Exhibit 4.1


 


MEMBER
VOTING AND CONTROL AGREEMENT 


between
and among


CAIO,
LLC, BURKE HOLDINGS LLC, WG BUCK WARFIELD, MIKE BEIGHEY,


MATT
THOMAS, 317 LLC, H. PRESTON STOCKTON, JR. REVOCABLE TRUST,


KARL
I. McLENDON, WILLIAM C. LIEDTKE III, ERIC C. GROW,


TULSA
BREWING COMPANY LLC, and BT BREWERS LLC


 


Dated
as of August 1, 2018 


 


MEMBER
VOTING AND CONTROL AGREEMENT


 


THIS
MEMBER VOTING AND CONTROL AGREEMENT (“Agreement”) dated as of August 1, 2018, is entered into by and among CAIO, LLC,
an Oklahoma limited liability company (“Caio”), BURKE HOLDINGS LLC, an Oklahoma limited liability company (“Burke”),
WG BUCK WARFIELD, an individual (“Warfield”), MIKE BEIGHEY, an individual (“Beighey”), MATT THOMAS, an
individual (“Thomas”), 317 LLC, an Oklahoma limited liability company (“317”), and H. PRESTON STOCKTON,
JR. REVOCABLE TRUST, an Oklahoma revocable trust (“Stockton” and together with Caio, Burke, Warfield, Beighey, Thomas
and 317, the “Control Members”): KARL I. McLENDON, an individual (“McLendon”), WILLIAM C. LIEDTKE III,
an individual (“Liedtke”), ERIC C. GROW, an individual (“Grow” and collectively with McLendon and Liedtke,
the “Additional Brewers Members”); TULSA BREWING COMPANY LLC, an Oklahoma limited liability company (“Tulsa”);
and BT BREWERS LLC, an Oklahoma limited liability company (“Brewers”), with reference to the following facts: (Each
party listed above is individually a “Party” and collectively are the “Parties.”)


 


RECITALS



 


		A.	The
                                         Control Members own 100% of the limited liability company membership interest, equity
                                         and voting control in Tulsa.



 


		B.	Tulsa
                                         own 100% of the limited liability company membership interest, equity and voting control
                                         in BT Concepts 71st Street LLC, an Oklahoma limited liability company (“71st”)
                                         and therefore, collectively, the Control Members beneficially own 100% of the limited
                                         liability company membership interest, equity and voting control in 71st



 


		C.	Caio,
                                         Burke, Beighey, 317 and Stockton own 78% of the limited liability company membership
                                         interest, equity and voting control in Brewers.



 


		D.	Brewers
                                         owns 40%, and collectively Warfield, Beighey and Thomas own 20%, of the limited liability
                                         company membership interest, equity and voting control in Bricktown Brewery Restaurants
                                         LLC, an Oklahoma limited liability company (“Bricktown”), and therefore,
                                         collectively, the Control Members beneficially own 51.2% of the limited liability company
                                         membership interest, equity and voting control in Bricktown.



 


		E.	Tulsa
                                         has agreed to sell 100% of the limited liability company membership interest, equity
                                         and voting control in 71st to Bricktown after which 71st will become a wholly
                                         owned subsidiary of Bricktown.



 


		F.	As
                                         an inducement to and a condition of the purchase of 71st by Bricktown, the Parties are
                                         entering into this Agreement.



 


		G.	The
                                         Control Members, the Additional Brewers Members, Tulsa, and Brewers, deem it in their
                                         best interests and in the best interests of Bricktown and 71st to provide
                                         for the consistent and uniform management of the 71st and Bricktown and therefore desire
                                         to enter into this Agreement in order to effectuate that purpose and to set forth their
                                         respective rights and obligations in connection with their investment in Bricktown.



 




     


     


    

 


AGREEMENT



 


NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth in this Agreement, and subject to the terms and, conditions
stated herein, the Parties hereby agree as follows:


 


ARTICLE
1. 


DEFINITIONS



 


1.1 Incorporation
of Recitals. The Parties to this Agreement hereby agree and acknowledge that all of the Recitals set forth hereinabove are
true, complete and correct in every respect and hereby incorporate said Recitals into this Agreement by this reference.


 


1.2 Defined
Terms. As used in this Agreement, in addition to those terms defined in the Recitals above, the following terms shall have
the following respective meanings:


 


“Affiliate”
or “Affiliates” means, with respect to any specified Person, any Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such specified Person, whether by contract, through one or more intermediaries,
or otherwise.


 


“Closing
Date” means the closing date of the acquisition of 71st by Bricktown.


