Agreement to Advance Funds between Peter DUNN and Registrant dated January 25, 2010 AGREEMENT TO ADVANCE FUNDS
EXHIBIT
10.2
Agreement
to Advance Funds between Xxxxx XXXX and Registrant dated January 25,
2010
This
Agreement to Advance Funds (the "Agreement") is made by and between Xxxxx Xxxx,
an individual, and Empire Post Media, Inc., a Nevada corporation (the
"Company").
WHEREAS,
the Company has filed a registration statement on Form S-1 (the "Registration
Statement"), with the Securities and Exchange Commission (the "SEC")
contemplating an offering of 12,000,000 shares of the Company's common stock
owned by Xxxxx Xxxx at $0.05 per share (the "Offering");
WHEREAS,
the Company anticipates the fees and expenses relating to the Offering will
total approximately $20,000;
WHEREAS,
the Company anticipates first paying such expenses from its
treasury;
WHEREAS,
as of December 31, 2009, the expenses incurred relating to the Offering totaled
$7,500.00 and the Company's available cash balance was $3,000.00;
WHEREAS,
the Company acknowledges that the fees and expenses relating to the Offering yet
to be incurred may exceed the Company's available cash balance; and
WHEREAS,
as a director, officer and beneficial owner of shares of the Company, Xx. Xxxx
desires the Company to continue to pursue the registration of the shares and to
conduct the Offering,
NOW,
THEREFORE, for and in consideration of the promises and mutual covenants herein
contained, and other valuable consideration, the parties hereto hereby agree as
follows:
1.
Advancement of
Funds.
Advancement
of
funds up to
$25,000. In consideration of the Company's commitment to continue
with the registration process and to conduct and complete the Offering should
fees and expenses exceed the funds immediately available in its treasury, Xx.
Xxxx hereby agrees to advance up to a total of $25,000 for use towards fees and
expenses relating to the Offering, including, but not limited to, the legal,
accounting, filing and printing costs associated with the Registration
Statement, and for other business purposes.
Further
advances. Xx. Xxxx further agrees to consider any further
requests for advancement of funds in excess of $25,000, but advancement of any
additional funds shall remain subject to Xx. Xxxx’x sole
discretion.
2.
Requesting an Advance of Funds. Xx. Xxxx shall advance funds upon
request of the Company upon disclosure of the Company's available cash balance,
expenses incurred in relation to the Offering to the date of the request, and a
reasonable projection of the anticipated fees and expenses to be incurred in
relation to the Offering within the 30 day period subsequent to the
request.
3.
Tracking Advanced Funds.
In connection with each advance of funds by Xx. Xxxx to the Company, the parties
shall execute a note in substantially similar form to Exhibit A to this
Agreement.
4.
No
Interest on Advanced Funds. The funds advanced by Xx. Xxxx shall bear no
interest nor entitle Xx. Xxxx to any fees or any reimbursement other than the
face value of any outstanding notes.
5.
Reimbursement of Advanced
Funds. The Company shall reimburse Xx. Xxxx for the aggregate amount of
any advances by him, as reflected by any notes outstanding, upon the occurrence
of the following:
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a.
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Quarterly
payments equal to 10% of net profits of the
Company,
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b.
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Payment
in full upon receipt by the Company of not less than $500,000 in capital,
or
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c.
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Payment
in full upon the sale of substantially all of the Company’s assets or 80%
of the Company’s capital
stock.
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IN
WITNESS WHEREOF, the undersigned parties have executed this Agreement upon
proper legal authority as of the 25th day of January, 2010.
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/s/ Xxxxx
Xxxx
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/s/ Xxxxxx
Xxxx
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Xxxxx Xxxx, an
individual
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Xxxxxx Xxxx, Executive
Vice-President of
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-2-
EXHIBIT
A
THIS NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS AND MAY NOT BE OFFERED OR SOLD, UNLESS IT HAS BEEN REGISTERED UNDER SUCH
ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM REGISTRATION
IS AVAILABLE.
PROMISSORY
NOTE
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25,000.00
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Los
Angeles, CA
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January
__, 2010
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FOR VALUE
RECEIVED, Empire Post Media, Inc., a Nevada corporation (the "Company"),
promises to pay to the order of Xxxxx Xxxx, an individual (the "Holder"), the
principal amount of $25,000.00, payable as follows: a) quarterly payments
equal to 10% of net profits of the Company, b) payment in full upon receipt by
the Company of not less than $500,000 in capital, or c) payment in full upon the
sale of substantially all of the company’s assets or 80% of the Company’s
capital stock("Due Date"). The principal amount shall not bear any
interest.
