages.
14. E-mail Stipulation. Landlord and Tenant each does hereby acknowledge, stipulate, and agree that: (a) the receipt by it of this Amendment by e-mail, pdf, or other electronic format bearing the other’s signature shall be deemed to be its due execution and delivery thereof for all purposes; and (b) such document or instrument shall be valid, binding, and enforceable against Landlord and Tenant, respectively, to the same extent as an original bearing its signature, and no original thereof shall be required as a condition of its validity or enforceability.
15. Time is of the Essence. Time is of the essence of this Amendment and the obligations of the parties hereunder.
[Remainder of Page Intentionally Left Blank. Signature Page to Follow.]
| Page 3 |
EXECUTED to be effective as of the date first above written.
| LANDLORD: | ||
| Black Gold Warehouse Management Group | ||
| By: | /s/Adam Lewis | |
| Name: | Adam Lewis | |
| Title: | Manager | |
| 2/12/2025 | ||
| TENANT: | ||
| Buda Juice LLC. | ||
| By: | HORATIO LONSDALE-HANDS | |
| Name: | HORATIO LONSDALE-HANDS | |
| Title: | CEO | |
| 2/12/2025 | ||
[Signature Page to First Amendment to Standard Commercial Lease]
| Page 4 |
Exhibit 10.5
BUDA JUICE, INC.
Indemnification Agreement
This Indemnification Agreement (“Agreement”), by and between BUDA JUICE, INC., a Delaware corporation (the “Company” or “Capstone”), and [●] (“Indemnitee”), is effective as of the date the Agreement is fully executed by the parties below. For purposes of this Agreement, the “Company” shall be deemed to include Capstone and its subsidiaries, as appropriate.
WHEREAS, highly competent persons have become more reluctant to serve publicly-held corporations as directors or officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation and due to the fact that such exposure frequently bears no relationship to compensation paid to such officers and directors; and
WHEREAS, the Company and Indemnitee recognize the substantial increase in corporate litigation, subjecting directors, officers, and key employees to expensive litigation risks at the same time as the availability and coverage of liability insurance has been severely limited; and
WHEREAS, in order to induce Indemnitee to provide, or continue to provide, services to the Company, the Company wishes to provide for the indemnification of, and advancement of expenses to, Indemnitee to the maximum extent permitted by law; and
WHEREAS, Indemnitee does not regard the current protection available as adequate under the present circumstances, and the Indemnitee and other directors and officers of the Company may not be willing to continue to serve in such capacities without additional protection; and
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, Indemnitee to the fullest extent permitted by applicable law so that Indemnitee will serve or continue to serve the Company free from undue concern that he or she will not be so indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws of the Company and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and
NOW, THEREFORE, in consideration of the foregoing and Indemnitee’s agreement to serve, or continue to serve, as a director to the Company, the Company and Indemnitee, intending to be legally bound, hereby agree as follows:
1. Indemnification.
(a) Third-Party Proceedings. To the fullest extent permitted by applicable law, the Company shall indemnify Indemnitee, if Indemnitee was, is or is threatened to be made, a party to or a participant (as a witness or otherwise) in any Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company to procure a judgment in the Company’s favor, against all Expenses (as hereinafter defined), judgments, fines and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) actually and reasonably incurred by Indemnitee in connection with such Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe Indemnitee’s conduct was unlawful.
(b) Proceedings By or in the Right of the Company. To the fullest extent permitted by applicable law, the Company shall indemnify Indemnitee, if Indemnitee was, is or is threatened to be made a party to or a participant (as a witness or otherwise) in any Proceeding by or in the right of the Company to procure a judgment in the Company’s favor, against all Expenses actually and reasonably incurred by Indemnitee in connection with such Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company; provided, however, that no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudicated by court order or judgment to be liable to the Company unless and only to the extent that the Court of Chancery or the court in which such Proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
(c) Success on the Merits. To the fullest extent permitted by applicable law and to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 1(a) or Section 1(b) or the defense of any claim, issue or matter therein, in whole or in part, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection therewith. Without limiting the generality of the foregoing, if Indemnitee is successful on the merits or otherwise as to one or more but less than all claims, issues or matters in a Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with such successfully resolved claims, issues or matters to the fullest extent permitted by applicable law. If any Proceeding is disposed of on the merits or otherwise (including a disposition without prejudice), without (i) the disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the Company, (iii) a plea of guilty by Indemnitee, (iv) an adjudication that Indemnitee did not act in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and (v) with respect to any criminal Proceeding, an adjudication that Indemnitee had reasonable cause to believe Indemnitee’s conduct was unlawful, Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect thereto.
