CNTM 8-K
ConnectM Technology Solutions, Inc. (CNTM)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
Blue Ribbon Ice Inc. Acquisition Agreement
On July 1, 2026, the Company entered into and consummated an Acquisition Agreement (the Acquisition Agreement”) by and among the Company, Blue Ribbon Ice Inc. (“BRI”), an Arkansas for-profit corporation and Scott ‘Avery’ Wilson (“Wilson”), an individual, and resident of the state of Arkansas (BRI and Wilson are collectively referred to as the “Seller Parties”).
The Seller Parties are engaged in the business of Commercial HVAC and Refrigeration (the “Business”). Under the Asset Purchase Agreement, the Company agreed to acquire from Seller certain assets used in the Business (the “Assets”).
According to the terms set forth in the Agreement, at the Closing, Wilson sold, assigned, transferred and delivered to the Company, free and clear of all security interests, liens, pledges, encumbrances, charges, restrictions or known claims of any kind, nature, or description, 6,000 shares of the BRI Common Stock held by Wilson, constituting 60% of the issued and outstanding shares of BRI Common Stock (the “Transferred Shares”). In consideration of the acquisition of the Transferred Shares, the Company issued to Wilson 58,824 shares of Common Stock (the “Exchange Shares”); and paid to Wilson the sum of $250,000 (the “Cash Consideration”). The Exchange Shares were issued shall be free of any transfer restrictions, liens, or encumbrances and subject to a valid exemption from registration under the Securities Act.
The Acquisition Agreement contains customary representations, warranties, covenants and indemnification provisions for a transaction of this type.
The foregoing summary of the Acquisition Agreement does not purport to be complete and is qualified in its entirety by reference to the Asset Purchase Agreement filed as Exhibit 10.1 to this Current Report on Form 8-K.
Item 7.01. Regulation FD Disclosure.
On July 28, 2026, the Company announced by press release that, it has acquired Blue Ribbon Ice, a software platform that matches commercial HVAC, refrigeration, and facility-service demand with a vetted, nationwide network of independent contractors in real time. Blue Ribbon Ice becomes part of ConnectM’s AI-Powered Logistics platform, joining the Company’s existing DeliveryCircle business.
The press release is furnished herewith as Exhibit 99.1 and is incorporated by reference herein. The information contained in the press release is being furnished and shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liability of that Section, and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. |
Description | |
| 10.1 | Acquisition Agreement by and Between ConnectM Technology Solutions, Inc., Blue Ribbon Ice, Inc. and Scott ‘Averey’ Wilson, dated July 1, 2026. | |
| 99.1 | Press Release issued by the Registrant on July 28, 2026. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: July 28, 2026
| ConnectM Technology Solutions, Inc. | ||
| By: | /s/ Bhaskar Panigrahi | |
| Name: | Bhaskar Panigrahi | |
| Title: | Chief Executive Officer | |
Exhibit 10.1
Acquisition Agreement
BY AND AMONG
Connectm Technology Solutions, Inc.;
Blue Ribbon Ice Inc.
AND
Scott ‘Avery’ Wilson
Table of Contents
| Article I. Definitions and Interpretation | 1 | |
| Section 1.01 | Defined Terms | 1 |
| Section 1.02 | Interpretation | 5 |
| Article II. The Transactions | 5 | |
| Section 2.01 | Acquisition | 5 |
| Section 2.02 | Closing | 6 |
| Section 2.03 | Closing Deliverables | 6 |
| Section 2.04 | Additional Actions at the Closing | 7 |
| Section 2.05 | Contingent Earn-Out Payments | 8 |
| Section 2.06 | Payments on Change of Control | 9 |
| Section 2.07 | Put Option | 10 |
| Section 2.08 | Efforts | 12 |
| Article III. Representations and Warranties of the BRI Parties | 12 | |
| Section 3.01 | Organization and Qualification | 12 |
| Section 3.02 | Organizational Documents | 13 |
| Section 3.03 | Authorization of Agreement; Etc. | 13 |
| Section 3.04 | No Conflict | 13 |
| Section 3.05 | Equity Interests | 13 |
| Section 3.06 | Liabilities | 14 |
| Section 3.07 | Litigation and Proceedings | 14 |
| Section 3.08 | General Compliance | 14 |
| Section 3.09 | Compliance with Laws; Permits | 15 |
| Section 3.10 | Contracts | 15 |
| Section 3.11 | Bank Accounts; Power of Attorney | 16 |
| Section 3.12 | Disclosure | 16 |
| Section 3.13 | Intellectual Property | 16 |
| Section 3.14 | Condition and Sufficiency of Assets | 17 |
| Section 3.15 | Accounts Receivable | 17 |
| Section 3.16 | Title | 17 |
| Section 3.17 | Insurance | 18 |
| Section 3.18 | Taxes | 18 |
| Section 3.19 | Transactions with Affiliates | 19 |
| Section 3.20 | Foreign Corrupt Practices | 19 |
| Section 3.21 | Money Laundering | 20 |
| Section 3.22 | Illegal or Unauthorized Payments; Political Contributions | 20 |
| Section 3.23 | Environmental Laws | 20 |
| Section 3.24 | Investment Company | 20 |
| Section 3.25 | No Disqualification Events | 20 |
| Section 3.26 | No Brokers | 20 |
| Section 3.27 | Disclosure | 21 |
| Section 3.28 | Accredited Investor | 21 |
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| Article IV. Representations and Warranties of ConnectM | 22 | |
| Section 4.01 | Organization | 22 |
| Section 4.02 | Power and Authority | 22 |
| Section 4.03 | Authorization of Agreement; Etc. | 22 |
| Section 4.04 | No Conflict | 22 |
| Section 4.05 | Approval of Agreement and of Issuance of Shares | 22 |
| Section 4.06 | No Brokers | 22 |
| Section 4.07 | Litigation and Compliance | 23 |
| Section 4.08 | Capitalization and Solvency | 23 |
| Section 4.09 | Tax Matters | 23 |
| Section 4.10 | No Undisclosed Agreements | 24 |
| Section 4.11 | Disclosure | 24 |
| Article V. Covenants and Additional Agreements of the Parties | 24 | |
| Section 5.01 | Right of First Refusal | 24 |
| Section 5.02 | Tag-Along Rights | 25 |
| Section 5.03 | Drag-Along Rights | 27 |
| Section 5.04 | Approval Rights | 28 |
| Section 5.05 | Information Rights | 28 |
| Section 5.06 | Confidentiality | 28 |
| Section 5.07 | Consents of Third Parties | 33 |
| Section 5.08 | Notices of Certain Events | 33 |
| Section 5.09 | Further Assurances | 34 |
| Article VI. Survival; Indemnification | 34 | |
| Section 6.01 | Survival | 34 |
| Section 6.02 | Indemnification by Mr. Wilson | 34 |
| Section 6.03 | Indemnification by ConnectM | 35 |
| Section 6.04 | Indemnification Procedures | 35 |
| Section 6.05 | Payments | 37 |
| Section 6.06 | Certain Limitations | 37 |
| Section 6.07 | Tax Treatment of Indemnification Payments | 37 |
| Section 6.08 | Effect of Investigation | 37 |
| Section 6.09 | Exclusive Remedy | 38 |
| Section 6.10 | Earn-Out Dispute Resolution | 38 |
| Article VII. Miscellaneous | 38 | |
| Section 7.01 | Notices | 38 |
| Section 7.02 | Governing Law | 39 |
| Section 7.03 | Jurisdiction | 39 |
| Section 7.04 | Waiver of Jury Trial | 40 |
| Section 7.05 | Dispute Resolution | 40 |
| Section 7.06 | Specific Performance | 41 |
| Section 7.07 | Limitation on Damages | 41 |
| Section 7.08 | Attorneys’ Fees | 41 |
| Section 7.09 | Public Announcements and Filings | 41 |
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| Section 7.10 | Third-Party Beneficiaries | 41 |
| Section 7.11 | Expenses | 41 |
| Section 7.12 | Entire Agreement | 41 |
| Section 7.13 | Construction | 42 |
| Section 7.14 | Amendment or Waiver | 42 |
| Section 7.15 | Commercially Reasonable Efforts | 42 |
| Section 7.16 | Successors and Assigns | 43 |
| Section 7.17 | Counterparts | 43 |
| Exhibit A | Stock Power |
| Exhibit B | Form of Put Notice |
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ACQUISITION AGREEMENT
Dated as of June [___], 2026
This Acquisition Agreement (this “Agreement”) is entered into as of the date first set forth above (the “Closing Date”), by and among (i) ConnectM Technology Solutions, Inc., a Delaware for-profit corporation (“ConnectM”); (ii) Blue Ribbon Ice Inc., an Arkansas for-profit corporation (“BRI”); and (iii) Scott ‘Avery’ Wilson, an individual and resident of the State of Arkansas (“Mr. Wilson”). BRI and Mr. Wilson may be referred to herein collectively as the “BRI Parties” and each individually as a “BRI Party”. Each of ConnectM and the BRI Parties may be referred to herein collectively as the “Parties” and each individually as a “Party.”
Recitals:
WHEREAS, Mr. Wilson is the sole shareholder of BRI, holding 10,000 shares of common stock, par value $0.0120 per share of BRI (the “BRI Common Stock”), and Mr. Wilson desires to sell to ConnectM, and ConnectM desires to acquire from Mr. Wilson, certain of the shares of the BRI Common Stock held by Mr. Wilson as set forth herein, and the Parties desire to undertake certain additional transaction as set forth herein;
WHEREAS the transactions as set forth above, and in this Agreement overall, are referred to collectively, as the “Transactions”) and this Agreement is being entered into for the purpose of setting forth the terms and conditions of the Transactions;
NOW THEREFORE, on the stated premises and for and in consideration of the mutual covenants and agreements hereinafter set forth and the mutual benefits to the Parties to be derived here from, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
Article I. Definitions and Interpretation
Section 1.01 Defined Terms. In addition to the other terms defined herein, for purposes of this Agreement, the following terms shall have the following meanings:
| (a) | “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity. |
| (b) | “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) 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 the ownership of voting securities, by Contract or otherwise. |
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| (c) | “Board of ConnectM” means the Board of Directors of ConnectM. |
| (d) | “Business Day” shall mean any day on which commercial banks are open for business in Arkansas. |
| (e) | “Common Stock” means the common stock, par value $0.0001 per share, of ConnectM. |
| (f) | “Contracts” means all contracts, leases, deeds, mortgages, licenses, instruments, notes, commitments, undertakings, indentures, joint ventures and all other agreements, commitments and legally binding arrangements, whether written or oral. |
| (g) | “Derivatives” means any options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any character relating to the Equity Securities of BRI or obligating BRI to issue or sell any of its Equity Securities. |
| (h) | “EBITDA” means the earnings of BRI before interest, taxes, depreciation and amortization, in each case determined consistently with GAAP; provided that, in calculating “EBITDA”, the following will not be taken into account: (a) any transaction expenses incurred as a result of the Transactions, (b) any impact, whether positive or negative, relating to any future business acquisitions (including any transaction expenses incurred as a result of any such future acquisition and the earnings of the target entity in such future acquisition), (c) any extraordinary gains or losses, as defined by GAAP, on the sale or other disposition of assets, and (d) the impact of any PPP Loan and any other COVID-19 Relief (or the forgiveness thereof), except for any expenses paid from the proceeds thereof and treated as a deduction in taxable income. |
| (i) | “Encumbrance” means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership in the amount of $1,000 or more. |
| (j) | “Enforceability Exceptions” means (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar Laws of general application affecting enforcement of creditors’ rights generally and (b) general principles of equity. |
| (k) | “Equity Security” means, in respect of any Person, (a) any capital stock or similar security, (b) any security convertible into or exchangeable for any security described in clause (a), (c) any option, warrant, or other right to purchase or otherwise acquire any security described in clauses (a), (b), or (c), and, (d) any “equity security” within the meaning of the Exchange Act. |
| (l) | “Exchange Act” means the Securities Exchange Act of 1934, as amended. |
| (m) | “Fiscal Year of BRI” means the period of January 1 to December 31 of each year. |
| (n) | “Fundamental Representations” shall mean (i) with respect to Mr. Wilson, the representations and warranties as set forth in Section 3.01, Section 3.03, Section 3.04, Section 3.05, Section 3.13, Section 3.18, Section 3.26 and Section 3.28; and (ii) with respect to ConnectM, the representations and warranties as set forth in Section 4.01, Section 4.02, Section 4.03 and Section 4.06. |
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| (o) | “GAAP” means United States generally accepted accounting principles as in effect from time to time. |
| (p) | “Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction. |
| (q) | “Intellectual Property” means all of the following and similar intangible property and related proprietary rights, interests and protections, however arising, pursuant to the Laws of any jurisdiction throughout the world: (i) trademarks, service marks, trade names, brand names, logos, trade dress and other proprietary indicia of goods and services, whether registered or unregistered, and all registrations and applications for registration of such trademarks, including intent-to-use applications, all issuances, extensions and renewals of such registrations and applications and the goodwill connected with the use of and symbolized by any of the foregoing; (ii) internet domain names, whether or not trademarks, registered in any top-level domain by any authorized private registrar or Governmental Authority; (iii) original works of authorship in any medium of expression, whether or not published, all copyrights (whether registered or unregistered), all registrations and applications for registration of such copyrights, and all issuances, extensions and renewals of such registrations and applications; (iv) confidential information, formulas, designs, devices, technology, know-how, research and development, inventions, methods, processes, compositions and other trade secrets, whether or not patentable; and (v) patented and patentable designs and inventions, all design, plant and utility patents, letters patent, utility models, pending patent applications and provisional applications and all issuances, divisions, continuations, continuations-in-part, reissues, extensions, reexaminations and renewals of such patents and applications. |
| (r) | “Knowledge of BRI” means the knowledge, assuming due inquiry, of Mr. Wilson or of any director or executive officer of BRI. |
| (s) | “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any Governmental Authority. |
| (t) | “Losses” means losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers; provided, however, that “Losses” shall not include (i) punitive damages, except in the case of fraud or to the extent actually awarded to a Governmental Authority or other third party or (ii) lost profits or consequential damages, in any case. |
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| (u) | “Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of the affected Party, or (b) the ability of the affected Party to consummate the Transactions on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition, or change, directly or indirectly, arising out of or attributable to: (i) any changes, conditions or effects in the United States economy or securities or financial markets in general; (ii) changes, conditions or effects that generally affect the industries in which the affected Party operates; (iii) any change, effect or circumstance resulting from an action required or permitted by this Agreement; or (iv) conditions caused by acts of terrorism or war (whether or not declared); provided further, however, that any event, occurrence, fact, condition, or change referred to in clauses (i), (ii) or (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred to the extent that such event, occurrence, fact, condition, or change has a disproportionate effect on the affected Party compared to other participants in the industries in which the affected Party conducts its business. |
| (v) | “Ordinary Course of Business” means an action which is taken in the ordinary course of the normal day-to-day operations of the Person taking such action consistent with the past practices of such Person, is not required to be authorized by the board of directors of such Person (or by any Person or group of Persons exercising similar authority) and is similar in nature and magnitude to actions customarily taken, without any authorization by the board of directors (or by any Person or group of Persons exercising similar authority), in the ordinary course of the normal day-to-day operations of other Persons that are in the same line of business as such Person. |
| (w) | “Organizational Documents”, as to any Person, means the Certificate of Incorporation, Articles of Incorporation, Bylaws, Certificate of Formation, Operating Agreement, Shareholders’ Agreement and other similar or constating or operative entity documents of such Person, as applicable. |
| (x) | “Permits” means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained, or required to be obtained, from Governmental Authorities. |
| (y) | “Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity. |
| (z) | “Representative” means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person. |
| (aa) | “Revenue Growth” means BRI’s absolute revenue growth for one Fiscal Year of BRI over the prior Fiscal Year of BRI calculated in accordance with GAAP year-over-year, and whether positive or negative. |
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| (bb) | “Tax Return” means any return, declaration, report, claim for refund, information return or statement or other document relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof. |
| (cc) | “Taxes” means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties. |
| (dd) | “Transaction Documents” means this Agreement, the Stock Power, and any other certificate, agreement or document entered into or delivered in connection with the Transactions as contemplated herein or therein. |
Section 1.02 Interpretation. Unless the express context otherwise requires (i) the words “hereof,” “herein,” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (ii) terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa; (iii) the terms “Dollars” and “$” mean United States Dollars; (iv) references herein to a specific Section, Subsection, Recital or Exhibit shall refer, respectively, to Sections, Subsections, Recitals or Exhibits of this Agreement; (v) wherever the word “include,” “includes,” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”; (vi) references herein to any gender shall include each other gender; (vii) references herein to any Person shall include such Person’s heirs, executors, personal Representatives, administrators, successors and assigns; provided, however, that nothing contained in this Section 1.02 is intended to authorize any assignment or transfer not otherwise permitted by this Agreement; (viii) references herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity; (ix) references herein to any Contract or agreement (including this Agreement) mean such Contract or agreement as amended, supplemented or modified from time to time in accordance with the terms thereof; (x) with respect to the determination of any period of time, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; (xi) references herein to any Law or any license mean such Law or license as amended, modified, codified, reenacted, supplemented or superseded in whole or in part, and in effect from time to time; and (xii) references herein to any Law shall be deemed also to refer to all rules and regulations promulgated thereunder.