 


“Membership
Interests” shall mean any limited liability company membership interest in Brewers, Tulsa, 71st or Bricktown
owned by any Party hereto, whether certificated or not, and any rights, options or warrants to purchase or acquire limited liability
company membership interest in Brewers, Tulsa, 71st or Bricktown.


 


“Person”
means and includes natural persons, corporations, limited liability company, limited partnerships, general partnerships, joint
stock companies, joint ventures, associations, companies, trusts or other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.


 


“Proxy”
means James M. Burke


  


ARTICLE
2. 


COMMON
CONTROL 


 


2.1
Appointment of Proxy for Tulsa.


 


		(a)	Appointment
                                         of Proxy. Each of the Control Members hereby constitutes and appoints Proxy as their
                                         respective proxy, with full power of substitution, for and in their respective names
                                         and on their respective behalf, to vote any and all of their respective limited liability
                                         company membership interest in Tulsa with regard to any question, action, resolution,
                                         election or other matter presented to the members of Tulsa for vote or approval. Proxy
                                         shall vote said limited liability company membership interest in Tulsa in such manner
                                         and to such effect as he may determine in his sole and absolute discretion. The proxy
                                         granted hereby shall remain in effect for so long as and at all times that this Agreement
                                         shall remain in effect and shall terminate immediately and automatically only upon the
                                         earlier to occur of (a) Closing or (b) March 31, 2019. The proxy granted hereby is irrevocable
                                         and is coupled with an interest.



 


		(b)	Acceptance
                                         of Proxy. Proxy hereby accepts his appointment as proxy of each of the Control Members,
                                         pursuant to Subsection 2.1(a) of this Agreement. Other than as specifically set forth
                                         herein, the Proxy shall have no other rights with respect to the limited liability company
                                         membership interest in Tulsa.



 


2.2
Appointment of Proxy for Brewers.


 


		(a)	Appointment
                                         of Proxy. Each of Caio, Burke, Beighey, 317, Stockton and the Additional Brewers
                                         Members hereby constitutes and appoints Proxy as their respective proxy, with full power
                                         of substitution, for and in their respective names and on their respective behalf, to
                                         vote any and all of their respective limited liability company membership interest in
                                         Brewers with regard to any question, action, resolution, election or other matter presented
                                         to the members of Brewers for vote or approval. Proxy shall vote said limited liability
                                         company membership interest in Brewers in such manner and to such effect as he may determine
                                         in his sole and absolute discretion. The proxy granted hereby shall remain in effect
                                         for so long as and at all times that this Agreement shall remain in effect and shall
                                         terminate immediately and automatically only upon the earlier to occur of (a) Closing
                                         or (b) March 31, 2019. The proxy granted hereby is irrevocable and is coupled with an
                                         interest.



 






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		(b)	Acceptance
                                         of Proxy. Proxy hereby accepts his appointment as proxy of each of Caio, Burke, Beighey,
                                         317, Stockton and the Additional Brewers Members, pursuant to Subsection 2.2(a) of this
                                         Agreement. Other than as specifically set forth herein, the Proxy shall have no other
                                         rights with respect to the limited liability company membership interest in Brewers.



 


2.3
Appointment of Proxy for Bricktown.


 


		(a)	Appointment
                                         of Proxy. Each of Brewers, Warfield, Beighey and Thomas hereby constitutes and appoints
                                         Proxy as their respective proxy, with full power of substitution, for and in their respective
                                         names and on their respective behalf, to vote any and all of their respective limited
                                         liability company membership interest in Bricktown with regard to any question, action,
                                         resolution, election or other matter presented to the members of Bricktown for vote or
                                         approval. Proxy shall vote said limited liability company membership interest in Bricktown
                                         in such manner and to such effect as he may determine in his sole and absolute discretion.
                                         The proxy granted hereby shall remain in effect for so long as and at all times that
                                         this Agreement shall remain in effect and shall terminate immediately and automatically
                                         only upon the earlier to occur of (a) Closing or (b) March 31, 2019. The proxy granted
                                         hereby is irrevocable and is coupled with an interest.



 


		(b)	Acceptance
                                         of Proxy. Proxy hereby accepts his appointment as proxy of each Brewers, Warfield,
                                         Beighey and Thomas, pursuant to Subsection 2.3(a) of this Agreement. Other than as specifically
                                         set forth herein, the Proxy shall have no other rights with respect to the limited liability
                                         company membership interest in Bricktown.



 


2.3
No Fee to Proxy. Proxy shall not be entitled to a fee with respect to his service as Proxy, but shall be entitled to reimbursement
of any reasonable expense incurred in such service, to be borne pro-rata between the Control Members.


 


2.4
Successor Proxy. Upon the death or permanent incapacity of Proxy, Bradley L. Grow shall be appointed as successor Proxy
upon his written acceptance of such appointment.