(d) Witness Expenses. To the fullest extent permitted by applicable law and to the extent that Indemnitee is a witness or otherwise asked to participate in any Proceeding to which Indemnitee is not a party, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with such Proceeding.
2. Contribution.
(a) Whether or not the indemnification provided in Section 1 is unavailable in whole or in part and may not be paid to Indemnitee for any reason other than those set forth in Section 7, then in respect to any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), to the fullest extent permitted by applicable law, the Company, in lieu of indemnifying Indemnitee, shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for Expenses, judgments, fines or amounts paid in settlement, in connection with any Proceeding without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have at any time against Indemnitee.
(b) With respect to a Proceeding brought against directors, officers, employees or agents of the Company (other than Indemnitee), to the fullest extent permitted by applicable law, the Company shall indemnify Indemnitee from any claims for contribution that may be brought by any such directors, officers, employees or agents of the Company (other than Indemnitee) who may be jointly liable with Indemnitee, to the same extent Indemnitee would have been entitled to such indemnification under this Agreement if such Proceeding had been brought against Indemnitee.
3. Indemnification Procedure.
(a) Advancement of Expenses. To the fullest extent permitted by applicable law, the Company shall advance all Expenses actually and reasonably incurred by Indemnitee in connection with a Proceeding within thirty (30) days after receipt by the Company of a statement requesting such advances from time to time, whether prior to or after final disposition of any Proceeding. Such advances shall be unsecured and interest free and shall be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. Indemnitee shall be entitled to continue to receive advancement of Expenses pursuant to this Section 3(a) unless and until the matter of Indemnitee’s entitlement to indemnification hereunder has been finally adjudicated by court order or judgment from which no further right of appeal exists. Indemnitee hereby undertakes to repay such amounts advanced only if, and to the extent that, it ultimately is determined that Indemnitee is not entitled to be indemnified by the Company under the other provisions of this Agreement. Indemnitee shall qualify for advances upon the execution and delivery of this Agreement, which shall constitute the requisite undertaking with respect to repayment of advances made hereunder and no other form of undertaking shall be required to qualify for advances made hereunder other than the execution of this Agreement.
(b) Notice and Cooperation by Indemnitee. Indemnitee shall promptly notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter for which indemnification will or could be sought under this Agreement. Such notice to the Company shall include a description of the nature of, and facts underlying, the Proceeding, shall be directed to the Chief Executive Officer of the Company, and shall be given in accordance with the provisions of Section 14(e) below. In addition, Indemnitee shall give the Company such additional information and cooperation as the Company may reasonably request. Indemnitee’s failure to so notify, provide information, and otherwise cooperate with the Company shall not relieve the Company of any obligation that it may have to Indemnitee under this Agreement, except to the extent that the Company is adversely affected by such failure.
(c) Determination of Entitlement.
(i) Final Disposition. Notwithstanding any other provision in this Agreement, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.