Article II. The Transactions
Section 2.01 Acquisition.
| (a) | On the terms and subject to the conditions set forth in this Agreement, at the Closing (as defined below), Mr. Wilson shall sell, assign, transfer and deliver to ConnectM, free and clear of all security interests, liens, pledges, encumbrances, charges, restrictions or known claims of any kind, nature, or description, 6,000 shares of the BRI Common Stock held by Mr. Wilson, constituting 60% of the issued and outstanding shares of BRI Common Stock (the “Transferred Shares”); |
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| (b) | In consideration of the acquisition of the Transferred Shares, ConnectM shall (i) issue to Mr. Wilson 58,824 shares of Common Stock (the “Exchange Shares”); and (ii) shall pay to Mr. Wilson the sum of $250,000 (the “Cash Consideration”). |
| (c) | The Exchange Shares issued shall be free of any transfer restrictions, liens, or encumbrances and subject to a valid exemption from registration under the Securities Act. |
| (d) | Mr. Wilson shall be responsible for the payment of any and all Taxes that may be imposed on Mr. Wilson pursuant to the Transactions. |
Section 2.02 Closing. The closing of the Transactions as set forth in Section 2.01 (the “Closing”) shall occur on the Closing Date immediately following the execution of this Agreement.
Section 2.03 Closing Deliverables.
| (a) | At the Closing, the BRI Parties shall deliver to ConnectM: |
| (i) | a certificate of Mr. Wilson and of a duly authorized officer of BRI dated as of the Closing Date, in form and substance satisfactory to ConnectM (A) certifying the name, title and true signature of each director or officer of BRI executing or authorized to execute this Agreement, the Transaction Documents, and such other documents, instruments and certifications required or contemplated hereby or thereby, and (B) attaching and certifying (i) a true, correct and complete copy of Organizational Documents of BRI as of the Closing, certified by the applicable Governmental Authority, and (ii) a certificate of good standing and legal existence of BRI issued by the applicable Governmental Authority, and each dated as of a date no earlier than three Business Days prior to the Closing Date; |
| (ii) | the Stock Power in the form as attached hereto as Exhibit A (the “Stock Power”) with respect to the Transferred Shares, duly executed by Mr. Wilson; |
| (iii) | reasonable evidence of the completion of the actions as set forth in Section 2.04(a); |
| (iv) | The Employment Agreements (as defined below), duly executed by Mr. Wilson on behalf of BRI and by each counterparty thereto; and |
| (v) | such other documents as ConnectM may reasonably request for the purpose of evidencing the accuracy of the BRI Parties’ representations and warranties; evidencing the performance by the BRI Parties of, or the compliance by the BRI Parties with, any covenant or obligation required to be performed or complied with by any of the BRI Parties; or otherwise facilitating the consummation or performance of any of the Transactions. |
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| (b) | At the Closing, ConnectM shall: |
| (i) | Issue the Exchange Shares to Mr. Wilson, and the Parties acknowledge and agree that the Exchange Shares shall be issued in book entry format and shall not be certificated; |
| (ii) | Pay the Cash Consideration to Mr. Wilson pursuant to wire instructions as provided by Mr. Wilson to ConnectM; |
| (iii) | Deliver to BRI on behalf of the BRI Parties, a certificate of a duly authorized officer of ConnectM dated as of the Closing Date, in form and substance satisfactory to the BRI Parties (A) certifying the name, title and true signature of each manager or officer of ConnectM executing or authorized to execute this Agreement, the Transaction Documents, and such other documents, instruments and certifications required or contemplated hereby or thereby, and (B) attaching and certifying (i) a true, correct and complete copy of Organizational Documents of ConnectM as of the Closing, certified by the applicable Governmental Authority, and (ii) a certificate of good standing and legal existence of ConnectM issued by the applicable Governmental Authority, and each dated as of a date no earlier than three Business Days prior to the Closing Date; and |
| (iv) | Deliver to the BRI Parties such other documents as the BRI Parties may reasonably request for the purpose of evidencing the accuracy of ConnectM’s representations and warranties; evidencing the performance by ConnectM of, or the compliance by ConnectM with, any covenant or obligation required to be performed or complied with by ConnectM; or otherwise facilitating the consummation or performance of any of the Transactions. |
| (c) | At and following the Closing, each of the Parties shall execute, acknowledge, and deliver (or shall ensure to be executed, acknowledged, and delivered), any and all certificates, financial statements, schedules, agreements, resolutions, rulings or other instruments required by this Agreement to be so delivered at or prior to the Closing, together with such other items as may be reasonably requested by the Parties hereto and their respective legal counsel in order to effectuate or evidence Transactions. |
Section 2.04 Additional Actions at the Closing.
| (a) | At the Closing, BRI shall take such actions to name Bhaskar Panigrahi to the Board of Directors of BRI, such that the Board of Directors of BRI shall consist solely of Mr. Wilson and Bhaskar Panigrahi. |
| (b) | At the Closing, the Parties shall undertake such actions as required such that ConnectM assumes all debt of BRI which is less than $250,000 as of the Closing Date. |
| (c) | At the Closing, BRI shall enter into an employment agreement with each of Mr. Wilson, and all employees of BRI in form and substance as to be agreed between BRI, ConnectM and each of such persons (collectively, the “Employment Agreements”), which Employment Agreements will be jointly prepared by the Parties and subject to each Party’s reasonable approval. |
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Section 2.05 Contingent Earn-Out Payments.
| (a) | Subject to the terms and conditions herein, including as set forth in Section 2.05(c), Mr. Wilson shall have the opportunity to receive the following additional payments following the Closing (collectively, the “Earn-Out Payments”): |
| (i) | On or before February 15, 2027, ConnectM shall pay to Mr. Wilson an amount in cash equal to the average of (1) 20% the Revenue Growth of BRI between the 2026 Fiscal Year of BRI and the 2025 Fiscal Year of BRI; and (2) 50% of the EBITDA of BRI for the 2026 Fiscal Year of BRI. |
| (ii) | On or before February 15, 2028, ConnectM shall pay to Mr. Wilson an amount in cash equal to the average of (1) 20% the Revenue Growth of BRI between the 2027 Fiscal Year of BRI and the 2026 Fiscal Year of BRI; and (2) 50% of the EBITDA of BRI for the 2027 Fiscal Year of BRI. |
| (iii) | On or before February 15, 2029, ConnectM shall pay to Mr. Wilson an amount in cash equal to the average of (1) 20% the Revenue Growth of BRI between the 2028 Fiscal Year of BRI and the 2027 Fiscal Year of BRI; and (2) 50% of the EBITDA of BRI for the 2028 Fiscal Year of BRI. |
| (iv) | On or before February 15, 2030, ConnectM shall pay to Mr. Wilson an amount in cash equal to the average of (1) 20% the Revenue Growth of BRI between the 2029 Fiscal Year of BRI and the 2028 Fiscal Year of BRI; and (2) 50% of the EBITDA of BRI for the 2029 Fiscal Year of BRI. |
| (v) | On or before February 15, 2031, ConnectM shall pay to Mr. Wilson an amount in cash equal to the average of (1) 20% the Revenue Growth of BRI between the 2030 Fiscal Year of BRI and the 2029 Fiscal Year of BRI; and (2) 50% of the EBITDA of BRI for the 2030 Fiscal Year of BRI. |
| (b) | By way of example and not limitation, in the event that the Revenue Growth of BRI between the 2026 Fiscal Year of BRI and the 2025 Fiscal Year of BRI was $100,000, and the EBITDA of BRI for the 2026 Fiscal Year of BRI was $200,000, the Earn-Out Payment as set forth in Section 2.05(a)(i) would be $60,000 (the average of $20,000 (20% of the Revenue Growth) and $100,000 (50% of $200,000)). |
| (c) | Notwithstanding the provisions of Section 2.05(a), and subject to the provisions of Section 2.06, ConnectM, may, with the prior written consent of Mr. Wilson (such consent not to be unreasonably withheld, conditioned, or delayed), elect to pay to Mr. Wilson the following amounts (the “Pre-Payment Amounts”) in lieu of any unpaid Earn-Out Payments, and upon any such payment, ConnectM shall no longer be obligated to make any additional Earn-Out Payments as set forth in Section 2.05(a): |
| (i) | On or before December 31, 2026, an amount equal to $4,000,000 minus the Cash Consideration minus any Earn-Out Payments previously paid to Mr. Wilson as of such payment date. |
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| (ii) | On or before December 31, 2027, an amount equal to $3,500,000 minus the Cash Consideration minus any Earn-Out Payments previously paid to Mr. Wilson as of such payment date. |
| (iii) | On or before December 31, 2028, an amount equal to $3,000,000 minus the Cash Consideration minus any Earn-Out Payments previously paid to Mr. Wilson as of such payment date. |
| (iv) | On or before December 31, 2029, an amount equal to $2,500,000 minus the Cash Consideration minus any Earn-Out Payments previously paid to Mr. Wilson as of such payment date. |
| (v) | On or before December 31, 2030, an amount equal to $1,500,000 minus the Cash Consideration minus any Earn-Out Payments previously paid to Mr. Wilson as of such payment date. |
| (d) | Any payment of Pre-Payment Amounts to Mr. Wilson pursuant to this Section 2.05 shall be paid to Mr. Wilson via wire transfer pursuant to wire transfer instructions as provided by Mr. Wilson to ConnectM. |
Section 2.06 Payments on Change of Control.
| (a) | For purposes herein, “Change of Control” means any Persons other than ConnectM and Mr. Wilson holding, collectively, more than 51% of the issued and outstanding shares of BRI Common Stock. |
| (b) | Upon the occurrence of a Change of Control, ConnectM will, in lieu of the payment of any Earn-Out Payments or Pre-Payment Amounts pursuant to Section 2.05 and in full satisfaction of all other obligations of ConnectM hereunder, pay to Mr. Wilson an amount equal to (1) the lesser of (A) 70% of the net proceeds (after deducting applicable costs, expenses and taxes) actually received by ConnectM as a result of such Change of Control and (B) the then-applicable Prepayment Amount applicable for the prior Fiscal Year of BRI, as set forth in Section 2.05(c), minus (2) the Cash Consideration, minus (3) any Earn-Out Payments previously paid to Mr. Wilson as of such payment date (the “Change of Control Payment”). |
| (c) | Any payment of the Change of Control Payment to Mr. Wilson pursuant to this Section 2.06 shall be paid to Mr. Wilson via wire transfer pursuant to wire transfer instructions as provided by Mr. Wilson to ConnectM. |
| (d) | Upon consummation of a Change of Control and payment of the Change of Control Payment, the provisions of Section 2.07, Section 5.01, Section 5.02, Section 5.03, Section 5.04 and Section 5.05 shall cease to apply or remain operative. |
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Section 2.07 Put Option.