 


ARTICLE
3.


TRANSFERS
OF MEMBERSHIP INTEREST


 


3.1
General Restriction. No Party shall sell, transfer, assign, pledge, convey, hypothecate or in any way alienate (“Transfer”)
any limited liability company membership interest in any of Tulsa, Brewers or Bricktown during the term of this Agreement. -19.


  


ARTICLE
4.


MISCELLANEOUS


 


4.1
Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be (a) delivered
personally, (b) sent by certified, registered or express mail, postage prepaid or (c) sent by nationally recognized overnight
courier, in each instance addressed in care of the recipient at 14504 Hertz Quail Springs Parkway, Oklahoma City, OK 73134. Any
such notice shall be deemed given when so delivered personally, or, if mailed, three (3) business days after the date of deposit
in the United States mail, by certified mail return receipt requested), or if by national courier, upon delivery at 14504 Hertz
Quail Springs Parkway, Oklahoma City, OK 73134. Any Party, by notice given in accordance with this Section 8.1 to the other Parties,
may designate another address or person for receipt of notices hereunder.


 






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4.2
Waivers and Amendments; Non-Contractual Remedies; Preservation of Remedies. This Agreement may be amended, superseded,
cancelled, renewed or extended, and the terms hereof may be waived only by a written instrument signed by the parties hereto and
their respective successors and assigns. No delay on the part of any Party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof except as expressly provided herein. No waiver on the part of any Party of any right, power
or privilege, nor any single or partial exercise of any such right, power or privilege, shall preclude any further exercise thereof
or the exercise of any other such right, power or privilege. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies that any party may otherwise have at law or in equity.


 


4.3
Governing Law. This Agreement shall be governed by and construed in accordance with the substantive and procedural laws
of the State of Oklahoma applicable to agreements made and to be performed entirely within such State (without giving effect to
any conflict of laws principles which might require application of the law of a different jurisdiction).


 


4.4
Binding Effect; No Assignment. Except as expressly provided herein, neither this Agreement, nor any right hereunder, may
be assigned by any Party without the written consent of the other Parties. Any such assignment or attempted assignment in violation
of the foregoing shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the
Parties and their permitted successors and assigns and legal representatives.


 


4.5
Counterparts. This Agreement may be executed by the Parties in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart
may consist of a number of copies hereof each signed by less than all, but together signed by all, of the Parties.


 


4.6
Headings. The headings in the Agreement are for reference only, and shall not affect the interpretation of this Agreement.


 


4.7
Severability. If any portion of this Agreement shall be deemed unenforceable, the remaining portions shall be valid and
enforceable.


 


4.8
Time of Essence. Time is of the essence for each and every provision of this Agreement.


 


4.9
Attorneys’ Fees. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement,
or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that
action or proceeding, in addition to any other relief to which it may be entitled.


 


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IN
WITNESS WHEREOF, each of the Parties have entered into this Agreement as of the date first above written.


 


	 	CAIO, LLC, an Oklahoma limited liability company 
	 	 	 
	 	By:
    	 
	 	 	Bradley
    L. Grow, Manager
	 	 	 
	 	BURKE HOLDINGS LLC, an Oklahoma limited liability company
	 	 	 
	 	By:
    	 
	 	 	James
    M. Burke, Manager
	 	 	 
	 	 	 
	 	WG BUCK WARFIELD, an individual
	 	 	 
	 	 	 
	 	MIKE BEIGHEY, an individual
	 	 	 
	 	 	 
	 	MATT THOMAS, an individual
	 	 	 
	 	317 LLC, an Oklahoma limited liability company
	 	 	 
	 	By:
    	 
	 	 	JB
    Edwards, Manager
	 	 	 
	 	H. PRESTON STOCKTON, JR. REVOCABLE TRUST, an Oklahoma revocable trust
	 	 	 
	 	By:	 
	 	 	Preston
    Stockton, Trustee
	 	 	 
	 	TULSA BREWING COMPANY LLC, an Oklahoma limited liability company
	 	 	 
	 	By:
    	 
	 	 	James
    M. Burke, Manager
	 	 	 
	 	BT BREWERS LLC, an Oklahoma limited liability company
	 	 	 
	 	By:
    	 
	 	 	James
    M. Burke, Manager



 



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IN
WITNESS WHEREOF, each of the Parties have entered into this Agreement as of the date first above written.


 


	 	 
	 	KARL
    I. McLENDON, an individual
	 	 
	 	 
	 	WILLIAM
    C. LIEDTKE III, an individual
	 	 
	 	 
	 	ERIC
    C. GROW, an individual
	 	 
	ACCEPTED:	
	 	 
	 	JAMES
    M. BURKE, as Proxy


 


 


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