(ii) Determination and Payment. Subject to the foregoing, promptly after receipt of a statement requesting payment with respect to the indemnification rights set forth in Sections 1 or 2, to the extent required by applicable law, the Company shall take the steps necessary to authorize such payment in the manner set forth in Section 145 of the Delaware General Corporation Law. The Company shall pay any claims made under this Agreement, under any statute, or under any provision of the Company’s Certificate of Incorporation or Bylaws providing for indemnification or advancement of Expenses, within thirty (30) days after a written request for payment thereof has first been received by the Company, and if such claim is not paid in full within such thirty (30) day-period, Indemnitee may, but need not, at any time thereafter bring an action against the Company in the Delaware Court of Chancery to recover the unpaid amount of the claim and, subject to Section 13, Indemnitee shall also be entitled to be paid for all Expenses actually and reasonably incurred by Indemnitee in connection with bringing such action. It shall be a defense to any such action (other than an action brought to enforce a claim for advancement of Expenses under Section 3(a)) that Indemnitee has not met the standards of conduct which make it permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement and the Company shall have the burden of proof to overcome that presumption with clear and convincing evidence to the contrary. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, or, in the case of a criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful. In addition, it is the parties’ intention that if the Company contests Indemnitee’s right to indemnification, the question of Indemnitee’s right to indemnification shall be for the court to decide, and neither the failure of the Company (including its Board of Directors, any committee or subgroup of the Board of Directors, independent legal counsel, or its stockholders) to have made a determination that indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct required by applicable law, nor an actual determination by the Company (including its Board of Directors, any committee or subgroup of the Board of Directors, independent legal counsel, or its stockholders) that Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has or has not met the applicable standard of conduct. If any requested determination with respect to entitlement to indemnification hereunder has not been made within ninety (90) days after the final disposition of the Proceeding, the requisite determination that Indemnitee is entitled to indemnification shall be deemed to have been made.
(iii) Change of Control. Notwithstanding any other provision in this Agreement, if a Change of Control has occurred, any person or body appointed by the Board of Directors in accordance with applicable law to review the Company’s obligations hereunder and under applicable law shall be Independent Counsel selected by the Company. Such counsel, among other things, will render its written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be entitled to be indemnified hereunder under applicable law and the Indemnitee agrees to abide by such opinion. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. Notwithstanding any other provision of this Agreement, the Company shall not be required to pay Expenses of more than one Independent Counsel in connection with all matters concerning a single Indemnitee, and such Independent Counsel shall be the Independent Counsel for any or all other Indemnitees unless (i) the Company otherwise determines or (ii) any Indemnitee shall provide a written statement setting forth in detail a reasonable objection to such Independent Counsel representing other indemnitees under agreements similar to this Agreement.
(d) Payment Directions. To the extent payments are required to be made hereunder, the Company shall, in accordance with Indemnitee’s request (but without duplication), (i) pay such Expenses on behalf of Indemnitee, (b) advance to Indemnitee funds in an amount sufficient to pay such Expenses, or (c) reimburse Indemnitee for such Expenses.
(e) Notice to Insurers. If, at the time of the receipt of a notice of a claim pursuant to Section 3(b) hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.
(f) Defense of Claim and Selection of Counsel. In the event the Company shall be obligated under Section 1(a) hereof to advance Expenses with respect to any Proceeding, the Company, if appropriate, shall be entitled to assume the defense of such Proceeding, with counsel reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same Proceeding, provided that (i) Indemnitee shall have the right to employ counsel in any such Proceeding at Indemnitee’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense or (C) the Company shall not, in fact, have employed counsel to assume the defense of such Proceeding, then the fees and expenses of Indemnitee’s counsel shall be at the expense of the Company. In addition, if there exists a potential, but not an actual conflict of interest between the Company and Indemnitee, the actual and reasonable legal fees and expenses incurred by Indemnitee for separate counsel retained by Indemnitee to monitor the Proceeding (so that such counsel may assume Indemnitee’s defense if the conflict of interest between the Company and Indemnitee becomes an actual conflict of interest) shall be deemed to be Expenses that are subject to indemnification hereunder. The existence of an actual or potential conflict of interest, and whether such conflict may be waived, shall be determined pursuant to the rules of attorney professional conduct and applicable law. The Company shall not be required to obtain the consent of Indemnitee for the settlement of any Proceeding the Company has undertaken to defend if the Company assumes full and sole responsibility for each such settlement; provided, however, that the Company shall be required to obtain Indemnitee’s prior written approval, which shall not be unreasonably withheld, before entering into any settlement which (1) does not grant Indemnitee a complete release of liability, (2) would impose any penalty or limitation on Indemnitee, or (3) would admit any liability or misconduct by Indemnitee.