| (a) | Subject to the provisions of Section 2.06(d) and the other terms and conditions herein, at any time between April 1 and June 30 of each year from 2027 to 2031 (as to each such year, the “Put Period”), Mr. Wilson shall have the right to require ConnectM to acquire 800 (subject to adjustment as set forth in Section 2.07(h)) of the shares of BRI Common Stock held by Mr. Wilson immediately prior to the Closing, constituting 8% of the issued and outstanding shares of BRI Common Stock immediately prior to the Closing (as to each such Put Period, the “Put Shares”), in exchange for the consideration as set forth in this Section 2.07. For the avoidance of doubt, the number of Put Shares that may be put to ConnectM pursuant to this Section 2.07 shall be all or none of the number of shares of BRI Common Stock as set forth above with respect to each Put Period, and Mr. Wilson’s rights pursuant to this Section 2.07 may not be exercised in part. Any shares of BRI Common Stock with respect to which Mr. Wilson does not elect to exercise his put rights pursuant to Section 2.07(a) with respect to one Put Period shall not carry over to any subsequent Put Period. |
| (b) | Mr. Wilson shall exercise his rights pursuant to this Section 2.07 by delivering to ConnectM a notice in the form as attached hereto as Exhibit B (the “Put Notice”). |
| (c) | Within five Business Days of the receipt by ConnectM of a Put Notice, ConnectM and Mr. Wilson shall jointly agree on an independent third-party appraiser who has material experience in the valuation of companies such as BRI (the “Appraiser”). In the event that ConnectM and Mr. Wilson cannot agree on the identity of the Appraiser within such five Business Day period, each of ConnectM and Mr. Wilson shall select one appraiser meeting the requirements above within an additional five Business Day period, and the two appraisers so selected shall select the sole Appraiser, meeting the requirements above, who shall undertake the actions in this Section 2.07(c). Upon final identification of the Appraiser, ConnectM and Mr. Wilson shall cause the Appraiser to undertake a review and valuation of BRI and of the applicable Put Shares, in each case as of the date of delivery of the Put Note, and to deliver to ConnectM and Mr. Wilson the Appraiser’s determination of the valuation of the applicable Put Shares (as to each applicable group of Put Shares, the “Appraiser’s Valuation”). The costs of obtaining any Appraiser’s Valuation shall be paid 50% by ConnectM and 50% by Mr. Wilson. |
| (d) | The purchase price for the applicable Put Shares shall be an amount (the “Put Price”) equal to the greater of: |
| (i) | 40% of the EBITDA of BRI in the Fiscal Year of BRI immediately prior to the date of delivery of the Put Notice; and |
| (ii) | The Appraiser’s Valuation with respect to the applicable Put Shares as of the date of delivery of the applicable Put Notice. |
| (e) | Subject to the satisfaction of the conditions precedent set forth in Section 2.07(f), the closing of the purchase and sale of the applicable Put Shares pursuant to the applicable Put Notice (each, a “Put Closing”) shall occur on the second Business Day following the receipt of the Appraiser’s Valuation by ConnectM and Mr. Wilson (the “Put Closing Date”). On the Put Closing Date: |
| (i) | Mr. Wilson shall deliver to ConnectM: |
| (1) | a stock power in the form as attached to the Put Notice as Annex 1, with the applicable number of Put Shares inserted, duly executed by Mr. Wilson; and |
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| (2) | a certificate of Mr. Wilson in the form as attached to the Put Notice as Annex 2, dated as of the Put Closing Date, duly executed by Mr. Wilson. |
| (ii) | ConnectM shall deliver to Mr. Wilson the Put Price, via wire transfer pursuant to wire instructions provided by Mr. Wilson to ConnectM. |
| (f) | The obligations of ConnectM to complete a Put Closing shall be subject to the satisfaction of the following conditions precedent: |
| (i) | Each of the representations and warranties of the Mr. Wilson set forth in Section 3.01(b), Section 3.03, Section 3.04, Section 3.05(c) and Section 3.26 shall be true and correct in all material respects, other than with respect to any such representations and warranties which are qualified by materiality and the representations and warranties as set forth in Section 3.05(c), which shall each be true and correct in all respects, as of the Put Closing Date as if made on such Put Closing Date, and provided that for purposes of this Section 2.07(f)(i) any references in Section 3.05(c) to the Transferred Shares shall be deemed a reference to the applicable Put Shares; and |
| (ii) | Mr. Wilson shall have performed or complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with by Mr. Wilson prior to or at the Put Closing Date. |
| (g) | If, at any time prior to a Put Closing the BRI Common Stock is converted into another class of securities of BRI or any successor entity to BRI, whether by way of merger, reorganization, re-incorporation or otherwise (the “Replacement Securities”), any reference herein to the BRI Common Stock (whether standing alone or as part of another defined term herein) automatically upon the consummation of the applicable transaction shall be deemed a reference to such Replacement Securities. In the event that BRI completes a share exchange with another entity wherein all of the issued and outstanding shares of BRI Common Stock are exchanged for equity interests in the other entity (the “Exchanged Securities”), any reference herein to the BRI Common Stock (whether standing alone or as part of another defined term herein) automatically upon the consummation of the applicable transaction shall be deemed a reference to such Exchanged Securities. The adjustments in this Section 2.07(g) shall be undertaken each time any such event occurs. |
| (h) | If, at any time prior to a Put Closing there occurs a forward or reverse stock split of the BRI Common Stock, the number of shares of BRI Common Stock as reference in Section 2.07(a) shall be equitably adjusted. By way of example and not limitation, in the event of a 1-for-2 reverse stock split of the BRI Common Stock, in which each 2 shares of BRI Common Stock are converted into one share of BRI Common Stock, the number of shares of BRI Common Stock referenced in Section 2.07(a) shall be reduced by 50%, and in the event of a 2-for-1 forward split of the BRI Common Stock, in which each share of BRI Common Stock is converted into two shares of BRI Common Stock, the number of shares of BRI Common Stock as referenced in Section 2.07(a) shall be increased by 100%. The adjustments in this Section 2.07(h) shall be undertaken each time any such event occurs. |
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| (i) | In the event that there exists any legal prohibition as to the completion of any Put Closing or Call Closing, the obligation of ConnectM and Mr. Wilson to complete such Put Closing shall be suspended for the period of such prohibition, provided, however, that ConnectM and Mr. Wilson shall use their commercially reasonable efforts to cause such legal prohibition to be lifted such that the Put Closing may be completed. Notwithstanding the forgoing, (a) ConnectM shall not be obligated to exert any efforts to lift a legal prohibition that is caused by the action or inaction of Mr. Wilson, (b) Mr. Wilson shall not be obligated to exert any efforts to lift a legal prohibition that is caused by the action or inaction of ConnectM; and (c) neither ConnectM nor Mr. Wilson shall be obligated to exert any efforts to lift a legal prohibition that applies to all Persons generally and is not directed towards ConnectM or Mr. Wilson. |
Section 2.08 Efforts. ConnectM and BRI as a subsidiary of ConnectM shall operate the business of BRI in good faith and shall not take any actions, or omit to take any actions, the primary purpose of which is to reduce or avoid the achievement of Revenue Growth, EBITDA, or Earn-Out Payments, the amount of any Change of Control Payment, any Appraiser’s Valuation, any Put Price, or any payments pursuant to Section 2.05 or Section 2.06 and/or Section 2.07. Notwithstanding the foregoing, ConnectM and BRI shall retain the right to operate their respective businesses in such manner as the Boards of Directors and management of each of ConnectM and BRI may deem fit, provided that such operation is undertaken in compliance with the provisions of this Section 2.08.
Article III. Representations and Warranties of the BRI Parties
As an inducement to the consummation of the Transactions, the BRI Parties, jointly and severally, represent and warrant to ConnectM, except as set forth in the schedules of exceptions to the representations of BRI Parties as delivered to ConnectM on the Closing Date (“Disclosure Schedules”), as follows:
Section 3.01 Organization and Qualification.
| (a) | BRI is a corporation, duly organized, validly existing, and in good standing under the Laws of the State of Arkansas and has the power and is duly authorized under all applicable Laws, regulations, ordinances and orders of public authorities, to carry on its business in all material respects as it is now being conducted. BRI has not qualified to do business in any State other than Arkansas. To the Knowledge of BRI, no proceeding has been instituted in any jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail the power and authority or qualification of BRI within such jurisdiction. |
| (b) | Mr. Wilson is a natural person and has the power and is duly authorized under all applicable Laws, regulations, ordinances and orders of public authorities, to carry on his business in all material respects as it is now being conducted. |
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| (c) | BRI has no subsidiaries and does not hold of record or beneficially any Equity Securities of any other Person. |
Section 3.02 Organizational Documents.
| (a) | The Articles of Incorporation and bylaws of BRI (collectively, the “BRI Organizational Documents”) are attached in Section 3.02(a) of the Disclosure Schedules. BRI has taken all actions required by Laws, the BRI Organizational Documents, or otherwise to authorize the execution and delivery of this Agreement. |
| (b) | Each BRI Party has full power, authority, and legal capacity to execute this Agreement and to consummate the Transactions. |
Section 3.03 Authorization of Agreement; Etc. The execution, delivery and performance of this Agreement by each BRI Party, and the consummation of Transactions, have been duly authorized by each BRI Party and by any other Persons as required. This Agreement has been duly executed and delivered on behalf of each BRI Party. This Agreement constitutes a valid and binding obligation of each BRI Party enforceable in accordance with its terms, except that such enforcement may be limited by the Enforceability Exceptions, and subject to the qualification that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefore may be brought.
Section 3.04 No Conflict. The execution of this Agreement and the consummation of the Transactions (i) will not violate any provision of any Organizational Document of any BRI Party; (ii) will not, with or without notice, lapse of time or both, result in the breach of any term or provision of, constitute a default under, or terminate, accelerate or modify the terms of any indenture, mortgage, deed of trust, or other material agreement, or instrument to which any BRI Party is a party or to which any of its assets, properties or operations are subject; (iii) violate any provision of Laws, statute, rule, regulation or executive order to which any BRI Party is subject; or (iv) violate any judgment, order, writ or decree of any court applicable to any BRI Party.
Section 3.05 Equity Interests.
| (a) | The authorized equity interests of BRI are comprised of 10,000 shares of BRI Common Stock, of which 10,000 shares are issued and outstanding, and all of which are held beneficially and of record by Mr. Wilson. None of the outstanding shares of BRI Common Stock were issued in violation of the preemptive or other rights of any shareholders or other Person. The Transferred Shares constitute 60% of the issued and outstanding equity interests of BRI. |
| (b) | There are no outstanding or authorized Derivatives with respect to BRI. BRI does not have outstanding or authorized any stock appreciation, phantom stock, profit participation or similar rights. There are no voting trusts, shareholders’ agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of any of the BRI Common Stock other than the BRI Organizational Documents. |
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| (c) | Mr. Wilson is the record and beneficial owner of, and has good title to the BRI Common Stock as set forth herein, with the right and authority to sell and deliver the Transferred Shares to ConnectM, free and clear of all liens, claims, charges, encumbrances, pledges, mortgages, security interests, options, rights to acquire, proxies, voting trusts or similar agreements, restrictions on transfer or adverse claims of any nature whatsoever (collectively, “Liens”). None of the Transferred Shares is subject to pre-emptive or similar rights, either pursuant to any BRI Organizational Document, requirement of Laws or any Contract, and no BRI Party has any pre-emptive rights or similar rights to purchase or receive any Transferred Shares or other interests in BRI. Mr. Wilson has the power and authority to transfer the Transferred Shares to ConnectM as contemplated pursuant to the terms of this Agreement and upon delivery of any certificate or certificates duly assigned, representing the same as herein contemplated and/or upon registering ConnectM or its designee as the new owner of the Transferred Shares in the records maintained by BRI listing the names of stockholders and their respective ownership of BRI Common Stock, ConnectM or its designee will receive good title to the Transferred Shares, free and clear of all Liens. |
Section 3.06 Liabilities. Section 3.06 of Disclosure Schedules sets forth, separately, (i) a true, correct and complete list of all outstanding loans, lines of credit and other indebtedness incurred by BRI, inclusive of any outstanding loans, lines of credit and other indebtedness incurred by BRI, the repayment obligations for which are secured by any of BRI’s assets; (ii) with respect to each loan described in the foregoing clause, the remaining amounts due thereunder as of the Closing Date and (iii) any other Liabilities of BRI. For purposes herein, “Liabilities” means any liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise, including without limitation any penalties, interest and/or excise Tax as may be applicable.
Section 3.07 Litigation and Proceedings. Other than that certain action pending in the Circuit Court of Faulkner County, Arkansas, Christopher Pickering et al v. Blue Ribbon Ice, Inc. et al v. Blue Ribbon Partners, LLC, Case No. 23CV-26-646, there are no actions, suits, proceedings, or investigations, other than those previously disclosed, pending or, to the Knowledge of BRI, threatened, by or against BRI or affecting BRI or its properties, at law or in equity, before any court or other governmental agency or instrumentality, domestic or foreign, or before any arbitrator of any kind. To the Knowledge of BRI, there is no material default on the part of BRI with respect to any judgment, order, injunction, decree, award, rule, or regulation of any court, arbitrator, or governmental agency or instrumentality or of any circumstances which, after reasonable investigation, would result in the discovery of such a default.
Section 3.08 General Compliance. BRI is not (i) in default under or in violation of (and no event has occurred that has not been waived that, with notice, lapse of time or both, would result in a default by BRI under), nor has BRI received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived); (ii) in violation of any judgment, decree or order of any court, arbitrator or other governmental authority; or (iii) or has not been, in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local Laws relating to Taxes, registration as a charitable organization, and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect on BRI.