The
following is a statement of the rights of Holder and the conditions to which
this Note is subject, and to which Holder, by the acceptance of this Note,
agrees:
1.
Agreement
to Advance Funds. This Note is being issued pursuant to the terms
of the Agreement to Advance Funds entered into by and between the Company and
the Holder and dated January 22, 2010 (the "Agreement").
2.
Payments. All
payments of principal in respect of this Note shall be made in lawful money of
the United States of America in same day funds at the principal office of the
Holder, or at such other place as Holder may designate in writing. Each payment
made hereunder shall be credited to outstanding principal due.
3.
Prepayment Privilege.
This Note may be prepaid at any time, without premium or
penalty.
4.
Events of
Default. All liabilities of the Company under this Note shall be
immediately due and payable, without notice or demand, upon or at any time after
the occurrence or existence of any one or more of the following "Events of
Default":
(a)
A proceeding shall have been instituted in a court having jurisdiction over the
Company seeking a decree or order for relief in respect of Company in an
involuntary case under any applicable bankruptcy, insolvency, reorganization or
other similar law and such involuntary case shall remain undismissed or unstayed
and in effect for a period of sixty (60) consecutive days, or Company shall
commence a voluntary case under any such law or consent to the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator
(or other similar official).
(b)
The Company shall have filed a notice of withdrawal of the Company's
registration statement on Form S-1 with the Securities and Exchange Commission
(the "SEC"); or
(c)
The Company shall have failed to complete the contemplated offering within 6
months from date of the prospectus contained in registration statement on Form
S-1 as declared effective by the SEC.
5. Successors and
Assigns. The rights and obligations of the Company and Holder of
this Note shall be binding upon and benefit the successors, assigns, heirs,
administrators and transferees of the parties. The Company may not assign its
obligations hereunder without the consent of the Holder; the Holder may assign
its rights, interests or obligations hereunder, in whole or in
part.
6. Waiver and Amendment.
Any provision of this Note may be amended, waived or modified upon the
written consent of the Company and Holder.
7. Notices. Any
notice, request or other communication required or permitted hereunder shall be
in writing and shall be deemed to have been duly given if personally delivered
or mailed by registered or certified mail, postage prepaid, or by recognized
overnight courier or personal delivery at the respective addresses of the
parties as set forth on the register maintained by the Company. Any party hereto
may by notice so given change its address for future notice hereunder. Notice
shall conclusively be deemed to have been given when received.
8. Expenses; Waivers.
If action is instituted to collect this Note, the Company promises to pay
all costs and expenses, including, without limitation, reasonable attorneys'
fees, and costs, incurred in connection with such action. The Company hereby
waives notice of default, presentment or demand for payment, protest or notice
of nonpayment or dishonor and all other notices or demands relative to this
instrument.
9. Governing Law.
This Note and all actions arising out of or in connection with this Note shall
be governed by and construed in accordance with the laws of the State of
California, without regard to the conflicts of law provisions of the State of
California, or of any other state.
10. Waiver of Jury Trial.
To the fullest extent permitted by applicable law, the Company and the
Holder hereby irrevocably and expressly waive all right to a trial by jury in
any action, proceeding, counterclaim (whether based upon contract, tort or
otherwise) arising out of or relating to this Note, or other documents entered
in connection herewith or the transactions contemplated hereby.
11. Headings. The
headings of the sections and subsections of this Note are inserted for
convenience only and do not constitute a part of this Note.
12. Severability.
In case any one or more of the provisions contained in this Note shall be deemed
invalid, illegal, or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
13. Miscellaneous.
In the event the Holder at any time discovers that this Note contains an error
which was caused by clerical mistake, calculation error, computer error, printer
error, or similar error, the Company agrees, upon notice from the Holder to
execute any amendment or modification hereto that is necessary to correct any
such errors, and the Company also agrees not to hold the Holder responsible for
any damage resulting from such error. If this Note is lost, stolen, mutilated or
destroyed, and the Holder delivers to the Company an indemnification in the
Company's favor, signed by the Holder, the Company will sign and deliver to
Holder, a note identical in form and content which will have the effect of the
original Note for all purposes.
IN
WITNESS WHEREOF, the undersigned has caused this Note to be duly executed and
delivered as of the day and year first above written.
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EMPIRE
POSDT MEDIA, INC.
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/s/ Xxxxxx Xxxx
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Name:
Xxxxxx Xxxx
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Title:
Executive Vice-president
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