4. Additional Indemnification Rights.
(a) Scope. Notwithstanding any other provision of this Agreement, the Company hereby agrees to indemnify Indemnitee to the fullest extent permitted by law, notwithstanding that such indemnification is not specifically authorized by the other provisions of this Agreement, the Company’s Certificate of Incorporation, the Company’s Bylaws or by statute. In the event of any change, after the date of this Agreement, in any applicable law, statute, or rule which expands the right of a Delaware corporation to indemnify a member of its board of directors or an officer, such changes shall be deemed to be within the purview of Indemnitee’s rights and the Company’s obligations under this Agreement. In the event of any change in any applicable law, statute or rule which narrows the right of a Delaware corporation to indemnify a member of its board of directors or an officer, such changes, to the extent not otherwise required by such law, statute or rule to be applied to this Agreement shall have no effect on this Agreement or the parties’ rights and obligations hereunder.
(b) Nonexclusivity. The indemnification provided by this Agreement shall not be deemed exclusive of any rights to which Indemnitee may be entitled under the Company’s Certificate of Incorporation, its Bylaws, any agreement, any vote of stockholders or disinterested members of the Company’s Board of Directors, the Delaware General Corporation Law, or otherwise, both as to action in Indemnitee’s official capacity and as to action in another capacity while holding such office.
(c) D&O Policy. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company, Indemnitee shall be named as an insured in accordance with the policy’s or policies’ terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has directors’ and officers’ liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies. Notwithstanding the foregoing, the Company shall have no obligation to obtain or maintain such insurance if the Company determines in good faith that such insurance is not reasonably available, if the premium costs for such insurance are disproportionate to the amount of coverage provided, if the coverage provided by such insurance is limited by exclusions so as to provide an insufficient benefit, or if Indemnitee is covered by similar insurance maintained by a parent or subsidiary of the Company.
(d) Third-Party Indemnification. The Company hereby acknowledges that Indemnitee has or may from time to time obtain certain rights to indemnification, advancement of expenses and/or insurance provided by one or more third parties (collectively, the “Third-Party Indemnitors”). The Company hereby agrees that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Third-Party Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), and that the Company will not assert that the Indemnitee must seek expense advancement or reimbursement, or indemnification, from any Third-Party Indemnitor before the Company must perform its expense advancement and reimbursement, and indemnification obligations, under this Agreement. No advancement or payment by the Third-Party Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing. The Third-Party Indemnitors shall be subrogated to the extent of such advancement or payment to all of the rights of recovery which Indemnitee would have had against the Company if the Third-Party Indemnitors had not advanced or paid any amount to or on behalf of Indemnitee. If for any reason a court of competent jurisdiction determines that the Third-Party Indemnitors are not entitled to the subrogation rights described in the preceding sentence, the Third-Party Indemnitors shall have a right of contribution by the Company to the Third-Party Indemnitors with respect to any advance or payment by the Third-Party Indemnitors to or on behalf of the Indemnitee.
5. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the Expenses, judgments, fines or amounts paid in settlement, actually and reasonably incurred in connection with a Proceeding, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses, judgments, fines and amounts paid in settlement to which Indemnitee is entitled.
6. Severability. Nothing in this Agreement is intended to require or shall be construed as requiring the Company to do or fail to do any act in violation of applicable law. The Company’s inability, pursuant to court order, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. If this Agreement or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify Indemnitee to the fullest extent permitted by any applicable portion of this Agreement that shall not have been invalidated, and the balance of this Agreement not so invalidated shall be enforceable in accordance with its terms.
7. Exclusions. Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement:
(a) To indemnify or advance Expenses to Indemnitee with respect to Proceedings initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to Proceedings brought to establish, enforce, or interpret a right to indemnification under this Agreement or any other statute or law, or otherwise as required under Section 145 of the Delaware General Corporation Law, but such indemnification or advancement of Expenses may be provided by the Company in specific cases if the Board of Directors finds it to be appropriate; provided, however, that the exclusion set forth in the first clause of this subsection shall not be deemed to apply to any investigation initiated or brought by Indemnitee to the extent reasonably necessary or advisable in support of Indemnitee’s defense of a Proceeding to which Indemnitee was, is or is threatened to be made, a party;
(b) To indemnify Indemnitee for any Expenses incurred by Indemnitee with respect to any Proceeding instituted by Indemnitee to establish, enforce or interpret a right to indemnification under this Agreement or any other statute or law, or otherwise as required under Section 145 of the Delaware General Corporation Law, if a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous;
(c) To indemnify Indemnitee for Expenses to the extent such Expenses have been paid directly to Indemnitee by an insurance carrier under an insurance policy maintained by the Company; or
(d) To indemnify Indemnitee in connection with any claim made against Indemnitee for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or any similar successor statute or any similar provisions of state statutory law or common law, or (ii) any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) or Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act); provided, however, that to the fullest extent permitted by applicable law and to the extent Indemnitee is successful on the merits or otherwise with respect to any such Proceeding, the Expenses actually and reasonably incurred by Indemnitee in connection with any such Proceeding shall be deemed to be Expenses that are subject to indemnification hereunder.