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Section 3.09 Compliance with Laws; Permits.
| (a) | BRI has complied in all material respects, and are now complying in all material respects, with all Laws applicable to it or its business, properties or assets. All prior issuances of securities of BRI have been either registered under the Securities Act or other applicable Law, or exempt from registration. |
| (b) | All material Permits required for BRI to conduct its business have been obtained by it and are valid and in full force and effect, except as would reasonably be expected to result in a Material Adverse Effect on BRI. All fees and charges with respect to such Permits have been paid in full. To the Knowledge of BRI, no event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse or limitation of any Permit material to the operations of BRI. BRI has not received any notice of proceedings relating to the revocation or modification of any such Permit |
| (c) | BRI is not, and has not been, and the past and present directors, officers, shareholders, managers and Affiliates of BRI are not and have not, been the subject of, nor does any director, officer, shareholder, manager or Affiliate of BRI have any reason to believe that BRI or any of its directors, officers, shareholder, managers or Affiliates will be, the subject of (i) any civil or criminal proceeding or investigation by any federal or state agency alleging a violation of Laws, or (ii) any civil, criminal or administrative investigation or proceeding brought by any Governmental Authority. |
Section 3.10 Contracts.
| (a) | Section 3.10(a) of Disclosure Schedules contains a list of all Contracts, agreements, franchises, license agreements, debt instruments or other commitments to which BRI is a party or by which it or any of its assets, products, technology, or properties are bound. In the case of oral agreements, Section 3.10(a) of Disclosure Schedules contains a description thereof. |
| (b) | All Contracts, agreements, franchises, license agreements, and other commitments to which BRI is a party or by which its properties are bound and which are material to the operations of BRI are valid and enforceable by BRI in all respects, except as limited by bankruptcy and insolvency Laws and by other Laws affecting the rights of creditors generally. |
| (c) | BRI owns, licenses or has rights to use any and all intellectual property and technology used in BRI’s business, and to the Knowledge of BRI, BRI’s use of such intellectual property or technology does not infringe upon the intellectual property rights of any third party; and |
| (d) | Except as included or described in Section 3.10(a) of Disclosure Schedules, BRI is not a party to any oral or written (i) Contract for the employment of any director, officer or employee; (ii) profit sharing, bonus, deferred compensation, stock option, severance pay, pension benefit or retirement plan; (iii) agreement, Contract, or indenture relating to the borrowing of money; (iv) guaranty of any obligation; (v) collective bargaining agreement; or (vi) agreement with any present or former director, officer or manager of BRI, which, in each case cannot be terminated by BRI on notice of no more than 10 (10) days at a cost of no more than $1,000. |
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Section 3.11 Bank Accounts; Power of Attorney. Section 3.11 of Disclosure Schedules sets forth a true and complete list of (i) all accounts with banks, money market mutual funds or securities or other financial institutions maintained by BRI within the past twelve (12) months, the account numbers thereof, and all Persons authorized to sign or act on behalf of BRI; (ii) all safe deposit boxes and other similar custodial arrangements maintained by BRI within the past twelve (12) months; (iii) the check ledger for BRI for the last twelve (12) months, and (iv) the names of all Persons holding powers of attorney from BRI or who are otherwise authorized to act on behalf of BRI with respect to any matter, other than its officers and managers, and a summary of the terms of such powers or authorizations.
Section 3.12 Disclosure. BRI maintains a system of internal accounting controls appropriate for its size. There is no transaction, arrangement, or other relationship between BRI and an unconsolidated or other off balance sheet entity that is not disclosed by BRI in its financial statements or otherwise that would be reasonably likely to have a Material Adverse Effect on BRI.
Section 3.13 Intellectual Property.
| (a) | BRI owns or possess adequate rights or licenses to use all material trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and rights necessary to conduct its businesses as now conducted. None of BRI’s material Intellectual Property has expired or terminated, or, by the terms and conditions thereof, could expire or terminate within two years from the Closing Date. To the Knowledge of BRI there is no infringement by BRI of any material Intellectual Property of others, or of any such development of similar or identical trade secrets or technical information by others, and there is no claim, action or proceeding being made or brought against, or to the Knowledge of BRI, being threatened against, BRI regarding the infringement of any Intellectual Property, which could reasonably be expected to have a Material Adverse Effect on BRI. |
| (b) | Without limiting the generality of the foregoing, BRI has entered into binding (except to the extent that the enforceability thereof may be limited by the Enforceability Exceptions), written agreements with every current and former employee of BRI, and with every current and former independent contractor, whereby such employees and independent contractors (i) assign to BRI any ownership interest and right they may have in Intellectual Property owned by BRI; and (ii) acknowledge BRI’s exclusive ownership of all Intellectual Property owned by BRI. The BRI Parties have provided ConnectM with true and complete copies of all such agreements. To the Knowledge of BRI, BRI is in material compliance with all legal requirements applicable to Intellectual Property owned by BRI and BRI’s ownership and use thereof. |
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| (c) | All required filings and fees related to the Intellectual Property owned by BRI that are either subject to any issuance, registration, application or other filing by, to or with any Governmental Authority or authorized private registrar in any jurisdiction (collectively, the “Intellectual Property Registrations”) have been timely filed with and paid to the relevant Governmental Authorities and authorized registrars, and all Intellectual Property Registrations are otherwise in good standing. The BRI Parties have provided ConnectM with true and complete copies of file histories, documents, certificates, office actions, correspondence and other materials related to all Intellectual Property Registrations. |
| (d) | BRI has taken all reasonable measures to protect and preserve its rights in Intellectual Property owned by BRI and the confidentiality of all trade secrets owned, exploited, held for exploitation, appropriated or otherwise obtained or possessed by BRI. |
Section 3.14 Condition and Sufficiency of Assets. Except for ordinary wear and tear, the buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property of BRI are structurally sound, are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. The buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property currently owned or leased by BRI, together with all other properties and assets of BRI, are sufficient for the conduct of BRI’s business as conducted as of the Closing and constitute all of the rights, property and assets necessary to conduct the business of BRI as conducted as of the Closing.
Section 3.15 Accounts Receivable. The accounts receivable reflected on the books and records of BRI and the accounts receivable arising after the date thereof (a) have arisen from bona fide transactions entered into by BRI involving the sale of goods or the rendering of services in the Ordinary Course of Business; (b) constitute only valid, undisputed claims of BRI not subject to claims of set-off or other defenses or counterclaims other than normal cash discounts accrued in the Ordinary Course of Business; and (c) while BRI cannot speak to when accounts receivable will actually be paid by a client of BRI’s, all accounts receivable reflected on the books and records of BRI and the accounts arising after the date thereof are currently due and represent work performed by BRI.
Section 3.16 Title. BRI has good and marketable title in fee simple to all real property owned by it, or leases such real property pursuant to valid and in-force lease agreements, and has good and marketable title in all personal property owned by it that is material to the business of BRI, other than that disputes in that certain action pending in the Circuit Court of Faulkner County, Arkansas,
Christopher Pickering et al v. Blue Ribbon Ice, Inc. et al v. Blue Ribbon Partners, LLC, Case No. 23CV-26-646, in each case free and clear of all Liens and, except for Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by BRI and Liens for the payment of federal, state or other Taxes, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by BRI is held under valid, subsisting and enforceable leases with which BRI is in compliance with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by BRI.
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Section 3.17 Insurance. BRI is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of BRI believes to be prudent and customary in the businesses in which BRI is engaged. Other than as set forth in the Disclosure Schedules, BRI has not been refused any insurance coverage sought or applied for, and BRI has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings, business or operations of BRI, taken as a whole.
Section 3.18 Taxes.
| (a) | BRI is taxed as a corporation. |
| (b) | BRI has paid all Taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside on its books provision reasonably adequate for the payment of all Taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid Taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and none of the directors or officers of BRI know of no basis for any such claim. All Tax Returns required to be filed on or before the Closing Date by BRI have been, or will be, timely filed. Such Tax Returns are, or will be, true, complete and correct in all material respects. All Taxes due and owing by BRI (whether or not shown on any Tax Return) have been, or will be, timely paid. BRI has withheld and paid each Tax required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, customer, shareholder or other party, and complied with all information reporting and backup withholding provisions of applicable Law. |
| (c) | No claim has been made by any taxing authority in any jurisdiction where BRI does not file Tax Returns that it is, or may be, subject to Tax by that jurisdiction. No extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of BRI. The amount of BRI’s liability for unpaid Taxes for all periods does not, in the aggregate, exceed the amount of accruals for Taxes (excluding reserves for deferred Taxes) reflected on the financial statements of BRI. All deficiencies asserted, or assessments made, against BRI as a result of any examinations by any taxing authority have been fully paid. BRI is not a party to any Action by any taxing authority. To the Knowledge of BRI, there are no pending or threatened Actions by any taxing authority against BRI. |
| (d) | There are no Encumbrances for Taxes (other than for current Taxes not yet due and payable) upon the assets of BRI. |
| (e) | BRI is not a party to, or bound by, any Tax indemnity, Tax-sharing or Tax allocation agreement. BRI is not a party to, or bound by, any closing agreement or offer in compromise with any taxing authority. No private letter rulings, technical advice memoranda or similar agreement or rulings have been requested, entered into or issued by any taxing authority with respect to BRI. |
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| (f) | BRI is not, and has not been, a member of an affiliated, combined, consolidated or unitary Tax group for Tax purposes. BRI has no Liability for Taxes of any Person (other than itself) under Treasury Regulations Section 1.1502-6 (or any corresponding provision of state, local or foreign Law), as transferee or successor, by Contract or otherwise. BRI has not agreed to make, nor is it required to make, any adjustment under Sections 481(a) or 263A of the Code or any comparable provision of state, local or foreign Tax Laws by reason of a change in accounting method or otherwise. BRI has not taken any action that could defer a Liability for Taxes of BRI from any period prior to the Closing to any period following the Closing. |
| (g) | No BRI Party is a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2. No BRI Party is, and has never been, a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(a) of the Code. No BRI Party has been a “distributing corporation” or a “controlled corporation” in connection with a distribution described in Section 355 of the Code. No BRI Party is, and has not been, a party to, or a promoter of, a “reportable transaction” within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011-4(b). There is currently no limitation on the utilization of net operating losses, capital losses, built-in losses, tax credits or similar items of BRI under Sections 269, 382, 383, 384 or 1502 of the Code and the Treasury Regulations thereunder (and comparable provisions of state, local or foreign Law). |
| (h) | No BRI Party has entered into a gain recognition agreement pursuant to Treasury Regulations Section 1.367(a)-8. No BRI Party has transferred an intangible the transfer of which would be subject to the rules of Section 367(d) of the Code. |
| (i) | None of the assets of BRI is property that BRI is required to treat as being owned by any other person pursuant to the so-called “safe harbor lease” provisions of former Section 168(f)(8) of the Internal Revenue Code of 1954, as amended. |
Section 3.19 Transactions with Affiliates. None of the directors, shareholder, managers or officers or directors of BRI and, to the Knowledge of BRI, none of the employees of BRI, is presently a party to any transaction with BRI (other than for services as employees, officers and directors), including any Contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the Knowledge of BRI, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner, in each case in excess of the lesser of (i) $120,000 or (ii) one percent of the average of BRI’s total assets at year-end for the last two completed fiscal years, other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of BRI and (iii) other employee benefits, including stock option agreements under any stock option plan of BRI.
Section 3.20 Foreign Corrupt Practices. No BRI Party, nor, to the Knowledge of BRI, any agent or other Person acting on behalf of BRI, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by BRI (or made by any Person acting on its behalf of which BRI is aware) which is in violation of Law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.
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Section 3.21 Money Laundering. BRI is in compliance with, and has not previously violated, the USA PATRIOT ACT of 2001 and all other applicable U.S. and non-U.S. anti-money laundering Laws and regulations, including, but not limited to, the Laws, regulations and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but not limited, to (i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations contained in 31 CFR, Subtitle B, Chapter V.
Section 3.22 Illegal or Unauthorized Payments; Political Contributions. No BRI Party nor, to the Knowledge of BRI, any of the officers, directors, employees, agents or other representatives of BRI or any other business entity or enterprise with which BRI is or has been affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution or gift of money, property, or services, in contravention of applicable Law, (a) as a kickback or bribe to any Person or (b) to any political organization, or the holder of or any aspirant to any elective or appointive public office except for personal political contributions not involving the direct or indirect use of funds of BRI.
Section 3.23 Environmental Laws. To Knowledge of BRI, BRI (i) is in compliance with any and all applicable foreign, federal, state and local Laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) has received all Permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its respective businesses and (iii) is in compliance with all terms and conditions of any such Permit, license or approval, except where, in each of the three foregoing clauses, the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on BRI.
Section 3.24 Investment Company. BRI is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
Section 3.25 No Disqualification Events. None of BRI, any of their respective predecessors, any affiliated issuer, any director, executive officer, other officer of BRI, any beneficial owner of 20% or more of BRI’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with BRI in any capacity at the time of sale (each, an “Issuer Covered Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. BRI has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.
Section 3.26 No Brokers. No BRI Party has retained any broker or finder in connection with any of the Transactions, and has not incurred or agreed to pay, or taken any other action that would entitle any Person to receive, any brokerage fee, finder’s fee or other similar fee or commission with respect to any of the Transactions.
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Section 3.27 Disclosure. All disclosure provided to ConnectM regarding the BRI Parties, their respective business and Transactions, including Disclosure Schedules to this Agreement, furnished by or on behalf of any BRI Party with respect to the representations and warranties made herein are true and correct with respect to such representations and warranties and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. Each BRI Party acknowledges and agrees that ConnectM has not made, nor is ConnectM making, any representations or warranties with respect to Transactions other than those specifically set forth herein.