8. No Imputation. The knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or the Company itself shall not be imputed to Indemnitee for purposes of determining any rights under this Agreement.
9. Determination of Good Faith. For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise (defined below), including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or the Board of Directors of the Enterprise or any counsel selected by any committee of the Board of Directors of the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser, investment banker, compensation consultant, or other expert selected with reasonable care by the Enterprise or the Board of Directors of the Enterprise or any committee thereof. The provisions of this Section 9 shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct. Whether or not the foregoing provisions of this Section are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company.
10. Defined Terms and Phrases. For purposes of this Agreement, the following terms shall have the following meanings:
(a) “Beneficial Owner” and “Beneficial Ownership” shall have the meanings set forth in Rule 13d-3 promulgated under the Exchange Act as in effect on the date hereof.
(b) “Change of Control” shall be deemed to occur upon the earliest of any of the following events:
(i) Acquisition of Stock by Third Party. Any Person becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors, unless (1) the change in the relative Beneficial Ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors, or (2) such acquisition was approved in advance by the Continuing Directors and such acquisition would not constitute a Change of Control under part (iii) of this definition.
(ii) Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board constitute the Company’s Board of Directors (the “Board”), and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved (“Continuing Directors”), cease for any reason to constitute a least a majority of the members of the Board;
(iii) Corporate Transaction. The effective date of a merger or consolidation of the Company with any other entity (a “Business Combination”), other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty one percent (51%) of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the Board or other governing body of such surviving entity;
(iv) Liquidation. The approval by the Company’s stockholders of a complete liquidation of the Company or an agreement or series of agreements for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than factoring the Company’s current receivables or escrows due (or, if such approval is not required, the decision by the Board to proceed with such a liquidation, sale or disposition in one transaction or a series of related transactions).
(v) Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item or any similar schedule or form) promulgated under the Exchange Act whether or not the Company is then subject to such reporting requirement.
(c) “Enterprise” means the Company and any other enterprise that Indemnitee was or is serving at the request of the Company as a director, officer, partner (general, limited or otherwise), member (managing or otherwise), trustee, fiduciary, employee or agent.
(d) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(e) “Expenses” shall include all direct and indirect costs, fees and expenses of any type or nature whatsoever, including all attorneys’ fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, fees of private investigators and professional advisors, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payment under this Agreement (including taxes that may be imposed upon the actual or deemed receipt of payments under this Agreement with respect to the imposition of federal, state, local or foreign taxes), fax transmission charges, secretarial services and all other disbursements, obligations or expenses in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settlement or appeal of, or otherwise participating in a Proceeding. Expenses also shall include any of the forgoing expenses incurred in connection with any appeal resulting from any Proceeding, including the principal, premium, security for, and other costs relating to any costs bond, supersedes bond, or other appeal bond or its equivalent. Expenses also shall include any interest, assessment or other charges imposed thereon and costs incurred in preparing statements in support of payment requests hereunder. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(f) “Independent Counsel” means an attorney or firm of attorneys, selected in accordance with the provisions of Section 3(c)(iii), who will not have otherwise performed services for the Company or Indemnitee within the last three years (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(g) “Person” shall have the meaning as set forth in Section 13(d) and 14(d) of the Exchange Act as in effect on the date hereof; provided, however, that “Person” shall exclude: (i) the Company; (ii) any direct or indirect majority owned subsidiaries of the Company; (iii) any employee benefit plan of the Company or any direct or indirect majority owned subsidiaries of the Company or of any corporation owned, directly or indirectly, by the Company’s stockholders in substantially the same proportions as their ownership of stock of the Company (an “Employee Benefit Plan”); and (iv) any trustee or other fiduciary holding securities under an Employee Benefit Plan.