Section 3.28 Accredited Investor.
| (a) | Mr. Wilson represents that he is an “accredited investor” as that term is defined in Rule 501 of Regulation D (“Regulation D”) promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Act, and that Mr. Wilson understands and acknowledges that ConnectM is relying upon such representation to qualify for the exemption from the registration requirements of the Securities Act pursuant to Rule 506 of Regulation D. Mr. Wilson acknowledges that neither the SEC nor the securities regulatory body of any other jurisdiction, has received, considered or passed upon the accuracy or adequacy of the information and representations made in this Agreement. |
| (b) | Mr. Wilson is acquiring the Exchange Shares for investment for Mr. Wilson’s own account and not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and Mr. Wilson has no present intention of selling, granting any participation in, or otherwise distributing the same. Mr. Wilson further represents that he does not have any Contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participation to such Person or to any third Person, with respect to any of the Exchange Shares. Mr. Wilson represents and warrants that Mr. Wilson (i) can bear the economic risk of Mr. Wilson’s investment in the Exchange Shares, and (ii) possesses such knowledge and experience in financial and business matters that Mr. Wilson is capable of evaluating the merits and risks of the investment in ConnectM and the Exchange Shares. |
| (c) | Mr. Wilson acknowledges that he has carefully reviewed such information as Mr. Wilson has deemed necessary to evaluate an investment in ConnectM and the Exchange Shares, and that he has been furnished all materials that it has requested relating to ConnectM and the issuance of the Exchange Shares hereunder, and that Mr. Wilson has been afforded the opportunity to ask questions of ConnectM’s representatives to obtain any information necessary to verify the accuracy of any representations or information made or given to Mr. Wilson. |
| (d) | Mr. Wilson understands that the Exchange Shares may not be sold, transferred, or otherwise disposed of without registration under the Securities Act or an exemption therefrom, and that in the absence of an effective registration statement covering the Exchange Shares or any available exemption from registration under the Securities Act, the Exchange Shares may have to be held indefinitely. |
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Article IV. Representations and Warranties of COnnectM
As an inducement to, and to obtain the reliance of the BRI Parties, ConnectM represents and warrants as follows, except as set forth in the filings and reports made by ConnectM with the U.S. Securities and Exchange Commission (the “SEC Reports”):
Section 4.01 Organization. ConnectM is a corporation duly incorporated, validly existing, and in good standing under the Laws of Delaware and has the corporate power and is duly authorized under all applicable Laws, regulations, ordinances, and orders of public authorities to carry on its business in all material respects as it is now being conducted. The execution and delivery of this Agreement does not, and the consummation of Transactions will not, violate any provision of ConnectM’s certificate of incorporation or by-laws. ConnectM has taken all action required by Laws, its certificate of incorporation and by-laws, or otherwise to authorize the execution and delivery of this Agreement, and ConnectM has full power, authority, and legal right and has taken all action required by Laws, its certificate of incorporation and by-laws, or otherwise to consummate the transactions herein contemplated.
Section 4.02 Power and Authority. ConnectM has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the Transactions.
Section 4.03 Authorization of Agreement; Etc. The execution, delivery and performance of this Agreement by ConnectM, and the consummation of Transactions, have been duly authorized by Board of ConnectM. This Agreement has been duly executed and delivered on behalf of ConnectM. This Agreement constitutes a valid and binding obligation of ConnectM enforceable in accordance with its terms, except that such enforcement may be limited by the Enforceability Exceptions, and subject to the qualification that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefore may be brought.
Section 4.04 No Conflict. The execution of this Agreement and the consummation of the Transactions (i) will not violate any provision of the Organizational Documents of ConnectM; (ii) will not, with or without notice, lapse of time or both, result in the breach of any term or provision of, constitute a default under, or terminate, accelerate or modify the terms of any indenture, mortgage, deed of trust, or other material agreement, or instrument to which ConnectM is a party or to which any of its assets, properties or operations are subject; (iii) violate any provision of Laws, statute, rule, regulation or executive order to which ConnectM is subject; or (iv) violate any judgment, order, writ or decree of any court applicable to ConnectM.
Section 4.05 Approval of Agreement and of Issuance of Shares. The Board of ConnectM has authorized the execution and delivery of this Agreement by ConnectM and has approved this Agreement and the issuance of the Exchange Shares.
Section 4.06 No Brokers. ConnectM has not retained any broker or finder in connection with any of the Transactions, and ConnectM has not incurred or agreed to pay, or taken any other action that would entitle any Person to receive, any brokerage fee, finder’s fee or other similar fee or commission with respect to any of the Transactions.
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Section 4.07 Litigation and Compliance. ConnectM represents and warrants that: (a) there are no actions, suits, investigations, claims, or proceedings pending or, to ConnectM’s knowledge, threatened against ConnectM or any of its subsidiaries before any court or governmental authority that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on ConnectM’s business, operations, or financial condition; (b) neither ConnectM nor any of its subsidiaries is subject to any outstanding order, writ, injunction, or decree of any court or governmental authority that restricts or prohibits the conduct of its business as currently conducted; and (c) ConnectM and its subsidiaries are, and have been in the past three years, in compliance in all material respects with all applicable laws, statutes, ordinances, rules, and regulations of any governmental authority, except where the failure to so comply would not reasonably be expected to have a material adverse effect on ConnectM’s business, operations, or financial condition.
Section 4.08 Capitalization and Solvency. ConnectM represents and warrants that ConnectM has duly authorized, validly issued, fully paid, and non-assessable equity securities. Other than as set forth in the SEC Reports, there are no outstanding options, warrants, convertible securities, calls, rights, commitments, agreements, arrangements, or undertakings of any kind to which ConnectM is a party or by which it is bound obligating ConnectM to issue, deliver, or sell, or cause to be issued, delivered, or sold, additional equity interests of ConnectM or any security or instrument convertible into or exchangeable for equity interests of ConnectM. Immediately after giving effect to the Transactions, ConnectM will be Solvent. For purposes of this Section, “Solvent” means that, as of any date of determination: (i) the fair value of the assets of ConnectM exceeds the total amount of liabilities (including contingent and unliquidated liabilities); (ii) the present fair saleable value of the assets of ConnectM is greater than the amount that will be required to pay the probable liabilities of ConnectM on its debts as they become absolute and matured; (iii) ConnectM does not have unreasonably small capital with which to conduct its business as presently conducted or as proposed to be conducted following the Closing; and (iv) ConnectM has not incurred and does not intend to incur debts or liabilities beyond its ability to pay as such debts and liabilities mature.
Section 4.09 Tax Matters.
| (a) | ConnectM has duly and timely filed (taking into account any extensions of time within which to file) all material Tax Returns required to be filed by it, and all such Tax Returns are true, correct, and complete in all material respects. |
| (b) | ConnectM has paid all material Taxes due and owing by it (whether or not shown as due on any Tax Return), except for Taxes that are being contested in good faith and for which adequate reserves have been established in accordance with GAAP. |
| (c) | There are no ongoing or pending audits, examinations, investigations, or other proceedings by any taxing authority with respect to ConnectM, and no written notice of any such audit, examination, investigation, or proceeding has been received by ConnectM. |
| (d) | ConnectM has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, which waiver or extension remains in effect. |
| (e) | ConnectM is not a party to any Tax sharing, allocation, indemnity, or similar agreement or arrangement (other than customary commercial contracts entered into in the ordinary course of business and not primarily relating to Taxes). |
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Section 4.10 No Undisclosed Agreements. Other than as set forth in the SEC Reports, there are no agreements, contracts, commitments, arrangements, understandings, or obligations (written or oral) to which ConnectM is a party that would reasonably be expected to have a material effect on ConnectM or its business that have not been so disclosed.
Section 4.11 Disclosure. All disclosure provided to the BRI Parties regarding ConnectM, its business and Transactions, furnished by or on behalf of ConnectM with respect to the representations and warranties made herein are true and correct and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. ConnectM acknowledges and agrees that the BRI Parties have not made, nor are the BRI Parties making, any representations or warranties with respect to Transactions other than those specifically set forth herein.
Article V. Covenants and Additional Agreements of the Parties
Section 5.01 Right of First Refusal.
| (a) | Any references in this Section 5.01 to a “Share” shall be deemed a reference to any Share of BRI Common Stock which is intended to be Transferred (as defied below) by either Mr. Wilson or ConnectM (each, a “Transferring Party”). For purposes herein, “Transfer” means, with respect to a Share, a transaction by which a Transferring Party transfers or assigns such share of BRI Common Stock to any other Person, and includes a sale, assignment, gift, exchange or any other disposition by Law or otherwise, including any transfer upon foreclosure of any pledge, encumbrance, hypothecation or mortgage. |
| (b) | Subject to the provisions of Section 2.06(d) and the other terms and conditions herein, in the event that a Transferring Party desires to Transfer any Shares to any Person, the Transferring Party shall send a written notice to the other Party (i.e., to Mr. Wilson if ConnectM is the Transferring Party and to ConnectM if Mr. Wilson is the Transferring Party (such other Party, the “Receiving Party”)) containing the terms and conditions of the proposed Transfer, the number of Shares that the Transferring Party proposes to Transfer, the price therefor on a per-Share basis, which price must be equal for each Share proposed to be Transferred (the “Offer Price”) and the proposed date for the closing of the Transfer (the “Transfer Closing Date”) which may be no sooner than fifty (50) days and no more than eighty (80) days following the date of the notice (the “Offering Notice”). |
| (c) | Upon receipt of the Offering Notice, the Receiving Party shall have the right (the “Right of First Refusal”), for a period of thirty (30) days, to elect to purchase all or a portion of such Shares at the Offer Price. In the event that the Receiving Party elects to purchase all or a portion of the available Shares, the Receiving Party shall so notify the Transferring Party, and the closing of such purchase shall occur on the second Business Day following the receipt of such notice by the Transferring Party. At such closing, the Transferring Party shall deliver to the Receiving Party a stock power substantially in the form of the Stock Power, for the applicable number of Shares, and the Receiving Party shall pay the Offer Price to the Transferring Party pursuant to wire instructions provided by the Transferring Party to the Receiving Party. |
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| (d) | In the event that the Receiving Party does not elect to purchase 100% of the available Shares pursuant to this Section 5.01, then the Transferring Party shall have the right, subject to compliance with the remainder of this Agreement, to Transfer any remaining Shares not acquired by the Receiving Party pursuant to the Right of First Refusal to the proposed transferee in accordance with the terms and conditions set forth in the Offering Notice and as set forth herein. Any modifications to the terms and conditions of the proposed Transfer shall require a new Offering Notice and compliance again with the terms of this Section 5.01, including the exercise or waiver of the Right of First Refusal. |
Section 5.02 Tag-Along Rights.
| (a) | Subject to the provisions of Section 2.06(d) and the other terms and conditions herein, in the event that ConnectM proposes to sell any shares of the shares of BRI Common Stock to any Person other than an Affiliate of ConnectM (the “Proposed Transferee”), Mr. Wilson shall be permitted to participate in such sale (a “Tag-Along Sale”) on the terms and conditions set forth in this Section 5.02 with respect to the shares of BRI Common Stock held by Mr. Wilson. |
| (b) | Prior to the consummation of the sale described in Section 5.02(a), ConnectM shall deliver to Mr. Wilson a written notice (a “Sale Notice”) of the proposed sale subject to this Section 5.02 no more than ten (10) days after the execution and delivery by all the parties thereto of the definitive agreement entered into with respect to the Tag-Along Sale and, in any event, no later than twenty (20) days prior to the closing date of the Tag-Along Sale. The Tag-Along Notice shall make reference to Mr. Wilson’s rights pursuant to this Section 5.02 and shall describe in reasonable detail: (i) the number of shares of Common Stock to be sold by ConnectM; (ii) the name of the Proposed Transferee; (iii) the per-share purchase price of the BRI Common Stock and the other material terms and conditions of the sale, including a description of any non-cash consideration in sufficient detail to permit the valuation thereof; (iv) the proposed date, time and location of the closing of the sale; and (v) a copy of any form of agreement proposed to be executed in connection therewith. |
| (c) | Mr. Wilson shall exercise his right to participate in a sale of shares of BRI Common Stock by ConnectM subject to this Section 5.02 by delivering to ConnectM a written notice (a “Tag-Along Notice”) stating his election to do so and specifying the number of shares of BRI Common Stock to be sold by Mr. Wilson, no later than five (5) days after receipt of the Sale Notice (the “Tag-Along Period”). The offer of Mr. Wilson set forth in a Tag-Along Notice shall be irrevocable, and, to the extent such offer is accepted, Mr. Wilson shall be bound and obligated to sell in the proposed sale on the terms and conditions set forth in this Section 5.02. Mr. Wilson shall have the right to sell in a sale subject to this Section 5.02 the number of Shares of BRI Common Stock equal to the product obtained by multiplying (x) the number of Shares of BRI Common Stock held by Mr. Wilson as of the date of the delivery of the Tag-Along Notice by (y) a fraction (A) the numerator of which is equal to the number of Shares of BRI Common Stock that ConnectM proposes to sell or transfer to the Proposed Transferee and (B) denominator of which is equal to the number of Shares of BRI Common Stock then owned by ConnectM. |
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| (d) | ConnectM shall use its commercially reasonable efforts to include in the proposed sale to the Proposed Transferee all of the Shares of BRI Common Stock that Mr. Wilson has requested to have included pursuant to the applicable Tag-Along Notice, it being understood that the Proposed Transferee shall not be required to purchase Shares of BRI Common Stock in excess of the number set forth in the Sale Notice. In the event the Proposed Transferee elects to purchase less than all of the Shares of BRI Common Stock sought to be sold by ConnectM and Mr. Wilson, the number of shares to be sold to the Proposed Transferee by each of ConnectM and Mr. Wilson shall be reduced so that each of ConnectM and Mr. Wilson is entitled to sell its pro rata portion of the number of Shares of BRI Common Stock the Proposed Transferee elects to purchase (which in no event may be less than the number of Shares of BRI Common Stock set forth in the Sale Notice). |
| (e) | If Mr. Wilson does not deliver a Tag-Along Notice in compliance with this Section 5.02, he shall be deemed to have waived all of Mr. Wilson’s rights to participate in such sale, and ConnectM shall thereafter be free to sell to the Proposed Transferee its shares of BRI Common Stock at a per-share price that is no greater than the per-share price set forth in the Sale Notice and on other same terms and conditions which are not materially more favorable to ConnectM than those set forth in the Sale Notice, without any further obligation to Mr. Wilson with respect to the applicable sale set forth in the applicable Sale Notice. |
| (f) | Mr. Wilson shall make or provide the same representations, warranties, covenants, indemnities and agreements as ConnectM makes or provides in connection with the Tag-Along Sale (except that in the case of representations, warranties, covenants, indemnities and agreements pertaining specifically to ConnectM, Mr. Wilson shall make the comparable representations, warranties, covenants, indemnities and agreements pertaining specifically to himself); provided, that all representations, warranties, covenants and indemnities shall be made by ConnectM and Mr. Wilson severally and not jointly and (i) any indemnification obligation in respect of breaches of representations and warranties that do not relate to Mr. Wilson shall be in an amount not to exceed the aggregate proceeds received by Mr. Wilson in connection with any sale consummated pursuant to this Section 5.02; and (ii) any indemnification obligation in respect of breaches of representations and warranties that do not relate to ConnectM shall be in an amount not to exceed the aggregate proceeds received by ConnectM in connection with any sale consummated pursuant to this Section 5.02. |
| (g) | The fees and expenses of ConnectM incurred in connection with a sale under this Section 5.02 and for the benefit of Mr. Wilson (it being understood that costs incurred by or on behalf of ConnectM for its sole benefit will not be considered to be for the benefit of Mr. Wilson), to the extent not paid or reimbursed by the Proposed Transferee, shall be paid by Mr. Wilson. |
| (h) | Mr. Wilson shall take all actions as may be reasonably necessary to consummate the Tag-Along Sale, including, without limitation, entering into agreements and delivering certificates and instruments, in each case, consistent with the agreements being entered into and the certificates being delivered by ConnectM. |
| (i) | This Section 5.01(d) shall not apply to sales in a distribution to the public (whether pursuant to a registered public offering, Rule 144 or otherwise). |
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Section 5.03 Drag-Along Rights.
| (a) | Subject to the provisions of Section 2.06(d) and the other terms and conditions herein, if at any time that ConnectM holds 80% or more of the issued and outstanding shares of BRI Common Stock, it receives a bona fide offer from any Person other than an Affiliate of ConnectM to purchase in one transaction, or a series of related transactions, all of the issued and outstanding shares of BRI Common Stock, and if thereafter ConnectM elects to accept such offer (a “Drag-Along Sale”), and provided that Mr. Wilson has not elected to participate in the sale with respect to all of his shares of BRI Common Stock pursuant to Section 5.02, ConnectM shall have the right to require that Mr. Wilson participates in such sale in the manner set forth in this Section 5.03. |
| (b) | ConnectM shall exercise its rights pursuant to this Section 5.03 by delivering a written notice (the “Drag-Along Notice”) to Mr. Wilson no more than ten (10) days after the execution and delivery by all of the parties thereto of the definitive agreement entered into with respect to the Drag-Along Sale and, in any event, no later than twenty (20) days prior to the closing date of such Drag-Along Sale. The Drag-Along Notice shall make reference to ConnectM’s rights and obligations hereunder and shall describe in reasonable detail (i) the name of the person or entity to whom the shares of BRI Common Stock are proposed to be sold; (ii) the proposed date, time and location of the closing of the Drag-Along Sale; (iii) the per-share of BRI Common Stock purchase price and the other material terms and conditions of the Drag-Along Sale, including a description of any non-cash consideration in sufficient detail to permit the valuation thereof; and (iv) a copy of any form of agreement |
proposed to be executed in connection therewith.
| (c) | Subject to Section 5.03(d), Mr. Wilson shall sell in the Drag-Along Sale all of the share of BRI Common Stock held by Mr. Wilson. |
| (d) | The consideration to be received by Mr. Wilson shall be the same form and amount of consideration per share of BRI Common Stock to be received by ConnectM (or, if ConnectM is given an option as to the form and amount of consideration to be received, the same option shall be given) and the terms and conditions of such sale shall, except as otherwise provided in the immediately succeeding sentence, be the same as those upon which ConnectM sells its share of BRI Common Stocks. Mr. Wilson shall make or provide the same representations, warranties, covenants, indemnities and agreements as ConnectM makes or provides in connection with the Drag-Along Sale (except that in the case of representations, warranties, covenants, indemnities and agreements pertaining specifically to ConnectM, Mr. Wilson shall make the comparable representations, warranties, covenants, indemnities and agreements pertaining specifically to itself); provided, that all representations, warranties, covenants and indemnities shall be made by ConnectM and each Mr. Wilson severally and not jointly and (i) any indemnification obligation in respect of breaches of representations and warranties that do not relate to Mr. Wilson shall be in an amount not to exceed the aggregate proceeds received by Mr. Wilson in connection with any sale consummated pursuant to this Section 5.03; and (ii) any indemnification obligation in respect of breaches of representations and warranties that do not relate to ConnectM shall be in an amount not to exceed the aggregate proceeds received by ConnectM in connection with any sale consummated pursuant to this Section 5.03. |
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| (e) | The fees and expenses of ConnectM incurred in connection with a Drag-Along Sale and for the benefit of Mr. Wilson, to the extent not paid or reimbursed by the Proposed Transferee, shall be paid by ConnectM. |
| (f) | Mr. Wilson shall take all actions as may be reasonably necessary to consummate the Drag-Along Sale, including, without limitation, entering into agreements and delivering certificates and instruments, in each case, consistent with the agreements being entered into and the certificates being delivered by ConnectM. |
Section 5.04 Approval Rights. Subject to the provisions of Section 2.06(d) and the other terms and conditions herein, for as long as Mr. Wilson continues to hold at least 25% of the issued and outstanding shares of BRI Common Stock, BRI shall not undertake any of the following actions without the prior written consent of Mr. Wilson:
| (a) | Any amendment to the Certificate of Incorporation of BRI that would adversely affect the rights of Mr. Wilson as a minority shareholder of BRI. |
| (b) | Any issuance of equity securities or additional shares of BRI. |
| (c) | Any liquidation or dissolution of BRI. |
| (d) | Any merger of BRI or any sale of all or substantially all of the assets of BRI. |
Section 5.05 Information Rights. Subject to the provisions of Section 2.06(d) and the other terms and conditions herein, for as long as Mr. Wilson continues to hold at least 5% of the issued and outstanding shares of BRI Common Stock, Mr. Wilson shall be entitled to receive regular financial statements, operating reports, and other information with respect to BRI as reasonably necessary to monitor the performance of the business of BRI, and shall have inspection rights customary for minority stakeholders.
Section 5.06 Confidentiality.
| (a) | Definitions. For purposes of this Agreement: |
| (i) | The Party disclosing Confidential Information hereunder shall be referred to as the “Disclosing Party” and the Party receiving Confidential Information hereunder shall be referred to as the “Receiving Party”. |
| (ii) | Except as provided below, “Confidential Information” of Disclosing Party shall mean any confidential, proprietary or trade secret information, data or know-how which relates to the business, research, services, products, customers, suppliers, employees, or financial information of the Disclosing Party and its subsidiaries and Affiliates (as defined below), including, but not limited to, product or service specifications, designs, drawings, prototypes, computer programs, models, business plans, marketing plans, financial data, financial statements, financial forecasts and statistical information, in each case that is marked as confidential, proprietary or secret, or with an alternate legend or marking indicating the confidentiality thereof or which, from the nature thereof should reasonably be expected to be confidential or proprietary, and, with respect to ConnectM, any other Material Non-Public Information (as defined below), in each case which is disclosed by the Disclosing Party or on its behalf, after the date hereof, to the Receiving Party either in writing, orally, by inspection or in any other form or medium. Any technical or business information of a third person furnished or disclosed shall be deemed “Confidential Information” of the Disclosing Party unless otherwise specifically indicated in writing to the contrary. The fact that the Parties are communicating regarding a potential business relationship shall also be deemed Confidential Information under this Agreement. |
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| (iii) | “Material Non-Public Information” shall mean any information obtained by any BRI Party, whether otherwise constituting Confidential Information or not, with respect to which there is a substantial likelihood that a reasonable investor would consider such information important or valuable in making any of his, her or its investment decisions or recommendations to others with respect to ConnectM or any of its equity securities or debt, or any derivatives thereof, or information that is reasonably certain to have an effect on the price, value or trading price of ConnectM’s equity securities or debt, or any derivatives thereof, whether positive or negative. |
| (b) | Agreements. |
| (i) | For a period of five (5) years from the date of its receipt, the Receiving Party agrees to use the Confidential Information of the Disclosing Party only for the purpose of consummating the Transactions and shall use reasonable care not to disclose Confidential Information to any non-Affiliated third party, such care to be at least equal to the care exercised by Receiving Party as to its own Confidential Information, which standard of care shall not be less than the current industry standard in effect as of the date of such receipt. Receiving Party agrees that it shall make disclosure of any such Confidential Information of the Disclosing Party only to its Affiliates and their respective employees and Representatives, to whom disclosure is reasonably necessary for the Purpose. Receiving Party shall appropriately notify such Representatives that the disclosure is made in confidence and shall be kept in confidence in accordance with this Agreement. Receiving Party shall be responsible for the failure of its Representatives to comply with the terms of this Agreement. |
| (ii) | Without the prior consent of the Disclosing Party, the Receiving Party shall not remove any proprietary, copyright, trade secret or other protective legend from the Confidential Information of the Disclosing Party. |
| (iii) | Receiving Party acknowledges that the Confidential Information of the Disclosing Party disclosed hereunder may constitute “Technical Data” and may be subject to the export laws and regulations of the United States. Receiving Party agrees it will not knowingly export, directly or indirectly, any Confidential Information of the Disclosing Party or any direct product incorporating any Confidential Information of the Disclosing Party, whether or not otherwise permitted under this Agreement, to any countries, agencies, groups or companies prohibited by the United States Government unless proper authorization is obtained. |
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| (iv) | Nothing herein shall be construed as granting to Receiving Party or its Affiliates any right or license to use or practice any of the information defined herein as Confidential Information of the Disclosing Party and which is subject to this Agreement as well as any trade secrets, know-how, copyrights, inventions, patents or other intellectual property rights now or hereafter owned or controlled by the Disclosing Party. Except as allowed by applicable law, Receiving Party shall not use any trade name, service mark or trademark of the Disclosing Party or refer to the Disclosing Party in any promotional or sales activity or materials without first obtaining the prior written consent of the Disclosing Party. |
| (c) | Exceptions. The obligations imposed in Section 5.06(b) shall not apply to any Confidential Information that: |
| (i) | was already in the possession of Receiving Party at the time of disclosure without restrictions on its use or is independently developed by Receiving Party after the Closing Date, provided that the person or persons developing same have not used such information received from the Disclosing Party, or is rightfully obtained from a source other than from the Disclosing Party; |
| (ii) | is in the public domain at the time of disclosure or subsequently becomes available to the general public through no fault of Receiving Party; |
| (iii) | is obtained by Receiving Party from a third person who is under no obligation of confidence to the Disclosing Party; to potential investors or financing sources (including their advisors), provided that such recipients are bound by confidentiality obligations at least as protective as those in the Agreement; |
| (iv) | as required by law, regulation, or in connection with tax or regulatory filings, provided the Receiving Party gives prompt notice to the Disclosing Party (unless prohibited by law) and cooperates to seek confidential treatment where possible and provided that the Disclosing Party complies with the provisions of Section 5.06(h); or |
| (v) | is disclosed without restriction by the Disclosing Party. |
| (d) | Standstill. |
| (i) | Each BRI Party acknowledges and agrees that ConnectM is a public company, currently trading on the OTC Markets. |
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| (ii) | Each BRI Party agrees that, for as long as any information, including Confidential Information, continues to meet the definition of Material Non-Public Information as set forth herein (the “Standstill Period”), such BRI Party shall not, and all of its Representatives shall not: |
| (1) | buy or sell any securities or derivative securities of or related to ConnectM, or any interest therein; |
| (2) | undertake any actions or activities that would reasonably be expected to result in a violation of the Securities Act or of the Exchange Act, including, without limitation, Section 10(b) thereunder, or the rules and regulations thereunder, including, without limitation, Rule 10b-5 promulgated thereunder; |
| (3) | effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in (A) any acquisition of any securities (or beneficial ownership thereof) or all or substantially all of the assets of ConnectM or any of its subsidiaries; (B) any tender or exchange offer, merger or other business combination involving ConnectM or any of its subsidiaries; (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to ConnectM or any of its subsidiaries, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of ConnectM; |
| (4) | form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of ConnectM; |
| (5) | make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving ConnectM or its securities or assets; |
| (6) | otherwise act, alone or in concert with others, to seek to control or influence the management, ConnectM Board or the policies of ConnectM; |
| (7) | take any action which might force ConnectM to make a public announcement regarding any of the types of matters set forth in Section 5.06(d)(ii)(3); or |
| (8) | enter into any discussions or arrangements with any third party with respect to any of the foregoing. |
| (iii) | Each BRI Party also agrees during the Standstill Period not to request ConnectM (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 5.06(d) (including this sentence). |
| (iv) | Notwithstanding the foregoing, subject to compliance with applicable law, BRI shall not be restricted from general market participation or responding to unsolicited third-party proposals. For the avoidance of doubt, nothing in this Section 5.06(d) shall prohibit BRI Parties from engaging in ordinary course, passive investments in publicly traded securities of ConnectM, provided such activities are conducted in compliance with applicable securities laws and at a time when the BRI Party is not in possession of Material Non-Public Information. |
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| (e) | Return of Confidential Information. Upon termination of this Agreement for any reason or upon request by the Disclosing Party made at any time, all Confidential Information of the Disclosing Party, together with any copies of same as may be authorized herein, shall be returned to the Disclosing Party, or destroyed and certified as such by an officer of Receiving Party, at the Receiving Party’s option. Receiving Party may retain one copy of all written Confidential Information for its files for reference in the event of a dispute hereunder or as is necessary to comply with its document retention policies. |
| (f) | Ownership of Confidential Information. As between the Disclosing Party and Receiving Party, the Confidential Information and any Derivative thereof (as defined below), whether created by the Disclosing Party or the Receiving Party, will remain the property of the Disclosing Party. For purposes of this Agreement, “Derivative” shall mean: (i) for copyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast, transformed or adapted, and which constitutes a derivative work under the Copyright laws of the United States; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent and/or trade secret. |
| (g) | Acknowledgement. Each Party as Receiving Party acknowledges and agrees that, with respect to any information provided by Disclosing Party, its Affiliates, and their respective stockholders, members, partners, directors, managers, officers, employees, agents, advisors, and other representatives, each expressly disclaims any and all liability for representations, expressed or implied, contained in or omitted from such information, and nothing contained in such information is or shall be relied upon as a promise or representation by any Disclosing Party, its Affiliates, or any of their respective stockholders, members, partners, directors, managers, officers, employees, agents, advisors, or other representatives as to the past or future performance of Disclosing Party. Only those particular representations and warranties made by a Party herein shall have any legal effect. Each Party as Receiving Party further acknowledges and agrees that any such information provided by any Disclosing Party does not purport to be all-inclusive or to necessarily contain all the information that Receiving Party may desire, and such information may include certain statements, estimates and projections provided by Disclosing Party with respect to anticipated future performance (“forward looking statements”). Forward-looking statements include, without limitation, any statement that may predict, forecast, indicate, or imply future results, performance or achievements, and may contain the words “estimate,” “project,” “intend,” “forecast,” “anticipate,” “plan,” “planning,” “expect,” “believe,” “will likely,” “should,” “could,” “would,” “may” or words or expressions of similar meaning. Such statements, estimates and projections reflect significant assumptions and subjective judgments by management of Disclosing Party concerning anticipated results. These assumptions and judgments may or may not prove to be correct and there can be no assurance that any projected result will be attainable or will be realized. As events and circumstances frequently do not occur as expected, there will usually be differences between anticipated and actual future performance, and those variances may be material. No Disclosing Party or its Affiliates or any of their respective stockholders, members, partners, directors, managers, officers, employees, agents, advisors, or other representatives makes any representations or warranties as to their accuracy or completeness except as specifically set forth herein . |
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| (h) | Request for Confidential Information Pursuant to Court or Other Proceeding. If Receiving Party is requested or required (by oral questions, deposition, interrogatories, subpoena, civil investigative demand or other similar non-criminal process) to disclose any Confidential Information of the Disclosing Party supplied to Receiving Party under this Agreement, the Receiving Party will provide the Disclosing Party with prompt written notice of such request(s) so that the Disclosing Party may, at the Disclosing Party’s option, (a) seek an appropriate protective order; (b) consult with the Receiving Party on the advisability of taking steps to resist or narrow such request or requirement; or (c) waive in writing the Receiving Party’s compliance with the provisions of this Agreement for the sole purpose of complying with the request. If, in the absence of a protective order or the receipt of a written waiver hereunder, the Receiving Party is nonetheless, in the reasonable opinion of its counsel, compelled to disclose Confidential Information of the Disclosing Party to any governmental tribunal or else stand liable for contempt or suffer other censure or penalty, the Receiving Party will cooperate with the Disclosing Party at the Disclosing Party’s expense in any attempt that the Disclosing Party may make to obtain an order or other reliable assurance that confidential treatment will be provided by such tribunal for all or designated portions of such Confidential Information disclosed by the Disclosing Party. |
| (i) | No License. Nothing in this Agreement shall be construed as granting any right or license to the Receiving Party or any other Party, by implication or otherwise, with respect to any Confidential Information of the Disclosing Party, except for the limited purposes set forth above and as otherwise specifically set forth herein. |
Section 5.07 Consents of Third Parties. Each of the Parties will give any notices to third parties, and will use its commercially reasonable efforts to obtain any third-party consents, that the other Parties reasonably may request in connection with this Agreement. Each of the Parties will give any notices to, make any filings with, and use its commercially reasonable efforts to obtain any authorizations, consents, and approvals of governments and governmental agencies in connection with the matters in this Agreement.