(h) “Proceeding” shall include any actual, threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by a third party, a government agency, the Company or its Board of Directors or a committee thereof, whether in the right of the Company or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative, legislative or investigative (formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is, will or might be involved as a party, potential party, non-party witness or otherwise by reason of the fact that Indemnitee is or was a director, officer, employee or agent of the Company, by reason of any action (or failure to act) taken by Indemnitee or of any action (or failure to act) on Indemnitee’s part while acting as a director, officer, employee or agent of the Company, or by reason of the fact that Indemnitee is or was serving at the request of the Company as a director, officer, partner (general, limited or otherwise), member (managing or otherwise), trustee, fiduciary, employee or agent of any other enterprise, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement or advancement of expenses can be provided under this Agreement.
11. Attorneys’ Fees. In the event that any Proceeding is instituted by Indemnitee under this Agreement to enforce or interpret any of the terms hereof, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with such Proceeding, unless a court of competent jurisdiction determines that each of the material assertions made by Indemnitee as a basis for such Proceeding were not made in good faith or were frivolous. In the event of a Proceeding instituted by or in the name of the Company under this Agreement or to enforce or interpret any of the terms of this Agreement, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with such Proceeding (including with respect to Indemnitee’s counterclaims and cross-claims made in such action), unless a court of competent jurisdiction determines that each of Indemnitee’s material defenses to such action were made in bad faith or were frivolous.
12. Miscellaneous.
(a) Governing Law. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the state of Delaware, without giving effect to principles of conflicts of law.
(b) Entire Agreement; Binding Effect. Without limiting any of the rights of Indemnitee described in Section 4(b), this Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions and supersedes any and all previous agreements between them covering the subject matter herein. The indemnification provided under this Agreement applies with respect to events occurring after the effective date of this Agreement, and shall continue to apply even after Indemnitee has ceased to serve the Company in any and all indemnified capacities.
(c) Amendments and Waivers. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.
(d) Successors and Assigns. This Agreement shall be binding upon the Company and its successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, and inure to the benefit of Indemnitee and Indemnitee’s heirs, executors, administrators, legal representatives and assigns. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.
(e) Notices. Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in the Company’s books and records.
(f) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(g) Construction. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.
(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement.
(i) No Employment Rights. Nothing contained in this Agreement is intended to create in Indemnitee any right to continued employment.
(j) Company Position. The Company shall be precluded from asserting, in any Proceeding brought for purposes of establishing, enforcing or interpreting any right to indemnification under this Agreement, that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement and is precluded from making any assertion to the contrary.
(k) Subrogation. Subject to Section 4(e), in the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company to effectively bring suit to enforce such rights.
The parties have executed this Agreement as of the date first set forth above.
| THE COMPANY: | ||
| BUDA JUICE, INC. | ||
| By: | ||
| Name: | ||
| Title | ||
| Address: | 4030 Black Gold Drive, Dallas, Texas 75247 | |
| AGREED TO AND ACCEPTED: | ||
| INDEMNITEE: | ||
| (Print Name) | ||
| (Signature) | ||
| Address: | ||
| Email: | ||
Exhibit 23.1
 |
New York Office:
805 Third Avenue New York, NY 10022 212.838.5100
www.rbsmllp.com |
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the inclusion in this Amendment No. 5 to the Registration Statement on Form S-1 of our report dated August 8, 2025, relating to the financial statements of Buda Juice, LLC as of and for two years in the period ended December 31, 2024.
We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ RBSM LLP
New York, NY
December 12, 2025
New York, NY Washington DC Mumbai & Pune, India San Francisco, CA
Houston, TX Boca Raton, FL Las Vegas, NV Beijing, China Athens, Greece
Member: ANTEA International with affiliated offices worldwide
Exhibit 99.10
CONSENT OF DIRECTOR NOMINEE
In connection with the filing by Buda Juice. LLC (the “Company”) of the Registration Statement on Form S-1, and in all subsequent amendments and post-effective amendments or supplements thereto, with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”). I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors of the Company in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to the Registration Statement and any amendments thereto.
| Dated: | December 12, 2025 | |
| /s/ Mo Hayat | ||
| Name: | Mo Hayat | |