Section 5.08 Notices of Certain Events. In addition to any other notice required to be given by the terms of this Agreement, each of the Parties shall promptly notify each of the other Parties of:
| (a) | any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with any of the Transactions; |
| (b) | any notice or other communication from any governmental or regulatory agency or authority in connection with the Transactions; and |
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| (c) | any actions, suits, claims, investigations or proceedings commenced or, to its knowledge threatened against, relating to or involving or otherwise affecting such Party that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant hereto or that relates to the consummation of the Transactions. |
Section 5.09 Further Assurances. Following the Closing, each of the Parties shall, and shall cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the Transactions.
Article VI. Survival; Indemnification
Section 6.01 Survival.
| (a) | Subject to the limitations and other provisions of this Agreement, (i) the Fundamental Representations of the Parties shall survive the Closing and shall remain effective for the maximum period permitted by applicable law, and (ii) all other representations and warranties of the Parties contained herein shall survive the Closing and shall remain in full force and effect until the date that is eighteen (18) months after the Closing Date. Notwithstanding the preceding sentence, any indemnification claim commenced prior to any such expiration shall remain as a valid claim until finally resolved in accordance with the provisions herein. Any claim, for indemnification or otherwise, based upon or arising out of the breach or alleged breach of a representation or warranty must be brought before the expiration of the applicable survival period, or it will be deemed waived. |
| (b) | All covenants and agreements of the Parties contained herein shall survive the Closing for (i) the later of (1) a period of five (5) years and (2) until fully performed; or (ii) for the period specified therein, as applicable. Notwithstanding the preceding sentence, any claim commenced prior to any such expiration shall remain as a valid claim until finally resolved in accordance with the provisions herein. |
| (c) | Any claim arising out of or in connection with this Agreement must be brought, if at all, within five years after the Closing Date, or within such shorter period as may be specified with respect to a particular claim, or it will be deemed waived and released. |
Section 6.02 Indemnification by Mr. Wilson. Subject to the provisions of this Article VI, Mr. Wilson hereby covenants and agrees with ConnectM that Mr. Wilson shall indemnify ConnectM and its directors, officers, employees and Affiliates, and each of their respective Representatives, successors and assigns (collectively, the “ConnectM Indemnified Parties”), and hold them harmless from, against and in respect of any and all Losses incurred by any ConnectM Indemnified Party resulting from any misrepresentation, breach of any representation or warranty of any BRI Party in this Agreement or the non-fulfillment in any material respect of any agreement, covenant or obligation by any BRI Party made in this Agreement (including without limitation any Exhibit or Schedule hereto and any agreement, document, certificate or instrument delivered in connection herewith).
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Section 6.03 Indemnification by ConnectM. Subject to the provisions of this Article VI, ConnectM hereby covenants and agrees with Mr. Wilson that ConnectM shall indemnify Mr. Wilson and his Representatives, successors and assigns (collectively, the “Mr. Wilson Indemnified Parties”) and hold them harmless from, against and in respect of any and all Losses incurred by any Mr. Wilson Indemnified Party resulting from any misrepresentation, breach of any representation or warranty in this Agreement or the non-fulfillment in any material respect of any agreement, covenant or obligation by ConnectM made in this Agreement (including without limitation any Exhibit or Schedule hereto and any agreement, document, certificate or instrument delivered in connection herewith).
Section 6.04 Indemnification Procedures. The Party making a claim under this Article VI is referred to as the “Indemnified Party” and the Party against whom such claims are asserted under this Article VI is referred to as the “Indemnifying Party.”
| (a) | Third-Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of such notice of such Third-Party Claim, which notice shall describe the indemnification claim in reasonable detail; include the justification for the demand with reasonable specificity; include copies of all available material written evidence; and, if reasonably practical, indicate the estimated amount of damages. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 6.04(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, provided that the fees and disbursements of such counsel shall be at the expense of the Indemnified Party. |
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| (b) | Settlement of Third-Party Claims. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of any Third-Party Claim without the prior written consent of the Indemnified Party, except as provided in this Section 6.04(b). If a firm offer is made to settle a Third-Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third-Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party consents to such firm offer the Indemnifying Party may settle the Third-Party Claim upon the terms set forth in such firm offer to settle such Third-Party Claim. If the Indemnified Party objects to such offer, or does not provide a response to such firm offer within ten days after its receipt of such notice (in which case the Indemnified Party shall be deemed to not have consented to such offer), the Indemnified Party shall thereafter assume the defense of such Third-Party Claim and shall continue to contest or defend such Third-Party Claim and in such event the maximum liability of the Indemnifying Party as to such Third-Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party has assumed the defense pursuant to this Section 6.04(b), the Indemnified Party shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). |
| (c) | Direct Claims. Any Action by an Indemnified Party on account of a Loss which does not result from a Third-Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after the Indemnified Party becomes aware of such Direct Claim, which notice shall describe the indemnification claim in reasonable detail; include the justification for the demand with reasonable specificity; include copies of all available material written evidence; and, if reasonably practical, indicate the estimated amount of damages. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have thirty (30) calendar days after its receipt of such notice to respond in writing to such Direct Claim. The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such thirty (30) calendar day period, the Indemnifying Party shall be deemed to have accepted liability for such claim, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement. |
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| (d) | Cooperation. Upon a reasonable request made by the Indemnifying Party, each Indemnified Party seeking indemnification hereunder in respect of any Direct Claim, hereby agrees to consult with the Indemnifying Party and act reasonably to take actions reasonably requested by the Indemnifying Party in order to attempt to reduce the amount of Losses in respect of such Direct Claim. Any costs or expenses associated with taking such actions shall be included as Losses hereunder. |
Section 6.05 Payments. Upon a determination of liability under this Article VI, the Indemnifying Party shall pay or cause to be paid to the Indemnified Party the amount so determined within five (5) Business Days after the date of such determination. If there should be a dispute as to the amount or manner of determination of any indemnity obligation owed under this Agreement, the Indemnifying Party shall nevertheless pay when due such portion, if any, of the obligation that is not subject to dispute. Upon the payment in full of any amounts due under this Article VI with respect to any claim, the Indemnifying Party shall be subrogated to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim.
Section 6.06 Certain Limitations. The indemnification provided for in Section 6.02 and Section 6.03 shall be subject to the following limitations:
| (a) | Mr. Wilson shall not be liable to the ConnectM Indemnified Parties for indemnification under Section 6.02 (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of fraud or any inaccuracy in or breach of any of the Fundamental Representations (the “Mr. Wilson Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 6.02 (other than those based upon, arising out of, with respect to or by reason of the Mr. Wilson Basket Exclusions) exceeds $100,000 (the “Basket”), in which event Mr. Wilson shall be required to pay or be liable for all such Losses in excess of the Basket. |
| (b) | ConnectM shall not be liable to Mr. Wilson Indemnified Parties for indemnification under and Section 6.03 until the aggregate amount of all Losses in respect of indemnification under Section 6.03 exceeds the Basket, in which event ConnectM shall be required to pay or be liable for all such Losses in excess of the Basket. |
| (c) | The Parties acknowledge and agree that the maximum liability of Mr. Wilson, on the one hand, or ConnectM on the other hand, under this Article VI shall be $500,000 (the “Cap”), and neither Mr. Wilson, on the one hand, nor ConnectM, on the other hand, shall have any liability to the other in excess of Cap except in the case of fraud. |
Section 6.07 Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated by the Parties as an adjustment to the consideration paid hereunder unless otherwise required by applicable Laws.
Section 6.08 Effect of Investigation. The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made at any time, whether before or after the execution and delivery of this Agreement, with respect to the accuracy or inaccuracy of or compliance with any such representation, warranty, covenant or obligation, and made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate. The waiver of any condition based upon the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, shall not affect the right to indemnification, reimbursement or other remedy based upon such representations, warranties, covenants or obligations.
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Section 6.09 Exclusive Remedy. In the event that the Closing occurs, the indemnification provisions contained in this Article VI shall be the sole and exclusive remedy of the Parties with respect to the Transactions for any and all breaches or alleged breaches of any representations, warranties, covenants or agreements of the Parties or any other provision of this Agreement or arising out of the Transactions, except (i) with respect to any equitable remedy to which such Party may be entitled to with respect to any claims or causes of action arising from the breach of any covenants or agreement of a Party that is to be performed subsequent to the Closing Date, or (ii) with respect to a Party, an actual and intentional fraud with respect to this Agreement and the Transactions. In furtherance of the foregoing, each Party hereto, for itself and on behalf of its Affiliates, hereby waives, from and after the Closing, to the fullest extent permitted under applicable Laws and except as otherwise specified in this Article VI, any and all rights, claims and causes of action it may have against any other Party hereto relating to the subject matter of this Agreement or any other agreement, certificate or other document or instrument delivered pursuant to this Agreement, arising under or based upon any applicable Laws.
Section 6.10 Earn-Out Dispute Resolution. In the event of any dispute, controversy, or claim arising out of or relating to the calculation, determination, or payment of any Earn-Out Payment, Pre-Payment Amount, Change of Control Payment, or any related obligation under Section 2.05, Section 2.06 or Section 2.08 (an “Earn-Out Dispute”), the Parties shall first attempt in good faith to resolve such dispute by negotiation between senior executives of each Party. If the Parties are unable to resolve the Earn-Out Dispute within thirty (30) days after written notice of such dispute is delivered by one Party to the other, then such Earn-Out Dispute shall be subject to the dispute resolution and arbitration procedures as set forth in Section 7.05.
Article VII. Miscellaneous
Section 7.01 Notices.
| (a) | Any notice or other communications required or permitted hereunder shall be in writing and shall be sufficiently given if personally delivered to it or sent by email, overnight courier or registered mail or certified mail, postage prepaid, addressed as follows: |
if to ConnectM to:
ConnectM Technology Solutions, Inc.
Attn: Bhaskar Panigrahi
2 Mount Royal Avenue, Suite 550
Marlborough, Massachusetts 01752
Email: [email protected]
With a copy, which shall not constitute notice, to:
Anthony, Linder & Cacomanolis, PLLC
Attn: John Cacomanolis
1700 Palm Beach Lakes Blvd., Suite 820
West Palm Beach, FL 33401
Email: [email protected]
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If to any BRI Party, to:
Blue Ribbon Ice Inc.
Attn: Avery Wilson
1547 Ridge Road
El Paso, AR 72045
Email: [email protected]
With a copy, which shall not constitute notice, to:
The Law Group of Northwest Arkansas, PLLC
Attn: Jason Boyeskie
1830 Shelby Lane
Fayetteville, AR 72704
Email: [email protected]
| (b) | Any Party may change its address for notices hereunder upon notice to each other Party in the manner for giving notices hereunder. |
| (c) | Any notice hereunder shall be deemed to have been given (i) upon receipt, if personally delivered, (ii) on the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if transmitted by email with return receipt requested and received and (iv) three (3) days after mailing, if sent by registered or certified mail. |
Section 7.02 Governing Law. Agreement, and all matters based upon, arising out of or relating in any way to the Transactions, including, without limitation, tort claims, statutory claims and contract claims, shall be interpreted, construed, governed and enforced under and in accordance with the substantive and procedural Laws of the State of Arkansas in each case as in effect from time to time and as the same may be amended from time to time, and as applied to agreements performed wholly within the State of Arkansas.
Section 7.03 Jurisdiction. SUBJECT TO THE PROVISIONS OF SECTION 7.05, ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN SHALL BE INSTITUTED SOLELY IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF NEW YORK, IN EACH CASE LOCATED IN NEW YORK CITY, NEW YORK AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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Section 7.04 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS, THE PERFORMANCE THEREOF OR THE FINANCINGS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.04. EACH OF THE PARTIES ACKNOWLEDGE THAT EACH HAS BEEN REPRESENTED IN CONNECTION WITH THE SIGNING OF THE WAIVER ABOVE BY INDEPENDENT LEGAL COUNSEL SELECTED BY THE RESPECTIVE PARTY AND THAT SUCH PARTY HAS DISCUSSED THE LEGAL CONSEQUENCES AND IMPORT OF THIS WAIVER WITH LEGAL COUNSEL. EACH OF THE PARTIES FURTHER ACKNOWLEDGE THAT EACH HAS READ AND UNDERSTANDS THE MEANING OF SUCH WAIVER AND GRANTS THIS WAIVER KNOWINGLY, VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER CONSIDERATION OF THE CONSEQUENCES OF THIS WAIVER WITH LEGAL COUNSEL.
Section 7.05 Dispute Resolution.
| (a) | If there is any dispute or controversy relating to this Agreement, any Transaction Document or any of the Transactions (each, a “Dispute”), which has not otherwise been resolved by the Parties as set forth herein, such Dispute shall be resolved in accordance with this Section 7.05. |
| (b) | The Party claiming a Dispute shall deliver to each of the other Parties a written notice (a “Notice of Dispute”) that will specify in reasonable detail the dispute that the claiming Party wishes to have resolved. If Mr. Wilson and ConnectM are not able to resolve the dispute within five (5) Business Days of a Party’s receipt of an applicable Notice of Dispute, then such Dispute shall be submitted to binding arbitration in accordance with this Section 7.05. |
| (c) | Any arbitration hereunder shall be conducted in accordance with the rules of the American Arbitration Association then in effect. Mr. Wilson and ConnectM shall each select one arbitrator with experience in the matters related to the Dispute within an additional (5) Business Days of the expiration of the period set forth in Section 7.05(b), and the two arbitrators so selected shall select a third arbitrator, and the three arbitrators shall resolve the Dispute. The arbitrators will be instructed to prepare in writing as promptly as practicable, and provide to Mr. Wilson and ConnectM such arbitrators’ determination, including factual findings and the reasons on which the determination was based. The decision of the arbitrators will be final, binding and conclusive and will not be subject to review or appeal and may be enforced in any court having jurisdiction over the Parties. Each Party shall initially pay its own costs, fees and expenses (including, without limitation, for counsel, experts and presentation of proof) in connection with any arbitration or other action or proceeding brought under this Section 7.05, and the fees of the arbitrators shall be share equally, provided, however, that the arbitrators shall have the power to award costs and expenses in a different proportion. |
| (d) | The arbitration shall be conducted in New York City, New York. |
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Section 7.06 Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at Laws or in equity.
Section 7.07 Limitation on Damages. IN NO EVENT WILL ANY PARTY BE LIABLE TO ANY OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH THE TRANSACTIONS FOR SPECIAL, GENERAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR LOST OPPORTUNITY, EVEN IF THE PARTY SOUGHT TO BE HELD LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 7.08 Attorneys’ Fees. In the event that any Party institutes any action or suit to enforce this Agreement or to secure relief from any default hereunder or breach hereof, the prevailing Party shall be reimbursed by the losing Party for all costs, including reasonable attorneys’ fees, incurred in connection therewith and in enforcing or collecting any judgment rendered therein.
Section 7.09 Public Announcements and Filings. Unless required by applicable Laws or regulatory authority, or the rules and regulations of any securities market on which the securities of ConnectM are listed or available for trading, none of the Parties will issue any report, statement or press release to the general public, trade or trade press, or to any third party (other than its advisors and representatives in connection with Transactions) or file any document, relating to this Agreement and Transactions, except as may be mutually agreed by the Parties. Copies of any such filings, public announcements or disclosures, including any announcements or disclosures mandated by Laws or regulatory authorities, shall be delivered to each Party prior to the release thereof.
Section 7.10 Third-Party Beneficiaries. This Agreement is strictly between the Parties and, except as specifically provided, no director, officer, stockholder (other than Mr. Wilson), employee, agent, independent contractor or any other Person shall be deemed to be a third-Party beneficiary of this Agreement.
Section 7.11 Expenses. Except as specifically set forth herein, whether or not the Transactions are consummated, each of the Parties will bear their own respective expenses, including without limitation the fees and expenses of its legal, accounting and financial advisors, incurred in connection with the Exchange or any of the other Transactions.
Section 7.12 Entire Agreement. This Agreement and the other Transaction Documents represent the entire agreement between the Parties relating to the subject matter thereof and supersede all prior agreements, understandings and negotiations, written or oral, with respect to such subject matter. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the Transactions be consummated as originally contemplated to the greatest extent possible.
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Section 7.13 Construction. The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.
Section 7.14 Amendment or Waiver.
| (a) | This may be amended, modified, superseded, terminated or cancelled, and any of the terms, covenants, representations, warranties or conditions hereof may be waived, only by a written instrument executed by all of the Parties. |
| (b) | Every right and remedy provided herein shall be cumulative with every other right and remedy, whether conferred herein, at law, or in equity, and may be enforced concurrently herewith, and no waiver by any Party of the performance of any obligation by another Party shall be construed as a waiver of the same or any other default then, theretofore, or thereafter occurring or existing. |
| (c) | Neither any failure or delay in exercising any right or remedy hereunder or in requiring satisfaction of any condition herein nor any course of dealing shall constitute a waiver of or prevent any Party from enforcing any right or remedy or from requiring satisfaction of any condition. No notice to or demand on a Party waives or otherwise affects any obligation of that Party or impairs any right of the Party giving such notice or making such demand, including any right to take any action without notice or demand not otherwise required by this Agreement. No exercise of any right or remedy with respect to a breach of this Agreement shall preclude exercise of any other right or remedy, as appropriate to make the aggrieved Party whole with respect to such breach, or subsequent exercise of any right or remedy with respect to any other breach. |
Section 7.15 Commercially Reasonable Efforts. Subject to the terms and conditions herein provided, each Party shall use its commercially reasonable efforts to perform or fulfill all conditions and obligations to be performed or fulfilled by it under this Agreement so that Transactions shall be consummated as soon as practicable. Each Party also agrees that it shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws and regulations to consummate and make effective this Agreement and the Transactions.
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Section 7.16 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. No Party shall have any power or any right to assign or transfer, in whole or in part, this Agreement, or any of its rights or any of its obligations hereunder, including, without limitation, any right to pursue any claim for damages pursuant to this Agreement or the transactions contemplated herein, or to pursue any claim for any breach or default of this Agreement, or any right arising from the purported assignor’s due performance of its obligations hereunder, including by merger, consolidation, operation of law, or otherwise, without the prior written consent of the other Parties and any such purported assignment in contravention of the provisions herein shall be null and void and of no force or effect. Other than as specifically set forth herein, including in Article VI, nothing in this Agreement shall confer on any Person other than the Parties, and their respective successors and assigns, any rights, remedies, obligations, or Liabilities under or by reason of this Agreement.
Section 7.17 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which taken together shall be but a single instrument. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Closing Date.
| ConnectM Technology Solutions, Inc. | ||
| By: | ||
| Name: | Bhaskar Panigrahi | |
| Title: | Chief Executive Officer | |
| Blue Ribbon Ice Inc. | ||
| By: | /s/ Scott ‘Avery’ Wilson | |
| Name: | Scott ‘Avery’ Wilson | |
| Title: | Chief Executive Officer | |
| Scott ‘Avery’ Wilson | ||
| By: | /s/ Scott ‘Avery’ Wilson | |
| Name: | Scott ‘Avery’ Wilson | |
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Exhibit A
Stock Power
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, Scott ‘Avery’ Wilson (“Seller”) hereby assigns, transfers, and conveys to ConnectM Technology Solutions, Inc., a Delaware corporation, all of Seller’s right, title, and interest in and to 6,000 shares common stock, par value $0.01 per share, of Blue Ribbon Ice Inc., an Arkansas corporation (the “Company”) and hereby irrevocably appoints the Chief Executive Officer and Secretary of the Company, and each of them, as Seller’s attomeyinfact to transfer said share on the books of the Company, with full power of substitution in the premises.
| Date: July 1st, 2026 |
| By: | /s/ Sco Avery’ Wilson | |
| Name: | Sco Avery’ Wilson |
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Exhibit B
Form of Put Notice
(Attached)
Exhibit 99.1
ConnectM Technology Solutions Acquires Blue Ribbon Ice, a Software Platform for Nationwide Commercial Field-Service Dispatch
Acquisition adds a software-driven supply-demand matching platform to ConnectM's AI-Powered Logistics business, extending the same real-time dispatch model that powers DeliveryCircle beyond last-mile delivery
MARLBOROUGH, Mass., July 28, 2026 (GLOBE NEWSWIRE) -- ConnectM Technology Solutions, Inc. (OTCQX: CNTM) (“ConnectM” or the “Company”), a technology company powering the physical layer of the AI economy, today announced that it has acquired Blue Ribbon Ice, a software platform that matches commercial HVAC, refrigeration, and facility-service demand with a vetted, nationwide network of independent contractors in real time. Blue Ribbon Ice becomes part of ConnectM’s AI-Powered Logistics platform, joining the Company’s existing DeliveryCircle business.
Extending a Proven Platform Model
Blue Ribbon Ice is built on the same core model as DeliveryCircle: software that matches customer demand to a distributed network of vetted, independent service providers in real time, with a single point of accountability held by ConnectM regardless of who performs the work on the ground. DeliveryCircle applies that supply-demand matching model to last-mile parcel and freight delivery; Blue Ribbon Ice applies it to commercial HVAC, refrigeration, and facility maintenance, using its platform to source, vet, and dispatch a nationwide network of more than 200 independent contractors across 42 states on behalf of restaurants, retail chains, convenience stores, grocery operators, hospitality groups, and other multi-site commercial customers. Like DeliveryCircle, Blue Ribbon Ice owns no trucks, equipment, or field labor of its own; its value sits in the software layer that matches, dispatches, and holds the network accountable.
Every service dispatched through the Blue Ribbon Ice platform is documented with photographs, equipment reporting, and asset tracking, generating an operating data stream structurally similar to the delivery and energy data ConnectM’s platforms already produce. The Company expects to route this data into the shared AI and data engine that underpins its AI-Powered Logistics and AI Infrastructure platforms, adding a new source of remote-asset and service-history intelligence to the more than 30GB of daily operating data the Company already collects.
The acquisition also broadens the customer base that ConnectM’s logistics platform can serve. Blue Ribbon Ice serves the same type of multi-site restaurant, retail, and hospitality operators that make up DeliveryCircle’s enterprise customer base, creating a potential cross-sell path between last-mile delivery and commercial field-services offerings under a single ConnectM relationship. The transaction reflects the Company’s broader growth strategy of pairing organic platform growth with selective, EBITDA-accretive tuck-in acquisitions as it advances its planned national exchange uplisting.
Management Commentary
“Blue Ribbon Ice runs the same playbook that has made our logistics platform work: software that matches demand to a vetted network in real time, with one company that owns the outcome for the customer,” said Bhaskar Panigrahi, Chairman and CEO of ConnectM. “Bringing that model into commercial field services is exactly the kind of disciplined, capital-efficient growth we look for. It adds a nationwide network, a new data stream for our shared AI engine, and a customer base that fits naturally alongside what DeliveryCircle already does.”
“I started Blue Ribbon Ice in 2022 with the idea that commercial operators deserve one accountable partner, not a list of contractors to manage themselves,” said Avery Wilson, Founder of Blue Ribbon Ice. “We built a software platform that connects customers to a vetted, qualified contractor network nationwide, backed by detailed documentation and consistent standards on every job. Joining ConnectM lets us combine that platform and network with a company that has the technology and vision to help us grow faster and serve more customers than we could on our own.”
About Blue Ribbon Ice
Founded in 2022, Blue Ribbon Ice is a software platform that matches commercial HVAC, refrigeration, and facility-service demand with a vetted, nationwide network of independent contractors. Operating an asset-light, technology-managed marketplace across 42 states, Blue Ribbon Ice provides emergency repair, preventative maintenance, and installation services to restaurants, retail chains, convenience stores, hospitality groups, grocery operators, and other multi-site commercial facilities, with a single point of accountability, real-time dispatch, and detailed documentation for every service visit.
About ConnectM Technology Solutions, Inc.
ConnectM is a technology company powering the physical layer of the AI economy. We bring AI to two large, physical markets, logistics and energy infrastructure, with a built-in channel that carries both into U.S. defense and government, all on one shared data engine.
Cautionary Note Regarding Forward-Looking Statements
This press release contains forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). We have based these forward-looking statements on our current expectations and projections about future events. All statements, other than statements of present or historical fact included in this press release, regarding our future financial performance and our strategy, expansion plans, future operations, future operating results, estimated revenues, losses, projected costs, prospects, plans and objectives of management are forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as “may,” “should,” “could,” “would,” “expect,” “plan,” “anticipate,” “intend,” “believe,” “estimate,” “continue,” “project” or the negative of such terms or other similar expressions. These forward-looking statements are subject to known and unknown risks, uncertainties and assumptions about us that may cause our actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by such forward-looking statements. Except as otherwise required by applicable law, we disclaim any duty to update any forward-looking statements, all of which are expressly qualified by the statements in this section, to reflect events or circumstances after the date of this press release. We caution you that the forward-looking statements contained herein are subject to numerous risks and uncertainties, most of which are difficult to predict and many of which are beyond our control. In addition, we caution you that the forward-looking statements regarding the Company contained in this press release are subject to the risks and uncertainties described in the “Cautionary Note Regarding Forward-Looking Statements” section of our Annual Report on Form 10-K and our Quarterly Reports on Form 10-Q that we file with the Securities and Exchange Commission. Such filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and ConnectM is under no obligation to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise.
Investor Relations
ConnectM Technology Solutions, Inc.
+1-617-395-1333
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